port of the proposition which they desired the court to adopt. Suffice it to remark, by the way of explanation, that all the parties interested in the case then under argument were before the court; which is all that need be said in respect to the operation of such a theory, if applied in a case where the parties interested were duly served and were present, and it did not appear that each of the respondents was not able to respond for a moiety of the damages suffered by the owner of the cargo.

Contingencies are also portrayed, in which it is conceded. that the theory may be applied without serious injustice or inconvenience; but the court proceeds to say, that it would seem to be just that the owner of the cargo who is supposed to be free from fault should recover the damage done thereto from those who caused it, adding, that if he cannot recover from either of them such party's due share, he ought to be able to recover it from the other, and that the same reason for a division of the damage does not apply to the owner of the cargo as applies to the owners of the ships. Remarks are then made to show that the moiety rule is both just and expedient between the ships where both are in fault; but the court proceeds to say, that if either is unable to pay his moiety of damage, there is no good reason why the owner of the cargo should not have a remedy over against the other, and finally remarks, that the moiety rule was adopted for the better distribution of justice between wrong-doers, and that it ought not to be extended so far as to inflict positive loss to innocent parties. The Gregory, 9 Wall. 516.

Much care was taken in framing the decree in that case, which of itself shows to a demonstration that the court never intended to adopt a theory which would fail to give innocent parties full compensation suffered by a collision, and that they never meant to extend the moiety rule so as to do injustice to an innocent tow or to the owner of cargo. Such a result can never be sanctioned by the justices of this court, so long as they adhere to the rule that when a third party has sustained an injury to his property, from the co-operating consequences of two causes, though the persons producing them may not be in intentional concert to occasion such a result, the injured

person is entitled to compensation for his loss from either one or both of them, according to the circumstances of the incident. The New Philadelphia, 1 Black, 76; Boyer v. Sturgis, 24 How. 122.

Except when both parties are to blame, the offending party can recover nothing, whether he pursues his remedy in the admiralty or at common law. Where both are to blame, neither can recover any thing at common law, but the admiralty requires each to suffer a moiety of the loss, to be ascertained in the manner already explained.

Parties without fault, such as shippers and consignees, bear no part of the loss in collision suits, and are entitled to full compensation for the damage which they suffer from the wrongdoers, and they may pursue their remedy in personam, either at common law or in the admiralty, against the wrong-doers or any one or more of them, whether they elect to proceed at law or in the admiralty courts.

Such a party is not required in any event to bear any portion of the loss suffered by others, the rule being, that where the collision occurs exclusively from natural causes, without any fault of either of the colliding vessels, the loss shall rest where it happens to fall, on the principle that no one is responsible for such a disaster, when produced by causes over which human skill and prudence can exercise no control.

Inevitable accident is a good defence in such a controversy, where both vessels are free from blame; but it is utterly unavailing if either or both were in fault. Where the vessel of the respondent is alone in fault, the libellant is entitled to recover full compensation for his damages; and the rule is, that if the vessel of the libellant is alone in fault, the decree must be for the respondent, that the libel be dismissed.

Cases also arise where both vessels are in fault; and the repeated decisions of this court have established the rule, that in that contingency the damages shall be equally apportioned between the offending vessels, as having been occasioned by the fault of both. The Catharine, 17 How. 177; The Sunnyside, 91 U. S. 216; The Continental, 14 Wall. 355; The Morning Light, 2 id. 560; The Pennsylvania, 24 How. 313.

Innocence entitles the loser to full compensation from the

wrong-doer, and it is a good defence against all claims from those who have lost. Individual fault renders the party liable to the innocent loser, and is a complete answer to any claim made by the faulty party, except in a case where there is mutual fault, in which case the rule is that the combined amount of the loss shall be equally apportioned between the offending vessels.

Decree reversed and cause remanded, with directions to reverse the decree of the District Court, and enter a new decree in favor of the libellants for the entire damages as ascertained by the commissioner.

MR. JUSTICE BRADLEY did not sit in this case.

KIMBALL v. EVANS.

Where a petition for the removal of a suit filed under the act of March 2, 1867 (14 Stat. 558), was, in accordance with the practice of the State, reserved for the decision of the Supreme Court, and the latter dismissed the petition, and remanded the cause to the inferior court for further proceedings according to law, Held, that this court has no jurisdiction.

ERROR to the Supreme Court of the State of Ohio.

Pending a suit in the District Court of Stark County, Ohio, a petition was filed, under the act of March 2, 1867 (14 Stat. 558), for its removal to the Circuit Court of the United States for the Northern District in that State. This petition presenting for consideration, in the opinion of the District Court, difficult and important questions, the cause was reserved, in accordance with the practice in Ohio, to the Supreme Court "for its decision on said petition for the removal of the cause to the Circuit Court." The Supreme Court, after hearing, dismissed the petition and remanded the cause to the District Court" for further proceedings according to law."

To reverse this judgment the present writ of error was brought.

Submitted on printed arguments by Mr. H. E. Paine for the defendant in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the

court.

It is clear we have no jurisdiction in this cause. The judgment of the Supreme Court is not the final judgment in the suit. It disposed finally of one of the questions involved in the suit, but not of the suit itself. The suit is still pending in the District Court, and it is not impossible that the parties now complaining may be satisfied with the judgment which they may in the end be able to secure in the State courts. If not, after a final judgment has in fact been rendered by the highest court of the State in which a decision in the suit can be had, the case may be again brought here for a determination of the questions arising upon the petition for removal. But in the present condition of the record the writ must be

Dismissed.

TALTY v. FREEDMAN'S SAVINGS AND TRUST COMPANY.

Where the pledgee parts with the pledge to a bona fide purchaser without notice of any right or claim of the pledgor, the latter cannot recover against such purchaser without first tendering him the amount due on the pledge.

ERROR to the Supreme Court of the District of Columbia. This was replevin by the plaintiff to recover a collateral security pledged to one Kendig, a broker, and by him sold to the defendant. Under the instructions of the court below, the jury found a verdict for the defendant; judgment was rendered thereon, and the plaintiff sued out this writ of error. The facts are fully set forth in the opinion of the court.

Mr. Joseph H. Bradley for the plaintiff in error.

The chattel replevied was a mere chose in action, and was not assigned by the owner. His indorsement in blank did not, at law, transfer any title to it.

Kendig had merely the option to purchase the collateral if the note was not paid.

If the plaintiff's testimony was true, no tender or offer of payment to the defendant was necessary. Wilson v. Little

Mr. Enoch Totten for the defendant in error.

The rule of exemption as to tender does not apply in a suit against a bona fide purchaser to recover possession of the pledge. Tender to the defendant of the amount due by the plaintiff on his note was necessary to enable him to recover. Demainbray v. Metcalf, 2 Vern. 691; Little v. Baker, Hoff. Ch. 487; Jarvis's Adm. v. Rodgers, 15 Mass. 408; Baldwin v. Ely, 9 How. 580; 3 Pars. on Contr. 274; Story on Bailm., sect. 327 ; Lewis v. Mott, 36 N. Y. 395; Donald v. Suckling, Law Rep. 1 Q. B. 585; Johnson v. Stear, 15 C. B. N. s. 330.

MR. JUSTICE SWAYNE delivered the opinion of the court. This was an action of replevin, prosecuted by the plaintiff in error. The judgment was against him. The bill of exceptions discloses all the evidence given by both parties. The facts lie within a narrow compass, and, except as to one point, which in our view is of no consequence in this case, there is no disagreement between them.

Talty had a claim against the city of Washington for work and materials, amounting to $6,096.75. He submitted it to the proper authority, and received the usual voucher. On the 4th of January, 1872, the claim was approved by the commissioners of audit, and a certificate to that effect was given to him. On the 6th of that month he employed Kendig, a broker, to negotiate a loan for him. With that view he placed in Kendig's hands his own note for $3,000, having sixty days to run, with interest at the rate of ten per cent per annum, payable to his own order, and indorsed by him in blank. He also placed in the hands of Kendig, to be used as collateral, his claim against the city, indorsed in blank also. The same day Kendig negotiated the loan and paid Talty the amount of the note, less the discount. Kendig sold the claim against the city to the defendant for ninety-six cents on the dollar. The money was paid to him. The purchase was made in good faith, and without notice of any right or claim on the part of Talty. With the proceeds of this sale Kendig took up the note. A few days before its maturity Talty called on Kendig and offered to pay the note, and demanded back the collateral. Kendig declined to accede to the proposition. He insisted that the