The Frank Moffat. out and I could not see anything but a white glimmer, which I thought was a sail, so we checked the engine back very slow. I told the second, he was standing by the engine, to check her slow, and by and by we got a bell to stop, and by that time we ran alongside. * * * It could not have been a very long time after we got the bells to check before we got the bell to stop; I could not tell exactly. It might have been half a minute or it might have been close on a minute for aught I know." The master of the propeller testifies that the propeller could have been seen three or four lengths of herself without lights. To the same effect is the testimony of the first engineer. I think it evident from this testimony, that the mate and lookout of the tug must have discovered the propeller very soon after passing the range lights at the bend, and at a distance of from 800 to 1,000 feet. Failing to discover exactly what it was, and mistaking it, perhaps, for a bunch of rushes, it was nevertheless incumbent upon them at once to stop until its character had been determined. If a steamer makes an object or hears a hail ahead of her, the character or position of which the officers are unable to fix, it is their duty to stop until the doubt is resolved. The Hypodame, 6 Wal. 216. She has no right to plunge blindly forward and encounter dangers, the magnitude of which she is unable to discern. This applies with even greater force to a tug, since she is unable to back or to use any extraordinary efforts to avoid a collision, without endangering a collision between herself and her tow. I think it quite probable there may have been a mistake in the range lights at the head of the canal, and that not only the starboarding of the tug, but the grounding of the propeller may be attributed to that. Although it is denied by the officers of the propeller, it is perhaps the most probable The Frank Moffat. solution of her getting aground, and of the otherwise inexplicable movement of the tug. But the question of fault does not hinge upon this. It was the duty of the tug at once to stop when she made out the dark object ahead of her. Instead of this, she kept on for some considerable time, and apparently did not even check until the lights of the tug reflected back from the stern of the propeller, developed the fact that it was a vessel. The tug then first checked. Even then, prompt porting might have avoided the collision. Certainly the tug cannot claim the excuse of a wrong order given in a moment of imminent peril, since by her negligence in failing to stop, she had brought herself into that predicament. There must be a decree apportioning the damages, and referring it to a commissioner to assess and report the same. Dawson v. Daniel. A. H. H. DAWSON v. RICHARD C. DANIEL. CIRCUIT COURT-WESTERN DISTRICT OF TENNESSEE- 1. JUDGMENT OF ANOTHER STATE SUED ON HERE.-The judgments of other States are conclusive when sued on here, and this court cannot for any purpose look to the merits, even where it may have been an illegal contract. 2. JUDGMENT BY DEFAULT-WHEN SET ASIDE.-Judgment by default will not be set aside, unless the defendant can show that he was guilty of no negligence in suffering the judgment, and has a meritorious defense. 3. THE RULE AS TO A STAY OF PROCEEDINGS WHERE JUDGMENT HAS BEEN RENDERED IN ANOTHER STATE AND SUIT BROUGHT HERE UPON IT.-If the plaintiff can get no execution on his judgment in the other State, by reason of a supersedeas, the court may well be asked here to stay proceedings, unless it appears to have been a useless appeal or writ of error, in which case the stay may be refused. The rule in England and here is the same, which is not to stay proceedings where a suit is brought upon a judgment, unless that judginent has been appealed from and a supersedeas has been procured. 4. The practice in England and America as to stay of executions and suits on judgments, fully discussed. Dawson obtained judgment against Daniel in New York, from which appeal was taken but no supersedeas of execution was procured. Suit was brought on this judgment in the Circuit Court of United States, at Memphis, and on account of some oversight or misapprehension of counsel, judgment was taken by default; the evidence offered being a duly exemplified copy of the New York judgment. Defendant thereupon offered affidavits and moved to vacate such judgment and for a stay of proceedings, alleging that it was obtained on account of, an oversight or misapprehension of counsel, who understood they had further time to Dawson v. Daniel. plead; that there were merits in the defense; that Dawson was insolvent, and if the judgment were permitted to stand, and the New York court should reverse it on the appeal they would be remediless; and that it was in the discretion of the court here to interpose a stay of proceedings until the appeal was disposed of in New York. Geo. Gantt and Wm. S. Flippin for, and Humes & Poston, against the motion. HAMMOND, J.-This is a motion to set aside a judgment by default taken last term but continued over by this motion. till now. Judgments by default will not be set aside, unless the defendant can show that he was guilty of no negligence in suffering the judgment and has a meritorious defense. Otherwise, the process of the court requiring parties to appear and answer suit goes for naught, and the court is the victim of the caprices of parties. Freeman on Judgments, Sections 102, 108, 541. M. & O. R. R. v. Dowd, 9 Heisk. 178; Chester v. Apperson, 4 Heisk. 639. The judgments of other States are conclusive when sued on here, and this court cannot look to the merits for any purpose, not even where it may have been on an illegal contract. Hunt v. Lyle, 8 Yerg, 142; Freeman on Judgments, Sections 433, 575, 576; Eastman v. Jones, 2 Yerg. 484. The only merits insisted on here is that a writ of error has been prosecuted in New York to the judgment, and it is said, Dawson being insolvent, this court will exercise a discretion and stay further proceedings to await the result of the writ of error. It is conceded that the writ of error, as taken, does not supersede execution, but it is insisted this court has discretion, notwithstanding, to stay proceedings. If bail bond had Dawson v. Dauiel. been given in New York the judgment there would have been superseded. N. Y. Code, 1871, Sections 335, 348. In England, a suit upon a judgment was not favored for the reason that it was vexatious, inasmuch as the plaintiff could have his execution on the original judgment. Entwistle v. Shepherd, 2 Term, 78. Yet, the right of suit was undeniable, and this notwithstanding a writ of error was pending. 7 Vin. Ab. 351, 352; 20 Id. 67; 110 E. C. ch. 11. It is obvious the rule of disfavor to such suits in England does not apply to suits on foreign judgments or to suits from other States in this country. Where a writ of error has been sued out and bail bond given, it operates as a supersedeas in England, as it does here and in New York. In those cases only, so far as I can find, did the court ever stay proceedings in a suit upon the judgment, where bail had been put in and f. fa. was stayed. It was in the discretion of the court to do this or not, and it was generally controlled by the fact, whether the writ of error was for delay or not. If it was a litigated case, the court looked with disfavor on the second suit. If it was a writ of error for delay merely, the court would favor the second suit and not stay proceedings. The rule to stay proceedings could not be had till bail was put in, which shows conclusively that the proceedings would not be stayed, unless the execution had been superseded and the plaintiff was protected against delay by bond. 3 Bae. Ab. 356; 9 Id. 284; Meriton v. Stephens, Willes R. 277; Entwistle v. Shepherd, 2 Term R. 78; Christie v. Richardson, 3 Id. 78: Pool v. Charnock, Id. 78; Benwell v. Blank, Id. 643; Smith v. Shepherd, 5 Id. 9; Bicknell v. Langstaff, 6 Id. 455. The American rule is the same, and it is a just rule; it is the logical result of the requirement that we shall treat the judgments of another State as conclusive. But if the plaintiff can get no execution there, by reason of a supersedeas, the court here may well be asked to stay pro |