Dissenting Opinion: Field, Gray, JJ.

placed a burdensome responsibility upon the owners for the acts or omissions of their agents or servants without their knowledge or assent; and to lighten this responsibility the statute in question was passed. It was not its purpose to limit the responsibility of the owners for the consequences of their own wrongful acts of omissions.

The first section exempts them from all liability for loss or damage by fire of goods shipped on board their vessels, unless such fire is caused by their design or neglect. When the fire is thus caused, the common-law rule of liability remains as before; and that extends to the whole value of the property if entirely lost, or to the extent to which it may be damaged, if only partially destroyed. The concluding provision of the section is equivalent to a declaration that the exemption provided in the preceding part shall not exist when the fire originated from the wrongful acts or omissions of the owners.

The third section prescribes a limited liability to the owners for losses from a great variety of acts. It does not exempt them from all liability, but restricts it in the cases mentioned to the value of their interest in the vessels and the freight then pending. It is as follows:

"That the liability of the owner or owners of any ship or vessel for any embezzlement, loss, or destruction by the master, officers, mariners, passengers, or any other person or persons, of any property, goods, or merchandise shipped or put on board such ship or vessel, or for any loss, damage, or injury by collision, or for any act, matter or thing, loss, damage, or forfeiture done, occasioned, 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 or owners respectively in such ship or vessel and her freight then pending."

The fourth section refers to the acts mentioned in the third, and declares that if any such embezzlement, loss, or destruction shall be suffered by several freighters or owners of goods on the same voyage, and the whole value of the ship and freight shall not be sufficient to make compensation to each of them, they shall receive compensation from the owner in proportion

Dissenting Opinion: Field, Gray, JJ.

to their respective losses; and for that purpose the freighters and owners of the property and the owner of the ship, or any of them, may take proceedings in any court for the purpose of apportioning the sum for which he may be liable among the parties thereto; and the owner may transfer his interest in the ship and freight, for the benefit of the claimants, to a trustee, to be appointed by any court of competent jurisdiction, to act as such for the persons entitled thereto, after which transfer all claims and proceedings against him shall cease.

It seems clear that the various cases of damages and losses enumerated in section three are not intended to embrace losses by fire. This section first speaks of the liability of the owner for embezzlement, loss, or destruction, by the master, officers, mariners, passengers, or other persons, of property shipped on board the vessel. It then speaks of his liability for any loss damage, or injury by collision; and, lastly, for any loss by any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred without his privity or knowledge. It is conceded that the language of the first and second parts of the section does not include losses by fire, and the language of the concluding clause does not necessarily include them. It may be applied to other cases; and as losses by fire are specifically embraced by the first section, it must receive such application as will give to each section full force. This is a settled rule of construction. Besides, it cannot be contended that an act done by the design of the owner could have been done without his privity or knowledge. It must necessarily have been done with both; and if the fire was caused by the neglect of the owner it must be presumed to have been caused with his knowledge. Where one is bound to do a thing or to see that certain things are done, he is presumed to know the direct consequence of his carelessness and neglect in those respects. Especially is this so where his doing the thing, or seeing that it is done, is necessary to the safety of life or property. He cannot shield himself from responsibility by saying that he did not know what would be the consequence of his carelessness and neglect. The law presumes that he does know it and intends it. The act speaks of neglect by the owner, not by any sub

Dissenting Opinion: Field, Gray, JJ.

ordinate officer or agent. It is therefore personal neglect which is meant, and it would be unreasonable to hold that the owner was ignorant of that which necessarily followed from his own personal conduct.

Not only would this be unreasonable, but there is an inconsistency in holding that the first section exempts the owner from all liability in cases of fire happening without his design or neglect, if by the third section a liability is fastened upon him to the extent of the value of the ship and freight in case of a fire occurring without his privity or knowledge. And yet, according to the position of the court, the owner is exempted by the first section from all liability if a fire occur without his knowledge and privity, and by the third section is subjected to liability to the extent of the value of the ship.

As stated by counsel of the plaintiff below, there can be no public policy in absolving common carriers by water from their full liability to others for property which has been entrusted to their care, and has been lost by their design or neglect. It certainly would require language, as he observes, so clear and plain that no subtlety of criticism can escape from the conclusion, before such a purpose can be ascribed to Congress. It would be establishing a limitation of liability against public policy, common right, and the universal feeling of justice. It would make the law one to protect wrongdoers, and to punish the innocent who had been injured by them while thus protected.

If, then, the first section is not affected by the other sections of the act, the liability of the owner of a vessel in case of fire caused by his design or neglect exists, as it always has existed at the common law; and that liability may be enforced in any court, State or federal, having jurisdiction of the parties. The other provisions by which the owner may seek to relieve himself from liability by surrendering his vessel and the freight earned have no application to such a case. It follows that the defence of a liability limited, as asserted by the District Court, goes to the ground.

There is also another consideration which leads to the same conclusion. By § 9 of the Judiciary Act of 1789, re-enacted in § 563, clause 8, of the Revised Statutes, a common-law remedy

Dissenting Opinion: Field, Gray, JJ.

is expressly reserved to suitors in all cases where the admiralty has jurisdiction, provided the common law also gives a remedy; and that the common law gives a remedy in cases of losses by fire where goods are entrusted to common carriers by water, there can be no doubt. Of such common-law remedy, the State courts have exclusive jurisdiction when the parties are citizens of the same State, and concurrent jurisdiction with the federal courts when the parties are citizens of different States. The State court, therefore, had jurisdiction of this case. It is a suit in personam, and even if a federal court might also take jurisdiction, that of the State court, having first attached, could not be subsequently defeated. Wallace v. McConnell, 13 Pet. 136; Taylor v. Carryl, 20 How. 583; Mallett v. Dexter, 1 Curtis, 178. The federal court could not issue any injunction against the parties which would affect the jurisdiction of the State court. The act of Congress of 1793 forbids any injunction from a federal court to restrain the prosecution of a suit in a State court; and this act has never been repealed, either expressly or by implication, except as to proceedings in bankruptcy. Rev. St. § 720; Peck v. Jenness, 7 How. 625; Taylor v. Carryl, 20 How. 583; McKim v. Voorhies, 7 Cranch, 279; Diggs v. Walcott, 7 Cranch, 179; Watson v. Jones, 13 Wall. 679; Haines v. Carpenter, 91 U. S. 254; Dial v. Reynolds, 96 U. S. 340.

For these reasons, I am of opinion that the judgment of the State court should be affirmed, and I am authorized to say that MR. JUSTICE GRAY Concurs with me in this conclusion.

Opinion of the Court.

ROBERTSON and Others v. PICKRELL and Others.

IN ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

Argued December 5th, 1883.-Decided December 17th, 1883.

District of Columbia-Estoppel-Evidence-Judgment—Probate—Transcript of Judgment-Will.

1. Records and judicial proceedings of each State affecting property or estate within it have in every other State the force and effect which they possess in the State of their origin : but as to similar property or estate situated in another State, they have no greater or other force than similar records or proceedings in the courts of that State.

2. The probate of a will in one State does not establish the validity of the will

as a will devising real estate in another State, unless the laws of the latter State permit it. The validity of the will for that purpose must be determined by the laws of the State in which the property is situated. 3. A transcript of the record of a probate of a will in Virginia, sufficient to pass real estate there, is not proof of the validity of the will in the District of Columbia for the purpose of passing real estate there.

4. In order to pass real estate situated in the District of Columbia, a will must be executed as provided by the laws in force there, and its validity must be established in the manner provided by those laws.

5. Probate of a will in the District of Columbia is evidence of its validity only so far as it affects personal property. As a will devising real estate the instrument itself must be produced, with the evidence of the subscribing witnesses, or if they be dead, or their evidence legally unattainable, with proof of their handwriting.

6. The plaintiffs claimed as heirs of R. They showed a deed by R to S of an estate in the premises for the life of M. but without covenants by S to surrender to R or his heirs, or as to any further interest in R. They also showed that the life estate of S passed by mesne conveyances to the defendants: Held, that the defendants were not estopped from setting up an adverse superior title.

Suit to recover possession of a tract of land in the city of Washington.

Mr. J. G. Bigelow for the plaintiffs in error.

Mr. Samuel B. Paul for the defendants in error.

MR. JUSTICE FIELD delivered the opinion of the court. This was an action of ejectment for a parcel of land in the city of Washington, District of Columbia. On the trial the