text:
    Bloomer versus Reed.
    Though a rule of Court authorized the plaintiff to enter judgment by default, any time after the return day and ten clays’ service of the writ, provided he has filed a declaration (if one be necessary), notwithstanding an appearance by attorney, unless the defendant should previously have filed an affidavit of defence, stating therein specifically and at length the nature and character of the same; it was Held, that a supplemental affidavit stating a sufficient defence, was entitled to be filed at any time after the argument of the rule for judgment, and before judgment had been entered.

      Error to the District Court of Allegheny County.

    This was an action of debt to January Term, 1853, by Robert M. Reed and Thomas McCombs against Elisha Bloomer, on a bond.
    A declaration was filed, and an affidavit of plaintiff’s attorney, as to the amount due, was filed at the time of the issuing of the writ.
    On 6th January, 1853, an affidavit of defence was filed. On 8th January, on part of the plaintiffs a rule was obtained to show cause why judgment should not be entered for want of a sufficient affidavit of defence. It appeared that after the argument of the rule but before the decision upon it, viz. on the 29th January, 1853, a supplemental affidavit of defence was filed.
    February 19, the Court, after argument, refused to permit the supplemental affidavit to be filed, and the rule for judgment was made absolute.
    The 66th rule of Court, sec. 2, was as follows:

      “ In all actions hereafter in the Court, on bills, notes, bonds, or other instruments of writing for the payment of money, or book accounts; in all actions on contracts, for the loan or advance of money, whether the same be in writing or not; in actions of seire facias, and on liens of mechanics and material men (under the Act of 17th March, 1836, and the various supplements thereto), and in all actions of debt or scire facias on recognisances, judgments, or other records,—the plaintiff may enter judgment by default, any time after the return day and ten days’ service of the writ, provided he has filed a declaration (if a declaration is necessary), and provided the writ has been duly served—notwithstanding an appearance by attorney, unless the defendant should previously have filed an affidavit of defence, stating therein specifically and at length, the, nature and character of the same. Provided, That in all such cases no judgment shall he entered by virtue of this rule, unless the said plaintiff shall file with his precipe, in the office of the Prothonotary of the said Court, an affidavit, stating the amount verily believed to be due from the defendant, and a copy of the instrument of writing, book entries, record or claim, or a statement or specification thereof (if the same be not in writing), except mortgages, mechanics’ liens, and recognisances, or other records of this Court, on which action has been brought.”
    Error was assigned to the refusal to allow the supplemental affidavit to be filed, and to the rendering judgment.

      Stanton, for plaintiff in error.
    The case of West v. Simmons, 2 Wharton 261, was referred to as authority for receiving the supplemental affidavit. Also the case of Riley v Bullock, 2 Whar. Dig. 434; 1 Troubat & Haley, 328; 4 Barr 495, Hill v. Gaw, Id. 332.

      Geyer, for defendants in error.
    It was, inter alia, intimated that the supplemental affidavit in this case was not filed till after the argument of the rule to show cause ; whereas, in the case of West v. Simmons, 2 Whar. 263, it was filed before the hearing of the motion.
   The opinion of the Court was delivered September 27, by

Knox, J.

Reed and McCoombs, defendants in error, brought an action of debt in the District Court of Allegheny, to recover the amount of a bond given by the plaintiff in error, Bloomer.

The defendants in the action filed an affidavit of defence within the time allowed by the rules of Court, which was deemed insufficient by the plaintiffs, and they obtained a rule to show cause why judgment should not be entered notwithstanding the affidavit.

After an argument on the rule, but twenty days before its determination by the court, the defendants filed a supplementary affidavit, which discloses a substantial defence, and which would preclude the judgment if the court were bound to receive it.

The District Court refused to permit the supplemental affidavit to be filed, and made the rule for judgment absolute.

The object of the rule requiring affidavits of defence, and that the nature of the sainé shall be specifically set forth, is to prevent unnecessary delay; but to prevent delay is not the sole object of courts of justice. Defendants have rights as well as plaintiffs, and whilst justice should be administered promptly it should be done, whenever practicable, without deprivation of right. To delay justice is an evil—to deny it, is a greater evil.

In the supplementary affidavit the defendant’s agent states that by inadvertence he had omitted to set forth his grounds of defence fully in the original one. Was this mistake irremediable? The court below thought it was, and gave judgment for the entire amount of the plaintiff’s claim, notwithstanding the allegation under oath, that defendants’ set-off would extinguish the whole of it. There is no feature in our system of pleading, which is more generally approved than that authorizing amendments in any stage of a cause. It commends itself to the minds of all persons as eminently calculated to promote the ends of justice, and its spirit may be safely infused into the preliminaries of judicial proceedings not strictly within the letter of the statute regulating the formation of issues. The rule of court under which this judgment was entered declares' “ That the plaintiffs may enter judgment by default any time after the return-day and ten days’ service’ of' the writ, provided he has filed a declaration, unless the defendant should have previously filed an affidavit of defence,” &c. Without doing violence to the language of this rule, the word “ previously” may be referred to the entry of judgment rather than the time when it might have been entered. But admitting the contrary construction, the rule nowhere prohibits the filing of an affidavit after the ten days have expired from the service; nor does it authorize a judgment after a sufficient affidavit has been filed.

A defendant has a certain time to enter bail to stay an execution upon a judgment, and if not entered within the period an execution may issue; but if prior to its issue the hail is entered, although beyond the time, the writ cannot go forth. So in the present case. The plaintiff was entitled to a judgment for want of a sufficient affidavit within ten days from the service of the writ; hut if the affidavit was actually made and filed before the judgment was obtained, it was in time to save the default, and prohibit the summary action of the court.

In the case of West v. Simmons, 2 Wharton 261, an affidavit of defence was filed, and a rule was obtained for judgment notwithstanding the affidavit, and pending the rule the defendant placed in the prothonotary’s office a supplemental affidavit; it was held that such affidavit was admissible, and, if sufficient, that judgment ought not to be entered against the defendant.

The only variance between the facts of that case and this is, that there the affidavit was filed before the argument on the rule for judgment, and here after the argument was heard, but twenty days before the rule was determined.

We can perceive no substantial difference; and upon the authority of that case, as well as upon principle, we are of the opinion, that whenever a sufficient affidavit of defence is offered before a judgment has actually been entered, it is the duty of the court, to receive the affidavit, and permit the cause to go to trial in the ordinary manner.

Judgment reversed and procedendo awarded.


source: Caselaw Access Project

author: Black, C. J.

license: Public Domain

text:
    Pittsburgh City versus Grier.
    1. A city being in possession of a public wharf, within its limits, exercising exclusive supervision and control over it, and receiving tolls for its use, is bound to keep it in proper condition for use.
    2. The corporation is liable for special injury maintained by an individual in consequence of its neglect to keep the wharf in order, and case may be sustained therefor.
    3. It was not material whether the city had adopted ordinances for the regulation of the wharf, or having such, neglected to enforce them. The responsibility is the same in either event.
    4. When the plaintiff has sustained injury from the neglect of a public, duty which the defendant has impliedly promised to perform, either ease or assumpsit may be maintained.
    5. Where the injury was the immediate consequence of a peril to which the suffering party was obliged to expose himself in order to avoid the one arising from the negligence of the city authorities, it was sufficiently proximate to sustain the action.
    6. A steamboat was landed,, at a moderate stage of water, at a proper place at the Monongahela wharf at Pittsburgh, on which piles of iron metal had been lying for a longer time and nearer to the water’s edge than was allowed by the ordinances of the city. The river afterwards rose and the boat struck on the iron, and to avoid such danger was backed into the stream, where it was struck by a floating body, and further injured and sunk: Held, that the wharf being under the exclusive control and regulation of the city authorities (whether rightfully or not, held not to be material), who derived a revenue from its use, the wharfage of the boat having been paid, the city authorities having been guilty of negligence in not having the iron removed, the corporation was liable in an action on the case to the owners of the boat for the injury sustained.
    7. Though some other place on the wharf might have been more secure, the captain of the boat had a right to select the one in question which was at the time safe, the faith of the city being pledged to render it secure.
    8. It was not material that the city authorities did not foresee the danger as likely to occur.
    9. The parties in this case were not in the position of persons equally in fault. Though both parties had an equal opportunity of seeing the danger, they were not bound to equal degrees of vigilance. The city was responsible for extreme care of the wharf; the owners of the boat only to that common prudence which would keep it clear of a manifest peril.
    Error to the District Court of Allegheny county.

    This was an action on the case to April Term, 1849, by David A. Grier and Robert Duncan, owners of the Steamboat Mary Ann, against the Mayor, Aldermen, and Citizens of Pittsburgh. It was brought to recover damages for injuries sustained by the sinking of the steamboat Mary Ann, at the wharf in the city of Pittsburgh, in consequence, as was alleged on part of the plaintiffs, of the default of the defendants, in allowing a quantity of pig metal to lie for an unreasonable time upon the landing.
    The declaration contained two counts. In the first, it was alleged that the wharfage of the boat for that occasion was paid. That the defendants, in their corporate capacity, were proprietors and seised of the wharf adjacent to the city, and exercised the entire control and regulation thereof, and had enacted ordinances for its control and regulation, one of which was, that all blooms and pig metal should be unloaded sixty feet from the water’s edge on the paved part of the wharf, and thirty feet on the unpaved part, and ranked compactly at least three feet high; no boat to occupy for blooms and pig metal more than twenty-five feet fronting on the river; no metal to remain on the wharf more than three days, &c. It was further alleged that a wharf-master was elected; that a duty lay on the defendants in their corporate capacity to keep the wharf clear of obstructions, and to afford to boats a safe and convenient landing and anchorage. It was alleged that in December, 1848, a large amount of blooms and pig metal was unloaded, and allowed to be placed on the paved part of the wharf, within thirty or forty feet of the water’s edge, and ranged in piles occupying forty or more feet on the river, at a point where it was customary for boats to land,—and that through the negligence of the defendants, the metal was suffered to remain for twelve or fifteen days prior to the 9th of January. That the plaintiffs relied on the enactments and regulations, and upon the duty of the defendants, and upon their rights under the same—that their boat was landed on the 9th of January, at the only convenient and proper place open for it, and it being high water, it was brought up to the water’s edge according to the usual custom. And shortly after, the water beginning to fall rapidly, the boat being over the metal piles, was forced in the night time backwards into a dangerous part of the channel, where it was struck by floating boats or lumber, and sunk.
    In the second count it was alleged that the defendants in their corporate capacity had the control and regulation of the wharf,—also their demanding wharfage—their duty to keep the wharf in proper order, and to afford safe landing—that on or about the 3d of January, 1849, the defendants permitted several piles of blooms and pig metal to be placed on the wharf, in an improper place, and permitted it to remain for an unreasonable time—also, that on the 12th January the boat of the plaintiffs came to the wharf at the only convenient and proper place unoccupied; alleged the payment of wharfage, and that in a few days thereafter a sudden flood and heavy run of ice occurred; that to save the boat it was moved to the water’s edge, and the water afterwards falling, and the boat being likely to founder on the metal on which it struck, was forced back into a dangerous part of the current, where it was struck by floating ice, lumber, or boats, and sunk.
    The plea was, not guilty. The declaration was afterwards demurred to specially.
    The case showed that the plaintiffs were the owners of the steamboat Mary Ann, which was insured by themselves at a valuation of $5000; that the said boat came 'into the port of Pittsburgh, and anchored at the Monongahela wharf, on the 9th or 10th day of January, 1849, the water being then at a stage of about four feet; that there were several piles of pig iron then lying on the beach, at a distance of about thirty-five or forty feet above the water’s edge, and above the log which was placed at the low water line, and which was then visible; that the river commenced rising about the 15th' day of January, and continued until it had attained the height of about twenty feet, the boat in question coming up with the increase of water, and keeping as near as possible to the water line. That on the night of the 16th or 17th of January, the river commenced falling rapidly, and it was necessary to back the boat referred to somewhat further out in the stream than the boats above and below, in order to avoid one of the said piles of pig metal, lying at or near her bow; and that, while in this position, it struck on one of the piles of metal and was also struck near the water line by some floating body, probably a raft or coal boat, and a hole knocked in its side, in consequence of which it sunk; that it was raised again at an expense of about $420, and afterwards was sold for the sum of $3000.
    The plaintiffs claimed that the loss of the boat was a consequence of the neglect of the wharf-master, in permitting the metal aforesaid to lie upon the wharf, in violation of an ordinance of the city, and that the defendants were therefore liable for the injury inflicted by the boat, raft, or other substance which impinged, against their vessel.
    On the trial of the cause, the plaintiffs gave in evidence the 1st, 5th, and 7th sections of an ordinance passed on the 21st March, 1842, relating to wharves and landings, and also the 3d section of another ordinance, of the date of July 29, 1844.
    On the trial, exceptions were taken to the admission and rejection of evidence, which were, however, not remarked upon by the Court in the opinion. A number of points were submitted on each side.
    Shannon, President Judge, inter alia charged:—
    The borough of Pittsburgh was incorporated by Act passed the 22d of April, 1794, and by a second Act of Incorporation, repealing the former, on the 5th of March, 1804.
    By the last Act it was provided, “ that it shall, and may be lawful for the Burgess and Town Council, or a majority of them, by and with the consent and approbation of a majority of the taxable inhabitants, &c., to authorize any person or persons, owning lots bounded by the Allegheny river and Water street, on the Monongahela river, to build wharves and erect buildings thereon, opposite their respective lots, subject, nevertheless, to such rules,regulations, and restrictions, as the corporation may deem necessary for the construction of wharves within the limits of the borough. Provided, that such wharf or wharves shall be so constructed as not to obstruct or impede the navigation of said rivers.”

    But this Act was virtually repealed by the Act of 18th of March, 1816, entitled an Act “ to incorporate the City of Pittsburgh.” By this last statute, “ the inhabitants of the borough, as the same extends, and is incorporated, between the rivers Allegheny and Monongahela, and also to the middle of each of said rivers, and as far down the river Ohio, to such point on the same, at which two lines, one running down the middle of each of the said two first-mentioned rivers, shall intersect, &c., are hereby constituted a corporation and body politic, by the name and style of ‘ The Mayor, Aldermen, and citizens of Pittsburgh’—having perpetual succession—and they and their successors, at all times, for ever, to have, possess, and receive, lands, hereditaments, liberties, franchises, jurisdictions, &c., and by that name they are made capable and able in law, to sue or to be sued, plead and to be impleaded, &c., and for that purpose to have and use a seal.”
    And by an ordinance passed 24th August, 1816, it is declared, “ That if any person or persons shall erect, or attempt to erect, a wharf or wharves, or any kind of building whatsoever, on the bank of the Monongahela river, within the bounds of the city, it shall be the duty of the Mayor, on information being given, to remove all materials,” &c. &c.
    The 3d section of same ordinance declares, “ That it shall be the duty of each and every person who may have made any fence, or other enclosure, or have erected any building; of what kind soever, before the passage of this ordinance, to remove the same within fifteen days’ notice,” &c., and in default that the street commissioner shall have it removed at the expense of the owner.
    By section 4th, &c., the city dedicates and declares the said ground and street to the public use,” and for that purpose it became, under proper regulations, free and open to the public.
    Reference made to ordinance passed 7th September, 1816.
    To show that it is a public wharf, &c., read Book of Ordinances, Layng 321, 323, page 176-5-4. Ordinance passed 7th January, 1825, creating the office of wharf-master, section 5 ; and section 6, pointing out his duties.

    The Act of 31st March, 1836, relating to Duquesne Way, throws light on the subject of public landings, for it declares, that the space lying between Duquesne Way and low water mark of the Allegheny river, shall for ever thereafter be occupied, used, and employed as a public landing. And the Councils have full power to make such rules, regulations, and by-laws, regulating the use of the same, as they may think proper, not inconsistent with the laws of the Commonwealth, &c. See Layng’s Ordinances, page 57.
    He observed that it will be seen, from all that has been collected, that this wharf is declared open for free and public use.
    By the law of nature, and the civil law, the shores of navigable rivers, as well as the shores of the sea, were free and open to every body ; yet in all nations which have built their policy on the feudal laws, such shores, and the tolls arising from landing thereon, ahvays belonged to the sovereign, as a branch of his royal prerogative. In England, the king had the right of appointing ports, and having such right, the stat. of 4 Henry 4, ch. 20, was made to strengthen and confirm that right. Restrictive regulations were afterwards enacted, which being found too narrow, by stat. of 14 Oar. 2, c. 11, s. 14, power is given to the crown to assign, by commission, “ all such further places, ports, members and creeks, as shall be lawful, for landing and discharging goods.” And by same statute, all persons are prohibited to land or discharge goods, &c.,” “ but only upon such open place, key or wharf, as shall be so assigned.”
    The Constitution of the United States regulates commerce, as well between the States, as with foreign nations.
    It will thus be seen that in England, between low water and ordinary high water of the ocean, and wherever the tide ebbs and flows, or in the navigable rivers, is part of the common highway, over which all citizens, and aliens, may sail. In that country, this is vested in the king; here it is in the Commonwealth. There and here, originally, goods might be landed anywhere, on permission from the owner of the adjacent land. Now, in both countries on account of revenue, and for other purposes, ports of entry are established, at which alone certain goods can be legally landed, except in case of storm and distress. In that country, and in this, the governments have exercised the right of building wharves, &c., for the improvement and convenience of trade, at the intermediate space between high and low tide, and beyond low tide.
    In 1816, as we have seen, the defendants dedicated all the space between Water street and low water mark, to the public use ; and it is paved down that far, as the evidence on both sides would seem to show ; and actually used.
    This is a public or common wharf, unto which all persons may come, under the proper and reasonable rules, to lade or unlade their goods, and has ceased to be what it was under the old borough charter, juris privati, or of a private nature. The right to erect private wharves is taken away—the grant is repealed and the public use is declared. He further charged that under the laws of the United States, this has been declared a public port.
    He further charged that the owners of a public port or wharf are of common right bound to keep it in repair. This is a consideration for the toll which they receive. That a corporation laboring under such obligation in respect to their wharves or docks,, will also be liable for special damage to individuals, who may recover by action on the case: 1 Hawk Pl. Cr., 76, 369; 2 Ch. Cr. Law, 333, 352-3; 603-4-5; 5 Burr. 2700; Cowper 86; 4 Bl. Com. 167. That this corporation having assumed the control and management of the wharf, became, at all events on payment of tolls, liable to keep the Avharf or landing in proper condition. The question of payment of toll for the boat on the occasion in question, was referred to the jury.
    Also that a wharf should be used only for the legitimate purposes intended by its construction and dedication to public use. That merchandise or lading may be permitted to remain upon it a reasonable time, according to the circumstances of the locality and the nature of the trade. But to allow it to remain beyond such reasonable time would tend to defeat the objects intended by its structure.
    Also that if the defendants acted unlawfully or negligently in the matter, this did not excuse the exercise of ordinary care on the part of the captain and crew of the boat. That they were bound to take-all reasonable precautionary measures to avoid collision with the metal, and he referred it to the jury to say, whether by remaining at the wharf they consented to take the risk of a probable rise in the river. Also, that the plaintiffs being common carriers, were bound in entering the port to act in conformity to its regulations.
    He referred to the case of Bacon v. Arthur, 4 Watts 437, where an injury caused by reason of sand banks, occasioned by the construction of a dam, was considered actionable. He referred to the jury whether there was such neglect on the part of the plaintiffs, as no man of ordinary prudence and skill would have fallen into—or whether or not, in endeavoring to get clear of the metal, those in charge of the boat inevitably got into the position which occasioned the injury.
    In December, 1852, verdict was rendered for plaintiffs for 16563.85.
    There were thirty assignments of error; as to the more material ones, see the sketch of argument and the opinion of the Chief Justice.
    Note.—The section of an ordinance relative to the wharf-master, passed on 2d March, 1842, provides that if a certain arrangement of boats designated be impracticable, the wharf-master shall have discretionary power as to the location of any vessel as long as the difficulty shall exist.
    See. 2 of an ordinance of 15th of March, 1845 : That every steam, keel, or fiat boat, &c., shall land in such places, make fast in such, manner, and remove from or to such landing-place as the wharf-master, each for his wharf, may direct.

      Williams and Hampton, for plaintiffs in error.
    In the first count is alleged a seizure by defendants, of the wharf, as their private property; the enactment of regulations; the payment of wharfage by plaintiffs ; their right, by reason thereof, to a safe landing and anchorage; the duty, of defendants to enforce their own regulations ; the neglect of their officer, in permitting a pile of metal to lie on the wharf; the necessity consequent thereon of backing out and exposing themselves, and the injury inflicted, inconsequence of that exposure, from a foreign body and from the said metal.
    The second count alleges the wharf to be a public one; the control and regulation thereof, and the collecting of fees by defendants ; their duty by reason thereof, and their public duty to remove nuisances and obstructions, and to afford safe anchorage thereat, as a public highway ; the permitting and authorizing the deposit of metal at an improper place; the landing of plaintiffs ; the necessity of exposure, in consequence thereof, and the striking and foundering on said metal.
    It was contended that no sufficient cause of action was alleged in the declaration. That case will not lie where the foundation of the action is a contract, and the act complained of is a mere act of non-feasance: Livingston v. Cox, 6 Barr 360. That the first count was substantially in assumpsit, and. could not be joined with the second count. It was said that in it was asserted a right, by' reason of the payment, to a safe landing and anchorage. It was said that the law does not imply such a right. That a wharf is a place for loading and unloading, .and the payment of wharfage implies only that privilege.
    It was further contended that no duty on the part of the corporation arose out of the enactment of the ordinance,—that it was a mere private regulation, with which, as the property is alleged to be their own, they might dispense, and that no cause of action arose out of their neglect to enforce it: Boyland v. City of New York, Sand. Rep. 27; Id. 465.
    It was contended that the cause of the -injury was too remote from the effect. The consequence of the neglect to have the iron removed was the exposure of the vessel; and the consequence of the exposure an injury from a foreign body, with which the corporation had nothing to do, and which was not an obvious or necessary consequence: Morrison v. Davis, 8 Harris 171.
    As to the second count. In this the obligation to remove the obstruction is charged as a public duty. If a municipal corporation is liable for an omission to repair or remove a nuisance from a highway, such liability exists only where the duty is absolute and due from it as a corporation: 1 Hill 580; Mayor of Lynn v. Turner, Cowp. 86.
    It was also contended that if the wharf was private property, the plaintiffs’ remedy would be in assumpsit,.and not in case. It was said that case would not lie for a breach of any other than a common law duty, as in the case of an action against a carrier; and not on an allegation of mere non-feasance or neglect: 6 Barr 360.
    It was further contended that no legal obligation to reserve the wharf exclusively for the use of boats had been alleged or proven; and also, that if the wharf be a public highway, the defendants would not be liable for an obstruction put upon it by a third person without their authority. Also, that if the piles of metal were exposed to view when the boat came to the wharf, and amounted loan obstruction, or likely to become so in any emergency, the boat should have been placed elsewhere; that there was ample room for it elsewhere when the boat arrived, and sufficient time after the rise commenced to remove it; and that the Court should have instructed the jury that it was the duty of the plaintiffs to have had it removed : 2 Pick. 176-7; 2 Hall 129. That if the officers of the corporation could have anticipated a rise in the river, the officers of the boat could also have anticipated it; and if negligence existed, the parties were in pari delicto, and that where such is the case, neither can recover; also, that if the boat was placed at the wharf without any direction from the wharf-master, the plaintiffs could not recover.
    Further, if the boat was not over 150 tons burden, (the tonnage of the Mary Ann was 142 tons), and remained at the wharf more than seventy-two hours (Sunday not included) before the accident occurred, the plaintiff could not recover. This proposition was founded on an ordinance, and the argument was that if third persons can avail themselves of the neglect of the city to enforce their ordinances, such third persons must be held to the same strictness.

      Shaler, Stanton, and Gilmore, were for defendants in error.
    It was stated that the wharf-master was examined on the trial, and proved that at the time the metal lay on the wharf, he was otherwise engaged than in attending to his duties on the wharf. It was stated that the wharfage had been paid, and that the boat came in at the only place designated for boats which was then unoccupied.
    It was said that there was no misjoinder of counts in the declaration. In both, negligence on part of defendants is charged. That in neither count is the payment of wharfage made the foundation of a right to recover. That it was placed on the ground of culpable negligence. In both counts it is declared that the wharf is a public one, and that the defendants by their relation to it were bound to keep it free from obstructions. Though a duty may arise out of the enactment of ordinances relative to the wharf, which are a notice to those engaged in the navigation of the condition in which the wharf may be found, yet there is a higher obligation than springs from such Ordinances, imposing a duty which no regulations of its own will enable the corporation to avoid. It was the duty of the corporation, independent of its regulations, to keep the wharf in order as a safe landing; and it is answerable in an action on the case, for direct and particular" damage sustained in consequence of its default. Bradby on Distress 132; 3 Barn. & Ad. 77, 23 Eng. Com. Law, 32; 21 Wend. 115; 1 Hawk Pl. Cr. 76, 369; 2 Chit. Cr. Law 333; 352-3; 603-4-5; 3 Burns J. 217; 5 Burr. 2700; Cowp. 86; 4 Black. Com. 167; 11 Wend. 543-4; 1 Railway and Canal Cases 712.
    As to the allegation of the remoteness of the injury, it was said that the evidence showed that the boat struck on the metal piles, with such force that it would have sunk without any other cause. ¡But to escape from the metal piles, those in charge of the boat were compelled to push it out into the current, where it was struck by a floating object. But if the injury was caused by the latter, it was contended that it was not too remote to sustain the action: Bacon v. Arthur, 4 Watts 437; Mayor of New York v. Bailey, 2 Denio 433; Cowper 86; 7 Mass. 169; 9 Watts 119, 4 Id. 119; 2 Watts 26; 2 Wharton 539.
    It was said that there was no other place on the wharf to land than that occupied by the Mary Ann.
    In an action for dockage and wharfage of a public port the defendant may show that the port and wharf were out of repair, whereby he sustained damage: 21 Wend. 110.
    The owners of land on the rivers Delaware and Schuylkill have the right to the land between high and low water marks; subject to the right of the public to pass over it in vessels when covered with water: 2 Wharton 539.
    For an act of Providence alone the defendants would not be answerable. To fix them with liability for injury done by a flood or storm, there must have been a concurrence of negligence with the act of Providence; and it is for the jury to inquire whether they have used all proper precautions to. prevent consequential injury: 4 Rawle 10; 9 Watts 120-1. An action on the case' lies on the custom of the realm, against the master of a house, if a fire, accidentally kindled in it, consume the house or goods of another; and this although kindled without the knowledge of the master, and by a servant, guest, or any one else who has entered by his consent: 1 Rol. I. I. 25; 3 Lev. 359; 1 Salk. 319; 4 Rawle 24.
   The opinion of the Court was delivered, September 28, by

Black, C. J.

The vessel of the plaintiffs below, anchored at the Monongahela wharf, when the water was very low. The river rose afterwards, and the vessel was totally wrecked in consequence, as the plaintiffs allege, of certain piles of pig iron which had been negligently permitted to lie on the wharf, a foot above low-watermark, which became covered by the water as it rose, and which compelled the Mary Ann to back out into the stream, where she was struck and stove by some floating body, and sunk across the water log of the wharf, where she broke in two.

Ever since 1816, Monongahela landing has been under the control and supervision of the city corporation. The ordinances of the councils passed in that year, forbade the erection of any private wharf, declared the space between Water street and low water mark to be public property, authorized the appointment of an officer to take charge of it on behalf of the city, and required the payment of wharfage by such vessels as would use it to lade and unlade their cargoes.

The right of the city corporation to take the wharf into their keeping, and to charge a toll or fee for its use, is not denied. The dedication of it to public use by the original proprietor in his plan of the town, the provisions of the city charter, and the uniform exercise of the right for nearly forty years, would have effectually silenced such an objection if it had been made. But the city authorities could not with any grace assert that they had usurped a power forbidden by law, and their adversaries, so far from affirming it, aver the direct contrary in their pleading and in their argument. It is unnecessary, for another reason, to investigate the legal origin of the power which the city claims over the wharf. In actions like this for the neglect of a public duty, whether against a corporation or an individual, the inquiry is not whether the defendant is rightfully in the enjoyment of the franchise out of which the duty springs, but whether he does in fact enjoy it.

The city being in possession of the wharf, exercising an exclusive supervision over it, and receiving tolls for its use, is it a violation of the duty which the corporate authorities owe to the public to let it get out of repair ? The affirmative of this was decided in an action on the case against The Mayor and Burgesses of Lyme Regis (3 Barnw. & Adolphus 77), and by the Supreme Court of New York in several cases (11 Wend. 543; 21 Wend. 115). The general rule undoubtedly is that those who have a public work under their control, are bound to repair it, and the force of this obligation is still further increased when it yields its possessors a revenue. The cases above cited show that this principle applies to public ports in the possession of a city, as well as canals, bridges, and other highways in the hands of individuals and private corporations. There is no reason, nor no authority, for any distinction. The interests of commerce imperatively require, that the place to which vessels are invited to come should be in a safe condition. Nobody but the city of Pittsburgh can possibly keep her port in order, for she alone has it in charge, and permits no one else to meddle with it; and it is justice that she should take the burden, because she receives the only direct profit which it yields.

IIow is the performance of tjiis duty to be enforced ? and how shall it be punished if neglected ? Lord Tenterden (3 B. & A. 77) says by indictment for the public wrong, and ’by action for the special injury to individuals. The same answer is given to the question by Judge Nelson (11 Wend. 543), and by Judge Cow-an (21 Wend. 115); and the former sustains his opinion by a citation of numerous authorities.

It is a mistake to suppose that the right of action is based on the city ordinances, or that the wrong committed consists in a neglect to enforce them. The injury is ¿ violation of the duty which arises out of the control which the city has over the port, and her receipt of tolls from the vessels which come into it. It is no matter whether that duty remains unperformed because she has no ordinances on the subject, or because having ordinances, she neglects to enforce them. The responsibilities of the corporation are the same in either case. The ordinances passed from time to time on the subject, are strong evidence to show how and by whom the port is controlled and regulated; but if the same fact had been otherwise proved, it would have had the same effect.

For reasons which will be apparent presently, we do not think it necessary or proper to comment on each minute point of the criticism to which the counsel for the plaintiff in error has subjected the declaration. But the argument that the form of the action has been misconceived, and that it should be assumpsit instead of case (technical though it be), is on a question important enough in practice to demand some notice. The rule deducible from the authorities is that when the plaintiff has suffered injury from the neglect of a duty which the defendant has impliedly promised to perform, the action may be either way. Thus case was sustained against an attorney for neglecting to recover a debt (6 Barr 361), and against the owners of a stage-coach for an injury to a passenger (4 W. & Ser. 179). In the latter case it was said that the plaintiff had his choice to bring assumpsit on "the contract, or case as for a breach of duty. The same point had been previously decided the same way by this Court (6 Watts 10), as well as in England (12 East 534). It is not open to the slightest doubt.

The point which comes more near than any other to being a substantial defence is that the destruction of the plaintiffs’ boat was so remote a consequence of the negligence complained of that no recovery ought to be allowed. It is certainly true that compensation for an injury can be demanded only from those whose acts and omissions have directly caused it. We cannot link a series of accidental events together, and follow the chain back as far as we can connect it. The law will not calculate the propulsion of causes on causes, and make him who set the first in motion, liable for the damage produced by all. But the application of the maxim, causa próxima non remota spectatur, is often very difficult. The books contain no exact rule to determine what is a remote and what a proximate cause. Each case seems to have been decided as it arose on its own special circumstances. In Morrison v. MeEadden the lameness of the horse was so palpably not the cause of the disaster, and the breaking of the dam by which tho boat was swept away was so clearly the true, and in legal contemplation the only cause, that the question there was very simple and plain. So, also, it was easy enough to decide, as Lord Ellenborough did in Livie v. Jansen (12 East 648), that when a ship at sea is so damaged by a storm, and her rate of sailing so reduced that she is unable to escape the cruisers of a public enemy, and thus comes to be taken, the loss is by capture and not by perils of the sea. In both these cases, the connection of the remote with the immediate causes was merely fortuitous, and the former might very well have happened without the latter. But a cause is not too remote to be looked to merely because it produces the damage by means of intermediate agency. Where the injury was the immediate consequence of some peril to which the suffering party was obliged to expose himself in order to avoid the one for which he sues, it is proximate enough. The familiar doctrine of marine law which requires the payment of general average, is an instance of this. So if a vessel, insured only against the barratry of the master, is exposed to capture by a barratrous deviation, the underwriter is liable on the ground that the deviation occasioned the loss (Cowper 153), and this though there was no immediate connection- between the deviation and the capture (1 Johns. 229). Where the barratry consisted in cruising contrary to orders, and the cargo was lost in a storm which would not have been encountered-but for an attempt to take a prize into port, the violation of the orders, and not the storm, was declared to be the cause to which the loss was referable (6 T. R. 379). A ship was captured, and after being detained for some time, was allowed to proceed, but, during the detention, the port to which she was destined was closed by a blockade, and it was held that the loss of the voyage was a consequence of the capture, though it would have been accomplished except for the blockade (9 East 283). In a case very nearly similar, the same doctrine was adopted and laid down by this Court (5 Binney 412). A ship insured against sea risks, is compelled to put into a port where funds to repair her can he had only by drawing bills at a heavy discount: the underwriters are liable for this sacrifice as a consequence of the peril insured against. And the owners of a cargo insured against perils of the sea, may recover from the insurers for the loss of so much as is plundered by the inhabitants of a country where the ship is driven ashore in tempestuous weather (Stevens on Average 155).

All these losses were occasioned by causes greatly more remote than that which is here alleged to have produced the wreck of the plaintiffs’ boat. The negligence of the city authorities in leaving a pile of pig iron on the wharf made it necessary for the Mary Ann to back out into the stream in- order to avoid immediate destruction. If she had not done so, the defence would doubtless have been set up that she was mismanaged by those who had charge of her. To prevent her from settling down on the iron as the water sunk, by which she must inevitably have been broken in two, she was shoved out and exposed to another danger, not then apparent, but in its results equally disastrous. How this can be called a remote consequence, in the face of the authorities I have cited, is not very easy to see. It followed as an absolute necessity from the effort to get clear of the direct danger. The defendants were bound to furnish the plaintiffs with a secure port. They ought to have performed that duty with vigilant fidelity. But it was done in such a manner that they might as well have received the fee, and then refused the boat a landing altogether. They are held to a responsibility at least as strict as if they had been insurers of the vessel against all dangers from which a well regulated port in good condition would have saved her. Who can doubt that she was wrecked simply because she had not a good landing-place ?

It is said, however, that though this part of the wharf was not safe, other parts were; and if the master of the boat chose to adopt a dangerous place when he might have had another which was secure, he brought the disaster on himself. But he had a right to land at any part of the wharf. He chose the place most convenient for discharging his cargo. He had the faith of the city pledged that the place he anchored at, was one where his vessel might lie as securely as at any other. If, therefore, it suited him better in other respects, he had a right to take it.

It is argued that the destruction of the boat was a consequence which the agents of the city could not have foreseen as likely to occur, and because they did not expect it, they are not answerable for it. But it is not the law, that men are responsible for their negligence only to the extent of the injuries which they knew would result from it. If it were, there could be no recoveries except for malicious wrongs. This injury was produced by the iron on the wharf. The question in the cause was whether the loss should fall on the city, whose duty it was to remove the nuisance, and who had the right and power to do it, or on the owners of the boat, who were under no such obligation. Every principle of law and justice requires that it should be'borne by the former and not by the latter party.

It is insisted that the plaintiffs might have seen the danger as well as the defendants, and that one party was as much bound to avoid it as the other was to remove the cause. It is true, that where a person brings an injury on himself by his own inexcusable default, he cannot recover compensation for it from another whose negligence concurred with his own in producing it. But the rule is inapplicable to this case: for even if we assume that both parties had equal opportunities of seeing and understanding the danger, they were not bound to equal degrees of vigilance. The city was held to the utmost care of the wharf; the owners of the boat only to that common prudence which would keep them clear of a manifest peril.

It is asserted on the paper-book that the Court below committed twenty-two several errors on the trial of the cause. None of them are specified according to the rule of Court. We have considered with care every point presented by the record which we deem important. Those minor objections to the judgment which have no hearing on the merits of the case must be taken as waived, for the reasons given by Mr. Justice Lewis in Bryce v. The Farmers’ and Drovers’ Bank, decided last week.

Judgment affirmed.


author: Lewis, J.

text:
    Hill versus Voorhies.
    1. On a partner has an implied authority to hind the firm by contracts relating to the partnership business, whether such contracts ho evidenced by bare agreements, oral or written, or by negotiable instruments; and this rule is; applicable to dormant as well as known partners.
    2. A dormant partner is liable for the contracts of the firm during the time he is actually a partner.
    3. The acceptance of a promissory note from the ostensible partners by one unacquainted with the existence of a dormant partner, will not preclude the creditor from an action against all who participated in the profits of the partnership.
    4. A suit on such an instrument may he brought against all the parties.
    5. The surety in the note who paid the money was entitled to be subrogated to the remedy on the contract; or was entitled to sue for money paid for the use of the partnership, and the promissory note signed by the ostensible partners and the surety was competent evidence.
    6. In a suit against a dormant partner, involving the question of the existence of a partnership in a steamboat and the time of its commencement, it was Sold, that admissions of the defendant that he was a partner, made after the liability from an injury to goods on hoard of it arose, without stating when the partnership commenced, were evidence of the previous existence of the partnership, taken in connection with evidence of advancements made by the defendant for the construction of the boat, and with evidence of an arrangement, made previous to the liability referred to, by the defendant with the then owners of the boat, or one of them, for the purchase of an interest in it—no evidence having been given by the defendant that his interest was acquired subsequent to the time when the liability arose.

      Error to the District Court of Allegheny county.

    This was an action of assumpsit brought by Ralph P. Voorhies, William R. Miller, and William R. Hopkins, partners, trading under the firm of Voorhies, Miller & Co., against William A. Hill, Robert M. Hunter, and John McDonald Blackstock, as owners of the steamboat Lydia Collins. The writ was returned H. H. I. as to Hunter; and Blackstock having died before trial, the jury was sworn as to Hill only.
    The plaintiffs declared in indebitatus assumpsit upon the general counts for moneys paid, laid out, and expended,; &c.; and in answer to a rule taken upon them for that purpose, filed a bill of particulars in the following words:
    “ The plaintiffs claim in this case $861.34, with interest from 24th February, 1850, being a claim for money paid for the defendants, and loaned and advanced for them, the defendants,—owners of the steamboat Lydia Collins—the said owners having been responsible to Woods, Christy & Co., of St. Louis, and indebted to them in said amount; the said defendants having promised to pay the same, &c., &c., to plaintiffs.
    The defendant, Hill, pleaded non assumpsit, and payment with leave, &c.
    The jury rendered a verdict for plaintiffs for $1011.50.
    A lot of merchandise was shipped on the 1st day of August, 1849, on board the steamboat Lydia Collins, consigned to and owned by Woods, Christy & Co., at St. Louis. The goods arrived at their destination about the 21st of the same month, badly damaged on the passage. The amount of damages sustained thereon was amicably adjusted between the owners thereof, and Hunter and Blackstock, as owners of the steamboat, and a joint and several note was given on the same day by Hunter and Blackstock, endorsed by Voorhies, Miller & Co. as sureties for $861.34, payable six months after date to Woods, Christy & Co., or order; which said note was afterwards taken up by the plaintiffs, who claimed to recover the amount thereof from Hill, as one of the owners of the boat.
    The evidence to show ownership on the part of Hill consisted of a bill of sale by Hunter to a certain William P. Beck, with the evidence of Beck himself that he was but a trustee for Hill; and admissions alleged to have been made by Hill to third persons.
    On the trial of the cause, the plaintiffs offered in evidence the depositions of Robert R. Woods and Edward V. Bryan, taken under a commission. ,, <->
    The defendant’s counsel objected to the admission of said depositions on the grounds, 1st. That the evidence was not admissible under the plaintiffs’ declaration; and 2d. That the note specified in the depositions having been given by Hunter and Blackstock in their individual names, and signed by the plaintiffs as sureties for them, the plaintiffs cannot under the common counts charge Hill with the money paid out by the plaintiffs.
    The Court overruled the objection, to which the defendant’s counsel excepted.

      Woods testified, inter alia, to the goods being sent by the boat; that Hunter was master, and Blackstock clerk on the boat^and that Woods, Christy & Co. intended to attach the boat if the parties had not given security for the debt or damages. Also, that Voorhies, Miller & Co. were taken as sureties and paid the note.

      Bryan testified, inter alia, to the payment of the note by Voorhies, Miller & Co. on the 28th January, 1851, with interest.

      Wm. Noble testified that he had a conversation with Hill as to the ownership of the boat, and he said he was an owner; that this conversation was when the boat was in the hands of the sheriff; he did not say when his ownership commenced. The witness thought it was in 1850 when the conversation occurred.

      G. Blackstock was examined, and testified that in the spring of 1850, he was present when Hill said that he, in the name of William P. Beck, was owner of one-eighth of the Lydia Collins. He said that Beck had been a clerk of Hill. This occurred before the boat was attached.

      Noble was recalled, and said that Hill said he was not aware that a partner holding a small interest in a boat was liable for all the debts.

      William P. Beck was called. He was objected to on part of defendant; and in support of the objection, Henry Woods was called. A paper bearing date 81st July, 1849, purporting to be a bill of sale by Hunter to Beck of one-eighth of the boat, was read to disqualify Beck as a witness.
    The plaintiffs’ counsel then offered a release to Beck, which was objected to on the ground that there was no consideration recited in it. The release was signed by Voorhies, Miller & Co., and others; it was not under seal; it released him from all claim on account of any connection or ownership with the boat, not stating any consideration.
    The witness was admitted, and the second exception was taken.

      Beck testified, inter alia, that he was in the employ of Hill from April 9th, 1849, till January, 1850. That he signed the bill of sale at the request of Hill. That Hill had advanced money to Hunter when the boat was being built. He said that Hunter was indebted to Hill $500, and that Hill advanced to him $500 in sums of $100 each. There was a note for $325 signed by him for Hill, and given to Hunter. It was dated July 31, 1849, payable in six months.
    He further said that on the 31st July, 1849, or about that time, Hill wished him to go to the river and see Captain Hunter, and receive a bill of sale of one one-eighth of the boat, which Hill said he had instructed to be made out in his (Beck’s) name. That Hill handed him a statement of the moneys paid by Hill to Hunter whilst the boat was building. That Hunter said that he would call and see Hill. Beck further said that in October following, Hunter called at the office of Hill, and that the bill of sale was executed in October. He said that the note was signed by him at the same time.
    The bill of sale was given in evidence. The consideration was stated in it to be $1325.
    Afterwards there was given in evidence the record of a writ of fi. fa. at the suit of George Blackstock v. J. M. Blackstock, issued 29th May, 1850, showing the seizure and a sale of the boat on 20 th June, 1850.
    The defendant’s counsel submitted to the Court various propositions :
    1st. That if they believe William A. Hill to be a part owner of the steamboat Lydia Collins, that the other part owners had no authority to bind him by the agreement alleged to have been made for the compromise of the claim of Woods, Christy & Co. as stated in the depositions of Robert R. Woods and E. V. Bryan.
    2d. That the acceptance, by Woods, Christy & Co. of the note given by Blackstock, Hunter, and the plaintiffs in this case, operated as an extinguishment and discharge of their claim against the owners of the Lydia Collins, under the circumstances stated in the testimony adduced by the plaintiffs under the commission.
    3d. That, under the circumstances of the case, as detailed in the testimony heretofore referred to and adduced under the plaintiffs’ commission, if the jury are satisfied that William A. Hill was a part owner at the time of the execution of the note, and at the time of the injury alleged to have been sustained by the firm of Woods, Christy & Co., the said William A. Hill is not responsible to the plaintiffs.
    4th. That if the bill of sale of the boat,'made to Beck, was not executed until October, 1849, and if the note of Beck, the part consideration of the same, was not signed until that time, the contract, being under seal, not being executed until the day of the delivery testified to by Beck, and that such being the case, the defendant, Hill, is not responsible for the claim set up by the plaintiffs.
    5th. That, if the jury believe the evidence in the case, the defendant, Hill, is entitled to a verdict.
    The Court, Shannon, J., instructed the jury as follows:

      First proposition, “ Negatived. If Hill was' an owner at the time, the others could bind him for anything by them done for the joint benefit of all concerned.”
    Second proposition “Negatived.”
    Third proposition “Negatived.”
    Fourth proposition. . “ If the jury believe the witness, Beck, it follows that although the latter’s name was used, yet Hill was the real owner—Hill was the subscribing witness, and present when Beck signed. The bill of sale bears date the 31st July, 1849; and from its date and all the circumstances, the jury are at liberty to infer from the instrument an acknowledgment of both Hill and Hunter that the ownership of Hill, as to the one-eighth, commenced 31st July, 1849.”
    Fifth proposition “Negatived.”
    Verdict for plaintiffs as stated.
    Error was assigned, 1. To the admission of the depositions of Woods and Bryan; 2. To the admission of Beck; 3, 4, 5, 6, 7, were to the answers to the five points respectively.

      Stanton and Williams, for plaintiff in error.
    Where one of several parties draws bills in his own name, there is no remedy against the firm, though the proceeds are carried to the partnership account: Story on Part. 136.
    The case did not show any more than a part ownership of the boat by Hill; it did not show that he was engaged as a partner in the business of a common carrier.

    It was further said that the admissions of Hill of ownership, related to-a time subsequent to the damage to the goods. That before the execution of the bill of sale, Hunter appeared to be sole owner of the boat. That instrument, though dated in July, was not executed till October. The note endorsed by Voorhies & Co. was dated in August. It was contended that any liability in Hill arising from ownership could not exist before his title in the boat existed.

      G. P. Hamilton, for defendants in error.
    The jury have found that Hill was a part owner of the boat at the time of the damage. It was .said that the finding was on proper grounds. On 31st July, the date of the bill of sale, Hunter was indebted to Hill $1000, viz. $500 on a.former transaction, and $500 advanced while the boat was building. This indebtedness was credited on account of the purchase of an interest in the boat. The bill of sale, and a note of Beck for the balance of the purchase-money, being dated back to the 31st July, 1849, though executed in October, indicated a former oontract between the parties; and the bill of sale was the evidence of Hill’s title, but not its origin. His admissions of ownership were evidence: Blackstock v. Long, 7 Harris 340. Hill being an owner, the presumption is that the boat was navigated in part for his benefit: Blackstock v. Leidy, 7 Harris 335; Abbott on Shipping 176; Coll. on Part. 631-686.
    It was contended that the original liability of Hill as an owner was not discharged by the taking of the note of Hunter and Black-stock alone. That Hill nor Beck were not known publicly as owner until the registry of the hill of sale at the Custom-House in March, 1850. The general rule was not disputed, that in partnership transactions where credit is given exclusively to less than the whole number of partners, the rest are discharged; but this rule does not apply to a dormant partner. He need not be joined as plaintiff: 8 Ser. & R. 55. He is liable when discovered: 5 W. & Ser. 333, Given v. Albert; Chitty on Contracts 195; 5 Watts 454. He need not be joined as plaintiff or defendant in an action relating to a partnership: 8 Ser. & R. 55, Watson v. Wallace.
    The action can be sustained on the principle of subrogation, which requires neither contract or privity to sustain it, and may be applied wherever one, not a mere volunteer, discharges the debt or obligation for which another is primarily liable in person or estate: 6 Watts 221; opinion of Bell, J., in Wallace’s Appeal, 5 Barr 105; 9 Barr 498; 7 W. & Ser. 308; 1 Barr 512.
   The opinion of the Court was delivered, October 12, by

Lewis, J.

One partner has an implied authority to bind the firm by contracts relating to the partnership business, whether such contracts be evidenced by bare agreements, oral or written, or by negotiable instruments, as bills of exchange or promissory notes. This rule is applicable both to dormant and nominal partners. It is now an undoubted and universal proposition, that a dormant partner is in all cases liable for the contracts of the firm during the time that he is actually a partner: 1 Doug. 371; 1 H. Bl. 37; 3 Price 538; 5 Mason 176; 9 Pick. 272; 5 Peters 529; Coll. on Part. sec. 384. This rule of law would be rendered entirely nugatory if. the acceptance of a promissory note from the ostensible partners, by one unacquainted with the existence of a dormant partner, precluded the creditor from his action against all who participated in the profits of the partnership. As the action upon such an instrument may be brought against all the partners, a surety who, as such, pays the money on it, is entitled to the usual remedies of sureties against all. He may be subrogated to the remedy on the contract, or he may have his action for money paid for the use of the partnership, and the promissory note so taken and signed by the ostensible partners' and their surety is competent evidence: 5 Watts 454; 5 W. & Ser. 333.

In the ease before us, the presumption of partnership arises from the ownership of a steamboat engaged in the carrying business, and its origin depends upon the time when the defendant acquired an. interest in the boat. The bill of sale is dated the 31st July, 1849, and was drawn up on that day. Most of the consideration was satisfied on that day, as it consisted in part of advances made to the vendor while building the boat, and in part of other demands against him, on which it did not appear that the defendant was allowed any interest afterwards. The residue of the money was secured by a note also drawn and dated on the day when the bill of sale was drawn. There was some evidence tending to induce a belief that the instruments were drawn in pursuance of a previous understanding, and that the defendant expected them tó be signed on that day. There was no evidence to show that the delay was owing to any dispute in regard to the terms of the contract, and when the papers were signed, the dates continued unchanged. There was no evidence to show that the original dates were adopted by mistake. Nor did the defendant give any evidence to show that his actual participation in the profits commenced at a period subsequent to the date of the bill of sale to his trustee. There was evidence of repeated acknowledgments of his interest in the boat, made subsequent to the period when the liability arose, without stating when that interest was acquired. Under these circumstances, it was not error to submit the question to the jury. The bill of sale is not. the contract of partnership. It is only evidence of it, and it is certainly not conclusive evidence that the partnership did not commence on the day specified by the writing itself.

The case does not seem to call for further observations upon the several assignments of error. The decisions of the Court below upon questions of evidence, and the instructions.to the jury, are, in our opinion, correct. Judgment affirmed.


text:
    Edmonson versus Nichols.
    1. A testator directed that all his estate, real and personal, and everything that belonged to him, should be “ given into the hands” of his wife, “ for her use and maintenance as long as she lives”—“ she must not give or sell anything only what is for her own good and support, or for the good of the place, or mortgage if she needs.” He added, “ It is further my will and I do order that my son “William, directly at his mother’s death, shall have all my land and houses.” * * * “ Further it is my will that my son William shall have all the proceeds out and in of my property, that now belongs to me:”
    It was Meld, that the widow had the power to mortgage the fee in the real estate for her maintenance: the son, at his mother’s death, took the fee subject to the mortgage.
    2. The execution of the mortgage was conclusively established by the judgment on the scire facias upon it, and was not disputable in an ejectment by the grantee of the son against the purchaser under the proceedings on the mortgage, notwithstanding the son or his grantee were not parties to such proceedings.
    3. When a verdict is taken subject to the opinion of the Court upon points reserved, the facts should be distinctly stated, as well as the questions raised upon them ; and the judgment which is to be pronounced upon the solution of the questions of law should be specified, as in a case stated.
    Error to the District Court of Allegheny county.

    This was an action of ejectment brought by John Nichols against Joseph Edmonson and others, to January Term, 1852, No. 121. Joseph Edmonson claimed to be the owner of the land, and the others were tenants. The defendants pleaded not guilty, and on the trial of the cause, a verdict was rendered for the plaintiff, Nichols, subject to the opinion of the Court on reserved questions, which were afterwards decided by Williams, J., in favor of the plaintiff, and judgment entered.
    Both parties claimed under the will of James McMeeken, bearing date April 27th, 1831, and admitted to probate in Allegheny county, on August 26, 1840. His widow, Mary McMeeken, survived him and lived till 16th June, 1851.
    The testator died seised of a small piece of land containing about eighteen acres, with two old log cabins in bad repair upon it, for which this ejectment was brought. It was admitted for the purpose of this trial, that the rents, issues, and profits of this land, were insufficient to support the widow.
    About two or three years after her husband’s death, the widow was taken to reside with her son-in-law, Jacob McMeeken, in the state of Ohio, where she continued to reside until her death; during a period of about eight years.
    On the 6th of February, 1845, she executed and delivered to Jacob McMeeken a mortgage of the premises, for $150, for her support, which was acknowledged before a justice of the peace in Ohio, and a certificate of the clerk of the Court of Common Pleas of the county where the magistrate resided, with the seal of the Court in due form attached. The mortgage thus acknowledged was recorded in Allegheny county, on the 4th day of June, 1845, and afterwards assigned to Joseph Edmonson, the defendant.
    On the 10th of Sept., 1845, she executed and acknowledged, in the same way, another mortgage, to secure him for her support, in the sum of $800, which was recorded on the 26th of the same month, in Allegheny county. This mortgage referred to a bond bearing even date, which was also read in evidence, conditioned for the payment of one hundred dollars a year for her support. It. was admitted on the trial that justices of the peace, in the state of Ohio, were at the time of taking the acknowledgments of these mortgages respectively, duly authorized by the law to take the acknowledgments of deeds, mortgages, &c., for land situated in that state.

    It was proved, by the plaintiff, that the widow and Jacob Mc-Meeken both desired this property to be put to sale under these mortgages. A scire facias was issued on each of the mortgages to April Term, 1850, in the District Court of Allegheny county, returned Nihil. Al. sci. fa. also returned Nihil; and judgment in each case on the 6th April, 1850.

      Lev. fa.’s were issued, Nos. 853, 354 of April Term, 1850. The property in dispute was sold by the sheriff on both writs, and purchased by Edmonson, the defendant, for $200. Sheriff’s deed duly acknowledged and registered, acknowledged the 4th May, 1850, and delivered. The defendant, Edmonson, has had possession since. It was alleged, in the counter-statement, that neither William McMeeken or Edmonson were parties to the proceedings on the mortgages.
    The plaintiff claimed title under William McMeeken, son of James McMeeken, the testator, by deed dated 21st July, 1851, above a month after the death of the widow.
    Three questions arose, and were reserved by the Court, viz.:
    1. Had the widow power, under the will of her husband, to mortgage the premises in fee ?
    2. If she had, were these mortgages properly acknowledged ?
    3. If not, can advantage be taken of that defect by the plaintiff here, after the legal proceedings had thereon, and possession by defendant from the date of his deed up to the bringing of this suit?
    The will of James McMeeken was as follows:
    “As to such worldly estate wherewith it has pleased Grod to bless me, I give and dispose thereof as follows: Item, it is my will and I direct and order that all my estate real and personal and everything that belongs to me shall be given into the hands o'f my wife for her use and maintenance as long as she lives, she must not give or sell anything only what is for her own good and support, or for the good of the place, or mortgage if she needs.
    “ It is further my will and I do order that my son William, directly at his mother’s death, shall have all my land and houses.
    “ It is further my will and I do order that my daughter Mary is to get, at her mother’s death, my bureau and part of my books.
    “It is further my will and I do order my son William to give Jacob McMeeken a free deed of that lot his house is on.
    “ Further it is my will that my son William shall have all the proceeds out and in of my property that now belongs to me.”
    The second bond and mortgage were printed on the paper-book. In the bond it was stated that thé widow had agreed with Jacob Mc-Meeken for her support at $100 per year, and she mortgaged to him the “ eighteen acres of land,” to have and to hold to him, “ his heirs and assigns for ever,” conditioned on her payment of the money referred to.
    This mortgage was executed in the presence of two witnesses—one of whom was Wm. McMeeken, the son of James McMeeken, the testator.
    It was assigned for error that the Court erred in entering judgment for the plaintiff upon the points reserved.

      Hampton & Son, for plaintiff in error.
    The property was not given to the widow merely for her use, hut also for Tier maintenance ; and it was insufficient for the latter purpose. It was not given merely for life, else why was she invested with power to sell or mortgage if she needs.

    In relation to the execution of the mortgages,' it was said that justices of the peace in Ohio had power to take the acknowledgment of deeds and mortgages of land situate in that state ; and reference was made to the 15th and 16th sections of the Act of 16th April, 1840, the 3d section of the Act of 11th April, 1848, and to the opinion of Coulter, J., in' the case of Rigler v. Cloud, 2 Harris 361, in support of the proof of execution of the mortgages in question. But it was further contended that if the mortgages were not properly acknowledged and recorded, the defect could not be taken advantage of in this collateral proceeding: 6 Barr 272, Drexel’s Appeal; and Hauer’s Appeal, 5 W. & Ser. 474, cited. It was added that Wm. McMeeken, the son, was a witness to the last mortgage, and that he was thereby precluded from, contesting it.

      Hepburn, for defendant in error.
    It was said that the will was to be construed from its own words: 1 Yeates 432; 2 Id. 302; 3 Barr 496; 5 Id. 21; except where a latent ambiguity exists.
    It was contended that by the will in question there was given to the widow an estate, only for life, in the real estate, and after her death it went to the son: 7 W. & Ser. 63; 1 Lev. 150; 1 Sug. on Pow. 542; 16 Johns 588. It was said that the power to sell was limited to the personal property only.
    But if the widow had power to mortgage the fee, it was contended that the mortgages in this case were not properly established, so as to entitle them to be recorded, for that by the Act .of 1715, they should have been proved by a subscribing witness; the proof to be made before an officer mentioned in that Act, and not before a justice of the peace; and by the Act of 1819, the acknowledgment or proof is required to be made before a judge. In the case of Rigler v. Cloud, 2 Harris 361, the acknowledgment was objected to on the part of the grantor. The Acts of 1840 and 1848 relate to deeds by husband and wife. That the Act of 1840 was not to have a retrospective operation, was cited Green v. Drinker, 7 W. & Ser. 440.
    It was said that it was not attempted in this proceeding to set aside the judgment on the mortgage. It was binding on the parties to it: 2 Barr 202; 7 Id. 414; 9 Barr 345; but it was contended that it should not be an estoppel to the son or his grantee, who were not parties to the proceeding on the mortgage. A torro tenant claiming under a mortgage may make any defence in a subsequent action, if he has not been served with notice of the scire facias in the original suit: 1 Ser. & R. 546; 4 Barr 80; 8 W. & Ser. 165; 8 Id. 93; 9 W. & Ser. 13; 5 Harris 412.
    It was said that the mortgage was not merged in the judgment on it—that the only effect of a judgment on a scire facias was to authorize execution: 4 Wharton 423.
    It was in conclusion said, that though the son of the testator was a witness to the mortgage, the attention of the Court below was not invited to this fact. But if true, he was a witness only to its execution and delivery, and was not to be presumed to be acquainted with its contents.

   The opinion of the Court was delivered, October 12, by

Lewis, J.

The testator ordered “ that all his estate real and personal, and everything that belonged to him, should be given into the hands of his wife, for her use and maintenance as long as she lives.” He then adds, “ She must not give or sell anything only what is for her own good and support, or for the good of the place, or mortgage if she needs.” It is manifest that the will is not the production of one learned in the law. But the intention to provide for the maintenance of his widow was evidently uppermost in his mind. He gives everything “ into her hands” for that purpose. The restriction upon her power to sell except “ for her own good and support, or for the good of the place,” would seem to be an implied power to sell for those purposes. The supposed absurdity of selling the place “for the good of the place” is not forced upon us. It may be avoided by giving such a benign construction as we think the will of an illiterate man demands. The power to sell extends to everything, real and personal, and it may be that the testator intended to authorize her to sell everything except the place “for the good of the place,” and at the same time to empower her to sell the place itself if necessary for her “ good and support.” But the case before us does not demand a decision upon the power to sell. The question is, had she a power to mortgage it if necessary to raise money for her support? What else could the testator have meant by the words, “ or mortgage if she needs ?” Here is no mere implication. It is an express power to mortgage the real estate if her necessities require it. This power is not defeated by the devise of his lands and houses to his son “ directly at his mother’s death.” The several parts of the will should be so construed as to stand together. Each clause should take effect if possible. The devise to the son is readily reconcilable with the power to mortgage given to the widow. The mortgagee has no estate in the land. His mortgage is nothing but a security for a debt. It is only an encumbrance. The two parts of the will stand in perfect harmony with each other. The son takes “ the lands and houses” subject to the charge which may be created by the widow for her maintenance. There is nothing unreasonable in this. The testator did not see anything repugnant to good conscience in charging the devise to the son with the necessary maintenance of his mother. Nor do we.

But it is supposed that the power to mortgage only authorized the widow to mortgage her life estate. This she could do by virtue of her interest, without resorting to a power. So that this construction renders the words of the testator entirely inoperative and useless, and is contrary to the rule which requires us to give full effect to every part of the will. There is a life estate to the widow coupled with a power to mortgage the fee for her support. It is admitted that the mortgage was required for her maintenance. Its execution is conclusively established by the judgment in the scire facias brought upon it, and is not to be disputed in this collateral proceeding.

We are frequently embarrassed by the imperfect manner in which points are reserved by the Courts below. When a verdict is taken subject to the opinion of the Court upon points reserved, the facts should be distinctly stated, as well as the questions raised upon them; and the judgment to be pronounced upon the solution of the questions of law thus reserved, should also be specified as in a case stated. In this case the paper-book omits to state what judgment is to be rendered upon a decision of the points reserved in favor of the defendants below. But as they cover the whole controversy, and as the object was to make a final end of it, we proceed to final judgment.

The judgment below is reversed, and judgment is entered for the plaintiffs in error, non obstante veredicto, with costs.


author: Lowrie, J.

text:
    Cooper versus McClurkan.
    A non-resident partner drew a bill of exchange in the name of the firm on himself, falsely dating it at the place of business of the firm, making it payable to the order of the firm, and accepted it in his own name, endorsed it with the name of the firm, placed it in the hands of a bill-broker, who negotiated it to the holder, and paid to the non-resident partner the net proceeds:
    It was Held, that the other partner, in a suit against him on the bill by the holder, might defend by showing that it was not a partnership transaction, but that the bill was drawn and negotiated by the other partner for his individual use, and that the holder, who was ignorant of the nature of the transaction, should have inquired into it.
    Error to the District Court of Allegheny county.

    This was an action of assumpsit by Lewis Cooper v. Samuel McClurkan and George M. Fleming, on a bill of exchange as follows :
    $149737/100 Pittsburgh, March 31st, 1851.
    Six months after date pay to the order of ourselves, fourteen hundred and ninety seven 37/100 dollars, for value received, and charge same to acconnt of . Yours, as advised,
    To Geo. M. Fleming, Piulada. Samuel MoOlurkast & Co.
    Service of the writ was made on McClurkan. E. E. I. as to Fleming.
    The plea was that the defendant, McClurkan, did not draw or endorse the said bill of exchange, nor any one authorized by him.
    February 3, 1858, verdict for plaintiff for $>1618.63, subject to the opinion of the Court upon points reserved. June 18, 1858, notes of testimony, bill of exceptions and opinion of Court filed, and judgment rendered for the defendant on points reserved, “ non obstante veredicto.”

    In the statement submitted on the part of the plaintiff in error, it was stated that the bill was accepted by Fleming, and endorsed with the name of Samuel McClurkan & Co. Samuel McClurkan and George M. Fleming composed the firm of Samuel McClurkan & Co., at Pittsburgh. George M. Fleming had formerly resided at Pittsburgh, but shortly before the drawing of this bill had removed to Philadelphia, where he carried on the commission business. He made purchases of goods in Philadelphia for the house of S. McClurkan & Co. in Pittsburgh; and McClurkan & Co. were in the habit of making large shipments of flour, &c., to Fleming, at Philadelphia, and of drawing on him for the proceeds. The hills thus drawn amounted, during the course of the year, to fifty or one hundred thousand dollars; and McClurkan either procured their discount in Pittsburgh, passed them in payment of flour, &c., or remitted them to Philadelphia. The firm of McClurkan & Co. was well known in Philadelphia, and in good credit there.
    Since suit was brought on the bill of exchange, it was ascertained that the bill was drawn by George M. Fleming, at Philadelphia, but dated at Pittsburgh, but, it was alleged, that of this Lewis Cooper, the plaintiff, had no knowledge or notice. The draft was passed to the plaintiff by a broker, to whom Cooper paid the amount in cash, after deducting the interest. * * * * The broker who passed the bill to Cooper, received it from Fleming; but of this fact, it was alleged on the part of Cooper that he had no notice or knowledge.
    On the trial, on the part of the plaintiff, it was testified by the broker, that he was a resident of the county of Philadelphia, and did business in Philadelphia. That the acceptance in question was handed to him by Fleming to get it discounted—that disposed of it and gave Fleming the proceeds—that he sold it to Cooper, the plaintiff, and negotiated it in good faith. The witness said that he himself knew by vdiom the draft was drawn—that the signature of Samuel McClurkan & Co. was in the handwriting of Fleming, and also the acceptance and endorsement.
    On part of the defendant, it was testified by a clerk of Samuel McClurkan, that the latter did business in Pittsburgh. That Fleming resided in Philadelphia, engaged in commission business on Ms own account; did business in his own name; was considered a man of large means.
    On cross-examination, he said that “ McClurkan & Co. made large shipments of goods, produce, &c., to George M. Fleming; and bills similar to this were drawn on him to the amount of $50,000 or $100,000. Fleming bought goods for S. McClurkan k Co. in Philadelphia, and had them shipped to Pittsburgh. Goods bought in the fall would fall due in April. Sometimes he (McClurkan) had the drafts discounted, and sometimes he paid them to persons from whom he had flour on commission, and from whom he bought flour. I don’t know how they were disposed of. The firm of S. McClurkan & Co. was.well known in Philadelphia, and were of high standing. No one that had ever seen Mr. McClurkan write, would mistake that signature for MeClurkan’s. I never knew Mr. McClurkan to lend drafts. McClurkan & Co. were familiarly known.” The opinion of Williams, J., was, in part, as follows:
    It was the plaintiff’s duty when he purchased the draft, if he knew that it was drawn and endorsed by Fleming, to have ascertained by what authority it was drawn and endorsed in the name of the firm. It is true that a partner, acting within the scope of the business of the partnership, is authorized to draw, accept, 'and endorse bills in the name of the firm. But the draft in question was not drawn, endorsed, or negotiated in the ordinary course of the partnership business. It was done by a non-resident partner in the name of the firm, accepted by him in his own name a a drawn and endorsed with the name of the firm, and placed in the hands of a broker for sale or discount. There is nothing, however, on the face of the bill indicative of its unusual character, or calculated to excite suspicion in the mind of a person unacquainted with the handwriting of McClurkan, the resident partner. An inspection of the draft would naturally lead to the inference that it was drawn, as it purported to be, by the partner at Pittsburgh on his copartner in Philadelphia; and that it was endorsed by the former and accepted by the latter in the ordinary business of their firm.
    But if it be, as it doubtless is, the duty of one who receives negotiable paper, to ascertain the genuineness of the signatures of the parties thereto, as against the parties themselves, it would seem to follow as a necessary corollary that it was the duty of the plaintiff in this case to have ascertained by which of the partners the bill was drawn and endorsed. Plow otherwise could he have ascertained that the signature of the partnership was genuine ? The ascertainment of its genuineness would necessarily have led to a knowledge of the fact that the draft was drawn and endorsed by Fleming, which sufficiently indicates that it was drawn and endorsed by him for his own separate accommodation.
    The ease of Tanner v. Hall, 1 Barr 417, was referred to and remarked upon, and he concluded by saying that it was the duty of the plaintiff to have ascertained by whom the draft in this case was drawn and endorsed, and to have inquired into Fleming’s authority for using the partnership name. That having failed to do so, he was not entitled to recover.
    To the opinion, the plaintiff’s counsel excepted, and the judgment was assigned for error.

      Miller, for plaintiff in error.
    It was contended that each partner has authority to use the signature of the firm, whether as drawer, endorser, or. acceptor ; and when so. used, the bill will be deemed to be on the partnership account and bind it, unless upon the face of the bill, or upon collateral proof, it is clearly established that the party taking it had full notice that the bill was drawn, endorsed, or accepted, for purposes and objects not within the partnership business: Story on Bills 93-94; Id. 165-6-7.
    It was said that the plaintiffs discounted the draft under the belief that it was drawn in Pittsburgh ; but whether it was drawn by Fleming or McClurkan, at Pittsburgh or at Philadelphia, the partnership name having been used as both drawer and endorser, the firm is liable. The bill was in the usual form, and it would be “ strange and novel doctrine,' to hold it necessary for a person, receiving a bill of exchange, endorsed by one of several partners, t& apply to each of the other partners to know whether he assented to such endorsement:” opinion of Lord Ellenbobough, Watson on Partnership, page 153.
    The case of Tanner v. Hall, 1 Barr 417, was the case of a promissory note drawn by Hall, in his. own individual name, to the order of J. Cochran & Co., who endorsed it for Hall’s individual accommodation, and Hall himself had it discounted in the Lumbermen’s Bank. “ Hall had drawn ostensibly for his separate accommodation.” That note in its inception, did not profess to be on the partnership account. Reference was also made to Story on Bills 93; Chitty on Bills 39-40; 9 Pick. 274-5; Story on Part. 168. If one partner borrow money on the partnership account and misapplies it, all are bound: Chitty on Bills 167-8-9, 171. The broker acted as the agent of Fleming; but Cooper had no knowledge as to how the broker became possessed of it, and the latter testified that he negotiated it in good faith. It was contended that the bill having been drawn and endorsed in the partnership name, it-lay on the defendant to show that Cooper knew there was fraud and took the bill maid fide: Chitty on Bills 46, 238-240; also cited Story on Part. 171; and Story on Bills 215.

      Selden, contrà.
   The opinion of the Court was delivered, October 12, by

Lowrie, J.

McClurkan and Fleming were partners in trade, and Fleming drew a, bill of exchange of the partnership on himself, and negotiated it to the plaintiff, and now, in a suit upon it, McClurkan defends on the ground that it was not a partnership transaction. This appears to be well taken, for the case, without other evidence, stands just as if Fleming had given the endorsement of his partnership on his own note as security for his own debt, which he could not do: 1 State Rep. 417.

The plaintiff says he is a bond fide holder without notice of the character of the paper. Is he without notice ? He is not, if the proper inquiries usually made by a prudent man would have led him to the knowledge of the fact that the acceptor, or principal debtor,, had himself drawn the bill, or in other words, made the contract that is intended to pledge the partnership as surety for himself. Common prudence demanded that the authenticity of the signature of the drawers should be ascertained, and this led directly to the fact that it was made by Fleming himáelf, and common sense would indicate that Fleming had no right to bind his partner as his surety.

It is urged that, in borrowing money, copartners may give to' their negotiable paper what form they please, and that therefore they ought to be liable here notwithstanding the form. The premise is true, but the conclusion needs, for its support, the proof that the copartners did borrow the money. If they did, then Fleming is an accommodation acceptor, and the drawers are bound as the real debtors. Without this proof, we must take the apparent transaction to be the true one, and regard Fleming as borrowing money for himself, and attempting to pledge his partner as his surety; that is, we must decide the case according to the evidence.

Judgment affirmed.

Knox, J., dissented.