The great question involved in that case, in regard to the validity of bonds issued before publication of the act, is not involved in this case; because the act had been published before the election was held under which these bonds were given. The act was published in October, 1853; and the election in the town of Mineral Point was held and the bonds issued in 1855. On the trial the plaintiff read the act of the legislature in evidence; also one of the bonds issued by the town, for its recitals of fact, and the coupons declared on in the declaration. To this evidence the defendant interposed the stereotyped objections, which have been taken and overruled in every municipal bond case heretofore decided in this court. But after the pointed language of this court at the last term, in Rogers v. Burlington, 3 Wall. 654 (ante, 79), it would be almost as discourteous to the court to argue with, as to contend against, the oftrepeated decisions and opinions of this court. I shall therefore merely specify the exceptions and cite the decisions overruling them. I. The defendant objected to the reading of the act, because the printing thereof with the Private Laws was not a constitutional publication, which is necessary in our state to the validity of a general law. This objection is directly overruled by the supreme court of Wisconsin, which holds such publication of even a general law to be sufficient. In re Boyle, 9 Wis. 264. 2. This court has decided that the act in question is not to be considered a general law; therefore no publication whatever is necessary to its validity. Havemeyer v. Board of Supervisors (supra). II. To the reading of the bond, the defendant objected. 1. That it did not appear that the several steps to be taken in the issue of the bond, the election, etc., had been taken according to the act. This objection is disposed of by the following cases: III. The defendant objected to the reading of the coupons. 1. Because the bonds were not produced. 2. Because the execution of the bonds was not proved. 3. Because the town had no power to issue the bonds. The first ground of this objection is disposed of by the following case; and the other two are mere repetitions of previous imfounded objections. Knox County v. Aspinwall, 21 Kow. 539, 16 L. ed. 208. IV. The amendment of the declaration on the trial as to the amount of damages claimed, was proper. The suit was commenced in November, 1861; the defendant had succeeded in delaying the trial till September, 1864; and the accumulation of interest had made the claim exceed the $2,000 originally demanded. The amendment did not surprise the defendant, nor change the issue; he did not ask terms nor leave to plead over; and the amendment was properly allowed. Bogart v. McDonald, 2 Johns. Cas. 219. Such amendment will be granted after verdict on terms. Dox v. Dey, 3 Wend. 356; Tomlinson v. Blacksmith, 7 T. R. 132. 2. Amendments are in the discretion of the court, and cannot be reviewed on writ of error. V. The defendant requested the court to charge the jury that the plaintiff was not entitled to recover interest on the coupons. The law is the other way by repeated decisions of this court. Mercer Co. v. Hackett (supra); Gelpecke v. Dubuque (supra); Myer v. Muscatine (supra). Mr. Chief Justice Chase delivered the opinion of the court: The action in the court was brought to recover the amount of certain coupons issued by the town of Mineral Point, of which Lee, the plaintiff below, was the holder. We think it unnecessary to repeat the views heretofore expressed in several cases of similar character. See cases cited by counsel for defendant in error. The judgment is affirmed, with costs. Rogers v. Burlington, 3 Wall. 654 (supra); Murray v. Lardner, 2 Wall. 110, 17 L. ed. 857; Gelpcke v. Dubuque, 1 Wall. 175, 17 L. ed. 520; Bronson v. Railroad, 2 Wall. 283, 17 L. ed. 725; Mercer Co. v. Hackett, 1 Wall. 83, 17 L. ed. 548; Goodman v. Simonds, 20 How. 343, 15 L. ed. 934; Myer v. Muscatine, 1 Wall. 384, 17 JAMES R. BENTLEY et al., Claimants of the L. ed. 564; Van Hostrup v. Madison, 1 Wall. 291, 17 L. ed. 538. Bark Newsboy, Appts., บ. 2. That it was incumbent upon the plaintiff | HUGH COYNE, Owner of the Schooner White to prove the execution of the bond. By the Rev. Stat. of Wis., 1858, ch. 137, § 92, it is made unnecessary to prove the execution of any instrument declared on or offered in evidence, which purports to be executed by a party, unless the execution thereof has been denied by affidavit. This had not been done. The state laws, as to evidence, are rules of decision in the Federal courts. Cloud; and SAME v. SAME. (See S. C. 4 Wall. 509-513.) Collision-duties of sailing vessels in meeting -when error in sailing does not bar recovery of damages. Where a vessel has the wind free, or is sailing beSims v. Hundley, 6 How. 1; McNiel v. Hol- fore or with the wind, she must keep out of the brook, 12 Pet. 84. way of a vessel which is closehauled on the wind, or sailing by or against it. 3. That there was no law in force authorizing the issue of the bonds. This is but a repetition of the first objection, made to the law itself, and is disposed of by the authorities cited above. NOTE.-Collision. Rights of steam and sailing vessels with reference to each other, and in passing. ed. U. S. 537, and note to Steam Tug E. A. Packer and meeting-see note to St. John v. Paine, 13 L. V. New Jersey Lighterage Co. 35 L. ed. U. S. 453. The vessel closehauled on the wind, or sailing on the starboard tack, must keep to her course. But a vessel is not required to keep her course after the approach of the advancing vessel is so near that a collision is inevitable. An error committed by those in charge of a vessel under such circumstances, if the vessel is otherwise without fault, will not impair her right to recover for the injuries occasioned by the collision. [Nos. 149, 150.] Submitted Feb. 21, 1867. Decided Apr. 22, 1867. A PPEALS from the Circuit Court of the United States for the Eastern District of Michigan. The case is stated by the court. Mr. George B. Hibbard, for appellants: It was the unquestionable duty of the White Cloud to show the proper light, and not change her course. The William Young, Olcott, 38; St. John v. Paine, 10 How. 584; Newton v. Stebbins, 10 How. 586. As stating the rule in its proper strictness, and as showing a parallel case, and one wherein the vessel changing her course was held entirely in fault, the attention of the court is especially invited to the case of The Immaganda Sara Clasina, 7 Notes of Cas. 582 (Eng. Adm.) If the Cloud did change her course, or did not show the proper light, the onus of proof is upon her, to show that the collision did not happen from either of these causes; and the sole fault will be attributable to her, unless she shows that the collision did not arise from either of these breaches of duty upon her part. Waring v. Clarke, 5 How. 441, 460; St. John v. Paine, 10 How. 584; Newton v. Stebbins, 10 How. 586; 1 Pars. Mar. L. 191; The AngloNorman, Newb. 492. Mr. John S. Newberry for appellee. Mr. Justice Clifford delivered the opinion of the court: 510*] *Subject-matter of the controversy in this case was a collision between the schooner White Cloud and the bark Newsboy, which occurred on the 12th day of November, 1862, off Twin River Point, or a little below, on the west shore of Lake Michigan. Owner of the White Cloud filed his libel against the bark Newsboy on the 25th day of May, 1863, and the owners of the bark filed their cross libel against the schooner on the 29th day of September in the same year. Both cases were heard together in the district court, and the decision was that the bark was in fault. Damages were accordingly awarded to the libellant in the case of the schooner in the sum of $5,673.66, and the cross libel was dismissed with costs. Circuit court on appeal affirmed the respective decrees, and the owners of the bark, as respondents in one case and libellants in another, appealed to this court. resulted in great damage to the schooner. Among other injuries it broke the rail, stanchchions, and bulwarks of the schooner from the fore rigging to the main rigging, and cut her outside planks down below the water line as far as the bilge, and broke the clamps and ceiling down to the bilge kelson. Damage was also done to the plank sheer and deck frame, and the capstan and some of the deck plank were broken, the forestay-sail split, and the butts of the deck plank were started the whole length of the vessel. Principal damage was on the starboard side of the schooner, showing conclusively that the blow was between the main and fore rigging, on that side. She was in ballast, but the bark had a full cargo of wheat. Collision occurred about seven o'clock in the evening, but the proofs *show that it was not very dark, [*511 and the witnesses concur that there was no haze on the water, and that the lights of vessels could be seen for several miles. Although it was cloudy, still the weather was pleasant, and there was a good breeze. Speed of schooner was six or seven miles an hour, and that of the bark was nine miles. Weight of the evidence shows that the wind, though slightly baffling, varying occasionally perhaps a degree to the west, was southwest-by-west, and both vessels were under a full, or nearly full, press of canvas. Course of the schooner was south halfeast, and that of the bark was north-northeast, but she was not kept steady. Considerable conflict exists in the testimony as to the course of the wind and of the schooner, but the better opinion, in view of the whole case, is that the testimony of the master is correct. He came on deck twenty minutes before the collision, and he testified that the wind was about southwest by west, a little baffling, varying sometime a point to the westward, and that the vessel was heading by the compass south half east, and we adopt those statements as satisfactorily sustained by the weight of the evidence. Both vessels showed lights, and the proofs are full to the point that each saw the light of the other two or three miles before they came together. Obviously, therefore, it is a case of fault and not of inevitable accident as the water was smooth and the vessels were sailing in a broad, unobstructed thoroughfare. Undisputed fact also is that the schooner was sailing on the starboard tack, closehauled on the wind, and that the bark was on the larboard tack and had the wind free. Rule of navigation is that where a vessel has the wind free, or is sailing before or with the wind, she must keep out of the way of the vessel which is closehauled by the wind or sailing by or against it, and the vessel on the starboard tack has a right to keep her course and the one on the larboard tack must give way or be answerable for the consequences. St. John v. Paine, 10 How. 581; The Gazelle, 2 W. Rob. 517; The Woodrop Sims, 2 Dod. 85; The Ann Caroline, 2 Wall. 544, 17 L. ed. 834. 1. Voyage of the schooner was from Buffalo to Chicago, and that of the bark was from Milwaukee to Buffalo. Capacity of the former was three hundred and eighteen tons, and that of the latter was five hundred and fifty-seven *Strong effort is made by the respond- [*512 tons, and both were good vessels and had a full ents to take the case out of the operation of complement of officers and seamen. Testimony that rule by attempting to show that the schoonshows that both vessels were under full head-er changed her course. Persons engaged in naviway when the collision occurred, and that it gating vessels upon navigable waters are bound [No. 135.] Motion Made Apr. 18, 1867. Decided Apr. 29, 1867. to observe the nautical rules recognized by law | bill of review may be granted by the special license in the management of their vessels on approach- of the court and not otherwise. ing a point where there is danger of collision. Undoubtedly the same law which requires vessels having the wind free, or sailing on the larboard tack, to keep out of the way or give way, as the case may be, also imposes the correlative duty upon those closehauled on the wind, or sailing on the starboard tack, to keep their course, in order that the former may know the position of the object to be avoided, and not be baffled or led into error in their endeavors to comply with the requirement. Steamship Co. v. Rumball, 21 How. 372, 16 L. ed. 144. Appellants show, beyond doubt, that the schooner changed her course, but they do not show that she changed it at a time or in any sense when or in which the law, regards it as a fault. The rules of navigation mentioned do not apply to a vessel required to keep her course after the approach of the advancing vessel is so near that the collision is inevitable. An error committed by those in charge of a vessel under such circumstances, if the vessel is otherwise without fault, will not impair her right to recover for the injuries occasioned by the collision, for the reason that those who put the vessel in that peril are chargeable with the error, and must answer for the consequences which it occasions. APPEAL from the S Motion for leave to file a bill of review. See Southard v. Russell, 16 How. 571. The present petition claims the leave on two grounds: 1. New evidence which is material and decisive, and cumulative to the evidence already taken, and which could not possibly have been used at the time of the final decree below. 2. Errors in law, apparent on the face of the pleadings and decree in question. First ground consists in the material evidence which could be given by Judge Purcell himself, he being rendered competent to testify in his own behalf since the final decree in March, 1864, by the act of 2d July, 1864, which, for the first time, enabled parties to testify in their own cases. It is claimed that this new evidence will es 1. The clear and definite terms of the contract of exchange. Evidence shows satisfactorily that the schooner kept her course until the peril was impend-tablish: ing and the collision inevitable, that the order, hard a-starboard, was given by the master at the moment it occurred, "to ease off the blow and make it glancing." Such a change of course, at that moment, the district court held was demanded as a means of self-preservation and was not a fault, and we entirely concur in that conclusion. Objection is also taken to the decision of the court in confirming the report of the commis513*] sioner as to the amount of *the damages, but the objection is without merit, and is herebe overruled. Decision of the district court in the case of the cross libel was also correct. Decree of the Circuit Court affirmed, with costs in both cases. WILLIAM F. PURCELL, Compt. and Appt., v. JAMES COLEMAN, Austin L. Adams, Gilbert (See S. C. 4 Wall. 519-521.) Bill of review for error of law or on new matter since decree. No bill of review shall be admitted, except it contain either error in law appearing in the body of the decree, or some new matter which has arisen after the decree. Upon new proof that is come to light after the decree was made, which could not possibly have been used at the time when the decree passed, a 2. Part performance of the verbal contract by each party taking possession of the exchanged property, in execution of the contract and improvements made. 3. The tender of the deed of conveyance from the petitioner to Coleman, and his refusal to accept it, which this court said, in its opinion, would be sufficient if it had been proved. All these facts were in the exclusive knowledge of the petitioner, and he avers that he was the sole witness to them, especially to the tender of the deed. Besides this new evidence, the petition sets forth newly discovered evidence by Edward Calvert and others, tending to show distinct and unequivocal acts of possession by Coleman of the farm in Virginia, and his improvements thereon, under and in pursuance of said contract of exchange. Messrs. Brent and Merrick, for the petitioner: By this new evidence the right of complainant to specific performance is fully made out, as he will have fulfilled all the requirements of this court in its opinion. We refer on this point, to justify our application on the ground of new evidence, to Story, Eq. Pl. 88 412-418; 3 Dan. Ch. Pr. 1733, side paging. The second ground of review is error in law, which may be made out on the decree and proceedings, but not by looking at the evidence. 3 Dan. Ch. p. 1728, side note, 2; 5 Mason, 303; Story, Eq. Pl. § 407. The whole record may be examined to see if there is any error in law, and the decree may be tested by the whole record. 3 Dan. Ch. P. 1728, side note, 2; Story, Eq. 14. Pl. § 407; 5 Mason, 300; 3 Paige, 368; 13 Pet. | dence, but what he might as well have produced before, and which, if it had been produced, would not have justified a decree in his favor. The error in law is that here the legal title had passed to Mrs. Miner, and the error was not decreeing against her pro confesso under the rules of this court adopted by the court below. Mr. Gilbert S. Miner opposed. Mr. Justice Grier delivered the opinion of the court: We have just decided this case and affirmed the judgment below, because by the complainant's own statement in his bill he has shown no sufficient grounds for a court of equity to grant him the relief sought. We, will not repeat the points there decided. The case was too plain to leave any possible doubt respecting the correctness of our decision. Moreover, the record showed an application made in the court below before the appeal to this court, for a bill of review, which was decided by this court to have been properly refused. But it seems that the appelfant is not satisfied with the judgment of the 521*] court, and "now makes an application to the court for leave to file another bill of review in the court below. We have no doubt that the complainant hon estly believes that he has been greatly wronged We have no jurisdiction of the judgments of state courts except under the 25th section of the judiciary act and, upon examining the record, we do not find that the case presented is within any clause of it. The suit in the state court was for the recovery of a tract of land in St. Louis, Missouri. But in this case there was nothing shown but The proofs of the plaintiff consisted of a patent a breach of promise and a scrambling posses-uary 5th, 1843; a certificate of entry by Johnof the United States to one Johnson, dated Jansion, followed by litigation. The present ap son, issued by the register of the St. Louis plication shows more perseverance and faith in the applicant than discretion or judgment; and land office, on the 19th of August, 1829; an aspresents not a single feature of a case proper signment of the same date by Johnson and the for a bill of review. By Lord Chancellor Bacon's rules, it was declared: "No bill of review shall be admitted except it contain either error in law appearing in the body of the decree without further examination of matters in fact, or some new matter which hath arisen in time after the decree; and not any new proof which might have been used when the decree was made. Nevertheless, upon new proof that is come to light after the decree was made, which could not possibly have been used at the time when the decree passed, a bill of review may be granted by the special license of the court; and not otherwise." We will not put ourselves in the position of seriously noticing the reasons offered for a review of this case. Suffice it to say that the petitioner has not presented a single feature of a case within the rules. He offers no new evi plaintiff, indorsed upon the certificate, and a decree, upon default, of the St. Louis land court, in a suit by the plaintiff against Johnson, adjudging and decreeing the title to be vested in the possessor. The defense rested upon the ground that Johnson was a fictitious person, but the court held the patent not void, if issued to a real person and transferred by his indorsement to the plaintiff, though such person in making the entry and obtaining the certificate used a fic titious name. have been the only authority under the United The patent offered by the plaintiffs seems to NOTE. Jurisdiction of U. S. Supreme Court where Federal question arises; or where is drawn in question statute, treaty, or Constitution of U. 8. -see note to Matthews v. Zane, 2 L. ed. U. S. 654; note to Martin v. Hunter, 4 L. ed. U. S. 97; and note to Williams v. Norris, 6 L. ed. U. S. 571. |