Syllabus.

are many and uniform. The holder of a legal title in bad faith must always yield to a superior equity. As against the United States his title may be good, but not as against one who had acquired a prior right from the United States in force when his purchase was made under which his patent issued. The patent vested him with the legal title, but it did not determine the equitable relations between him and third persons. Townsend v. Greeley, 5 Wall. 326, 335; Silver v. Ladd, 7 Wall. 219, 228; Meader v. Norton, 11 Wall. 442, 458; Johnson v. Towsley, 13 Wall. 72, 87; Carpentier v. Montgomery, 13 Wall. 480, 496; Shepley v. Cowan, 91 U. S. 330, 340; Moore v. Robbins, 96 U. S. 530, 535; Wort v. Branson, 98 U. S. 118, 121; Marquez v. Frisbie, 101 U. S. 473, 475.

The judgment is affirmed.

UNION INSURANCE COMPANY v. SMITH.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO.

Submitted January 6, 1888.- Decided January 30, 1888.

A time policy of marine insurance on a steam tug to be employed on the Lakes, insured her against the perils of the Lakes, excepting perils consequent upon and arising from or caused by' incompetency of the master"" or want of ordinary care and skill in navigating said vessel, rottenness, inherent defects,"." and all other unseaworthiness." While towing vessels in Lake Huron, in July, her shaft was broken, causing a leak at her stern. The leak was so far stopped that by moderate pumping she was kept free from water. She was taken in tow and carried by Port Huron and Detroit and into Lake Erie on a destination to Cleveland, where she belonged and her owner lived. She sprang a leak in Lake Erie, and sank, and was abandoned to the insurer. On the trial of a suit on the policy, it was claimed by the defendant that the accident made the vessel unseaworthy, and the failure to repair her at Port Huron or Detroit avoided the policy. The court charged the jury that if an ordinarily prudent master would have deemed it necessary to repair her before proceeding, and if her loss was occasioned by the omission to do so, the plaintiff was not entitled to recover; but if, from the character of the injury and the leak, a master of competent judgment might

Opinion of the Court.

reasonably have supposed, in the exercise of ordinary care, that she was seaworthy to be towed to Cleveland, and therefore omitted to repair her, such omission was no bar to a recovery. Held, that there was no error ́ ́in the charge.

Expert testimony as to whether, under the circumstances, it was the exercise of good seamanship and prudence to attempt to have the vessel towed to Cleveland, was competent.

The question of the competency of the particular witnesses to testify as experts, considered.

The weight of the evidence of each witness was a question for the jury, in view of the testimony of each as to his experience.

It was not improper to refuse to allow the defendant to ask a witness what talk he had with the master of the tug, after she was taken in tow, in regard to the leak, or what should be done, it not being stated what it was proposed to prove, and it not appearing that the statement of the master ought to be regarded as part of the res gestae.

A motion by the defendant, at the close of the plaintiff's testimony, to take the case from the jury, was properly refused, because it was a motion for a peremptory nonsuit, against the will of the plaintiff'; and it was waived by the introduction by the defendant of testimony in the further progress of the case.

A general exception to a refusal to charge a series of propositions, as a whole, is bad, if any one of the series is objectionable.

The defendant having set up, in its answer, that the loss was occasioned by want of ordinary care in managing the tug at the time she sprang a leak in Lake Erie, and having attempted to prove such defence, it was not error to charge the jury that such want of ordinary care must be shown by a fair preponderance of proof on the part of the defendant.

THIS was an action upon a policy of marine insurance. Judgment for plaintiff. Defendant sued out this writ of The case is stated in the opinion of the court.

error.

Mr. Harvey D. Goulder for plaintiff in error.

Mr. J. E. Ingersoll for defendant in error.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

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 Dis

Opinion of the Court.

trict of Ohio, to recover the sum of $7000, with interest, for the loss of a vessel insured by a policy of marine insurance issued by the defendant. The policy 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 $7000, 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 $9334. The 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 vessel; rottenness, inherent defects, overloading, and all other unseaworthiness." "Boiler 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 plaintiff was the owner of the tug; that on the 18th of July, 1884, the vessel, in her regular course of business, left Port L'Anse, bound to Cleveland; that she was then stout, stanch, and strong, and in all respects

Opinion of the Court.

seaworthy for the voyage she was about to undertake; that, while on that voyage, and on the 23d of July, 1884, and with- · out 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 navigation so insured against by the defendant, she sprung a leak; that, although the plaintiff and his agents, and the officers in charge of the vessel, used all reasonable endeavors to prevent said vessel filling with water, they were unable so to do; that, within a short time after the discovery 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 $7000, as for a total loss; and that the defendant accepted the abandonIment 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 defences contained in the answer were as follows:

"2d defence. And, by way of further answer, and for a second defence, 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 Port Huron, and was afterwards towed in the same condition into and through and

Opinion of the Court.

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 herein before 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 defence. And, for a further and third defence, 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 her 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 dangerons condition before described, to be towed out of Detroit River and out upon Lake Erie; that, soon after reaching the