was guilty of no negligence in regard to that matter, and their falling subsequently would not relieve the defendants from liability if they had been guilty of negligence in not fastening the boat in a proper manner.

Much evidence has been given in regard to the manner in which this boat was loaded, as well as the proper mode of loading boats with brick to be towed. The evidence on this point is conflicting, and it will be for the jury to reconcile it if that be practicable; but if not, then to decide according to its weight and nature, having due regard to the credibility of the witnesses.

It was the duty of the defendants to fasten the boat in a proper manner, to a proper object and with good and sufficient ropes. On this point the only complaint against the defendants, is, that they tied to a brace, which is alleged to have been insufficient. On this question we have had a great deal of testimony-some of which is conflicting—a large number of the witnesses have been called on both sides. The jury must decide between them. It is often easier to form an opinion as to the safety or propriety of a particular act, or course of conduct, after it has been tested, than before; and if the experiment proves unsuccessful, not a few are to be found who take great credit for their superior wisdom and sagacity, by declaring that any person at all acquainted with the business might have foreseen the failure. To determine the true character of an act we must place ourselves in the position of the actor, with all the attending circumstances.

When the defendants went to lash their boat to the steamer, was there any better place to fasten it, than the one selected? Was there a hole in the cross timber, as alleged by the plaintiff, sufficiently large to admit a rope of the proper size? If so, would that have been a better place than the brace?

If there were no such hole, what ought the defendants to have done? If this beam had been used for a similar purpose before, they were bound to know that it was insufficient, or might they infer from that fact, that it would be safe to fasten to it again? Did it show a want of reasonable care and prudence to attach the rope to that beam at the time it was done, or did they start too hastily, or take in the slack rope too tardily, or too rapidly? These are questions of vital importance on this branch of the

case, and the jury will consider very carefully every part of the evidence bearing on these points; and if they should find that the defendants were not chargeable with negligence in any of these matters, there is an end to the plaintiff's case.

But if the jury should be of a different opinion, and find that the boat was sunk by the defendants' negligence; they will next inquire whether the deceased was necessarily engaged in assisting his father to take care of his property, by dipping the water out of the boat, or otherwise. For if he were so engaged, and lost his life by the defendants' negligence, they are responsible, and the plaintiff would be entitled to recover. But if he were not so employed, the jury will, in the next place, ascertain whether he was ordered off the flat-boat by the captain and mate of the steamer a sufficient length of time before the accident, to have enabled him to reach a place of safety.

There is no evidence in the cause tending to show that the defendants undertook to carry the plaintiff's sons as passengers on this flatboat, and one or two witnesses testify that the father, also, told them to go. And this, too, a sufficient length of time before the accident to enable them to leave in safety. But the plaintiff alleges that the boys were there by his direction to assist in dipping the water out of the boat; and therefore, it is urged, their presence was necessary and proper, and that no charge of negligence or want of care and caution, can be alleged either against the father or son. Some of the plaintiff's witnesses testified that they saw the boys dipping out water; while several of defendants' witnesses said there was no water in the boat; and besides, they say that the plaintiff told them after the accident occurred, "that it was all his own fault that the boys were therethat he had no one to blame but himself-that he had intended to let them have a little frolic by riding up the river to Vanport, and then return home in the skiff."

The rule of law is too well settled to admit of doubt or cavil, that no action can be maintained for an injury caused in whole or in part by the negligence, rashness or folly of the party injured. No man can voluntarily expose himself to danger, and then charge the consequences upon another. The law of self preservation imposes upon us all, the observance of the utmost

care and prudence in the promotion of our own personal safety, and the penalty for its violation, must be borne by the delinquent himself, and not by another. This rule is as inflexible and universal, as it is just and wise. If the default or misconduct of a party contributes directly, even in the slightest degree, to his loss or injury, he cannot recover in an action for damages against another, although the latter may have been guilty of negligence, likewise. In other words, where both parties are in default, neither can recover against the other. In such a case the loss or injury must be borne by him on whom it falls.

Let us now apply these rules of law to the case before us.

If the presence of the boys on the boat, or more particularly of David, was not necessary in order to aid his father in managing or taking care of his property; and if he was ordered off by the captain and mate in time to have escaped the danger, but refused to go, and improperly remained in a perilous position, and death ensued, the defendants would not be responsible, although there may have been negligence on their part in fastening the boat.

If the presence of the boys on the boat was not necessary to assist their father in taking care of his property, by dipping water from the boat, then, the father had no right to give permission to his sons to be there; and no permission from him could excuse their disregard of the command of the officers, or justify their conduct, so as to charge the defendants with culpable negligence.

On the other hand, if it was necessary for the deceased to be on the boat, to assist his father in dipping out the water, and if his death was caused by the defendant's negligence, without any negligence on his part or that of his father contributing thereto, then the defendants would be responsible, and the plaintiff would be entitled to recover.

As to the measure of damages, if the plaintiff is entitled to recover at all. The boy is said to have been fourteen years of age; the plaintiff, as his father, would have been entitled to his services until he was twenty-one years old, but he was bound to supply him with necessary food and clothing, &c., in the meantime. What then would the earnings of such a boy be worth over and above

VOL. I.-30

his necessary support and education, making due allowance for sickness, and death from natural causes? This is one element that may enter into your calculations, but I do not say you are bound by that sum; you must estimate, as well as you can, the value of the life lost, for that would seem to be the measure of damages, however difficult it may be to ascertain.

Mutual Negligence-see Conroy's Admrs. v. Penna. Railroad, supra, p. 440 and cases cited in note.

Common Carriers-see Brown v. Clegg, 13 P. F. Smith 51.

In the Quarter Sessions of Huntingdon County.

THE COMMONWEALTH v. JOHN LYON, ANTHONY SHORE, DAVID STEWART, ET al.

(Vol. VI., p. 107, 1858.)

1. When an injury is confined exclusively to a definite number, and it can be affirmed of all others that they have no interest in it—no right affected by it-there is no public right disturbed which the law will undertake to punish by indictment.

2. Where the water of an unnavigable stream is rendered muddy and impure, and consequently unfit for manufacturing and domestic purposes, by works constructed thereon; the wrong done is not to the public, but solely to the owners of the land below the works through which the stream passes, and their remedy is by civil action.

THE defendant was indicted for a public nuisance, in erecting and using a machine to wash iron ore, at Pennsylvania Furnace, on Spruce Creek, about one mile below the source of that stream, and in consequence of which, it was averred that the water for about eight miles below, was rendered impure and unfit for manufacturing and domestic purposes. In that distance the stream passed through a number of cultivated farms, and close by two small villages. The prosecution originated in the presentment of the grand jury, and was tried at January Sessions, 1856, before Hon. George Taylor, President, and John M'Williams, one of the Associate Judges; Judge Stewart, being a brother of one of the defendants, did not sit during the trial.

J. S. Stewart, District Attorney, and John Scott and Thomas P. Campbell, for the Commonwealth; H. N. M'Allister, S. S. Blair, and Wm. Dorris, Jr., for the defence.

Witnesses were examined on the part of the prosecution, to show that the water in the stream was not at any time so clear as it had been many years ago, and that it is often quite muddy; results attributed by the prosecution to the use of the machine. In the defence, it was shown, that the water from the machine is detained one day in a settling pool or dam, then let out into another, where it is detained a night, these pools together covering about four acres. The water thence passed into the dam at the works of the defendants, below which, it was shown, that the water was quite clear where the machine was in use. Specimens from the water taken up as it passed out of each of the settling dams, and at other points on the creek below, were exhibited in glass bottles, all perfectly clear and pure, except what was taken as it passed out of the first settling pool, and in which specimens alone could be discovered any sediment. It was shown, moreover, that the machine had only been in operation about one-fourth of the time embraced in the operations and testimony of the prosecution. And upon this and other evidence, it was alleged that the impurity complained of, if such impurity existed, was to be referred to some other cause.

After the evidence was closed, Taylor, P. J., remarked that when the case was first opened by the District Attorney, he doubted whether the indictment could be sustained, and that the investigation which he had found time to give the question since, satisfied him that it could not be.

Upon this intimation from the Court, the counsel declined any argument of the case, when the law upon the subject was then stated to the jury by

TAYLOR, P. J.-This is an indictment for a nuisance, which is defined to be "anything that worketh hurt, inconvenience or damage." It is a principle of law, and a sentiment of obvious justice, that every man should so use his own property as not to