January 31, 1881.)

Where libellant suffered over six years to elapse before filing his libel, ,the ves, sel having been within the district several times, and it appearing, further, that she had been sold to a bonafide purchaser having no knowledge of the claim, it was held he could not recover, notwithstanding the fact that the libel was filed before the sale took place. 2. Sum-NOTICE. The filing of a libel, and the issue of an attachment, without seizure of the vessel, is not constructive notice of the pendency of the suit.

In Admiralty. 'rhis was a libel for towing the barge Robert Gaskin from Bay City to Lake Erie, August 12, 1873; amount claimed, $150; defence, stale claim. The .tes. timony showed that the present owners bought the Gaskin, which was a foreign vessel, March 12, 1880,' for a valuable consideration, and without notice ()f libellant's claim. At the time the services were rendered she was owned in Kingston, Ontario, and was generally engaged in the Canadian trade. In 1874 she made three trips to Sault St. Marie, remaining each time five or six days. Upon returning from one of these trips. she lay at Port Huron 12 hours, discharging cargo. In 1875 she was in Michigan four times, and upon one trip lay in Detroit river, opposite the city, for several hours. In 1876 she was.again at Bay City, where libellants resided. They visited her here; made a demand upon the master for the payment of their bill. They were content, however, with promises, and made no efforts to collect by legal proceedings, The barge was in Michigan three times in 1877, and once in 1878, but this fact was not known to the libellants. In 1879 she was again in this neighborhood, and layoff Detroit for about 18 hours. The bill appears to have ooen sent to the marshal at this place, with instructions to collect, in the spring of IS77, but no libel was filed until October 17, 1879, when an attachment was issued and kept alive by renewals until June 23,1880, when she was seized. This was three months after she had been sold, and eight months after the libel was filed and the first attachment issued.
J. W. Finney for libellant. lVm. A. Moore, for claimant. BROWN, D. J. In this case six years and three months elapsed from the time the service was rendered to the day the libel was filed. No excuse is shown for the delay. In The Hercules, 1 Brown, Adm. 559., I had occasion to hold that the libel should be filed during the current season of navigation, or as early the following season as it was probable the vessel could be seized. The testimony does not show such an absence from these water!:! as precluded the necessity

TllE IlOBEll.T GASKIN.

63'

of diligence. I see no reason to doubt that,: if an attadhment had been promptly takehi ol1t:in the spring of 18'{4, the vesflel would been seized befdre the close of rlaVigation. In 1876 ahe visited' Bay' City, and libellant there demanded his bill. Then, certainly, if not It is true he might not have bebn before, it was' his ditty to' able to seize Bay City, but iihe had forwarded his claim at once to Dettoit', Itnatta.chmerit might have been issued, and her down trip) , :' , ' " the brig seized It'is insisted, 'however, that the fact that the libel was 'filed before' the sale was made to' the preseilr owners is sufficient evldence of diligence. It isliotperc'eivedhow the owners are placed iIi any better position by this filet than they would have been if the libel had boon' :filed after fact that the libel was filed five months before the sale, can only be the'ory that the :filing of the libel and theiistiing of the attachment were constructive notice dffthependency of'th'esuit. There isno'dbubtthat in cases affect;.' ing real property the commencement of a suit, is constructive notice oftha pendente lite; Wade, Law of Ndtice, 2,'§ 5; (Jaunty of Warren -¢; Marcy, 97 U.. S. 107. " , , It is doubtful, to say the least, whether the commencement of a. suit to enfoteea upon 'a, vessel is Eluch a suit as is within the contemplation of this rule. But, waiving this question, it is quite evident that the suit was not commenced at the time the sale was made in such a way as to bind bonafide purchasers of the property, without actual notice. For the purpose of ascertaining whether a suit is brought within the statutory limitation, the suit is generally held to be commenced from the date the process is issued and placed in the haI}.ds of an officer for service; but in other cases, where the question as to the validity of a purchase depends upon whether the property purchased is the subject of litigation at the time, the suit will not be regarded as pending until the service of original process, whether the same is personally served upon the defendant, Or by any method prescribed by statute as a substitute for personal service. Wade, Law of Notice, § 348. Now, as it is clear in this case that the process was not upon the vessel until three months after the sale, the suit cannot be regarded as having been Mmmenced until that time. The creditor of a vessel is bound, as against a bona fide purchaser, to use due diligence; and I know of nothing but the continued absence of the vessel from the reach of process which will excuse him. He has no

FEDERA.L REPORTER.

right to wait and speculate upon the chance of the vessel being Bold. In this case it made no difference to the vendee whether the libel was filed before or after his purchase, so long as he had no actual notice of the claim. In The City of Tawas, 8 Cent. Law J. 191, I Lad occasion to ob· serve that claims are not pronounced stale upon the sole ground of estoppel. In this case the claim of a material-man accrned shortly before the mortgage was given, and it was insisted that although the libellant waited for a considerable time before filing his libel, the claim had not become stale as against the mortgagee, as it was not stale when the mortgage was given, and there having been.no change in the relative situation of the parties up to the time of filing the libel, the mortgagee had been injured by the delay. I felt obliged to hold, however, that the creditor was bound to use due diligence himself, and that the court could not enter into nice inquiries as to how far the subsequent purchaser had been damnified by his failure to proceed immediately. If libellants had taken out their attachment in the spring of 1874, and kept it alive by repeated renewals, I would have enforced the claim even at this late date; but after being guilty of such inexcusable laches, he cannot be heard to say that he filed the libel before the sale was made.

POPE V. FILLEY.

POPE

and another v.

FILLEY.

(Oi1'ouit Oourt, E. D. Mi88ouri. October 3,1881.)
1. CONTRACT OF SALE CoNSTRUED-LEx LoCI CONTRACTus-EvmjllNCE, INADMISSIBILITY OF PAROL, TO ADD TO A WRITTEN CONTRACT-BuRDEN OF PROOF -EXPERT TESTIMONy-MEASURE OF DAMAGES.

Where a contract of sale was entered into in St. Louis, whereby the vendors agreed to ship the vendee 500 tons of " No. 1 t:lhott's Scotch pig-iron "" "" "" from Glasgow, as soon as possible," and deliver it to him in bond at New Orleans, for $26 per ton; and they shipped that amount of iron from Leith, and tendered it to the vendee, who refused to accept it, and the vendors thereupon had it sold by a broker for all it would bring, and sued the vendee for dam. ages,-held, (1) That the burden of proof was upon the tendors to show that they had fully complied with the terms of the contract on their part. (2) That the fact that the iron was shipped from Leith instead of Glasgow was immaterial. (3) That it was necessary for the vendors to show a compliance with the con. tract as to time of shipment, but that" shipment .. "" "" as soon as possi. ble" meant as soon as possible by any ordinary mode of transportation. (4) That. parol evidence was inadmissible to show that, by the custom of merchants, shipment should be by sail, unless it is specified that it shall be bJ .steam. (5) That the term" No.1 Shott's Scotch pig-iron," as used in said contract, should be understood as having the meaning usually given it by persons en. gaged in the iron trade in St. Louis. · (6) That evidence was inadmissible to show what, in the opinion of mer. chants and business men in Glasgow, the contract means. (7) That the vendors could not recover unless they proved a tender of iron of the quality called for by the contract. (8) That the only persons who were competent to testify as experts concerning the quality of the iron were those who had givcn the subject of manufacand testing iron special attention, and had experience in the art, and haq examined the iron in question. (9) That evidence of the manner in which " No. 1 Shott's Scotch pig-iron" is examined and marked at the foundry, was inadmissible for the purpose of showing the quality of the iron tendered. (10) That in case the vendors showed a compliance on their part with the terms of the contract, and a refusal on the part of the vendee to accept the iron, the measure of damages would be the difference between the contract price, together with interest thereon from the date of the tender,and the price for which the iron was sold, less the ordinary and usual commission paid brokers for negotiating such sales.

MCCRARY, C. J., in ruling upon objections to portions of depositions oJered in evidence by the plaintiffs, said: I have considered the objections to certain portions of the depositions of 'Yitnesses sworn on ·behalf of plaintiffs, and my conclusions may be stated generally as follows v.9,no.2-5

9 F. 62 -

9 F1d 62

January 31, 1881.)