ception is a general one, to the refusal to charge the entire series of the 14 propositions; and it is well settled that such a general exception is bad, provided any one of the series is objectionable. Beaver v. Taylor, 93 U. S. 46; Worthington v. Mason, 101 U. S. 149; United States v. Hough, 103 U. S. 71. The first one of this series of propositions was clearly objectionable, namely, that, under all the testimony in the case, the verdict of the jury should be for the defendant.

As to the parts of the charge which may be considered as having been excepted to, namely, the parts included in brackets, the argument on behalf of the defendant is that, after the tug's shaft had been broken, so that she was unable to navigate herself as a tug, she became unseaworthy for all purposes; and that, if the plaintiff took the tug, while she was in that condition, past a port where he might have had her repaired, such conduct would prevent a recovery upon the policy if she were lost while she continued in such unseaworthy condition, even though the loss did not arise from the breaking of the shaft. But the circuit court took the view, in its charge, and, as we think, correctly, that, while the breaking of the shaft might have rendered the tug unseaworthy for the purpose of propelling herself and towing other vessels, yet it was competent for the plaintiff to prove, as he claimed to the jury the fact was, that the master stopped the leakage occurring around the broken shaft at the stern of the vessel, so far as would make her seaworthy to be towed, and undertook to have her towed to the port of Cleveland, which was her destination, where he could have her repaired by her owner. The court instructed the jury, in substance, that permitting the tug to be towed in such condition, past Port Huron and Detroit, and through the Detroit river, into Lake Erie, with the design to take her to Cleveland for repairs, would not of itself constitute such a breach of the policy as would deprive the plaintiff of his right to recover thereon; and that if the master of the tug, in the exercise of reasonable prudence and discretion, took that course, after he had so far controlled the coming in of water at the place where the break of the shaft had occurred, as to render the vessel reasonably safe to undergo, at that time of the year, the navigation proposed in the form proposed, it would be proper for the jury to consider, on all the evidence, whether such condition of the vessel was the cause of her ultimate loss, and, if so, whether, in taking her past a port where she might have been repaired, the master was guilty of incompetency, or of such lack of ordinary care in navigating the vessel, as brought the case within the exceptions contained in the policy, as above set forth.

The contention of the defendant is that, if the vessel became unseaworthy from any cause in the course of her voyage, and failed to put in at the first port where such unseaworthiness could be repaired, that unseaworthiness operated to release the insurer from liability, whether the loss resulted from such unseaworthiness or not. But we are of opinion that, by the terms of the policy, the vessel was insured against all perils of the lakes which should damage her, excepting perils and losses consequent upon and arising from, or caused by, the specified and excluded causes applicable to and arising out of the facts of this case, namely, incompetency of the master, or want of ordinary care and skill in navigating the vessel, rottenness, inherent defects, and all other unseaworthiness. The company is not released from liability by reason of the existence of any of the excluded conditions, but is released from such losses as are consequent upon and arise from or are caused by any of the specified, excluded causes. If, therefore, the vessel was subjected to a peril of the lake, and sustained loss which did not arise from, or was not caused by, some one of the excluded causes, the company was not released from liability. Therefore, it was contended by the plaintiff that, although the shaft of the tug had been broken, in Lake Huron, about 70 miles from Port Huron, yet, as the master had succeeded at the time in so stopping the leak around the shaft that he had it under such control that he was able to have the tug taken in tow, v.8s.c.-35

and, by moderate pumping, to keep her free from water, and as, after reaching Port Huron, and finding that the leak was under control, he continued his course to Detroit, and as he there found that the leak was still under control and proceeded to go across Lake Erie, with a design to reach Cleveland, where the vessel could be repaired by her owner, he acted with ordinary care. This question was submitted to the jury, under all the circumstances of the case, and upon the opinions of experts approving the course.

The question also arose whether, when the vessel began to fill with water upon Lake Erie, such filling with water was caused by the breaking of the shaft or by some other peril; and upon this point the testimony of the master, who made a particular examination at that time, was distinct, that the leak which had existed at the time the shaft was broken, and had been stopped by him, remained stopped at the time the water was found to be coming in. There was other testimony bearing upon the questions above stated, and which was fairly submitted to the jury, and upon which the verdict they gave was justified. The principle adopted by the circuit court in laying the case before the jury was the proper one. In the insurance of a vessel by a time policy, the warranty of seaworthiness is complied with if the vessel be seaworthy at the commencement of the risk, and the fact that she subsequently sustains damage, and is not properly refitted at an intermediate port, does not discharge the insurer from subsequent risk or loss, provided such loss be not the consequence of the omission. A defect of seaworthiness, arising after the commencement of the risk, and permitted to continue from bad faith or want of ordinary prudence or diligence on the part of the insured or his agents, discharges the insurer from liability for any loss which is the consequence of such bad faith, or want of prudence or diligence; but does not affect the contract of insurance as to any other risk or loss covered by the policy, and not caused or increased by such particular defect. Insurance Co. v. Ogden, 20 Wend. 287; Peters v. Insurance Co., 3 Serg. & R. 25; Paddock v. Insurance Co., 11 Pick. 227; Starbuck v. Insurance Co., 19 Pick. 198; Adderly v. Insurance Co., Taney, Dec. 126; Copeland v. Insurance Co., 2 Metc. 432; Capen v. Insurance Co., 12 Cush. 517; Insurance Co. v. Sweet, 6 Wis. 670; Hoxie v. Insurance Co., 7 Allen, 211; Rouse v. Insurance Co., 3 Wall. Jr. 367.

In view of all the facts in evidence, the court properly put the case on this subject to the jury in these words: "The Sprague having been temporarily repaired by calking the leakage occasioned by the breaking of her shaft, and taken in tow by the Wilcox, and in safety having reached Detroit, the question presents itself as to the duty of the master or plaintiff to have the proper repairs made there before starting on Lake Erie, for her home port on Lake Erie, and, failing to do so, how does it affect the plaintiff's right to recover on this policy? On this point I direct you, that if, when the Sprague arrived at Detroit, the breaking of the shaft, and the consequent leakage therefrom, was such that an ordinarily prudent and discreet master, of competent skill and judgment, would have deemed it necessary to repair the vessel, so as to stop the leak, before proceeding on the voyage to Cleveland, and you find that the sinking of the vessel and its loss was occasioned by his omission to do so, and would not otherwise have happened, then the plaintiff is not entitled to recover in this suit. But if you find, from the character of the injury and the leak, that a master of competent skill and judgment might reasonably have supposed, in the exercise of ordinary care for the safety of the vessel, that she was seaworthy for the voyage in which she was then engaged, in the manner that she was to make the trip to Cleveland in tow of the Wilcox, notwithstanding the leakage occasioned by such breaking of the shaft, and on that account omitted so make such repair at Detroit, then such omission to make such repair at Detroit is no bar to a recovery in this suit."

Special objection is made by the defendant to that portion of the charge

which says that "the want of ordinary care at the time of the loss in Lake Erie must be shown by a fair preponderance of the proof on behalf of the defendant, for the reason that the defendant sets it up in its special defense, in the form of a special answer, and in that respect takes upon itself the establishment of the affirmative of that proposition." The court had previously stated to the jury that, to entitle the plaintiff to recover, he must show that he had complied with the terms of the policy, and that "it must appear from the whole proof that the loss was not occasioned by the want of ordinary care of the master in charge of the vessel, or on account of being unseaworthy, as hereinafter stated, and not within the exceptions contained in the policy, against which the defendant did not insure the plaintiff." The defendant had undertaken, by expert testimony, to prove that the master did not exercise ordinary care, when he discovered the water gaining on his pumps in Lake Erie, because he did not require the tug which was towing him to take him back to the Detroit River, and it was in regard to this claim of the defendant that the court said what is thus specially objected to. We think the instruction was proper in reference to the subject to which it related. We do not consider it necessary to discuss particularly any of the other positions taken by the defendant. They have all of them been considered, we see no error in the record, and the judgment of the circuit court is affirmed.

DISTRICT OF COLUMBIA v. MCBLAIR et al.
(January 23, 1888.)

1. JUDICIAL SALES-RIGHTS OF PURCHASER-PURCHASE FROM-SUBROGATION TO PURCHASER'S RIGHTS.

Certain unimproved property devised for life, with remainder in fee, was sold by a court trustee for the benefit of the devisees under the provisions of 11 St. U. S. 118, which allows such sales, the proceeds to be held as realty according to the terms of the will. By the decree the proceeds were to be applied towards the improvement of certain improved property devised on the same conditions. The purchaser gave his promissory notes to the trustee for the purchase price. Thereafter the District of Columbia bought this property from the purchaser, taking a general warranty deed, and paying in bonds of the District of Columbia, taken at a discount, rendering their cash value less than the price fixed by the judicial sale. This was done without the consent of the trustee. Held, that although the money re ceived by the purchaser at the judicial sale should have been given to the trustee, to be applied by him in improvements, according to the decree, yet for so much of the money as was actually expended by such purchaser in making the improvements the District of Columbia was an equitable assignee of the purchaser's rights, and entitled in equity to a deed from the trustee upon payment of the difference between the purchase price fixed by the judicial sale and the cash value of the bonds. 2. APPEAL WHEN LIES-FINAL DECREE.

Exceptions were filed by a petitioner to the auditor's report, and sustained by the court, August 7, 1875. From this decree of the court at special term an appeal was taken by respondent to the general term, and on March 4, 1876, the decree of the special term was reversed, and the cause remanded to the special term to be further proceeded with as the parties might be advised. Held that, as the decree of 1876 did not direct a dismissal of the petition, it was not a final adjudication upon the right of petitioner to some relief in accordance with the prayer of the petition.

Appeal from the Supreme Court of the District of Columbia.

An act of congress to authorize the circuit court of the District of Columbia to decree the sale of real estate in certain cases, approved August 18, 1856, (11 St. U. S. 118,) provides "that in all cases in which real estate within the District of Columbia shall have been limited heretofore, or shall be limited hereafter, by the provisions of any deed or will, to one or more, for life or lives, with a contingent limitation over to such issue of one or more of the tenants for life as shall be living at the death of their parent or parents, and the said deed or will containing the limitation shall not prohibit a sale, the circuit court for the District of Columbia, upon the application of the tenants for life, shall have power to decree a sale of such real estate, if, upon the proofs, it

shall be of opinion that it is expedient to do so, and to decree to the purchaser an absolute and complete title in fee simple." Section 2 enacts "that application for the sale of such real estate shall be by bill in equity, verified by the oath or oaths of the party or parties, in which all the facts shall be distinctly set forth, upon the existence of which it is claimed to be expedient that such sale should be decreed; which facts shall be proved by competent testimony. Such of the issue contemplated by the limitation as shall be in existence at the time of the application for the sale of such real estate shall be made parties defendant to the bill, and, if minors, by guardian ad litem, together with all who would take the estate in case the limitation over should never vest. Such of the parties defendant as shall be of the age of fourteen years or more shall answer in proper person, on oath, and all evidence shall be taken upon notice to the parties and to the guardian ad litem." Section 3 requires "that the proceeds of the sale of such real estate shall be held under the control and subject to the order of the court, and shall be vested under its order and supervision, upon real and personal security, or in government securities, and the same shall, to all intents and purposes, be deemed real estate, and stand in the place of the real estate from the sale of which such proceeds have arisen, and, as such real estate, be subject to the limitations of the deed or will."

To obtain the benefit of this act, on July 30, 1868, Augusta McBlair, wife of J. H. McBlair, and Julia Ten Eyck, wife of John C. Ten Eyck, filed a bill in equity in the supreme court of the District of Columbia, in which it was alleged that John Gadsby, the father of the complainants, died in the District of Columbia in the year 1844, leaving a last will and testament whereby he devised to trustees, and the survivors of them, certain real estate in the city of Washington, known as lots Nos. 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19, in square No. 78, in trust, after the expiration of 12 months from his death, to permit his daughters to receive the rents, issues, and profits thereof, for their sole and separate use and enjoyment, in equal moieties for life, respectively, so that neither said property nor the income thereof should be subject to the control or disposition of the respective husbands of his said daughters, or responsible for their debts; and, in case either of his said daughters should die leaving no issue living at her death, that the interest or estate of her so dying without issue should become forthwith vested in the survivor, in the same manner as her own moiety was before held and enjoyed; and, in case both or either of said daughters should die leaving issue living at the time of her death, then the said trustees should hold the property to the use of said issue, one moiety to the issue of each of his said daughters; and, in case one only of them should die leaving such issue, then, after the death of the other daughter, the whole of said estate should vest in said issue in fee-simple. The contingency of the death of both of his said daughters without issue was not provided for in the will, thereby leaving a contingent reversion in his right heirs. It was also alleged in the bill that the complainant Augusta McBlair had children, viz., John G. McBlair, Virginia Smith, wife of Smith, J. H. McBlair, Jr., Julia I. McBlair, C. Ridgley McBlair, and S. Jackson McBlair, of whom said last two were minors under 21 years of age; and that said complainant Julia Ten Eyck also had children, viz., Augusta Ten Eyck, Julia Ten Eyck, Jane Ten Eyck, May Ten Eyck, and John C. Ten Eyck, of whom the last three were minors under 21 years of age; that, besides the complainants, John Gadsby left as his heirs at law his son William Gadsby, and his other daughters, Ann Sophia Newton and Margaret S. Chapman, and of these Ann Sophia Newton had died before the filing of the bill, leaving as her heirs at law Albert Newton, Maria McCormick, and Margaret Wallach, wife of W. Douglas Wallach; and that William Gadsby had died leaving as his heirs at law William Gadsby, Sallie Gadsby, Eakin Gadsby, and Mary Gadsby, the last of whom was a minor under 21 years of age. It was also alleged that of the trustees named in the will the survivor, Alexander McIn

tyre, had also died before the filing of the bill, leaving heirs at law, who are therein named as defendants.

It was also alleged in the bill that, of the lots of ground enumerated, those numbered 8, 9 and 10 front upon North I street, in the city of Washington, and are improved by a substantial row of dwellings, six in number, and all the others are vacant and unimproved, except where partially occupied by outbuildings; that said dwelling-houses are of considerable value, and, if properly improved and modernized, would yield a good income and revenue, which would inure to the benefit of all parties interested, but that at present they are much out of repair, old-fashioned, and unprovided with modern conveniences; that the vacant lots in the rear front upon K street north, and at present yield no income, but would sell, and it would be greatly to the advantage of all parties to make sale of said lots, and apply the proceeds to the improvement of said dwelling-houses; that the complainants have not the means to make such improvements, the income now accruing to them from their father's estate being wholly inadequate to their support; that, as an additional reason for such sale, it is alleged that said vacant lots are burdensome to the complainants by reason of the heavy municipal taxes to which they are subject, so that their retention defeats the primary object of said testator, which was not to burden the complainants as devisees, but to provide them an ample revenue for their comfortable support. The prayer of the bill is that the parties named therein be made defendants, and that, pursuant to the act of congress of August 18, 1856, a decree be granted for a sale of said vacant lots for the object aforesaid, and for general relief.

On this bill such proceedings were thereafter had that a decree pro confesso was entered against the non-resident defendants, served by publication, and the resident defendants served with process, who had made default, and the cause was set for hearing as against such defendants as had answered; and thereupon it was ordered that the cause be referred to a special auditor, "to inquire and report whether it will be expedient, and for the benefit of all parties interested, that the property described in the proceedings be sold, and that the prayer of the bill as to the application of the proceeds should be granted." On May 8, 1869, the auditor filed his report in writing that the disposition of the property in the manner sought by the bill would be for the interest and advantage of all parties concerned, and recommending that the prayer of the bill be granted. On May 10, 1869, a decree was entered directing a sale of the property by Walter S. Cox, as trustee appointed for that purpose, who was directed thereby "to make sale of said property at public auction or at private sale, as he may find most expedient, and, if at public auction, after giving at least three weeks' previous notice by advertisement in some convenient newspaper of the time, place, and terms of sale, which terms shall be, one-third of the purchase money to be paid in cash, and the residue in two equal installments at six and twelve months after date, with interest, to be secured by approved notes and a lien reserved; and on the ratification of such sale, and full payment of the purchase money, he shall convey the property sold to the purchaser, with all the title of the parties to this cause; and, as soon as convenient after any such sale, he shall make report of the same, and of the fairness thereof, to this court, under oath, and shall bring into court the proceeds of sale, to abide the court's future order in the premises."

On June 13, 1872, Walter S. Cox, the trustee, reported that he had made sale "of the lots of ground described in the bill, being lots 14, 15, 16, 17, 18, 19, 20, and 21, and the north twenty-three feet five inches of lot 13, in square No, 78, to J. H. McBlair, for the sum of twenty-four thousand five hundred and twenty-one 50-100 dollars; for which sum the said McBlair has passed to the undersigned his two promissory notes, each for twelve thousand two hundred and sixty 75-100 dollars, payable, respectively, in three and six months after date, with interest." A rule to show cause why this sale should not be