Page:Federal Reporter, 1st Series, Volume 3.djvu/530

 EBEBT V. BOHOONES BETJBEN DODD. �The case of The Dove, 91 U. S, 381, was cited by counsel on both aides as an authority sustaining their respective posi- tions ; but, upon examination, I do not think the case covers the point here involved. That was a case of collision. The libel was filed in behalf of the schooner Dove against the prO- peller May Flower, in the district court for the eastern district of Michigan. It was held by that court that the propeller was wholly in fault, and therefore that the owners of the schooner were entitled to a full decree. A cross libel which had been filed in behalf of the propeller was dismissed, and an appeal was then taken to the circuit court, and that court afiSrmed the decree of the district court. The case was then appealed to the supreme court. In the circuit court the prop- osition was urged, in behalf of the Dove, that, inasmuch as no appeal had been taken from the decree of the district court dismissing the cross libel, the libellants in the cross suit were estopped to deny the charge in the answer to the cross libel that the collision was occasioned wholly by the fault of the propeller. In other words, the position was then taken by the libellants in the original libel that, as the respondents had submitted to the decree of the district court dismissing the cross libel, they were estopped to sày that the collision was not occasioned by the fault of the propeller. And the ques- tion that was really involved in the appeal to the supreme court was whether the submission to the dismissal of the cross libel in the district court, by the parties who had filed it, prevented them from making the same defence to the orig- inal libel that they would have had the right to make if no cross libel had ever been filed. That was the principal ques- tion for judgment in the case, and was the question which was decided ; and it was held that the decree of the district court dismissing the cross libel for want of merit, from which no ap- peal was taken, determined the questions raised by such cross libel, but did not dispose of the issue of law and fact involved in the original suit. It is true that, in the opinion of the court, it is stated that, "for ail purposes of defence to the charges made by the libellant, his answer, if in due form, is sufficient ; but if he intends to claim a decree for the damages ����