author: Agnew, C. J.

text:
    Scull et al. versus Shakespear.
    1. Fisher agreed to huild a vessel for Lathhurv, to be paid for in instalments, the last when the vessel was finished; — Lathbury having failed, the vessel being partly constructed in the hands of Fisher, he with consent of Lathbury, agreed with Scull to build a schooner to be paid for in instalments, the last when finished ; there was no contract for delivery till all was paid. Held, that the' title to the vessel was not in Scull until payment in full.
    2. Until payment Fisher was owner and the vessel was subject to a lien for lumber furnished to him for her construction.
    3. On the trial of an attachment against the vessel by a material-man the jury found generally for the libellant, and also at the request of the court, added a special finding, that Fisher had no ownership when the lumber was furnished, &e. The court below entered judgment on the general finding. Held to be correct, the special finding being immaterial.
    4. The contract to build the vessel was to be performed on land and therefore was not within the admiralty jurisdiction of the United States courts.
    5. Walker v. Anshutz, 6 W. & S. 519, followed.
    February 12th 1874.
    Before Agnew, C. J., Williams, Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 28, to July Term 1872.
    This was a libel filed January 27th 1870, by William M. Shakes-pear against the schooner “ Maggie Cain,” William Fisher and James H. Fisher, partners as William Fisher & Son, owners, and Andrew Scull, master.
    The libel was filed under the Act of June 13th 1826, Pamph. L. 616, 1 Br. Purd. 94.
    Sect. 1 provides that vessels of all kinds built, &e., vrithin this Commonwealth, shall be .subject to a lien for all debts contracted by the masters or owners thereof, for work or materials done or provided in building, &c., in preference to any other debt due from the owners.
    Sect. 2. The lien shall continue during the time between contracting the debt, and the time when the vessel shall proceed on her voyage, next after the work done or materials furnished.
    Sect. 3. The lien for work done and materials furnished, shall exist in favor of the following classes of tradesmen and mechanics, and no others, to wit: Carpenters, blacksmiths, mast-makers, boat-builders, block-makers, rope-makers, riggers, joiners, carvers, plumbers, painters, ship-chandlers, coppersmiths, brass-founders, coopers, venders of sail-cloth and lumber merchants.
    The libel set out that at “ sundry times” between December 1st 1868 and January 1st 1870, the libellant, at the request of William Fisher & Son, “ owners or reputed owners” of the new schooner to be called the “ Maggie Cain,” furnished at Philadelphia for building, &c., the schooner, lumber and materials, for which there were, still due $3016.12, according to a bill of particulars which was annexed to the libel; that the schooner, of which Andrew Schull was master, was then lying at Plum street wharf on the Delaware river, in Philadelphia, and was not completely finished, and had not proceeded on a voyage since the lumber, &c., had been furnished.
    On the same day the attachment -was issued; the sheriff returned that he had attached the vessel, and “ made known to the defendants.”
    Scull, “intervening for his own interest as master and part owner of schooner, and on behalf of the other owners,” answered:
    1. That he and thirteen others, naming them, were owners of the schooner, that no other person was an owner; the list of names did not include William Eisher & Son.
    2. That the libellant between the dates stated in the libel, at the instance of Fisher & Son, had furnished ship-timber, &c., to them; but he denied that the timber was furnished to be used especially in building the schooner, but that it was furnished on the personal credit of Fish.er & Son only.
    3. Admitting that the schooner had not proceeded on any voyage, he averred that the hull had been built for her present owner by Fisher & Son, and before filing the libel had been launched and delivered out of the possession of Fisher & Son into the sole possession of her present owners, who had previously paid Fisher & Son $14,000 as they had contracted to do, that being the full consideration-money due them; and neither the respondent, master, and part owner, nor the other owners, had ever purchased from the libellant lumber, &c., to be used in building the schooner.
    4. Not one-third of the lumber mentioned in the bill of particulars was used in building the schooner, but that the lumber was used by Fisher & Son about other vessels.
    5. That if libellant had a right of lien against the schooner he had waived it, by accepting promissory notes in full settlement of his claim from Fisher & Son, except about 7000 feet of plank.
    6. That the Act of June 13th 1836 is unconstitutional in attempting to confer admiralty jurisdiction upon the District Court of Philadelphia.
    The respondent further averred that when the timber was furnished to Fisher & Son, they were building the schooner for Lath-bury, Wickersham & Co., and for Andrew Scull and others, and that Fisher & Son had never been owners of the schooner.
    A replication was filed, and the case put at issue April 9th 1870.
    The building of the schooner was under a contract dated the 23d of December 1868, between Fisher & Son and Lath-bury, Wickersham & Co., by which Fisher & Son agreed that they would build a three-masted schooner for Lathbury, Wickersham & _ Co., according to specifications set out in the agreement, for $18,500 payable in instalments, as specified in the agreement.
    Lathbury, Wickersham & Co. being unable to meet their payments the contract Avas abandoned, and in or about the month of September 1869 the contract was rescinded, and Scull and the other parties for whom he intervened, entered into a contract with Fisher & Son “ to build and finish the hull of a three-masted schooner now in frame, in accordance with the specifications in the agreement, for the sum of $18,000, of which $6000 were to be paid when the contract was signed and the remainder in instalments,each upon the completion of a specified part of the vessel; $2000 of the remainder to be paid when the vessel should be finished.
    The cause was tried November 21st 1871, before Lynd, J.
    The plaintiff testified that the schooner was built at the yard of Fisher & Sons, in Kensington, and he furnished materials for her by directions of William Fisher; commenced in September 1868, until “we came to a stop about the middle of April;” the largest portion was furnished between December and April; he kept on furnishing until November 25th. He then testified as to the times when the timber was furnished, the quantity and the price during all the time. Fisher & Son had charge of the yard; he saw the timber Avhich he had furnished in the schooner. Fisher told plaintiff the schooner was for Lathbury, Wickersham & Co., but plaintiff’s dealings from the beginning to the end were with Fisher & Son.
    Plaintiff gave other evidence of the delivery of the lumber and admissions by Fisher that the lumber in the schooner had been furnished by plaintiff.
    The respondents admitted that the lumber had been ordered by Fisher & Son, but not on the credit of the schooner.
    For the respondents, William Fisher testified that his firm built the schooner in the first place for Lathbury, Wickersham & Co., under a contract Avhich was destroyed before Scull and the other subsequent contractors Avould enter into an agreement with the firm.
    Lathbury testified that, his firm having got into difficulty in the summer of 1869 had asked Fisher “to find other owners;” having found Scull and the others to take the vessel off Lathbury, Wickersham & Co.’s hands, the contract was rescinded, and at the time “ Andrew Scull and others took the vessel and made a payment, Fisher & Son did not release us until Scull and others had taken the vessel.” The building of the schooner had stopped some five or six weeks; the rescission was by mutual consent; “ Scull and others were to step into our shoes.”
    William Fisher, called again, testified that they did not finish for Lathbury, Wickersham & Co. They undertook to finish for Scull and others, who took the vessel in September 1869; and Fisher & Son then released Lathbury, Wickersham & Co. Scull and others paid Eisher & Son $6000 at the execution of their contract and the release of Lathbury, Wickersham & Co. Fisher & Son, besides the $6000, received from Scull $7218.62 on the schooner, which was in full to December 17th 1869, and they delivered the vessel on that day or the next to Scull; she had not then been attached; she went to another yard close by Fisher & Son’s to get her masts; she did not come back to Fisher & Son’s; she was finished at another wharf; witness was broken and could not finish her; he never purchased timber from plaintiff on. the credit of any vessel; he did not purchase timber differently from any other.
    Other witnesses testified that Fisher k Son had no interest in the schooner.
    The sixth point of the respondent was:—
    “ The Act of 13th June 1836, upon which this attachment is issued, is invalid, and your verdict must therefore be for the defendants.” This point was reserved.
    The eighth point was:—
    “ I instruct you, as matter of law, that as between the builders of a vessel and those for whom the vessel is built, the title to said vessel can pass without delivery, where it can be designated and ascertained, and is separated from other property.” This point was refused.
    The court charged: * * *
    “ The question in this cause, full of nicety, is the question of ownership. There is no doubt, under our Act of 1836, that a party who sells material must show that the contract was made with the master or owners of the vessel. These words have a technical signification. The owner is the man who gets a certificate and is registered as owner. Contracts for voyages are usually made by the master or owners. This, the defendants contend, is the meaning of the word ‘ owner ’ within the meaning of this act. As far as the question of law is concerned, I reserve it. [Without regard to my individual opinion I charge you that a person who contracts to build a vessel for others, at a price stated, whether payable by instalments or otherwise, and does build her at his own yard, is the owner within the meaning of the Act of 13th June 1836, upon which this proceeding is founded. Therefore, you will have no difficulty in finding your general verdict.] I shall ask you to find specially whether William Fisher k Son had, at the time they contracted for the lumber in question, any other possession, control or ownership of the vessel ‘Maggie Cain,’ than as builders of or contractors to build her for Lathbury, Wickersham k Co., and for Scull and others. If Lathbury, Wickersham k Co. abandoned to Scull and others, and not to William Fisher & Son, then they were still contractors. During the construction for Scull and others their position cannot be doubted. The evidence under this special finding that yon are requested to make,centres in the question of abandonment. To whom did Lathbury, Wickersham & Co. abandon the vessel ? * * *
    “ If there was a moment or a day of time after the abandonment before Scull came in, Fisher & Son were the owners. * * * As to the general verdict, if the timber was not furnished to William Fisher & Son on their right as OAvners, then your verdict should be for respondent. If on the credit of the vessel, Avas it used in the building of the vessel ? If not, your verdict must be for the defendant. It is not contended that a great deal of this timber did not go into the vessel. It is only for the value of what did go in that you can find for the plaintiff. Go on and find your general verdict, leaving out the question of ownership, then consider separately the special finding.”
    The verdict was for plaintiff, for $3373.01. “ The jury find no ownership by William Fisher & Son in the schooner ‘ Maggie Cain ’ at the time the lumber was contracted for with William M. Shakespear, but we do find an ownership by them in said vessel during the interval that ensued between the abandonment of ownership by Lathbury, Wickersham & Co., and the sale to Andrew Scull and George Fisher and others.”
    On motion of the plaintiff, the court amended the special finding so as to read:—
    “ The jury find no ownership other than as builders, by William Fisher & Son in the schooner ‘Maggie Cain,’ at the time the lumber was contracted for with William M. Shakespear; but we do find an ownership other than as builders by them in said vessel during the interval that ensued between the abandonment of ownership by Lathbury, Wickersham & Co., and the sale to Andrew Scull and others.”
    The court then entered judgment for the libellant as follows:—
    “And now, March 16th 1872, it appearing to the court that the demand of the libellant has been duly found by the verdict of the jury, judgment is entered upon the said verdict of the jury, and upon the point reserved at the trial, and it is further ordered, adjudged and decreed that the said William M. Shakespear, the libellant, do recover of the said respondents and the said Andrew Scull and his sureties in the bond filed in this cause, the sum of three thousand three hundred and seventy-three dollars and one cent, Avith interest thereon from the twenty-third day of November, A. D. 1871, together with his reasonable costs and charges by him in and about his said suit in that behalf expended.”
    The respondents took a writ of error, and assigned for error :—
    1. The part of the charge in brackets.
    2. Refusing their 8th point.
    4, 5. Not entering judgment for the respondents, and entering judgment for the libellant on the special finding.

      6. Amending the special finding.
    7. Entering judgment for the libellant on the plaintiffs’ 6th point, which was reserved.

      J. W. Ooulston, for plaintiffs in error. — Those who contract to build a vessel for others are not owners within the Act of 1836 : Harper v. New Brig, Gilpin’s Rep. 540 ; Smith v. Eastern R. R., 1 Curtis 0. C. R. 260; Hubbell v. Denison, 20 Wendell 181; Childs v. The Brunette, 16 Missouri 518. The title to the schooner passed to the respondents when they took the place of Lathbury & Co.; — the vessel was clearly ascertained and designated: 2 Kent’s Com. 692 ; Hutchinson v. Hunter, 7 Barr 145; Haldeman v. Duncan, 1 P. F. Smith 66.
    The Act of 1836 is in conflict with sect. 9th of Act of Congress of September 24th 1789, 1 Bright. U. S. Dig. 24, pi. 1, giving to the District Court of the United States exclusive cognisance of civil causes of admiralty and maritime jurisdiction: The Moses Taylor, 4 Wallace 411; Hiñe v. Trevor, Id. 556 ; The Belfast, 7 Id. 624; The Josephine, 39 New York 19; The General Smith, 4 Wheaton 438.

      A. M. Burton, for defendant in error.
    Statutes such as the Act of 1836 have been frequently recognised as valid : Scottin v. Stanley, 1 Dallas 129; Ship Portland v. Lewis, 2 S. & R. 197, 201; Hippie v. Canal Boat Fashion, 3 Grant 40; Steamboat Dictator v. Heath, 6 P. F. Smith 290. Jurisdiction in cases of contracts for the construction of vessels is exclusively in the state courts. They are not maritime contracts: People’s Ferry Company v. Beers, 20 Howard 393; Roach v. Chapman, 22 Id. 129; The Belfast, 7 Wallace 624. The lien thus acquired is not lost by the transfer of the vessel to another owner: Davis v. The New Brig, Gilpin’s Rep. 473, 482. For the purpose of enforcing a lien against a domestic vessel the person rightfully in possession will be deemed the owner: Weaver v. The Susan G. Owens, 1 Wallace, Jr., C. C. 359.
    The vessel was built by William Fisher & Son, at their shipyard, and under their control, and they are to be deemed the owners: Lincoln v. Wright, 11 Harris 81; Steamboat Dictator v. Heath, 6 P. F. Smith 290; 3 Kent 131, 133. Until delivery, there was no change of title: Forsyth v. Dickson, 1 Grant 26; Andrews v. Durant, 1 Kernan (N. Y.) 35; Williams v. Jackman, 16 Gray 514 ; Happy v. Mosher, 47 Barb. (N. Y.) 501; Low v. Austin, 20 N. Y. (6 Smyth) 181; Nesbit v. Burry, 1 Casey 208; Thompson v. Franks, 1 Wright 329; Prichett v. Jones, 4 Rawle 260.
   The opinion of the court was delivered, February 24th 1874, by

Agnew, C. J.

The lien given by the Act of 13fch of June 1836, for work done and materials furnished in the building of ships and vessels of all kinds, is expressly confined to certain classes of tradesmen and mechanics, to wit, carpenters, blacksmiths, mast-makers, boat-builders, blockmakers, ropemakers, sailmakers, riggers, joiners, carders, plumbers, painters, ship-chandlers and others named, concluding with lumber merchants. These are the individuals who actually do the work and furnish the materials for building and equipping the vessel, and evidently are not the general contractor who agrees to build the vessel for another. As to him, no lien is necessary, for he can always provide for his own security by his contract, and is not bound to deliver the vessel until paid for her, unless he choose by his agreement to do so. This is the very ground of the decision in Walker v. Anshutz, 6 W. & S. 519, a case directly in point. In the case before us, William Fisher & Son were the owners of the schooner to whom the libellant furnished the materials for her. The contract with Lathbury, Wickersham & Oo. having fallen through, they were left with the unfinished hull on their hands, and in this condition they made their contract with Andrew Scull and others to build and finish the hull of a three-masted schooner, then in frame, for the sum of $18,000, payable in instalments as the work progressed, the last $2000 being payable when the schooner was finished. In no part of this contract is there any agreement to deliver her before completion, nor is such an intent discoverable. Clearly the persons thus contracting for a finished vessel were not entitled to possession until payment in full; so that title did not vest in them until the finishing of the vessel and delivery of possession. Fisher & Son were therefore the owners when Shakespear furnished the materials, for which he claimed his lien. The period of time between the abandonment of Lathbury, Wickersham & Co. and the new contract with Scull and others, was wholly immaterial in the case, for neither by the contract with Lathbury, Wickersham & Co. nor with Scull and others, did title or possession pass out of William Fisher & Son — by neither were they bound to deliver the vessel before final payment. ' Hence, the general finding of the jury was all that was necessary, and the special finding directed by thé court was wholly immaterial, and did neither good nor harm so far as the final result was necessarily involved. The errors complained of in regard to the special verdict are therefore without injury and need no correction. William Fisher & Son being the owners of the vessel, this fact disposes of all the errors specified, except that of jurisdiction. It is contended that a lien such as this, incurred in the building of a vessel, is not within the jurisdiction of a state court, but falls within the Federal jurisdiction, under the Constitution of the United States and must be enforced in an Admiralty Court. We do not think so. A contract to build a vessel is a contract to be performed on land, falling within ordinary common law, and belongs to the state jurisdiction. It differs not from a contract to build a wagon or a railroad car, made between citizens of the same state, and cannot be drawn into the Federal courts, because the vessel is intended to become a subject of maritime law. Whatever question may arise as to those liens, which the Act of 1836 seeks to enforce against a finished vessel, after she has entered her appropriate element, certainly there can be none as to liens upon a vessel for work and materials entering into her construction, before she has passed within the dominion of maritime law. Some dicta and District Court decisions to the contrary were overruled in People’s Ferry Co. v. Beers, 20 Howard 393; Roach v. Chapman, 22 Id. 129.

Finding no error in the record, the judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Bohlen’s Estate. Appeal of the Pennsylvania Company for Insurance on Lives, &c.
    1. A testator gave two-tenths of his estate to two trustees (by name) or the survivor; — the trustees were also his executors, — in trust to pay the income to a daughter for life for her separate use, or permit her to take the income herself for her separate use, and at her decease to assign the estate according to her will, or for want of a will to her children, he authorized his “ executors or the survivor of them" to sell his real estate and invest the proceeds together with moneys from his personal estate in real estate, public funds or put at interest on real security or in bank or other stocks, &c., and if one of his executors should be absent from the United States, the conveyance made by the other executor to pass a good title. The testator owned stock in the defendants’ company, part of which was marked as belonging to the daughters’ trust. The trustees having died, two others were appointed, aud subsequently Vezin, Lorenz and Gerhard were appointed in their stead, Lorenz changed his residence to Europe, and made general power of attorney to Vezin and another to collect, &c., “ any and all" income from the trust, “ and to call in, sell or change any or all stocks or loans,” &c., and transfer them, &c. McMurtrie was appointed in place of Gerhard, who had died. Vezin, as trustee and as attorney for Lorenz, afterwards transferred stock in defendants’ company. Held, that the power was such a delegation of a discretion as could not be made and the transfer was invalid.
    2. There can be no delegation of a discretion. Per Paxson, J.
    3. A trustee may delegate amere ministerial duty. Id.

    4. A ratification of the principal after the sale and transfer had been made by the attorney would have validated it. Id.

    February 13th 1874.
    Before Agnew, C. J., Williams, Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Philadelphia: In Equity : Of July Term 1872, No. 48.
    This was a bill filed November 3d 1871 by Richard C. McMurtrie against the Pennsylvania Company for Insurance on Lives and Granting Annuities, Charles Vezin and Ferdinand Lorenz.

      The object of the bill was to declare that the defendants, the Pennsylvania Company, &c., participated with Charles Yezin in a breach of trust in allowing Vezin to transfer certain shares of their stock, held by him and others in trust for Johanna C. M. Halbach and Henrietta W. Halbach under the will of Bohl Bohlen, deceased, and that the company were liable to restore and make good the trusts, &c.
    Bohl Bohlen, by his will dated September 1st 1830 and proved April 26th 1837, having appointed his brother John Bohlen and his son-in-law Edward Hagedorn, executors, &c., provided amongst other things as follows:—
    “ Item. I give, devise and bequeath two full, equal and undivided tenth parts of all the rest, residue, reversion and remainder of my estate, real, personal and mixed, whatsoever and wheresoever, unto my said brother John Bohlen and son-in-law Edward Hagedorn and the survivor of them, and the heirs, executors, administrators and assigns of the survivor of them, for ever, in trust, to pay the rents, interest and income thereof to my daughter Johanna Carolina Matilda Halbach (wife of Arnold Halbach), for and during all the term of her natural life, for her sole and separate use, without the control or interference of her husband, or liability for his debts or engagements: or at the option of my said daughter, to permit and suffer her to take and receive the said rents, interest and income herself, for her sole and separate use, and her receipt alone, notwithstanding her coverture, to be a good and valid discharge for any payment made to her; • and upon the decease of my said daughter, then to pay, transfer, assign and convey the said two undivided tenth parts unto such of her children and grandchildren, and for such estate and estates, use or uses, as she my said daughter by her last will and testament, or any instrument in the nature of a will executed in the presence of two or more credible witnesses, shall direct, limit and appoint, and for want of such will, direction, limitation and appointment, then to pay, transfer, assign and convey the same to all her children, born and to be bom, their respective heirs, executors and assigns for ever, in equal parts and shares, as tenants in common.
    Item. “I give, devise and bequeath two other full, equal and undivided tenth parts of my said residuary estate unto my said brother John Bohlen, and my son-in-law Edward Hagedorn, and the sur-vivor of them, and the heirs, executors, administrators and assigns, or the survivor of them, for ever, in trust, to pay the rents, interest and income thereof to my daughter Henrietta Wilhelmina Halbach, wife of George Halbach, for and during the term of her natural life, for her sole and separate use, without the control or interference of her said husband, or liability for his debts or engagements; or at the option of my said daughter Henrietta Wilhelmina, to permit and suffer her to take and receive the said rents, interest and income herself, for her sole and separate use, and her receipt alone, notwithstanding her coverture, to be a good and valid discharge for any payment made to her; and upon the decease of my said daughter Henrietta Wilhelmina, then to pay, transfer, assign and convey the said two undivided tenth parts unto such of her children and grandchildren, and for such estate and estates, use or uses, as she my said daughter by her last will and testament, or any instrument in the nature of a will executed in the presence of two or more credible witnesses, shall direct, limit and appoint, and for want of such will, direction, limitation and appointment, then to pay, transfer, assign and convey the same to all her children born and to be born, their respective heirs, executors and administrators for ever, in equal parts and shares, as tenants in common.”

    After disposing of the remaining six-tenths of his estate in trust, he further provided:—

      “ And it is my mind and will, and I do hereby direct, authorize and empower my said executors and the survivor of them, for the better settlement and distribution of my estate, to sell and dispose of all or any part of my real estate, and to convey the same to the purchaser or purchasers thereof, his, her or their heirs and assigns for ever; and the moneys arising from such sale, together with any moneys that may come to their hands from my personal estate, to be by them invested in the purchase of real estate, in the public funds or placed out at interest on good real security, or in bank or other stocks, or part and parts in either, as they shall see proper, for the purpose of this my will, and in such way and manner as they or the survivor shall deem most advisable; and in order that no difficulty may arise in the sale of my real estate, if one of my executors should be absent from the United States, I do hereby declare that the conveyance made by the other executor shall be as good and available in law as though both executors had made such conveyance.”
    At the time of his death the testator owned twenty-eight shares in the capital stock of the Pennsylvania Company; these shares were not converted by the executors, but were divided between the two trusts, to wit: to the trust of Johanna M. C. Halbach, fourteen shares; to the trust of Henrietta W. Halbach, fourteen shares. John Bohlen survived Edward Hagedorn, and having died in the year 1850, the Orphans’ Court appointed John C. Lang and Charles Yezin trustees for the above-mentioned trusts. In the year 1854, the court appointed Charles Yezin, the younger, Ferdinand Lorenz and Benjamin G-erhard trustees in the place of Charles Yezin, deceased, and John C. Lang; and the shares of stock were transferred to the last-named trustees as such, the trust being declared in the certificate and on the books of the company to hold fourteen shares for Johanna M. C. Halbaeh and fourteen shares for Henrietta Halbaeh.
    On the 16th of November 1863, Ferdinand Lorenz made a power of attorney as follows:—
    “Know all men by these presents, that I, Ferdinand Lorenz, of the city of Philadelphia, merchant, now residing in the Free Hanseatic city of Bremen, have made, constituted and appointed, and by these presents do make, constitute and appoint, Charles Lorenz and Charles Vezin, of the said city of Philadelphia, merchants, and each of them jointly and severally, my true and lawful attorney and attorneys, and in my name, as a co-trustee of the trust estates of Henrietta Wilhelmina Halbaeh and Johanna Carolina Matilda Halbaeh, to collect and receive any and all dividend or dividends, interest or interests, now due or which may hereafter become due, on any or all public or private stock or stocks, loan or loans or other personal investment or investments which now or may hereafter belong to the said trust estates or either of them, and to call in, sell or change any or all of the said stocks or loans, and to transfer or assign the same or any of them, or any part thereof, and receive and reinvest the proceeds thereof; also, to ask, demand, sue for at law or in equity, recover and receive from any person or persons, body or bodies corporate or politic, any sum or sums of money, debts, goods, wares, dues, effects and demands whatsoever, which are now due, coming or belonging to the said trust estates or either of them, or which may hereafter become so due, coming or belonging, and for these purposes to commence suit or legal proceedings at law or in equity against any person or persons, or body or bodies corporate or politic, in any court or courts, and in the mere discretion of my said attorneys or either of them to compound or compromise with any person or persons or body or bodies corporate or politic, for any parts or portions of the said debt or demands, taking a part in full satisfaction of the whole, and on the receipt of any such sum or sums of money, debts, goods, wares, dues, effects and demands, or anything in compromise of the same, to make, seal and deliver acquittances or other sufficient discharges for the same; also, to state, adjust and settle any account or accounts with any person or persons or body or bodies corporate or politic, with whom the said trust estates or either of them now have or may hereafter have any unsettled account or accounts; also, as such co-trustee of the said trust estates and of either of them, to acknowledge satisfaction of record of any mortgage or mortgages which now or may hereafter belong to the said trust estates or either of them ; also, to sell at public or private sale for cash or on credit, let on ground-rent or otherwise dispose of any real estate wheresoever situated now belonging or which shall hereafter belong to the said trust estates or either of them, and in the case of any such sale or other disposition of any such real estate, to sign, seal, execute, acknowledge and deliver all deeds, conveyances, assignments, transfers or other instruments, sealed or otherwise, which to my said attorneys, or either of them, may seem proper; also, for me and in my name to do all acts whatever, which I myself could do if personally present as a co-trustee of the said trust estates or either of them, and generally to do all and every act and acts, thing and things, device and devices in the law whatsoever needful or necessary for or affecting the premises, with power also an attorney or attorneys under them for these purposes to make and substitute, hereby ratifying and confirming all that my said attorney or attorneys, and each of them, or their substitute or substitutes, shall do therein, by virtue of these presents.”
    In December 1864 and January 1865, by two separate decrees, Richard C. McMurtrie, the plaintiff, was appointed by the Orphans’ Court trustee in the place of Benjamin G-erhard, who had died. On the 21st of September 1870 the company permitted Charles Yezin, Jr., as trustee and as attorney in fact of Ferdinand Lorenz, to transfer the shares of their stock held in trust as above stated, to a third person, who still held the certificates ; Yezin converted the proceeds to his own use and absconded.
    The bill set out these facts and averred amongst other things:—
    “ 2. There was by this will no power given to the trustees to deal with the corpus of the estate when invested by the executors, nor was there any power conferred other than such as is incident to a trust, to receive and pay or permit to be received by a tenant for life, and to transfer to remainder-men on the termination of the life estates.”
    They also averred that by the acts complained of the company became liable to make good the trusts and the loss thereby occasioned.
    “10. That the said transfer was void and a breach of trust in the corporation defendants, because on the face of the certificates the said company had notice of the trust, and that the said shares were held by three trustees in trust for J. C. M. Halbach or H. C. Halbach respectively, and neither of these united in or assented to the said .transfer.
    “Because on the face of each of the certificates, while a trust was apparent for a person named therein, there -was no actual or apparent authority in the trustees to transfer the said shares.
    “ Because on the face of the certificates there was nothing from which the company could draw the inference that the survivors of the said trustees could transfer the stock.”
    “ 12. And your orator further charges, that if there was a power in the said survivors of the trustees to sell and dispose of the estate without the consent of the cestui que trust, known to be such, and without the sanction of a court, that this power can only be exercised by all the surviving trustees, and this was a transfer not so made, inasmuch as Ferdinand Lorenz did not join in the sale or transfer, nor assent thereto, nor did the defendants ever inquire whether he had been consulted.”
    In their answer, the Pennsylvania Company amongst other things averred:—
    “3. We are advised, and therefore aver, that if, as the said complainant alleges, he was appointed co-trustee with said Vezin and Lorenz, it became, and was, his legal duty immediately to notify us of the fact of his appointment, especially as no particular number of trustees was required by the will in which only two were originally named, and because, as he well knew, there was nothing to induce us to inquire whether an additional appointment had been made, or to suspect that the title, as it stood upon our books, had ever been changed. This notification, though six years elapsed, was never given us, directly or indirectly, and, until within a few weeks past, we never knew of his appointment. If the complainant had done what we think was his duty in this particular, no loss would have been suffered by his cestuis que trust, as we never would have permitted the transfer without his assent. We are advised, and therefore aver, that he is responsible, in the first instance, for all loss which thus occurred. We therefore claim that he has no remedy against us, as prayed for in the bill.
    “ 4. On the 16th day of November 1863, Ferdinand Lorenz, who had then left the United States, and had become a resident of Bremen, where he has ever since continued to live, with the full knowledge and approval, as we are informed and believe, of his said cestuis que trust, executed a power of attorney, by which he enabled his co-trustee to transfer the stocks so held by them in trust as aforesaid. The existence of this power was well known to the complainant, who induced the Farmers’ and Mechanics’ National Bank of this city, about six weeks before the transfer of our stock, to make transfers of Pennsylvania State Loans to the amount of upwards of thirteen thousand dollars, held upon similar .trusts, upon this very power. We are informed and believe, that the above-mentioned transfer was not ‘ done under the sanction of a court of competent jurisdiction.’
    “ 5. We are advised, and therefore aver, that in the said will of Bohl Bohlen there were powers conferred upon his executors to deal with the ‘corpus ’ of his estate, which were intended to be, and in effect were, given to them in their additional capacity of trustees, and that these, by appointment of court, vested in said Vézin and Lorenz. We deny that the powers of the latter were limited to the extent claimed in the second paragraph.
    “ 6. * * * We are further advised, that until we received a due notice of the said appointment, we were not, under the circumstances, even though it was valid, chargeable with constructive notice of it; but that we were entitled to rely, as we did, upon the evidence of title as the same appeared on our books.
    “8. We deny that the said transfers are void, and we do claim that we are entitled to look to the instrument by which the trusts of said shares were created. We are advised, and therefore aver, that by the said will, power was given to the said trustees, without any sanction of the court, to sell and transfer all stocks, and especially such as were not what is known as ‘legal investments.’ We are advised, and therefore aver, that it is the duty of a trustee, intrusted with an estate during the lifetime of a cestui que trust, holding securities of this class, to convert the same into those which are legal, whenever he thinks it advisable, and that a wilful failure to perform it would render him liable in damages. We claim that no corporation whose stock it is thus thought proper to sell, can, by a refusal to permit a transfer, deprive him of such necessary control of trust assets, and we submit that it would be ruinous to cestuis que trust in periods of financial crash occurring during those months in which no courts are held, practically to prevent all changes.
    “ 11. We are advised, and therefore aver, that the legal effect of the power of attorney was not a delegation of discretion, but simply of power to perform necessary ministerial acts during'the protracted absence abroad of the said Lorenz. We deny that it professed to delegate discretion. In the absence of circumstances of suspicion which did not exist, we were bound to presume, without any right to demand proof by the production of private letters and instructions, that the ministerial acts thus authorized, were dictated and supervised by said Lorenz. * * *
    “12. * * * We are advised, and therefore aver, that the absence from the country of the said Lorenz, with intent to reside abroad permanently, prevented a proper and judicious exercise by him of the powers vested in him by the. appointment of the Orphans’ Court; that by reason of such absence, the discretion of the trustees, vested in the co-trustee, who alone, by his residence here, possessed the opportunities requisite to intelligent action, and could faithfully and properly superintend the interests confided to them ; that as the cestuis que trust, upon application to the court, could have had Lorenz ousted from his position, whereupon the entire estate and powers would have vested in said Yezin, the giving of the said letter of attorney, with the knowledge and assent of the said cestuis que trust, only accomplished what .the action of the court would have effected had it been invoked ; and that it was the duty of the said Lorenz either to resign or to take such measures as would render his absence least fatal to his cestuis que trust, by giving his co-trustee the power of instant action upon sudden and unexpected emergencies. * * *
    “14. We deny that the complainant is entitled to any part of the relief he prays for, and we claim that he is himself liable, by reason of his neglect to notify us of his appointment, to make good to his eestuis que trust the loss thereby occasioned.”
    The case was heard on bill and answer.
    The opinion of the Court of Common Pleas was delivered, May 14th 1872, by
    Paxson, J. — “ This ease came up upon bill and answer. It involves two important questions, viz.: 1. Had the trustees under the will of Bohl Bohlen, deceased, any power under said will to transfer the stock ? and 2. Was there a valid transfer of the stock referred to, under the power of attorney ?
    “ The operative words of said will, creating the trust, its powers and duties, are: ‘ I give, devise and bequeath * * * the rest, residue, reversion an-d remainder of my estate, real, personal and mixed, whatsoever and wheresoever, * * * in trust, to pay the rents, interest and income thereof to my daughter, J. C. M. Halbach, wife of A. Halbach, during all the term of her natural life, for her sole and separate use, without the control or interference of her husband, or liability for his debts or engagements, or at the option of my said daughter, to permit and suffer her to take and receive the said rents, interest and income herself, for her sole and separate use, and her receipt alone, notwithstanding her coverture, to be a good and valid discharge for any payment made to her;’ and upon the decease of his said daughter, over in remainder.
    “ By a prior clause in his will, the testator had directed his executors to sell his real estate, and the proceeds thereof, and other funds derived from his estate, to invest in real security, the public lands, bank or other stocks, and in real estate.
    “ The will of the testator was admitted to probate in 1837. In the first clause thereof he named John Bohlen and Edward Hagedorn his executors. Afterwards, in the clauses creating the trusts for his two married daughters, he devises two-tenths of the residuary estate to them in trust for each daughter. They were, therefore, both executors and trustees.
    “Among other things held by the testator, and which it is charged his executors elected to retain unconverted as an investment, and hold as trustees, were certain shares of the capital stock of the Pennsylvania Company for Insurances on Lives and Granting Annuities, &c., the defendants, which said shares were divided between the trusts, as follows: To the trust of Johanna C. M. Halbach, fourteen shares, and to the trust for Henrietta W. Halbach, fourteen shares.
    “In the year 1850, at the death of John Bohlen, the surviving trustee, the Orphans’ Court appointed John C. Lang and Charles Yezin trustees, under the said will, for the trusts above stated.
    “ In the year 1854, the said court appointed Charles Yezin the younger, Ferdinand Lorenz and Benjamin Gerhard trustees, in the place of the said Charles Vezin, deceased, and John C. Lang. And the said shares were transferred to them as trustees; the trust being declared in the certificate and on the books of the company to be, as respects fourteen of said shares in trust for J. C. M. Halbach, and as respects fourteen in trust for H. C. Halbach.
    “ In December 1864 and January 1865, by two several decrees of said court, the plaintiff was appointed trustee of said trusts in place of Benjamin Gerhard, who was then deceased.
    “ It does not appear that any notice of this last appointment was given to the defendants prior to the transfer of the stock complained of in the bill. Ferdinand Lorenz, one of said trustees, has been for several years past residing in Europe. On the 21st of September 1870, the corporation defendants permitted the said Charles Yezin, as trustee, and as attorney in fact for the said Lorenz, to transfer the said shares to another person, Avho now holds the certificates therefor. Vezin converted the proceeds to his own use and absconded.
    “ The bill seeks to charge the defendants with the value of the stock, which they allowed to be transferred as above stated. The plaintiff alleges:—
    “ 1. That the defendants are liable for permitting the transfer, because they had express notice of the trust, and the trustees had themselves no power to transfer. And
    “ 2. That the power of attorney from Lorenz to Charles Lorenz and Charles Yezin, Jr., was void on its face, because a delegation of discretion; and that the defendants are therefore liable for allowing a transfer to be made without other evidence of the consent of Lorenz, whose name appeared as trustee.
    “ In regard to the first point, it would seem that the defendants had express notice of the trust, for the reason that the fact of the trust appeared on the certificates and in the transfer books, and is admitted by paragraph 1 of the answer. This was at least sufficient to put the defendants upon inquiry, and they are hound by whatever that inquiry would have disclosed. It was held in Bayard v. The Bank, 2 P. F. Smith 235, that ‘ corporations are trustees to a certain extent for stockholders — that is, for the protection of individual interests. * * * They are alike trustees of the property and of the title of each owner. They have in their keeping the primary evidence of title, and they are justly held to proper diligence and care in its preservation. From this it results that they may rightfully demand evidence of authority, to make a transfer before they permit it to be made. Their own safety requires that they be satisfied of the right of-the person proposing to make a transfer, to do what he proposes. Generally sufficient evidence of such right is found in the possession of the legal title to the stock. Yet it is well settled that it is not in all cases sufficient, notwithstanding that the true equitable ownership may be in some other than the holder of the legal right, and a transfer may be a gross wrong to such an equitable owner. To that wrong the corporation or keepers of the register make themselves parties, if with knowledge that there is no equitable right to transfer they permit it to be done.’
    “ It may therefore safely be assumed that where stock stands upon the books of a corporation in the name of a trustee, the said corporation is bound to inquire as to the authority of the trustee to transfer said stock before they permit such transfer to be made. This rule does not apply, however, to the case of executors and administrators transferring stock standing in the name of a decedent, for the reason that the law casts upon them the legal ownership of the personal property of such decedent. It is their duty to pay debts and make distribution amongst heirs or legatees. To do so, they must convert the personalty into cash, and a transfer of stock, therefore, would be in due course of administration. It would be unreasonable to hold that a corporation in such case should be held to inquire whether in point of fact the particular stock was needed for the payment of debts or legacies. The rule that a certificate of letters testamentary, or of administration, is generally sufficient to justify the transfer of stock, is recognised in Bayard v. The Bank, supra, and several cases cited by Mr. Justice Strong in his opinion; yet there are authorities which hold that in the case of an executor, the party permitting the transfer is bound to see that the former has authority under the will to make such transfer': Lowry v. The Bank, Amer. Law Journal, N. S., Yol. III., p. Ill, and cited in Bayard v. The Bank, supra.

      “ A trustee stands upon a different footing from an executor or administrator, in regard to the transfer of stock. Administration is no part of his duties. His office is to hold and safely keep the trust funds in accordance with the terms of the will or other instrument creating the trust. Sometimes it is to pay income to the parties entitled thereto, or to accumulate the same during a stated period. If he transfers securities, it must be in pursuance of an express authority contained in the trust itself, or by virtue of an authority implied from the nature of said trust, or the character of the securities in his hands. In this case the plaintiff contends that there was neither an express nor an implied power of sale.

      “ The will of Bohl Bohlen, deceased, after creating the aforesaid and other trusts, contains the following clause, viz.: ‘And provided also, And it is my mind and will and I do hereby direct, authorize and empower my said executors and the survivor of them, for the better settlement and distribution of my estate, to sell and dispose of all or any part of my real estate, and to convey the same to the purchaser or purchasers thereof, his, her or their heirs and assigns for ever; and the moneys arising from such sale, together with any moneys that may come to their hands from my personal estate, to be by them invested in the purchase of real estate, in the public funds or placed out at interest on good real security, or in bank or other stocks, or part or parts in either, as they shall see proper, for the purposes of this my will, and in such way or manner as they or the survivor shall deem most advisable; and in order that no difficulty may arise in the sale of my real estate, if one of my executors should be absent from the United States, I do hereby declare that the conveyance made by the other executor shall be as good and available in law as though both executors had made such conveyance.’
    “ Here there is express power given to his executors to sell his real estate; and in order that there might be no difficulty in making such sales, he authorizes one executor to make conveyances thereof, in case of the absence of the other executor in Europe. There is no power given to them in terms to transfer stocks. That the executors had such power by virtue of their office may be conceded. But they did not sell the stock referred to. They elected to retain it unconverted, and it passed into and formed a part of the trust estate. As before observed the original executors were also trustees; they acted in a double capacity. The mere fact that the two offices are united in the same persons, does not change their duties or responsibilities. John Bohlen and Edward Hagedorn, as trustees under the will of Bohl Bohlen, are to be held to precisely the same rules as if they had not also been named in said will as executors.
    “ Clearly, their successors in this trust, who are trustees alone, and who have never been in any way concerned in the administration of the estate, can possess and exercise only such powers as they derive from the will, or are incident to the office of trustee in the management of the trust estate.

      “ The executors, not having converted this stock, and it having passed into the hands of the trustees as a part of the trust estate, there is no express authority in the will for them to transfer it. This brings us to the question whether there is any implied power in a trustee to sell securities in his hands belonging to the trust estate ?

      “ In considering this point we must not lose sight of the fact that this question does not arise between the trustees making the transfer and their cestui que trust, but between the latter and the corporation which allowed the transfer to be made. While the latter may not be regarded strictly as an innocent party, still it must be apparent that the question whether said corporation is to be mulcted to the amount of the stock rests upon a very different principle from the question whether as between the trustees and the cestui que trust the transfer was proper.
    “ We must also dismiss those cases in which -there was a specific devise or bequest. Among them may be mentioned’Lowry v. The Commercial and Farmers’ Bank, before cited, and which was decided by Chief Justice Taney, in 1848. There, stock stood in the name of an executor. The bank, defendant, allowed him to transfer it and receive the proceeds. The stock was specifically bequeathed to the executor in trust, to pay over the dividends, &c., and the transfer was made eight years after the testator’s death.
    “ The court held that no implied power to sell existed, and the bank was Jield liable, because, after eight years, the payment of debts was to be presumed. In the face of a specific bequest of the stock, no implied power, except for the payment of debts, could exist, and this was negatived by the lapse of time since the testator’s death.
    “ Hertell v. Bogart, 9 Paige 57, merely decides that, inasmuch as the executors were trustees of the mortgage, an assignment thereof by one of them was insufficient; had they both executed the assignment it would have passed the title to the mortgage.
    “ This is a concession of their power to make sale of the mortgage.
    “ In Bayard v. The Bank, cited by plaintiff, the only point decided by the court was that, ‘ a transfer agent, before permitting a transfer of stock, appearing on the face of the certificate to be held in trust, has a right, especially if the cestui que trust is named, to require the exhibition of the authority to transfer beyond the certificate.’ It is in no sense an authority that there is no such thing as an implied power of sale in a trustee to sell stocks or other securities belonging to a trust estate.
    “Had the corporation defendants examined the will of Bohl Bohlen, prior to allowing this transfer, what would they have found ? Certainly no specific bequest of this stock by which the trustees-were directed to hold it, and pay over the dividends, &c. But on the contrary, they would have ascertained the fact that this particular stock passed to these trustees as a part of the testator’s residuary estate, to be held under certain trusts and without any restriction upon transfers.
    “ There is the additional fact that this stock was not a legal investment. The question as to how far a trustee is bound to convert illegal into legal investments is a very nice one, which it is not necessary for us now to decide. It is said in Hill on Trustees, *p. 379: ‘Where the trust property is already invested on personal or other securities, which would not be sanctioned by the court, it frequently becomes a question of no little difficulty to determine how far it is the dutyof trustees to call in such securities and lay out the proceeds in some proper investments.’ And, again, in the same book, *p. 380: ‘ If, however, the author of the trust, in general terms, vests his whole estate in trustees, either by deed or will, without any specific mention of the securities of which it then consists, and there be nothing from which it may be inferred that the trusts were intended to apply to the property in its actual state, it would be a very hazardous course for the trustees to suffer any part of the estate unnecessarily to remain outstanding on improper security. It certainly would be no valid reason for so doing, that the creator of the trust himself considered the existing securities to be a sufficient investment.’ The same authority, *p. 281, says: ‘ In some cases the trustees will be charged with interest as well as the capital which has been lost by not calling in the improper securities.’
    “ If a failure to change an illegal into a legal investment may make a trustee responsible for such omission, it necessarily follows that he must have an implied power of transfer, though no express power be contained in the instrument creating the trust. We prefer to limit this decision to the facts of this case, and we do not express any opinion as to the right of a trustee to transfer stocks recognised as legal investments, without express authority.
    “ Whether this transfer was judicious, is no part of this case. It is a question of power to make the transfer. If it exists, the defendants are not to be held responsible for its disastrous exercise.

      “ The remaining question for our determination is as to the validity of the sale under the power of attorney. It is elementary law that co-trustees must join in a transfer of stock. In this case the fact is admitted that plaintiff’s appointment as trustee was not communicated to the defendants, and it is not urged that his nonjoinder affects the validity of the transfer. But it is alleged that the power of attorney from Mr. Lorenz, the trustee, who was in Europe, was a delegation of discretion, and therefore void. The authorities are clear that there can be no valid delegation of a "discretion. Bulteel v. Abinger, 6 Jurist 412, is a leading case upon this subject. One of the trustees declined to take any part in the sale of the trust property, authorizing his co-trustee to sell the estate under their powers. A sale was effected by this co-trustee, accordingly, and on a bill for specific performance brought by the vendee, it was held: 1. That the fact of the trustees being also executors did not .give each trustee, qua trustee, authority to deal exclusively with the property; and 2. That Lord Abinger could not lawfully delegate to his co-trustees an authority to sell the estate to his son, without reserving to himself a veto on the contract. In Hill on Trustees, *p. 474, it is held that a trustee is not justified in delegating the power of sale to a stranger, nor even tola co-trustee. In Hawley v. James, 5 Paige 487, the principle is thus stated: ‘A trustee who has only a delegated discretionary power cannot give a general authority to another to execute the same, unless he is specially authorized so to do by the deed or will creating such power,’ and in Pearson v. Jamison, 1 McLean’s C. C. Rep. 197, ‘ Where an executor by the will is empowered to sell real estate in the best mode in his judgment for the interest of the estate he cannot delegate the power to another.’ In Berger v. Duff, 4 Johns. Ch. R. R. 368, the case was this: ‘ The testator authorized his executors B. and C. to sell certain lots of land, if under the circumstances of the times they should deem it prudent; and 0. having gone abroad, sent a power of attorney to B., his co-executor, to sell the land on such terms as he should deem expedient; held, that an agreement for the sale entered into by B. for himself and C. was not valid, and a bill filed for a specific performance of it, was accordingly dismissed. The Chancellor, in deciding the case, says : “ The agreement to sell was not valid, being made by one executor without the personal assent and act of the other. The power was not capable of transmission or delegation from one executor to the other, and the rule of law and equity on this point is perfectly well settled.” Citing Comb’s Case, 9 Co. 75; Ingram v. Ingram, 2 Atkyns 88 ; Sir Thomas Clark in Alexander v. Alexander, 2 Ves. Sr. 643; Lord Hardwicke in Attorney-General v. Scott, 1 Ves. Sr. 417; Lord Redesdale in Hamilton v. Royse, 2 Sch. & Lef. 330; Hawkins v. Kemp, 3 East 410, and Sugden on Powers (2d ed.) 167. The defendants allege, however, that there was no delegation of discretion in the power of attorney; that the acts to be performed by the attorney were merely ministerial. If the facts be so, the case would be free from difficulty. A trustee may delegate a mere ministerial duty, such as signing his name to a transfer of stock, or to a deed; and if this were all this power of attorney authorized, the defendants would be right in their construction of it. But it was a general power to sell stocks, embracing everything in the estate, with authority ‘ to call in, sell or change any or all of the said stocks or loans, &c.,’ with a power of substitution, and it was without any limit as to price, or reference to the time, place or manner of sale. Nor did the principal reserve any veto or check upon the act of his agent. The latter was to exercise all the discretion which was by law vested in the former. Whether the price was sufficient, or the sale itself, at the particular time, and in the then condition of the stock market was judicious, were questions which the agent was empowered to decide without any consultation with his principal. In this respect we think the power of attorney was invalid. If after making the sale the attorney had reported the same to his principal, and the latter had ratified it, thus exercising his discretion, I have no doubt the transfer under the power would have been good, and herein the defendants were remiss. With such a general power delegating discretion, they should have required some evidence of the ratification of the sale by the principal. Any assent, the production of a letter from him, would have been sufficient. But in the absence of any such ratification on his part, we are of opinion that the defendants had no right to allow this transfer, and that they are responsible for the loss of this stock.
    “Nor do we think it helps the defendants that the trustee, Lorenz, has been absent in Europe for seven years. Such absence, although rendering him liable to removal, did not per se oust him from the trust. The fact that the defendants rely upon his power of attorney, as such trustee, for their protection, is a sufficient answer to this point.
    “ The decree in this case must be for the plaintiff.”
    The decree was :—
    “ This cause having been heard upon bill and answer, it is declared that the defendants, the Pennsylvania Company for the Insurances on Lives and Granting Annuities, are liable for the value of the shares of the capital stock belonging to the several trusts mentioned in the bill, and it is ordered that the said defendants do purchase fourteen shares of the said stock, and invest the same in the name of Charles Yezin, Ferdinand Lorenz and R. C. Mc-Murtrie, trustees under the will of Bohl Bohlen, for the estate devised in trust for J. Caroline M. Halbach and her children, and that they do purchase a like number of said shares, and invest the same in the name of R. C. McMurtrie, trustee under the said will for II. W. Halbach and her children, and that the said defendants do account and pay to the said trustee or trustees respectively the dividends declared and paid on the said number of shares on the 1st day of January 1871, and after that date together with interest from the 30th day of March 1872, deducting the sum of five hundred and eighteen dollars and fourteen cents from the amount thus found due to each of the said trusts, being the amount paid by the parties to whom the stock was pledged by the said Charles Yezin as security, and sold by them leaving that balance in their hands returned to the trustees.”
    The Pennsylvania Company appealed to the Supreme Court and assigned the decree for error.

      J. Gt. Johnson, for appellants.
    Trustees vested with the title to personalty during the lifetime of cestuis que trustent, under an active trust, are ex necessitate clothed with the duty of management, and, unless the instrument under which they hold directs otherwise, must, whenever in their opinion it is requisite to do so, change the investments, especially where they are not of the kind known as legal securities: Bowes v. Seeger, 8 W. & S. 222; Hill on Trustees 319 381; Perry on Trusts, sect. 465; Robinson v. Robinson, 1 De G., Mac. & G. 247; Pray’s Appeals, 10 Casey 100; Hemphill’s Appeal, 6 Harris 303; Worrell’s Appeal, 11 Id. 44.

      Vezin’s transfer of the stock under Lorenz’s power was valid and of like force as if actually made by Lorenz in person.
    We were bound to permit a transfer, under penalty, in case of an improper refusal, of a very severe forfeiture: Comm. Bank of Buffalo v. Kortright, 22 Wendell 348; German Union Society v. Sendmeyer, 14 Wright 67; Musgrave v. Beehendorff, 3 P. F. Smith 310.
    If a trustee gives instructions to his attorneys or agents how to act, it cannot be said to be a delegation of the trust: Perry, § 409. We are entitled to the full benefit of the presumption, “omnia rite esse acta:” Broom’s Legal Maxims 948; Ricard v. Williams, 7 Wheaton 59; Strother v. Lucas, 12 Peters 452; D’Arcy v. Tamar, 4 Hurl. & Colt. 463.
    A power like the present, accompanying the legal title, may be delegated: Williams v. Peyton, 4 Wheaton 77; Lowring v. Marsh, 6 Wallace 337 ; Perry on Trusts, sects. 779, 789-
    The present case is not one in which a discretionary power is conferred by reason of personal knowledge or confidence. If the power be given to the donee and his assigns, it will pass by assignment, if the power be annexed to an interest in the donee: 4 Kent’s Commentaries 327; Titley v. Wolstenholme, 7 Beav. 436 ; Salloway v. Strawbridge, 7 De G., Mac. & Gord. 594; Perry on Trusts, sect. 340; 2 Washburne on Real Prop. 322.
    Where trustees reside abroad, they may, ex necessitate, appoint attorneys to act in their absence in cases like the present: Rossiter v. Trafalgar Life Association, 27 Beavan 381; Stuart v. Norton, 14 Moore Priv. Coun. Cases 32; Vandever’s Appeal, 8 W. & S. 405.
    Where an estate is devised to executors in trust to sell, convey, &e., they may act by attorney; otherwise if the will gives nothing but a naked power : May’s Heirs v. Frazee, 4 Littell 391; Colsten’s Heirs v. Chaudet, 4 Bush 666; Blight v. Schenck, 10 Barr 285.
    G. Biddle and G. W. Biddle, for appellee.
    The defendants had notice of the trust — and are therefore liable for permitting a transfer by the trustees when the instrument creating the trust gave them no power to sell; as trustees they had no power to transfer: Lewin on Trusts 253; Phillippo v. Munning, 2 Myl. & Or. 309 ; Byrchall v. Bradford, 6 Mad. 13, s. c., Id. 240; Hill on Trustees 238. The trustees had no implied power to sell: Bayard v. The Bank, 2 P. F. Smith 233 ; Duncan v. Jaudon, 15 Wallace 165 ; Harrison v. Harrison, 2 Atkyns 121; Goodwin v. Gossnell, 2 Coll. 457; Lowry v. Comm’l Bank, 1 Campb. R. 310; Shaw v. Spencer, 100 Mass. 389.
    The power of attorney from Ferdinand Lorenz to Charles Lorenz and Charles Vezin, Jr., was void on its face, because it assumed to delegate discretionary powers, and the defendants are therefore liable for allowing a transfer to be made without other evidence of the consent of Lorenz, whose name appeared as a trustee. Where there are several trustees living all must join in the exercise of a discretionary power: Lewin on Trusts 298 ; Hill on Trustees 305; Crewe v. Dicken, 4 Ves. 98 ; Nicolson v. Wordsworth, 2 Swanst. 370; 3 Sugden’s Vendors and Purchasers 173; Vandever’s Appeal, 8 W. & S. 405; Sinclair v. Jackson, 8 Coms. (N. Y.) 544; Hood v. Law, 3 Blatch. C. C. R. 471; Chapin v. First Universalist Society, 8 Gray 583; Holcomb v. Holcomb, 3 Stockton (N. J.) 285.
    The delegation by the one co-trustee to the other of discretionary-power was void: Combe’s Case, 9 Rep., 75 b, 1612.
    Naked Power : Wilson v. Denison, 1 Ambler 86; Heger v. Deaves, 2 Johns. Ch. R. 154; Peabody v. Hoard, 46 Ill. 242; Berger v. Duff, 4 Johns. Ch. R. 369; Tainter v. Clark, 13 Metc. 226; Pearson v. Jamison, 1 McLean’s C. C. R. 197; Madison v. Andrew, 1 Ves. 57; Witts v. Boddington, 3 Bro. Ch. Rep. 95; Sugden on Powers 175, 391-398 ; Hunt v. Douglass, 22 Vt. 130; Newton v. Bronson, 13 N. York 587; Piatt v. McCullough, 1 McLean’s C. C. R. 78; Wilson v. Pennock, 3 Casey 239; Zebach v. Smith, 3 Binn. 69.
    Power coupled with an Interest : Hawkins v. Kemp, 3 East 410 ; Sinclair v. Jackson, 8 Cowen 575; Hawley v. James, 5 Paige 487; Greenough v. Welles, 10 Cush. 571; Budd v. Hiler, 3 Dutcher 43; Belote v. White, 2 Head (Tenn.) 710;. Hill on Trustees, sects. 472, 473, 483-489, 495; Cole v. Wade, 16 Ves. 28; Alexander v. Alexander, 2 Ves. Sr. 643; Coxe v. Day, 13 East 118; Down v. Worrall, 1 Myl. & Keene 561; Whittlesey v. Hughes, 39 Mo. 20; Saunders v. Weber, 39 California 290; Story on Agency, sect. 12. Where a power is coupled with an interest, the power cannot be delegated, except where the power is annexed to the beneficial interest or yroyerty in the donee. In other words, where a beneficial interest in property is placed in the hands of the person to whom it is given, then, of course, he can dispose of it, together with the estate to which it is a mere incident. All trustees, however, who have no beneficial interest, receive the property in a confidence and with a power to deal with it also ; and as the power given to them is not annexed to the beneficial interest in the estate, but only to the legal title, the power cannot be delegated. * * * Granting of an estate, real or personal, to a man as trustee, and to his heir's, exeeutors, administrators and assigns, does, not confer any interest in, or pass the estate to his assigns in law: Cole v. Wade, 16 Ves. 46; Walter v. Maunde, 19 Id. 424. The power of sale of trust property, or a change of investment thereof, is always, ex vi termini, a discretion and confidence conferred upon trustees.: Greenham v. Gibbeson, 10 Bing. 363; Bradford v. Belfield, 2 Simons 264; Hitch v. Leworthy, 2 Hare 200 ; Townsend v. Wilson, 1 Barn. & Ald. 608; 2 Watson’s Compendium of Equity 806.
   The judgment of the Supreme Court was entered February 24th 1874.

Per Curiam.

In affirming this decree, it is proper to state explicitly we do not decide whether any implied power arose under the will of Bohl Bohlen which would enable the trustees to sell the stocks held as investments. We, therefore, do not affirm that portion of the opinion of the learned judge in the court below relating to this question, but leave the point unembarrassed by any decision for discussion when it shall arise again.

We agree with the court below that the power of attorney from Ferdinand Lorenz to Charles Lorenz and Charles Vezin, was such a delegation of discretionary power as could not be legally made, and, consequently, that the sales of the stocks made under it were invalid. The part of the opinion relating to this question, and the authorities cited by the counsel, make it unnecessary for us to discuss this matter.

Decree affirmed, with costs to be paid by the appellants, and appeal dismissed.


author: Williams, J.

text:
    Schlater et al. versus Winpenny.
    1. On a question of partnership a witness testified that it expired in February ; evidence that he had. stated at other times, although not in the presence of the plaintiff, that it expired in January, was admissible to contradict him.
    2. The credit of a witness may be impeached by proving that he has made out of court statements different from those to which he testified.
    3. A partnership to expire in January appointed an attorney to “ buy and sell goods, sign notes and perform all acts concerning the businessif the
    Elaintiff had notice at the beginning of the partnership of the time of ending, e could not charge the firm with goods sold to the attorney after the expiration.
    4. The dissolution of the partnership, whenever it took place, revoked the power of attorney, and the attorney afterwards had no authority to give notes in the settling up of the firm.
    5. The attorney testified that he exercised no power but under the letter of attorney; he afterwards testified that he had power to wind up the firm after dissolution. Evidence was admissible in contradiction, that he had no power of attorney after the dissolution of the firm.
    February 18th 1874.
    Before Agnew, C. J., Williams, Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 34, to July Term 1872.

      This was an action of assumpsit brought February 2d 1871, by James B. Winpenny against Francis Schlater and Sarah Clendenning, trading as Schlater & Clendenning.
    This suit was upon two promissory notes, viz.:—

      “ $906.68-1 OOths. Philadelphia, March 31st 1869.
    Ninety days after date we promise to pay to the order of J. B. Winpenny, nine hundred and six 68-100th dollars, without defalcation, for value received, payable at the Union National Bank.
    F. Schlater & Co.
    John Clendenning, Atty.”
    “ $1053.24-100ths. Philadelphia, June 7th 1869.
    Ninety days after date we promise to pay to the order of J. B. Winpenny, payable at the Union National Bank, one thousand and fifty-three 24-100ths dollars, without defalcation, for value received. F. Schlater & Co.
    John Clendenning, Atty.”
    The declaration was upon these notes and also in the common counts.
    The case was tried, November 17th 1871, before Lynd, J.
    The plaintiff.gave evidence to show a partnership between the defendants.
    He gave in evidence also a power of attorney dated January 17th 1868, executed by the defendants individually naming themselves as “trading as F. Schlater & Co.,” constituting John Clendenning their attorney to buy and sell goods and merchandise, to sign and endorse checks, notes, drafts and acceptances, and perform such other act or acts concerning the said business, in as full and ample a manner as we, the said Francis Schlater and S. Clendenning, could do if personally present, or as if the matter required more special authority than is hereby given,” &c.
    John Clendenning testified that he acted under the power of attorney, bought goods, &c., gave notes, &c. Schlater knew all this. Witness bought goods from the plaintiff, the notes in suit were for yarns bought from plaintiff. On cross-examination witness said that he exercised no powers but under the power of attorney ; the partnership ended February 13th 1869, but the business had to be wound up after that.
    The defendants asked witness:—
    “ Did you not tell Mr. Benjamin Rowland, Jr., that this firm expired January 1st 1869 ?”
    Answer: “ No.”
    “ Did you not go to Mr. Rowland and tell him, that all coal charged to F. Schlater & Co. after January 1st 1869, must be recharged to you, as the firm expired January 1st 1869; and was not the coal so recharged and did you not pay the bill for the same?” He answered “No.”

      The hooks of Schlater & Co. being shown to witness, he said: “ Clark who made the entries was in my employ, after January 1st 1869. Schlater and Clark both had keys for the safe. I think that these entries were made after January 1st 1869, and were made at my direction. I do not know that Schlater gave the direction.
    “ These notes were given as renewals. I had authority to wind up the affairs of the firm, after dissolution.”
    Plaintiff offered in evidence the bill-book: Defendant objected; the objection was overruled and exception sealed.
    Plaintiff offered in evidence, the notes sued on. Defendant objected; the objection was overruled and exception sealed.
    The plaintiff offered in evidence, the “ ledger ” of F. Schlater & Co. Defendant objected; the objection was overruled and exception sealed.
    The plaintiff testified that an advertisement of the partnership had been handed to him; Clendenning had told him of the partnership and that Schlater was a responsible man; plaintiff after-wards met Schlater, who told him that he was the man whom Clendenning had mentioned; that Clendenning was to be attorney of the firm, and he sold Schlater goods; the notes were for a balance of account and renewal of others; they were renewed for the accommodation of F. Schlater & Co.; the plaintiff had never been notified of the dissolution; plaintiff had seen Clendenning’s power of attorney.
    The defendants called B. Rowland, Jr., who testified that he had sold coal to F. Schlater & Co., on January and February 1869.
    Defendants offered to show by this witness that Mr. Clendenning gave notice to witness that this partnership ended January 1st 1869, and that as to the coal charged to F. Schlater & Co. after January 1st 1869, Mr. Clendenning said it was to be recharged to John Clendenning, and that it was so recharged and paid by Clendenning, and that this notice was given before the date of these notes.
    Plaintiff objected.
    Also, to contradict the witness Clendenning by showing that he had no power as attorney for this firm, after dissolution thereof, to wind up the affairs.
    Plaintiff objected, unless to be followed by proof of notice to plaintiff.
    Also to prove by this witness, declarations of the defendant and Clendenning, that the firm of F. Schlater & Co. was dissolved January 1st 1869.
    Plaintiff objected, unless Winpenny was present or had notice of the dissolution.
    These offers were all rejected and several bills of exception sealed.
    The defendant (Schlater) testified that in January or February 1868, he met plaintiff and was introduced to him, and told him that he (witness) had formed a partnership for one year from January 1868, ending January 1st 1869. The partnership then ended. Clendenning had no powers except under the power of attorney; he had no authority to wind up the partnership ; he was not the agent of witness nor of E. Sehlater & Co. at the date of these notes; the entries in their books after January 1st 1869 were not made by the authority or direction of the witness; the goods in question were not received by E. Sehlater & Co., nor manufactured by them; he did not know of the notes till July 1869; they were not renewed at his request or with his knowledge.
    The defendants gave other evidence that the dissolution took place January 1st 1869, and generally in support of their case.
    The verdict was for the plaintiff for $2360.23.
    The defendants took a writ of error, and assigned for error the decisions of the court on the questions of evidence.

      E. R. Worrell, for plaintiffs in error.
    The statements of a witness on a trial may be contradicted by evidence of inconsistent statements out of court: Batdorff v. Bank of Reading, 11 P. F. Smith 179; Cameron v. Montgomery, 13 S. & R. 132; Ott v. Houghton, 6. Casey 451.

      R. P. White, for defendant in error.
   The opinion of the court was delivered, March 2d 1874, by

Williams, J.

There are three questions in this case:—

1st. Whether the partnership of E. Sehlater & Co. expired on the 1st of January or the 13th of February 1869?

2d. If on the former day, whether the plaintiff below had notice of its dissolution ?

3d. Whether John Clendenning was authorized to wind up the affairs and settle the business of the partnership after its dissolution ?

I. The evidence shows that the plaintiff sold yarns after the 1st of January 1869, to John Clendenning, who was authorized by power of attorney bearing date the 17 th of January 1868, “to buy and sell goods and merchandise,” for and in the name of the firm, and that the price of these yarns was included in the notes sued on. The plaintiff himself testified that “ these notes were given for a balance of account and are renewals of others.” If then the partnership expired on the 1st of January 1869, and the plaintiff had notice of its dissolution, it is clear that he is not entitled to recover that portion of the notes embracing the price of the yarns sold after that date, even if John Clendenning, by whom they were given, was authorized to settle the business of the partnership. It is, therefore, a material question, whether the partnership expired on the 1st of January 1869, or was dissolved on the 13th of February thereafter.

Clendenning was examined as a witness for the plaintiff, and testified that the partnership continued until the 13th of February 1869, and that it was then dissolved. On his cross-examination he said that he did not tell Benj. Rowland, Jr., that this firm expired January 1st 1869; and that he did not tell him that all coal charged to F. Schlater & Co., after that date, must he recharged to himself, as the firm expired January 1st 1869; and that the coal was not so recharged, and he did not pay the bill for the same. The defendant called Rowland, who testified: “We furnished coal to F. Schlater & Co. In January and February 1869, we charged coal to F. Schlater & Co. and sent the bill to Schlater & Co.” The defendant then offered to show that Clendenning gave notice to the witness that this partnership ended January 1st 1869, and that as to the coal charged to F. Schlater & Co., after January 1st 1869, Clendenning said that it was to be recharged to John Clendenning; and that it was so recharged and paid by Clendenning, and that this notice was given before the date of these notes. The plaintiff objected to the offer and the court sustained the objection. The defendant then offered to prove by the witness the declarations of Clendenning that the firm of F. Schlater & Co. was dissolved January 1st 1869. This offer was objected to unless the plaintiff was present and had notice of the dissolution, and the court sustained the objection and excluded the offer. If anything in the law of evidence can be regarded as settled, it is, that the credit of a witness may be impeached by proof that he has made statements out of court contrary to what he has testified at the trial. The principle is too familiar to need the citation of any authority in its support. The matter in regard to which it was proposed to contradict the witness was material and relevant to the issue; and his attention was called to the person and the particular circumstances involved in the supposed contradiction. The offers should, therefore, have been admitted, and the court fell into a palpable error in rejecting them.

II. If the defendant informed the plaintiff in January or February 1868, that the partnership was for one year, and that it ended on the 1st of January 1869, then the latter had such notice of its dissolution as should have put him upon inquiry. He had no right to sell goods to Clendenning on the credit of the firm after that date without ascertaining that the partnership still continued.

III. The dissolution of the partnership, whether it terminated on 1st of January or the 13th of February 1869, undoubtedly operated as a revocation of the power of attorney authorizing Clendenning to conduct its business, and, unless he was authorized by the members of the firm to settle the business of the partnership after its dissolution, he had no authority to give the notes in controversy. On his cross-examination he said: I exercised no powers except under the letter of attorney, which was for the business of F. Schlater & Co.but on his re-examination he said: “I had authority to wind up the affairs of the firm, after dissolution.” In saying this he may have supposed that under the power authorizing him to conduct the business of the firm he had authority to wind up and settle its affairs; or he may have so testified because he was expressly authorized by the members of the firm to settle the business of the partnership after its dissolution. But be this as it may, it is clear that the defendant had the right to contradict the witness by showing that he had no power as attorney in fact of the firm, after the dissolution thereof, to wind up its affairs, and, therefore, the court erred in sustaining the objection to the offer unless followed by proof of notice to the plaintiff.

The authority conferred by the power of attorney to conduct the business of the firm, as already suggested, ceased with the dissolution of the partnership, and if the plaintiff knew that the firm was dissolved when the notes were given, as it is manifest that he did, it was his business to see that Clendenning had authority to give them.

It needs no argument to show that the defendant was not bound by the entries made by Clendenning, or by his direction, in the partnership books after the dissolution of the firm; nor were they evidence against him, unless it was shown that he had assented to them.

Judgment reversed, and a venire facias de novo awarded.


text:
    Cobb versus Bennett.
    1. A vessel ran into’ a net laid in a private fishery in a navigable stream and damaged it. Held, that the captain was liable, if upon being warned he could have changed his course without prejudice to the reasonable prosecution of his voyage.
    2. What would be a reasonable prosecution of a voyage depended upon the attendant circumstances.
    3. A vessel may hold her course in a navigable stream without regard to a fisherman’s net, if the master act without wantonness or malice and do no unnecessary damage.
    4. Fishery is an acknowledged right, but is subordinate to the rights of navigation.
    5. Wantonness is reckless sport, wilfully unrestrained action, running immoderately into excess.
    6. Tinieum Fishing Oo. v. Carter, 11 P. F. Smith 21, referred to on the law of fisheries.
    February 18th 1874.
    Before Agnew, C. J., Williams, Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.

      Error to the District Court of Philadelphia: No. 52, to July-Term 1872.
    This was an action of trespass vi et armis brought June 20th 1870, by David Bennett against David Cobb, master and agent for the owners of the schooner “ Sarah. ”
    The cause of action was that the defendant wantonly ran his vessel into the fishing-net of the plaintiff and greatly injured it.
    The ease was tried February 8th 1872, before Lynd, J.
    The plaintiff testified that he was the lessee of a fishery on the New Jersey side of the river Delaware and duly licensed. He further testified that on the 17th of May 1870, he had his nets laid out about 3J o’clock A. M., with a boat with a light in it, lying about 200 feet from low water mark ; he had about thirty or thirty-five men employed. About that time the “ Sarah ” was seen approaching and when about 400 or 500 yards below the nets, his son rowed towards the vessel in which there was a light, he heard his son hail the vessel to go to the westward, plaintiff rowed down to the vessel and told the captain of the" vessel, that if he would “go about” he would clear the nets; he did not go about, “he continued his course until he struck my net; he damaged my net, tore my lines; he let go his anchor inside the net on the fishing grounds; * * * he lay the first time at anchor half an hour * * * I told him to stand over towards Tinicum Island; he did so and then went about, came back and anchored on our grounds, * * * he remained four hours at anchor the second time.”
    The plaintiff then testified as to the damage which he had sustained by reason of the vessel injuring his net. He also testified that the defendant without injury to himself might have avoided running into the net, if he had changed the course of his vessel after he had been notified.
    T. Bennett testified that when he saw the vessel approaching at the distance of 400 yards, he rowed out to her and asked the captain to keep to the westward of the light, which the witness pointed to him; he refused in offensive .language and kept his course inside of the light.
    There was other evidence of the same general character in support of the plaintiff’s case.
    The court charged:—
    “ In the present action, damages are claimed by the plaintiff on two grounds:—
    “ 1. For running into plaintiff’s net wantonly and maliciously.
    “2. For anchoring maliciously on plaintiff’s fishery.
    “ A riparian owner has a right at common law, independently of any statute, to throw his nets out in front of his shore, and cannot wantonly be interfered,with by any one.
    “ But there is another right in the river — that of navigation— which is superior to the right of fishery; and when they interfere, that of fishing must give way to the right of navigation.
    “ Where a person, in the exercise of his rights of fishing, has his nets cast out, and a vessel cannot proceed on her voyage without coming in contact with the nets, and the owner of the nets receives damages thereby, he cannot recover.
    “ [But if a navigator, having notice of these nets, can, with regard to a reasonable pursuit of his voyage, avoid them, and if, indifferent to the rights of the fishery, he runs into the nets or anchors on the fishing grounds, he must pay for the damage he does.] [Those exercising the rights of navigation will not be excused if they are sufficiently warned, unless they make a reasonable effort to avoid them.] [If the defendant’s vessel could, with such reasonable effort, have avoided the nets, even if it required him to shorten the tack his vessel was holding, the defendant was bound to do so. I charge that, as a question of law, he was bound to shorten his tack, if he could thereby have avoided the nets], without prejudice to the reasonable prosecution of his voyage.
    “Now, on the question of malice. [It does not require evil intent against or knowledge of the person injured to imply it. Recklessness in running into the net will render the defendant liable for maliciously injuring it.] [There is evidence from which the jury can find malice.”] * * *
    The verdict was for the plaintiff for $360.88.
    The defendant took out a writ of error, and assigned for error—
    1-5. The parts of the charge in brackets.
    6. Because the court did not charge that a vessel is not liable for injuries from negligence to fisheries in navigable streams, unless done with malice.

      J. V. Barling and M. P. Henry, for plaintiff in error.
    Private fisheries in navigable streams are, as to navigation, nuisances ; no duty is imposed upon navigators to avoid them. The limit of their duty is that they do not maliciously injure them. Malice is not to be inferred from a course of navigation in itself proper, because the fishery might have been avoided by another course : Lewis v. Keeling, 1 Jones (N. C.) R. 299; Post v. Munn, 1 South. (N. J.) 61; Colchester v. Brooke, 7 Q. B. 339; Carson v. Blazer, 2 Binn. 475 ; Shrunk v. Schuylkill Nav. Co., 14 S. & R. 71.

      J. W. Ooulston, for defendant in error.
   The opinion of the court was delivered, February 24th 1874, by

Agnew, C. J.

We discover no error in the portions of the charge assigned for error. They may all be comprised in the following instruction: “ I charge as a question of law he (the defendant) was bound to shorten his tack, if he could have thereby-avoided the nets, without prejudice to the reasonable prosecution of his voyage.” This was said in view of the facts in evidence on the part of the plaintiff, that the defendant was notified of the position of the net of the plaintiff; pointed to the light which marked that position; and requested to change his course so as not to foul it, and that this could be done conveniently. The judge had already said: “ But there is another right in the river, that of navigation, which is’superior to the right of fishing, and when they interfere, that of fishing must give way to the right of navigation.” He had also said: “ Those exercising the rights of navigation will not be excused, if they are sufficiently warned, unless they make a reasonable effort to avoid them.” Now, surely, it is not error to say, that when the mariner is warned of his approach toward the net of the fisherman, he should change the course of his vessel, if he can do so without prejudice to the reasonable prosecution of his voyage. The entire point of the charge is contained 'in this qualification, and hence it was not doing full justice to the charge to omit the qualifying words in the assignment. "What would be a reasonable prosecution of the voyage would depend on the attendant circumstances, and upon this a special instruction might have been called for. Without the qualification there would have been error, for we must agree that the mariner is not bound to shorten his tack, merely because a net is stretched across his course. A vessel is entitled to take her course in the navigation of the river, and to hold it without regard to the'fisherman’s net, provided the master act without wantonness or malice, and do no unnecessary damage. This is an obvious consequence of the superior right of navigation. But this, we think, was the very doctrine of the charge, and the exception contained in the qualification in view of the facts in evidence. If the mariner, warned of the position of the net and requested to change his tack, may do so without prejudice to the reasonable prosecution of his voyage,” can we say he is exercising his superior right of navigation justly, and in the spirit of the maxim, sic utere tuo ut alienum non Icedas, if, indifferent to the inferior right, he recklessly holds on his way and fouls and injures the fisherman’s net? Certainly we cannot say this, for in effect it would be to say a fisherman has no rights whatever; that being no right which another may disregard under all circumstances. In view of the legislation, both of Pennsylvania and New Jersey, the usages of fishing, and the decisions in our own state, there is a right of fishing in the Delaware, though subordinate to the right of navigation, which cannot be unnecessarily impeded by it. Fisheries attached to the riparian ownership are valuable, and command high rents. This subject will be found tobe discussed at great length and with much research, by our brother Sharswood, in the case of The Tinicum Fishing Co. v. Carter, 11 P. F. Smith 21. It therefore needs no further discussion here. The right of fishery is an acknowledged one, though it is entirely subordinate to those of navigation, and we intend in this opinion to lay down no principles which would burden commerce or restrict the navigator’s rights, beyond that which his evident duty to others would justly require. Indeed, the question upon the charge comes down to this. Is it wantonness when a mariner warned of the net, seeing the light marking its position, and requested to avoid it, yet indifferent to the interests of the fisherman, keeps on his course, when a reasonable pursuit of his voyage would not be prejudiced by avoiding the net? Wantonness is reckless sport, wilfully unrestrained action, running immoderately into excess. If a man will do an injury, when he may reasonably avoid doing so, without inconvenience to himself, can it be said he is blameless ? Is it not worse than wantonness, is it not rather malice, when he may, without prejudice to the reasonable enjoyment of his own right, desist from an injury to another, and yet will persist in committing it ? Now, unless we deny this proposition we cannot reverse. If there were anything exceptional in the facts or contradictions in the evidence, it was in the power of the defendant to ask specific instructions upon the precise state of the facts as appearing on either side. If, by reason of the veering of the wind to the north-east, the running of the tide with the course of the vessel, the want of men on deck at the moment, or other sufficient cause, it would have been difficult, or even unreasonably inconvenient, to shorten the tack of the vessel, or change its course, the instruction might have been asked that in such a case the master was not bound to luff or to shorten tack. We agree with the counsel of the plaintiff in error, that the interests of navigation are all-important to a port like that of Philadelphia, and are not required to give way to the minor and subordinate right of fishing. But in the absence of a call for instruction on the point so much insisted upon in the argument, we cannot say the court erred in the general instructions contained in the charge. There was evidence of malice sufficient to take the case to the jury, to whom it belonged, and not to the court, to say whether the language used, “to hell with your net,” was a mere superfluity of maritime civility, or was indicative of malice.

Judgment affirmed.