author: Agnew, J.

text:
    The Commonwealth ex rel. Attorney-General versus Hipple.
    1. The Criminal Court of Schuylkill county, created by act of April I8th 1867, is a constitutional court.
    2. The legislature can establish criminal courts, in addition to those specified in the Constitution, and give them concurrent jurisdiction with existing criminal courts.
    3. The legislature can invest courts with such jurisdiction as appears necessary and proper, and part the judicial powers of the state so as to adapt them to its growth and change of circumstances.
    4. The exclusiveness of the jurisdiction in the Oyer and Terminer as to certain cases, is created by the legislature not by the constitution.
    5. The Criminal Court of Schuylkill county has jurisdiction over all offences in that county.
    6. The District Attorney is bound to prosecute in that court offences returned there: if a question as to jurisdiction arises, the court not the district attorney must determine it.
    March —1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Mandamus to Charles D. Hippie, Esquire, District Attorney of the county of Schuylkill, to sign, &c., bills of indictments upon recognisances returned into the Criminal Court of Schuylkill county.
    By an Act of Assembly approved April 18th 1867 (Pamph. L. 91), the counties of Dauphin, Lebanon and Schuylkill were erected into a judicial district under the name of “ The First Judicial District of Criminal Jurisdiction. ” The court to consist of one judge learned in the law, who should be president judge of the district, and in all criminal matters have “like powers, jurisdiction and authority, as the president judge of any judicial district in the Commonwealth, as well when holding a Court of Quarter Sessions of the Peace and Court of Oyer and Terminer as in vacation,” &e.; each of the courts to have power and authority to inquire of, try, &c., all murders, robberies and felonies, misdemeanors, &c., within the county for which such court was created, &c., to sentence all persons convicted, “ and generally to do all such matters and things as any court of General Quarter Sessions of the Peace or Oyer and Terminer, &c., may or can do within the county for which such court is created by this act. * * *
    “After passage of this act, all recognisances taken within the county of Schuylkill shall be taken for the appearance of the prosecutors, defendants and witnesses at the court created by this act for said county, and not to the Court of Quarter Sessions of Schuylkill county; and from and after the first Monday of June next, the jurisdiction of the Court of Quarter Sessions of the Peace, and Court of Oyer and Terminer, of Schuylkill county, over felonies and misdemeanors, shall cease and determine, and the whole of the said jurisdiction, now vested in the said court, shall be and the same is hereby vested, from that date, in the court, for the said county, created by this act; and all indictments pending, and recognisances, in the Court of Quarter Sessions of the Peace, and the Court of Oyer and Terminer, in Schuylkill county, shall be then transferred to, and be heard, tried, proceeded in and determined in the court created by this act, in the same manner, and with the same effect, as if the indictments had originally been found on the recognisances taken therein : * * * the sessions of the court created by this act shall be held as follows : — In Schuylkill county, on the first Mondays of January, April, July and October, and to continue four weeks, if the business shall require it, &e.” * * *
    The act further provided for the appointment and subsequent election of a judge of the court according to the Constitution ;— that the clerks of the Court of Quarter Sessions and Oyer and Terminer in the respective counties should be clerks of the new court; that sheriffs and other officers should obey and execute the orders of the court; the existing laws relating to the selection and summoning grand juries and petit juries were extended to the new court; no grand jury to be summoned “ in the present Court of Oyer and Terminer or Quarter Sessions as now held in Schuylkill county, after the establishment of the Criminal Court under this act; but the grand jury shall be selected for and summoned to attend the Criminal Court in said county only.”

      Subsequently David B. Green, Esquire, was duly commissioned judge of the Criminal Court.-
    Charles D. Hippie, Esquire, the District Attorney of Schuylkill county, by writing addressed to the President Judge of the court, alleging that the law was “lame and defective, ” requiring “ legislative amendatory action ; ” — that it was “ unconstitutional in several parts,” — created a conflict of jurisdiction with the Court of Common Pleas of Schuylkill county;— that the Supreme Court in cases connected with the court had declined to give a decision which “ would have settled the whole question,” and for other reasons set out in the writing declined “ trying any cases in this court until such time as the law in its defects be corrected by the legislature or the questions of the extent of jurisdiction be finally settled by the highest tribunal of the state.”
    On the 3d of January 1870, P. Carroll Brewster, Esquire, the Attorney General, filed an information in the Supreme Court, setting out the foregoing facts, and suggested that a mandamus issue to the District Attorney, “ commanding him to sign all bills of indictment on recognisances returned to the said Criminal Court, and to conduct in said court all criminal or other prosecutions in the name of the Commonwealth, or when the state is a party, which arise in said county, and which have been returned to said court.” An alternative mandamus was issued on the same day, returnable on the third Monday of the same month (January 1870).
    The respondent answered, denying that it was his duty to sign bills of indictment and conduct prosecutions in cases returned into the said court; that few recognisances had been returned into said court; that he had tried all cases in the Court of Quarter Sessions and Oyer and Terminer; he denied that the public interest suffered by not trying cases in the Criminal Court.
    Besides the reasons given in his paper filed, he gave the following in answer to the mandamus :—
    1. That the act creating the Criminal Court was unconstitutional.
    2. That he had never failed to sign bills of indictment and try cases in the regular courts, and that he had the right to prosecute the pleas of the Commonwealth there.
    3. The Criminal Court had no power to sue out forfeited recognisances and therefore no power of enforcing the attendance of prosecutors, &c.
    4. That there was a legal court in said county of Schuylkill (which is a judicial district), that is entitled to take jurisdiction of all cases arising in said county, and that the respondent had tried all criminal cases therein.
    5. That the act creating the Criminal Court does not define wbat part of the criminal jurisdiction of Schuylkill county is vested in that court. That no concurrent jurisdiction can constitutionally exist in the Criminal Court with the Court of Oyer and Terminer in the judicial district composed of Schuylkill county, to try cases cognisable in the latter court, and that as to cases triable in the Court of Quarter Sessions, the law did not command the respondent to try any cases in the Criminal Court.
    The Attorney-General demurred to the answer, and the respondent joined in the demurrer.
    The case was argued by F. B. Growen and F. Carroll Brewster, Attorney General, for the Commonwealth, and by J. W. Ryan, F. W. Hughes, and B. W. Cumming, for respondent.
   The opinion of the court was delivered, May 5th 1870, by

Agnew, J.

This proceeding is a mandamus at the relation of the Attorney-General of the Commonwealth against Chas. D.' Hippie, the District Attorney of Schuylkill county, to compel him to sign bills of indictment, and to conduct all criminal and other prosecutions in the name of the Commonwealth in the Criminal Court of Schuylkill county. The answer of the defendant brings into question the constitutionality of the court and its jurisdiction, and the duty of the District Attorney to prosecute the pleas of the Commonwealth therein. The Attorney-General has demurred to this return.

The constitutionality of the act to establish criminal courts for Dauphin, Lebanon and Schuylkill counties, approved the 18th of April 1867, Pamph. L. 91, was established by our decision in the case of the Commonwealth v. Green, 8 P. F. Smith 226. It is argued, that that decision settled no more than the constitutionality of the commission issued to Judge Green. This is incorrect. The authority to commission him depended on the constitutionality, of the law creating the court. There cannot be a constitutional judge in an unconstitutional court, and it was said in the outset of the opinion of the court, delivered by our Brother Sharswood: “If the legislature had power to erect' such a district; to provide for the election of the judge therein, in the manner prescribed in the act, and to invest him with any of the powers and rights conferred upon him, we cannot .sustain the demurrer, and give judgment of ouster against the defendant.” He then states: “ The main point of contention is, whether the legislature can transfer any part of the criminal jurisdiction now vested in the courts named in the Constitution to any other court;” and proceeds to show that this is constitutional. The question of the constitutionality of the court was fully decided, and the District Attorney ought not to have réfused to perform his duties under the law on that ground. We shall therefore not renew the discussion, notwithstanding the effort to induce us to recede from that decision, but shall add, in confirmation, a few observations upon the effect of the amendments to the Constitution of 1790, made in 1838 and 1850, not adverted to in the former opinion.

It was unquestionably the intention of the Convention, in framing the Constitution of 1790, to vest by the fifth article the whole judicial power of the state in tribunals created and to be created. The first section, therefore, declares, that the judicial power of the Commonwealth shall be invested in a Supreme Court, in Courts of Oyer and Terminer and General Jail Delivery, in a Court of Common Pleas, Orphans’ Court, Register’s Court, and a Court of Quarter Sessions of the Peace, and such other courts as the legislature may from time to time establish.” Between 1790 and the adoption of the amendments of 1838, the legislature had changed and reorganized the Supreme Court several times, by abolishing the Nisi Prius Courts existing at the adoption of the Constitution all over the state, and substituting the Circuit Court system, which it repealed, re-enacted, and again repealed, and by adding to the number of judges. It had also reorganized some of the Courts of Common Pleas, and added law judges to them. It had created new courts, called District-Courts, for Philadelphia, Lancaster and York, and created several Mayor’s C’ourts, with jurisdiction for the trial of misdemeanors before triable in the Quarter Sessions. Thus, before 1838, the first section of the fifth article of the Constitution of 1790 had received a construction which enabled the legislature to reorganize the courts named in the Constitution and create new courts and new judges, and to take away portions of the jurisdiction of the constitutional courts and confer them on new tribunals. Under these circumstances the Convention of 1837-8 struck out the second section of the fifth article, which read as follows: The judges of the Supreme Court and of the several Courts of Common Pleas, shall hold their offices during good behavior. But for any reasonable cause, which .shall not be sufficient ground of impeachment, the governor may remove any of them on the address of two-thirds of each branch of the legislature. The judges of the Supreme Court and the presidents of the several Courts of Common Pleas, shall, at stated times, receive for their services an adequate compensation, to be fixed by law, which shall not be diminished duritig their continuance in office; but they shall receive no fees or perquisites of office, nor hold any office of profit under this Commonwealth.”

In place of this section the Convention adopted a new provision, authorizing the judges of the Supreme Court, of the several Courts of Common Pleas, and of such other courts of record as are or shall he established by law, to be nominated by the governor, and by and with the consent of the Senate appointed and commissioned by him. It further provided, that the president judges of the Courts of Common Pleas, and of such other courts of record as are or shall be established by law, and all other judges required to be learned in the law, should hold their offices for the term of ten years, if they shall so long behave themselves well. Thus there was a distinct constitutional recognition of the power which had been exercised by the legislature in reorganizing the courts named in the Constitution, and adding thereto law judges, and in creating new courts of record with judges learned in the law. As a measure of precaution, to preserve the former interpretation of the unaltered portions of the Constitution, the schedule provided, in section third, that: “The clauses, sections, and articles of the Constitution, which remained unaltered, shall continue to be construed and have effect as if the said Constitution had not been amended.” The effect of this was to preserve the interpretation the first section of the fifth article had received, which enabled the legislature to reorganize the old and erect new courts. After 1838 and before the adoption of the amendment of 1850, a number of new courts had been created, several of the Courts of Common Pleas reorganized, new judges learned in the law provided for, and this court had made the decisions in Commonwealth v. Zephon, 8 W. & S. 382; Commonwealth v. Martin, 2 Barr 244; and In re Pennsylvania Hall, 5 Barr 204. These cases had decided that the Court of Criminal Sessions was a constitutional court; that the Act of 3d July 1843, transferring the jurisdiction of the Criminal Court to the Court of Oyer and Terminer and Court of Quarter Sessions, was a valid law ; that a Court of Oyer and Terminer could be held by a judge learned in the law, not the president; and that a single judge can hold a Court of Quarter Sessions when directed by the legislature. These cases were all decided from 1844 to 1847, and in full view of them the legislature, in 1849, proposed the amendment of 1850, in lieu of the second section of the fifth article, using the same language in reference to the election of judges, to wit: “ of such other courts of record as are or shall be established by law,” and, “ all other judges required to be learned in the law.” This is again an unmistakable recognition in the Constitution of the power which had been exercised by the legislature in the establishment of the new courts in the interim between 1838 and 1850, exercising jurisdictions which had belonged to the old courts under the Constitution of 1790, and in the reorganization of the old courts, adding new law judges. There ought not to be any doubt, therefore, of the power of the legislature to establish a new Criminal Court, and to give it concurrent jurisdiction with existing courts for the trial of crimes and misdemeanors. The Constitution having neither defined nor limited the jurisdictions of the courts named in the Constitution, or of those to be afterwards established, the power to create new courts and new law judges carried with it the power to invest them with such jurisdictions as appear to be necessary and proper, and to part and divide the judicial powers of the state so as to adapt them to its growth and change of circumstances.

The District Attorney in his return, also denies the jurisdiction of the Criminal Court, on the ground that some of the offences committed to it are triable exclusively in the Court of Oyer and Terminer. But this exclusiveness is a creature of law and not of the Constitution. The power to create a new court and vest it with jurisdiction to try all offences in the county, being settled, the jurisdiction of the Oyer and Terminer is no longer exclusive, but is merely concurrent.

The argument for the District Attorney that the act gives to the Criminal Court only that which it takes from the Court of Oyer and Terminer and Quarter Sessions, is a mistaken view of the law. The first part of the act is merely affirmative, vesting the Criminal Court with full power and authority to inquire of, hear, try and determine, agreeably to the laws and customs of this Commonwealth, all murders, rapes, robberies, arsons, felonies, misdemeanors, and other offences which have been or may be committed within the county for which the court is created, and which would be cognisable in any Court of Quarter Sessions of the Peace, and Court of Oyer and Terminer within this Commonwealth, if committed within their jurisdiction, &e. So far the act merely establishes a new Criminal Court, with the same jurisdictions as the Oyer and Terminer and Quarter Sessions, and does not supersede them. This vests only a concurrent jurisdiction. It is not until after vesting jurisdiction in the new court, the act proceeded to wrest all the powers of the Courts of Oyer and Terminer and Quarter Sessions from them, that it became invalid; and so we held in The Commonwealth v. Byan, at Harrisburg, in 1867. This left the valid part of the act standing, and disposes also of the alleged difficulty of the District-Attorney in determining what part of the criminal jurisdiction over offences is vested in the new court. All is vested by the express words of the law, and there is no line of demarcation to be followed. It is concurrent with the old courts, and when a difficulty arises in any particular case, it will be for the court to determine its own jurisdiction, and not the District Attorney.

He is incorrect in asserting that there is no duty on his part to prosecute the pleas of the Commonwealth in the Criminal Court. The first section of the Act of the 3d of May 1850, provides that: He shall sign all bills of indictment, and conduct in court all criminal and other prosecutions in the name of the Commonwealth, or when the state is a party, which arise in the county for which he is elected, and perform all the duties which now by law are to be performed by deputy attorney-generals.” He is bound to follow the the business of the Commonwealth into whatever courts in the county that business is authorized by law to be tried. His return to the writ of alternative mandamus is therefore insufficient, and judgment must be given for the Commonwealth.

And now, May 5th 1870, the demurrer of the Commonwealth to the return of the defendant is sustained, and the court give judgment for the Commonwealth with costs, and order a peremptory mandamus to issue to the defendant.

Thompson, C. J., dissented.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Soullier et al. versus Kern.
    1. Soullier owned a lot in Philadelphia, and died there in 1821, leaving heirs residing in Prance: — they had agents in Philadelphia who leased the lot: the city filed a claim for paving, under which the lot was sold in 1864. At the time of the sale one of the heirs was a minor, the others were of age. Held, that under the saving of minors’ rights, in the Act of April 16th 1840, the interest of the minor was not divested, but that the interests of the others were, although it was a proceeding in rem.

    2. The statute preventing a sale of a minor’s property for two years after he comes of age, does not by implication forbid the sale of the interest of his adult co-tenants.
    3. It seems that the court, on the application of the adult co-tenant, and payment of his proportion of the claim, would enjoin the sale, leaving the residue a charge on the minor’s interest.
    4. The claim was filed against the occupier as “ owner or reputed owner or whoever may be owner; ” a scire facias was issued and judgment taken by default: this was conclusive that the paving had been authorized by the b city; the judgment could not be collaterally impeached.
    6. Evidence was inadmissible to show that neither the agent of the heirs nor the tenant had notice of the paving, nor its having been done nor of the, claim on that account.
    6. The jury, by instruction of the court, found for the defendant generally; the judgment as to the minor was reversed, and affirmed as to the other plaintiffs.
    January 11th 1871.
    Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 296, to January Term 1870.
    This was an action of ejectment, brought January 4th 1868, by Henri Edmund Soullier and nine others, heirs at law of Jean Marie Soullier, deceased, against William H. Kern, for a lot of land on Race street, Philadelphia. Jean M. Soullier became the owner of the premises in 1809, and died in 1821. After his death F. A. Raybold, Esc]., as the agent for his heirs, who resided in France, leased the premises. Upon Mr. Raybold’s death W. E. Whitman, Esq., became the agent, and on the 26th of December leased to W. B. Wolfe and S. P. Willbank; these lessees put Patrick Kereven into possession of the lot as their tenant. On the 13th of October 1860, the city of Philadelphia filed a claim in the Court of Common Pleas of Philadelphia for $10.44, for paving, against the lot, in the name of “ Patrick Curvan, owner, or reputed owner, or whoever may be owner.” On the 14th of February 1863, a scire facias was issued on the claim; to this writ the sheriff returned “ Made known by posting and publishing see. leg.” On the 30th of May judgment was entered for the city for want of an affidavit of defence for $12.32. On the 4th of January 1864, the premises were sold by the sheriff under this judgment to the defendant for $400, and the sheriff’s deed to him acknowledged June 4th 1864. None of the decedent’s heirs ever resided in the United States. On the trial, January 10th 1870, before Hare, P. J., the plaintiff gave evidence of the title in J. M. Soullier, and of his death, as above stated; that plaintiffs were his heirs at law; that Henri Edmund Soullier, one of them, had been born September 17th 1843; and rested.
    The defendant having given in evidence the proceedings under which the lot had been sold, the plaintiff in rebuttal offered to, prove that Mr. Whitman, as agent for the heirs, had never received notice of the paving or of the filing of the claim for it; that Kereven, the tenant, did not know of paving done or to be done to the lot: also what price the defendant paid'for the premises at sheriff’s sale and what negotiations had been had with him to redeem the premises. The offers were rejected by the court and several bills of exception sealed.
    The plaintiffs requested the court to charge the jury:—
    1. That if from the evidence they find that one of the joint owners of the premises for which this action is brought, was at the time of the sheriff’s sale a minor, then the sale was invalid and passed no title to the purchaser, the defendant, and the plaintiffs are entitled to recover.
    2. That unless they find from the evidence that the paving, for which the claim was filed against the premises, was authorized by the city of Philadelphia, in pursuance of the power delegated by Act of Assembly, the claim was void, and the sale under it passed no title to the defendant, and the plaintiffs are entitled to recover.
    The court refused the points and charged the jury “ to find for the defendant.”
    The verdict was for the defendant.
    The plaintiffs took out a writ of error and assigned for error :
    1 and 2. The refusal of the points.
    3. 4 and 5. The rejection of their offers of evidence.
    6. Instructing the jury to find for the defendant.
    The Act of April 16th 1840, section 10, Pamph. L. 413, Purd. 751, pi. 25, under which the sale was made, has this proviso : “ Pro vided, that no property owned by minors shall be sold under the provisions of this Act, until the expiration of two years from the time the said minor shall become of age.”

      J. Parsons, for plaintiffs in error.
    The effect of a proviso is to declare that the authority shall not be exercised, unless in the case provided: Voorhees v. Bank U. S., 10 Pet. 449. A limitation by a proviso is a denial of authority: Com’rs Kensington v. Keith, 2 Barr 218; Wayman v. Southard, 10 Wheat. 30; Sheppard’s Touch. 122; Sedgwick’s Statutory and Constitutional Law 62.
    Under a judgment and execution in rem the property itself is sold; the specific thing, with all the rights which the ownership of it involves, is transferred in its integrity: Salter v. Reed, 3 Harris 264 ; Van Billiard v. Nace, 1 Grant 233; Lex v. Holmes, 4 Phila. 10; Northern Liberties v. Coates’s Heirs, 8 Harris 245; 3 Austin’s Jurisprudence 189. The sentence of a competent court, proceeding in rem, is conclusive with respect to the thing itself, and operates as an absolute change of the property: Williams v. Armroyd, 7 Cranch 432 ; Gelston v. Hoyt, 3 Wheaton, 312-22 ; Imrie v. Castrique, 8 Jno. Scott, N. S. (98 E. C. L.) 405. The land is the party bound by the judgment, and all claimants are privies : Delaney v. Gault, 6 Casey 63. The remedy under the Act of 1840 and its supplements is like that of mechanics and material-men : City of Philadelphia v. Sutter, 6 Casey 53. Sergeant on Mechanics’ Lien 200; Spackman v. Caldwell, 3 Phila. 375; Holden v. Winslow, 7 Harris 449; Hershey v. Schenk, 8 P. F. Smith 382 ; Anshutz v. McClelland, 5 Watts 487 ; Lex v. Holmes, 4 Phila. 10, 1860; Hartman v. Ogborn, 4 P. F. Smith 120; Brunner’s Appeal, 11 Wright 67.
    The want of authority to sell invalidates a sheriff’s sale : St. Bartholomew’s Church v. Wood, 11 P. F. Smith 961; Cadmus v. Jackson, 2 Id. 295; Kensington v. Keith, 2 Barr 218.
    No ordinance directed the pavement to be laid, and unless the city exercises the authority delegated to it by the legislature, the statute never comes into operation, and no rights can be acquired under it: City v. Lea, 5 Phila. 77 ; Harrison v. City, 3 Id. 138 ; City v. Reilly, 10 P. F. Smith 467.

      W. S. Gilpin and C. Gilpin, for defendant in error.
    The minor has his day in court, under the proviso, after judgment and before sale. If his claim be not made before sale, the sale is good and passes title to the purchaser as well against minors as adults. An exemption or privilege under the law must be claimed at the proper time; omission to do so allows the general provisions of the law to take their course with the same force and effect as if there were no exemption or privilege: Hartman v. Ogborn, 4 P. F. Smith 120.

      But if the exemption availed for the property of the minor it could not enure to the adult co-plaintiffs: Mobley v. Bruner, 9 P. F. Smith 481.
    The city having the authority to do the work and to enter a lien for the same, and a judgment by sci. fa. having been entered according to law, everybody was concluded as to things necessary to be done to secure the lien and judgment: Murray’s Heirs v. City of Erie, 9 P. F. Smith 223 ; Voorhees v. Bank United States, 10 Peters S. C. Rep. 449.
   The opinion of the court was delivered, October 9th 1871, by

Williams, J.

There was no error in refusing to charge, as requested in the plaintiffs’ first point, that if one of the joint owners of the premises, for which this action was brought, was at the time of the sheriff’s sale a minor, then the sale was invalid, and passed no title to the purchaser, and the plaintiffs are entitled to recover. It is true that the judgment on which the sale was made was a judgment in rem. But it does not follow that if the sale did not divest the title of the minor, that it did not pass the title of his co-tenants who were sui juris. It would have divested the title of all the owners, whether adults or minors, if it were not for the proviso in the Act of April 16th 1840, § 10, Pamph. L. 413, which declares “ that no property owned by minors shall be sold under the provisions of this act, until the expiration of two years from the time the said minor shall come of age.” The argument that because the judgment is in rem nothing but the whole property bound by it could be sold, and as the minor’s interest therein could not be sold under the provisions of the act, therefore the interest of the adult owners could not be sold, is more specious than sound. If the proceeding is in rem it is wholly statutory and may be moulded and changed by the legislature at their will, and there is nothing in the provision, forbidding the sale of the property of a minor until the expiration of two years from the time he shall come of age,” which forbids, by implication, the sale of the undivided interest of an adult owner in the property bound by the lien. The object of the legislature in passing the act, was to protect the estates of minors, and to prevent their sacrifice at judicial sales — not to hinder and embarrass the city in the collection of its municipal claims against the property of adult owners. There is no more reason for exempting from sale during the minority of one of the co-tenants, the interest of an adult co-tenant, than there would be in exempting for the same period the property of such adult if he were the sole tenant or owner; nor would any injustice necessarily be done by allowing the sale of the adult owner’s interest-before any sale could be made of the minor’s interest under the provisions of the act. As the act forbids the sale of the minor’s interest, the court would doubtless, on the application of the adult co-tenant, enjoin the sale on the payment of his proportion of the lien or claim, leaving the residue a charge upon the minor’s interest and to be paid out of it. But whether so or not, there is nothing in the language of the proviso in question which countenances the doctrine contended for by the learned counsel of the plaintiffs, that there can be no sale of any interest in the property bound by the lien, so long as the sale of the minor’s interest is forbidden. The court below was therefore right in refusing to charge as requested in the plaintiffs’ first point.

Nor was there any error in declining to charge as requested in the plaintiffs’ second point. If the Court of Common Pleas had jurisdiction of the claim on which the sale was made, as it unquestionably had, under the express provisions of the Paving Act, then the judgment, until reversed or set aside, is conclusive that the paving for which the claim was filed, was authorized by the city of Philadelphia; and the judgment, if irregular or erroneous, cannot be collaterally questioned or impeached. The court, therefore, rightly refused to submit to the jury the question whether the paving for which the claim was filed was authorized by the city.

The third, fourth and fifth assignments were not pressed on the hearing, and it needs no argument to show that the offers of evidence embraced in them were properly rejected. If the facts offered to be shown were true, they would be of no avail to the plaintiffs in this action.

But there was error in instructing the jury to find a verdict for the defendant. There was evidence tending to show that Henri Edmond Soullier, one of the plaintiffs, was a minor at the time of the sale; and if so, under the provisions of the act we have been considering, his interest was not divested by the sale; and the court should have submitted the case to the jury, with the instruction that, if they found that he was a minor at the time of the sale, then the sale as it respects his interest was void, and he was entitled to recover. Eor this error the judgment as to him must be reversed.

Judgment reversed as to Henri Edmond Soullier and a venire facias de novo awarded; and as to the other plaintiffs in error named in the record the judgment is affirmed.


text:
    Williams versus Davis et al.

    1. After ejectment against husband and wife for land alleged to have been fraudulently conveyed to her by the husband, he died and his heir was substituted as á party. Held, that the heir was a witness for defendants, under the Act of April 15-th 1869.
    2. Judgments had been recovered after the conveyance against a firm, the the husband being named as a member. One of the firm called by plaintiff, testified that the husband had never been one of the firm, and had nothing to do with the debt. Held, that evidence of declarations of the husband to show that he had been a member of the firm were inadmissible.
    3. At the time of the conveyance to the wife, the land was subject to a mortgage given by the husband for part of the purchase-money. This was not such a debt as would render the conveyance void against subsequent creditors.
    4. Fraud consists in intention, carried out and evidenced by hurtful acts.
    5. At the time of the conveyance the husband intended to enter into business said to be hazardous; he did not enter into such business. The conveyance was not thereby void.
    6. It seems, that an expectation of future indebtedness will not render a voluntary conveyance void as against subsequent creditors, without a purpose to keep the property from such creditors.
    7. Where a grantor about the time of a voluntary conveyance enters into hazardous business, or immediately contracts large debts, the inference is that his motive was to withdraw the property from subsequent creditors; but the question is for the jury.
    January 19th 1871.
    Before Thompson, C. J., Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    Error to tbe Court of Common Pleas of Schuylkill county: Of January Term 1870, No. 146.
    This was an action of ejectment for a lot on Minersville street, in Pottsville, commenced November 21st 1863, by Daniel Williams, against Robert T. Davis and Elizabeth Davis, his wife. Robert T. Davis having died, his death was suggested May 15th 1865, and his daughter, Mary Smith, and his son Shadrach Davis, his heirs at law, were substituted. It did not appear by which party the suggestion and substitution had been made.
    The premises had been conveyed on the 8th of July 1856, to Robert T. Davis by Edward T. Taylor. On the 31st of October Davis conveyed them to Samuel 0. Harris, “ in trust to convey them immediately” to his wife, Elizabeth C. Davis; on the same day Harris conveyed them to Mrs. Davis. On the 4th of April 1859, Williams, the plaintiff, recovered a judgment for $1594.91 against Davis and 0. W. Edwards as partners; issued an execution on the judgment and bought Davis’s interest in the premises for $100; the sheriff’s deed was acknowledged June 11th 1863. Williams then brought this ejectment, alleging that the conveyance to Mrs. Davis was in fraud of her husband’s creditors and that the title remained in Davis.

      The cause was tried October 26th 1869, before Rj'on, P. J.
    The plaintiff gave in evidence the deed from Taylor to Davis, consideration $8700; also mortgage of same date from Davis to Taylor on the premises to secure a bond for $1700, the remainder of the purchase-money, payable July 8th 1859. Assignment of bond and mortgage February 24th 1864, to William Harris, for the consideration of $1654.
    He also gave in evidence a number of judgments against Davis, from August 4th 1857, until January 30th 1858, amounting in the whole to about $3800. One judgment was in favor of Tobias Wintersteen against Joseph Johnson, John Waugh and Robert T. Davis, as the firm of Johnson & Waugh; another in favor of M. I. Siebert against the same defendants.
    He then called William Harris, who testified that he had bought the mortgage at the request of Davis, as the owners were pressing payment, and Davis thought.he thus would get more time.to pay. Davis was then living in the house; Mrs. Davis had paid witness $700, besides interest on the mortgage; Davis had paid none; fourteen months’ interest were then due.
    John Reese testified that he, David Lloyd and Davis had been partners in gold digging in California in November 1854; they had bought a claim for $1500 and another for $500 ; they had no money, and borrowed money to make the payments; they had $500 or $600 each when they came back, after paying what they had borrowed; they got the money for the sale of their claims.
    David Lloyd testified that Davis was treasurer of the firm; their last settlement was in April 1856 ; Davis had $1700, which was divided; witness had about $600; Davis had no more chance than he; Davis and witness had at first about $250 each, and afterwards borrowed $1500 ; Davis worked-in other claims, but the three were equally interested in them.
    Peter D. Luther testified that Davis and Charles W. Edwards, in August 1857, entered into partnership in a contract for mining coal, at so much a ton, for Rogers, Sinnickson & Co.; coal mining was a risky business; they gave a judgment to Rogers, Sinnickson & Co. for some mules, and as a guaranty for properly working the colliery; the judgment was on some property on Minersville street, Pottsville, and it was afterwards ascertained the deed was ip Mrs. Davis’s name.
    Joseph Johnson testified that Davis had no interest in the firm of Johnson & Waugh; witness and Davis, as accommodation drawers, gave Waugh two notes of $400 each, to enable Waugh to buy goods; Waugh passed them off and ran away; Davis had nothing to do with the Wintersteen and Siebert judgments ; witness had paid both.
    Daniel Williams, the plaintiff, was called as a witness. He said he had a talk with Davis as to the business he was in. It was then proposed to prove by the witness “ that in the spring of 1857, while Davis was occupying the property in suit, that he told the witness he was then engaged in business at Eagle Hill with Joseph Johnson and John Waugh. This is offered to show that Davis was at the time one of the firm of Johnson & Waugh.”
    The offer was objected to by the defendants, rejected, and a bill of exceptions sealed.
    The plaintiff then rested.
    Charles W. Edwards was called by the defendant, and testified that through his importunity Davis went into the coal business with him in July or August 1857; Davis and witness had no capital.
    David Davis, a brother of Robert, testified that Robert did not intend to stay in California, “ he intended to get a little property for his family and then return;” he was going back to the gold diggings; he had no property beside this in dispute.
    Shadrach Davis, one of the substituted defendants, was offered as a witness for defendants. He was objected to by the plaintiff, “ on the ground that he was a party to the record, and not within the Act of 15th April 1869.” He was admitted by the court and a bill of exceptions sealed.
    He testified that his father returned from California in the spring of 1856; he had some money ; his mother had no money but what was sent to her from California and what was saved; his father bought the premises to maintain his family ; he intended to go back to California; he was sick two or three months; some one enticed him to go into business here; it “ was quite a sudden affair, it was talked of and he went right into it;” he gave up the idea of going to California when he went into the coal business ; during his sickness he intended to go back to California as soon as his health was fit; he said his intention was to go into the gold business ; he kept up the idea until he went into the coal business.
    The defendants then gave in evidence a deed dated May 15th 1856, from Benjamin L. Titus to Robert T. Davis, for a lot in Pottsville, for the consideration of $500, and rested.
    The plaintiffs, in rebuttal, called Shadrach Davis, who testified that so far as he knew his father conveyed the Titus property to William Fox for advances to him when he went into the coal business ; he had bought the house immediately after his return from California with money he brought home with him.
    Plaintiff proposed to prove “by the testimony of Shadrach Davis and others, that when Robert T. Davis returned from California he had no property or money but that which he made in California as a partner with Lloyd & Reese, less than $2000, alleging that was the whole of the proceeds of the partnership, and that the excess above the amount divided as aforesaid, belonged, one-third to Reese and one-third to Lloyd. This is offered to show where the money came from with which he purchased the property from B. N. Titus, and that he was indebted for that amount and upwards to his partners Lloyd & Reese.”
    Defendants objected “ that the testimony offered is irrelevant and not rebutting.”
    The offer was rejected, and a bill of exceptions sealed.
    S. Davis further testified that his father left no property at his death except what was in possession of his wife.
    William Eox testified that he bought the Titus property from Davis for $500 ; its worth at the time of trial was from $500 to $700.
    The deed to Eox was dated August 8, 1857. The parties submitted points hereafter stated.
    The court charged: * * * “If Davis was solvent at the time he made the conveyance to a trustee to convey to his wife, he had a right to settle a reasonable amount of his property upon her for her support, if at the time he made the conveyance he did not contemplate going into business in which he might contract debts. The fact that he did go into business subsequently, would not invalidate the conveyance, unless the conveyance was made at a time when Davis contemplated going into some business which might be termed hazardous, and in which he might incur debts; and to withdraw the estate from such indebtedness in the latter case, the conveyance would be void as against the debts of Davis incurred subsequent to the conveyance.
    , “ If, therefore, Davis made this conveyance at the time (81st Oct. 1856), he contemplated going into business, though he was solvent at the time the conveyance was made, in which indebtedness might be incurred by him, the conveyance to his wife was void, and the plaintiff would be entitled to recover. If, however, the conveyance was made for the purpose of giving a reasonable amount of property to his wife, as a reasonable settlement for her maintenance and support, and when he was solvent, and at the time did not contemplate going into business, the conveyance could not be avoided by his subsequent creditors. The law will not sustain a conveyance made in view of future business, in which the possible chances might be such as to create an indebtedness. This is hazardous business, because the result may be insolvency.”
    The plaintiff's points with the answers were :
    1. If the jury believe that Davis gave his personal obligation for the balance of purchase-money payable to his vendor, Edward T. Taylor, viz'.: for $1700, for the property in suit, and that he made no provision for its payment by any personal assumption of the debt by the purchaser, and had not then any other property or means out of which to pay said debt, the same not fully maturing until 1859, the conveyance to the wife was fraudulent and void as against creditors, and the plaintiff is entitled to recover.
    Answer: “Negatived, with the remark, that the balance of the purchase-money (unpaid) was secured to Taylor upon the property. The conveyance did not prejudice the claim of Taylor, and therefore it was not such a debt as would, under this conveyance, be void as against subsequent creditors, for that reason alone.”
    2. If the jury believe that at the time R. T. Davis conveyed the property in question to his wife, he intended to return again to California to engage in gold mining, as he had done before, as testified to by his brother David Davis, and his son Shadrach Davis, the conveyance to his wife was void, as against the plaintiff in this suit.
    Answer: “ Davis did not go to California, nor did he go into gold mining; hut if he did intend to go into gold mining, it would be a question to be determined by the jury whether it was hazardous business or not. We, therefore, negative the point.”
    3. It was Davis’s intention at the time he made the conveyance to his wife, and not the subsequent fulfilment or non-fulfilment of it, that constitutes a test of the validity of his conveyance to his wife; and if Davis intended at the time he made such conveyance, to enter into any hazardous business, whether he subsequently engaged in it or not, the conveyance is void as to the plaintiff.
    4. Under all the evidence in the case the plaintiff is entitled to recover.
    These two points were negatived.
    5. If the jury believe that at the time R. T. Davis conveyed the property in suit to his wife, it constituted the whole, or nearly the whole, of his estate, and that he did it with a view of making a settlement for his family, and intended at the same time to return to California, to engage in gold mining, as he had done before, and in which business indebtedness might be contracted, the conveyance to his wife was void, as against the present plaintiff, and he is entitled to recover.
    Answer: “We negative this point. The business of gold mining may create an indebtedness, and yet not such as to vitiate the conveyance, for the reason that the business may have ample assets, or may not be hazardous, and possible insolvency follow. A man may make a settlement of a reasonable portion of his estate upon his wife, even though he may have some other debts, if his other property is ample to satisfy all just demands.”
    The following were points of the defendants:—
    1. Under the evidence in this case, Robert T. Davis was solvent and without any debts against him at the time he conveyed .the property in question to Harris for' the purpose of having the same conveyed to his wife.

      2. There is no proof that Davis, at the time of said conveyance, contemplated going into any business of a hazardous character, or that required him to obtain credit.
    The court affirmed the 1st and answered the 2d as follows:—
    “ The defendant, Robert T. Davis, contemplated going to California, as the evidence shows, at the time the conveyance was made to his wife (31st October 1856). If he intended to go to California, and there go into mining gold, and such business would be hazardous, then against such debts the conveyance would be void. But was 'gold mining such hazardous business as would be likely to create debts and be termed hazardous ? If it is, then this point is negatived, and verdict should be for plaintiff; if not hazardous, as before explained to you, then the point is affirmed.”
    The verdict was for the defendants.
    The plaintiff took a writ of error and assigned for error :
    I. The admission of Shadraek Davis as a witness.
    2 and 3. Rejecting the plaintiff’s offers of evidence.
    4-7. The answers to the plaintiff’s 1st, 2d, 4th and 5th points.
    8 and 9. The answers to the defendants’ points.

      F. W. Hughes (with whom was C. Little) for plaintiff in error.
    —As to the 1st assignment referred to Act of April 15th 1869, Pamph. L. SO. Davis was himself bound to pay the bond for the purchase-money of the lot, and therefore the sale to Harris was void: U. States v. Mertz, 2 Watts 406. The charge as a whole was calculated to mislead the jury, and was therefore erroneous: Reeves v. Del. & L. Railroad Co., 6 Casey 454. Where there is a question for the jury a binding direction is error: Strohl v. Levan, 3 Wright 177.

      J. W. Ryan (with whom was L. Bartholomew) for defendants in error.
    The declarations of Davis proposed to be proved were after the conveyances; were also against his wife and inadmissible: Kerkland v. Hepselgefser, 2 Grant 84 ; Cord on Married Women 1033; Jones v. McKee, 3 Barr 496; 1 Greenleaf Ev., Sect. 342; Snyder v. Snyder, 6 Binn. 483; Murphy v. Hubert, 4 Harris 56 ; Smith v. Scudder, 11 S. & R. 325; Thomas v. Maddan, 14 Wright 261. When a debt is secured by a mortgage of the property, a voluntary conveyance does not tend to hinder and delay creditors: Stephens v. Olive, 2 Brooks’ R. 90 ; Thomson v. Dougherty, 12 S. & R. 456. An unexecuted intention amounts to nothing: Wheaton v. Sexton, 4 Wheaton 503. Ridgway v. Underwood, 4 W C. C. R. 129.
   The opinion of the court was delivered July, 3d 1872, by

Williams, J.

There was no error in the admission of Shadraeh Davis as a witness on the- part of the defendants. Though a party to the record he was clearly competent under the provisions of the Act of 15th April, 1869. He did not claim any interest in the property as heir of his deceased father, or otherwise, and was therefore not within the exception to the act.

The declarations of Robert T. Davis in the spring of 1857, while occupying the property in suit, that he was then engaged in business at Eagle Hill with Joseph Johnson and John Waugh, offered for the purpose of showing that he was at the time one of the firm of Johnson & Waugh, were properly excluded. They were clearly irrelevant. Of what avail would it have been to the plaintiff to show that Davis was a member of the firm of Johnson & Waugh? It was not proposed to follow the offer with evidence tending to show that the firm had contracted debts for which Davis was responsible, nor by any other evidence that made the offer relevant. The judgments in favor of Wintersteen and Siebert were conclusive against Davis, and could not be impeached in this action, and it was not competent for the plaintiff to contradict the testimony of his own witness, Joseph Johnson. In no aspect of the case, then, were the declarations of Davis admissible, even if they tended to prove that he was a member of the firm of Johnson & Waugh.

Nor was there any error in rejecting the plaintiff’s second offer. If it tended to show, as alleged, that Davis paid for the property purchased of Titus with the money belonging to the firm of which he was a member, and that he was indebted to his co-partners Lloyd & Reese for the amount, and also for their proportion of the residue of the money with which he returned from California when he bought the property in controversy; then it was evidence in chief, and it was no error to reject it when offered as rebutting evidence.

The court rightly refused to charge as requested in the plaintiff’s first point. The unpaid purchase-money, secured by a mortgage on the property conveyed to the wife, was not such a debt as would render the conveyance void as against subsequent creditors. It could not have been intended to hinder, delay and defraud the vendor in the collection of the purchase-money, for the wife took the land subject to the lien of the mortgage given to secure its payment.

Nor was there any error in answering the plaintiff’s second, third and fifth points in the negative. They are all based on the principle that the grantor’s intention, at the time of making a voluntary conveyance, to engage in business that may be hazardous, or in which indebtedness may be incurred, is the test of its validity, whether such intention is subsequently fulfilled or not; and, therefore, if Davis at the time he conveyed the property to his wife intended to return to California and engage in gold mining, as he had done before, in which business indebtedness might be contracted, or to enter into any hazardous business, the conveyance to his wife was void as against the plaintiff, whether he returned to California, or engaged in such hazardous business or not. It is undoubtedly true that there can he no fraud without a dishonest intent. But is dishonest intention the sole element of fraud ? If it is, then as suggested in Smith v. Smith, Murphy & Co., 9 Harris 371, it may be made out without proof of a single overt fraudulent act. And if none of its elements consist of an overt act, then the law requires no evidence of an overt act to establish it. But fraud does not consist in mere intention, but in intention carried out by hurtful acts. It consists of conduct that operates prejudicially on the rights of others, and is so intended : Bunn, Raiguel & Co. v. Ahl, 5 Casey 390. But mere intention, if not carried out, cannot work injury to the rights of others. What possible harm could Davis’s intention to return to California and engage in the business of gold mining, however hazardous it might be, do the plaintiff, so long as it was not carried into effect ? And if he had returned and contracted debts in the prosecution of the business, it does not follow that the conveyance to his wife would be invalid as against subsequent creditors, unless it was his purpose in making it to withdraw the property from their reach. A mere expectation of future indebtedness, or even an intent to contract debts, if it be only an intent, not coupled with a purpose to convey the property in order to keep it from being reached by the creditors, will not, as it would seem, render a voluntary deed invalid as against such future creditors : Snyder v. Christ, 3 Wright 507. The court below, therefore, properly refused to instruct the jury as requested in the plaintiff’s points.

We come now to the answers to the defendants’ points, which are complained of as erroneous. The defendants’ first point presented a question of fact and not of law, and for this reason the court might have declined to answer it. But there was no error in affirming it. Taking the affirmance in connection with the answer to the plaintiff’s first point, the jury must have understood the. court as saying that no such indebtedness of Davis had been shown as would avoid the conveyance to his wife.

Nor do vfe see that the plaintiff has had any good reason to complain of the answer to the defendants’ second point. The court was there asked to charge that under the evidence in this case there is no proof that Davis, at the time of the conveyance, contemplated going into any business of a hazardous character, or that required him to obtain credit. And, in answer thereto, the learned judge told the jury that Davis contemplated going to California, as the evidence shows, at the time the conveyance was made to his wife. And if he intended to go to California and there go into mining gold, and such business would be hazardous, then against such debts the conveyance would be void. Whether gold mining was such business as would be likely to create debts, and be termed hazardous, was a question which the court left to the jury with the instruction that if it was, theq this point is negatived, and the verdict should be for the plaintiff; if not hazardous, as before explained, then the point is affirmed. We think the defendants had more reason to complain of this instruction than the plaintiff, for it' made the validity of Davis’s conveyance wholly dependent upon the character of the business in which he intended to engage, regardless of the fact whether or not it was his purpose in making the conveyance to withdraw the property from the reach of the debts which he might contract. It is undoubtedly true, where the grantor enters into a new and hazardous business about the time the conveyance is made, or contracts large debts immediately thereafter, that it may be fairly inferred that it was his motive in making the conveyance to withdraw the property from the reach of the debts subsequently incurred. But this is a question of fact, upon which the jury should be left to pass in determining the character of the conveyance. If the answer of the court was faulty in this respect, and not altogether consistent with the answers previously given to the plaintiff’s points, the error did the plaintiff no possible harm, for it was more favorable to him than he had any right to expect. But the omission was supplied in the general charge in which the jury were instructed that “ if Davis was solvent at the time he made the conveyance to a trustee to convey to his wife, he had a right to settle a reasonable amount of property upon her, for her support, if at the time he made the conveyance he did not contemplate going into business in which he might contract debts. The fact that he did go into business subsequently would not invalidate the conveyance, unless the conveyance was made at a time when Davis contemplated going into some business which might be termed hazardous, and in which he might incur debts ; and to withdraw the estate from such indebtedness ; in the latter case the conveyance would be void as against the debts of Davis incurred subsequent to the conveyance.” Under these instructions the jury must have found that Davis, when he made the conveyance, did not intend to go into any business of a hazardous nature and to withdraw the property from the reach of the debts incurred in its prosecution. As there was no substantial error in the charge, and as there was evidence to justify the finding of the jury, the judgment must be affirmed.

Judgment affirmed.


text:
    Marsh’s Appeal.
    1. Partners cannot charge each other or the firm for their services without an express agreement, or one implied from the course of dealing between them.
    2. Each partner must work to the extent of his ability for the whole, without regard to the services of his fellows or comparison of value.
    3. Partners by writing entered “into partnership upon an equal footing,” the capital to be furnished by two at six percent, interest: there was no stipulation as to their respective duties. By verbal agreement one was to attend to the finances. He withdrew his services. Held, that on a settlement of the firm accounts, he was chargeable with the value of his services.
    January 26th 1872.
    Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Union county : In Equity, Of January Term 1871.
    This was a bill by Jamos S. Marsh, Joseph W. Shriner and Charles C. Sharkley, administrator, &c., of Frederick Marsh, against Samuel Geddes. The bill was filed July 16th 1867, and was for the settlement of the partnership account of the late firm of Geddes, Marsh & Co.
    The bill contained 15 paragraphs : — the only question brought up by the appeal arose on the 8th paragraph, viz.:—
    “ That the said defendant, in violation of his agreement as a member of said firm, neglected and refused to render service in the business of said firm from, on or about the first day of June, Anno Domini one thousand eight hundred and fifty-three, and fraudulently withdrew his services from business of said firm, which was a loss to the firm of the sum of one thousand dollars per anmjm, which sum is claimed to be charged against him, the said defendant.”
    The answer averred that the matters “ complained of as being a violation, upon the part of the defendant, of his agreement as a member of said firm, and as a neglect and refusal to render services in the business of the said firm, are matters which, if true, may be tried and determined at law, and with respect to which the said complainants are not entitled to any relief from a court of equity,” — it denied the allegations of fact in the paragraph.
    A replication having been put in, Andrew H. Dill, Esq., was appointed examiner and master.
    He found and reported that the partnership was formed under the following agreement:—
    “ This article, made and concluded this 23d day of April, A. D. 1852, witnesseth: That Samuel Geddes, James S. Marsh, Joseph W. Shriner, Elisha 0. Marsh and Frederick Marsh, hereby enter into partnership upon an equal footing, to carry on the foundry, and grain-drill and stove business, on the premises hitherto occupied by Geddes & Marsh. The style of the firm to be Geddes, Marsh & Co. The real estate and stock in trade of the firm of Geddes, Marsh & Co. to be acquired and paid for as specified in the following article of agreement (hereto annexed) between Geddes & Marsh and Geddes, Marsh & Co. The said Samuel Geddes and James S. Marsh to furnish Geddes, Marsh & Co. all the capital said firm may think necessary to carry on the business of said firm, and to be allowed interest on all such advancements, at the rate of six per cent, per annum. This partnership to last for the period of ten years, unless sooner dissolved by mutual consent.
    “ Some time afterwards, E. C. Marsh withdrew from the firm, and about June 1853, Geddes ceased to participate actively in the management of the business, and took no part in it till January 1858, when Frederick Marsh died, after which he was occasionally present, up to September 1858, when the firm was formally dissolved.”
    He further reported :—
    * * * “ The facts developed by the testimony are as follow: That Samuel Geddes voluntarily withdrew from the partnership at the time stated in the testimony, some four or five years, and refused to render any service as a partner for the period mentioned; that his services would he worth one thousand dollars a year at the least; that there was a verbal understanding among the partners at the time of the formation of the partnership, that each should take a particular department of the business; that Mr. Geddes was to manage the finances; that he was well qualified for this position, and was a careful and correct business man, and was given that place on account of his fitness for it, and that he performed this duty until he withdrew ; that a loss was suffered by the firm during the absence of Mr. Geddes, in the stove account of the firm against agents, for their sale, amounting to some five thousand dollars, by reason of the inattention of one of the partners who took Mr. Geddes’s place; that to have dissolved the firm at the time of the withdrawal of Mr. Geddes would have been at the risk of great loss in the then condition of the business ; that the proof is suflicient to sustain the amount charged by complainants for loss of service, if under the law they are competent to make the charge. It is not alleged in the bill, nor do any of the witnesses prove that the withdrawal of Geddes was done for the purpose of producing loss and damage, or for the purpose of unfairly appropriating the profits of the business to himself, nor does the evidence sustain the charge that it was done for the purpose of engaging in antagonistic business. It is clear that Mr. Geddes withdrew because of apprehension of loss in the completion of the furnace, and subsequent irreconcilable personal differences between the members of the firm. Under the pleadings and the evidence, then, the question is, can a partner, under articles of association for a limited terra of years, withdraw his services from the business of the firm, by reason of apprehension of loss and personal differences rendering intercourse unpleasant, and at the expiration of the time limited, on a settlement of partnership accounts claim a share of the funds without accounting to his copartners for the value of his services during his absence. This is the only allegation in the bill; there is no allegation that the withdrawal was a loss or damage other than the loss of personal service. * *
    “ As to the question of compensation, I understand the law to be, and so rule, that in the absence of express stipulation no such charge can be sustained. That if a partner fraudulently withdrawn from a firm, occasioning loss of profits and damage, it may be possible he may be made responsible in equity in a proper case, and with sufficient allegations. * * * The bill in effect seeks to measure the value of the services rendered by the members to the firm, and to give some of them compensation for such service without any stipulation to that effect in the written agreement. The withdrawal of Geddes might have been sufficient cause for the dissolution of the partnership, and he might have been made responsible at law if the withdrawal had not been justifiable; but the other partners, in not adopting this course, cannot receive compensation for services rendered to the firm after the withdrawal, for what they did afterwards was no more than they agreed to do when the partnership was formed. * * * I refuse to allow the charge made for loss of services as partner.”
    Exceptions were filed to the report by the complainants: they were overruled by the court (Woods, P. J.), and a decree entered in accordance with the finding of the report.
    The plaintiffs appealed to the Supreme Court and assigned the decree for error.

      G. F. Miller, for appellants.
    A partnership is to be regulated by the written articles so far as they go, but the partners will be bound by a verbal agreement: Casey on Part., 5 Law Lib. 3. Each partner must devote his attention and skill to the business of the firm: Parsons on Part. 6; 3 Kent’s Com. 20. If losses occur by breach of duty by one partner, he must individually bear the loss : Id. 224 ; Caldwell v. Seiber, 7 Paige 494; Crawshay v. Collins, 15 Ves. 226. If a partner quits the business for an unreasonable cause he should make good the loss: Howell v. Harvey, 5 Arkansas R. 270. Bill in equity is the proper mode for settling partnership transactions: McFadden v. Hunt, 5 W. & S. 468 ; McFadden v. Sallada, 6 Barr 283.

      J. C. Bucher, for appellee.
    An extra allowance cannot be made to a partner for services unless by special agreement. Coll-yer on Part., sect. 188; Story on Part., sects. 192, 198; Dougherty v. Van Nostrand, 1 Hoff. Ch. R. 68; Franklin v. Robinson, 1 Johns. Ch. 157 ; Burden v. Burden, 1 Ves. & Bea. 170; Bradford v. Kimberly, 3 Johns. Ch. 431; Lee v. Lashbrooke, 8 Dana 219 ; Paine v. Thacher, 25 Wendell 450 ; Newland v. Tate, 3 Ired. Eq. 232 ; Caldwell v. Lieber, 7 Paige 483 ; Phillips v. Turner, 2 Dev. & Bat. Eq. 123; Beatty v. Wray, 7 Harris 516; Brown v. McFarland, 5 Wright 129; Gyger’s Appeal, 12 P. F. Smith 73.
   The opinion of the court was delivered, July 3d 1872, by

Williams, J.

The only question in this case is, whether a partner who neglects and refuses, without reasonable cause, to perform the personal services which he has stipulated to render the partnership, is liable to account to the firm for the value of the services in the settlement of the partnership accounts. The master and the court below refused to charge the defendant with what would have been the value of his services to the firm if they had been rendered as agreed; because, in the absence of an express stipulation, partners are not entitled to compensation for their services, however unequal in value or amount; and to require the defendant to account for the value of his services would be, in effect, allowing compensation to the other members of the firm for the services they rendered. It is undoubtedly true, as a general rule, that partners are not entitled to charge each other, or the firm of which they are members, for their services in the copartnership business, unless there is a special agreement to that effect, or such agreement can be implied from the course of dealing between them. By the well-settled law of partnership, every partner is bound to work to the extent of his ability for the benefit of the whole, without regard to the services of his copartners, and without comparison of value; for services to the firm cannot, from their very nature, be estimated and equalized by compensation of differences : Beatty v. Wray, 7 Harris 519.

In the absence, therefore, of any special provision allowing compensation for services, the law will not make any, nor infer one from the greater industry or greater ability of any one partner. The doctrine seems to be that partners are considered as meeting on common ground, each engaged to do all he can for the common good; and whatever any one does, he has no claim for anything beyond his equal share of the common benefit without the consent of his copartners: Parsons on Partnership 229-30. The principle on which the master and the court below refused to charge the defendant is too firmly imbedded in the law of partnership to admit of question; but the doubt is as to its applicability to the facts of this case. The plaintiffs are not seeking compensation for the services they rendered the partnership. They are simply seeking to charge the defendant with the loss occasioned the partnership by his refusal to render the services which he agreed to perform. If the partnership has suffered loss hy his breach of the agreement, why should he not make good the loss, and put the firm in the same condition it would have been if he had not broken the agreement ? If the defendant is compelled to make good the loss, each member of the firm, including himself, will receive his proportion of the amount in the distribution of the partnership assets, and in no just sense can this be regarded as compensation for the services individually rendered.

If, then, the value of the services is the measure of the loss, why should not the defendant be charged with their value ? It may be that in the absence of any agreement to render the special services, he would not be chargeable for his neglect to perform them. The question is not whether one partner, in the absence of an express agreement, is entitled to compensation for the services he may render, or whether, if he fails to render any, he is liable to the partnership for the breach of the implied obligation to exercise diligence and skill, and to devote his services and labors for the promotion of the common benefit of the firm. But the question with which we have to deal is, whether a partner, who agrees to render special service to the firm, for the performance of which he is well qualified, and which was one of the inducements for the other members to enter the partnership, is liable to account for the value of such service, if he wrongfully refuses to perform it ? If, says Mr. Justice Story, the partnership suffers any loss from the gross negligence, unskilfulness, fraud or wanton misconduct of any partner in the course of partnership business, he will ordinarily be responsible over to the other partners for all the losses and injuries, and damages sustained thereby, whether directly or through their own liability to third persons. Of course all losses, injuries and damages sustained by the partnership from the positive breach of the stipulations contained in the articles of partnership on the part of any partner, are to be borne exclusively by that partner, and he must respond over to the other therefor: Story’s Partnership, § 169. If this be the law, why should not the defendant he answerable to the partnership for his breach of the agreement to perform the services stipulated ?

The master has found upon competent and sufficient evidence that there was a verbal understanding among the partners, at the time of the formation of the partnership, that each should take a particular part of the business; that the defendant, G-eddes, was to manage the finances; that he was a careful and correct business man, well qualified for the position, and was given that place on account of his fitness for it; and that he performed this duty until he withdrew his services; that to have dissolved the firm at that time would have been at the risk of great loss in the then condition of the business ; and that the proof is sufficient to sustain the amount charged by complainants for loss of service, if, under the law, they are competent to make the charge. But why should there be a doubt in regard to their right to charge the defendant with the amount of the loss ? Why should not a partner be just as responsible for the breach of his agreement to render personal services to the partnership as for the breach of any other stipulation in the partnership contract ? No good reason can be suggested why there should not be the same rule of accountability in the one case as in the other. It has been held that where, by the articles of copartnership, one partner is exempted from the duty of rendering his personal service to the joint business, if he afterwards does render such services, at the instance and request of his copartners, he will be entitled to a reasonable compensation therefor. The general rule that one partner cannot charge the firm for his services, is founded on the principle that each partner is bound to devote his skill and labor to the promotion of the common benefit of the concern, and is inapplicable where the reason of it fails: Lewis v. Moffit, 11 Ill. 392. And so it has been held that where partners agree to invest equal amounts of money in their common business, and one advances a larger sum than the other, he is entitled, upon settlement, to an allowance of interest on one-half of the excess so advanced by him from the date of its appropriation to the use of the firm: Reynolds v. Mardis, 17 Ala. 32. And why, by parity of principle, should not one partner be entitled, upon settlement of partnership accounts, to charge his copartner with the value of the services which he agreed to give and refused to render ? If the defendant had made profit by engaging in other business in violation of his contract, it is settled that the plaintiffs would have their option, either to sue for damages for the breach of the contract, or to bring a bill in equity to compel an account: Moritz v. Perbles, 4 E. D. Smith 135. And it would seem to follow that they have the same option as it respects the remedy for the defendant’s refusal, in violation of his contract, to render the services which he agreed to perform. The court below was, therefore, in error in not requiring the defendant to account to the partnership for the loss occasioned by his breach of the agreement. The proper measure of the damages, under the circumstances of the case, is the value of the services wrongfully withheld. The decree must, therefore, be set aside, and the record remitted to the Common Pleas, with instructions to charge the defendant in the settlement of the partnership accounts with the value of the services which he agreed and wrongfully refused to render, and to distribute the partnership funds to the partners entitled thereto, in accordance with the principles laid down in this opinion.

Decree accordingly.


author: Sharswood, J.

text:
    The Delaware and Chesapeake Steam Towboat Co. versus Starrs.
    1. Whether a -witness is an expert is a preliminary question to be determined by the court in the first instance.
    2. Should the court think him primó, facie qualified, the weight to be given to his testimony is for the jury.
    3. If it appear that the witness has any claim to the character of expert, a court of error will not reverse, because his experience is not sufficiently special.
    4. In a contract for towing, a stipulation, “ this barge is towed at the risk of the masters and owners by special contract,” &c., meant that the towers did not assume the liability of common carriers nor insure the safety of the barge: and did not reduce the liability of the towers from ordinary to gross negligence.
    5. By the contract the master of the barge agreed to have a competent man at the helm, while the tow was in motion; that the barge was seaworthy and reasonably fit for the trip, having good hatches, with bars, &c., to secure them down, with good canvas covers for the hatches, secured so as to prevent the sea from washing them off in case of a storm; with sufficient rings, &c., for fasts, and an anchor with chain or cable capable of holding her in case of accident or her breaking loose from the tow. These are not in the nature of conditions the breach of which avoids the contract.
    6. During the passage the tow got out of order; the towing tug stopped to have it arranged; in starting again the hawser of the tug broke from the tow, one of the barges ran into the plaintiff's, made a hole in it below the water line; it filled and sank. There was no man at the helm of his barge at any time, nor were the hatches in order, &c. In an action against the company for the loss, the court charged: “The defendants, if guilty of negligence, are not exonerated from responsibility by reason of the non-compliance on the part of the plaintiff with the stipulations in the printed contract, unless the loss was occasioned by that non-compliance, or unless the noncompliance contributed in some degree to the loss.” Held to be correct.
    February 17th 1871.
    Before Thompson, C. J., Asnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 248, to January Term 1871.
    This was an action on the case, commenced September 30th 1869, by Francis Starrs against The Chesapeake and Delaware Towboat Company.
    The declaration alleged that the defendants were engaged in the business of towing vessels between Philadelphia and Baltimore by means of steamboats; that the plaintiff delivered his boat to them to be towed from Baltimore; “ and that the defendants so carelessly, negligently and improperly conducted themselves that, by want of due care, skill, diligence and seamanship, by them and their agents, in towing, the plaintiff’s boat was sunk.”
    The plaintiff, on the 11th of August 1869, obtained from the superintendent of the defendants an order for towage of his barge, the “ William Murtagh,” from Philadelphia to Baltimore and back.
    The order was endorsed :—

      “ This barge is towed at the risk of the master and owners thereof, under special contract with captain or agent, and approved by him.”
    “ Boatmen will read this contract, and, if satisfied, will sign after the word ‘ approved.’
    “ The Delaware ■ and Chesapeake Steam Towboat Company agrees to tow the within-named canal-boat at the risk of the master and owners thereof, and subject to the following stipulations: First. That the said master expressly agrees to have a competent man at the helm of his said boat at all times while the tow is in motion ; and Second. That the said master expressly guaranties that his boat is seaworthy and reasonably fit for the trip undertaken ; having good hatches, with bars or hooks and staples to secure them down; with good heavy canvas covers for all her hatches, secured so as to prevent the sea from washing them off, should a blow or storm occur on the passage. Third. That said boat has sufficient cleats or rings for fasts, and an anchor with chain or cable capable of holding her in case of accident, or her breaking loose from the tow. Boats will be placed in the tow as the captain of the steamer may think best for the safety of the tow,
    “ Towing will be done on these terms only.”
    “Approved, Francis Starrs.”
    The plaintiff gave evidence that his boat, on the 14th of August 1869, had been put into a “tow” at Baltimore with nine other boats; the first two tiers had three boats each, two others had two boats each; the “Murtagh” was the middle boat in the second tier. The boats were towed by the steam-tug “William Allison,” belonging to defendants. They left Baltimore in the evening, and put into Rock Creek about two hours afterward for the night. They left Rock Creek in the morning, and when they got into the bay the sea was “ tolerably rough.” In a short time the tug stopped; her hands came on the boats “to fix up the tow;” in stai’ting again the tug broke her hawser; a boat behind the “ Murtagh” ran into her stern and made a hole in her below the water-line; she commenced leaking; the hands pumped and threw coal off; they did everything they could to save the boat, but she sank in about an hour.
    The plaintiff testified that he had no one at the helm at the time the boat stopped, nor at any time during the voyage.
    There was evidence given by plaintiff of the circumstances: as to the condition of the sea, as to the effect of stopping under such circumstances.
    Amongst other witnesses the plaintiff called Anthony G-ourley, captain of one of the boats in the tow. After stating the occurrences, he said: “ I have been boating off and on nine or ten
    years in canal-boats.” He was then asked;—

      “ Is it safe or prudent for a towboat to stop when a sea is running ?”
    The question was objected to by the defendants “as involving the opinion of witness, and not the statement of a fact, the witness not being an expert.”
    The court admitted the question, and sealed a bill of exceptions.
    The witness answered: “ It is not safe to stop with a sea running that way.”
    The witness testified that there was no one at the tiller of the “Murtagh” or any of thebther boats.
    Hugh McDonough, another witness, who had been on one of the boats in the tow, having testified as to the occurrence, said: “ I have been up and down the Chesapeake many times.”
    Under objection by the defendants and exception the question asked of Grourlay was put to him. He answered:—
    “ Under circumstances such as we were then in, I don’t consider it safe and prudent for a steamboat to stop. It is not safe, because the boats will come into Qne another.”
    Manuel McShane testified: “T have followed the water and have been connected with boats as owner or agent since 1860; have frequently seen boats on the water, towboats included; have been on board boats when they were being towed.”
    The same question, under objection by the defendants and exception was asked him.
    He answered:—
    “I think it bad judgment for a captain to stop in rough water, for by stopping, the boats are like logs, and roll against each other.”
    The defendants gave evidence by the captain, that when about starting the tow he found in plaintiff’s barge a pile of coal above the after-hatch three or four feet high, and in the middle hatch five or six inches high, and that the coverings of the hatches were in bad order. After they left Rock Creek the tow began to run badly, and the hands on the tow made no effort to straighten up; it was necessary for speed and safety to do this; the tug was slacked up gradually, keeping the boats in motion “ till they were dead;” the captain called back before slacking to the men on the boats to straighten up ; they did not do it, and he put two of his own men to do it; the tow was running as crookedly as it could; the crookedness arose from want of regulation of the lines; the management of the tiller would help to keep the boats straight; it looked as if the breeze would stiffen, and if it had, the whole tow would have been broken up; the sea was not rough; there was no roll in it; it would have been more dangerous to the boats to have gone on than to stop and straighten up.
    There was much evidence, both from those who were on the “ Allison” and saw the occurrence, and others that in the circumstances the most judicious plan was to stop in order to straighten the tow ; also that the “Allison ” was well provided with good hawsers and lines, and that the captain was of great skill and long experience.
    The defendants’ point was:—
    “ Under the contract between the parties, the plaintiff cannot recover without showing gross negligence on the part of the defendants.”
    The court answered: “ I decline so to instruct you. The degree of care required from the defendants was that ordinary care which a prudent man engaged in the business would take. They were not bound to take precautions which were unreasonable, and such as a man of ordinary skill and prudence would not think of resorting to; but it was their duty to use the ordinary care and prudence of men engaged in such a business.”
    The court, (Thayer J.), further charged:—
    “ The defendants, if guilty of negligence, are not exonerated from responsibility by reason of the non-compliance on the part of the plaintiff with the stipulations in the printed contract, unless the loss was occasioned by that non-compliance, or unless the noncompliance contributed in some degree to the loss.”
    The verdict was for the plaintiff for $1000.
    The defendants removed the case to the Supreme Court, and assigned for error :
    1-8. The rulings of the court below on the questions of evidence,
    4-6. The answer to the point.
    7. The charge.

      J. G. Johnson, for plaintiff in error,
    on the first three assignments cited : Starkie on Evid. 96, note; 1 Redf. on Railw. 553; Note to Carter v. Boehm, 1 Sm. L. Cas. 386; 1 Greenleaf on Evid. § 440, in note; MaltOn v. Nesbit, 1 C. & P. 70; Fenwick v. Bell, 1 C. & K. 312; Sills v. Brown, 9 C. & P. 601; Gauntlett v. Whitworth, 2 C. & K. 720; Seaver v. R. R. Co., 14 Gray 466; Wiggins v. Wallace, 19 Barb. 338; Smith v. Gugerty, 4 Id. 614; Harris v. Panama R. R. Co., 3 Bosw. 7; Page v. Parker, 40 N. H. 47 ; Otey v. Hoyt, 2 Jones Law (N. C.) 70; Hartford Ins. Co. v. Horner, 2 Ohio (N. S.) 452; Carr v. Northern Liberties, 11 Casey 324; Jefferson Ins. Co. v. Cotheal, 7 Wendell 72; Mayor v. Pentz, 24 Id. 668; Benkard v. Babcock, 17 Abb. Pr. 421; Thompson v. Bertrand, 23 Ark. 730; Emerson v. Lowell Gas Light Co., 6 Allen 146; Woods v. Allen, 18 N. H. 28; Commonwealth v. Rich, 14 Gray 335; Lincoln v. Barr, 5 Cush. 590.
    The contract that the towing was to be at the “ risk of the owner,” meant something, and inasmuch as, without it, defendants would have been liable only for ordinary negligence, with it they must be held only for such gross negligence as amounts, in effect, to fraud : Wells v. Steam Nav. Co., 8 N. Y. 375. Towboat companies are not common carriers: Angell on Carriers, § 86; Germania Ins. Co. v. Lady Pike, 8 Am. Law Reg. 614; Leonard v. Hendrickson, 6 Harris 40; Hays v. Paul, 1 P. F. Smith 134; Wells v. Steam Nav. Co., 8 New York 375, and Brown v. Clegg, 13 P. F. Smith 51. They may make a special contract exempting themselves altogether from liability for the negligence of their servants .and agents : Symonds v. Pain, 6 Hurlst. & Norm. 709; Leonard v. Hendrickson; Brown v. Clegg; Wells v. Steam Nav. Co., supra.

    Keeping a man at the helm of the boat whilst it was in motion; the having good hatches, with bars, hooks, &c.; the securing the hatches with good canvas covers; and the providing of an anchor, &c., were conditions precedent. Plaintiff cannot sue defendants on their contract to tow, where he failed to perform what he bargained to do in advance: State Mutual Insurance Co. v. Arthur, 6 Casey 315; Nicol v. American Insurance Co. v. 3 Wood. & Min. 529; Kennedy v. Insurance Co., 10 Barb. 285; Glendale Co. v. Insurance Co., 21 Conn. 19; Wilbur v. Insurance Co., 10 Cush. 446 ; Sayle v. Insurance Co., 2 Curtis 612; Carpenter v. Insurance Co., 1 Story 57; Witherell v. Insurance Co., 49 Maine 200; Lycoming Insurance Co. v. Mitchell, 12 Wright 367; Mead v. Insurance Co., 3 Selden 530; 1 Parsons on Marine Insurance 337; Hore v. Whitmore, 2 Cowp. 784; De Hahn v. Hartley, 1 T. R. 343; 2 Bouvier’s Dictionary, title Warranty, p. 625; Jones v. Barkley, 2 Doug. 684; Benjamin on Sales 421; Lowber v. Bangs, 2 Wallace 728; Stavers v. Curling, 3 Bingh. N. C. 355; Ritchie v. Atkinson, 10 East 295; Behn v. Burness, 113 E. C. L. R. 749.

      M. P. Henry, for defendant in error.
    A bailee for reward cannot stipulate for exemption for the consequences of negligence of himself or his servants: Penna. R. R. Co. v. Henderson, 1 P. F. Smith 315; Farnham v. The C. & A. R. R. Co., 5 Id. 53.
    The words “ at the risk of the owners ” do not relieve from liability for negligence: Wells v. The Nav. Co., 8 N. Y. 375; Alexander v. Greene, 7 Hill 533 ; Wells v. Tucker, 4 Seld. 375; The Princeton, 3 Bl. C. C. R.; The Steamboat New World v. King, 16 How. 469; Wilson v. Brett, 11 M. & W. 113 ; Phillips v. Clark, 5 C. B. N. S. 881; Austin v. Manchester R. R., 16 Jurist 766.
    As to contributory negligence, he cited Penna. R. R. v. McCloskey, 11 Harris 526.
   The opinion of the court was delivered, February 27th 1871, by

Sharswood, J.

The first three assignments of error relate to the admission of the opinions of witnesses produced as experts. It is objected that they were not first shown to be such. This is a preliminary question to be determined by the court in the first instance. If the court shall think they are primá. facie qualified, it will then be for the jury to decide whether any, and, if any, what weight is to be given to their testimony. It is a matter very much within the discretion of the court below, and if it appears that the witnesses offered had any claim to the character of experts, the court will not reverse on the ground that their experience was not sufficiently special. The question in the case now before us related to the proper mode and time of changing the fastening of boats in a tow, when for any reason it became necessary. It cannot be said that those frequently on board of such boats, while being towed, and interested either as captains or owners, have not experience in such matters, though it may not be equal to those engaged on board the tugs. Men who follow the water for a living are generally, I think, close observers ; and this results from the monotony of their employment in general. Whenever anything unusual occurs they take accurate notice of it. Captains of boats in a tow stand at their helms all day, or lounge about the deck, with nothing to do or think about; hence they are likely to be keen observers of all the circumstances occurring in the course of a trip. Such men form their opinions from facts within their own experience, and not from theory or abstract reasoning. They come, therefore, even more properly within the definition of experts than men of mere science. We think the three witnesses produced fall properly within the category, and that there was no error in allowing their opinions to go to the jury for what they were worth.

The fourth, fifth and sixth assignments of error may be considered together. Did the contract to tow the canal-boat, “ at the risk of the masters and owners thereof,” mean to exempt the defendants below from all responsibility for the negligence of their servants ? If it did not, it will be unnecessary to consider whether it is competent for an ordinary bailee for hire to make such a stipulation. It is clear that the Steam Towboat Company are not common carriers — in other words, do not insure the safety of the boats they undertake to tow — and that the measure of their liability is, therefore, ordinary skill and care: Brown v. Clegg, 13 P. F. Smith 51. It is contended that these words in the contract have, therefore, no legal effect, unless they be construed to mean that the towing 'company shall not be liable for the negligence of their officers and servants. But this argument is altogether inconclusive and unsatisfactory. Nothing'is more common than for men to express in their contracts and other writings that which would be the exact legal result if nothing had been said or written. It cannot be applied as a rule of construction to extend, the meaning beyond what the words themselves authorize. “ At the risk of the master and owners,” is simply “we, the towing company, do not assume the liability of common carriers — we do not insure the safety of the boat.” It cannot be inferred, without great violence to the language, that they meant to say: “ We do not undertake to tow the boat as we ought to do.” It is quite possible that there might be a contract by which the Steam Towboat Company might hire or let their tug to the owners or captains of the canal-boats, and stipulate that they should employ the officers and servants on board the tug. But surely such a contract cannot be legitimately deduced from words like these in this writing. There was nothing, therefore, to change the legal standard of responsibility — to reduce the liability of the towers from ordinary to gross negligence.

It remains to consider the seventh assignment of error. I think it very clear that the stipulations contained in the contract, subject to which it was made, are not in the nature of warranties— conditions the breach of which avoids the contracts entirely. Such is the principle in cases of this nature, as settled in Hart v. Allen, 2 Watts 114, where in an action against a common carrier for a loss, it was held not to be sufficient to entitle the plaintiff to recover, that there was a defect about the vessel, or want of skill in the carrier; but it must also appear that such defect or want of skill contributed or may have contributed in some measure to occasion the loss. There, if the implied stipulation on the part of the carrier that the vessel should be fit and his servants competent, had been expressed, it could have made no difference in the result. Now, inasmuch as against the towboat company a defect in the tug or its crew could not be imputed as a ground of recovery, unless the loss was occasioned thereby, it seems no more than reasonable that the same rule should be applied to the other party to the contract. So in Hice v. Kugler, 6 Whart. 336, in an action by the owner of a canal-boat against the steersman, whom he had employed to take her down the river, to recover damages for the loss of the boat, which was carried over a dam, in consequence of the negligence of the defendant, it was held that it was not a sufficient answer to the charge of negligence, that the boat was not properly provided with poles and hands, if the vessel was improperly navigated too near the dam; and in Souter v. Baymore, 7 Barr 415, where the master of a vessel had contracted to carry no other cargo, and in violation of his contract took additional cargo on board, it was held to be no defence to an action for freight that an injury had arisen to the cargo, except so far as the damage resulted from the breach of his contract. The learned judge below left it fairly to the jury to say whether the non-compliance with the stipulations by the plaintiff did or- did not contribute to the loss, which under these cases was the only question. Judgment affirmed.