[490]

1. In ordinary cases, the signing of a citation in time, by the proper justice or judge, is a sufficient allowance of an appeal,

2. The taking of security on appeal is not juris-
dictional in its character; its omission is only an ir-
regularity and does not necessarily avoid the cita-
tion, and permission to supply such omission may
be given.

3. Citations on appeals from the territorial courts
may be signed by a judge or justice of the terri-
torial court or by a justice of this court.
[No. 989.]

Submitted Jan. 9, 1888. Decided Jan. 30, 1888.

1886, the appeal was docketed and dismissed
under Rule 9, on motion of counsel for the ap
pellee. On the 4th of August, 1887, the case
was again docketed by the appellants. This
motion is to dismiss upon that docketing.

Even if it should be conceded that an appeal
was allowed by the approval of the bond July
21, 1886, that appeal became inoperative by the
failure of the appellants to docket the case at
our term of 1886, and by the order to dismiss
made upon the docketing by the appellee. The

APPEAL from the Supreme Court of the rights of the parties depend, therefore, on the

legal effect of the signing of the citation on

Territory
Motion to dismiss. Dismissed, unless a bond the 17th of November, 1886, returnable to this
on appeal is filed.

The facts are stated by the court.

Mr. A. H. Garland for appellees, and Mr. W. W. Upton for Ranck, in support of motion:

This suit to all intents and purposes was an action of ejectment.

Greer v. Mezes, 65 U. S. 24 How. 268 (16:661). The questions involved cannot come up on appeal, but on writ of error only.

R. S. §S 691, 692; Hayes v. Fischer, 102 U. S.
121 (26: 95); Sarchet v. U. S. 37 U. S. 12 Pet.
143 (9: 1033); Jones v. La Vallette, 72 U. S. 5
Wall. 579 (18: 550); Ex parte Brown, 116 U. S.
401 (29: 676).

There was no trial of the case on issue.
Story v. Black, 119 U. S. 235 (30: 341) and
cases cited; 2 Bouv. L. Dict. 749.

This proceeding might be considered as an
appeal.

Brandies v. Cochrane, 105 U. S. 262 (26:989). Mr. Leander Holmes for appellants, in opposition:

Act April 7, 1874, chap. 80, 2, 18 Stat. at
L. 27; Hecht v. Boughton, 105 U. S. 235 (26:
1018); Wolf v. Hamilton, 108 U. S. 15 (27: 635).
To take an appeal is a right.

Brandies v. Cochrane, 105 U. S. 262 (26: 989);
U. S. v. Gomez, 64 U. S. 23 How. 326 (16: 552).
Where the law authorizes the mingling of
law and equity in one suit, the same rules are
to be applied as if the suit was begun in equity.
Sower v. Weaver, 78 Pa. 443; Williams v.
Murphy, 21 Minn. 534; Ex parte Brown, 116 U.
S. 401 (29: 676).

|

term without taking any new security.

The statute makes no special provision as to the form of an allowance of an appeal, but this court has said that, "as there can be no appeal without the taking of security, either for costs or costs and damages, and this is to be done by the court, or a judge or justice, the acceptance of the security, if followed when necessary by the signing of a citation, is, in legal effect, the allowance of an appeal." Sage v. Iowa Cent. R. R. Co. 96 U. S. 712, 714 [24: 641, 643]; Draper v. Davis, 102 U.S. 370, 371 [26: 121, 122]; Brandies v. Cochrane, 105 U. S. 262 [26: 989].

In the present case there was the signing of a citation returnable to the present term, but no acceptance of security; and the question presented is whether that is enough of itself to constitute an allowance of an appeal such as will give this court jurisdiction, and if it is, whether, before dismissing the case peremptorily, we may permit the appellants to give the requisite security here. O'Reilly v. Edrington, 96 U. S. 724, 726 [24: 659].

In all of the Territories, in cases tried by An appeal to this court in a proper case is
jury the case shall be reviewed by writ of er-matter of right, and its allowance is in reality
ror, and all others by appeal.
nothing more than the doing of those things
which are necessary to give the appellant the
means of invoking our jurisdiction. A writ of
error is the process of this court, and it is is-
sued, therefore, only upon our authority; but
an appeal can be taken without any action by
this court. All that need be done to get an
appeal is for the appellant to cite his adversary
in the proper way to appear before this court,
and for him to docket the case here at the
proper time. Such a citation as is required
may be signed by a judge of the circuit court
from which the appeal is taken, or by a justice
of this court. Rev. Stat. § 999. As appeals
from territorial courts are to be taken in the
same manner and under the same regulations
as from the circuit courts (Rev. Stat.703), it
follows that citations on such appeals may be
signed by a judge or justice of the territorial
court, or by a justice of this court.

Mr. Chief Justice Waite delivered the opinion of the court:

The facts on which this motion rests are these:

A judgment was rendered by the Supreme Court of the Territory of Washington July 18, 1885, dismissing an appeal. On the 15th of July, 1886, Lorenzo D. Brown and Leander Holmes presented a bond as security for an appeal from this judgment to one of the jus tices of that court, and he, on the 21st of that month, indorsed upon it his approval. On the 17th of November, 1886, a citation was signed by the same justice, requiring McConnell, as appellee, to appear in this court to answer the appeal "on the second Monday in October next," which was the first day of the present term. This citation was served on McConnell the day of its date. On the 23d of May, 1887, which was the last Monday in our term of

If an appeal is taken by the action of the court in session before the end of the term at which the decree is rendered, no formal citation is necessary because, both parties, being constructively in court during the entire term, they are charged by law with notice of all that is done in the case affecting their interests. But if the necessary security is not taken until after the term, a citation is required to bring the ap pellee before us; although, if the case is docketed here in time, it will not be dismissed at the return term until an opportunity has been afforded the appellant to give the requisite notice. The appeal taken in open court, if dock

[491]

[492]

[493]

eted here in time, gives this court jurisdiction
of the subject matter and invests it with power
to make all orders, consistent with proper
practice, which are needed in furtherance of
justice. This subject was fully considered in
Hewitt v. Filbert, 116 U. S. 142 [29:581].

To get an appeal after the term at which the
decree is rendered, a party must apply to the

proper justice or judge to sign a citation. If Expert witnesses-seamen when competent as-on

he signs it, he furnishes the appellant the
means of getting his case into this court, and
in legal effect allows an appeal. All the appel-
lant has to do after that to give this court ju-
risdiction, both of the subject matter of the ap-
peal and of the parties, is to serve his citation
and to docket the case here in time.

what subjects-secondary evidence-declara-
tions of captain-motion for nonsuit, when
waived-general exception-insurance against
lake perils-warranty of seaworthiness-loss
from other cause-burden of proof.

1. The master, the mate, and fireman of a tug,
who were on board of her at the time she was lost
on the lake, and her owner, each of whom had been
engaged in navigation of the lakes for many years,
are competent as expert witnesses in regard to the
loss, and in regard to the prudence of the manage-
each in view of the experience of each, is for the
ment of the tug, and the weight of the evidence of
jury.

2. In an action to recover insurance on a vessel lost on the lake, the prudence and good seamanpert testimony.

By section 1000 of the Revised Statutes the
justice or judge is required when he signs a
citation to take good and sufficient security
that the appellant shall prosecute his appeal to
effect, and, if he fail to make his plea good, an-
swer all costs. The failure to take such secu-
rity is an irregularity, but it does not necessa-
rily avoid the citation. The security is re-ship of its management are proper subjects of ex-
quired, however, in the due prosecution of the
appeal; and if the case is docketed here in
time it will not ordinarily be dismissed because
of the neglect or ommission of the justice or
judge to require the security until the appel- evidence of declarations made by the captain of
lant has been afforded a reasonable opportuni- the tug after she had become disabled, in regard to
the occurrence, where it was not stated what was
ty of curing the defect. The taking of securi- proposed to be proved and it was not shown that
ty is not jurisdictional in its character, and its such declarations were a part of the res gesta.
omission affects only the regularity of the pro-close of plaintiff's testimony, is waived by the in-
5. A motion for peremptory nonsuit, made at the
ceedings. Such being the case, permission to troduction by the defendant of testimony in the
supply it here may properly be given in fur- further progress of the case.
therance of justice.

There is nothing in the case of Castro v. U. S. 70 U. S. 3 Wall. 46 [18: 163], or in that of U. S. v. Curry, 47 U. S. 6 How. 106 [12: 363], which is at all inconsistent with our present ruling to the effect that in ordinary cases the signing of a citation in time by the proper justice or judge is a sufficient allowance of an appeal. Castro's Case arose under the Act of March 3, 1851, 9 Stat. at L. 631, chap. 41, to ascertain and settle private land claims in California, which required (9) appeals to be granted by the district court on the application of the party against whom the judgment was rendered. Clearly, a citation signed by a judge out of court would not be the allowance of an appeal under that statute, because that appeal must be allowed by the court. Curry's Case arose under the Act of May 26, 1824, 4 Stat. at L. 52, chap. 173, which required an appeal to be taken within one year from the time of the rendition of the judgment (§ 2), and the citation was not signed before the end of that time. The jurisdiction of this court depended, therefore, entirely on the first appeal, which had become inoperative by a failure to docket it at the return term.

3. Secondary evidence of the proofs of loss may be given, where the defendant failed to produce them in evidence on notice.

4. It was not error in the court below to exclude

6. A general exception to the refusal to charge
the entire series of fourteen propositions, is bad,
provided any one of the series is objectionable.
7. Where a vessel was insured against all perils of
the lakes, excepting perils from certain specified
from a peril of the lake which did not arise from,
and excluded causes, if the vessel sustained loss
or was not caused by, one of the excluded causes,
the insurance company is liable.
the warranty of seaworthiness is complied with if
8. In the insurance of a vessel by a time policy,
the vessel be seaworthy at the commencement of
the risk; and the fact that she subsequently sus-
tained damage, and was not properly refitted at an
from subsequent loss, provided such loss be not the
intermediate port, does not discharge the insurer
consequence of the omission.

9. A defect of seaworthiness, arising after the
tinue from bad faith or want of ordinary prudence
commencement of the risk, and permitted to con-
or diligence of the insured or his agents, discharges
the insurer from liability for loss which is the con-
sequence of such bad faith or want of prudence or
diligence; but does not affect the contract of insur-
ance as to any other risks or loss covered by the
policy and not caused or increased by such particu
lar defect.

the want of ordinary care at the time of the loss, it is
10. Where defendant sets up, as a special defense,
not error for the court to charge the jury that such
defense must be shown by defendant; the court hav
ing previously stated to the jury that, to entitle
the plaintiff to recover, he must show that he had
complied with the terms of the policy and that it
must appear from the whole proof that the loss
was not occasioned by the want of ordinary care.
[No. 787.]

Submitted Jan. 6, 1888. Decided Jan. 30, 1888.

It is, therefore, ordered that the cause stand
dismissed, unless the appellants shall, on or be-
fore the 19th day of March next, file with the clerk
of this court a bond in the penal sum of five hun-IN ERROR to the Circuit Court of the United
dred dollars, conditioned according to law for
the purposes of the appeal, with sureties to be ap-
proved by the Justice of this Court allotted to the
Ninth Circuit.

Similar orders may be entered in Nos. 987 [Brown v. Ranck] and 668 [Brown v. Hazard], which were submitted on like motions.

States for the Northern District of Ohio, to review a judgment for the plaintiff in an action to recover for the loss of a vessel insured by a policy of marine insurance. Judgment af firmed.

The facts and case are fully stated in the opinion.

The plaintiff was bound to prove a loss by some peril of the sea insured against by defend-bin, 32 Ohio St. 78.

The witness must be shown to have skill or Where the legal effect of the allegations in an learning in the matter upon which his opinion answer is a mere denial of the averments in the is to be asked, sufficient to entitle him to be petition, such allegations cannot be regarded regarded as an expert. And whether the wit-as new matter which will be taken as true unness is so qualified is a question for the court to pass upon before the testimony is received. Stephens, Dig. Ev. Art. 49; Pope v. Filley, 9 Fed. Rep. 66.

less controverted by the reply.

Dayton Ins. Co. v. Kelly, 24 Ohio St. 345; Simmons v. Green, 35 Ohio St. 104; Bliss, Code Pl. § 396.

The fourth request that, if the plaintiff failed to put the tug in seaworthy condition at Detroit, and in consequence of that she was lost, the verdict should have been for defendant, is su-supported by Richelieu & O. Nav. Co. v. Boston

Marine Ins. Co. 26 Fed. Rep. 595; Work v. Leathers, 97 U. 8. 879 (24:1012); Capen v. Washington Ins. Co. 12 Cush. 517.

The eleventh request is supported by 2 Phillips, Ins. § 2079, and Myers v. Girard Ins. Co. 26 Pa. 192.

Mr. J. E. Ingersoll, for defendant in er

ror:

The bill of exceptions should show affirmatively that the objection and the exception to it were taken during the progress of the trial. Scott v. Lloyd, 34 U. S. 9 Pet. 442 (9:186). An exception to be of any avail must be taken at the trial. The fact that it was seasonably taken must appear affirmatively in the record. U. S. v. Carey, 110 U. S. 52 (28:67); Simpson v. Dall, 3 Wall. 460 (18:265).

Experienced navigators, as well as shipwrights, are competent to express opinion on questions involving nautical skill, as to the nature and ordinary effects of the perils to which the marine loss is attributable.

Abb. Trial Ev. 500; Eastern Trans. Line v. Пlope, 95 U. S. 298 (24:477): Moore v. Westerveli, 9 Bosw. 558; Walsh v. Tashington Marine Ins. Co. 32 N. Y. 427.

By a series of cases, beginning with Doe v. Grymes, 26 U. S. 1 Pet. 469 (7: 224); also De Wolf v. Rabaud, 26 U. S. 1 Pet. 496 (7:236), this court has held that a refusal to grant a nonsuit constitutes no ground for reversal in this court. Those decisions were followed in Crane v. Morris, 31 U. S. 6 Pet. 608 (8:518); Silsby v. Foote, 55 U. S. 14 How. 218 (14:394); Castle v. Bullard, 64 U. S. 23 How. 183 (16:427); Schuchardt v. Allen, 68 U. S. 1 Wall. 369 (17: 646); Pleasants v. Fant, 89 U. S. 22 Wall. 121 (22:782); Foule v. Alexandria, 24 U. S. 11 Wheat. 320 (6:484).

In Beaver v. Taylor, 93 U. S. 46 (23:797), the court says: An exception to the entire charge of the court, or in gross to a series of propositions therein contained, cannot be sustained if any portion thus excepted to is sound.

A general exception made to a refusal to charge a series of propositions is bad provided any one of the series is objectionable.

Beaver v. Taylor, supra; Worthington v. Mason, 101 U. S. 149 (25:848); U. S. v. Hough, 103 U. S. 71 (26: 305).

A defect of seaworthiness, arising after the commencement of the risk, and permitted to continue from bad faith or want of ordinary prudcuce or diligence on the part of the owner or his agents, discharges the underwriter from liability for any loss, the consequence of such want of faith, prudence or diligence.

Cleveland, C. & C. R. R. Co. v. Crawford, 24
Ohio St. 636.

Mr. Justice Blatchford delivered the opin. [40€ ion of the court:

The

This is an action at law brought by Patrick Smith against the Union Insurance Company of the City of Philadelphia, a Pennsylvania corporation, in the Court of Common Pleas of Cuyahoga County, Ohio, and removed by the defendant into the Circuit Court of the United States for the Northern District of Ohio, to [407 recover the sum of $7,000, with interest, for the loss of a vessel insured by a policy of marine insurance issued by the defendant. The pol icy was dated May 6, 1884, and insured the steam tug N. P. Sprague, from May 6, 1884, to December 10, 1884, in the sum of 7,000, the vessel "to be employed exclusively in the freighting and passenger business, and to navigate only the waters, bays, harbors, rivers, canals, and other tributaries of Lakes Superior, Michigan, Huron, St. Clair, Erie and Ontario, and River St. Lawrence to Quebec, usually navigated by vessels of her class, the vessel being valued in the policy at $9,334. policy contained these provisions: "Touching the adventures and perils which the said Insurance Company is content to bear and take upon itself by this policy, they are of the lakes, rivers, canals, fires, jettisons, that shall come to the damage of the said vessel or any part thereof, excepting all perils, losses, misfortunes, or expenses consequent upon and arising from or caused by the following or other legally excluded causes, viz: damage that may be done by the vessel hereby insured to any other vessel or property; incompetency of the master or insufficiency of the crew or want of ordinary care and skill in navigating said vessel, and in loading, stowing, and securing the cargo of said Boiler vessel: rottenness, inherent defects, overloading, and all other unseaworthiness." clause. Unless caused by stranding, collision, or the vessel being on fire, the insured warrants this policy to be free from any claim for loss or damage to boilers, steam pipes, or machinery caused by the bursting, explosion, collapsing, or breaking of the same, and to be free from any and every general average and salvage expense in consequence thereof, excepting always the expenses of getting the vessel from an exposed position to the nearest place of safety, when further expenses of above nature are not to be a claim on the insurer."

The petition by which the suit was commenced in the state court set forth that the American Ins. Co. v. Ogden, 20 Wend 287; plaintiff was the owner of the tug; that on the Peters v. Phoenix Ins. Co. 3 Serg. & R. 25; Pad- 18th of July, 1884, the vessel, in her regular dock v. Franklin Ins. Co. 11 Pick. 227; Star-course of business, left Port L'Anse, bound to buck v. New Eng. Marine Ins. Co. 19 Pick, 198: Adderly v. American Mut. Ins. Co. Taney, 126; Capen v. Washington Ins. Co. 12 Cush. 517; Merchants Mut. Ins. Co. v. Sweet, 6 Wis. 670; Hazard v. New Eng. Marine Ins. Co. 1 Sumn. 218.

The statement of an agent made after the act concerning it is no part of the res gesta.

Vicksburg & M. R. R. Co. v. O'Brien, 119 U. S. 103 (30:300).

There is no presumption of negligence as against either party, except such as arises from the facts proved.

Cleveland; that she was then stout, staunch, and
strong, and in all respects seaworthy for the [40
voyage she was about to undertake; that, while
on that voyage, and on the 23d of July, 1884, and
without fault or negligence on the part of the
plaintiff or those in charge and management of
her, but solely by reason of the perils of naviga
tion so insured against by the defendant, she
sprung a leak; that although the plaintiff and
his agents, and the officers in charge of the ves-
sel, used all reasonable endeavors to prevent
said vessel filling with water, they were unable
so to do; that, within a short time after the dis-

499