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among the gold mines of this new El Dorado. He had no cause of complaint against the master or the vessel, and he deserted purely front
motives of interest in the calculation of finding a more lucrative employment. therefore, a desertion not only without justification, but without palliation.
In every age of the maritime law a wanton and wilful desertion before the termination of the voyage has been held to work a forfeiture of all wages antecedently earned. In the case of Gifford v. Kollock, Law Reporter for May, 1855, p. 21, I thought, though this was the general rule, that the law was not imperative on the court to inflict the entire forfeiture; but when the desertion was attended by extenuating circumstances, not amounting to a justification, these circumstances might be taken into consideration, and the penalty mitigated to a reasonable deduction from the wages, or even to a case of mere compensation and indemnity to the owners for the actual damage sustained. Perhaps when the desertion is proved precisely according to the requirements of the act of 1790, ch. 29, § 5, Stats. at Large, vol. 1, p. 133, it may be otherwise. It may be that the act makes it a statute penalty, and by its terms takes from the court all power of qualifying the offence, and reducing the penalty in consideration of palliating circumstances, that do not constitute a full justification. The facts of the case did not call for the expression of an opinion on that point. But to the doctrine held in that case I still adhere. In the present, however, there were no extenuating circumstances. The desertion was not only without justification but without palliation.
But there is another admitted fact to be adverted to in this case, and it is the only one that creates any difficulty in my mind. This boy was shipped by his father while he was a minor. During his minority he was earning wages for his father's benefit, and working out his contract. while that continued his father must be held so far responsible for his conduct, that any act in breach of the contract which legally affected the right to wages is imputable to him. But the desertion took place on the 21st of November, 1850, and the boy arrived at the age of twenty-one on the 17th day of the preceding August, and thence ceased to be under the parental power. He then ceased to earn wages for his father, was entitled to his own earnings, and became alone responsible for his own acts. The shipping contract made by his father then terminated by operation of law, and up to that time there had been no forfeiture.
The father had then acquired all the rights he could acquire under the contract, and as he had no longer any right of control over his son, he ceased to be responsible for his acts. How then could his rights be affected by any subsequent acts, or how can there be a burden of a contract that no longer existed, but which was dissolved by operation of law? It appears to me that there is but one possible condition of the contract by which he could be so affected.
It is a principle of common sense and natural justice, as well as of law, that contracts have their effects, both of benefit and burden, of right and obligation, only between the parties. No one can stipulate or promise but for himself. A promise that another shall give a particular thing, or do a particular act, is simply void, conferring no right and producing no obligation. It is an exception to the rule, when the person whose act is promised is under the control of the promisor; as if he promises the acts of a hired servant in his employment, the promise binds him as if he had promised his own act; or if he promises the acts of a minor, being an apprentice or a child, as in this case. 6 Touiller, Droit Civil Français, No. 136. The libellant, in his character of a parent, had the right of control over his son, and if he engaged by this contract that his son should faithfully serve the owners as a cooper in the voyage, as he must be considered to have done, he will be equally affected by a breach of this engagement by his child as if he had promised his own personal act and violated his promise, and must bear the legal consequences of such violation. But his responsibility lasted only as long as his contract, and that terminated with his son's minority.
But though the simple promise of the act of another is merely void, and neither binds the promisor nor the person whose act is promised, by varying the form of the engagement, it may become binding on the promisor. The distinction is succinctly and clearly expressed in the Institutes of Justinian: “ If one promises that another shall give or do anything he is not bound, as if he promises that Titius shall give five pieces of gold. But if he promises that he will take care or cause that Titius gives it, he is bound.”
Si quis alium daturum facturumve quid spoponderit, non obligabitur, veluti si spondeat Titius quinque aureos daturum. Quod si effecturum se ut Titius darel, spoponderit, obligatur. Lib. 3, 203. He then promises not for another but for him. self, and as persons are not presumed to trifle in business
transactions with nugatory promises, a person will easily be presumed to mean by such a promise that he will be surety for the one whose act is promised, when the circumstances are such as to favor the presumption and not to bring it into doubt. Pothier, Obligations, No. 56. In stating the general principle that one can stipulate or promise but for himself, I have borrowed the language of the Roman law, because it is put into a neat and succinct formula. But the general rule is as true in our law as in that of Rome, for it is founded in the nature of things. There are exceptions in both, but they do not reach the present case.
It was, doubtless, competent for the libellant to engage in the event that the voyage should not be ended when his son attained his majority, and to bind himself as a surety for him that he should continue in the vessel and faithfully do duty until the final termination of the voyage, and to make himself responsible for any forfeiture his son might incur, and it is only by such an engagement that he could be affected by acts of his son after his parental authority ceased. The owners might have stipulated for such a promise, and it would have been binding on the promisor. But the circumstances must be peculiar to authorize the presumption of such an engagement without direct evidence, and surely it will not be presumed against probability. Are the circumstances of this case such that an engagement of this kind can fairly and reasonably be inferred ? I think not.
To authorize such a presumption, we must suppose that the parties at the time of the contract contemplated the contingency that the voyage might not be completed until after the son had passed his minority. But more than four years of his minority yet remained, and it is agreed that the ordinary length of whaling voyages in 1846 was three years, and that they never exceeded four. The supposition is, therefore, not only without probability but against it, and there is no direct evidence tending to show that the possibility that the voyage might outlast the boy's minority occurred to the minds of either party. The case then stands on the naked facts and the law applicable to them. My opinion is, that the obligations of the shipping contract made by the father terminated, by the understanding of the parties, as they certainly did in law, when the son attained his majority; and that the rights acquired by the father, during his minority, cannot be affected by any act of the son after the parental authority terminated, and he became sui juris.
Decree for libellant.
Supreme Court of Pennsylvania.
Notes of Recent Cases in Supreme Court of Pennsylvania.
These notes are condensed from the opinions of the courts as published in the Legal Intelligencer. This very useful little paper is the gazette of Philadelphia, and publishes, by authority, all legal notices required to be made in the county where it is issued. It gives also all the public laws as soon as passed, and early notes of decisions. Its value to readers at a distance would be much increased by inserting a short abstract of the facts in all cases where the opinion of the court does not sufficiently show them. This is now done in some cases, but not universally.
Paul v. CARVER.
Deed — Construction. The general rule that title passes to the centre of a street or road applies where the measurements of the deed bring the line to the side of a street or road. Union Burial Ground y. Robinson, 5 Whart. 18, explained.
ALBRIGHT v. LAPP. A justice of the peace has no power to punish contempts sum marily by commitment.
SANFORD v. The CatawISSA, WILLIAMSPORT, AND ERIE RAIL
Carrier — Ilegal contract. A contract made by a railroad corporation, by which they agree to give an express company the exclusive right of the railroad for all express purposes for three years ; held, void, and ordered to be cancelled.
MOANEY v. Cook.
Action. One who erects an unlawful obstruction in a navigable stream, and thereby occasions damage to another, cannot defend by showing that the party injured was, at the time of injury, unlawfully engaged in worldly business on the Lord's day.
BURR v. BURR.
Statute of Limitations — New promise. Action on a promissory note held by the plaintiff, and signed by her son, the defendant's intestate : Plea the statute of limitations. The plaintiff proved a payment of money to her by her son, within the time of limitation, and under the following circumstances : The parties were together in a room, and the plaintiff said, “ Israel, can thee let me have a little interest-money on the note I hold of thine ?" He said: “How much would thee like, mother?” She said : “Four or five dollars.” He gave her seven, which she said was sufficient for the present. There was no evidence that the plaintiff held any other note of the defendant's intestate. Held, reversing the judgment of the district court of Philadelphia, that the debt to which the payment was to be applied was not sufficiently identified.
WILLIAMSON v. The TRUSTEES OF THE FIRE ASSOCIATION OF
Fire insurance - Prohibited articles. Three adjoining houses were insured in one policy, for a stated sum on each; all were injured by the explosion of gunpowder kept in one of them, without the knowledge or assent of the insurers and without the knowledge of the owner of the houses, which were let to separate tenants. By a condition annexed to the policy, the keeping of gunpowder was forbidden.
Held, the insurers were not liable for the injury to any of the houses.
Main v. WARNER.
Fraudulent conveyance~ Existing creditor -- Judgment lien. A conveyance of real estate from a father to his son in part consideration that the son should sustain his father and mother, is fraudulent in law against the existing creditors of the father, unless it is shown that the father is still possessed of property sufficient to discharge his debts.
One whose demand against the grantor was based upon a letter