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him. Indeed a quitclaim deed is considered strong evidence that the vendee is not a bona fide purchaser (Oliver v. Piatt, 3 How. 333; Lowry v. Brown, 1 Cold. 456).

To sustain libellant's position is to subject the purchaser under covenants of warranty to the expense of two suits: 1st, to defend the claim; 2d, to recover from his warrantor.

(2) Libellant's claim is stale. The services were rendered not to Alger nor to Kean, but to McDonald, who held the barge under an agreement to purchase.

The general rule with regard to laches, is stated in the following case (The Dubuque, 2 Abbott U. S. 33).

It is only a statement of a general principle of law, that, as between two parties, a loss must be borne by him who might have acted and neglected to do so. Claimant has been guilty of no laches. If he pays, he suffers a loss which libellant might have prevented by acting promptly. Had proceedings been instituted before August 16th, when the bill of sale was given, claimant might have protected himself by refusing to accept it until the claim was paid. (Blaine v. Ship Carter, 4 Cranch, 328; The Buckeye State, 1 Newb. 111; The Eliza Jane, 1 Sprague, 152; The Paul Boggs, Ib. 369; The General Jackson, Ib. 554; The Dubuque, 2 Abbott U. S. 20; The John Lowe, 2 Ben. 394; The Favorite, 1 Biss. 525.)

An oral opinion, substantially in the following language, was delivered by

SWAYNE, J. The libel in this case was originally filed by John K. Harrow, but, by an amendment allowed under an order of the District Court, the name of James P. Harrow was substituted. It was not a mere mistake in the name of the libellant, but an actual change of one person for another. I think there was no authority to make this order. It was decided by the Supreme Court, in The Commander-in-Chief (1 Wall. 43), that new parties may be added, and parties improperly joined may, on motion, be stricken out, but I do not think this authorizes the substitution of one sole libellant for another. It is, substantially, the institution of a new suit.

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Clearly, this could not be done at common law, and I know of no authority for this practice in equity, except the one cited from Bailey's Reports, which rests upon different principles.

If the claimant, after having objected, and asked to have the order vacated, had stood by his objection and refused to proceed further in the case, or if he had put his exceptions on record, showing that he had done everything in his power to insist upon them, I should have held it fatal in this Court. But I think, by appearing, taking testimony and cross-examining witnesses, arguing the case upon the merits, and conducting the litigation for nearly eight years without observing any of the forms to which I have adverted, the objection must be deemed to have been waived. By appearing and contesting this new suit upon the merits, the claimant is now precluded from insisting it was not properly commenced. The effect of these proceedings upon the sureties, it is not necessary here to discuss.

There is a controversy between the parties, whether the barge was taken to Canada on the 14th of July or on the 31st of August, but I do not regard it as material to the disposition of this case. The services having been rendered in May and June, the libellant cannot be considered in default for failing to prosecute his claim before the 31st of August, assuming her to have been removed upon that day. She remained at Windsor, opposite and in sight of Detroit, until the 27th of June, 1866, when the claimant Alger went to Canada, purchased her, and brought her to Detroit, where she was put into a dry dock and largely repaired. This libel was filed and the barge attached on the 13th of October, 1866.

The question to be considered is whether this delay is to be deemed a waiver of libellant's lien as against Alger. It is said he is not a bona fide purchaser, by reason of the warranty contained in the bill of sale and the collateral guaranty given by M. B. Kean. I seems to me, however, that the answer of Mr. Canfield is entirely conclusive upon that point. It is held in the authorities upon that subject, that the very fact that a vendee accepts a quitclaim deed, is strong evidence that he is

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not a bona fide purchaser, and such I conceive to be the law. I do not understand that a person, by taking the warranty of his vendor, or of a third party, loses the protection of the law applicable to bona fide purchases.

The services were rendered while the vessel was in possession of McDonald, under a claim of ownership. So far as it appears from the testimony, the barge was his, and he was its agent for all purposes. After he had failed to complete his purchase, and the vessel was surrendered to Kean, he was entitled to be advised that such a claim was owing by McDonald when he might possibly protect himself against it, and it is proven in this case that a demand was made upon him for payment some time during the following autumn. Had libellant failed to give this notice before the close of navigation, I should have held the barge discharged of the lien while in Kean's hands. But it seems to me this was not libellant's only duty in the premises.

The season of navigation closed and winter passed. On the 27th of June, 1866, the claimant Alger went to Windsor, where the barge was lying, purchased her, brought her to Detroit, and placed her in Jones' shipyard, where extensive repairs were commenced. Libellant was bound to know all this. He certainly could have learned it by observation or inquiry. Yet he allowed the months of July, August and September to elapse without taking a step to enforce his claim. Not until the 6th of October, was his libel filed and the vessel attached. During all this time the title was vested in Alger. Now, as a question of law, was this reasonable diligence? The main authorities upon the subject have been read and I fully concur in their reasoning.

In the cases of the Buckeye State (1 Newb. 111), and The Dubuque (2 Abbott's U. S. 20), a rule applicable to the lakes is laid down, that where the vessel has passed into the hands of a bona fide purchaser, claims of this character should be prosecuted within the current season of navigation, or, at least, within a year. I think this rule is founded upon the most solid considerations of good sense. Granting there were

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no laches in this case before the close of navigation, as the vessel was all this time beyond the jurisdiction of the Court, I think it was incumbent upon libellant to keep a careful watch upon her movements, to notify the purchaser of his claim as soon as she was sold, and to proceed to enforce his lien as soon as she was brought within the jurisdiction of the Court. He was bound to know that this vessel was as likely to change hands as any other, and should have used diligence to ascertain when she was transferred to Alger, and have given him speedy notice of his claim in order that he might lose no opportunity of protecting himself against it. Instead of this, he allows the three busiest months of the season to elapse without making known its existence. I think these facts warrant the presumption that the lien was waived.

Upon the best consideration I have been able to give to the case, I feel constrained to affirm the decree of the District Court.

Libel dismissed.

DISTRICT COURT.

EASTERN DISTRICT OF MICHIGAN.

HON. ROSS. WILKINS, DISTRICT JUDGE.

THE JOHN MARTIN.

MAY, 1866.

WAGES.-AUTHORITY OF Engineer.-Forfeiture.

The engineer of a steamboat has no authority to make any alteration in the engine at the home port without the consent of the owner, and his conduct in so doing will work a forfeiture of his wages.

LIBEL in personam for wages as engineer upon the tug John Martin, then employed in towing vessels upon Detroit and St. Clair rivers.

ANSWER that libellant, without the knowledge or consent of the master or owner, removed certain portions of the engine and machinery from the tug, and greatly damaged the same, whereby the tug was delayed at Detroit for two days, and respondent suffered damage to a greater amount than the wages claimed to be due.

It appeared upon the trial that libellant, who was an experienced engineer, was dissatisfied with the construction of the engine in some minor particulars, and suggested to the master a change in the cut-off quadrant, and reversing lever that would render the engine safer and more manageable. The master did not give an express assent to the alteration, but made an evasive answer which libellant construed as an acquiescence. On arriving at Detroit, the home port of the tug and the residence of respondent, the boiler was found to need