to the purchasers. The real questions which arise are whether the sale of property by a revenue officer under a distraint warrant for the collection of a tax cuts off the title of a third person who doe not owe the tax and against whose property the warrant is not direct ed; and, if not, whether the true owner may assert his title and righ of possession by replevin against the purchasers after the officer ha made the sale. It is elementary that property does not always remai in the custody of the law merely because it was once in the possession and subject to the jurisdiction of a court or public officer. Wher jurisdiction has been exhausted and possession relinquished, it is a much the subject of seizure at the instance of any one not concluded by the prior proceedings as other property.

The proceedings of a collector for the collection of a tax, such a were taken in this case, are distinguishable from a forfeiture and condemnation of property seized for violation of the customs or in ternal revenue laws. In a case of the latter character the proceeding is in rem. The offense which has been committed is attached to th property itself. In a sense the property is proceeded against as th offender. When a forfeiture of personal property arising from i legal act or omission has been made effective by condemnation an sale, all title passes to the purchaser, and in some instances withou reference to any personal delinquency of the owner. The owner ma or may not be innocent; the property may or may not belong to hir who is guilty. But not so in a case like that before us. There wa no proceeding for forfeiture and condemnation for any delinquenc of C. J. Knott. He simply failed to pay a tax assessed against hi and a writ in the nature of an execution was issued for its collection In such cases the acts of Congress limit the lien of the government t the property belonging to the tax debtor, and it is only such propert that the collector is authorized to levy upon and sell. Moreover, is expressly provided that the collector's certificate of sale "sha transfer to the purchaser all right, title and interest of such delin quent in and to the property sold." Rev. St. §§ 3188, 3190, 3193186, as amended by Act March 1, 1879, c. 125, § 1, 20 Stat. 327 [ S. Comp. St. 1901, p. 2060]. Naturally the purchaser gets no mor than the collector is authorized to seize and sell, and we know of n rule, statutory or judicial, that in such cases bars a third person wh was not a party to or concluded by the proceedings and who claim to own the property from asserting his claim against the purchaser any forum having cognizance of ordinary controversies between in dividuals.

The order of the Circuit Court is reversed, and the cause remande for further proceedings not inconsistent with this opinion.

BETTIS v. FREDERICK LEYLAND & CO., Limited.
(Circuit Court of Appeals, Fifth Circuit. March 12, 1907.)

No. 1,585.

SHIPPING INJURY OF STEVEDORE-LIABILITY OF VESSEL OWNER.

The owner of a vessel which was seaworthy and properly equipped is not liable, under the admiralty law, for an injury to a stevedore's employé caused by the negligence of himself or other employés handling the hatch coverings when discharging the vessel.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 342, 349.]

Appeal from the District Court of the United States, Eastern District of Louisiana.

Armand Romain, for appellant.

Henry P. Dart and Benj. W. Keran, for appellee.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. Judge Parlange gave the following reasons for dismissing the libel:

PARLANGE, District Judge. The sole fault or negligence charged is "that said accident was due entirely to the fault of the agent or foreman of the Ter of said steamship and of the mate thereof, who refused to have said burden piece removed while said work was going on; that said burden piece should have been taken off as is regular and customary; that your belant was unnecessarily subjected to great risk not contemplated, and that your libelant in no way contributed to said injuries." An additional contention is made in the brief, based upon certain testimony, which was objected to, that the burden piece should have been bolted. No such issue was raised by the libel. However, even if it had been raised, the result of the suit would, under my view, be the same. The charge in the libel is not that the ship was unseaworthy, or that she was or that any of her appurtenances were detive. The only charge is that libelant was required to do dangerous work. and that the foreman and mate were negligent as to the manner of directing the work and having it performed. It would seem that on exception of "no cause of action," the libel would have been dismissed. The libel does not aver and the testimony does not show any legal liability on the part of the vessel under the doctrine of The Osceola, 189 U. S. 158-175, 23 Sup. Ct. 483, 47 L. Ed. 760. It may be said incidentally-though the matter is not necessary to the decision of the case that it would seem that the libelant assued the risk. In admiralty, the doctrine of assumption of risk is recognized, though the doctrine of contributory negligence does not necessarily defeat an action. The libel must be dismissed at libelant's costs.

These reasons were sufficient and conclusive. The appellant, however, contends that as the original libel was changed from one against the ship to one in personam against the owners, the libelant is entitled to recover because he says the evidence shows that the owners did not furnish the libelant a safe place, and the libelant was made to work in unsafe premises. It would be difficult to point out wherein in cases of this kind a greater liability rests upon the owners than upon the ship. The proctor for libelant has not pointed out the distinction further than as made in his contention. The authorities cited are common-law cases. We need not, however, discuss it, because from the evidence in the case the owners furnished as reasonably safe premises and surroundings for

libelant to work in as the nature of the case permitted. The place or premises were only made dangerously unsafe by the negligent handling of the hatch furniture which was entirely under the control of the libelant and his colaborers. They took out enough of the hatch coverings to answer their purpose when they were removing goods from between decks from aft the hatch; and when they changed to removing goods from forward of the hatch they should have taken out the alleged burden piece the subsequent fall of which injured the libelant. For not taking it out, neither the ship nor its owners were in any wise negligent or liable.

The decree appealed from is affirmed.

JOHNSON V. FREDERICK LEYLAND & CO., Limited.

(Circuit Court of Appeals, Fifth Circuit. March 12, 1907.)

No. 1,586.

SHIPPING-INJURY OF STEVEDORE-LIABILITY OF VESSEL OWNER.

Evidence held not to sustain the allegations of a libel, that an injury to libelant resulted from a defect in the fittings of a vessel, in view of the rule that a libelant in such case must establish his claim with reasonable certainty.

Appeal from the District Court of the United States for the Eastern District of Louisiana.

Armand Romain, for appellant.

Henry P. Dart and Benj. W. Kernan, for appellee.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. In dismissing the libel in this case, Judge Parlange gave the following reasons transmitted in the record:

Memorandum of Reasons for Dismissing Libel.

PARLANGE, District Judge. The libelant was bound to make his case reasonably clear and certain. A careful perusal of the evidence entirely failto convince me that the facts as alleged in the libel are true. The faul charged is that the burden piece was too short. If this had been proven, the vessel would be liable. But it is contended on behalf of the claimants that the cause of the accident was that the libelant or his fellow laborers did not put the burden piece in the place intended for it. If this is true, the vessel is not liable. No failure of supervision by the foreman of the officers of the ves sel, could, under the circumstances of this case, render the vessel liable. As to all of these conclusions, see The Osceola, 189 U. S. 159-175, 23 Sup. Ct 483, 47 L. Ed. 760. The least that can be said as to the effect of the testimony is that it leaves the libelant's case in such uncertainty that a decree in his favor would not be justifiable. But it may be that there is a preponderance of proof against the libelant, although it is not necessary to so find, in order to dismiss the libel. Any bias which the witnesses for the claimants may have had, resulting from the fact of their employment by the vessel, is off set by other considerations operating on libelant's witnesses in his favor. In all cases similar to the present one, a decision can be reached with almost absolute certainty, on the testimony of one or more disinterested witnesses charged to view and survey the alleged defective appliance. It is evident to me, under the evidence, that it was in the power of either party in this case to have a survey made. As the case is not one in which the party alone

could have had a survey made, no presumption arises against the claimants. It seems that the law is that when it is in the power of either party to produce certain evidence and neither produces it, no presumption arises against either. 11 A. & E. Enc. Law (2d Ed.) p. 504, note; vol. 22, A. & E. Enc. Law (2d Ed.) p. 1262. Still, the fact remains that it was in the power of the belant to have had a survey made and it was his duty to make his case reasonably clear and certain. He has not done so though having the means. The decree must therefore be against him. The libel must be dismissed at libelant's costs.

We are not prepared to say that under the evidence it was in the power of either party in the case to have had a survey made-certainly not equally in the power of either party, for consideration must be given to the fact that the libelant, following his injuries, was laid up, and the ship very soon sailed away. It is true the ship returned at a later date, but then a survey, to be conclusive, would have needed to be supplemented with proof that there had been no changes made in the alleged defective burden and fore and after pieces of the third hatch, and this would have been more in the power of the owners than of the libelant. However this may be from a very careful consideration of the case, keeping in mind that the libelant was bound to make his case reasonably probable and certain, we are unable to find that the trial judge erred in dismissing the libel.

The judgment of the District Court is affirmed.

LESTERSHIRE LUMBER & BOX CO. v. W. M. RITTER LUMBER CO. (Circuit Court of Appeals, Second Circuit. April 8, 1907.)

No. 189.

SALES-WARRANTY OF QUALITY-EFFECT OF ACCEPTANCE.

A provision of an executory contract for a sale of lumber that "it is understood that this stock will be dry and in condition to work on arrival," if construed as a warranty, is not one which survived the acceptance and retention of the lumber by the purchaser, under the law as settled by decision in New York; the condition of the lumber being obvious on inspection.

[Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sales, § 818.] Wallace, J., dissenting.

In Error to the Circuit Court of the United States for the Northern District of New York.

The case comes here upon the pleadings and the report and opinion of the referee to whom the issues were referred by stipulation of the

arties.

Carver, Deyo & Hitchcock, for plaintiff in error.

Kernan & Kernan, for defendant in error.

Before WALLACE, LACOMBE, and COXE, Circuit Judges.

COXE, Circuit Judge. After a careful examination of the report and able and comprehensive opinion of the referee we see no reason to disturb his conclusions of law.

The only question which we regard as at all doubtful is that presented by the second and third assignments of error, namely, whether or

not the referee erred in finding that the provision of the contract, "It is understood that this stock will be dry and in condition to work on arrival" was a sale by words of description only, not constituting an express warranty, there being in no event a warranty which survived the acceptance of the lumber.

The defendant was entitled to have dry and workable lumber delivered; its condition in this regard was obvious and could have been easily ascertained by defendant's inspectors. It is not a case of secret imperfections or latent defects. With full opportunity to discover the condition of the lumber as to dryness, the defendant, having as certained the facts, was under no obligation to keep the lumber if not up to the contract standard, but, having accepted and used it, the warranty, even assuming the language used to be in the nature of a warranty, was lost; it did not survive the acceptance.

There is some conflict of authority upon this question, but we agree with the referee that the facts bring the controversy within the rule of Reed v. Randall, 29 N. Y. 358, 86 Am. Dec. 305. In that case the plaintiffs converted the property and months after delivery and acceptance brought an action to recover damages resulting from its being improperly cured and being in bad condition when delivered. The defendant had agreed to deliver the merchandise (tobacco) "well-cured and boxed, and in good condition." The court held that in an executory contract of sale the right to recover damages because the goods do not correspond with the contract will not survive an acceptance and retention of the property with full opportunity to ascertain the defect. in the absence of notice to the vendor or proof of fraud.

Reed and Randall is a leading case and has been the law of New York for nearly half a century. Its application has by subsequent adjudications been somewhat circumscribed, but we think it cannot be distinguished on the facts from the present controversy.

See, also, Waeber v. Talbot, 167 N. Y. 48, 60 N. E. 288, 82 Am St. Rep. 712; Gentilli v. Starace, 133 N. Y. 140, 30 N. E. 660; Stude v. Bleistein, 115 N. Y. 317, 22 N. E. 243, 5 L. R. A. 702.

It follows that the judgment must be affirmed with costs.

LACOMBE, Circuit Judge. I concur in the result arrived at by Judge COXE because I am of the opinion that the provision as t dryness of the timber was not a warranty.

WALLACE, Circuit Judge. I dissent. In my opinion there wa an express warranty as to the condition of dryness, as well as to the quality, of the lumber, and the defendant was not precluded by ac cepting the lumber, after an opportunity to discover that it did no comply with the warranty, from recovering by way of recoupment th damages resulting from the breach. See Bagley v. Cleveland Rollins Mill Co., 22 Blatchf. 342, 21 Fed. 159, and Zabriskie v. C. V. R. R Co., 131 N. Y. 72, 29 N. E. 1006.