because of the injury to his wife by a col- | for damages of the character claimed by lision between two vessels upon one of him. which she was a passenger. Ex parte Phenix Ins. Co. 118 U. S. 610, 30 L. ed. 274, 7 Sup. Ct. Rep. 25; Johnson v. Chicago & P. Elevator Co. 119 U. S. 388, 30 L. ed. 447, 7 Sup. Ct. Rep. 254; Savage v. New York, N. & H. S. S. Co. 107 C. C. A. 648, 185 Fed. 778. Messrs. Eberhard & Stites for appellees. Buffington, Circuit Judge, delivered the opinion of the court: On October 19, 1909, Mrs. Borrea Johnson, a passenger on the steamboat Little Silver, en route from New York to Long Branch, was injured in a collision between No recovery can be had by the husband' that vessel and a barge towed by the tugute in nearly all of the states of the | 47 C. C. A. 111, 107 Fed. 984, involving Union; and within the territory covered the Illinois and Wisconsin death statutes, by such statute, the admiralty courts take jurisdiction of such causes in personam, and where the local law creates a lien therefor a libel in rem will lie against the vessel. But of course the state statutes have no extraterritorial effect, and therefore they afford no ground upon which admiralty courts can take jurisdiction for actions for wrongfully causing death upon the high seas, and the same is held not to be actionable under the general maritime law. But, as before stated, these cases do not turn upon the test involved in the JOHNSON CASE as to whether the relative or personal representative of the deceased person, not bearing any legal relation to the ship or its owner, may maintain an action, but are rather addressed merely to the adaptation of the common and civil law rules that a personal action dies with the person. This statement applies to the Sea Gull, Chase, Dec. 145, Fed. Cas. No. 12,578, and the Highland Light, Chase, Dec. 150, Fed. Cas. No. 6,477, cited in NEW YORK & L. B. S. B. Co. v. JOHNSON. Savage v. New York, N. & H. S. S. Co. 107 C. C. A. 648, 185 Fed. 778, also cited therein involved an action by the husband for injuries to the wife, which was held to fail because the wife's libel in her own behalf failed; and the court therefore found it unnecessary to determine whether admiralty will take jurisdiction of such a libel by the husband. giving an action in behalf of the next of kin of a deceased to recover damages sustained by them by reason of the death, and the watercraft statutes of those states, making a vessel liable for all damages arising from injuries done "to persons or property by such ship, boat, or vessel," and holding that a libel in rem could not be maintained against the boat for the death. After pointing out that the Illinois and Wisconsin statutes give the action to the survivors for the pecuniary damage resulting to them from such death, and not for any injury done to the decedent, the court proceeds to say: "It is also to be said that the water-craft law contemplates a lien for direct injuries done by the inanimate thing negligently navigated, and would not seem to comprehend such injury as is contemplated by the act granting a right of action for a death. The injury for which a lien is given is a direct injury by the negligently navigated craft to person or property. By reason of the faulty navigation and consequent collision, no injury was done to the person of the libellant, or to the persons of those he represents. Nor was injury done to his or their property. They had no property right in the person of the deceased. The right of action arose only upon and because of his death. The recovery is allowed as compensation for the supposed support and education which they would have received had he survived. This right of action, arising only upon death, cannot, within the meaning of the water-craft law, be property which could be injured by an inanimate thing negligently navigated." This quoted statement so far as it may be regarded as bearing upon it, conforms with the contention unsuccessfully advanced in the JOHNSON CASE. Such cases, therefore, have no bearing upon the contention advanced in the JOHNSON CASE. In one decision, however, involving an action for death, the court made a distinction between the question of the survival of an action for personal injury in favor of the personal representative of the person injured in case of the latter's For discussion of a considerable number death, and an action by the survivors of of the cases involving the right to maina person killed, not to recover for any in-tain an action for death under the general jury to or suffering by the decedent, but to recover the damages suffered by the plaintiffs themselves as a result of the decedent's death. This case is The Onoko, maritime law, or to enforce the death stat- boat Slatington. For alleged negligence in causing such injury, Mrs. Johnson brought suit in the supreme court of New Jersey against the New York & Long Branch Steamboat Company, the charterers of the Little Silver. Hans Johnson also brought a similar suit for the injury sustained by him through said injury to his wife, the said Borrea Johnson. Thereafter the charterer filed a libel in admiralty in the district court of the district of New Jersey for limitation of liability, under Rev. Stat. §§ 4281 to 4289, U. S. Comp. Stat. 1901, pp. 2942 to 2945, and the acts supplementary thereto and amendatory thereof. The libel recited the suits of Hans and Borrea Johnson, and prayed, inter alia, that a monition issue to compel them to prove their claims before a commissioner. Thereupon the Johnsons appeared and filed their answer to the libel, claiming damages to them, respectively, by reason of the negligence of the Little Silver in causing the injury to Borrea Johnson. The case was then proceeded in, so that the court granted the petitioner's prayer for limitation of liability, and decreed Borrea $4,000 damages and Hans $1,147, which latter sum included $447 for expenses of illness, etc. From a decree so ordering, the charterer appealed to this court. The appeal raises three questions: First. Was the Little Silver negligent? Second. Were the amounts decreed excessive? And third. Was Hans Johnson's claim recoverable in admiralty? As to the first and second questions, it will be seen, by reference to the opinion of the court below, that its conclusions as to the negligence of the Little Silver's pilot are abundantly sustained. That pilot was familiar with the upset tide created by the meeting of the waters from the East and North rivers, and knew the shifting character of the eddy caused thereby. Ignoring the fact that the speed of the Slatington and her barges might be somewhat impeded by such eddy, and apparently making no allowance therefor, he attempted to cut too close under the tug's stern, when he had plenty of room to avoid it, and as a result he struck the Slatington's barge well forward of its stern. As said by the court below: "He either grossly miscalculated, or, as is more likely, took a chance." has it seemed that there was any undue allowance made by the judge in the conclusion he reached only after a painstaking and thorough discussion of the proofs in his opinion. It remains to discuss the third question; namely, whether the husband's claim was recoverable in admiralty. In that regard it might be sufficient to say that he was not a suitor in admiralty, but that, having brought his suit in a jurisdiction in which he could unquestionably maintain it (American S. B. Cɔ. v. Chase, 16 Wall. 523, 21 L. ed. 369), he was prevented from pursuing his remedy there by the appellant's libel, and forced (Butler v. Boston & S. S. S. Co. 130 U. S. 527, 32 L. ed. 1017, 9 Sup. Ct. Rep. 612; Richardson v. Harmon, 222 U. S. 96, 56 L. ed. 110, 32 Sup. Ct. Rep. 27) to come into admiralty as a necessary party to the statutory proceeding to limit liability. But, without basing our conclusion on that consideration, we are clear that Johnson's claim was recoverable in admiralty. The injury to Mrs. Johnson was a maritime tort, and clearly warranted maritime relief. The New World v. King, 16 How. 469, 14 L. ed. 1019; Mendell v. The Martin White, Hoffm. Ops. 450, Fed. Cas. No. 9.419. The tort, then, being wholly maritime, why does not such tort constitute a maritime cause of action to everyone who was injured thereby? The relations of husband and wife and parent and child are not maritime relations; but such relations, or the implied contracts or rights growing out of such relations, do not constitute the real ground of action, when a husband, wife, parent, or child invoke admiralty relief for injury sustained by a maritime tort. In such cases the maritime tort is the real thing contested, and therefore such contest should be made under maritime rules, process, and law. The thing in action is not the relationship, but the tort. The relationship is a mere step or incident to support the action. It is true that in Savage v. New York, N. & H. S. S. Co. 107 C. C. A. 648, 185 Fed. 778, the lower court in its opinion said: "No instance of what is in substance an action per quod consortium amisit has been shown in the admiralty." To this we cannot agree, for in The Sea Gull, Chase, Dec. 145, Fed. Cas. No. 12,578 As to the amounts of the award, we are (to which the Supreme Court referred in of opinion there was evidence of injury to American S. B. Co. v. Chase, supra), it was warrant decrees for the amounts allowed. held that "a husband can recover, in a proIn the nature of things, the fixation of dam-ceeding in rem against the vessel which ages may take a very considerable range, and the sums allowed are well within the ranges of the different conclusions that different minds might reach on such testimony. To no one of the members of this court caused the death of his wife, for the injury suffered by him thereby.". The same doctrine was restated by the chief justice later in The Highland Light, Chase, Dec. 150, Fed. Cas. No. 6.477, where it was said: “Indeed, the jurisdiction for marine torts in admiralty may be said to be coextensive with the subject. It depends on the locality of the wrong, not upon its extent, character, or the relations of the persons injured." That such right exists in the husband is but carrying to its logical conclusion the reasoning of Mr. Justice Story in Plummer v. Webb, 4 Mason, 380, Fed. Cas. No. 11,233, where it was held that a father may maintain a suit in the admiralty for a tortious abduction of his minor son on a voyage on the high seas, in the nature of an action per quod servitium amisit. The decree of the court below is therefore affirmed. An infant who in personal appearance, family surroundings, and business activities appears to be of age, will not be permit ted to rescind a sale of his land for a rea sonable price under the representation that he was of age, the trade being fairly made and the grantee parting with the consideration without notice of the infancy. This is a continuation of notes to Lowery v. Cate, 57 L.R.A. 684; Commander v. Brazile, 9 L.R.A. (N.S.) 1117; Tobin V. Spann, 16 L.R.A. (N.S.) 672; and Putnal v. Walker, 36 L.R.A. (N.S.) 33. Subsequently to these notes it was held in International Text Book Co. v. Connelly, 206 N. Y. 188, 99 N. E. 722, that one who, while an infant, entered into contract for instruction with a correspondence school, was not, after attaining majority, estopped to plead infancy in an action on the contract because of having misrepresented, with no intent to defraud, that he was of age, in the subscription paper. "The doctrine of estoppel," said the court, "is rarely if ever applied to infants. The action is on contract, not in tort. There is no sug Messrs. G. A. Eversole and George R. Pope for appellant. Mr. H. C. Clay for appellee. Miller J., delivered the opinion of the court: On July 9, 1907, the trustees of common school district No. 1, in Harlan county, the predecessor of the appellant, bought three and one-half town lots in Mt. Pleasant or Harlan town from the appellee, John H. Hensley, for school purposes. The agreed purchase price was $400 in cash, but there being a vendor's lien upon this and other property for $300, that amount of the purchase money was appropriated to the discharge of the lien, which was released by the vendor on the same day. On September 12, 1910, Hensley brought this suit for the purpose of canceling his former deed, and to recover the property, upon the ground that he was an infant when he made the conveyance on July 9, 1907. Hensley alleged that he was born on December 10, 1886; and, if that be true, he did not reach his majority until December 10, 1907, which was five months after he executed the deed. Appellant presented these defenses: (1) It denied that Hensley was an infant when he made the deed. (2) It charged that he was over twenty-one years of age, or that he falsely represented himself to be over twenty-one years of age at the time he executed the deed. (3) That he stood by and saw appellant build a school-house upon the lot at a cost of $500 without objection or protest, and that he is thereby estopped from now relying upon his infancy. The chancellor granted the relief prayed, directed the cancelation of Hensley's deed to the school trustees, and a restoration of the property; and from that judgment the defendant prosecutes this appeal. Hensley's father and mother have been | gestion of false representation or fraud in the complaint or stipulation, except that the latter sets forth that the defendant signed the subscription paper which stated his age was twenty-one years. No other representation was made. While an infant is liable for his torts, the action must rest solely on the wrong committed by him. The complaint in this action rests wholly on the written contract which is set forth at length; and the fact that the contract contains the statement as to age, with neither allegation nor proof that it was made with intent to defraud, does not 'fix the character of the action as ex delicto.' . It is well settled in this state that in an action upon a contract made by an infant, he is not estopped from pleading his infancy by any representation as to his age made by him to induce another person to contract with him.” J. D. C. 513." In the late case of Asher v. Bennett, 143 Ky. 363, 136 S. W. 880, this court, "The rule is simply an application of the equitable doctrine that he who misleads another by his solemn assertion of a fact will not be allowed to assert the contrary to the prejudice of the person whom he has thus misled, and so perpetrate a fraud upon him. It will not be applied where the gran tee knows that the grantor is an infant, or where, from his appearance, situation, or other circumstances, as a reasonably prudent man, he should know it. It will only be applied when necessary to protect the grantee from what would otherwise be a fraud." Bailey v. Barnberger, 11 B. Mon. 113; Ingram v. Ison, 26 Ky. L. Rep. 48, 80 S. W. 787; Harris v. Ronk, 32 Ky. L. Rep. 966, 107 S. W. 341; Pace v. Cawood, 33 Kỵ. L. Rep. 592, 110 S. W. 414; Edgar v. Gertison, Ky. 112 S. W. 831; Sackett v. dead for many years. Upon the question of his infancy the weight of the proof is with Hensley; indeed, the only specific testimony | in speaking of the foregoing rule, said: upon that point was by his grandfather and an uncle by marriage, who established the date of Hensley's birth as December 10, 1886. There is no direct testimony contradicting them. It appears, however, that Hensley was a married man, with two chil- | dren, and from all appearances was more than twenty-one years of age. Further more, he had been engaged in business upon his own account for several years, trading in real estate and live stock. He had sold his farm which he inherited from his father, and bought the town lots now in controversy and other lots from Grant Smith on April 6, 1907, about three months before he made the conveyance to the school board. In 1906 and 1907, the sheriff of the county had collected a poll tax from appellee. He says he had probably voted in political conventions, though never in a primary election. | Asher, Ky. 22 L.R.A. (N.S.) 453, 112 All of these facts were well and generally S. W. 833; Phillips v. Williams, — Ky. —, known in the community. When Turner 114 S. W. 1191, and Asher v. Bennett, 143 Howard, the school trustee who made the Ky. 362, 136 S. W. 879, are to the same purchase from Hensley, asked Hensley if effect. From these cases, the rule in this there was anything that would prevent him state, in so far as it is applicable to the from making a good deed to the lot, Hens- facts of this case, may be stated as follows: ley answered that there was nothing except When one deals with an infant, knowing a part of the purchase price which consti- him to be an infant, the latter is not estuted a lien on the lot, whereupon Howard topped from relying upon his infancy in said the trustees would pay that and have avoidance of the contract; but when an inthe lien released. Hensley claims that he fant, by reason of his personal appearance, paid the money himself, and that it was not family surroundings, and business activipaid by the school board. This, however, ties, coupled with a misrepresentation or is immaterial, since it is evident that the fraudulent concealment, leads one who deals purchase by the school trustees and the re- with him, in good faith, and not knowing lease by Howard were contemporaneous that he is an infant, to believe that he is of transactions, and that $300 of the trustees' age, he will be estopped from maintaining purchase money was used in the discharge an action to avoid his executed contract. of the lien. When he comes into equity seeking relief, he must come with clean hands. The privilege of infancy is a shield for the protection of the infant, and not a weapon of attack; nor is it to be used as a means of defrauding others. While there may be some conflict upon the question in other jurisdictions, it is well settled in this state that where an infant has conveyed land for a reasonable price, representing at the time that he was of age, and has thereby induced the grantee to part with the consideration, the trade being fairly made, and the grantee having no notice that the grantor was under age, the infant will be bound by his deed. And the rule denying relief to the infant is not restricted in its operation to his misrepresentations. It applies equally to his fraudulent concealments. In Schmitheimer v. Eiseman, 7 Bush, 300, this court said: "Neither infancy nor coverture can excuse parties guilty of fraudulent concealment or misrepresentation, for neither infants nor femes covert are privileged to practise frauds upon innocent persons. 1 Story, Eq. p. 385; Davis v. Tingle, 8 B. Mon. 543; Simrall v. Jacob, 14 B. Mon. The school trustees did not know that Hensley was a minor; and, on the other hand, Hensley contends that he did not represent to them that he was of age. We are of opinion, however, that the answer made to Howard, wherein Hensley stated that there was no reason against his making a good title to the property except the purchase-money lien, was, in effect, a representation that he was not disqualified by infancy or otherwise from making a good title. It was an intentional concealment of the truth, when it was his duty to speak. Hensley knew that he was not then of age, and good faith required that he should have an swered the question, not only truthfully, but fully, and in the sense and scope he knew it had been asked. This he failed to | S. R. Co. 138 Ind. 290, 46 Am. St. Rep. 384, do, and, in so failing, brought himself 37 N. E. 721; Koschman v. Ash, 98 Minn. squarely within the rule above laid down. 312, 116 Am. St. Rep. 373, 108 N. W. 514; He is estopped from now showing that the 26 Cyc. 1210. facts were different from what he then represented them to be. The alleged injury sustained by the plaintiff was not the proximate result of the The judgment is reversed, with instruc- dullness of the bit. tions to dismiss the petition. Master and servant augur bit. 127 Pac. 474.) An augur bit, the cutting points of which have become shortened and dull from use and frequest sharpening, is an ordinary simple tool, with the use and condition of which a servant of experience has as much or greater knowledge than the master, and where a servant, with twelve years' experience as a carpenter, is injured while boring a hole with such tool, and the only negligence relied on or attempted to be proven is such defect, of dull and worn condition, it not being claimed that it broke, it was otherwise out of repair, held, that the evidence fails to show a violation by the master of any duty owing to the servant, and that the judgment is therefore not supported by evidence. Home Oil & Gas Co. v. Dabney, 79 Kan. 820, 102 Pac. 488; Missouri P. R. Co. v. Columbia, 65 Kan. 390, 58 L.R.A. 399, 69 Pac. 338; Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 24 L. ed. 256; Powers v. New York, L. E. & W. R. Co. 98 N. Y. 274; Powers v. Thayer Lumber Co. 92 Mich. 533, 52 N. W. 937; Young v. Burlington Wire Mattress Co. 79 Iowa, 415, 44 N. W. 693; Conley v. American Exp. Co. 87 Me. 352, 32 Atl. 965. Messrs. R. L. Evans and T. A. Johnson, for defendant in error: If an employee discovers that appliances or tools furnished him by the employer are defective, and informs the employer of such defect, and, relying upon the employer's assurance that the defect will be remedied, continues in the service of his employer, he will be entitled to recover. Neeley v. Southwestern Cotton Seed Oil Co. 13 Okla. 357, 64 L.R.A. 145, 75 Pac. 537; Boyd v. Portland General Electric Co. 40 Or. 126, 57 L.R.A. 619, 66 Pac. 576; Shawnee Light & Power Co. v. Sears, 21 Okla. 17, 95 Pac. 449. It appears that plaintiff was a carpenter by occupation, having had some twelve years' experience in such trade; that he had worked for defendant about three years and in the repair shops at Hugo for more than a year; that on the day of the injury plaintiff undertook to bore an inch hole through a piece of timber 2 inches thick, 10 inches wide, and 25 inches long, with a hand-boring machine belonging to defendant and found there in the shop. The only negligence claimed, shown, or attempted to be shown is that the auger bit which worked in this hand-boring machine was dull and the cutting edge of the bit considerably worn down from having been sharpened with a file. It is not claimed that the machine or the bit were otherwise out of repair. It is shown that the machine is a simple contrivance, no |