plaintiffs therein were entitled to recover the contract price. The jury found for the plaintiffs in that action, and the present plaintiff subsequently paid the judgment entered thereon.

It is now claimed that that adjudication is not a bar, because it does not appear upon which one of the three grounds mentioned the jury based their decision, and that unless it was based on the first ground the issue as to the alleged misfit was not determined.

Geo. M. Weaver, for applt. E. Nusbaum and L. E. Goodier, for respts.

Held, Untenable. The decision of the first action rested upon but one ground, namely, that the contract had been performed, or what is equivalent thereto, that it had been performed in part and that performance of the rest had been waived. There was either a fit or a misfit. If there was a fit the contract had been performed. If there was a misfit the defendant in the first suit waived the defect, either by accepting the clothes as they were, or by soiling them so that they could not be returned, which is simply evidence of acceptance. If he accepted the clothes as they were he thereby waived his right to object that they did not fit. If by his own act he soiled them and thus put it out of his power to return them in as good condition as when delivered he thereby waived his right to object that they did not fit. In either event he waived so much of the contract as had not been per

formed.

An acceptance under an execu· tory contract is ordinarily an admission that the quality is satisfactory and conforms to the contract. 53 N. Y., 515. But assuming that there was an express warranty that the clothes should fit and that appellant had a cause of action against the respondents for a breach thereof, notwithstanding the fact that he had accepted them, and it does not lead to a reversal of the judgment. In the first action he pleaded as a counterclaim that cause of action; he gave evidence tending to establish it and had an opportunity to exhaust the issue. The counterclaim was not withdrawn, but was a part of the issue that was decided. It is presumed to have been passed upon. If any error was committed by the court in its charge or by the jury in their decision the only remedy of defendant was to appeal. He had his day in court and as long as the judgment stands it is conclusive upon him. See 85 N. Y., 427; 94 id., 423; 46 id., 490; 12 id., 184.

Also held, That the offer of appellant to show by members of the jury in the first action the grounds of their verdict was properly excluded.

Judgment affirmed, with costs. Opinion by Vann, J.: Hardin, P. J., and Follett, J., concur.

ADMIRALTY. JURISDICTION.

N. Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT. Thomas M. Ryan, applt., v. John Hook, respt.

Decided Oct., 1884.

jurisdiction is not taken away by U. S. R.

S, $ 4251.

A sale of the boat in such proceedings will cut off a prior chattel mortgage.

Appeal from judgment in favor of defendant rendered on a trial by the court without a jury.

Action, of replevin to recover possession of a canal boat known as the "Wm. Roberts." Plaintiff claimed title to said boat by virtue of a sale in September, 1878, pursuant to a decree in admiralty of the United States District Court for the Eastern District of New York. The decree was rendered on a libel filed by the Eastern Transportation Line against said boat for towing her from Hoboken to Albany. Plaintiff took possession under his bill of sale and held it until October 5, 1878, when defendant took possession under a chattel mortgage given for the purchase money in 1875. The mortgage was duly foreclosed and defendant has acquired the rights of the purchaser on foreclosure. The court found that said canal boat was a quarter deck scow and was without masts or steam power, and found as matter of law that the sale under the order in admiralty did not cut off the mortgage and ordered the complaint dismissed.

Clinton C. Clark, for applt. Willard Rinkle, for respt. Held, Error. The main question presented is whether the admiralty court had jurisdiction to seize and sell the canal boat. It seems now to be settled that the admiralty and maritime jurisdiction of the

Vol. 20.-No. 9a.

to waters where the tide ebbs and

flows, but also to all navigable waters of the United States, even including a river lying wholly within the boundaries of a State, when by its connection with other waters it forms a continuous highway over which commerce may be carried on with other states or foreign countries. 109 U. S., 629; 11 Wall., 411; 20 id., 430; 10 id., 557; 8 id., 15; 7 id., 624; 12 How., U. S., 444; 20 id., 296; 22 id., 48. While the jurisdiction of the district courts over the waters traversed by the "Wm. Roberts" cannot well be disputed, a question is raised as to the jurisdiction of these courts over a canal boat.

The more recent cases hold and the weight of authority seems to be, that where the services were maritime in nature and were performed for the benefit of a canal boat without means of propulsion on board, but while it was engaged in navigating by means of towage the navigable waters of the United States, the admiralty court has jurisdiction. See 8 Ben., 150; 15 Blatchf., 183; 5 Ben., 60; id., 72; 5 Otto, 68; 1 Brown's Admr., 72; id., 334; Olcott, 71; 2 Fed. Rep., 86; id., 411.

The trial court held that § 4251, U. S. R. S., deprived the admiralty court of jurisdiction.

Held, Error. That section is in these words: "No canal boat without masts or steam power, which is required to be registered, licensed, or enrolled and licensed, shall be subject to be libelled in any of the United States courts

for the wages of any person who may be employed on board thereof or in navigating the same." It is a re-enactment of a statute passed July 20, 1846, entitled, "An Act to exempt canal boats from the payment of fees and hospital money." This statute exempted the masters or owners of canal boats from the payment of any marine hospital tax, and conversely took from the persons employed to navigate such boats the right of receiving any benefit from the marine hospital fund and the right to libel for wages. From the title, history and object of this statute it is clear that the expression "wages of any person" cannot mean the wages of any corporation, such as the libellant in the case under review appears to have been, because it obviously refers to the wages of the crew. 100 U. S., 508. Moreover, persons "employed on board" of a canal boat, such as the cook, or "in navigating the same," as the crew, including the driver, who is not on board, cannot include a corporation engaged in towing such boat. Navigating does not mean towing. Navigate means to steer, direct or manage a vessel, and implies that the act is done by those on board of the vessel itself. Tow means to drag a vessel forward in the water by means of a rope attached to another vessel, and implies that the act is done by those on board of the latter. The tug simply furnishes means of traction to the canal boat, which must be steered or navigated by those on board of her. See 5 Ben., 60; 69 N. Y., 470.

The word "wages,

as used in this statute, is presumed to have been used with its ordinary meaning of compensation to a hired person for his services. In works on maritime law it is defined to be the compensation allowed to seamen for their services on board a vessel during a voyage. Abb. on Shipping, 615; 3 Kent. Com., 185. Thus its popular meaning and its meaning in admiralty law are substantially the same. To hold that it means towage would give it a strained and peculiar definition. A doubtful construction should not prevail in order to deprive a court of jurisdiction previously granted to it. It is clear that the district courts had jurisdiction of such cases before the passage of the Act of 1846. Hence the intent of Congress to deprive them of that jurisdiction should be clear and explicit or they should be held to still possess it. The natural construction is that Congress intended to deprive persons em ployed on board of a canal boat, or engaged in navigating her, of the right previously enjoyed by them of libelling for seamen's wages, but not to deprive a steamtug of her right to libel for towage.

The J. S. Woodward, 6 Fed. Rep., 636, explained.

We think the district court had jurisdiction and that the sale in admiralty cut off the prior mortgage. 6 Wall., 18. The same effect is given to liens for towage and other services by a statute of this State.

Ch. 482, Laws of 1862. Plaintiff therefore was in rightful possession and defendant was a

Even if, through a mistake in the bill of sale, plaintiff was in possession only as equitable owner, his right to remain in possession was good as against defendant and as against all the world, unless it was the firm of which plaintiff was, but defendant was not a member nor in privity therewith. 10 N. Y., 570; 34 id., 253.

Judgment reversed and new trial granted, costs to abide event. Opinion by Vann, J.; Hardin, P. J., and Follett, J., concur.

LIFE INSURANCE.
PRACTICE.

N. Y. SUPREME COURT. GENERAL
TERM. FIFTH DEPARTMENT.

David H. King, plff., v. The U. S. Life Ins. Co., deft.

Decided Oct., 1884.

The acceptance by an insurance company of an application for insurance does not com

plete the contract so as to bind the applicant until he has an opportunity to examine the policy and has assented to its terms. Where a party moves for non-suit, or rests his defence on certain propositions of law, and his motion is denied or the law is decided

against him, and he does not ask to go to the jury, he waives his right to go to the jury and cannot on appeal urge that there were questions for the jury.

Motion for new trial on exceptions taken at Circuit, ordered heard at General Term in first in

stance.

On the solicitation of defend ant's agent plaintiff applied for insurance, at the same time delivering to the agent his promissory note payable to the order of the

payment of the first premium if the application should be approved and a policy issued and accepted. Next day the agent transferred the note to a bona fide purchaser for value. The company approved the application, and sent a policy to the agent to be delivered to the applicant. As to such delivery, plaintiff testified that the agent came to his house driving a horse, and stopped near the house, and took some papers from his pocket, and said, "I have got some papers for you to read;" that plaintiff took the papers and saw on the envelope the words, "Insurance Policy;" just then the agent's horse started up furiously, and plaintiff told the agent to hold on, that this was not as they had | talked; and he said to him, "This ain't as we talked; I shan't accept if this is a policy; I see I am trapped, and I want my note back;" but the agent's horse kept moving away until it got some two rods away, and then he said he would bring me the note. I asked him where it was, and he said it was at the hotel in his satchel. told him I would take the policy in and lay it on the shelf, but I shouldn't accept it, and he could have it when he called for it; the receipt was with it and I didn't see him again for a fortnight. Plaintiff kept the policy, he not seeing the agent again until some two weeks later, when they accidentally met in the highway, each being in pursuit of the other. Plaintiff then said, as he testified, "Gordon, you have not done as

I

you agreed by me; you agreed to bring that note; I want it; I want it immediately. I have not got the policy with me, but I will go home and bring it;" and the agent replied, "I forgot your note, but I have got it up there and I will bring it to you in a day or two." Plaintiff asked, "Can I depend upon it?" Gordon answered, "I will do it as sure as I live." Plaintiff further testified that next day he went to look for Gordon and could not find him. This action is to recover the amount of the note, the receipt of which was acknowledged by defendant. At the close of the evidence defendant moved for nonsuit, which was denied. Defendant then moved for the direction of a verdict in its favor, which was denied, and exception was taken to each refusal. Verdict was directed in plaintiff's favor.

Hegeman & Buell, for deft.
E. A. Nash, for plff.

Held, That the jury would have been justified in finding that the policy was not delivered and accepted in consummation of a contract for insurance. The application was no more than an inquiry by the applicant to learn upon what terms the company would insure his life. The applicant did not propose the terms of a complete contract requiring only the company's formal assent to constitute an agreement. Plaintiff was not bound to accept the policy, if the company should approve of the risk, until he had an opportunity to ascertain its terms and conditions,and assented to the same.

From the uncontradicted evidence it may well be held that the agent sought to force and impose upon plaintiff a policy against his consent. The company having received the avails of the note, it is bound to return the same to plaintiff, there having been no consideration.

Defendant waived the right to go to the jury. 82 N. Y., 443; 90 id., 649; 18 id., 558.

Judgment for plaintiff on ver

dict.

Opinion by Barker, J.; Smith, P. J., Haight and Bradley, JJ., concur.

DEEDS. PARTY-WALL. N.Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

William P. Merrill, respt., v. Edmund F. Clark et al., applts. Decided Oct., 1884.

A right to build into the wall of a building, for support, is an incumbrance within the meaning of a covenant against incumbrances.

Appeal from judgment entered upon decision of the court at Circuit.

The action was brought to recover damages for the breach of a covenant against incumbrances.

It appeared that one Goodrich had a right to build into the south wall of the brick store standing on the premises conveyed to plaintiff, and that the right extended during the existence of the wall. court found that this was an incumbrance on the premises within the meaning of the covenant, and

The