which was unknown to the pilot, that drove the craft to the leeward, and not the wind, as alleged in the answer, and the libelants allege that the pilot, if he had had proper knowledge of the navigation, might have prevented that move ment of the craft by the exercise of due skill in steering.

1. Applied exclusively to the number of the steamer's company, the complaint contained in the first assignment of errors would not be well founded, as the crew was sufficient in number, and the proofs show that the steamer had on board two pilots and two master mariners; but the gravamen of the complaint is that neither the master in charge of the deck nor the pilot had any sufficient knowledge of the craft under their command, nor of the dangers of the navigation in passing down the river in such a steamer with three such barges in tow arranged in the manner before described.

Proof of the most satisfactory character is exhibited, that they did not even know the width of the craft, as the same was arranged, nor the actual distance between the piers where the disaster occurred. On the contrary it appears that they both overestimated the width of the space between the piers, and underestimated the width of the tow, including the steamer, as they were arranged abreast, the distance between the two first named piers not exceeding one hun dred and sixteen feet and the width of the whole craft being at least one hundred and five feet. Nor does the fact that the pier on the starboard side was so far under water that the craft might have passed over it, palliate the rashness of the act, as the evidence shows that both the master and the pilot were ignorant of that fact, and that as they approached the place of danger they put the steamer upon a course to cause the whole craft to pass midway between those two piers, which brought the port side of the barge containing the wheat within five and a half or six feet of the pier on that side which was not submerged in the water.

2. Attempt is made to excuse the master and pilot for endeavoring to pass midway between those piers, upon the ground that they did not know that it would be safe to pass over the pier on the starboard side, but the sufficiency of that excuse cannot be admitted, for two reasons: (1) Because they ought to have known both the dangers and the facilities of navigation before undertaking the responsible duties in which they were engaged. (2) Because it was their duty, if they believed that the pass in question was restricted to the distance between the two piers, to have taken the other pass, which the evidence shows has the width of one hundred and fifty-one feet.

Opposed to that is the suggestion that the wider passage was obstructed by a sunken barge, but the evidence satisfies the court that the alleged obstruction did not exist at that time, and that the disaster that caused that barge to sink occurred at a later period.

3. Unobstructed as the wider passage was, it was plainly a rash act to attempt to pass down the narrower passage on a course which brought the port side of the barge containing the wheat within five and a half or six feet of the pier on that side; which act can only be accounted for upon the ground of negligence and inexcusable ignorance of the dangers and facilities of the

navigation, as it was evidently a hazardous experiment to attempt to pass between those piers if the craft could not pass over the pier on the star board side, and it is equally clear that it would have been safe to have steered between the piers forming the wider passage, which it seems never occurred to the master or pilot.

4. Even if such an attempt could be justified at all on a windy day when the water was high, it is quite clear that neither skill nor good judg ment was exercised in setting the course of the craft before passing between the piers. Beyond all doubt some allowance, though the margin was small, should have been made for the leeway of the craft, as the evidence is convincing that the course of the current at high water tends somewhat to force the craft towards the pier on the port side. Besides they had met with some difficulty previously during the trip that day, at the bridge higher up the river and, therefore, were forewarned that a like difficulty might again occur.

Ignorance of the danger before them is no sufficient excuse, as the owner appoints the master and is bound to select one of competent skill and knowledge, to transport goods and merchandise shipped on board in safety, which necessarily imposes the obligation to employ a master mariner who knows enough about the route to avoid the known obstructions and to choose the most feasible track for his route. Knowledge of the kind, in river navigation, is peculiarly essential, as the current frequently shifts from one side towards the other, and the track of navigation is often obstructed by snags, sand bars and shoals, which no degree of skill would enable the mariner or pilot to avoid without a prior knowledge of their existence.

Cross currents between the piers of bridges which span the river somewhat diagonally are not infrequent, and as they are not always fully appreciable to the casual observer, it is impor tant that master mariners should know of their existence and something of their force, in order that they may be able to steer their steamer or other vessel properly through such a passage. Neither the master nor pilot, in this case, knew that there was any such cross current between these piers and, consequently, took no precaution to guard against its influence.

Carriers of merchandise by water, seeking general employment, are to be regarded as common carriers and, like common carriers by land, in the absence of any legislative provision prescribing a different rule, are in general to be held responsible as insurers; and, consequently, are liable in all events and for every loss or damage to the merchandise, unless it happened by the act of God, the public enemy, or by the act of the shipper, or by some other cause or accident, without any fault or negligence on their part, as expressly excepted in the bill of lading or contract of shipment.

Standard authorities show that the first duty of the carrier, and one that is implied by law. is to provide a seaworthy vessel, well furnished with proper motive power, and furniture necessary for the voyage. Necessary equipment is as requisite as that the hull of the vessel should be stanch and strong; and she must also be provided with a crew adequate in number and com petent for their duty with reference to all the exigencies of the intended route, and with a

competent and skillful master, of sound judgment and discretion, and with sufficient knowledge of the route and experience in navigation to be able to perform in a proper manner all the ordinary duties required of him as master of the vessel.

Owners of vessels employed as such carriers must see to it that the master is qualified for his situation, as they are responsible for his want of skill and knowledge in that behalf, and for his negligence and bad seamanship. In the absence of any special agreement to the contrary or exception in the bill of lading or contract of shipment, his duty extends to all that relates to the loading as well as the safe keeping, due transportation and right delivery of the goods, and for the faithful performance of all those duties the ship is liable as well as the master and owners. Abb. Ship., 344; Laveroni v. Drury, 8 Exch., 166; Clark v. Barnwell, 12 How., 272; The Niagara v. Cordes, 21 How., 27 [62 U. S., XVI., 47]; King v. Shep herd. 3 Story, 349; 3 Kent, Com., 213; 1 Sm. L. Cas., 7th ed., 387; 1 Sm. Merc. L., 386.

5. Differences of opinion may arise as to the merits of the fourth assignment of errors and, inasmuch as enough is alleged in those which precede and follow it to show that the decree of the circuit court must be reversed, the court here does not find it necessary to determine the question whether the speed of the steamer, in view of the conflicting testimony upon the sub ject, was or was not greater than the exigencies of the impending peril would justify.

6. Nor is it necessary to express any decided opinion whether the fifth assignment of error is or is not supported by the evidence exhibited in the case, but it is deemed proper to say that there is much reason to conclude that it was the course of the current that forced the craft to the leeward, and not the gust of wind, as was supposed by those in charge of the deck of the steamer at the time the barge was sunk.

encountered in such an attempt. Neither the state of the water nor of the wind was such as to furnish any just excuse for the master or pilot, as they might have chosen the other passage or have taken proper and seasonable measures to leave back one of the barges for the next trip.

Ship-owners are responsible for such a disas ter if it results from the ignorance, unskillfulness or negligence of the master or those in charge of the vessel. Where the master, being ignorant of the coast, sailed past the port to which he was destined and ran into another port in the possession of the enemy and was captured, the Court of King's Bench unanimously decided that the implied warranty to provide a master of competent skill was broken by sending out one who was unable to distinguish between the two ports. Tait v. Levi, 14 East, 482.

Ignorance and unskillfulness being proved, the attempt to set up inevitable accident is vain, as such a defense can never be sustained even in a collision case, unless it appears that neither party is in fault. Loss or damage occasioned by such a disaster, where it appears that those in charge of the deck were incompetent to perform the required duty, either from inexperience or want of knowledge of the route, or from negligence or inattention, cannot be regarded as being the result of natural causes, nor as falling within the exception contained in the bill of lading or contract of shipment.

Different definitions are given, of what is called inevitable accident, on account of the different circumstances attending the disaster, but there is no decided case which will support such a defense where it appears that the disaster was occasioned by the incompetency, unskillfulness or negligence of the master or pilot in charge of the deck. The Morning Light, 2 Wall., 560 [69 U. S., XVII., 864]; Union Steamship Co. v. N. Y. & Va. Steamship Co., 24 How., 313 [65 U. S., XVI., 701].

Service was not made in this case upon the barge, and of course the decree must be founded upon the fault of the steamer and those who were responsible for the unskillfulness and bad judgment exercised in her navigation.

Decree reversed with costs and the cause re manded, with directions to enter a decree for the libelants, and for further proceedings in conformity to the opinion of the court.

Cited 96 U. S., 463; 97 U. S., 328; 103 U. S., 543.

APPLETON, Appts.,

v.

ADDIE D. ADAMS.

(See S. C., 21 Wall., 185-196.)

of-delivery of deed.

1. Where defendant in his answer admits that he

NOTE.-Recording a deed does not constitute a delivery of it; when evidence of a delivery. See note to Parmelee v. Simpson, 72 U. S., XVIlI., 542.

2. The refusal of the trustee to accept the deed sometime after, or to act as trustee, is not a controlling circumstance. Although he may never have heard of the deed, the title vests in him, subject to a disclaimer on his part. Such disclaimer will not, however, defeat the conveyance as a transfer of the equitable interest to a third person. by the refusal of all the trustees to accept the trust. The court of chancery will appoint new trustees. 4. Where, in addition to the facts already stated, defendant kept the deed in his possession, and declared openly and repeatedly to his wife and to her brothers and sisters, that it was a complete provision for her and that she was perfectly protected by it, as matter of law, the deed was sufficiently delivered, and it is the duty of the court to establish

3. A trust cannot fail for want of a trustee, nor

the trust.

The bill in this case was filed in the court below by the appellee, to enforce an alleged trust in certain real property. On August 13, 1861, she joined with the defendant Adams, then her husband, in a deed to Appleton, in trust for the sole and separate use of Adaline Adams, wife of Joseph H. Adams, Jr., for and during her natural life, with power on her part to appoint the inheritance through the said trustee, and in default of the exercise of such power, with remainder over in fee to the children of Mr. and Mrs. Adams, living at her death, or if none, then in trust to Mr. Adams himself in fee. The deed was duly executed and was recorded by Mr. Adams, and kept by him for some years where Mrs. Adams had access to it. Appleton, the trustee named in the deed, never received it or knew of its existence until nine years after, when he refused to accept the trust.

In 1870 Mrs. Adams obtained a divorce. Mr. Adams thereafter continued in the possession of the premises and denied her title. A decree having been entered in favor of the complainant, the respondents took an appeal to this

court.

The case is further stated by the court. Messrs. T. J. D. Fuller, A. G. Riddle and Edward Lander, for appellants: No legal estate passed to Appleton. 1. Because there was no delivery of the deed. Shep. Touch., sec. 7; Moore, 300; Wheel wright v. Wheelwright, 2 Mass., 447, and cases there cited; Fay v. Richardson, 7 Pick, 91; Fair banks v. Metcalf, 8 Mass., 239; Carr v. Hoxie, 5 Mas., 60; Barns v. Hatch, 3 N. H., 304.

Registry is not delivery.

Maynard v. Maynard, 10 Mass., 458, a very strong case; Harrison v. Trustees of Phillips Acad., 12 Mass., 461; Powers v. Russell, 13 Pick., 75.

2. Because there was no acceptance by the grantee. The title does not pass unless there is an acceptance.

Jackson v. Phipps, 12 Johns., 418; Carr v. Hoxie (supra); Harrison v. Trustees of Phillips Acad. (supra).

A court of equity will not enforce a voluntary gift or conveyance, made without consideration, as against the grantor in his lifetime, at the instance of the donee or grantee.

Bunn v. Winthrop, 1 Johns. Ch., 329: Ellison See 21 WALL. U. S., BOOK 22.

v. Ellison, 6 Ves., 656; Antrobus v. Smith, 12 Ves., 39; Edwards v. Jones, 1 Myl. & C., 226.

The cases of Sloane v. Cadogan, Sugd. Vend., 816; Fortesque v. Barnett, 3 Myl. & K., 36; Kekewich v. Manning (1 DeG., McN. & G., 176), which are cited in Hill on Trustees, as overruling Edward v. Jones, 1 Myl. & C., 226, only overrule it so far as this: they decide that where the owner of an equitable interest does all in his power to assign that interest, such a transfer will be enforced by equity without regard to the legal title, and even, perhaps, without notice to the holder of the legal estate. But they exclude the doctrine that equity will interfere where there is no valuable consideration, to complete what the grantor has purposely left incomplete.

The grantor must do all in his power to carry out his intention that the nature of his estate will admit.

Milroy v. Lord, 8 Jur. (N. S.), 806; Antrobus v. Smith (supra); a strong case in point is Holloway v. Headdington, 8 Sim., 324; Meek v. Kettlewell, 1 Hare, 474, 475; (S. C.), 1 Phill., 342; Beech v. Keep, 23 Law Jour. Ch., 539. Messrs. Wm. W. Boyce and John Selden, for appellee:

There was such delivery of the instrument as rendered the conveyance complete.

1. It was thought in 1832 that, as between grantor and grantee, "proof of sealing and delivery would alone be required, and the acknowledgment of the fact by the party would be sufficient proof of it.

Lessee of Sicard v. Davis, 6 Pet., 136 It is at least cogent evidence of delivery. 2 Phil. Ev., pp. 555, 556, 1 Saund., Pl. and Ev. 423.

2. 'A deed lodged with the clerk of the court or register for the use of the grantee, is clearly a good delivery, if the grantee afterwards assent.'

2 Rob. Pl., 10; Cloud v. Calhoun, 10 Rich. Eq., 362; see, Parmelee v. Simpson, 5 Wall., 81 (72 U. S., XVIII., 542).

Whether the law requires registration or not. 1 Saund. Pl. and Ev., 443, Am. ed., 1837; Stewart v. Redditt, 3 Md., 79.

Registration is prima facie evidence of delivery.

The Lady Superior v. McNamara, 3 Barb. Ch, 378: Rathbun v. Rathbun, 6 Barb., 98; Tate v. Tate, 1 Dev. & B. Eq., 26; Boody v. Davis, 20 N. H., 140; Hedge v. Drew, 12 Pick., 141; Cooper v. Jackson. 4 Wis., 537; Carver v. Jackson, 4 Pet., 82; Tompkins v. Wheeler, 16 Pet, 106: Younge v. Guilbeau, 3 Wall., 636 (70 U. S.. XVIII., 262).

3. No particular form of delivery is required. 2 Stark. Ev., sec. 271; 2 Rob. Pr., 9. It may be by words only.

4 Com. Dig., tit. Fait, A, 3; 2 Tho. Co. Litt., 235.

Acts evincing an intention to deliver are sufficient.

Goodrich v. Walker, 1 Johns. Cas., 250; 2 Phil. Ev., 551, Am. ed. 1868; Shelton's case, Cro. Eliz., 7; Chamberlaine v. Starruter's case, 1 Leon., 140.

4. The presumption of an intention to deliver is confirmed by declarations of the grantor subsequent to the conveyance.

Tipton v. Ross, 10 Ohio, 273.

The receipt of the rents and profits by the husband and his retention of the deed were consistent with the title of the appellee, in view of the relations existing between the parties.

The first occurred in Souverbye v. Arden, 1 Johns. Ch., 240, and the second, even when occurring beyond the marital connection, never invalidates the deed nor invokes the trust.

Clavering v. Clavering, 2 Vern., 473, (S. C.) in Ho. Ld., 7 Bro. P. C. 410; Barlow v. Hene age, Prec. in Ch., 211; Naldred v. Gilham, 1 P. Wms., 577; Sear v. Ashwell, 3 Swanst., 411 (note); Worrall v. Jacob, 3 Mer., 256, 271; Exton v. Scott, 6 Sim., 31; (9 Const. Eng. Ch., 155); Jones v. Jones, 6 Conn., 111; Souverbye v. Arden, 1 Johns. Ch., 240; Bunn v. Winthrop, 1 Johns. Ch., 329; Grugeon v. Gerrard, 4 You. & Col., 131: Dillon v. Coppin, 4 My. & Cr., 660; Paul v. Palmer, 13 Law J., 67; MacNaghton's Sel. Cas. Eq., secs. 207, 211, pp. 177, 180; 2 Rob. Pr., 10; see, Hall v. Hall, L. R., 8 Ch. App., 430.

A trust never fails for want of a trustee. "He may refuse to execute the trust, but in that case a court of chancery will execute it for him; and the assent of the cestui que trust may be given at any time after the deed is made, and will always be presumed in the absence of proof to the contrary."

Field v. Arrowsmith, 3 Humph. (Tenn.), 442; McLean v. Nelson, 1 Jones (Law), 396; Dawson v. Dawson, 1 Rice, Eq., 258; 1 Crui. Dig., tit. 12, ch. 4. sec. 59, p. 539; Read v. Robinson, 6 Watts & S., 329; Furman v. Fisher, 4 Cold., 631; Braswell v. Downs, 11 Fla., 62; see, Saunders v. Harris, 1 Head (Tenn.), 206.

This rule applies to the trustee, even when it may be justly presumed that he never heard of the deed.

Cloud v. Calhoun, 10 Rich. Eq. (S. C.), 358. Confiding in the validity of the settlement and the faith of her husband, the appellee first parted with her contingent dower interest in the property and afterwards, upon the advice of counsel, waived even her right to alimony in the Massachusetts court.

Under such circumstances appellant, Adams, is estopped from denying the efficacy of a set tlement.

Story, Eq. Jur., sec. 385; Carr v. Wallace, 7 Watts, 400; Bank of U. S. v. Lee, 13 Pet., 107; Swain v. Seamens, 9 Wall., 254 (76 U. S., XIX., 554).

Mr. Justice Hunt delivered the opinion of the court:

The first question in this case is, whether there was a delivery of the deed of August 13, 1861. If not a formal ceremonious delivery, was there a transaction which, between such parties and for such purposes as exist in the present case, the law deems to be sufficient to create a title? The plaintiff files her bill to establish the deed in question as a settlement made upon her by her husband, to compel its delivery to her, to remove the trustee named in it, and to have some suitable person appointed trustee in his place.

band; that the debt had been paid, but the formal title remained in Stone. The bill further alleges:

That on the 13th of August, 1861, a certain indenture was made and entered into by and between the said defendant Adams and the plaintiff, his then wife, of the first part, and said William J. Stone, as trustee aforesaid, of the second part, and the said defendant Appleton, the party of the third part, whereby the said lot of ground, with the buildings thereon, and the privileges and appurtenances thereto belonging, was conveyed to the said defendant Appleton in fee, but in trust, nevertheless, for the sole and separate use of the plaintiff during the term of her natural life, and to suffer and permit her during such term to use, possess and enjoy the said premises, and to rent out the same from time to time and to receive the rents and profits thereof to her own use, in the same manner as she might or could have done as a feme sole, with full power to the said defendant Appleton as trustee aforesaid, at and upon the request of the plaintiff, to sell and convey said premises in fee simple and pay over the proceeds of such sale to the plaintiff, or to such person as she might direct or appoint, all of which will more fully appear by reference to a copy of said indenture (the original whereof is duly recorded in liber J. A. S. No., 213, at folio 352 et seq., the same being one of the land records for the county and district aforesaid) herewith filed, marked exhibit A, D, A, No. 1, and prayed to be taken as part of their bill; and that the said original indenture, after being duly signed, sealed, acknowledged and delivered by the parties thereto, was so recorded at the exclusive expense and express instance and request of the said defendant Adams, who afterwards, as the friend of the plaintiff and the agent of the said defendant Appleton, obtained possession of the said original indenture, which is still in his custody or under his control."

It is further alleged that the relation of the parties as husband and wife has been dissolved by the decree of a competent court of the State of Massachusetts, and that the plaintiff, relying upon the provisions of the deed referred to, neither sought nor obtained alimony in that suit.

That she has accepted and still accepts the benefits of the trust; that Appleton declines to act as trustee, to allow the use of his name, or in any way to aid her in the matter; that her husband, the defendant, is in possession, receiving the rents and profits, and declines to acknowledge her rights in the premises.

In his answer the defendant, Adams, admits the making of the deed, but denies that it was ever delivered to Appleton or to any person in his behalf or to his use. He further says that he never, at any time, intended to deliver the deed so as to render it valid and effectual in law, but designedly retained the deed in his own possession, without any delivery whatever. In a later paragraph he avers that the deed was not delivered to his then wife, nor did he intend to make it a settlement upon her, and he denies the existence of the trust alleged.