12th Ed., p. 69; Parsons on Maritime Law, vol. 2, pp. 671-2; Parsons on Shipping, vol. 1, pp. 116-17. The verdict is void because it is a joint verdict against surviving defendants and the administrator of a deceased defendant. Wait’s Practice, vol. 1, pp. 153-4; Estee’s Pleadings, vol. 1, p. 85; Pomeroy’s Remedies, 2d Ed., pp. 357-60 and pp. 454-5.
Geo. W. Newton for plaintiff and Louis Hanitch for intervenors: Defendants by not raising point of non-joinder by demurrer or answer have waived it. Coulson v. Wing, 22 Pac. 570; Samainego v. Stiles, 20 id. 607; 1 Wait’s Pr. 119-20; Dunnell v. Walsh, 33 N. Y. 43. Master of boat may sue in his own name. Lewis v. Hancock, 11 Mass. 72; Bliss Code Pl. § 59. The administrator of the deceased defendant was properly substituted as a party defendant. Pomeroy’s Remedies, § 407; Lecher v. Trilling, 24 Wis. 610; Bank v. Howland, 42 Cal. 129; Gardner v. Walker, 22 How. P. 405.
Corliss, C. J. In November, 1880, the steamer Eclipse sailed from Bismarck, in the, territory of Dakota, on an eventful voyage up the Missouri river, bound for Ft. Buford, Mont., laden with army supplies consigned to the quarter-master at that point. She never reached her destination, but was frozen in about 60 miles from the fort by water and 35 miles from it by land. There has been much litigation connected with this vessel. Some of it has been finally disposed of, (Rea v. Eclipse, 30 N. W. Rep. 159; on appeal, 135 U. 8, 599, 10 Sup. Ct. Rep. 873;) and some of it awaits final settlement by this court on this appeal. The purpose of this action was to recover full freight for transporting these military stores under an agreement to carry them from Bismarck to Ft. Buford. Deferring for the present the consideration of the question whether the defendants against whom the judgment appealed from was rendered are liable, and whether the plaintiff has shown a right to maintain this action for such freight in his own name, we will first determine whether any freight can be recovered at all, and, if s0, whether full freight, or only a portion thereof, was earned. The judginent was for the full amount agreed to be paid. The goods were not delivered at the point to which they were con-
