This was an action of assumpsit, brought by the defendants in error, against the pre~. sent plaintiffs, William Jones, Benjamin Horner, Edward Sims, David Scott, John Jones, Larkin Hammond and John W. Donaldson, owners and propric-*143tors of the steam boat Warrior, and co-partners in the freight of said boat, to recover damages for the loss of sixty-nine bales of cotton, shipped by said Pitcher & Co. on board said steam boat, to be transported from Tuskaloosa to the port of Mobile. The declaration contains several counts, the particular differences in which are unnecessary to be noticed. They allege, substantially, that the defendants belong at, and before the time of tiie shipment of this cotton, ■were the owners and proprietors of the boat, and co-parners in freighting on the same; and which boat was usually employed by them in carrying and transporting cotton, and other articles of merchandizé, to and from the port of Tuskaloosa to the port of Mobile, and other places in this Stale, for hire; and that the said Larkin Hammond was, for the time, master thereof; and that the plaintiffs, in January, 1829, at the port of Tuskaloosa, at the special instance and request of the defendants, shipped on board said boat, sixty nine bales of qotton, then in good order and well conditioned, and of groat value? viz: of the value of five thousand dollars, to be taken care of, and safely and securely carried and conveyed, in and on said boat, to the port of Mobile, and there to be delivered in like good order and condition, unto Samuel St. John, jr. or bis assigns, the dangers of the river only excepted; and that, in consideration thereof, and of freight, at the rate of one dollar per 'bale for said cotton, the said defendants undertook, and fathfully promised the plaintiffs, that the cotton should be safely and securely carried and conveyed and delivered in Mobile, as aforesaid: yet that‘the said defendants, regardless of their duty and undertaking, as aforesaid, wholly failed and refused to comply there*144with. - But on the contrary thereof, through the mere carelessness, negligence, improper conduct, and want of skill of the then master, and of the boat hand? and servants under him, the said boat, 'Warrior, was run down upon, and came in collision with the s'oam boat 'Erie, whereby the former was sunk, and tins whole of the aforesaid cotton became and was wholly lost to the plaintiffs.
The trial was had on the general issue, joined between all the parties. Judgment was rendered for the plaintiffs below, against all the defendants, except Sims & Scott; from which the other defendants prosecute this appeal.
. All the questions presented for revision arise out of a bill of exceptions, taken on the trial by the raid defendants. From the exceptions, it appears that the deposition of J. B. Leavens had been taketi and was offered in evidence; that the commission 'or taking the same, entitled the cause as one pending between Charles G. Pitcher & Co. as plaintiffs, and Wb. Jones, jr. and others, defendants, and that the ceríi'h ato of the commissioners taking the testimony, in. Cming the title,named all the parties, plaintiffs and defends t u, except, that the name of John Jones, one of the defendants, was omitted. — It is also stated, that, it did not appear, that there was any other canso m the court, yrherein the parties, whose names weiv, expressed in the commission, were parties litigant: and it appeared, that the title of the cause in the commission, corresponded with that on the docket of the court. The deposition was taken by consent-, in writing, designating the time and place, and signed by A. Heady, for Sims & Scott; Shortridge & Sims, for Donadlson & Hammond; Gayle & Vandyke, for *145Wm. Jones, jr. that the names of Horner and John Jones, (for whom the latter counsel had appeared in pleadings as well as for‘Win. Jones, jr.) were not expressed ; nor was their consent, or waiver of notice, or the service thereof in any other way, shewn,— The admissibility of the evidence was objected to, on the grounds, that John Jones had no notice of the time and place of taking it; and that the certificate and commission did not sufficiently identify the cause. But the court overruled the objection, except as to John Jones, and permitted the testimony to be read against the other defendants.
The plaintiffs’ co.unsel further offered in evidence to the jury, a sworn copy of the registry of the steam boat Warrior, made in the custom house, at Mobile, with a view of showing the defendants were owners of said boat; which enrolment is in the usual form, purporting to have been made on the affidavit of Wm. Jones, jr. of Mobile, in conformity to the act of Congress, in such case provided; and stating 'that he, together with others therein named, citizens of the United States, were the sole owners of the boat; that she was built in Ohio, &c. To the reading of which the defendants objected ; which objection was sustained as to all the defendants, except said Wm. Jones, on whose oath the enrolment appeared to have been made in the custom house ; and against him it was read to the jury.
It uas also proved, that the steam boat Warrior, was carrying freight on account of her owners; that there was a clerk on board, who kept the books, in which were charged accounts for freight. There was no particular proof of a partnership, other than the reception of freight, upon the account of the own*146ers. “ The court instructed the jury that they might find against such of the defendants as were joint owners, if they were liable, and in favor of such as were not liable.”-' There were no instructions given, or requested to be given, to the jury, as to how many of the defendants were partners; other than what appears in the other parts of the record referred to.
The' defendants, Sims & Scott, offered in evidence, and read to the jury, a contract under the hands and seals of said Edward Sims and David Scott, of the first part, and John W. Donaldson and Larkin Hammond, of the second part; by which each party bound themselves to the other, in the penal sum of $7,000; with a condition thereto, reciting that the parties of the second part, had purchased, from the parties of the first part, one half of the steam boat Warrior, (which was the amount of their interest therein,) for the sum of $3,500, to.be paid in freight on said boat, at particular rates therein stipulated: also, that the parties of the second part should assure the boat, in some solvent insurance office, and the policy of insurance should be placed in the hands of the parties of the first part, as a further security for the payment of the purchase money. And the parties of the first part, acknowledged themselves bound, in the event of the payments being made, as aforesaid, then to make good and legal' title to the party of the second part, to one half of the boat, as aforesaid, at the custom house, in Mobile, or as soon thereafter'as demanded; which contract bears date the 9th September, 1828, (the bill of lading, in the usual form, for the lost cotton, bearing date the 20th January, 1829.) The court instructed the jury that the contract between Sims & Scott and Hammond & *147Donaldson, was a transfer of the right of the former, in the boat, to the latter : and was sufficient to discharge the former from all liability for losses subsequently occasioned by that boat: unless the contract was fraudulent, or they had subsequently received a portion of the' earnings of the boat, or had participated in the appointment of a master, or had done some other acts of ownership. The agent of the plaintiffs, who ship-ed the cotton on the Warrior, having proved that he did not ship on the credit, and at the risque of the defendants, Sims & Scott, but on the credit and risque of the other defendants, the court directed the jury, that notice to the plaintiffs, or their agent, that Sims & Scott' had transferred their right to Hammond & Donaldson, before the shipment of their cotton, would prevent the plaintiffs from charging them as joint owners; and that an actual notice of the transfer by Sims éf Scott to Hammond & Donaldson, need not be given to the other joint owners, nor their consent be obtained, in order to exempt Sims & Scott from liability to the plaintiffs.
Evidence was also offered to show that the Warrior and steam boat Eric, came in collision, and the Warrior was thereby sunk. It was further proved that the Erie was ascending, and the ’Warrior descending the river, and that by the understanding of masters of boats, the descending boat must give the point, or pass on the oucside of the ascending boat; but it was customary for either the ascending or descending boat to go on either sido of the river, and hug the points if deemed advisable, and it was considered they had a right to do so: when the collision happened there was darkness, which prevented the witnesses from seeing more'than twenty-five of fifty, or a hun*148dred, yards, which latter was about the width of the riyer at that point. There was also some evidence of the Erie having turned towards the nearest bank that the Warrior might pass outside of her. but on the former discovering that the latter did not hear out, she turned into the stream, believing a collision unavoidable, and that she might sustain as little injury, as possible, from the shock.
The court instructed the jury, that apart from contract, at common law, common carriers by land or water, were only excusable for losses which happened by the act of God, or the public enemies. — ■ That the bill.of lading before them contained an exception, which limited, to some extent, their common law liability; this exception was expressed by the words “dangers'of the river only excepted:” that all! the English and American decisions concur in the conclusion, that they signify the natural accidents incident to the river navigation, and not such as skill, and foresight could avoid. In illustration of which, the court instructed the jury, that where two vessels meet, in such a situation that a collision cannot be avoided, by human prudence or skill, and a loss ensues, it is such a loss as the owners would not be answerable for. Further, that where two boats meet at a point in the river, where it is so narrow that they cannot pass, and can neither recede nor stop, but a collision is unavoidable, and a loss happens, it would be attributed to the dangers of the river, if the officers on the losing boat had taken the precaution to ascertain that the narrow was unobstructed before it was entered. Again, if by an understanding among the masters of boats, it is the custom for ascending and descending boats, to go on different *149sides, and either should deviate from her accustomed track, and pass to the side assigned to the other, and while there, a loss occurs to her, by being struck by the other boat, the exception in the bill of lading will not excuse her owners from accountability for such loss. Lastly, when a boat continues to pursue its course on a river, after it has become.so dark that an object in advance of it, which might occasion a loss, can not be seen in time to be avoided, and a loss ensues, the exception in the bill of lading does not exempt, the owners from liability to the injured party. ■ The court also instructed the jury that the question was not whether negligence, in the common acceptation of that term, was attributable to 1 he master, and the officers of the. steam boat Warrior; but whether a loss had been sustained by the plaintiffs, in consequence of the sinking of that boat, which the employment of prudence and skill, on the part of the proper officers might have prevented.
The defendants’ counsel requested the court to instruct the jury, that one partner, without the consent of the others, can not introduce a third person or partner into the concern; which the court refused, except as already stated.
There was no proof of a sale by Sims & Scott to Hammond and Donaldson, of their interest in the Warrior, before the date of the contract referred to; nor was there any proof conducing to shew that Sims & Scott, were under any contract with the other joint owners, to retain an interest in the boat for any definite period.
To the foregoing opinions and decisions — to' the instructions to the jury, as stated, and, also the re*150fusals to instruct, as requested, the defendants, against whom the verdict was had, excepted.
The assignments of error embrace various exceptions, which I arrange and number as follow:
1. The court permitted the testimony of Leavens to bp road to the jury as evidence.
2. The court permitted the register of the boat to be read as evidence.
3. The court instructed the jury,, they might find against such of the defendants as were joint-owners, and in favor of such as were not.
4. It was erroneous to decide, that the contract between Sims & Scott, and Hammond & Donaldson, discharged the former from liability. ■
5. The court charged the jury that common carriers were liable for all losses, unless occasioned by' the acts of God or the public enemies: or, such as fall within the exception in the bill of lading, relating to the dangers of the river; and in his exposition of this exception.
6. The instructions were erroneous, in relation to the custom of ascending and descending boats in yielding the points.
Some other minor exceptions were noticed in argument; but I consider the above as including all that are worthy of examination, and necessary to this decisio'n.
In reference to the objection .'to the title and description of the suit, as given in procuring the depositions of Leavens, I conceive it sufficient, in stating the case, to have given the title of the firm composed by the.appellees — that, in the case of partners, this is all that is necessary or usual in practice.— This was done in the commission, by entitling them *151Charles G. Pitcher & Co.; and the names of the persons composing the.firm are also given in the certificate of the commissioners. Where several persons not being general partners, are co-pla'intiffs or defendants, the suit can be identified with reasonable certainty, by entitling it in the name of one or more of them, with the additional words, “ and others.” In taking the evidence, the. cause may be entitled in like manner: or, with equal propriety, the names of all may be given, as appears to have been intended in this instance. But, in setting out the names of all the defendants, the commissioners have omitted John Jones, one of them. Without deciding whether this furnished him a legal objection to the testimony, it is sufficient to. say, it was excluded as against him; and as all the others were properly named in the certificate, and which, with the commission, afforded reasonable certainty, as to the identity of the suit, and the title in the commission corresponded with that as stated on the docket, as there did not appear to have been any other suit upon the docket, which could be mistaken for this — or, in fact, any surprise — I cannot attach weight to this exception. As respects the want of consent, or notice of taking the testimony, it appears, that the consent of all the defendants was duly given, by their counsel, except, as to John Jones and Benjamin Horner; and, that they were represented, in. the defence, by the counsel, who signed the consent for William Jones, jr. Waiving, however, the question, whether tha^ circumstance could be considered tantamount to general service of notice on the same counsel, which would have been legal, it is sufficient to repeat, that the testimony was not admitted, against John Jones, *152and this exception does not. appear to have been taken, in favor of Horner. The fact may not. have been brought to the notice of the court, or that ground of exception may have been expressly waived by him. The rule, is, “that no point can be regarded as a proper subject of appeal, which has not been expressly litigatfed below:” Mumford vs. Nicoll opinion of J. Wordsworth.a
If, therefore, it shall be found, in the further examination of the cáse, that part of the defendants could legally be convicted, and others discharged, from which it would follow, that evidence may have been admissible against some, which was not against others; on this point, there would appear to be no error.
2. That the register of the boat was admitted as evidence. The enrolment was made on the affidavit of Win. Jones, jr. one of the defendants, and against him only, it was admitted as evidence; a sworn copy, howrever, of the register, as found on the books of the custom house, without other proof that the affidavit on which it was entered, was made by Jones, is the evidence in question. Admitting that the register, with proof of the taking of the affidavit, would be evidence against the deponent, it is a different question, whether, without such proof, it is evidence.
Judge Kentb remarks, that, “the register is not of itself evidence of property, unless it be confirmed by some auxiliary circumstance, to shew that it was made by the authority, or assent, of the person named in it, and who is sought to be charged as owner.” That, “ without proof to connect the party with the register, as his direct or adopted act, the register has been held not to be even prima facie evidence, to *153charge a person as owner. The case of Sharp vs~ i/~e Uniled insurance Company,a was an action by John Sharp, survivor of Robert Sharp, to recover back the premium of insurance on the ship Hercules, on a voyage from New York to Liverpool, on the allegation that he and his brother, Robert Sharp, were mot owners, when the policy was effected. To prove this, the plaintiff offered in evidence the register of the ship, dated 2d June, 1809, by which it appeared, on the oath of David Dunham, that he, together with Robert Sharp were the owners. The policy bore date 24th October, 1810. Spencer, J. delivered the opinion of the court, and observed, that the only question was, whether the register was evidence, prima'facie, that Robert and John Sharp were not the owners. That “ the object of the register was. to show the character of the vessel, and to entitle her to the advantages secured by law, to vessels of our own country.” That it would be incongruous to‘allow a person who applies for an insurance, representing himself to be the owner of the vessel, to set up the act of obtaining a register as evidence to the contrary; especially after the lapse of several months after it bears date. Dunham was a competent witness, and he ought to have beon examined, or some proof should have been offered, to show how the ownership stood when the insurance was effected; that the oath of the owner in obtaining a register, is proof advanced, were fully supported by many Englis for no other purpose. The rogister would not be evidence against Sharp, unless it were shpwn that he sanctioned or adopted it :" and that the princ11)les he clecisions.a This New York case was different fron *154the one under consideration, in ás much as in that, the register was offered in favor of the one charged as owner, to prove the contrary, and was inconsistent with the policy subsequently obtained. But the principle of the decision, would seep» equally to exclude the register, as evidence of ownership, e-ven against those purporting to be owners, until shown to have been sanctioned or adopted by them; and to sustain the position that the register alone, purporting to have been made on the affidavit of one, or more of them, would not prove the fact. Some evidence is necessary from a witness that can testify to the fact, of taking the oath, or otherwise sanctioning or adopting the enrolment. It is suggested in argument, that this particular exception was not taken and reserved on the trial. The bill of exceptions shows, that a sworn copy of the register was offered, with a view of proving that the defendants were owners of. the boat; it does not appear that any foundation was laid for its admission; or that any other proof of its authority accompanied it: but it does appear to have been objected to; and that the objection was overruled as to Wm. Jones, one of the defendants, on whose oath it appeared to have been made in the custom house. From this, the rational inference is, that it purported, to have been so made; and from an inspection of it, as exhibited, such is the fact. It may also be worthy of notice, that, in the opinion of the presiding judge, which accompanies the record, as a part of it, he says, “the register of the boat appears on its face, to have been made on the affidavit of the defendant, Wtn. Jones, that he was a joint owner. It was consequently made with his privity, and mus'e Ibe received as an admission of ownership, by him.’5'.
*155The case of the United Stales vs. Johns,a is ed on the part of the appellee's, and affords some ibility to the argument in favor of its admissibility. That was an indictment under an act of congress, declaring it a capital crime tó cast away or destroy a' vessel, with intent, to prejudice the underwriters.— After proof o'f the order for insurance, and the subscription to the policy, a copy of the manifest of the cargo, certified under the hands and seals of the cus+ tom house officers, was offered in evidence, after proof- by a -Witness, that he had compared.it with the record. ■ On objection made' that there was no evidence that the original manifest was subscribed by the prisoner, or even delivered by him, the court^ held, that, as it was made the duty of the collector to record, in books to be kept for that purpose, all man-, ifests, and as it'was a record, the prbof was'admissible. The report of the case .is very'defective and unsatisfactory, if the queátion was duly considered; and, though the distiction, between the competency of a manifest, and a register, is not apparent, perhaps the court would have recognised some. The object of the manifest, was to show the particular fact then in contest — that of the register, was to show a© fact, distinct from the one, which it was offered to prove, viz: the national character, and particular description of the vessel. But, if the; principle be the same, I should incline to question the authority of Jolm’s case. It was a 'nisi prius decision, in the- Fe-eral circuit court, and the prisoner was acquitted — so that it did not undergo the strictest scrutiny.
It is also said by Starkie, (vol. l, p, 179,) that “the register of a ship is evidence to negative ownership, since no one can be an owner, who is not registered *156as such; but the register is not necessarily proof of the ownership, without showing the privity of the party, since the entry may have been made by a stranger, for the purpose of fraud.” His first position appears to require qualification; as I think it will be seen, that a property can exist, independent of Weston vs. Penniman.a As to the latter it is difficult to conceive how the privity can be established, or the danger of fraud or mistake excluded, unless by proof of the making the affidavit, or some direct sanction or adoption of it.'
In the case of Wendover & Hinton vs. Hogeboom,b it was held, that a regular bill qi sale was not essential to transfer the property in a vessel, but the same passes by delivery, like any other chattel; and that the law of the United States, requiring the register to be inserted in the bill of sale, on every transfer of a vessel, affects only its character and privileges, as an American vessel.
I recognise no American statute, which entitles registers of vessels to more credence, in this country, than is allowed to similar documents in England.
The case of Frazier vs. Hopkins & Long,c was an action for repairs done-to a ship. The plaintiffs Bought to charge the defendants, as the registered owners. To prove them such, a clerk from the custom-house was called, and he produced the register book, in which was an entry of the transfer of the ship to the defendants: and who appeared to continue the owners. Sir James Mansfield, Chief Justice, remarked, in the decision, that the defendants might be the owners of the ship, but it was not proven ; that the custom house books, by themselves, *157were not sufficient to charge them, unless they were made evidence,'for that purpose, by act of parliament; that, there was no proof, to connect the defendants with the entries relied upon : and, for aught that appeared,'they were ignorant of its existence, till it was produced in .court;—That, perhaps, the oath taken by them upon the transfer, might be sufficient; but the plaintiffs had established no connection between them and the ^property in the ship. He, therefore, directed a non-suit. After which the court of common'pleas refused a fule, to show cause agaist setting it aside.
The same rule was applied in the case of Smith vs. Fuge, a which was' brought for seaman’s wages. The register was offered, in evidence, from which, i t appeared, the defendant was'the sole owner of the ship; and that the* register ivas granted, on his own oath. Lord Elknborough decided, that, the defendant could not be charged, .through the medium of the register, without direct proof, that he took the oath, or adopted the character of the owner.—That, though he had no doubt, but he did take it, and was the sole owner; yet, for any thing that appeared, a stranger may have taken the oath in his name. See, also, 1 inMer vs. Walpole. b
Again, in the case of Tud vs. Martin & othersc the defendants were charged, as owners of the ship, Young Roscious. Lord Ellenborough, there, also, held, that an entry in the register book, in the customhouse, stating, that a certificate of the register was granted, dn the oath of Martin, that he was owner, ivas not admissible, as secondary evidence of ownership, against him; álthough it was shewn, that all the affidavits on which registers had been granted, *158had been burned, in the custom-house. He said-, the plaintiffs might call the collector’s clerk, or some person, who had seen the affidavit, and knew it was made bj the party sought to be charged.
From this review of authority, it sufficiently appears, there was error in permitting the sworn copy •of the register to go to the jury as evidence, even against William Jones, though it purported to have been granted, on his affidavit, without other proof of the fact.
3. It is objected, that the court instructed the jury, that it was competent for them to find against .such of the defendants as were joint-owners of the boat, and in favor of such as were not.
It is necessary to investigate, with some minuteness, the nature of this injury and remedy, to test, fairly, the accuracy of this principle. The doctrine of the common law, is understood to be, that in an action upon the case, against joint-owners of a vessel, for a misfeasance, the action is, in its nature, joint and several: all the owners, or any number of them, may be joined, as defendants, and the plaintiff may recover, against all or part of those who are made defendants; and, in this respect actions ex de-licto, are different from actions ex contractu. That, in actions of the latter description, all persons, jointly liable, must' be joined as co-defendants. But, the practice has undergone a modification, as respects the consequences of a failure to join all. ' In the early cases, in England it was held, that, where the action was founded on contract, all the proprietors must be joined; and, that the non-joinder need not be ead®d in abatement, but was a good ground of non-suit, at the trial.—Boson vs. Sandford.a But, it ap*159pears, that this latter point has since been settled differently, in Rice vs. Shute,a and in Abbott vs. Smith,b arid that the usual practice~ has sul~sequent1y been to require the non. joinder to be pleaded in abatern~nt, or the exception will' be waived. This rule of practice is evidently most salutary; it avbids the danger of defeat in many actions for the same cause, and for the want of information, very often possessed by the defendants alone. By the reasonable requisition that, if ~they will except to the non-joinder of others, as defendants, they shall do so by plea in abatement thereby disclosing- their knowledge of the persons jointly liable with them; the plaintiff need he expo. sed to hut one defeat, and more summary justic~ can be doné.
In the case of Govett vs. Radnidge, et al.c the an~ion was ex ~licto against carriers, for carelessly and negligently damaging the plaintiff's~goods. On no~ ~`ui1ty pleaded, one defendant was convicted, and the Dthers were ac'quitted: a motion being made in ar~ rest of judgment, Lord Elienbo'rough pronounced the Dpinion of the court, and distinguished that case from Bogon, vs. S~ndford, which was in assumpsit; and said, it was not applicable to the on~ before him, which was an action on the case. He tho~ight there was no objection to allowing the plaintiff to allege his gra-vainen, if 1)0 preferred it; as consisting in a breach of duty, arising out of an employment for hire; and to treating such, breach as tortious negligen cc, instead of considering the same circumstances as forrping a breach of contract, implied from the same consideration of hire. He held, tha~t the plaintiff was entitled to judgment against the one defendant, against whom alone the verdict had been found.
*160The cases of Powell vs. Layton;a Maz vs. Rolerts, and Butherton vc. Woodc-all saticti~n the same principle, that in ordinary cases of liability incu rrecl by~c.omrnou carriers, the plaintiffs may elect for their r~medy, actions, either in form ex comtractu, or ex de-licto-that, if the former, it must be in assurnpsit-if the latter, case; and, that the forrii adopted, must be prosecuted and defended, according to its distinct natur~. In the latter case referred to, the court remarked, that it was an action upoi~ the case, against a commor~ carrier, upot~. a duty imposed by the ens-torn of the realm: or, in other words, by the common law.--That a breach of that duty was a breach. of the law ; and, for ~hich an action would lie, fodnded on the common law; which a~tion wanted not the aid of a contract to support it-That the action of assumpsit would also lie, but it ~vas of ~recent date,. compared with the other: and that actions upon the case, were several, as well as joint.
The ease of the Orange Bank vs. Brown et al.d was an action upon the ease, against si~ defendants' as prGprietors of a steam boat, in which they were charged, as corn mon carriers, for the loss of propeyty: the grava~nen was a~legeci to have arisen from a breach of duty. Qua plea in abatement, that there were other proprietors, (naming them,) who were jointly liable;~ and to which the p1ain~iff~ demurred, the plea' was overruled, and a ~espondeas ouster award~d. In the revision of the case, in the Supreme court, Chief Justice, Savage delivered a lumni-nous opinion, (as that of the coi~rt,) taking a corn-prehensive view of the whole doctrine. He adverted to the cases above referred to, and several other~, and said, each form of action, against common car~ *161riers, has its advantages and disadvantages. That, if assumpsit be brought, it may be abated for non-j oinder of proper parties; but, it. survives against the personal representatives; and the common counts may be joined in the declaration.’ If.the action be, in form, ex delicto, and founded on the custom, the suit does not abate /or the non-joinder of all the proper parties; and, in a proper case, a count in trover may be joined.
It was there held to be the true rule, as deduced from all the cases, that an action solely on the custom, is an action of tort. — That, in such action, all, or any number of the owners of a vessel, coach, &c. used by common carriers, may be sued, and judgment may be rendered on a verdict against all or any part, only, of those against whom the action is brought: the plaintiff has his phoice of remedies, either to bring assumpsit or case; that when one or the other action is adopted, it must be governed by its own rules. But if the plaintiff states the custom, and also relies on an undertaking, general or special — as in Boson vs. Sandford, and some others — -• then the action may be said to be ex delicto, quasi, ex contractu; but, in reality, is founded on the contract, and, to be treated as such.
The Chief Justice, in that case, also, corrected his error, in the previous case, of Allen vs. Sewall,a where he had said, that in an action ex contractu, in which there was a non-joinder oí proper defendants, advantage could be claimed of it, otherwise than by plea. He said, he was satisfied, his former opinion was incorrect.
Mr. Jeremy, in his “ Law of Carriers,” (page 117,) says,.“the present usage sanctions the principles and *162adopts the advantages of both forms of actions, by permitting the case to be considered either way,, as arising ex contractu, ox ex delicto, according as the neglect of duty, or breach of “ more express contract is meant to be relied upon, as-the cause of injury;” and that, “ by this means, a multiplicity of actions, and the expense of useless pleas, are avoided; and the plaintiff, as his convenience requires, frames his principle count, so as to join a count in trover therewith, in the one case, or the money counts in the other—according as he may have separate causes of action, to which such counts are respectively applicable.”
Again, he says, (page 124,) “where several carriers are co-defendants, and judgment is executed against one of them, only, there seems to be no doubt but that the action would be so far considered to be founded on contract, as to make the others liable to contribution; notwithstanding the form of the action may have been in tort. But, where the injury arises from the gross negligence or malfeasance of such individual, he cannot compel the others to contribute.”
B ut, as early as 1750, in the case of Dale vs. Hall,a the court of King’s Bench sustained an action of as-sumpsit against a common carrier, by water, on his general undertaking, according to the custom. It was there held, that the law raises the promise, to carry safely, which shows, that the action may be ex contractu; and, that no special promise need Proven : also,'that a defendant, in such a case, is answerable, in all events, except, for losses, sustained by the act of God, or the king’s enemies.b
The result of all these authorities, I conceive *163clearly to be, 'that, in an action against carriers, in form ex delicto, all, or any part of the joint-owners of the vessel or other vehicle of transportation, may be joined as defendants; and that, on trial, all, or any part of the" defendants may be convicted, and judgment-given accordingly. This action, however, is in assumpsit, the nature of which is different: and that, in this form, the practice, under the common law, in England, and in New York and other States of the Union, requires, that all the joint-owners thall be joined as defendants; and, that all must be convicted, or none. Yet, if there be a non-joinder of defendants, even in assumpsit, according to the recent; and, I think most correct practice, it can only be taken advantage of by plea in abatement. Then, unless there be some statute to vary the case, in this State, -.the rule would appear fatal to this verdict, and contrary to the instruction sof the Judge below — ' that, part, only of the defendants could be convicted, if all were not found joint-owners of the boat.
The appellees, however, have referred to the sta- ' tute of 1818,a “for the better regulation, of judicial^™1 proceedings.” The 8th section of which provides, “that whenever any cause of action may exist against two or more partners, trading in partnership,-or against partners of any denomination whatever, it shall be lawful to prosecute an action against any one or more of them.” And the 12th section is, “That where .any suit shall be instituted against two or-more persons, as partners, in any firm, if one or more persons, not partners in said firm, shall have ' been sued as such,- the court before whom such suit is, or shall be pending, shall discontinue said suit against such person or persons as shall appear not *164to be partners in said firm, and proceed to judgment and execution against all or any of the defendants in such action, who shall appear to be partners.”
If the joint owners of this boat, should have been regarded as partners, as far as this suit is concerned, within the contemplation' of the statute, the verdict was a legal and sufficient shewing to the court that some of the persons sued as such, were not partners: the defendants were sued as joint owners and partners in the business of freighting on the boat, and it was attempted to be proven that two of the defendants were not joint owners, consequently, not partners; in this aspect of the case, the statute would sustain the instructions, that it was competent to find against the joint owners only, and in favor of such defendants as should appear not to be proprietors.— There appears to have been no special instructions given, or requested, as to which of the defendants were partners, or what circumstances of contract, or connection of interest in the employment of the boat, would render the joint owners responsible in this action as partners. But as above stated, the defendants were declared against as joint owners and partners in freighting on the boat, and the jury have found against part of them, accordingly.
Then the question recurs whether, from what appears of record, the joint owners of the boat should have been held responsible in the character of partners, within the meaning of the statute, for such le,gal demand as the-plaintiffs could sustain against them on account of the boat.
Kent, J.(in his Commentaries, vol. 3, p. 117,) observes, that “the cases recognise the clear and settled distinction, between part owners and partners— *165that part ownership is but a tenancy in common, and a person, who has only a part interest in a ship, is generally a part owner, and not a partner. As part owner, he has only, a disposing power over his own interest in the ship, and he can convey no greater title. But, there may be a partnership, as well as a tenancy in a vessel;” and, “ whether a person is to . be considered as a part owner, or as a partner, in a. ship, depends upon circumstances. The former is the general relation between ship 'owners, and the latter, the exception, and requires to be specially shewn.” But, further, he says, “They are analogous to partners, and, liable, as such, for necessary repairs'and stores, ordered by one of themselves; and, this is the principle and limit of the liability of part owners.” Also, that “the English and Scotch law, render part owners, in all cases responsible in sólido as partners, for repairs and necessary expenses, relating to the ship, and incurred on the authority of the ■ master or ship’s husband.” He refers to several cases, which sustain his positions so far as they go.
In .the case of Seaton vs. Stanley et al,a one. Johnn M. Taylor, having put a vessel on 'the stocks, contracted with tradesmen, and had the work a little advanced, then sold one half to Stanley, and one fourth to J. Carson; but continued to be the ship’s husband: as such he fitted her out, received the bills of disbursements, and was paid, by the others, their proportions'of the building, (including- the demand of the plaintiff,) and out-fit. While the ship was on her first voyage, Taylor failed — the bill for the painting not having-been paid, and the other two refused to pay it. The action was brought, to recover this demand, against all three. It appeared, that *166■ Stanley and Carson became interested, after the contract for the painting.was made; but, that the most of the work- was done, after they had so become interested ; and after they had engaged a captain for the ship — and the account was charged to the ship.— The court of common pleas (of Pennsylvania) ruled, that, as the work was performed after they had become owners, and appeared avowedly so, it was done on their credit.
Admitting the general principle, that part owners are not, in their general relation, partners, in respect to the property in the vessel, does it follow, that they are not to be regarded as partners, in respect to their liability to others, for goods lost or damaged, or other responsibilities incurred by the vessel? They have an entire community of interest, as respects the profit and loss, in the employment of the vessel, in proportion to their respective interests — as in case of a mercantile firm. Their contracts, for freight, for stores, for assistants, repairs, &c. are numerous and complicated, in like manner.
It is not now made a question whether a joint owner or partner could thus be charged beyond his proportion of the value of the vessel; but whether they are generally chargeable, as partners, to customers and strangers for legal demands incurred by the vessel, during such joint ownership. It appears to be conceded, by all the authorities, that the owners are liable, as partners, for all legal claims for repairs and stores, contracted by themselves or agents; on what principle then can there be a difference as respects demands arising from their breach of contract in other respects.
Most of the litigation on this subject has related to *167the question whether or not the joint owners were partners, in respect to the property in the vessel — That is a matter which, generally,. concerns only themselves, and to be finally adjusted by them; so that it is perfectly consistent that they should' hold the vessel as tenants in common, denying to each other the power of absolute control, or the disposal of the vessel, and yetf be partners in the profit and loss from the employment of the vessel, in the same manner, that several persons might hold a house and lot,’as tenants in common, while they carried on a mercantile concern, as partners, in the house. A consequence of this general relation of tenancy in common, in a vessel, must be, that each joint owner can transfer his interest therein, without giving notice to, or obtaining the consent of, the others, and that this is an implied condition, in any incidental partnership, that may arise from the connection.
The subject has been extensively investigated, in several cases in New York; perhaps the most satisfactorily in the case óf Nichol vs. Mumford,a in the court of Chancery; and again on appeal.b The facts of the case are unnecessary to be noticed, except that the vessel was owned in equal shares between one Stilwell & Mumford, and was fitted out on a circuitous trading voyage, at the joint expense of the parties. In both courts the principle was recognized, that the general relation of joint owners of ships, is thatof tenants in common of the vessel; but that joint owners of the freight and cargo, are joint tenants or partners. The decree of the Chancellor was reversed in the court of errors, on the ground that he had confined the doctrine of partnership, as respects owners of vessels, within too narrow limits. Yef his *168language was, that “Stihvell and the defendant, being equally concerned in the vessel and her cargo, and in the profit and loss of the voyage, there could be no doubt that the account, was' to be taken as between partners, in respect to the freight and cargo; and the only difficulty was, as to the vessel. That, as far as the defendant and Stihvell were to be considered partners, so far the defendant was to be allowed a lien on the partnership property, in respect to the balance due him on the partnership account,” &c.
The court of errors in reversing the decree, declared the joint interest to be “a limited and special partnership, not only as to th car go, freight and profits, thereon, but as to the fitting out of-the vessel.”— See, also, Doddington vs. Hattel,a Smith vs. De Silva and others.b
> These cases, I think, sufficiently establish the principle, that joint owners of steam boats, or other the time being, may be viewed and treated as^pWn&rs in respect to all liabilities'incurred by íijhe.Y^ser^and are amenable to process as such, at the'smt^<J$-ahy one having a legal demand against the;qa,tjiey fall within the reason and influence of pur staluife referred to, and were sued as partners— doííéequently there was no error in the instructions that part, only, of the defendants might be convicted.
4. What was the legal effect of the contract between Sims & Scott, and Hammond & Donaldson?
Can the agreement that the-vendors should execute title at a future day, and after payment of the purchase money — -that they should hold the policy of insurance, as collateral security, and that the consideration should be paid in freight, have the effect to *169continue their responsibility as part owners. Every thing else, toward the final consummation of the .sale, had been accomplished. The interest had actually passed into the possession and use of the ven-dees; and they were exercising the right of ownership, and sharing the profits — one of them being master; and the shipment was proven not to have been made on the credit of the vendors. If they were still liable would, it seem, the vendees must also have' been, so that there was a double responsibility, for the same interest.
The case of Wendover & Hinton xs. Hogeboom and ethers, before referred to, was to recover the 'price of sails, furnished to Á. Yosburgh, the master of a vessel. it appeared, from the register, that from 1804, to 1807, the defendants were the owners. But, in 1805, an agreement was entered into, between the defendants and Yosburgh, by which the latter purchased, and received possession of the vessel,.for his sale and exclusive benefit, auu was to pay^ instalments; and, when this was done, ig of salo was to be executed. The saim wards purchased on a credit; and, aftj pi ration of the term, Yosburgh, represe! himself to be the owner, obtained sion of the term of credit. The purchase* for the vessel, was paid, according to the contract; ■ but the bill of sale urns not executed, until 1.507— when Yosburgh, having sold 1ho vessel to another, obtained t.he bill of sale, to himself, and conveyed to-the other. The Supreme court held, that the defendants, the vendors, were not liable; and, 1 his, ou the ground, that they had ceased, to be owners, when *170the sails were purchased, notwithstanding the register still remained in'their names, and the title had not. been’executed ;'and, that the credit was given to the- blaster. : , •
i'n c,as® bf Leonard vs. Huntington,a asimilar sale liad:beóiv ma'de-"o:f a brig — the payment .to be made by instalments, and the bill of sale to be after-wards executed. The possession and exclusive control immediately, passed to the vendee. In the mean while the register stood in the name of the-original owners. It was ruled, that they were not liable for repairs, made by the direction of the master, as'agent for, and on account of the purchaser, between the time of executing the contract, and the final constam-mation'of it, by the delivery of the .bill of sale; but, that-the person furnishing the repairs,-must look to the purchaser for payment. — That, “the register standing in the name of the defendant, did not, in any manner, determine the ownership of the brig.”
The case of Thorn vs. Hicks,b is, perhaps a more perfect parallel to this; or, if there be any difference, it is in favor of the vendors in this. There, all the profits of the vessel were to be. applied to the payment, until discharged. In that case, the owners of a sloop contracted with Jacob,■‘Acker, that he should take the sloop, and use it, in the freighting business— out of the proceeds, to pay the owners, their respective portions of the price, as fast as he could earn the money, with it: until paid, the legal title was to remain in the renders, and then to be transferred to Acker. He immediately took possession, and run the sloop, until the loss of the articles which had been shipped’ on it — to recover for which, the action was brought against the vendors. The circumstances of
*171the contract and that Acker carried on the business orx his own account, were known to the plaintiff when he made the shipment.
The decision of- the court was, that, the mere circumstance of the naked title to the vessel, remaining in the defendants, to secure the purchase money, for which she had been sold, unquestionably would not render them liable, as owners, on the contracts of the master, (who was, also, vendee,) or for the consequences of his negligence, or unskilfulness. — See, also, Reynolds vs. Tappan.a Thus,it sufficiently pears, there was no error on this point.
5. To what, extent, were the owners liable, as common carriers: and what is the meaning and effect of the exception in the bill of lading of “ the dangers of the river?”
This point involves one of the most important principles known to the law ; hot only as respects its influence on this case, but on the commercial interests and pursuits of the whole community. Few States afford greater facilities to water transportation than this, with its numerous navigable streams, intersecting almost every county a consequence of which is, that a large portion of our citizens, instead of providing means of their own, have adopted the apparently compulsory practice of entrusting to public carriers', an unusual proportion of'their annual pro-' ducts and consumptions. This is the first case that has fully presented- the question for the consideration of this court. It has been elaborately discussed by counsel, and has demanded, and, I trust, received the due attention of the court.
It is objected, • however, among other grounds taken-in argument, that the declaration has not been *172so framed, as to charge the defendants, as common carriers. It will be seen, as already stated, that the declaration alleges, in substance, and almost in the same words, that the defendants below, before and, at the time of this shipment, were 1 lie owners and proprietors of the boat, and co-partners in freighting on the same ; and which boat had been usually employed by them, in carrying and transporting cotton, and other articles 'of merchandise, to and from the port of Tuskaloosa, to the port of Mobile, and other places in this State, for hire,” &c. This, or any other tantamount averment, I consider a sufficient allegation of their character as common carriers; nor can I leave entirely out of view, .the known character and object of steam boats on our rivers. — • The usage and custom of the country, strongly associate with the name and nature of the vehicle, the employment of transporting cotton, and the variety of other articles, constituting merchandise, generally, for compensation, or-hire.
According to the common law, and apart from the exception, usual in the bills of lading, it has been often ruled, that, by the delivery of goods to be conveyed, for hire,'to any one who exercises such public employment, “the law charges the person so entrusted as responsible, at all events, for every injury'' in any other way, but from the acts of God, or of the king’s enemies.” — Coggs vs. Bernarda — Dale vs. Hall.b And, however severe, it appears to »haye |3een so established by the policy of the law, for the security of all persons, the necessity of whose affairs, obliges them to trust persons in that employ, ■in the course of their dealings. In support of the same rule of policy, every thing has been consider-*173eel negligence in the carrier, from'lljc moment he receives the goods, which the law does not excuse; and, to prevent collusion and vexation, and the necessity of going into .circumstances, impossible to be unravelled, the*law always presumes against the carrier, unless he show the injury to have been done by the public enemies, or by such act as .could not happen by the intervention of man — as storms, lightning, tempest, &c. Another ground for this legal rigor, is the reward, which usually bears a doe proportion to the expense and risque.'
Kent,aobserves, it was decided in the reign vCharles If. by the court of King’s Bench, upon great consideration, “ that the master of a vessel employed to carry goods beyond sea, in consideration of the freight, was answerable as a common carrier. That the same doctrine has been recognised. ever since, and it applies equally to the carrier of goods in the coasting trade, from port to. port, and to a bargeman ■ and hoyman, upon a navigable river, and to wharf-ingers — they are all liable in their respective charac- ' ters as common carrriers, and to the whole extent of inland carriers; except so far as they may be exempted by the exceptions in the contracts of the charter party, and the bill of hiding, or by statute.”— Again, he says, b“The books abound with cases of recovery against common carriers, without any fault on their part; and we cannot but admire the steady and firm support which the English courts of justice have, uniformly and inflexibly, given to the salutary rules of law on this subject, without bending to popular sympathies, or yielding to the hardship of a.particular case.” That “according to the modem English doctrine, whi'ch may be appli*174cable with us, carriers may limit their responsibility by special notioo of the extent of what they mean to assume. The goods in that case are understood to be deliveredon the footing of a special contract, and it is necessary, in order to give effect to the notice, that it be previously brought home, to the actual knowledge of the bailor and be clear; explicit and ccnsistent."a In New York, "the English law on the subject has been folly, explicitly, and repeated~ ly recognized in its fullest:extent; and equally in re peot to carriers by land and water, and equally in respect to foreign and inland navigation:" Colt vs. McMichen,b Scrieffelen vs. Harvey,c Elliott vs. Roaeu,d Kemp vs. Caughty.e
It is found, however, that in a later case th'an those referred to, the Supreme coral of that State, made a decision on a diftbrebt principle. It was the case of Aymar vs. Astor,f relating to transportation from New Orleans to New York. It was beld that the master of a vessel was not responsible like a common carrier, fbr all losses, excevt occasioned by the the act of God, or the enemies of the country. That he was reaponsibte only for ordinary neglect, and it was a proper question of fact for a jury, whether the master had used ordinary care and Ailigence in carrying the goods. But this decision is believed not to besound law-:- that it lain direct repugnatce to the various previous decisions of the samo court. It is so considered by Kint,g and by Story.h It is also inconsistent with a still later decision tn the same court.
The case alluded to is Allen vs. Sewell,i it was against the ownerS of a steam boat, as common carriers, to recover for a paoket of hank notes put on board *175the boat at New York to be transported to Albany,' whijfli was not delivered at 1 he latter place. The proprietors constituted a corporation by statute: one. section of which provided, that the members of.-said, corporation should be liable as individuáis, in .the same, manner as carriers at common law for the transpor-. lation of goods,-wares, SfO. Chief Justice Savage,. who had delivered the opinion of «the court.in the; previous case, also delivered it in this.’ 'He cotatíi-d-u ered the question of responsibility uninfluenced :by".', the act of incorporation. His language is,'“I apprh-K hend it v/as the intention of the Legislature, to put;: the defendants upon the sa.me footing as to liability-as if they .-had not been incorporated. Individual liability in the act must be understood in con trad is-» tinotion to corporate liability, and the defendants must therefore be considered responsible to the same extent and in the same manner as if there was no act of incorporation.”. In conclusion, ho says, “the liability of the defendants, is, by statute, the same as that of common carriers; and common carriers are responsible for the safe delivery of all goods intrusted to them or their agents, or servants, unless . the loss is occasioned by the act of God, or of the public enemy. There needs no particular -agreement for hire to render a common carrier liable; when there is none, the carrier may have a quantum meruit for ift” The defendants were held responsible for the packet accordingly.
Judge Story, in his Commentaries on Bailment, . appears to concur substantially with Ch. J. Kent on every point material t.o the decision in this case. — ■ He also say's, (page 323,)' “the rule in reference to carriers by water, established in England, seems to *176be generally nuden-.toed tó be the rulo ¡n America.—It has been recogniised in an ample manner in several of the Slates.” Among the various persons falling within the description of common carriers, he mentions, (samo pago.) owners and masters of ships and. steamboats, engaged in transporting of goods, for persons generally, for hire;” also, “lightermen, hoy men, barge owners, ferrymen, canal boatmen, and others employed in like manner.”
In Pennsylvania, a disposition has been evinced to mitigate the rigor of the rule of 1 he English jurisprudence, in respect .to carriers by watei; yet, the Supreme court of that State, (as well as of others,) has proceeded with great caution and regard to t.he original principles of the-common law: and there, the practice seems not to have been definitely settled.—But, even in that State, it is maintained, that carriers, on inland rjaiers, are clearly liable for every accident which skill, care and diligence, could have Garden vs. LiiiteG a
T T . . , . . . in 'Louisiana, wnere, not tne common, but the ci-vd ^aw; prevails, it is said, the rule is less rigorous ; ancp that the owners of steam boats, have been held, not liable, for a loss occasioned by fire, where proper diligence had been used.b But, our jurispru.-contains á general adoption of the common, in preference to the civil law.
The next inquiry relates to the meaning and ef-feet of the saving, in the bill of lading, by the words, “ the dangers of the river, only, excepted.” The perils of the,sea, and of the river, are so nearly al-’ lied, that they may be considered the same, except, in the few instances, in which the .reason differs— nor is the distinction always clear,.between the dan*177gers of either, and those arising from the “ acts of God, or the public enemies.” The causes to ex- '' cuss the liability of ship owners and masters, besides those of the acts of God, or the public enemies, must be such.as are expressly, provided for, by the contract.”
“ Perils of the sea denote natural accidents, pecuA liar to that element, which do not happen by the in- \ tervention of man; normare to be prevented by hu- ( man prudence.” But an exception to this definition is admitted, in the case of a vessel captured and plundered by pirates. — That has been adjudged a peril of the sea, and'the only exception. A loss by fire, proceeding from any other cause than lightning, is considered, chargeable on the ship owner.a-— See Forward vs. Pittard.b
Cases may occur, in which it is difficult to determine, whether the loss is properly attributable to the perils of the sea, or unavoidable accident, or the negligence or want of skill in the master. If' for instance, an obstruction be generally known, and. the vessel be not. forced upon it, by adverse winds, or tempest, the loss is imputed, to the fault of the master. But, if it be forced upon a rock or shallow, by winds or tempest — or, if the bar was caused by a recent or sudden collection of sand, or other thing, of which there is no visible indication — m a place where vessels of the same size could previously sail with safety — the loss is to be attributed to a peril of the sea; which is understood to be the same as the vis major, or casus fortuitous of the civil law. Yet, it is conceded, that, what is an excusable peril, depends much upon usage, and the sense and practice of meVchants; and, is a question to be *178by the circumstances peculiar to thecase,a — - The English statutes have mitigated the common law, in a few cases of extreme hardship; but, there is no statute to influence our decisions in this respect.
It is clear, that this rigid responsibility, does not •.apply to persons or vehicles, which arenot usu'dhj employed in transporting articles for porsousgenerally, for hire; nor can any one be charged as a common carrier, for undertakings to carry, which were not made by him, nor under his express or implied authority. This I consider the only effect of the two cases cited, in argument, on the part of the appellants. — King & Mead vs. Lenoxb— Satterlee vs. Groat.c
It is- also contended, that owners of steam boats are not to be viewed as common carriors, because they are not subject to action for refusing to carry on any’ particular application. To this, it is conceived a sufficient answer, that the question in res integra, in our courts; and how it will be settled, when properly presented, does not appear. If, however, it be admitted, that they' would not be held to all the strictness of the common law, in this respect, from the presumption, that interest wifl„prompt them to carry as much, and for as many as they safely can; or, for any other reason; it would not follow, that, from receiving one indulgence, they should be entitled to others, more essential, after voluntarily placing themselves in the general attitude of common carriers.
Judge Story, (Com. on B. 330,) recognises the same exceptions, and same definitions thereof, in respect to the liabilities of common carriers, as are *179maintained by the other learned commentator referred to; that the expression, “ act of God,”' denotes natural accidents, such as lightning, earthquakes, and tempests; and, not accidents, arising from, the negligence of man — but, such as are from inevitable necessity — which human prudence could not foresee or prevent. And, that the import of the words, “ perils of the sea,” though, perhaps not exactly settled, and strictly denoting, “ the natural accidents peculiar to that element,” has, in some instances, been held, to extend to events not attributable to natural causes; as, in case of capture, by pirates, on the high seas, and a collision by two ships, where no blame is imputable io either, or, at all events, not to the injured ship.
In illustration'of the doctrine, cases given of the loss or damage of goods, from being mutilated by rats, on board the vessel, and from their gnawing holes through the vessel, so as to let in the water. In such cases, it has been adjudged, that, if the mas- ' ter used all reasonable precaution against such danger, as, by having a cat on board, then the loss is to be attributable to the peril of the sea, or inevitable accident. But, the nice distinction has been maintained, both in England and America, that in case of the destruction of a ship’s bottom by worms,'in the course of a voyage ; the cause did not excuse, on the ground, probably, that (he loss was by ordinary . wear and decay. The rule is further understood! to be, that the immediate, and not remote cause, is j to be considered. . !
It is not sufficient that the immediate cause which]’ could have been avoided by necessary skill and pru-l j dence, was connected with a natural, or an inevitably ¡ *180remote cay.se; the maxim “ causa -próxima non remota \spectatur,” is in some cases applicable to carriers.a
Hence it results, that, in the instructions given by the Circuit Judge, that if the loss was sustained, “in consequence of the sinking of the boat, and. which the employment of prudence and skill on the part of its proper officers could have prevented,” that the owners are liable; and in his illustrations of the rule, as stated in the history of the case, there was no error; on the contrary, it was a sound exposition of the most current doctrine.
.‘6. The only remaining assignment — -that there was error in the instructions relating to the custom of ascending and descending boats, in yielding the points, is thought to require but a brief notice.
The history of the case clearly shows that evidence was introduced for the purpose of proving such a custom. And though that evidence was vague and indefinite, and may have been altogether unsatisfactory, yet as it was before the jury, they had a right .to consider it, and it was competent for the Judge to charge hypothetically upon it. This only, the Judge appears to have done, by saying to the jury, in effect,'that if there be such a custom among masters of such boats, they are bound to observe it, or if they fail, it will be at the peril of the owners. Such a custom would appear to be reasonable and salutary, and to bear a strong analogy to a rule sanctioned by the common law in relation to ships at sea. It is said, that, “ in all cases of collision, the essential question is, whether proper measures of precaution are taken by the vessel, which has unfortunately run down the other. This is partly a question of nautical usage, and partly a question of nautical skill. If all the *181usual and customary precautions are' taken, then it is treated as an accident, and the vessel is exonerated. If otherwise, then the offending vessel and its owners are deemed responsible. Some rules however, which probably had their origin in the customs of navigation, are now adopted as positive rules of law. Thus, the law imposes upon the vessel having the wind free, the1'obligation of taking proper measures to get out of the way of a vessel that is close-hauled, and of showing that it has done so; otherwise the owners will be responsible for any loss which ensues. Therefore, a vessel sailing with the wind, must give way to one sailing by the wind; and the vessel sailing by the wind, is not obliged to alter her p.miycsp CCNrSe- a
I conceive there is much more propriety in, and authority for, the encouragement of such a custom, than the suppression of it; and that, so far as the current of a river may be assimilated to wind on the ocean, the principle is analagous ; consequently, that in the hypothetical terms- of the charge, there was' no error.
My conclusion is, that there is no error in the record, except on the second assignment, which relates to the admission of the register as evidence, without other proof of its authority ; but on- that point the judgment must be reversed and the cause remanded.
Such is the opinion of the court.
Lipscomb, C. J.I have too much respect for the opinion just delivered, to dissent. But I cannot yield to it my entire and unqualified assent. .1 do not know that a case has ever before been decided, where *182joint owners of a vessel have been held responsible as partners for any other purpose than for repairs, to, and provisioning for, the vessel; and that they have been held partners for these purposes, 1 believe, results from a principle of the admiralty law, that the credit is to the vessel and the liability in solido. But if it be law that they can be sued as partners, for losses sustained, still my objections, would not be answered in this case. I hold, that it is of the very essence of every co-partnership, that it should be formed and kept alive by the concurring assent of the partners; that the withdrawal of one member would dissolve the firm, unless that it was by the consent of the others; and that there can be no change of partners, without the Same concurring will of the others. If then, the owners of the steam boat Warrior, were co-partners, Hammond & Donaldson could not have been, brought into the firm in the way they have been, nor could Sims & Scott, have been discharged from their liability. It does seem to me, that to sustain the charge of the court below, we must impose on a part of these defendants, the anomaly of appearing in, and filling different characters, as the case 'progressed. At one time to anwer the objection to Sims & Scott withdrawing, and introducing Hammond & Donaldson, we say that you are not co-partners, but joint owners, or tenants in common, and that a joint owner or tenant' in common, can convey his interest. And again, when the objection to the severance, in the verdict in this action of assumpsit, is let out, Sims & Scott, is to be gotten over; we say, you have been sued as co-par,triers; and the statute of 1818 will save the verdict. That, it authorises a verdict against as many as may be *183found to be members of the firm: and, that‘the discharge, by the verdict of the jurors, of others, who-had-been sued with them, as such, is no objection to the verdict. The character of the act of 1818 should deny it. In my opinion, a liberal'construction, would not apply it to 'those who were only co-partners, by implication. 'The inclination of my mind, is, that they are not partners, but joint-owners; and, that the. fact, that Sims & Scott were sued as such; when they had transferred their interest before the loss accrued, is fatal to this action.
But it is possible, these seeming incongruities might disappear, if I had an opportunity to study the case,- and examine authorities: I have, therefore, only thrown out these suggestions, as the grounds of my doubts and difficulties. As to the extent of the liability of the owners, as common carriers, I fully concur — I have encountered no difficulty’, only as to the remedy. As this case was argued at the last term, and held under advisement, I have not felt myself at liberty to ask my brethren, to hold it up tor a longer ' period — although a continued indisposition has prevented me from deriving any advantage from the de-Tay that has intervened.
20 John. 625.
3Com 113
14 Iohn. R. 20L
4 `Iatin~ 651-2ib. 5 -~3ib 176-.. 300wp240 -SVastiO •-4ib I 30-ib. 226--lb. 169.
4 Dallas, 412.
1 Mason 306, 3 Kent Com. 97.
I»7John308.
2 Camp., N.P. 170.
3 Camp. 456
East.
Camp 89
2 Shower 78; 3mod. su331.
5 Bm~611 King's B.
2 Black. 947, in th~ C. Pleas.
3 East. 62~
5 Bos. 8~ Pal. 565.
6 Bord. S~ Biug. 54.
3 Wend. 158.
2:¡8Wend’
1 Wils 281
tf6carrier 513—6 m! w.C2,and 3
Toul Dig. 449
lDaU29
4John ch R- 522.
20Jolm.R. cu.
l Vez. sr 497.
Cow. 469 Ex parte Parry, f Vezjr.575.
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Id. 170.
10 Id. 1.
11 Id. 107.
6Cow.266
2Corn.473
Stoi~'oiiB. 32:3.
2 Wend. 327.
8 Xtawl. 533; story on 323;Kent’s Com.473.
Kent’s o.
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. deter-^Term-11-
3 Com. 172.
19 John> Rep-.a35;
1 W 071Q, 272.
Story c B. 331, Abbott c Sh. 3. i
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12 East.8~