Opinion of the court.

Strong effort is made by the respondents to take the case out of the operation of that rule by attempting to show that the schooner changed her course. Persons engaged in navigating vessels upon navigable waters are bound to observe the nautical rules recognized by law in the management of their vessels on approaching a point where there is danger of collision. Undoubtedly the same law which requires vessels having the wind free, or sailing on the larboard tack, to keep out of the way or give way, as the case may be, also imposes the correlative duty upon those closehauled on the wind, or sailing on the starboard tack, to keep their course, in order that the former may know the position of the object to be avoided, and not be baffled or led into error in their endeavors to comply with the requirement.*

Appellants show, beyond doubt, that the schooner changed her course, but they do not show that she changed it at a time or in any sense when or in which the law regards it as a fault. The rules of navigation mentioned do not apply to a vessel required to keep her course after the approach of the advancing vessel is so near that the collision is inevitable. An error committed by those in charge of a vessel under such circumstances, if the vessel is otherwise without fault, will not impair her right to recover for the injuries occasioned by the collision, for the reason that those who put the vessel in that peril are chargeable with the error, and must answer for the consequences which it occasions.

Evidence shows satisfactorily that the schooner kept her course until the peril was impending and the collision inevitable, and that the order, hard-a-starboard, was given by the master at the moment it occurred, "to ease off the blow and make it glancing." Such a change of course, at that moment, the District Court held was demanded as a means of self-preservation and was not a fault, and we entirely concur in that conclusion.

Objection is also taken to the decision of the court in confirming the report of the commissioner as to the amount of

*Steamship Co. v. Rumball, 21 Howard, 384.

Statement of the case.

the damages, but the objection is without merit and is hereby overruled. Decision of the District Court in the case of the cross-libel was also correct.

Decree of the Circuit Court

AFFIRMED WITH COSTS IN BOTH CASES.

PURCELL V. MINER.

A contract for the exchange of lands is as much within the statute of frauds as a contract for their sale, and a party seeking to enforce a specific execution of a parol contract for that purpose, must bring himself within the same conditions, before he can invoke the aid of a court of equity.

That is to say, he must make full, satisfactory, and indubitable proof— First. Of the contract, and of its terms; a proof which must show a contract leaving no jus deliberandi, or locus pœnitentiæ; and which cannot be made out by mere hearsay, or by evidence of the declarations of a party to mere strangers to the transaction, in chance conversation. Second. That the consideration has been paid or tendered. And even the payment of the price in part or in whole, will not, of itself, be sufficient for the interference of a court of equity, if the party have a sufficient remedy at law to recover back the money.

Third. That there has been such a part-performance of the contract that its rescission would be a fraud on the other party, and could not be fully compensated by recovery of damages in a court of law. Fourth. That delivery of possession has been made in pursuance of the contract, and acquiesced in by the other party; a requisition which is not satisfied by proof of a scrambling and litigious possession.

PURCELL filed a bill against Coleman, Miner and wife, and others, in the Supreme Court of the District of Columbia, where the statute of frauds-enacting that all estates in lands made by parol only and not put in writing and signed by the parties making the same shall have the force and effect of estates at will only-is in force. The bill set forth that Coleman having a house in Washington, and he, Purcell, a farm in Virginia, "a trade" had been made between them; and the possession and key of the house delivered to him by Coleman, and full payment admitted by Coleman's

Statement of the case.

receiving the farm, the title of which he had examined, and "the trade" closed; and that Coleman had requested the complainant to prepare both deeds; that Purcell had done. so, and had tendered and was now ready to tender to Coleman a deed for the farm according to the contract.

The bill then went on:

"Your orator further avers that several weeks thereafter, to • his great surprise, about the time he had commenced improving the house for the purpose of placing a tenant in it, the said Coleman, in the night-time, entered the back way, by means of a ladder, and took from the back door the key on the inside of said house, and held forcible possession of the same until he was found guilty of the charge by two justices, after hearing all the testimony and having the aid of two counsel. That the said. Coleman then delivered the key to your orator, and stated in the presence of several gentlemen that the change of property was fair; that he knew its condition before trading, in relation to its value and title; that it was advantageous to him, but that his wife had a few days previous refused to go with him to the said farm, and that was his only reason for his unlawful conduct, and that he would not do it again, and that he would pay all the costs in the case, which he has failed to do.

"Your orator further avers that notwithstanding the key, possession, and equitable title being with your orator, and that he had actually prepared a bill in equity to compel said Coleman to make him a deed for the house and lot, and was about to file it, that to his great surprise it appeared that on the 9th March, 1861, one Miner had entered into a conditional contract with the said Coleman for the house and lot, and obtained a deed for the same in the name of his wife; the said Miner well knowing at the time he made the conditional contract with the said Coleman that your orator was entitled to the equitable estate in said house and lot, as well as the peaceable and lawful possession of the same; that the said Miner, in order to get possession of the house, in the absence of your orator prepared a false key and entered it, first having torn down the printed advertisement from the door showing the house was for rent by your orator. And that your orator had again to incur the expense, loss of time, and annoyance of prosecuting the writ of

Statement of the case.

forcible entry, and the said Miner was found guilty as charged, and fined fifty dollars.

"Your orator further avers that the said Miner stated to your orator in the presence of several gentlemen that it was not necessary to make him a party to the suit to compel the legal title; that if your orator succeeded against said Coleman, that said Coleman was to convey back to him or his wife the land in Virginia, which he had conveyed to said Coleman for the house and lot referred to, thereby showing that their pretended exchange was entirely depending on the right of your orator to the said house and lot, which is still in your orator's possession, but owing to the annoyance, by said Coleman and Miner, he has been unable to rent it.

"Your orator further avers that it is impossible to place your orator and the said Coleman in the same situation they were in before they exchanged property, because the said Coleman not having given attention to the farm, a barn has been destroyed, and also much of the fencing, as your orator has been informed and believes, and that he has been at expense in repairing the house and lot, &c."

The bill prayed a specific performance of the contract set up.

The bill was answered by Miner, denying, &c., and set out that Miner also having a farm in Virginia, he and Coleman had agreed on and actually consummated a bonâ fide and unconditional exchange of the house for it.

The answer then thus went on:

"This defendant further says, that soon after the execution of said deed to his said wife he took possession of the premises (as this defendant was authorized to do as the property of his wife) in a peaceable, quiet, and proper manner, and that he met upon the street a locksmith, who unlocked the front door of said house and sold this defendant a key. Some days subsequently the said complainant demanded of this defendant the possession of said house and lot, which demand this defendant refused to comply with. The next day the complainant came to the premises with a large number of officers and two justices of the peace, and in their presence again demanded possession

Argument for the appellant.

of the house and lot, which this defendant again refused to grant, but being requested by said justices, he opened the door. and allowed them to enter. The said justices immediately proceeded to try the question of possession, and, to the utter surprise and astonishment of this defendant, imposed a fine for withholding from the said complainant the possession of the said house and lot. This defendant requested the said complainant to show his title to the said house and lot which he claimed, and the said complainant exhibited some papers, but none of them were signed by said Coleman, nor were they of any consequence in reference to the support of his pretended claim of title. This defendant immediately called upon Coleman and related to him the circumstances in reference to the claim upon the house and lot set up by the complainant, and was informed by Coleman that the complainant had no claim upon the said house and lot, but admitted that they had been negotiating for an exchange of properties, and while the negotiations were going on, he, the said Coleman, learned that the farm in Virginia that said complainant had offered him for said house and lot did not belong to the said complainant, and that he could not give him, the said Coleman, a clear title thereto, and consequently that he, the said Coleman, had declined closing any contract with said complainant."

Mrs. Miner did not answer, but made default. A good deal of testimony was taken, many of the interrogatories— the parties managing their own case-being of a most leading character.

The court below dismissed the bill, and the case was now here on appeal.

Messrs. Brent and Merrick, for the appellant, Purcell:

At a moment when the complainant was entitled to a decree pro confesso against Mrs. Miner, the recipient of Coleman's title, the court dismissed the bill.

The statute of frauds is not relied on or intimated in the answer of defendants; but if it had been, it would not apply in this case. The giving possession is part performance.*

* Stewart v. Dent (N. & S.), 4th July, 1786; Simmons v. Hill, 4 Harris & McHenry, 252.