[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- 3. Citations on appeals from the territorial courts Submitted Jan. 9, 1888. Decided Jan. 30, 1888. 1886, the appeal was docketed and dismissed Even if it should be conceded that an appeal 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 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. There was no trial of the case on issue. This proceeding might be considered as an 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 Brandies v. Cochrane, 105 U. S. 262 (26: 989); | 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 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 To get an appeal after the term at which 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 what subjects-secondary evidence-declara- 1. The master, the mate, and fireman of a tug, 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 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 9. A defect of seaworthiness, arising after the the want of ordinary care at the time of the loss, it is Submitted Jan. 6, 1888. Decided Jan. 30, 1888. It is, therefore, ordered that the cause stand 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. Mr. Harvey D. Goulder, for plaintiff in error: There seems to be, in time policies, an implied warranty of seaworthiness where the vessel, at the time of the taking out of insurance, is in a port where repairs can be made. Hoxiev. Pacific Mut. Ins. Co.7 Allen,211; Rouse v. Ins. Co. 3 Wall. Jr. 370; Hoxie v. Home Ins. Co. 32 Conn. 22; Lapene v. Sun Mut. Ins. Co. 8 La. Ann. 2; Copeland v. New Eng. Marine Ins. Co. 2 Met. 432; Capen v. Washington Ins. Co. 12 Cush. 517; Paddock v. Franklin Ins. Co. 11 Pick. 233; Merchants Mut. Ins. Co. v. Sweet, 6 Wis. 670; 1 Pars. Mar. Ins. 380, 381; Hazard v. New Eng. Marine Ins. Co. 1 Sumn. 218; Hazard v. New Eng. Marine Ins. Co. 33 U. S. 8 Pet. 557 (8: 1043); Starbuck v. New Eng. Marine Ins. Co. 19 Pick. 198; Adderly v. American Mut. Ins. Co. Taney, 126. pra; Swift v. Union Mut. M. Ins. Co. 122 Mass. 573. The parties made their contract and by that their rights ought to be fixed and controlled. Testimony of custom is clearly inadmissible. Orient Mut. Ins. Co. v. Wright, 68 U. S. 1 Wall. 456 (17: 505); Partridge v. Phoenix Mut. L. Ins. Co. 82 U. S. 15 Wall. 579 (21: 230); 1 Pars. Ins. 337; Work v. Leathers, 97 U. S. 379 (24: 1012). Captain Bowen was the agent and representative of the owner, in charge of the tug. What he said in regard to the then existing leak, and in regard to what should be done in reference to the pending situation in which they found themselves, is a part of the res gestæ. The Potomac, 75 U. S. 8 Wall. 594 (19: 512); Travelers Ins. Co. v. Mosley, 75 U. S. 8 Wall. 397 (19: 437); Waldele v. Ñ. Y. Cent. & H. R. R. R. Co. 95 N. Y. 274; Western Ins. Co. v. To The plaintiff was bound to prove a loss by some peril of the sea insured against by defend-bin, 32 Ohio St. 78. ant. Cory v. Boylston F. & M. Ins. Co. 107 Mass. 140; Flemming v. Marine Ins. Co. 4 Whart. 58; Swift v. Union Mut. M. Ins. Co. 122 Mass. 573; Paddock v. Commercial Ins. Co. 104 Mass. 528; Jones v. Ins. Co. 2 Wall. Jr. 278; 1 Phill. Ins. $$ 986, 1087-1089; Baker v. Manufacturers Ins. Co. 12 Gray, 603; Leftwitch v. St. Louis Perpetual Ins. Co. 5 La. Ann. 706; Heebner v. Eagle Ins. Co. 10 Gray, 131; 2 Greenl. Ev. § 385; 2 Phill. Ins. § 2079; Richelieu & O. Nav. Co. v. Boston Marine Ins. Co. 26 Fed. Rep. 596; Waters v. Merchants Louisville Ins. Co. 36 U. S. 11 Pet. 213 (9: 691). The vessel was in such a condition of unseaworthiness and danger as to be the proper subject of salvage services. McConnochie v. Kerr, 9 Fed. Rep. 50; The Plymouth Rock, 9 Fed. Rep. 413; The Leipsic, 10 Fed. Rep. 585; The New Orleans, 23 Fed. Rep. 909; The Saragossa, 1 Ben. 551. The interests of commerce, of freighters and insurers all require that no unnecessary risks be taken by a vessel's continuance at sea in a disabled and dangerous condition. McConnochie v. Kerr, supra; Snethen v. Memphis Ins. Co. 3 La. Ann. 474; Marcy v. Sun Mut. Ins. Co. 11 La. Ann. 748; Talcot v. Commercial Ins. Co. 2 Johns. 124. Where the policy excepts from the perils inBured against those arising from unseaworthiness, the assured, to recover thereon, must show that the vessel was seaworthy when lost. Berwind v. Greenwich Ins. Co. 21 Jones & S. 102. The evidence was insufficient to support a verdict for the plaintiff. Schofield v. Chicago, M. & St. P. R. Co. 114 U. S. 615 (29: 224). To charge a corporation upon the act of an officer or agent, it must be shown either that the act was performed while in the discharge of his duty in the usual course of businesss, and was within the general scope and sphere of such duty, or that it was expressly authorized, or that it was performed with the knowledge and assent of the directors or of the corporation or its authorized officers, or was subsequently ratified by them. Abb. Trial Ev. p. 32; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 290; Hoffman v. John Hancock Mut. L. Ins. Co. 92 U. S. 161 (23:539); Northwestern Union Packet Co. v. Clough, 87 U. S. 20 Wall. 528(22:406); American L. Ins. Co. v. Malone, 88 U. S. 21 Wall. 152 (22:593). The insurers undertake to make indemnity only for damage arising from external accidents, not for that occasioned by the qualities or defects of the thing insured. 1 Phill. Ins. 1089; Baker v. Manufacturers Ins. Co. 12 Gray, 603; Leftwitch v. St. Louis Perpetual Ins. Co. 5 La. Ann. 706; Heebner v. Eagle Ins. Co. 10 Gray 131; The Glenfruin, L. R. 10 P. Div. 103; Marcy v. Sun Mut. Ins. Co. 11 La. Ann. 748; 2 Phill. Ins. $2079; Myers V. Girard Ins. Co. 26 Pa. 192; Swift v. Union M. Ins. Co. 122 Mass. 573. The charge gives to the jury the impression that the owner of the tug, insured as a tug, is justified in towing her indiscriminately about the lakes, with her machinery broken to such an extent that the tug is unnavigable, without affecting the policy. McConnochie v. Kerr, 9 Fed. Rep. 50; The Leipsic, 10 Fed. Rep. 585; The New Orleans, 23 Fed. Rep. 909; The Saragossa, 1 Ben. 551; The Glenfruin, supra. 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. If the vessel was unseaworthy and if the loss was occasioned by unseaworthiness, the Insurance Company is not to be held liable. 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 Richelieu & O. Nav. Co. v. Boston Marine Ins. Co. and Merchants Mut. Ins. Co. v. Sweet, 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 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 499 covery of the leak, the vessel filled with water and sank, and became a total loss; that the plaintiff promptly caused proof of loss to be made to the defendant, as required by the policy, and also, in compliance with its terms, caused to be made to the defendant an assignment and transfer of all interest which he had in the vessel, and made a claim upon the defendant for $7,000, as for a total loss; and that the defendant accepted the abandonment and transfer. The answer admitted the character and general occupation of the tug, and the issuing of the policy to the plaintiff, and denied every allegation in the petition not expressly admitted in the answer to be true. The second and third defenses contained in the answer were as follows: "2d defense. And by way of further answer, and for a second defense, defendant says that said tug, while on Lake Huron, was rendered helpless and unseaworthy and in great danger of springing a leak and sinking by the breaking of her shaft, a part of her machinery, which breaking was not caused by stranding, collision, or the vessel being on fire, and was compelled to and did abandon the vessel which she had in tow; and while in such helpless, unseaworthy, and perilous condition, said tug was picked up and towed to Port Huron, a place of safety and a port of repair, where every facility and convenient means of repairing said tug were at hand; yet defendant avers that said tug was not there repaired, but, without the knowledge or consent of defendant, said tug, in the same helpless and unseaworthy and dangerous condition before described, was towed out of and past said Port of Huron, and was after wards towed in the same condition into and [409] through and past the Port of Detroit, at which last named place every facility and all conveniences existed for repairing said tug, and which also was a place of entire safety; and, without any notice to defendant, and without its knowledge and consent, the said tug being then and at all times hereinbefore mentioned in the possession and control of plaintiff and his agents, said tug was, in such helpless and unseaworthy and dangerous condition, towed out upon Lake Erie, not in any manner navigating as a tug, or by or with the aid of her own machinery and appliances, and, soon after reaching Lake Erie, without any stress of weather, the said tug sprung a leak and was sunk. "3d defense. And, for a further and third defense, the defendant says that, while said tug N. P. Sprague was on Lake Huron, having in tow several vessels, part of her machinery, to wit, shaft, broke, the said breaking not being caused by stranding, collision, or the vessel being on fire, whereby said tug was completely disabled, and was compelled to and did give up her said tow, and was rendered unseaworthy and helpless, and was in great and constant peril of springing a leak and sinking by the working of her propeller wheel and broken shaft attached thereto; and in that condition, she was picked up, and, by direction of her master, towed to Port Huron, Michigan, which was a place of safety and at which every facility and convenient means for repairing said tug in all respects were at hand, but the plaintiff negligently failed and neglected to repair, or cause to be repaired, said tug, and negligently, and without the knowledge or consent of the defendant, caused her to be towed out of and away from said port of safety and repair, in the unseaworthy and dangerous condition above described; and afterwards, in the same condition, said tug was towed into and through and past the Port of Detroit, a place of safety, where every means and facility for repairing said tug was at hand and convenient; yet the plaintiff, not regarding his duty in that behalf, negligently failed to repair, or cause to be repaired, the said tug, and permitted her, in the unseaworthy, helpless, disabled, and dangerous condition before described, to be towed out of Detroit River and out upon Lake Erie; that, soon after reaching the lake, and meeting with a slight and ordinary swell, the said tug, by reason of her said broken machinery, and by reason of her said unseaworthiness and helpless and dangerous condition, sprung a serious leak and soon after was sunk." This plaintiff demurred to the second defense, as not stating facts sufficient in law to constitute a defense to the cause of action alleged in the petition, and replied to the third defense as follows: "This plaintiff admits that, while the tug N. P. Sprague was on Lake Huron, having in tow several vessels, a part of her machinery, to wit, her shaft, broke, whereby said tug was compelled to and did give up her said tow, and was rendered helpless, and was, in this condition, by the direction of her master, towed to Port Huron, Michigan, which was a place of safety: that said master caused her to be towed away from Port Huron to and past Detroit, which was also a place of safety; and that, soon after reaching Lake Erie, on her way to Cleveland, she sprung a leak and soon after sunk; but this plaintiff denies all and singular the allegations in said third defense contained, except those hereinabove admitted." The court sustained the demurrer to the sccond defense, and the issues of fact joined were tried by a jury, which returned a verdict for the plaintiff for $7,569.33. A motion for a new trial was overruled, and a judgment was entered in favor of the plaintiff, for the $7,569.33, and interest, and costs, on the 25th of March, 1886, the verdict having been rendered on the 24th of February, 1886. The defendant bas brought a writ of error to review this judg ment. [410] There is a bill of exceptions, filed on the 25th of March, 1886, which sets forth that, at the trial of the case, the plaintiff, to maintain the issue on his part, introduced and offered in evi dence certain testimony, which is set forth. At the close of such testimony, it is stated that counsel "moved the court to take the case from the jury on the ground of absence of proof of a loss of plaintiff's vessel within the policy, and because there is not sufficient testimony to justify a recovery;" that "the motion was overruled by the court, to which ruling the defendant duly excepted:" and that "the foregoing was all the testimony offered by the plaintiff [411] maintain the issues on his part, in chief." It is then stated that the defendant, to maintain the issues on its part, offered in evidence certain testimony which is set forth. It is then stated that "the foregoing was all the testimony |