proper subject of revision. Etting v. Bk., 11 Wheat., 59; Beaver v. Taylor, 1 Wall., 637, 17 L. ed. 601. But the true rule, if there be no evidence to support the theory of fact assumed in the prayer, is to reject it, as it is error to leave a question to a jury in respect to which there is no evidence. Chandler v. Von Roeder, 24 How., 224, 16 L. ed. 633; R. Co. v. Gladmon, 15 Wall., 409, 21 L. ed. 116.

Attempt is made in argument to maintain that the plaintiffs had no insurable interest in the bark unless it be assumed that it was created by a bottomry bond, but the court is entirely of a different opinion, as it is alleged in the declaration that the advances were made to equip the vessel and to procure for her a cargo in the voyage from a foreign port to the port of destination. Founded as the declaration is upon the policy of insurance, it must be construed 163*] in connection *with the policy. By the terms of the policy the insurance is upon the bark, her tackle and apparel, which is the proper language to be employed in a case where the insured had an interest in the vessel.

| the necessity for the repairs and supplies is once made out it is incumbent upon the owners, if they allege that the funds could have been obtained upon their personal credit, to establish that fact by competent proof, and that the material men knew the same or were put upon inquiry, as before explained, unless those matters fully appear in the evidence introduced by the other party. The Grapeshot, 9 Wall., 141, 19 L. ed. 656; Thomas v. Osborn, 19 How., 22, 15 L. ed. 534.

Apply those principles to the case and it is clear that the objection that the plaintiffs had no insurable interest in the bark utterly fails, as it is not controverted that the advances were made to equip the vessel and to procure a cargo for her in the described voyage; and it is sufficient that such an allegation affords a prima facie presumption that the advances were made on the credit of the vessel, as the record fails to disclose any fact or circumstance to overcome that presumption. Such advances constitute a lien upon the ship, and such a lien gives the lender an insurable interest in the ship. Seamans v. Loring, 1 Mas., 127; 1 Phil. Ins. (5th ed.), sec. 204; Godin v. Ins. Co., 1 Burr., 489; Lucena v. Craufurd, 5 B. & P., N. R., 294; Wells v. Ins. Co., 9 Serg. & R. 103.

the subject.

*Defenses in avoidance of the claim [*165 made in the declaration must be proved in the court of original jurisdiction, and if not proved there they cannot be successfully set up in the appellate court to support an assignment of error.

Advances made on the credit of a ship for necessary repairs or supplies in a foreign port create a maritime lien upon the ship, and it is well settled law that a maritime lien is a jus | in re, and that it constitutes an incumbrance on Absolutely nothing appears in the record to the property of the ship which is not devested support the theory that any such defenses as by the death or insolvency of the owner. The those assumed in the prayers for instruction Young Mechanic, 2 Curt., 404, 3 Ware, 58, 1 were in fact set up by the defendants in the subPars. Mar. L., 489; 3 Kent (11th ed.), 170;ordinate court, except what is contained in the The General Smith, 4 Wheat., 438. Such a lien prayers for instruction presented to the court. may be enforced by a process in rem, which is They pleaded a general denial of the allegations founded on a right in the thing, the object of of the declaration and that the bark was unthe process being to obtain the thing itself, or seaworthy at the inception of the risk and a satisfaction out of it, for some claim resting throughout the voyage, but no mention is made on a real or quasi proprietary right in the thing. of any such defenses as those implied in the The Commerce, 1 Black, 580, 17 L. ed. 109; prayers for instruction in any other part of the Buck v. Ins. Co., 1 Pet., 165; The Maggie Ham-record, nor is there any evidence whatever upon mond, 9 Wall., 456, 19 L. ed. 779. Liens of the kind constitute an insurable interest, and it is quite clear that enough is alleged in the declaration to warrant the conclusion that the advances made in this case are properly to be regarded as constituting a maritime lien upon the bark. Seamans v. Loring, 1 Mas., 127; 1 Phil., Ins. (5th ed.) sec. 204; Hancox v. Ins. Co., 3 Sumn., 132. Contracts for repairs and supplies may be made by the master to enable the vessel to proceed on her voyage, and if it appears that they were necessary for the purpose and that they were made and furnished to a foreign vessel or to a vessel of the United States in a port other than a port of the State to which the vessel belongs, the prima facie presumption is that the repairs and supplies were made and furnished on the credit of the vessel, unless it appears that the master had funds on hand or at his command which he ought to have applied to the accomplishment of those objects, and that the material men knew of that fact or that such facts and circumstances were known to them as were sufficient to put them upon inquiry and to show that if they had used due diligence in that 164*] behalf *they might have ascertained that the master had no authority to contract for such repairs and supplies on the credit of the vessel. The Lulu, 10 Wall., 197, 19 L. ed., 907; The Patapsco, 13 Wall., 333, 20 L. ed. 697; 2 Pars. Ship., 322-337. Whenever

Other matters were discussed at the bar, but it is not necessary to examine any other of the propositions submitted, as these suggestions are sufficient to dispose of the case. Judgment affirmed.

EUGENE ROACH and Naylor Roach, by his
Guardian ad litem, Archy McGehee, Appts.,
EDWIN H. SUMMERS, John S. Brannins, et
al., Partners, as Summers & Brannins.

v.

(See S. C., 20 Wall., 165-171.) Sureties, when discharged-new matter in an

swer.

1. An agreement made by the principal does not work a discharge of his sureties, unless it places them in a different position from that which they occupied before it was made.

NOTE. When variation of contract, or agreement for delay, discharges surety-see note, 6 L. ed. U. S. 189. Discharge and rights of surety-see note, 35 L. ed. U. S. 679.

2. New matter in an answer not responsive to anything in the bill, must be sustained by proof to be of any avail as a defense.

ruary, 1867, entered into an arrangement with the Butlers, without the knowledge of the sureties, by which it was stipulated that they should have an interest in the crop of 1867; that the Butlers should pay two and a half per cent. Argued Mar. 20, 1873. Decided Mar. 30, 1874. commissions on the advances made, ten per cent. interest and the usual commissions for selling

[No. 245.]

APPEAL from the Circuit Court of the Unit- the cotton. It is further answered that in their

sissippi.

States for the Southern District of Mis- account the complainants did charge ten per

The case is stated by the court.
Mr. P. Phillips, for appellants.
Messrs. M. Blair, F. A. Dick, J. B. Beck
and Nugent & Yerger, for appellees.

Mr. Justice Strong delivered the opinion of

the court:

Upon the bill, answer and proofs, the circuit court decreed in favor of the complainants, but in the settlement of the account and ascertainment of the debt due, they were credited with only eight per cent. interest, and two and a half per cent. commissions, while they were charged with the proceeds of all the cotton received by them from the plantation for both the years 1867 and 1868, and no exception was taken to this mode of stating the account.

cent. interest on money advanced, and two and a half per cent. commissions; that instead of *advancing supplies for the plantation [*167 as they had agreed to do, they advanced chiefly money, and that by their usurious charges they made up the balance of $4,774.69, as due at the close of the year 1867. The answers then claim that the agreement of February 19, 1867, and This was a bill for an account and for the the complainant's subsequent dealings with the foreclosure of a mortgage. It avers, inter alia, Butlers, as exhibited by their accounts, in which that in the year 1867, Eugene Roach, one of the they charge ten per cent. interest and commisappellants, and J. W. Roach, the ancestor of the sions, was an abandonment of the original conother appellant, demised a plantation in the tract, and inconsistent with it, and that it opState of Mississippi, to R. M. Butler and Bre-erated as a release of the notes and mortgage. voort Butler, for the business of cotton planting. That to enable the Butlers to obtain supplies for the plantation from the complainants, the Messrs. Roach, together with the Butlers, executed two promissory notes, each in the sum of $2,500, payable to the complainants, dated February 1, 1867, and falling due in October and November of that year. That payment of the note was secured by a mortgage given by the Messrs. Roach, and that it was agreed the cotton raised on the demised plantation be shipped to the complainants. The bill 166*] *further avers that, in pursuance of this arrangement, the complainants made advances to the Butlers, a part of which was repaid out of the proceeds of the cotton crop of 1867, but that $4,774.69 remained unpaid, after credit had been given for the cotton shipped in that year. It is further averred that the Butlers, being desirous to continue planting cotton on the plantation during the year 1868, and being without the necessary money and supplies for that purpose, applied to the complainant to make additional advances, to secure which, as well as the balance then due, they executed a deed of trust of all the crops of corn and cotton they might raise on the plantation, stipulating that the net proceeds should be applied, first, to the payment of supplies furnished in 1868; and second, to the payment of the balance due for the supplies furnished in 1867. It is then averred that, after giving credit for all the cotton received, there remains a balance due to the complainants of about $3,600, the proceeds of the crop of 1868 having more than paid the advances made during that year, and having reduced the balance due at the close of 1867.

The defense set up in the answers is, that the Messrs. Roach were only sureties for the repayment of the advances made to the Butlers in 1867, not exceeding $5,000; that the notes and mortgage were given as securities for such repayment; that it was agreed that all the crops of cotton raised on the demised plantation should be applied to the payment of the notes, and that the cotton should be shipped to the complainants by the Butlers for that purpose, as rapidly as it could be prepared for market, but that, in fraud of the agreement, the complainant subsequently, on the 19th day of Feb

Of course no exception can now be taken. The only question, therefore, which can be considered in this court is, whether the agreement of February 19, 1867, by which it was stipulated between the complainants and the Butlers that the former should have an interest in the crop of 1867, as well as ten per cent. interest and two and one half per cent. commissions for advances, operated as a release of the notes and mortgage given by the sureties. The answer to the question depends upon what took place when the Messrs. Roach became sureties.

Waiving attention to the fact that no particular or defined interest was given to the complainants by their arrangement with the Butlers, it is plain that it could not work a discharge of the sureties, unless it placed them n a different position from that which they occupied before it was made. If it took away any security they had in virtue of their contract with the complainants, it was doubtless a fraud upon them, and they are not holden by their notes and mortgage. If, when they became sureties, it was agreed by all the parties themselves, the complainants and the Butlers, that all the *cotton crops raised on the de- [*170 mised plantation should be shipped to the complainants and credited against the advances to be made, it was bad faith to the sureties for the creditors to enter into an arrangement with the Butlers that a portion of the crops should be devoted to another use. On the other hand, if there was no such agreement respecting the crops made when the Messrs. Roach assumed their suretyship and gave their notes and mortgage, the subsequent arrangement with the Butlers was no alteration of the original contract, and had no effect upon it.

It is vital, then, to a correct decision of the case, to ascertain whether there was such an

agreement made at the time the suretyship was tify, orally or by deposition. After giving one depoundertaken, an agreement to which the Messrs.sition, he has the right to give a second one.

Roach were parties. It was averred in the answer of Eugene Roach that such an agreement was made between the complainants and the Butlers, but when it was made, whether at the time when the notes were given or afterwards, is not stated. Nor is it alleged that the sureties were parties to it, or that they executed their notes and mortgage in reliance upon it. The answer of the Butlers is substantially the same, though, perhaps, it may reasonably be construed as averring that such an agreement was made between all the parties when the notes were given. But assuming that the averment is sufficiently made in both answers, since it is new matter not responsive to anything in the bill, it must be sustained by proof to be of any avail as a defense.

2. Where the evidence was sufficient to raise the question of intent, it was the duty of the court to submit the question to the jury. shal, under legal process, it is in the custody of the 3. Where property is in the hands of the marlaw. When replevied, it passes from the custody of the law into the possession of the person replevying it.

4. Where the original record was destroyed by fire, a copy of a judgment, the latter duly certified by the clerk of the court by whom the judgment was rendered, is proper evidence.

5. Secondary evidence must be the best the party has it in his power to produce.

6. Where jurisdiction has attached, everything done within the power of that jurisdiction when collaterally questioned, is to be held conclusive of the rights of the parties, unless impeached for fraud.

7. Where the judge who made the order of sale order is presumptive proof of the requisite apof property was the judge to approve the claim, the proval. [No. 229.]

N ERROR to the Circuit Court of the United States for the Western District of Texas. This was an action of trespass to try title, commenced in the court below, Apr. 29, 1868, by H. H. Williams against the plaintiffs in error, to recover a league of land near the Town of Bastrop, on the Colorado River.

The

The trial resulted in verdict and judgment for the plaintiff below, and the defendants brought the case to this court by writ of error. original plaintiff, H. H. Williams, having died, his executrix, Rebecca A. Williams, was substituted in his place.

The nature of the case is stated in the following charge delivered to the jury at the trial below by Mr. Justice Bradley:

And we do not find in the record any proof to sustain it. The only testimony upon the sub- Argued Mar. 19, 1874. Decided Mar. 30, 1874. ject is that of Eugene Roach and R. M. Butler two of the defendants. Roach testifies that it was agreed that the cotton crop raised by the Butlers should be shipped to Summers & Brannins, and that the proceeds should be first applied to the payment of the notes. But he does not state when or between whom this agreement was made. That he was not speaking from his own knowledge of what took place when the notes were given is certain, for he says he was not present, and that all his knowledge was derived from his brother. And the testimony of R. M. Butler also utterly fails to establish such 171*] an *agreement. In answer to an interrogatory whether at the time the notes were made there was any agreement that all the cotton shipped or to be shipped by him and Brevoort Butler for the year 1867, as well as for subsequent years, was to be sold and the proceeds thereof applied by the complainants to the payment of the notes in preference to any other debts due by him and R. M. Butler, he said there was such an agreement. But in his crossexamination he said the agreement of which he spoke was made in New Orleans on the 19th of February, 1867, after the notes and mortgage were executed. The evidence, then, wholly fails to prove the existence of the agreement made at the time when the suretyship was undertaken and, consequently, the subsequent arrangement of February 19, 1867, as well as the deed of trust for the crop of 1868, had no effect upon the liability of the mortgagors.

The decree is affirmed.

The plaintiff in this case claims the league of land in question under an administrator's deed from Philip C. Tucker, administrator of Sam'l M. Williams, deceased, dated April 15, 1866, and a second deed from the same administrator, dated January 2, 1868, under an order of sale made by the Probate Court of Galveston County, on the 30th of January, 1866.

The defendants claim as tenants of Squire 8. Connett, who claims the land by title derived from the heirs of Samuel M. Williams, deceased, as follows:

1. By virtue of trust deed executed by William H. Williams, one of the heirs to J. R. Nichols, June 24, 1861, to secure a debt of $1,800, due to one Prayor, who afterward assigned it to one S. S. Connett. In January, 1868, Williams became bankrupt, and Connett surrendered the debt and security to the assignee and received from him a deed for the property at a valuation,

JOHN D. NASH, John Van Hagan, and Oscar under the 20th section of the Bankrupt Act.

Nash, Plffs. in Err.,

v.

2. By virtue of deeds from Austin M. Williams and his two sisters, the remaining heirs of

REBECCA A. WILLIAMS, Exrx. of H. H. Will- S. M. Williams, to their brother, W. H. Will

iams, Plaintiff below, Deceased.

(See S. C., 20 Wall., 226-251.)

Parties, as witnesses-deposition of when question must be submitted to jury-replevin -secondary evidence, when admissible-judi-cial proceedings, when conclusive.

iams, executed in September and October, 1862 each for an undivided one fourth part of the tract; and then in November, 1862, a conveyance by W. H. Williams, of an undivided one half of the tract to J. H. Williams, his cousin, a son of the plaintiff, H. H. Williams; by which deeds the title of the heirs became vested in W. H. Williams and J. H. Williams in equal parts, 1. A party to the record, by the Act of July 2, 1864, is placed upon a footing of equality with all in November, 1862. On the first day of Januother witnesses, and it is competent for him to tes-ary, 1864, W. H. Williams and J. H. Williams

If the plaintiff obtained the deed for the pur-ary evidence offered by the defendant in error, pose of defrauding the creditors of W. H. and J. H. Williams, and especially S. S. Connett, then the plaintiff cannot recover, and you will find a verdict for the defendants.