Fretz v. Bull. 12 H. pany. The insurance, in this instance, was upon the cargo of boat No. 2, and not upon the boat. The cargo, however, was not fully insured. The insurance company, upon being informed of the loss of it from a collision with The Memphis, paid their policy upon it, and that placed them in a condition to bring this suit for its recovery, if it could be ascertained that the collision was produced by the fault of those who were in charge of the steamer belonging to the appellants. We will now inquire from what cause the collision happened, or who was in the fault. In the second article, we have a description of its locality. It was at a point in the Mississippi River opposite Prophet's Island, in the State of Louisiana, and took place on the 11th April, 1847, on a clear day, between the hours of nine and ten o'clock, in the forenoon, whilst the flatboat, No. 2, was going down stream in the usual and proper channel. It seems, that she was drawn in towards the shore by an eddy, and that whilst there, the steamer Memphis (also descending the river) and the flatboat came in contact with each other, from which the flatboat was capsized and sunk in less than four minutes, losing her whole cargo, excepting sixteen barrels and one keg of lard. The allegation is, that the steamer, with proper care and skill, might with great ease have been kept clear of said flatboat, and that the flatboat could not possibly get out of the way of the steamboat, but was run against by the steamer with great force and violence, striking her on her starboard quarter and causing her to fill rapidly. The answer of the respondents to this allegation is, that the steamer was carefully going down the Mississippi, being at the time in the proper place for a descending boat, and that the officers on board of said steamboat observed two flatboats in the eddies, on both sides of the river, one in the eddy on the right side of the river, the other in that on the left, the latter being the flatboat, No. 2. It is further stated that when the flatboats were discovered, there was ample space for the steamboat to pass safely between them. The flatboat on the right-hand side of the river was nearest the steamboat, and was first passed. It is also stated, that in order to leave ample room for passing in safety flatboat No. 2, which was on the left side, that The Memphis was steered as closely to the first flatboat as it was prudent or safe to go; that after that boat had been safely passed, the flatboat, No. 2, appeared to be some two hundred yards in the eddy from the course of the steamer, the captain of her requesting that a Louisville paper might be thrown into the river for him, stating that he would send his skiff out for it. Up to this time there was not the slightest apprehension of a collision. The [470] * Fretz v. Bull. 12 H. captain of The Memphis, not liking the position of the flatboat, she being at the time off to the left of his boat, with her bow nearly at right angles to his boat, requested the persons on the boat to throw down her stern. The captain of the flatboat seized the helm and endeavored to do so, but could not succeed. A moment before this, no one could have supposed a collision possible, but just about the time the bow of The Memphis passed the flatboat, she being then a considerable distance to the left of the course of The Memphis, a sudden change in the current of the eddy, or some other cause unknown to these respondents, threw the said flatboat against the larboard wheel-house of The Memphis, nearly bow foremost, which started one of the planks of her bow, causing her soon to fill with water and sink. That previous to, and at the time of the collision, The Memphis was running in the current of the river, between the two eddies. From these allegations of the appellants and respondents, substantially agreeing with each other, as to the eddies, the locality of the collision, and the relative positions of the boats to each other at that moment, it would be difficult to determine, by the fault of which of them the disaster was occasioned. But from the antecedent navigation of The Memphis, from the point where the flatboats were first observed, whether it shall be taken from the narrative of the respondent just recited, or from the evidence in the case, it cannot be doubted that the collision was produced by the carelessness or ignorance or disregard of her pilot of the consequences which those eddies might produce in the positions in which The Memphis and flatboats then were. It is not denied by the respondents, and it is asserted by the libellants, that the flatboat was, from the time The Memphis first saw her, until she was sunk, in the proper channel of downward navigation, floated onward only by the current. The captain of The Memphis, in his downward course, was the first to discover the danger resulting from the position in which his vessel had been placed relatively to the flatboat. He says, he did not like it, and requested those on board the flatboat to throw down her stern. He admits, that the captain of the flatboat endeavored to do so, but could not succeed. He had approached the flatboat, without any change in the position of the flatboat up to that moment. Now, if according to his own declaration, the collision occurred but a moment after, before he can be excused for his near approach to the flatboat, he must show that there was not water-room, and of sufficient depth, to have run The Memphis further off than he did, and that there was not, on either side of the flatboat, a sufficient width of water for him to have passed the flatboat at a distance greater than the Fretz v. Bull. 12 H. length of The Memphis; for it is plain, if that had been [*471] done, whether the eddy turned the flatboat or not, that the two boats could not have come into collision. The evidence on the part of the respondents, confirms this view of the case; for Galusha says, that at the time of the collision, there was room enough for The Memphis to pass without interfering with the flatboat at all; and Thomas testifies, that the flatboat was floating with the current, and the steamboat running with the stream, and though that at the place of accident, there was an eddy on both sides of the river, that the river was very high and broad, and The Memphis might have passed on either side, and thereby prevented the accident. It is further stated by this witness, that The Memphis was coming towards the flatboat, and if we had pulled from her we should have got into the eddy towards her, and she would have run over us; we did every thing we could to prevent said accident, and it was not caused by the carelessness or want of skill of the crew of the flatboat. Yourd, another witness, confirms this statement, and that The Memphis had "a plenty of room to avoid her." Henry Moore, another witness says, that the accident was caused by the fault of the pilot or crew of the steamboat Memphis; that it occurred in daylight, when there was no fog on the river and no wind; that on the left side of the steamboat there were three hundred yards of water; and on the right side one hundred yards; that the steamboat might have passed on either side with perfect safety to herself and the flatboat, as there were neither bars nor snags in that part of the river; but that instead of passing around, she undertook to run between the flatboat and a hay boat that was floating between us and the right-hand shore, and struck our boat as he has stated. The respondents' witness, Bentley, confirms the statement of the last witness, that the steamer run between the two boats, running as near to the boat on the right, in order to leave as much room for the one on the left, as possible; and that he did not, after he had passed the boat on the right, apprehend there was any danger of collision with the boat on the left; that The Memphis kept a straight course down the current of the river, and did not suppose, when The Memphis passed the first flatboat, that he would run within a hundred yards of the boat, No. 2. He further states, that the flatboat, No. 2, did not change her relative position to the course The Memphis was running, but it was caused by the eddy forcing out the flatboat into the current of the river; that he, as the pilot, ran The Memphis in such a manner as he thought would prevent a collision. He thinks The Memphis was fifty yards from the flatboat, when the bow of The Memphis passed her; at that time witness was running, quartering into the bend on the Gaines v. Relf. 12 H. [*472] *left. About that time, he was apprehensive of a collision, and that it was caused by the approach of the flatboat. But this witness says, that the river, at the place of collision, was from three quarters to a mile wide. Now with this fact, stated by himself, why was it necessary to run The Memphis on such a course as that such a collision should have happened? Or why was she not run at such a distance as that it could not have occurred? Added to this, this witness knew the force of the eddies, and should have guarded cautiously against their effect. This is a cause of collision happening in broad daylight, after the steamer had observed the flatboat for more than the distance of half a mile. The evidence shows, that the steamer could have been differently navigated from the manner in which she was, and that the course she was run, though in the judgment of the pilot was the best under the circumstances, yet that it was a course which caused the collision, and that another might have been taken by which there would have been no possibility of a collision. The judgment of the circuit court is affirmed. DANIEL, J., dissented from the decision in this case, on the ground of the want of jurisdiction in the admiralty courts of the United States, in cases like the present. 20 H. 296; 1 Wal. 43; 4 Wal. 555. MYRA CLARK GAINES, Appellant, v. RICHARD RELF, and BEVERLY CHEW, Executors of DANIEL CLARK and others. 12 H. 472. Bill in equity to establish the title of Myra Clark Gaines to one half the estate of the late Daniel Clark, as his legitimate daughter, and to have an account thereof from his executors and others. Held, that the legitimacy of the complainant was not made out, and the bill was dismissed. The marriage of the complainant's mother to D. being admitted, his confession that he had a lawful wife living at the time of such marriage, is not admissible in evidence as against third persons. The certificate of a clergyman, made sixteen years after the alleged act, that he had married the persons named therein, held not to be evidence. A record of a county court in New Orleans, containing no libel, or petition, and not showing upon its face that it was a proceeding in rem, held inadmissible in evidence as against third persons. A decree of this court, made in a suit which is proved not to have been a real controversy, is not admissible in evidence against third persons. Where the complainant had put in secondary evidence that one D. had been convicted of bigamy by the ecclesiastical court in New Orleans, while under the dominion of Spain, and that, on search, the record thereof could not be found, the respondent may introduce a record of such a prosecution in which D. was acquitted, coming from the custody of the proper officers, the signatures of the Spanish officers to the authentication of the record Gaines v. Relf. 12 H. being proved, and it being shown that at the time in question those persons held those offices. A deposition of the complainant's mother, under whom she claims title, made in another proceeding, is evidence against the complainant. A letter from a husband to a wife, is evidence in a suit inter alios of the state of his feelings towards her when written, and also of his being at the place where it purports to have been written, at the time of its date. THE case, according to the views taken of it by a majority of the court, and much of the evidence, are stated in the opinion of the court. Johnson and John A. Campbell, for the appellant. Green Duncan and Webster, contrà. ⚫ CATRON, J., delivered the opinion of the court. [ *505 ] This cause comes here by appeal from the decree of the circuit court of the eastern district of Louisiana, where the bill was dismissed. The complainant sues as the only legitimate child of the late Daniel Clark, who died in the city of New Orleans the 13th of August, 1813. No account is prayed against Daniel Clark's executors; but the complainant seeks to recover the property sold by them, consisting of lands and slaves, on the ground that her father could not deprive her, as his legitimate child, of more than one fifth part of his estate by a last will, according to the laws of Louisiana as they stood in 1813. And she maintains that the sales made by Chew and Relf, were made without any orders of court to authorize them, and that therefore they are void; the laws of Louisiana requiring such orders before a valid sale could be made. The respondents claim under a will made by Daniel Clark in 1811, by which he devised all his property, real and personal, to his mother, Mary Clark, and appointed Richard Relf and Beverly Chew, his executors; and to whom Mary Clark made a power to sell Daniel Clark's estate for the purpose of raising money to pay his debts. Chew and Relf, acting as executors of Daniel Clark, and also as attorneys of Mary Clark, did sell the property in controversy for the purpose of paying the debts of the testator. To meet this [506] claim of title, the complainant insists, 1. That the sales made by Chew and Relf, as executors, were made without orders from the court of probate to authorize them, and are void. 2. That Mary Clark had not accepted in legal form, the bequest of her son when she conveyed by her attorneys; and that, therefore, her convey. ances cannot be relied on by her vendees to support the plea of innocent purchaser. |