pied by Justice Hunt, who now sits on the right. The other judges then arose and bowed to their colleague, and the regular business of the court was resumed.

Supreme Court of California.

[October Term, 1877.]

[No. 5720.]

[Filed December 10, 1877.]

YOUNG vs. HOGLAN.

PRACTICE AND PLEADINGS-SETTLEMENT OF PARTNERSHIP ACCOUNTS.-A settlement of copartnership accounts can not be made in a collateral action without the partners are made parties.

ATTORNEYS WHEN THEY EXCEED THEIR AUTHORITY.-Nor can the court enter a judgment upon a report of a referee to state the accounts between partners who are not parties, notwithstanding the agreement of attorneys to that effect.

Powell & Rogers were partners in the raising and sale of sheep. Powell sold to defendant Hoglan 1200 sheep for $3000. Hoglan paid $1500 cash and agreed to pay to Rogers the balance, provided that amount should be due Rogers from Powell upon a settlement of their copartnership accounts, or to pay any amount found due Rogers upon the settlement.

The claim against Hoglan was assigned to the plaintiff Young, upon which he brought suit.

The court below found the facts as above stated, and, as a conclusion of law, said that the liability of the defendant depended upon the result of a settlement of accounts between Powell & Rogers. Afterward the attorneys on each side consented to the appointment of a referee to take testimony and report what amount, if anything, was due from Powell to Rogers. The referee reported that nothing was due; whereupon the court entered judgment for the plaintiff. The defendants claimed that the suit should have been dismissed because prematurely brought as no cause of action existed until after a settlement of the accounts between Powell & Rogers.

The Supreme Court holds that the judgment based upon the report must be reversed, because Powell & Rogers were not parties to the action, and orders the pleadings amended—making them parties.

By the court.

A settlement of the partnership accounts between Rogers and Powell, as contemplated at the time of the sale of the sheep by Powell to Hoglan, can only be made in a proceeding to which both Rogers and Powell are parties.

Judgment reversed and cause remanded, with directions to permit the parties to amend the pleadings so as to make Rogers and Powell parties to the action.

[No. 5559.]

[Filed December 10, 1877.]

BABCOCK vs. BRIGGS.

ATTACHMENT, WHEN ALLOWED-EXPRESS OR IMPLIED CONTRACTS, WHAT ARE NOT.

An attachment will not lie against a party whom it is alleged won money or valuable articles at gambling with the agent, clerk, or depository of the owner of such moneys. Such a debt

is not a contract, express or implied, and an attachment will not be allowed under the provisions of the Code of Civil Procedure.

Complaint alleges plaintiffs were copartners in mercantile business; defendants copartners, and as such the keepers and proprietors of a gambling estab lishment in San Francisco, Cal.

That, from February 21, 1875, to September 30, 1876, Alfred Ver Mehr was in the employ of plaintiffs as clerk, and during such time was intrusted by plaintiffs with the collection, receipt, and possession of large sums of money, in gold-notes and checks, and in United States gold coin, the property of plaintiffs.

That on divers days and nights, between said 21st day of February, 1875, and September 30, 1876, said "Ver Mehr unlawfully lost at play, to said defendants, and said defendants unlawfully won at play, from said Ver Mehr, certain gold-notes, and certain checks, and certain money in gold coin of the United States, amounting in the aggregate to thirty-five thousand dollars, in United States gold coin, all of which gold-notes and checks and moneys and gold coin were the property of these plaintiffs, and that the said Alfred Ver Mehr never had or received from the defendants, and the defendants never gave said Alfred Ver Mehr any value or any valuable consideration for said gold-notes, or for said checks, or for said moneys, or for said gold coin, or for said thirty-five thousand dollars in United States gold coin."

That before suit brought plaintiffs demanded of defendants said money, etc., but defendants neglected and refused to deliver the same to plaintiffs, or to pay the value thereof; "but the defendants wrongfully detain the same." Plaintiff demands judgment for $35,000, gold coin, and costs.

Lloyd & Newlands, for defendants, moved the court to discharge the attachment issued in the action, "on the ground that the writ of attachment in said action was improperly and irregularly issued, and because said action is not upon a contract, express or implied, for the direct payment of money."

The court ordered the attachment to be discharged, "upon the ground that the case made in the complant in said action was not one in which attachment is allowed under the provisions of the Code of Civil Procedure."

R. F. MORRISON, District Judge.

Plaintiff appealed.

MCALLISTERS & BERGIN for plaintiff.
LLOYD & NEWLANDS, for defendant.

By the court.

The facts stated in the complaint do not make a case which would support a writ of attachment under the provisions of the Code of Civil Procedure.

Order affirmed. Remittitur forthwith.

United States District Court.

(District of California.)

[DECEMBER 20, 1877.]

JOHN BROWN ET AL. vs. R. D. CHANDLER.

EXCEPTIONS TO LIBEL.

Where a vessel is stranded and the voyage broken up by the fault or fraud of the master, the owner is liable for three months' extra wages, to the seamen. (Sec. 4526, R. S., construed.)

But the owners will be discharged by abandoning the ship and freight, or if they be totally lost.
E. P. COLE, Proctor for libellant.

MILTON ANDROS, Proctor for respondent.
HOFFMAN, J.

The question presented by the exceptions in this case is whether the owner of a vessel is personally liable to seamen for damages occasioned by the breaking up the voyage by the willful and criminal acts of the master in voluntarily stranding her, omitting to get her off, and subsequently selling her.

It is well known that by the maritime law the right of the seaman to wages was dependent on the earning of freight. But this rule was subject to the exception that where the earning of freight has been prevented by the fault of the owner or master the wages will be due.

So, also, where the services of the seaman have not been rendered, a distinction is recognized between cases where he is prevented from rendering them by perils of the sea and those where they have not been rendered by reason of the act of the master or owner. (Hoyt vs. Wildfire, 3 Johns. 512.)

In the construction of the Act of 1803 the same principle was uniformly recognized. That Act required the master to pay three months' extra wages to the consul whenever a vessel was sold and her company discharged in a foreign port. But it was held, notwithstanding the comprehensiveness of the language, that the statute did not apply to cases of forced sales rendered necessary by the perils of the seas. (The Dawn, 1 Davies, 125.) By the Act of 1856 (ch. 127, § 26) the master was relieved from the payment of extra wages in cases of wrecked or stranded vessels or ships or vessels condemned as unfit for service. The same provision is re-enacted in R. S. § 4583. Under this statute it has been held that the exemption did not apply to cases "where the enterprise is terminated by a loss or condemnation for which the owners are directly responsible by their own neglect." (The Wenonah, 22 Int. Rev. Rec. p. 51.)

The reasoning of Mr. J. Fox in the case last cited seems quite unanswerable and his construction of the law is sustained, as he justly observes, by the provisions of sections 4559, 4560, and 4561, which in substance require the consul, when satisfied, on the report of inspectors, that the vessel has been sent to sea unsuitably provided in any essential or important particular, by neglect or design, and not through mistake or accident, to discharge such of the crew as desire it, and to exact three months' extra pay in addition to their wages.

From the foregoing it will be seen :

1. That the ancient rule that freight is the mother of wages did not apply to cases where the voyage was lost or freight not earned through the act of the master or owner.

2. That the statute requiring three months' extra wages to be paid to the crew whenever the vessel was sold in a foreign country was held not to apply to sales rendered unavoidable by an imperious necessity for which the master or owner is not responsible.

3. Conversely, where the sale has been occasioned by the fault of the owner, as where the vessel was unseaworthy at the commencement of the voyage, the extra pay will be due notwithstanding the statute, which provides that "no payment of extra wages shall be required upon the discharge of any seaman in cases where vessels are wrecked or stranded or condemned as unfit for service." (R. S., § 4583.)

But it is urged that the case at bar is covered by the provisions of section 4526. That section enacts that "In cases where the service of any seaman terminates before the period contemplated in the agreement, by reason of the wreck or the loss of the vessel, such seaman shall be entitled to wages for the time of service prior to such termination, but not for any further period."

It is insisted that this provision is explicit, imperative, and controlling. But this language is no more explicit or comprehensive than that of section 4583, under which it was held, as we have seen, by Mr. J. Fox, that ship-owners were not exonerated from liability for extra wages when their ship was lost or condemned on account of their own fraud or willful negligence.

"When we consider," says Mr. J. Fox, "the nature of the seaman's case as construed by the courts of this country: that the law implies a seaworthy ship on the part of the owner, and that wages were always recoverable by the sailor if, by the neglect of the master or owner, the freight of the ship was lost; and also remember the construction given by the courts to the Act of 1803, that owners were exonerated from liability although, within the letter of the Act, where vessels were sold because the damage she had sustained from the perils of the sea had rendered her sale necessary within the meaning of the maritime law, but were held accountable for extra wages if the vessel was condemned and sold for unseaworthiness at the commencement of the voyage, I can not but think that a literal, strict construction of the exemption provided for by section 4583 was not the intention of Congress, but that it was rather its purpose only to exonerate the master and owner from this liability when the enterprise is determined by a loss or condemnation of the vessel for which her owners are not directly responsible by their own neglect." (The Winonah, ubi sup.)

It is urged by the advocate for respondent that this decision only applies to cases where fraud or negligence is directly attributable to the owners, and not merely to the master.

Such undoubtedly was the case before the court. But the reasoning of the learned judge, as well as the principles of the maritime law, do not recognize any such distinction.

"The maritime law," observes Mr. Ch. Kent, "very equitably distinguishes between the cases in which a seaman's services are not rendered in consequence of a peril of the sea and in which they are not rendered by reason of some ille

gal act or misconduct or fraud of the master or owner interrupting and destroying the voyage. In the latter case the seamen are entitled to their wages, and the rule of the French ordinance is just and reasonable.

The Marine Ordinance, Liv. III. Tit. IV. Art. VII., provides that where the voyage is broken up, retarded or prolonged by the act of the master or owners they will be responsible to the seaman for their damages.

On this article Vahn observes that "if the breaking up or the retarding or prolongation is caused by the act of the master he shall indemnify the crew, for which indemnification the owners also are bound as responsible for the acts of the master. (1 Vahn's Com., p. 700.)

And this is but an illustration of the general rule of the maritime law by which the owners were responsible for the acts of the master as well ex delicto as ex contractu. (Ord de la Marine, Liv. II., Tit. VIII., Art. II.)

If, then, the owners would under that law and by a just construction of section 4583, R. S., be responsible to seamen for their wages and extra wages in cases where the freight or the voyage is lost by the fault of the master, is section 4526 to be construed as restricting that right in all cases of the wreck or loss of the vessel to the wages due at the time of the disaster?

It is evident, from the terms of section 4526 and the section which precedes it, that their principal object was to abolish the ancient rule of the sea which made the right to wages depend upon the earning of freight by the vessel. Section 4525 so enacts in terms. The succeeding section provides that in case of wreck and consequent termination of the seaman's service he shall be paid up to the time of such termination, but not for any further period.

We have already seen that by the maritime law the owner was liable for the faults of the master as for his own.

Did the statute intend to modify this rule and pro tanto take away rights from the seaman which under the maritime law, the rigor of which they were mitigating, he would have possessed?

If so, we can only gather this intent by construing the statute according to its very letter. And yet we have seen that in the construction of analogous statutes language equally explicit and comprehensive has been held to be subject to exceptions plainly required by justice or the general rules of law.

If

Even with respect to the section under consideration it is not denied that an exception must be admitted in cases where the owner is personally in fault. so, why not also where the fault is that of the master, for whose acts the owner is responsible? The more rational and just view of the intention of Congress would seem to be, that the two sections were intended to enlarge and not to diminish the rights of the seaman. That so far as the rule of the maritime law which made the right to wages dependent on the earning of freight, that rule was to be abolished or so far modified as to allow him to recover wages for the period of his actual service. But the ancient rule was not to be altered to his disadvantage, and that where by that rule he was entitled not only to his wages earned but to an indemnity for the breaking up of the voyage, his rights were to be preserved intact.

All the statutory provisions on this subject would thus be made consistent and harmonious.

The seaman would not be entitled to wages where the voyage or vessel is lost by force majeure, except for the service already performed.