when the time should arrive, or to give up his 500*] building, and with its loss relieve himself of the burden of paying rent. He chose the latter with full knowledge, and there is no injustice in holding him to the consequence of his choice.

The covenant for re-entry provides that, in default of payment of rent, the lessor may enter "and the said premises repossess and enjoy, as in his first and former estate."

The plaintiff insists that the building is no part of such former estate, and defendant, therefore, does not become its owner by virtue of the re-entry. We have already shown that the building does become a part of the land as it is built. No such meaning was ever before attached to the use of the word "estate" in a legal document. It is used in reference to the nature of defendant's interest in the property, and not to the extent of improvements on the soil. As if the lessor had a fee simple estate, it reverted to him again as a fee simple. If he had a term for years, he was in again as part of his term. But it had no relation to the question of whether that estate might be more or less valuable when repossessed, or might bring to him more or less buildings.

We hold, then,

1. That without the aid of a special contract, the law imposes no obligation on the landlord to pay his tenant for buildings erected on the demised premises.

2. That treating the parties to this suit as standing in the places of the original lessor and lessee, no obligation arises from the contract in this case, that the lessor shall purchase or pay for the building erected on said premises, except as an option, to be exercised at the end of each period of ten years.

3. That the act of defendant in re-entering and possessing himself of the premises for plaintiff's failure to pay rent, imposes upon him no obligation to pay plaintiff the value of the building.

As the ruling of the court, to which exception was taken, was in conformity to these principles, the judgment must be affirmed, with costs.

THE SCHOONER "ANN CAROLINE," etc., John Sedgwick et al., Claimants and Appts.,

บ.

WM. H. WELLS.

(See S. C., 2 Wall., 538-550.) Rule for vessels meeting, as to course-when stipulation fixes value it will be followed.

The general rule of navigation is, that a vessel on the starboard tack, if close-hauled, has a right to keep her course, and that one on the larboard tack, although she is also close-hauled, must give way or be answerable for the consequences. Obligation of a stipulator in a suit in rem against a vessel for collision, is the same as that of a surety, and consequently his liability is limited by the terms of his contract. Where a stipulation for value is filed by the claimants for a specific sum, the libelant is entitled to a decree against the stipulators for that sum as the value of the vessel, and no more.

NOTE. Measure of damages for collision- -see notes, 4 L. ed. U. S. 456; 11 L. ed. U. S. 35.

Rights of Steam and sailing vessels with reference to each other, and in passing and meetingsee notes, 13 L. ed. U. S. 537; 35 L. ed. U. S. 453. 2 WALL.

APPEAL from the Circuit Court of the New York.

United States for the Southern District of

The case is stated by the court.

Messrs. E. H. Owen and C. Donohue, for claimants and appellants.

Mr. E. C. Benedict, for libelants and appellee.

Mr. Justice Clifford delivered the opinion of the court:

This is an appeal in admiralty from the decree of the Circuit Court of the United States for the Southern District of New York, in a cause of collision, civil and maritime.

Damages are claimed in this case by the libelant on account of a collision which occurred on the 11th day of February, 1854, in Delaware Bay, between the schooner John C. Wells, bound on a voyage from New York to Philadelphia, and the schooner Ann Caroline, bound on a voyage from New York to Smyrna, in the State of Delaware, whereby the former was run down and sunk in the bay, and became a total loss. Libel was filed by the owner of The John C. Wells on the 24th day of February, 1854, and the owners of The Ann Caroline, on the 6th day of December following, appeared and filed their answer. Both parties took testimony in the district court and, after the hearing, a decree was entered dismissing the libel, and the libelant appealed to the circuit court. Additional testimony was taken in the circuit court and the parties were again heard, and after the hearing, a decree was entered reversing the decree of the district court, and a decree Wherewas entered in favor of the libelant. upon both parties appealed to this court.

*I. Libelant objects to the decree, be- [*543 cause, as he says, the damages allowed are less than he is entitled to recover; and the claimants object to it, because, as they say, the libelant is Claimants' not entitled to recover anything. vessel was sailing in ballast, but the vessel of the libelant was deeply laden with a cargo of assorted merchandise. They both sailed from the port of New York on the day previous to the collision, and the evidence shows that they both came to anchor during the night, in company with some fifteen or twenty other schooners, at a well known anchorage outside of Cape May. Evidence also shows that they both got under way on the following day about one or two o'clock in the afternoon, and at the time of collision were beating up the channel, between what is called Crow Shoals and the Jersey shore. Most or all of the other vessels got under way about the same time, and were also beating up the bay in the same general direction. Proofs show that the wind was north-northwest, blowing "a full sail breeze," and that the tide was an hour flood setting up the bay. Course of the vessels when they first got under way at the anchorage was on the long tack towards the

833

Jersey shore, and it appears that both the vessels were put upon that course. Beating out that tack they then came about and stood towards the buoy, near the lower end of the shore, on the western side of the channel. Master of The Wells testifies that his vessel went so near the shoal before tacking that she stirred the mud with her center board or keel. Vessel of the claimants was more to the leeward, and it appears that her course was changed before she approached so near to the shoal. Pathway of the libelant's vessel was near the shoal, but the vessel of the claimants was some distance to the leeward and somewhat astern. Having beat out that tack without any difficulty, and without anything having occurred to indicate that they were in danger of colliding, they both went about and were again put on the long tack to wards the Jersey shore, and the proofs are full to the point that they were both sailing on about the same course. Claimants' vessel being to the leeward, and both vessels being close544*] hauled on *the wind, there could not be any danger that they would come together. They were both upon the larboard tack and were heading about north-northeast. Remark should be made that most or all of the other vessels had tacked at the buoy and were beating up the channel on the same course. Weight of the evidence also shows that all of them, except one, was to the leeward, and most of them were astern of the vessel of the libelant. Such was the state of things when The Ann Caroline sudderly and unexpectedly, as alleged in the libel, went about and was put upon the starboard tack, on a course directly towards the injured vessel. Excuse for the sudden change in her course, as alleged in the answer, is, that a schooner ahead of her having tacked, it became necessary for the vessel of the claimants to go about before she had beat out her larboard tack. Reasons of the alleged necessity are not stated, and the proofs offered in support of the allegation are unsatisfactory; but it is not proposed to place the decision upon that ground, as it is not made certain that the allegation is untrue. Allegation of the libelant is, that the change was sudden and unexpected, and the evidence leads to the same conclusion. When the vessel of the claimants went about she was put upon a course heading west by north; and as the course of the libelant's vessel had not been changed, it must have been evident to every attentive observer that a collision was inevitable unless one or the other gave way. Sailing as they were in a clear day, with nothing to obstruct their view, although in a narrow channel less than a mile wide, it is clear that there can be no just excuse for the disaster, and consequently there is fault on one side or the other. II. Theory of the claimants is that, inasmuch as their vessel had come round on to the starboard tack, it was the duty of the vessel of the libelant to give way and pass to her right. General rule of navigation undoubtedly is, that a vessel on the starboard tack, if close hauled, has a right to keep her course, and that one on the larboard tack, although she is also close-hauled, must give way or be answerable for the conse545*] quences. *St. John v. Paine, 10 How., 581. But it is insisted by the libelant that the rule has no application to the relative position of the two vessels, as shown by the evidence in

this case. His proposition in that behalf is that his vessel was to the windward of the vessel of the claimants, and so far ahead of her in the channel that if those on board his vessel had observed the general rule and ported her helm, a collision would necessarily have followed. Granting that the position of the two vessels was such as is assumed by the libelant, then it is clear that the rule of navigation under consideration cannot apply, and that the views of the libelant are correct. Proximity of the libelant's vessel to the shoal was such that it rendered it unsafe for those in charge of her to attempt to go about, because the danger was, if they should do so, she would be wrecked on the reef. She could not, therefore, starboard her helm and go about, and if, as assumed by the libelant, she was ahead of the claimants' vessel and to the windward, then it is clear that she could not be required to port her helm and attempt to go to the right, as in doing so she would have to cross the bows of the vessel astern, and must incur the imminent danger of colliding with the vessel of the claimants.

III. Principal question of fact, therefore, is whether the theory assumed by the libelant is correct, because it is obvious that if the facts are so, the conclusion deduced from them must follow. Two controverted facts are assumed in the proposition of the libelant. 1. That his vessel was to the windward. 2. That she was ahead in the channel. Argument is not necessary to show that the libelant is right on the first point, as the whole current of the evidence when properly understood is that way, but there is much conflict in the testimony on the second point. Where the conflict of testimony in respect to a disputed fact is between the witnesses on board the respective vessels, and no others are examined in the case, it is sometimes difficult to form any satisfactory conclusion. No such embarrassment, however, *arises in [*546 this case, as there were four witnesses examined who were on board the other vessels in the same company. Those witnesses concur in the statement, not only that the vessel of the libelant was to the windward of the claimants' vessel, but that she was above her in the channel; and in view of the whole case, we adopt that conclusion as the correct one from the evidence. The vessel of the claimants was also in fault because she had no lookout, and the evidence tends strongly to the conclusion that the disaster is mainly attributable to that cause. Testimony shows, beyond controversy, that she had no lookout at the time of the collision, and that the master, after the vessel was put about and filled away on the starboard tack, went below, and when he came on deck just before the disaster occurred, he inquired, with evident displeasure, if no one had seen the vessel of the libelant, and it is clear that he had abundant reason for dissatisfaction. Usual precautions were then too late, and in a very short time the vessel of the claimants struck that of libelant, and the latter sunk in the channel. Plainly, the vessel of the libelant could not avoid the collision because if she had attempted to go about she would have gone on the reef; and if she had ported her helm, and attempted to go to the right, she would have collided with the vessel of the claimants. On the other hand, it is clear, beyond doubt, that the vessel of the claimants

might have avoided the disaster without any peril. She might have gone about, as she had ample room to do, or she might have starboarded her helm and gone under the stern of the other vessel. For these reasons we think the conclusion of the circuit court was right upon the merits.

IV. The rule of damages adopted by the court is the subject of complaint on both sides, and as both parties have appealed, the whole matter is open to revision. Sum allowed was $7,202.51, and the court ordered a summary judgment against the stipulators for that amount. Interlocutory decree was that the libelant recover the amount of the loss and damages by him sustained by reason of the collision, 547] and the cause was referred to a commissioner to ascertain the amount. Commissioner reported that the value of the vessel was $5,000, and that the interest on the same to the date of the report, was $2,362.50, and he accordingly reported the amount of those two sums as the damages in the cause. Exceptions were filed by the claimant to that report as follows: 1. That the sum reported as the value of the vessel was too much.

2. That the commissioner erred in allowing interest.

3. That the rule of damages adopted was erroneous; that the amount should not exceed the value of the claimants' vessel and freight pending.

4. That the commissioner erred in examining testimony as to the value of claimants' vessel. Circuit judge sustained the third and fourth exceptions, and recommitted the report. Subsequently, the commissioner made a second report. In his second report he found:

1. That the value of the vessel of the libelant was $5,000, and that by reason of the collision she was a total loss.

2. That the vessel of the claimants was worth the sum of $3,500.

3. That the freight pending on the cargo of the claimants' vessel was $513.

4. That the interest on the freight and value of claimants' vessel was $2,431.43.

Accordingly he reported as due to the libelant the aggregate of those several sums. Both parties excepted to the report, but the court overruled their exceptions and confirmed the report, which was the foundation of the final decree, which is for the same amount.

Libelant insists that the first report of the commissioner was correct, that is, that he is 548*] entitled to recover the value of his vessel, together with the interest on that amount from the time of the collision to the date of the decree. On the other side, the claimants insist that the stipulation for value under the general rules of the admiralty, stands in the place of the vessel, and that the decree as against the stipulators cannot exceed the amount of the stipulation. Separate stipulations are usually filed for costs, and the same rule, it is admitted, applies to such a stipulation as to the one given for the value of the vessel. Stipulation for costs in the sum of $250 was regularly filed by the claimants in this case at the time they entered their appearance. Such a stipulation is properly required as a condition of the right to appear, unless the claimant, under the Act of the 3d of March, 1847, had given the bond to

the Marshal therein mentioned for the discharge of the property arrested at the time of the service of the monition. Ch. 55, 9 Stat. at L., 181; 2 Conk. Adm., 94, 97; Adm., Rules 26, 34. Suit in this case was in rem, and consequently the vessel, when arrested, was in contemplation of law in the possession of the court. But the practice is, where the claimant desires to gain the possession, to allow the value of the same to be ascertained; and when that is done according to law, the claimant may file a stipulation for that amount in the place of the vessel. When the claimant desires to secure the possession of the vessel, he may apply to the court for an appraisement, or if the parties agree upon a sum as the value, the court may adopt that sum, and accept a stipulation for that amount. Parties in this case agreed that the value of the vessel was $5,000, and thereupon the court accepted a stipulation for that amount, and the vessel was delivered to the claimants. Adm., Rule 11; 2 Conk. Adm., 96; Lane v. Townsend, 1 Ware, 300. Obligation of a stipulator is the same as that of a surety, and consequently his liability is limited by the terms of his contract. Whenever the obligation of the stipulator is for a definite sum named in the stipulation, the surety stipulating to pay that sum cannot be compelled to pay more than that [*549 amount. Godfrey v. Gilmartin, 2 Blatchf., 341; Adm., Rule 11. Same rule prevails whether the instrument is in form a bond or stipulation. Where a claimant in a suit in rem made application for a delivery of the property, and obtained it by an order of the court upon giving a bond to suspend the appraised value, Judge Story held that the bond was good as a stipulation, and having affirmed the decree condemning the vessel, ordered that judgment should be entered against the signers of the bond as stipulators for the appraised value of the vessel with costs. The Alligator, 1 Gall. C. C., 149. Mr. Benedict says, that where a party is entitled to have the property delivered on bail, he is bound to stipulate with sureties to pay the full value of the property. Such value, says the same author, may usually be fixed by consent and agreement of the parties, but if not, then it is ascertained by an appraisement; and on final decree the stipulators are bound to pay into court the sum ascertained as the value. Benedict, Adm., sec. 498, p. 272; Dunl. Pr., 181; The Octavia, 1 Mason, C. C., 150.

Bail is taken, says Mr. Dunlap, for the value of the ship upon the delivery of the property, and it will not be reduced upon the ground that the property brought less upon a sale than the appraised value. Dunl. Pr., 174; The Peggy, 4 C. Rob., 304. Settled rule is, that where the value of the vessel condemned in a cause of damage is insufficient to pay the loss, it is not competent for the court to award damages against the owner beyond the value or proceeds of the ship. The Hope, 1 W. Rob., 155. But it has been held that costs might be awarded against the owner where there was an appearance and hearing, although no stipulation to that effect had been given. The John Dunn, 1 W. Rob., 160. Rule in admiralty, however, is the same as at law, that sureties are only bound to the extent of the obligation expressed in their bond, but not beyond its plain and obvious meaning. The Harrict, 1 W. Rob., 192.

tion; they will grant relief within the lifetime of the party who committed it, or within thirty years after it has been discovered.

Michoud v. Girod, 4 How., 503.

But the plaintiff was under legal disability to sue until the life estate of the widow was determined by her death, which was in 1856, so far as claim for the remainder of the estate subject to dower, is concerned.

Jewett v. Jewett, 10 Gray, 31.

Sixth. If those sales were void, Daniel B.'s possession would be the possession of his cotenants in law. In equity, length of time is no bar to a trust clearly established, and in cases where fraud is imputed and proved, length of time ought not, upon principles of justice, to be admitted to repel relief.

Baker v. Whiting, 3 Sumn., 486.
Mr. E. Merwin, for appellee:

The decrees of the court for the sale of the real estate, were made by competent tribunals for the jurisdiction of the subject-matter, and are conclusive and cannot be impeached collaterally in this suit.

Courts of equity will not, upon subjects of fraud, revise the decree for, and obtain tribunal. The party must seek his remedy directly in the forum whose decree he desires to have revised. Grignon v. Astor, 2 How., 319; Jenison v. Hapgood, 7 Pick., 1; Paine v. Stone, 10 Pick., 75; Vaughan v. Northup, 15 Pet., 1; Laughton v. Atkins, 1 Pick., 535; Stearns v. Page, 7 How., 819.

Whether there were existing debts, for the payment of which the real estate ought to be sold, was a question of fact, and the finding thereon of the Massachusetts court is conclusive upon the parties.

Mallett v. Dexter, 1 Curt., C. C., 185; Perkins v. Fairfield, 11 Mass., 227; 2 How., 319.

A charge of fraudulently employing persons to bid at the auction sales, is wholly unsupport ed by the evidence.

The proof fails to show any case of actual or constructive fraud. The only evidence of fered is the unsupported deposition of one Hart. This deposition is inadmissible, because of the official character of the person assuming to act as commissioner.

Rex v. Howard, 1 Moody & Rob., 187; 1 Greenl. Ev., secs. 88, 92; Dick v. Runnels, 5 How., 7.

The alleged claims of the complainants and the other heirs are barred by the lapse of time. Rev. Stat. of Mass., ch. 71, sec. 37, and ch. 72, sec. 19, provide that no action for lands sold by the administrators, brought by any heir, should be maintained, unless brought within five years after the sale.

The respondent has not pleaded the statute in his answer; but this is unnecessary where the objection is apparent on the face of the bill. Maxwell v. Kennedy, 8 How., 222; Story, Eq. Plead., secs. 484-503, 760; Ang. Lim., ch. 26, sec. 10; Foster v. Hodgson, 19 Ves., 180.

Irrespective of this statute, the time which has elapsed since the perpetration of the alleged fraud, a period of more than twenty-five years, during which the complainant has voluntarily slept upon his rights, is a complete answer in equity to his claim. This defense is set up in the answer.

No excuse has been shown for this delay.

A court of equity will not regard a general allegation that the fraud was unknown until within five years. The complainant must set forth with particularity, when and by what means the fraud was discovered, and this must be supported by proof.

Stearns v. Paige, 7 How., 829; Wagner v. Baird, 7 How., 258; Fisher v. Boody, 1 Curt. C. C., 218; Carr v. Hilton, 1 Curt. C. C., 392; Moore v. Greene, 2 Curt. C. C., 202.

The Statute of Limitation is a positive bar, in equity as well as at law, in all matters of concurrent jurisdiction or of a similar nature. 2 Story, Eq. Jur., sec. 1520, and notes; Farnam v. Brooks, 9 Pick., 212.

Where the Statute of Limitations is not directly applicable, courts of equity will apply the bar, and will refuse their aid after a delay of twenty years, and often within a less period.

2 Sug. Vend., 899; Roberts v. Tunstall, 4 Hare, 257: Gregory v. Gregory, Cooper, 201; Jenison v. Hapgood, 7 Pick., 1; Jenkins v. Pye, 12 Pet., 241; McKnight v. Taylor, 1 How., 168; Bowman v. Wathen, 1 How., 189; Andrew v. Wrigley, 4 Brown, Ch., 125; Beckford v. Wade, 17 Ves., 94; Champion v. Rigby, 1 Russ. & M., 539; Hovenden v. L. S. Annesley, 2 Sch. & L., 636; Sullivan v. Sullivan, 21 Law Rep., 531.

If the plaintiff would exempt himself from the operation of the statute by nonage, he must allege it in his bill and prove the fact. Story, Eq. Plead., sec. 484; Humbert v. Trinity Church, 7 Paige, 195; Foster v. Hodgson, 19 Ves., 184.

A sale made by an administrator at which he is a purchaser, is not void, but only voidable at the election of the heirs; and this election must be exercised within a reasonable time.

Blood v. Hayman, 13 Pet., 231; Robbins v. Bates, 4 Cush., 104.

As to bona fide mortgagee without notice of any fraud.

Dexter v. Harris, 2 Mas., 531; Mountford v. Scott, 1 Turn. & R., 274; Perkins v. Bradley, 1 Hare, 230.

Mr. Justice Grier delivered the opinion of the court.

If the decree of the circuit court dismissing the bill in this case, because of its staleness, was correct, it will not be necessary to examine the charges of the bill further than as they affect this question.

The numerous cases on this subject found in the books, will seem to be contradictory, if the dicta of the chancellors are not modified by applying them to the peculiar facts of the case under consideration.

Thus, Lord Erskine, in an important case once before him, says: "No length of time can prevent the unkennelling of a fraud." And Lord Northington, in Alden v. Gregory, 2 Eden, 285, with virtuous indignation against fraud, exclaims: "The next question is, in effect, whether delay will purge a fraud. Neverwhile I sit here! Every delay adds to its injustice and multiplies its oppression." In our own court, Mr. Justice Story has said (Prevost v. Gratz, 6 Wheat., 481): "It is certainly true that length of time is no bar to a trust clearly established; and in a case where fraud is imputed and proved, length of time ought not, on principles of eternal justice, to be admitted to