The Detroit

(orally!. The libel in this case was originally filed by John K. Harrow, but, by an amendment allowed under an order of the district court, the name of James P. Harrow was substituted. It was not a more mistake in the name of *552the libellant, but an actual change of one person for another. I think there was no authority to make this order. It was decided by the supreme court in The Commander in Chief, 1 Wall. [68 U. S.] 43, that new parties may be added, and parties improperly joined may, on motion, be stricken out, but I do not think this authorizes the substitution of one sole libellant for another. It is, substantially, the institution of a new suit. Clearly, this could not be done at common law, and I know of no authority for this practice in equity, except the one cited from Bailey’s Reports, which rests upon different principles. If the claimant, after having objected, and asked to have the order vacated, had stood by his objection and refused to proceed further in the case, or if he had put his exceptions on record, showing that he had done everything in his power to insist upon them, I should have held it fatal in this court. But I think, by appearing, taking testimony and cross-examining witnesses, arguing the case upon the merits, and conducting the litigation for nearly eight years without observing any of the forms to which I have adverted, the objection must be deemed to have been waived. By appearing and contesting this new suit upon the merits, the claimant is now precluded from insisting it was not properly commenced. The effect of these proceedings upon the sureties, it is not necessary here to discuss. There is a controversy between the parties, whether the barge was taken to Canada on the 14th of .Tuly or on the 31st of August, but I do not regard it as material to the disposition of this case. The services having been rendered in May and June, the libellant cannot be considered in default for failing to prosecute his claim before the 31st of August, assuming her to have been removed upon that day. She remained at Windsor, opposite and in sight of Detroit, until the 27th of June, 1300, when the claimant Alger went to Canada. pm-chased her, and brought her to Detroit. where she was put into a dry dock and largely repaired. This libel was filed and the barge attached on the 13th of October, 1866.

The question to be considered is whether this delay is to be deemed a waiver of libel-lant’s lien as against Alger. It is said he is not a bona fide purchaser, by reason of the warranty contained in the bill of sale and the collateral guaranty given by M. B. Ivean. It seems to me, however, that the answer of Mr. Canfield is entirely conclusive upon that point. It is held in the authorities upon that stibject, that the very fact that a vendee accepts a quitclaim deed, is strong evidence that he is not a bona fide purchaser, and such I conceive to be the law. I do not understand that a person, by taking the warranty of his vendor, or of a third party-, loses the protection of the law applicable to bona fide purchases. The services were rendered while the vessel was in possession of McDonald, under a claim of ownership. So far as it appears from the testimony, the barge was his, and he was its agent for all purposes. After he had failed to complete his purchase, and the vessel was surrendered to Ivean, he was entitled to be advised that such a claim was owing by McDonald when he might possibly protect himself against it, and it is proven in this case that a demand was made upon him for payment some time during the following autumn. Had libellant failed to give this notice before the close of navigation. I should have held the barge discharged of the lien while in Ivean’s hands. But it seems to me this was not libellant’s only duty in the premises. The season of navigation closed and winter passed. On the 27th of June. 1866, the claimant Alger went to Windsor, where the barge was lying, purchased her, brought her to Detroit, and placed her in Jones’ shipyard, where extensive repairs were commenced. Libellant was bound to know all this. He certainly could have learned it by observation or inquiry. Yet he allowed the months of July, August and September to elapse without taking a step to enforce his claim. Not until the 6th of October, was his libel filed and the vessel attached. During all this time the title was vested in Alger. Now. as a question of law, was this reasonable diligence? The main authorities upon the subject have been read and I fully concur in their reasoning.

In the cases of Stillman v. The Buckeye State [supra], and The Dubuque [supra], a rule applicable to the lakes is laid down, that where the vessel has passed into the hands of a bona fide purchaser, claims of this character should be prosecuted within the current season of navigation, or, at least, within a year. I think this rule is founded upon the most solid considerations of good sense. Granting there were no laches in this case before the close of navigation, as the vessel was all this time beyond the jurisdiction of the court, I think it was incumbent upon libellant to keep a careful watch upon her movements, to notify the purchaser of his claim as soon as she was sold, and to proceed to enforce his lien as soon as she was brought within the jurisdiction of the court. He was bound to know that this vessel was as likely to change hands as any other, and should have used diligence to ascertain when she was transferred to Alger, and have given him speedy notice of his claim in order that he might lose no opportunity of protecting himself against it. Instead of this, he allows the three busiest months of the season to elapse without making known its existence. I think these facts warrant the presumption that the lien was waived.

Upon the best consideration I have been able to give to the case, I feel constrained to affirm the decree of the district court. Libel dismissed.