ON APPLICATION FOR REHEARING.
Corliss, J.On the application for rehearing, the opinion of the court has been attacked with such ability and earnestness by the counsel for defendants, who has laid under tribute, to strengthen his argument, so wide a field of juridical learning, that, despite the length of the original opinion, we feel constrained to state our reasons for not agreeing with him with respect to the new points he has presented. He seems to concede that we are correct in our view that the territorial statutes did not govern the appeal in the admiralty case. But he contends that such appeal was in all respects regulated by the statutes of the United States and the rules of the Federal Supreme Court relating to appeals from the Federal District to the Federal Circuit Court in that class of cases. The decision in The City of Panama, 101 U. S. 453, is cited as conclusive on this point. We do not so construe it. The court was not called on in that case to decide whether such statutes and rules governed the appeal to the Supreme Court of the Territory of Washington .from the Territorial District Court, for the practice which was in fact adopted on such appeal was sanctioned by the usuages of courts of admiralty on appeal in such cases, and did not require any support from legislation or formulated rules of court. The Federal Supreme Court nowhere asserts that the acts of congress, and the rules promulgated by that court, governed the appeal to the Territorial Supreme Court, nor is there to be found in the opinion any reasoning leading up to this conclusion. There is only a faint inference that such was the decision of the court, from the language of the assignment of error which is overruled. *247But that assignment would not have been changed, in its essential nature, had it stated that the court erred in holding that the general practice in admiralty, independently of legislation and formulated court rules, governed the proceedings on appeal to the Territorial Supreme Court, and in refusing to hold that the territorial statutes regulated such appeal. And the assignment, as so framed, would have more accurately pressed the proposition before the Federal Supreme Court for decision. In Smith v. The Challenger, (Wash.) 7 Pac. 851, both parties agreed that rule 16 of the Federal Supreme Court, relating to admiralty practice in the Federal Courts, was applicable to a case in territorial courts, the only difference between them being as to the construction of that rule.
But, even if we should agree with counsel that the appeal to the Territorial Supreme Court in the admiralty case was governed by the statutes of the United States, so far as applicable, we could not assent to his view that at the time such appeal was taken' there was any federal legislation relating to appeals from Federal District to Federal Circuit Courts in admiralty cases, aside from the statute giving the right to appeal. Rev. St. § 641. As this section originally stood, it provided that such appeals should be governed by the rules, regulations, and restrictions relating to proceedings on writs of error. While the statute remained in this form, there could be little doubt about appeals to the Federal Circuit Court, in admiralty proceedings on the instance side of the court, being governed by the statutes of the United States relating to proceedings on writs of error. See The Lottawanna, 20 Wall. 201; Hayford v. Griffith, Fed. Cas. No. 6,263. Mr. Conkling bases his criticism of Justice Story’s ruling to the contrary on that language of the statute which had been dropped therefrom before the appeal to the Supreme Court of the Territory of Dakota was taken in The Eclipse case. 2 Conk. Adm. 385 et seq. Under the statute as it then stood, th'e authorities cited, which construed the statute as it originally was framed, are not in point. There is, however, a single decision in favor of the *248counsel’s contention. It is Insurance Co. v. Wager, 37 Fed. 59. The reasoning of Judge Wallace does not convince us that he is right. He admits that his construction does violence to the language of the statutes relating to the subject. He finds his strongest — and practically his only — argument to justify his wresting of the words of the statutes in question from their obvious meeting in the circumstance that congress had, in express terms, exempted the government from the necessity of giving security on appeal to the Circuit Court in admiralty as well as in other cases. The inference he draws from this provison, that it indicates that congress considered that the government was not entitled to such an exemption as a matter of right, is a very natural inference. But his further deduction that, therefore, congress must, by prior legislation, have imposed on the government, as well as on others, the duty of giving security on such appeals, is not necessarily sound. The obligation to give security on appeal was, as we shall show later, recognized by courts of admiralty long before the federal government was established. It is just as logical a conclusion that congress had this practice in view, in framing the provision exempting the government from the performance of this obligation, as that it had in view a statutory enactment on the subject. Nay, the former conclusion is much more reasonable than the latter, when we examine the terms of the statutes from which the purpose to regulate proceedings on appeal to the Federal Circuit Court in admiralty cases is, by Judge Wallace, extorted by a process of construction which does violence to the language in which these acts are couched. Section 1012 of the Revised Statutes of the United States is, to our minds, a significant provision, and it seems to us to be hostile to the views of Judge Wallace. It, in terms, declares that the rules, regulations, and restrictions applicable to cases taken to a higher court on writs of error shall govern appeals in admiralty cases in only prize cases. Cases on the instance side of the court are not mentioned. In The Brantford City, 32 Fed. 324, Judge Brown held that there was no federal statute regulating the *249matter of security on appeals to the Circuit Court in admiralty cases, and this decision we regard as sound. It is not pretended that there was any rule of the Federal Supreme Court, at the time The Eclipse case was appealed, which regulated the matter of security on appeals to the Circuit Court in admiralty cases. Our conclusion, is that neither the territorial statutes, nor the acts of congress, nor the rules of the Federal Supreme Court, governed the question of security on .appeal to the Territorial Supreme Court in The Eclipse case. We also hold that, even if the statutes and rules which governed appeals to the Federal Circuit Court in such cases applied to the appeal in question, still there was no statute or rule regulating this matter on appeals to the Federal Circuit Court.
But conceding all this to be true, counsel for defendants still contends that, on the assumption that general rules of admiralty practice regulated the appeal in question, the instrument sued on is void so far as it provides that the obligors shall obey any order which the court might make in the premises. We fully agree with him that if the appellants in that appeal had an absolute legal right to secure a stay of proceedings by appealing, without incorporating in the bond that condition, then that portion of the bond is without consideration and void, unless other circumstances, to be referred to later, take the case out of the general rule laid down and applied. Kountze v. Hotel Co., 107 U. S. 378, 2 Sup. Ct. 911. In this connection we must express our dissent from the proposition that writs of error and appeals operated of themselves, at common-law, absolutely to stay execution. Counsel for defendants insists that no authority to require security as a condition of allowing a stay is ever'vested in any court without a statute to that effect, and that, as we hold that there is no statute relating to this matter in admiralty cases, the bond was a nullity. This is not a correct statement of the law. There has always inhered in courts of law, courts of equity, and courts exercising admiralty jurisdiction, power to require security to be given as a condition of staying execution. It is *250true that at common-law a writ of error operated in' the first instance as a supersedeas. But the court to which the writ of error was, issued had power, in its discretion, to allow the successful party to enforce his judgment despite the issuance of the writ and the same power was vested in the tribunal by which the writ was issued. Messonnier v. Kauman, 3 Johns. Ch. 66; Bradwell v. Weeks, 1 Johns. Ch. 325; Brewster v. Cowen, (Conn.) 10 Atl. 509-511; Allen v. Hopper, 24 N. J. Law, 514, 515; Entwistle v. Shepherd, 2 Term R. 78; Kempland v. Macauley, 4 Term R. 436. This power to permit execution to be issued notwithstanding the issuance of a writ of error necessarily included the lesser power to require the appellant to give security to obtain a stay until final decision by the Supreme Court. The statutes in England referred to by Mr. Justice Bradley in Kountze v. Hotel Co., supra were passed to give the respondent an absolute right to that which at common-law he could only pray for as a favor to be granted or withheld in the discretion of the court. When we turn to appeals in equity cases, we find that except during the struggle of the house of, lords to maintain its jurisdiction to review cases in chancery on appeal, when the rights of litigants were lost sight of in the strife for power, an appeal has never, of itself, been sufficient to entitle the appellant to a stay of proceedings pending the appeal. So long as the jurisdiction of the house of lords was challenged, that body deemed every step taken in the case, however slight, as a denial of its authority; and accordingly it arbitrarily held that nothing could be done in the lower court after appeal, however foreign it might be to the branch of the case which was carried up. As soon as its jurisdiction was generally recognized, it began to abate, its now no longer ambition inspired pretensions, and in 1772 it was held that the stay did not extend beyond that portion of the case which was removed to the house of lords by the appeal. Finally, in 1807, it declared, by resolutions, that even this doctrine, which had its origin in bitter contentions for judicial power, .in which the interests of the suitor were lost sight of, had for a long time *251previous thereto ceased to be followed, but that, on the contrary, an appeal, of itself, did not operate as a stay, — the appellant being required to apply to the chancellor to secure a stay, who could refuse it or allow it on such terms as he might prescribe. The action of the chancellor in this regard seems to have been subject to the supervision of the appellate court. Hart v. Albany, 3 Paige, 381; Messonnier v. Kauman, 3 Johns. Ch. 66; Burke v. Brown, 15 Ves. 184, note; Willan v. Willan, 16 Ves. 216; Way v. Foy, 18 Ves. 452; Monkhouse v. Corporation of Bedford, 17 Ves. 380; 2 Daniell, Ch. Prac. 1467. Except as changed- by statute, this has been the law in England for upwards of a century. In this country some of the courts have followed the English practice, while others have held that an appeal in an equity case stays, in the first instance, the order or decree appealed from, but that the chancellor or the appellate court may allow the successful litigant to enforce the decree or order despite the appeal. Messonnier v. Kauman, 3 Johns. Ch. 66; Riggs v. Murray, 3 Johns. Ch. 160; Bradwell v. Weeks, 1 Johns. Ch. 325; Green v. Winter, 1 Johns. Ch. 77; Hart v. Albany, 3 Paige, 381; Schenck v. Conover, 13 N. J. Eq. 31; Riehle v. Heulings, 38 N. J. Eq. 83; Peer v. Cookerow, 14 N. J. Eq. 361-365; Kimball v. Alcorn, 45 Miss. 149; Cook v. Dickerson, 1 Duer, 691. This power to permit the successful suitor to enforce the decree pending an appeal includes the lesser power of requiring the appellant to give security, as a condition of withholding execution while the appeal is pending. In several of the English cases the appellant was required to pay into court the money which the decree adjudged that he must pay, to be invested for the benefit of the person finally adjudged entitled to it. Willan v. Willan, 16 Ves. 216; Monkhouse v. Corporation of Bedford, 17 Ves. 380. This was ordered to be done in Riggs v. Murray, 3 Johns. Ch. 160, also. It cannot be questioned that in these cases the court could have required a bond, instead of the payment of the money into court. Indeed, in Riggs v. Murray the appellant was given an option to furnish security, instead of *252bringing the money into court. See, also, Cook v. Dickerson, 1 Duer, 691.
With respect to appeals in admiralty cases, counsel contends that’there is, in the absence of some statutory change in the practice, no such thing as a stay of proceedings, for the reason that the^appeal, of itself, annuls the decree appealed from, thus leaving nothing to be enforced pending the appeal. Undoubtedly, it has been many times asserted by the courts that the case is to be heard de novo on the appeal, — as though no decree had been rendered. And in some of the cases even stronger language is used. Yeaton v. U. S., 5 Cranch, 281; The Collector, 6 Wheat. 194; U. S. v. Preston, 3 Pet. 57; The Lucille, 19 Wall. 73; Penhallow v. Doane, 3 Dall. 54. But as was said by Judge Benedict in Dutcher v. Woodhull, Fed. Cas. No. 4,204, there was no question before the court as to the right of the respondent to enforce a decree after appeal, no security having been’given. In this case Judge Benedict intimates it to be his opinion that, despite an appeal, the decree would stand unaffected for the purpose of enforcing it pending the appeal, should no security be given. “In determining this case, it is not necessary to say whether, under some circumstances, a decree in admii’alty, made by the Distinct Court, cannot remain of effect after an appeal is taken to the Circuit Coui’t. It would seem that such may be the case where an appeal is taken, but no bond for damages on appeal is given. Under such circumstances, the failux'e of the appellant to give a bond for damages would seem to change the aspect of the case, and render it thereafter a pi-oceeding to obtain a decree of restitution, and the numex-ous cases heretofore determined, both in the Circuit Court and the Supx'eme Court of the United States, do not appear to me to furnish authority for determining that, after an appeal without security for damages on the appeal, no effect whatever can be given to the decision of the District Court. The general language of these decisions can only be understood by referring to the position of the cases then under consideration, which were not cases of appeal without security.” That an *253appeal did not, of itself, prevent an enforcement of a decree in admiralty, and that for that purpose it would be regarded as a subsisting decree, would seem to follow from the language of Clerke, Praxis Adm.: “If the party against whom sentence was passed shall have appealed at the time of delivering the sentence, and a term have been assigned for prosecuting the same, and a certificate of the prosecution of the same, and in the interim the judge has not been prohibited from further proceedings, the proctor who obtained the sentence ought to pray that the adverse party' should be called upon to show cause why sentence of execution should not be ordered, and the costs be taxed.” (How could the court proceed, if the appeal, of itself, annulled the judgment?) Title 61. See Page no of Hall’s Practice and Jurisdiction of Courts of Admiralty, where this title is found translated. In this country stay bonds have been given, and their necessity, as a condition precedent to a supersedeas, have been recognized in many cases. Some of these cases are referred to in the original opinion. In our view, these bonds were not required to be given by'any act of congress, but only by general principles of admiralty practice. If an appeal annulled the judgment, why was it necessary in these cases to give a stay bond to prevent the enforcement of the judgment, which, on this theory, was swept away by the appeal. But whether an appeal in admiralty cases left the decree standing for the purpose of enforcement, and security had to be given to obtain a stay, or whether the appeal was not perfected so as to annul the decree until proper security had been given, is not very important, for it cannot be denied that on appéal in admiralty cases the appellant was required to give security. “If the plaintiff in the first instance shall appeal, he is not allowed to file a libel until he has put in fide-jussory security to prosecute the cause, to pay the costs, to submit to the judgment, and to confirm the acts of his proctor.” Clerke, Praxis Adm. Tit. 59. See, also, Brown, Civ. and Adm. Law, 437; Dunl. Adm. Prac. 322; The Brantford City, 32 Fed. 324-326.
We agree with counsel for defendants that the 'plaintiff or *254libelant, when he was the appellant, was ordinarily not required to give security to pay or obey any judgment which might be rendered in the case, because, as a rule, he was not in possession of anything belonging to his antagonist which could be awarded him by the decree of the court. Generally speaking, the utmost extent of his liability under the English practice was for costs, and his stipulation for costs covered this liability. But the situation of the parties in the Eclipse case, at the time the appeal was taken, was peculiar. The vessel was in the actual possession of the appellants, and this fact appeared upon the face of the record in the case: The appellants desired to retain such possession pending the appeal. The sureties must be deemed to have knowledge of the fact that appellants were in possession, for it was part of the record in the case in which the bond was given. And they must also be regarded as being cognizant of the object of the appellants in giving such bond, for its recitals as to the nature of the judgment appealed from, if true, show that it was such a judgment that a stay of execution on it would leave the appellants in possession of the property pending the appeal. The sureties were therefore plainly apprised of the purpose of the appellants to secure by means of that bond the right to remain possession of the boat pending the appeal; and the large penalty named in the bond was another circumstance which made it obvious that the bond was given to enable the appellants to hold the vessel until final decision on appeal, thus leaving very valuable property which the decree awarded to the claimant in their hands at his risk, making it necessary that he should be secured. The bond was in the nature of a stipulation for value. But counsel for defendants urges that it cannot be regarded as having been given for any such purpose, for the reason that the complaint, in terms, avers that it was given to stay execution. But this allegation of the complaint must be construed in the light of the other facts set forth in that pleading; and, when so interpreted, it is manifest that it is an averment of the ultimate purpose for which the bond was given, namely, to enable the *255appellants to retain possession of the vessel pending the appeal. To give a bond to stay execution of a judgment which Those giving it construe as a judgment requiring the appellants to deliver property, of which they had actual possession, to their successful adversary, is, in its ultimate analysis, to give a bond to enable such appellants to hold possession of such property-pending the appeal. We are therefore clear that the sureties executed this bond with full knowledge that it would be used by the appellants for the purpose of enabling, them to keep possession of the vessel. When so used by them with the tacit acquiescene of the respondents, it became a valid obligation; having served the purpose which all the obligors intended it should serve. Whether the libelant in a possessory action is ever entitled to possession on giving a stipulation for value, or whether he may secure possession in this way after decree in favor of the claimant, even assuming that he may do so before final judgment, it is not necessary to inquire. 23 Am. and Eng. Enc. Law, 576' No statute or rule of law declares the bond in question void; and therefore, even though the claimant was not bound to allow the libelants to retain possession after the giving of this bond, still, as he did in fact permit them to remain in possession on the strength of the bond, the bond is valid in all its provisions, as a common-law bond, for the reasons set forth in the original opinion, Nor do we, by reaching the conclusion that the bond was in the nature of a stipulation for vakie, bring the case within the rules stated in the main opinion, — that exclusive cognizance of proceedings to enforce stipulations for value is vested in the Federal Court sitting as admiralty courts. The reasons for that rule do not apply to stipulations for value given in possessory actions. They are not substitutes for the original res, but are mere securities. Nor is it true that the only judgment which can be enforced according to its terms in a possessory action, where a stipulation for value has been given, is a judgment against the stipulators for value. Judgment is rendered for the delivery of possession to the successful party, *256and is enforced according to its terms, even if the property is in the'possession of the defeated suitor. Were this not so, the right to maintain a possessory action in admiralty would, in most cases, be illusory. If the claimant, by giving a stipulation for value, could defeat the right of the libelant to recover possession of his property, the word of promise of the admiralty law that possession of property might be recovered in admiralty courts would be kept only to the ear, and broken to the hope. On principle, it must be the rule that in possessory actions the original res can be seized under the judgment, and delivei-ed to the successful suitor. The John, 2 Hagg, Adm. 305-317; The Elize, 2 Spinks, 34; The Gran Para, 10 Wheat. 497. A stipulation for value, in such an action, is therefore not a substituted res, but in the nature of security for the property, as in replevin actions. The court can render a judgment for the delivery of the res, which it will enforce according to its terms. Therefore the reasons for the rule that exclusive jurisdiction of proceedings to enforce stipulations for value is vested in the court in which it was given do not apply to stipulations given in possessory actions, and it follows that they may be enforced in other tribunals.
Finally, it is said that there has been no breach of the condition of the bond to obey any order the appellate court might make, for the reason that no order requiring anything to be done has in fact ever been made by that court. It is urged that a judgment of affirmance is not; either in terms or in legal effect, an order requiring the delivery of the vessel to the claimant. In this connection the case of The Lucille, 19 Wall. 73, is cited. This merely holds that a judgment of affirmance in the Circuit Court is not a final judgment from which an appeal will lie to the Federal Supreme Court. The ground of this decision is that the Circuit Court should render an entirely new judgment, for the reason that the amount of the judgment should not be left to be ascertained by an examination of the records of another court. But in The Eclipse case it was not necessary to examine the records of the District Court to ascertain just what the judgment of the *257Supreme Court was. The original decree, or a copy of it, was among the records of the Supreme Court in the case, and that showed that the vessel was to be delivered to the claimant. By construing the judgment of affirmance in the light of the original decree, it would appear that the Supreme Court also had ordered that the vessel be delivered to the claimant.. All this would be shown by the records of the Supreme Court. It would not be necessary to look to any other record to determine the exact nature of the judgment of that court. While, perhaps) for the purposes of an appeal, the judgment of affirmance might not have been sufficient to sustain an appeal, it was a sufficient order of the Supreme Court for the delivery of the vessel to constitute a breach of the bond. Indeed, the Federal Supreme Court took jurisdiction of the case on appeal from such judgment, and have thus treated it as a sufficient final judgment in the case. The Eclipse, 135 U. S. 599, 10 Sup. Ct. 873. How a new judgment could now be entered, after an affirmance of this judgment by the Federal Supreme Court, we are unable to see; and, if counsel’s contention be sound, there could never be any recovery in this case, because the judgment of the Territorial Supreme Court did not, in terms, order that the vessel be delivered to the claimant, although, in legal effect, it was just such a judgment.
(65 N. W. Rep., 701.)The application for a rehearing is denied.
Wallin, J. I concur in the foregoing opinion, in so far as ' it denies the application for a rehearing.Note by G. W. Newton — The foregoing decision records only one turn in the litigation that has arisen from the ownership and doings of the steamboat “Eclipse.” It is the aim of this note to epitomize briefly, the many points of law that have been mooted and decided in such litigation.
1. The jurisdiction of admiralty does not extend to the execution of a trust. The title of a steamboat being in trustees, the beneficiaries may terminate the trust, and obtain a decree of sale upon a proper proceeding in a court of equity. Rea, et al v. Steamboat “Eclipse," 4 Dak. 218, S. C. 30, N. W. 159. Creditors and interveners, in order to wind up a trust, and enforce a contract of sale of a vessel, can not resort to a court of admiralty. A court of admiralty has not the characteristic powers of a court of equity in such case. Rea, et al v. The Steamer “Eclipse," Wm. Braith-*258Waite, claimant, U. S. Sup. Ct. Rep. L. Ed. B. 34, p. 269; S. C. The Eclipse, Rep. Ed. p. 599.
2. When a part owner is master, and in possession of a boat, under an agreement in writing, he is not subject to removal by his co-owners. Rea, et. al. v. Steamboat “Eclipse," 4 Dak. 218, S. C. 30 N. W. 159. The owner of one-half of the legal title of a steamboat, who is the master in possession, and who is by written agreement entitled to such possession at master, is not liable to removal from his position as master. Rea, et al v. The Steamer “Eclipse," Wm. Braithwaite, claimant, U. S. Sup. Ct. Rep. L. Ed. B. 34, p. 269; S. C. The Eclipse, Rep. Ed. p. 599.
3. The Supreme Court of the United States is limited, in reviewing judgments and decrees in admiralty cases, to a determination of the questions of law arising upon the record, and to such rulings of the court, excepted to at the time, as are presented by the bill of exceptions. Id.
4. Where the title to a boat is placed in two persons, as trustees, to be held by them as part owners, and for co-owners, until payment to the co-owners, of certain sums, representing the amount of their interests, and upon such payments the trust to terminate, and title absolute to vest in such trustees, the transaction is at most, a creation of a lien in the nature of a mortgage, and the trustees are the legal owners of the boat. Under such circumstances, a bill of sale executed by a part of the co-owners, would pass to the purchaser no title beyond the equitable interests of such co-owners, as beneficiaries of the trust. Rea, et al v. Steamboat “Eclipse," 4 Dak. 218, S. C. 30, N. W. 159.
5. Where the transcript of record upon an appeal from the District to the Supreme Court of the Terriiory of Dakota, in an admiralty case, contains evidence and extraneous matter, not made a part of the bill of exceptions, such evidence and extraneous matter should, by motion, be stricken from the record. Appeals in admiralty cases, from the District to the Supreme Court, are governed by the same statutes and rules that obtain in other civil actions tried to the court. Rea, et al v. Steamboat “Eclipse," 4 Dak. 218, S. C. 30 N. W. 159.
7. The District Court, of the State of North Dakota, is the successor of the Territorial District Court, and has jurisdiction to render judgments in actions pending in such territorial court, at the time of the admission of the state into the Federal Union; although the verdict was rendered before such admission. Braithwaite v. Power, et al, 1 N. D. 455, S. C. 48 N. W. 354.
8. Where the master of a vessel, who had agreed for a stipulated price, to transport goods upon the Missouri river, was interrupted by the closing of navigation, and the consignees forcibly took the goods from him, the master being able and willing to complete the transportation, to earn his freight, can recover full freight. No tiine for delivery being specified in the contract of affreightment, the master could rightfully have held the goods until the opening of navigation, that he might earn his freight by completing the transportation. Braithwaite v. Power, et al, 1 N. D. 455, S. C. 48 N. W. 354.
9. The master of a vessel who has entered into a contract of affreightment, in his own name as master, may maintain an action upon such contract as the trustee of an express trust, under § 4872, Comp. Laws of Dakota Territory. Braithwaite v. Power, et al, 1 N. D. 455, S. C. 48 N. W. 354.
10. Where the owners of three steamboats operated them jointly for their own benefit, under the name “Benton Line,” they are all liable as partners, Or joint traders on a contract of affreightment, made by their authorized agent in such name, *259to carry goods in place of one of such boats; and it seems that by operating such boats jointly, in such manner for two seasons, the owners would have rendered themselves liable as partners, or joint traders, even though they had not been such in fact. Braithwaite v. Powers, et al, 1 N. D. 455, S. C. 48 N. W. 354.
11. Where one of three defendants dies, pendente lite, and his administrator is substituted, and voluntarily appears and defends the action, and no objection is raised by any of the defendants to such course until after trial and verdict, the Supreme Court will not, on an appeal by the surviving defendants, reverse the j udgment against all of them when it provides that the judgment against the administrator shall be paid only in due course of administration. , Nor can defendants raise the point that a judgment against them should have been in favor of the plaintiff alone, and not in favor of plaintiff and interveners, as that is a matter exclusively between the plaintiff and intervenors. Braithwaite v. Power, et al, 1 N. D. 455, S. C. 48 N. W. 354.
12. Where the complaint in intervention is framed on the theory only, of co-operation by the interveners with the plaintiff, in the effort to secure judgment against defendants, and the prayer for relief merely requests payment of the money into the hands of a person to be designated by the court, no claim in the complaint, or on the trial being made that the rights of the plantiff and the interveners, as between themselves, are to be adjusted in the action; and the verdict is a joint verdict in favor of the plaintiff and interveners, for the amount of the recovery, it is error to award to interveners any specific portion of the money, without first having adjusted the equities between the plaintiff and the intervenors. Braithwaite v. Aikin, et al, 1 N. D. 475, S. C. 48 N. W. 361.
13. To warrant the granting of a new trial, on the ground of newly discovered evidence, the affidavits must show such new facts as will probably lead to a different result on a new trial. Applications for a new trial on this ground, are looked upon without disfavor and distrust. Such facts must be established by the affidavits of persons who are personally familiar with them, and it is not sufficient to set forth that another will testify to these facts, or some of them. The affidavit of such person, showing what he personally knows about them, must be produced; unless some strong reason is shown why this requirement should be dispensed with. Although the trial court has a large discretion in awarding or refusing new trials, which will not be interfered with except in case of abuse, yet, when a new trial is granted, upon a particular ground, there must be some legal evidence that such cause for a new trial exists; and the ground must be a legal ground for granting a new trial. Braithwaite v. Aikin, et al, 2 N. D. 57, S. C. 49 N. W. 419.
14. The plaintiff and interveners recovered judgment against the defendants, for certain earnings of the steamboat “Eclipse,” while the plaintiff was operating her under the agreement for her purchase, set out in Braithwaite v. Aikin, 1 N. D. 475, S. C. 48 N. W. 361; and the interveners, by their complaint in intervention, claimed the money due under the judgment, as money to which they were entitled under the agreement. Held, that the plaintiff (defendant in intervention) could not set up as a counterclaim, a cause of action for the conversion of his interest in the steamboat, referred to in such contract; that the cause of action for the tort did not arise out of the contract or transaction set forth in the intervention complaint, as the foundation of the intervener’s claim, and is not connected with the subject of the action. Also, that the cause of action for tort could not be sustained as an equitable set-off, independent of statute, there being no averment that the interveners are insolvent, and that the mere fact that they are not residents of the state does not warran t *260the application of the doctrine of equitable set-off; and also, that equity would not allow the set-off of a cause of action for an independent tort, against a claim arising on contract, even if the interveners were insolvent. Braithwaite v. Aikin, et al, 3 N. D. 365, S. C. 56, N. W. 133. One whose property has been converted, may waive the tort, and sue for the benefits received by the wrong-doers; although he has not disposed of the property converted, but the intent to waive the tort must appear on the face of the pleading. Id. One who intervenes in an action, subjects himself as fully to the jurisdiction of the court as if he had brought an original action against the person against whom his complaint in intervention is filed; and the defendant in intervention may recover an affirmative judgment against the intervener, either because of matters growing out of the intervener’s claim, or by establishing a counterclaim, the same as a defendant in an ordinary action. Id.
15. A judgment against an administrator in one state, has no binding force or effect against another administrator of the same estate in another state; and such judgment need not be pleaded in an action on the same account, against another administrator, in another state, in order to show that the demand sued on, had been given credit for the amount realized under the foreign judgment. Braithwaite v. Harvey, Adm'r, 14 Mont. 208, S. C. 27, L. R. A. 101, S. C. 36 Pac. Rep. 38. An administrator will not become bound by the judgment by assisting in the defense of a suit against another administrator of the same estate, in another state. Id.
16. A statement in a letter that “whatever is due is ready whenever I can safely pay you or” a third person named is not a sufficient new promise to take the claim out of the statute of limitations. Braithwaite v. Harvey, Adm'r, 14 Mont. 208, S C. 27 L. R. A. 101, S. C. 36 Pac. Rep. 38. Striking a paragraph from a complaint, on motion, is not reversible error, if it was not sufficient to authorize a recovery. Id.