courts below that, while the action by the
owner of the cargo would lie against the
steamer for the whole amount of damage
done, the owners of such steamer were en-
titled to recoup one half of this amount
against one half of the amount awarded to
the owners of the schooner for the loss of
their vessel, upon the theory that, under the
limited liability act, they were liable for one
half this amount, not exceeding the value of
the schooner. Eut libellants insist that as
the third section of the Harter act declares
that the owners of a seaworthy vessel shall
not be liable in any amount for damage or
loss resulting from a fault or error in navi-
gation, the owners of the schooner are enti-
tled to this exoneration, whether the action
be directly against the vessel by the owner of
the cargo, or by a third party, who is claim-
ing the rights to which he is entitled, and
who for that purpose is standing in his
shoes. That the exemptions of the act are
not intended for the benefit of the steamship
or any other vessel, by whose negligence a
collision has occurred, but for the benefit of
the carrying vessel alone; and if she be held
liable in this indirect manner for a moiety
of the damages suffered by the cargo, the act
is to that extent disregarded and nullified.
That the amount which is paid by recoup-
ment from the just claim of the schooner
against the steamship is paid as effectually
as it would be by a direct action by the own-
ers of the cargo against the schooner; and
while in this case it works an apparent hard-
ship upon the steamer (a hardship more ap-
parent than real, owing to the greater fault
of the steamer), it does not in reality ex-
tend her liability, but merely prevents her
taking advantage of a deduction to which
without the act she might have been en-
titled.

contended that, as their vessel was a total
loss, the owners were not liable to the North
Star at all, not even to have the balance of
damage struck between the two vessels; but
that half of their damage must be paid in
full without deduction of half the damage
sustained by the North Star. But the court
held "that where both vessels are in fault,
they must bear the damage in equal parts;
the one suffering the least being decreed to
pay to the other the amount necessary to
make them equal, which amount, of course,
is one half of the difference between the re-
spective losses sustained. When this result-
ing liability of one party to the other has
been ascertained, then, and not before, would
seem to be the proper time to apply the rule
of limited responsibility, if the party decreed
to pay is entitled to it. It will enable him to
avoid payment pro tanto of the balance
found against him. In this case the duty of
payment fell upon the North Star, the own-
ers of which have not set up any claim to a
limit of responsibility. This, as it seems to
us, ends the matter. There is no room for
the operation of the rule. The contrary view
is based on the idea that, theoretically (sup-
posing both vessels in fault), the owners of
the one are liable to the owners of the other[554]
for one half of the damage sustained by the
latter; and, vice versa, that the owners of
the latter are liable to those of the former
for one half of the damage sustained by her.
This, it seems to us, is not a true account of
the legal relations of the parties. It is never
so expressed in the books on maritime law.

These authorities conclusively show that, according to the general maritime law, in cases of collision occurring by the fault of both parties, the entire damage to both ships is added together in one common mass and equally divided between them, and thereupon arises a liability of one party to pay the other such sum as is necessary to equalize the burden. This is the rule of mutual liability between the parties."

But the majority of the court are of opinion that the principles announced by us in The North Star, 106 U. S. 17 [27: 91]; The Manitoba, 122 U. S. 97 [30: 1095]; The Delaware, 161 U. S. 459 [40: 771]; and The Ir- In delivering the opinion Mr. Justice Bradrawaddy, 171 U.S. 187 [ante, 130], are equal-ley cited and disapproved of the case of 1553]ly applicable here. The case of the North Chapman v. Royal Netherlands Steam NaviStar is especially pertinent. That case arose gation Co. (L. R. 4 Prob. Div. 157), which was from a collision between two steamships, one much relied upon by counsel for the Ella of which, the Ella Warley, went to the bot- Warley. It is interesting to note that this tom, while the other was considerably dam- case was overruled by the House of Lords aged. The suit was tried upon libel and three months before the opinion in the North cross-libel, both vessels found in fault, and Star was delivered, in the case of the Stoomthe damages ordered to be divided. No vaart Maatschappy Nederland v. The Peninquestion arose with regard to the cargo, but sular and Oriental Steam Navigation Co. L. the owners of the Ella Warley raised a ques- R. 7 App. Cas. 795, and the rule laid down in tion as to the amount of their recovery under the North Star adopted. The same rule was the limited liability act, which provides subsequently applied in The Manitoba, 122 (Rev. Stat. § 4283) that "the liability of the U. S. 97 [30: 1095]. owner of any vessel for any loss,

damage, or injury by collision
oc-
casioned, or incurred, without the privity
or knowledge of such owner or owners, shall
in no case exceed the amount or value of the
interest of such owner in such vessel, and her
freight then pending." It seems that, if the
vessel be totally lost, the liability of her
owner is thereby extinguished. Norwich
Company v. Wright, 13 Wall. 104 [20: 585].
The owners of the Ella Warley sought to ap-
ply this rule to a case of mutual fault, and

The other cases are not directly in point, but their tendency is in the same direction. In that of The Delaware, 161 U. S. 459 [40: 771], it was said that the whole object of the Harter act was to modify the relations previously existing between the vessel and her cargo, and that it had no application to a collision between two vessels. In The Irrawaddy, 171 U. S. 187 [ante, 130], it was held that, if a vessel be stranded by the negligence of her master, the owner had not the right, under the Harter act, to a general av

erage contribution for sacrifices made and | United States Circuit Court for the Eastern suffered by him subsequent to the stranding, District of Texas, for the recovery of land in successful efforts to save the vessel, in Harris County, Texas, and taken by writ freight, and cargo. of error to the said Circuit Court of Appeals. Question answered in the affirmative.

But if the doctrine of the North Star be a sound one, that in cases of mutual fault the owner of a vessel which has been totally lost by collision is not entitled to the benefit of an act limiting his liability to the other vessel [555]until after the balance of damage has been struck, it would seem to follow that the sunken vessel is not entitled to the benefit of any statute tending to lessen its liability to the other vessel, or to an increase of the burden of such other vessel, until the amount of such liability has been fixed upon the principle of an equal division of damages. This is in effect extending the doctrine of the Delaware case, wherein the question of liability for the loss of the cargo was not in issue, to one where the vessel suffering the greater injury is also the carrier of a cargo-in other words, if the Harter act was not intended to increase the liability of one vessel toward the other in a collision case, the relations of the two colliding vessels to each other remain unaffected by this act, notwithstanding one or both of such vessels be laden with a cargo. We are therefore of opinion that the court of appeals did not err in deducting half the value of the cargo from half the value of the sunken schooner, and in limiting a recovery

to the difference between these values. The decree is affirmed.

Statement by Mr. Chief Justice Fuller: *This is a certificate from the circuit court(556) of appeals for the fifth circuit, stating that the "suit was originally brought by Stuart Newell against Eliza Cooper and B. P. Coop er and Fannie Westrope, as defendants, in the circuit court in and for the eastern district of Texas, sitting at Galveston, in the ordinary form of trespass to try title, under the Texas statutes, to recover one hundred and seventy-seven acres of land in Harris county, Texas, described in plaintiff's peti tion, which said petition was filed on the 5th day of July, 1890. The said Stuart Newell was alleged to be a citizen of New York, and the said defendants all citizens of Texas."

That prior to the trial Stuart Newell died, and the proper persons were duly made parties plaintiff, as well as an additional party defendant, and plaintiffs filed their fifth amended original petition, in which, in addition to the usual averments required to be made by the Texas statutes in an action of trespass to try title, plaintiffs further alleged that defendants set up title to the land[557] in controversy through a judgment rendered May 21, 1850, in the district court of Brazoria county, Texas, in favor of Peter MeGrael and against Stuart Newell, a certified

The Chief Justice and Mr. Justice copy of which proceedings was attached to Peckham dissented.

ELIZA COOPER et al., Plffs. in Err.,

v.

EDWARD S. NEWELL and Clarence B.
Smith, Executors.

(See S. C. Reporter's ed. 555-573.)
Jurisdiction of state court, when open
inquiry-evidence.

1.

to

When a judgment of a state court comes un

der cons deration in a court of the United

and made a part of said amended petition; and "that said judgment was null and void and was not binding on the said Stuart Newell nor plaintiffs, nor could defendants claim title under said judgment for the following reasons, viz.:

"That at the time of the filing of said suit and the rendition of said judgment said Stuart Newell was not a resident of Brazoria county, Texas, nor of the state of Texas, nor was he then within said Brazoria county or the state of Texas; that at no time did he ever reside in Brazoria county, Texas; that Newell, who then resided in Galveston counon the 2d day of January, 1848, said Stuart

States sitting in the same state, the ques-
tion of jurisdiction of the state court to renty, Texas, removed from said Galveston coun-
der the judgment is open to inquiry in the

United States cour..

2. In such case, evidence is admissible to con-
tradict the recital in the judgment that de-
fendant was a citizen and resident of the
state, and to show that he was not served
with process and that the attorney who ap-
peared for him had no authority to represent

him.

[No. 134.]

ty to the city of Philadelphia, in the state of Pennsylvania, and resided in said city of Philadelphia, in the state of Pennsylvania, continuously from said date until the year 1854, when he removed from said city of Philadelphia to the city of New York, in the state of New York, where he continued to reside up to the time of his death, to wit, April

11th, 1891.

"That during the time of his residence in the city of Philadelphia he was a resident

Argued and Submitted January 12, 13, 1899. citizen of the state of Pennsylvania, and dur

ing his residence in the city of New York he was a resident citizen of the state of New York, and has never at any time been a citizen of the state of Texas, nor has he, at any time since the year 1848, when he left Gal veston county, been anywhere in the state of Texas, but at all times since said year 1848, up to the time of his death, had resided and been without the limits of the said state of

Texas and within the said city of Philadelphia, state of Pennsylvania, and the said city of New York, in the state of New York; that Stuart Newell was never served with citation, process, or otherwise notified of the existence of said suit of Peter McGrael v. Stuart Newell; nor was he a party to said suit with his knowledge, consent, or approval; nor did he submit himself to the jurisdiction of the said court; nor did he employ [558]or *authorize anyone to represent him or enter an appearance in said suit; nor did he know of the existence of said suit in any manner until just prior to the institution of this suit.

land, and also be condemned to pay a reasonable rent for the same. Prayer was likewise made for general relief, and that plaintiff be quieted in his title and possession of the said land. This petition was filed on the 20th day of May, 1850, and contained the following indorsement. This suit is brought as well to try title as for damages. J. B. Jones, att'y for plaintiff.'

"2d. The following answer, filed May 20, 1850, viz.:

"In the Honorable District Court, May Term, A. D. 1850.

Peter McGrael

vs.

Stuart Newell.

(Signed) J. A. Swett,

Att'y for Defendant. "And now, at this term of your honorable court, comes the said defendant, Stuart Newell, and defends, etc., and says that he denies all and singular the allegations in said plaintiff's petition contained.

(Signed) J. A. Swett,

"That if any attorney appeared for said Stuart Newell in said suit he did so without any authority, permission, knowledge, or "And now comes the defendant, Stuart consent of or from the said Stuart Newell, Newell, and says that the matters and things and that such appearance, if any there was, in plaintiff's petition are not sufficient in law was through collusion with said attorney for the plaintiff to have or maintain his said and plaintiff in said suit to injure and de-action against this defendant. Wherefore fraud the said Stuart Newell; and it was he prays judgment. expressly denied that I. A. or J. A. Swett had any authority or permission from said Stuart Newell to enter an appearance in said cause, nor was such appearance on the part of the said I. A. or J. A. Swett done with the knowledge, consent, or approval of said Stuart Newell; that at the time of the entry of said judgment said Stuart Newell had a meritorious defense to said suit, and was the owner in fee simple to the lands herein sued for by virtue of a deed of conveyance to him the said defendant says that he is not guilty from said Peter McGrael, plaintiff in said suit, executed and delivered on August 9th, in manner and form as the said plaintiff in 1848, and that at no time since said date his said petition hath complained against had said Peter McGrael any title or interest him; and of this he puts himself upon the in the lands in controversy. Attached to plaintiffs' said petition was a certified copy of the record in the case of Peter McGrael v. Stuart Newell in the district court of Brazoria county, Texas, to which was attached the certificate of the clerk that said record contained a full, true, and correct copy of all the proceedings had in said suit, and which record was afterwards put in evidence on the trial by defendant.

"This record consisted of, 1st, a petition in the ordinary form of trespass to try title, in which Peter McGrael was plaintiff and Stuart Newell was defendant, and in which petition it was alleged that Peter McGrael was a resident citizen of the county of Brazoria, state of Texas, and that Stuart Newell was a resident citizen of the county of Brazoria, state of Texas. A number of different tracts of land, one of which was situated in Brazoria county, were described in said petition, among them the land in controversy, which was alleged to be situated, then as now, in Harris county, Texas. Said petition likewise contained a prayer that [559]Stuart *Newell be cited to appear before the next term of the said district court of said Brazoria county, and that he be condemned to restore to plaintiff the peaceable possession of the said lands, and that he and all other persons be thereafter restrained from disturbing plaintiff in the possession and use thereof, and that defendant be condemned to pay plaintiff five thousand dollars damages for taking possession of said tracts of

Att'y for Defendant. "And for further answer in this behalf

country.

(Signed)

J. A. Swett,
Att'y for Defendant.'

*"3d. The following order of court:

66 "Peter McGrael

vs.

Stuart Newell.

}

No. 1527.

Monday, May 20, 1850. ""In this cause both parties being present, by their attorneys, the demurrer of defendant to plaintiff's petition came on, and, being heard by the court, was overruled.' "4th. The following decree: "Teter McGrael

vs.

Stuart Newell.

No. 1527.

Tuesday, May 21, 1850. ""This day came the parties, by their attor neys, and the demurrer of the defendant being heard, the same was overruled; and thereupon came the following jury of good and lawful men, to wit (here follow names of the jurors), who, after hearing the evidence and argument, thereupon returned the fol. lowing verdict:

"We, the jury find for the plaintiff, and that he recover the several tracts of land mentioned and described in the petition.

E. Giesecke, Foreman.

"It is therefore ordered, adjudged, and decreed by the court that the plaintiff do have and recover of and from the defendant

[560]

the several tracts of land in plaintiff's peti- | the case of Peter McGrael v. Stuart Newell tion mentioned and described and all thereof; was rendered by a domestic court of general that the said Stuart Newell be forever barred jurisdiction, and that said Newell was sued from having or asserting any claim, right, as a citizen of said Brazoria county, and that or title to all or any portion of said tracts of the record in said suit showed that fact and land or any part thereof, and that the said showed that he was sued therein for the replaintiff be forever quieted in the title and covery of land, and that he had appeared by in the possession of all the aforesaid tracts of his attorney, demurred, pleaded, and anland. It is further considered by the court swered in the suit, and that his demurrer that the plaintiff recover of the defendant had been contested before the court and a his costs of this suit, and that execution is- hearing had on the case before a jury and sue for the same.' that judgment was rendered in said suit for "The defendants answered herein, demur- the plaintiff, and that said proceeding, judg ring to the plaintiff's fifth amended originalment, and record import absolute verity, and petition upon the ground that it appeared therefrom that the plaintiffs thereby at[561]tacked collaterally and alleged to be void the judgment of the district court of Brazoria county, in the state of Texas, and within the said eastern district thereof, a court of general jurisdiction of the parties and the subject-matter connected with and involved in said judgment, and that said judgment was a domestic judgment, assailable only in a direct proceeding to impeach it, and that no proceeding had ever been taken to review, appeal from, vacate, or qualify said judgment, and that plaintiff's right to do so is now barred by limitation and lost by laches. Defendants also answered by plea of not guilty and the statute of limitation of three, five, and ten years.

that want of jurisdiction in said court could not be established outside of said record in a collateral proceeding such as the suit at bar. "These objections were overruled, the evidence admitted, and defendants excepted thereto.

"The issue of the validity of said judgment in the case of Peter McGrael v. Stuart Newell was submitted to the jury by the following charge of the court, viz.:

""There are only two questions left to your consideration: First, whether or not the judgment rendered in Brazoria county, May 21, 1850, in favor of Peter McGrael against Stuart Newell was procured without service and without the authorized appearance of Stuart Newell. If the evidence satisfies your mind that Stuart Newell was not a party to the suit in fact that is, was not served and did not enter his personal appearance, and did not authorize Mr. Swett to appear for him-you are instructed that the judgment is a nullity and the plaintiffs are entitled to recover this land, unless defendants have it by statute of limitations. If you determine from the testimony in this case that Stuart Newell was represented in

"Upon the trial of the case in the circuit court there was evidence offered by the plaintiffs tending to prove that Peter McGrael was the common source of title, and that, as alleged in plaintiffs' petition, the land in controversy had been conveyed by said Peter McGrael to said Stuart Newell in fee simple in 1848, and that said Stuart Newell was not a citizen nor a resident of the state of Texas at the time of the institution of the afore-that suit by Mr. Swett and he was authorsaid suit of Peter McGrael v. said Stuart Newell in the district court of Brazoria county, Texas; that he was never served with any process of any character in said suit; that he had no knowledge of the institution of the said suit until many years thereafter: that J. A. Swett was not his attorney in said suit and had never been employed by him to represent him in said suit, and that any appearance made for him by said Swett in said suit was without the knowledge or consent of said Newell; that in said suit the property in controversy had not been taken into the possession of the court by attachment, sequestration, or other process; that said Stuart Newell had never resided in Brazoria county, Texas; that he resided in Texas, in Galveston county, from April, 1838; to November, 1848; that he left Texas in November, 1848, and went to the city of Philadelphia, and resided there until 1853 or 1854. and from that time on up to the date of his death he had resided in the city of New York, in the state of New York, and during said years was first a citizen of the state of Penn[562]sylvania, whilst residing there, and then a citizen of the state of New York whilst residing there.

"The evidence tending to establish the above facts was all objected to by the defendants upon the ground that said judgment in

ized to represent him, in that event you need
not consider the plea of limitation, but re-
turn a verdict for the defendants. If Mr.
Swett was authorized to appear for Stuart
Newell in the *litigation, you need not con-[563]
sider the plea of limitation, but return a ver-
dict for the defendants; but if you find from
the testimony that Mr. Swett was not au-
thorized to appear for him, then that judg
ment is a nullity and the title to this prop-
erty would be in the executors of Stuart
Newell, plaintiffs in this case, unless you
find under the plea of limitation which I
shall instruct you upon in favor of the de-
fendants. If you find for the plaintiffs, the
form of your verdict will be, "We, the jury,
find for the plaintiffs against the defend-
ants." If you find for the defendants, the
form of your verdict should be,"We, the jury,
find for the defendants the land described in
the plaintiffs' petition and against the plain-
tiffs," and in that event you are further di-
rected to state whether or not you find the
Brazoria county judgment was a valid or
void judgment, and you will also state
whether you find the defendants have title
to the property by limitation; and, if so,
you will add, "We, the jury, find the defend-
ants have the title to the property by reason
of the five years' limitation." Those are two
special findings, if you find for the defend-

ants. If you find from the evidence in this | A. Swett, the attorney who purported to apcase that Stuart Newell authorized Mr. pear for him in said suit, to make any such Swett to appear for him in that case, the appearance, and that the appearance by said judgment is valid, but if you find he was not attorney was made without his knowledge authorized to appear for him, then the judg- or consent." ment is a nullity. The burden of proof is upon the plaintiffs to show nullity of the judgment in Brazoria county.'