Page:Federal Reporter, 1st Series, Volume 8.djvu/643

 THE FAENLEY. �for the penalties sued for. It is true, between the former owners of the Boston and these defendants (who are their vendees) there is pri- ority of title. But the title to the vessel was not involved in the former suit ; nor did that suit involve any question of lien. Neither did the judgment therein obtained become a lien on the Boston. At the date of that judgment the title to the vessel was in the present defendants ; and this suit is not to enforce that judgment. It is an original suit in rem in admiralty to enforce the lien created by section 4469 of the Revised Statutes, which makes said penalties a lien upon the vessels. And now for the first time the present owners have an opportunity to be heard in answer to the claim. Very 8trang^ would it be, therefore, were they shut off from all defence by a proceeding to which they were not parties. �After judgment against the mortgagor in a suit to which the terre- tenant was not a party, the latter, in an ejectment brought against him by the sherifs vendee, can prove that the debt was paid. Mather V. Clark, 1 Watts, 491. And the same principle was held in Gom.y. Duncan, 8 Pa. St. 93, which was a scire fadas upon a recognizance. At best this is a hard case upon these defendants. But to compel them to pay $404 in excess of the penalties which the vessel actually incurred would be shocking iii justice which no court would tolerate unless constrained by some unbending rule of law. Happily no Sound principle is violated by deciding the cause upon its merits as now disclosed by the proofs. �Let a decree be drawn in favor o4 the libellants for $1,313, with �COBtS. ���The Fabnley.* (Circuit Court, D. Maryland. June 16, 1881.) �1. COLMSION BBTWBBN STBAMEK AND SaILING VeSSBL. �The sailing vesael claimed tUat she altercd her course in extremis, and to ease the blow. Held, upon the facts as found by the court, that the sailing vessel unjustitiably altered her course, and contributed to bring about the col- hsion ; that if she altered her course at all she should have so acted as to aid the steamer in avoiding the collision. Held, that the steamer was also in fault, ■when she had plenty of sea-room, in passing the sailing vessel in the night- time so close as to allow a collision to resuit from a miacalculation of those in charge of the sailing vessel. IIM, that the damages must be equally divided. �Appeal in Admiralty. ��� �
 * Sce 1 FED. llEP. 631.