to demonstrate that the collision was not the necessary result of the attempt of the steam-ship to go into this side of the channel. She had the right to use the channel, observing the rule of the road. The Java, 14 Wall. 198. That there was risk of collision goes without saying. A heavy gale, a narrow channel, a large schooner in tow of a propeller tug, tossing and pitching in shallow water on the bar, a long tow-line, the sea breaking over the steam-ship, the fact of the collision itself, (The Carroll, 8 Wall. 302,) all of these show that the risk of collision was imminent. Section 4233 of the Revised Statutes prescribes, as rules of the road, sailing regulations for preventing collisions, and makes them imperative. These rules apply, notwithstanding the existence of the gale. The David Dows, 16 Fed. Rep. 154. The twenty-first rule is in these words: "Every steam-vessel, when approaching another vessel so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse." In the present case, in approaching a tug incumbered with a tow, extra precaution and care were necessary. The Alleghany, 9 Wall. 522; Mars. Coll. 378. Let us examine the facts immediately connected with the collision. The steam-ship, entering the channel when she got abreast of the wreck buoy, put her helm hard aport, and moved slowly. She was then nearly opposite the tug; her head was pointed south, a little west, says her master, a little east says the master of the schooner. She was steering on a line passing through the mizzen rigging of the schooner. The latter was off her port bow, nearly if not due south of her. The head of the schooner was pointed north north-east. Had she been moving in that direction, and had nothing happened, probably the steam-ship would have avoided her, and have passed under her stern. But she was not moving north north-east. She was sagging north, and was thus approaching the steam-ship at the rate of three miles an hour. The steamer went at four miles an hour. When they were within 150 feet of each other they suddenly and unexpectedly came together nearly bows on. There is much conflict of opinion in the testimony as to the cause of this. The master, pilot, mate, and helmsman of the schooner swear that she did not sheer, but kept her course. The master and the mate of the steam-ship, and Mr. Lesesne, at the wheel, swear that she did sheer to port. The tug-master and the pilot, passenger on the tug, did not see the schooner sheer. There is room for an honest mistake on this point. Persons on a moving body or on a stationary body near a moving body, especially at sea, cannot distinguish their own motion from that of the other body. The schooner was towed by a propeller with a long tow-line. The sea was very high. The tug pitched a great deal. Every time she pitched her propeller got out of water and her speed was checked. The gale was in her teeth. As her speed was checked the tow line would slacken. It passed over the starboard bow of the schooner. The gale was on that bow. All vessels in tow everywhere are apt to sheer. The conditions existing necessitated the sheer, and the sheer to port. On theory, it is most probable that the schooner did sheer. But this does not solve the question. This sheer was to be expected, and should have been guarded against. It was occasioned by natural causes, existing at the time, and patent. It was one of the reasons for adopting the precautions required by law,-one of the things which "mad the approach involve risk of collision." The Franz Sigel, 14 Blatchf. 480; Fretz v. Bull, 12 How. 466. Now, when the steam-ship was abreast of the wreck buoy, opposite the tug, and with the schooner's mizzen in the line of her course, nearly south, she was at the right angle of a triangle, the tug being at one angle, and the tow at the other, the hypothenuse of which was the length of the tow-line and the distance on the schooner to her mizzen, say 300+100-400 feet. As the steamship was on the perpendicular line, she was distant from the schooner less than 400 feet, and the combined motion of schooner and steam-ship was seven miles an hour; that is to say, she was less than half a minute from the schooner. Her helm was hard aport. She moved slowly, but she did not reverse or stop, rather attempt to stop, until she was within 150 feet,―too late to avoid her; certainly too late to avoid the effect of the sheer. The America, 92 U. S. 432. The rule required her not only to slacken speed, but to stop and reverse. This being so, the omission to adopt some of the precautions presented by the rule being shown, the burden of proof is shifted to the steam-ship; and, unless she proves circumstances rebutting the presumption, she will be held in fault without proof of any specific act of negligence on her part. Mars. Coll. 31; quoting The Carroll, 8 Wall. 302; The Scotia, 14 Wall. 170; New York U. S. Mail Co. v. Rumball, 21 How. 372. Every one on the steam-ship was at his post, vigilant, observing, alive to the emergency. Whether the apparent course of the schooner, N. N. E., but really north, deceived them, or whether other reasons prevented them from observing the letter of rule 21, the testimony does not disclose. Failing to explain this fact, to show circumstances rebutting the presumption, she cannot be said to be without fault. We have next to examine into the conduct of the tug and her tow. What was their relative duty to the steam-ship? In New York & Baltimore Transp. Co. v. Philadelphia & S. Nav. Co., 22 How. 472, it was contended that a tug with a tow was to be treated in the same way as a sailing vessel by an approaching steamer, and that the steamer must keep out of her way. Mr. Justice CLIFFORD repudiates this proposition: "No authority was cited in support of the proposition, and we are not aware of any decided case that favors this view of the law." In The Alleghany, 9 Wall., quoted above, the fact that a tug was incumbered with a tow was deemed proper cause for great care on the part of the steamer approaching them. In The Civilta, 103 U. S. 701, the court says: "The ship and the tug were in law one vessel, and that a vessel under steam.." In The L. P. Dayton, 120 U. S. 350, 7 Sup. Ct. Rep. 568, the court says: "As against the Bowen," the colliding steamer, "the movement and navigation of the tow was under the control and management of the Dayton," her tug, "and in a suit against the Bowen the latter can have no other or greater rights, and no other or better standing in court, than would the Dayton have had in case the collision had been directly with her; because the tow in such a suit is identified with its own tug, so far, at least, that she cannot escape the consequences, if the collision was caused wholly or in part by the fault of the tug," quoting The Civilta, supra; Sturgis v. Boyer, 24 How. 110; The J. H. Gautier, 5 Ben. 469; The Cleadon, Lush, 158. The circuit and district decisions are on the same line. The U. S. Grant, 7 Ben. 195, and The Favorite, 9 Fed. Rep. 709, in a collision between sailing vessel and tug and tow, held the latter responsible as a steamer. In The Clifton, 14 Fed. Rep. 586, and in The Pennsylvania, 3 Ben. 215, the collisions were between steamers and tugs with tow. The latter were held to the obligations of a steamer. So, also, in The Mary Shaw, 6 Fed. Rep. 918, a case decided by Judge MORRIS in this circuit, and strikingly like this in many features, the same obligation for steamer was required of a tug and tow meeting a steam-ship. The facts in this case are within the reason given for the oneness of the tug and tow,-that the motive power is in the one, and the control in the other. Mars. Coll. 189. The sails of the schooner were not only furled, but they had their sail-covers on. In reply to a question in that connection, "And you trusted entirely to the motive power of the tugboat?" The master of the schooner answered: "Yes; we only wanted to get in." At the same time the pilot in charge, who, as the master said, controlled him, and on whom the evidence shows he placed all the responsibility of acting when the collision became apparent, (page 15 of the testimony,) the pilot was on the schooner. This being so, the tug and tow "being in law one vessel, and that a vessel under steam," what was their duty, and what did they do? The twenty-first rule surely applied to them: "Every steam-vessel approaching another vessel, so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse." This prescribed their duty. Both the master of the tug and the master of the schooner clearly and postively swear that they kept on their course. There is no reason to believe that they did anything at all but keep on as they were. The master of the tug was evidently under the impression that he had nothing to do; that he was nothing but a spectator, interested, in a sense, but not responsible in any sense. This being so, and it being evident that rule 21 was not observed, it is incumbent upon the tug and tow to explain why it was not observed. Nothing in the evidence discloses the reason for this non-observance. They must be subjected to the same rule which has been applied to the steam-ship. Both parties being not free from fault, the loss will be divided. The America, 92 U. S. 432. The schooner cost to build $33,000. She was built in August, 1882. She perished February, 1887, and was four and a half years old. No repairs of any consequence were put on her. The depreciation in the value of vessels is at the rate of 8 per cent. per annum. rule, the schooner was worth, when lost, $24,765. $500. The instruments, etc., were worth $800. Applying this The net freight was Total loss, $26,085. DOE, ex dem. MYRICK, v. ROE, c. e. HEARD, Tenant in Possession. (Circuit Court, S. D. Georgia, E. D. April 29, 1887.) 1. FEDERAL COURTS-FOLLOWING STATE PRACTICE. A plea to an action of ejectment, alleging that the defendant's possession is in good faith; that he has placed permanent and substantial improvements on the land, largely enhancing its value, which benefit the plaintiff; that the plaintiff knew he was erecting such improvements, and permitted him to proceed without notice of her title; and praying that he be allowed, against her claim for title, a sum amounting to the enhanced value of the land by reason of the improvement,-although such plea is especially authorized by the state practice, it cannot be allowed in the courts of the United States. 2. SAME-EQUITABLE DEFENSE TO LEGAL ACTION. Although the forms of proceeding and practice in the state courts have been, as near as may be, adopted in the circuit and district courts of the United States, yet this must not be understood as authorizing an equitable defense to an action at law, nor the blending of legal and equitable claims in one suit. (Syllabus by the Court.) At Law. Action in ejectment. John M. Guerrard and Charles Nephew West, for plaintiff. SPEER, J. The plaintiff having introduced her evidence, the defendant interposed the following amendment to his plea: "Now comes the defendant, and says that he holds the premises in dispute bona fide, under claim of title, independent and adversary to the plaintiff; that he and his lessors have so held the same since, and from the sixteenth day of May, 1870; that he has placed upon the said land certain permanent and substantial improvements and betterments, viz., a store-house and a warehouse, which were and are substantial and permanent, and which have and do enhance the value of the said land $2,000, or other large sum; and that the owner of said land is benefited by the said improvements to the amount aforesaid or other large sum; and he further says that the said plaintiff knew of and was well aware of his erection of the said buildings at the time it was being done, at great expense to the defendant, and suffered and permitted this defendant to proceed and to continue the erection of the said buildings and other improvements, and did not object or advise defendant of any claim of hers upon and to the said land, although she had opportunity and occasion so to do if she desired; and that the defendant was not aware of her (the plaintiff's) right or claim to the said land, and knew nothing of her claim until the bringing of her said suit against him. Wherefore he says she is estopped from asserting her claim, if any she has, to the said land; and, if not, that defendant is entitled to be allowed, as against her, the enhanced value of the said land by reason of the permanent improvements made by him thereon and aforesaid, which he prays may be allowed him. "DELL & WADE, v.31F.no.3-7 The plaintiff moved to strike this plea for indeterminateness, and because it is in the main an equitable defense to an action at law, and is inadmissible in the courts of the United States. The first objection, if well taken, will be corrected by amendment; and, so far as the plea attempts to set up a title by prescription, this being a legitimate defense to the action of ejectment, this motion must be overruled. The question of practice in the remaining ground of objection-viz., can the national courts entertain a defense of this nature to an action at law?-is of frequent occurrence, and especially in Georgia, for reasons presently appearing, merits careful consideration. It is provided in section 2906 of the Code of Georgia: "Against a claim for mesne profits, the value of improvements by one bona fide in possession under a claim of right is a proper subject-matter of set-off." It is not, however, proposed to limit the operation of this plea to mesne profits. The defendant seeks a judgment against the plaintiff for the enhancement in value of the land, by reason of his substantial and permanent improvements thereon, which would operate to extinguish altogether the value of the recovery. He sets up an alleged estoppel, because the plaintiff, without objection, suffered him to erect costly structures on the realty. The legislature of Georgia has carefully obliterated the line between equitable and legal defenses. "No suitor is compelled to appear on the equity side of the court, but he may institute his proceeding for an equitable cause of action upon the common-law side of the court, at his option, and the court may allow the jury to find a verdict, and a judgment be rendered thereon, so moulded and framed as to give equitable relief in the case, as verdicts and decrees are rendered and framed in equity proceedings." Code Ga. § 3082. The defense presented by this plea has been decided to be warranted by the statute quoted, and the sufficiency of such pleas judicially considered and determined. Clewis v. Hartman, 71 Ga. 810. But it is distinctly equitable in character. In McPhee v. Guthrie, 51 Ga. 88, the supreme court, Chief Justice WARNER rendering the opinion, say: "The equitable right of a trespasser, to be allowed the value of his improvements made on the land, when the value of the premises has been increased thereby, is clearly recognized by our law, as well as when the improvements have been made by one acting in good faith under a claim of right, as in this case. But this is not a new principle introduced into our Code. It was a principle recognized by our courts of equity in England long anterior to 1776. In looking into Viner's Abridgement (volume 18, [new Ed.] 124) we find two cases reported in which purchasers were allowed compensation for improve. ments, one of which was made without notice of any incumbrance, the other 'with notice. In the case of Peterson v. Hickman the husband made a lease of the wife's land to one who was ignorant of the defeasible title. The lessee built upon the land, and was at great charge thereon. The husband died, and the wife avoided the lease of the land, but was compelled, in equity, to yield a recompense for the building and bettering of the land, for it was so much the better worth unto her.' In Wally v. Whaley a purchaser who, before his purchase money paid, or deed executed, though not before his con |