Cheraw and Salisbury Railroad Company v. Broadnax.

it, and it would certainly be competent to defend against it upon that ground.

In Strong v. New York Firemen's Ins. Co., 11 Johns. 323, it was declared to be the duty of the master, in cases proper for a general average, to cause an adjustment to be made upon his arrival at the port of destination, and that he had a lien upon the cargo to enforce payment of the contribution. When the general average is thus fairly settled in the foreign port according to the usage and law of that port, it is binding and conclusive as to the items, as well as to the apportionment thereof upon the various interests, though settled differently from what it would have been in the home port. 3 Kent Com. 244. If however it was not a proper case for a general average and was a partial loss only, the adjustment assuming a case for general average when none existed is not binding. Lenox v. United Ins. Co., 3 Johns. Cas. 178; Powers v. Whitmore, 4 M. & S. 141; 3 Kent Com. 214. In Chamberlaine v. Reed, 13 Me. 357; s. C., 29 Am. Dec. 506, which was an action between the owner of the goods shipped on board a vessel as freight and the master of the vessel, it was held that an adjustment and general average of a loss made on the protest and representation of the master, did not preclude the owner from showing that they were not liable to contribution because the loss was occasioned by the culpable negligence or want of skill of the master. The legal operation and only effect of the bond and the adjustment is in each instance, we think, to fix the measure of the defendants' liability, and secure payment of the amount, unless it shall afterward appear that it was not a case for general average.

Assuming the right to impeach the bond for want of consideration, the defendants offered to show by the deposition of James S. Edwards and other witnesses, that the schooner Mattie A. Hand at and before the time of her departure from the port of Philadelphia on the voyage described in the narr. was unseaworthy. The offer was in direct proof of the defendants' first special plea. It may be that this plea, even if sustained by the proof, is insufficient in law to bar the plaintiff's recovery; if the plaintiff thought it insufficient he should have demurred, but he joined issue and went to trial upon it, and he cannot prevent that from going to the jury, on part of the defendants, which tends to prove the issue thus formed. If a party accepts an issue tendered, the question thus raised is one that must be tried and upon which evidence is necesVOL. LVIII — 93

Shisler v. Baxter.

sarily admissible. In Howell v. McCoy, 3 Rawle, 256, it is held that the plaintiff has a right to support his cause of action by proof of the facts, stated in the declaration, and this can only be prevented by a demurrer, which admits the truth of the facts as set forth. The defense, if any he has, will avail the defendant, when the whole case is before the court and jury, by a direction on the law, arising on the facts. In Moore v. Houston, 3 S. & R. 175, Chief Justice TILGHMAN says: "If the question were simply whether the judgment of the Court of Common Pleas should be reversed or affirmed, there would be little difficulty in deciding it. If any of the rejected evidence was competent the judgment cannot stand. And without doubt part of it was competent, because it was in direct proof of the defendant's plea, and therefore admissible, whether it was matter sufficient in law, to bar the plaintiff's action or not. If the plaintiff thought it insufficient to bar him he might have demurred; but having joined issue, he cannot prevent that from going to the jury which tends to prove the issue on the part of the defendant." Rawlins v. Danvers, 5 Esp. 38; Thompson v. Barclay, 27 Penn. St. 263; Philadelphia & Reading R. Co. v. Ervin, 89 Penn. St. 71; Seymour v. Hubert, 92 Penn. St. 499, are cases in support of the same principle. The exclusion of the evidence offered was in our opinion erroneous.

The questions on cross-examination as to the rotten timber being found in the vessel at Norfolk were rightly refused, they were not upon matters proper for cross-examination, and the answers were inadmissible at that stage of the case.

The first, second and fourth assignments of error are not sustained, but upon the third assignment the judgment must be reversed. Judgment reversed and a venire facias de novo awarded.

The plaintiff, a market gardener, bought Wakefield cabbage seed, of the defendant, in 1881, which produced a good crop. The next year he asked him if he had "" any more Wakefield cabbage seed, same as in 1881." The defendant replied that he had some of the old stock, and produced some seed in

Shisler v. Baxter.

envelopes, part of the old stock, which the plaintiff bought. It was impossible to distinguish Wakefield cabbage seed by its appearance. The plaintiff planted the seed, and the crop was not Wakefield cabbage, and was almost worthless. Held, that the defendant was not liable in damages.*

A

CTION for damages for implied warranty of seed. The headnote states the facts. The defendant had judgment below.

William W. Wiltbank and James Crowe and Henry Reed, for plaintiff in error.

Frank S. Simpson, for defendant in error.

MERCUR, C. J. In this case there is no evidence of any intended fraud or deceit by the vendor, nor of any express warranty. Mere representations as to the quality of the article sold do not constitute a warranty. Wetherill v. Neilson, 20 Penn. St. 448; nor in itself is it evidence of a warranty. McFarland v. Newman, 9 Watts, 55; s. c., 34 Am. Dec. 497. Unless there be fraud or warranty the purchaser takes the risk of the quality. Whitaker v. Eastwick, 75 Penn. St. 229. So in a sale of personal property on inspection, and where the vendee's means of knowledge are equal to the vendor's, the law does not presume an engagement by the vendor that the thing sold is of the species or kind contemplated by the parties. Lord v. Grow, 48 Penn. St. 88. That case is very similar to the present. There the intention was to buy and to sell spring wheat, but the kind actually delivered turned out to be winter wheat. The purchaser claimed to recover on an implied warranty that the wheat sold was spring wheat, but this court held otherwise. Among the numerous authorities leading to the same conclusion are: Fraley v. Bispham, 10 Penn. St. 320; s. c., 51 Am. Dec. 486; Selser v. Roberts, 105 Penn. St. 242; Ryan v. Ulmer, 108 Penn. St. 332.

In the present case the purchaser asked for the seed which the vendors had kept over from the previous year. The latter thereupon laid out on the counter before the purchaser some of the papers containing the seed. They were the identical packages remaining over from the previous year. Each party had an equal opportunity of inspecting them.

*See Best v. Flint (58 Vt. 543), 56 Am. Rep. 570; Poland v. Miller (95 Ind. 387), 48 Am. Rep. 730; Jones v. Georg (66 Tex. 149), 42 Am. Rep. 689.

Pennsylvania Coal Company v. Winchester.

Although the declaration charges a false and fraudulent sale by the vendors, yet no evidence was given tending to prove any fraud or intended deceit, nor is any averred here. They sold it just as they had bought it, in entire good faith. The vendee had just as much knowledge in regard to the kind and quality of the seed as they had. In such case, in the absence of express warranty, the exemption of liability of the vendors is too well settled to need any further citation of authorities.

Judgment affirmed.

PENNSYLVANIA COAL COMPANY V. WINCHESTER.

(109 Penn. St. 572.)

Water and water-courses - patent — right to minerals under bed of stream

island.

A patent entitling the patentee to coal and minerals under the bed of a navigable river from low-water mark on one shore to the same line on the other, does not entitle him to the minerals under an island within the bounds of his patent, which was subject to application and sale under laws existing before the law under which his patent was granted, and still in force.

AJECTMENT. The head-note states the point. The plaintiff had judgment below.

Andrew H. McClintock and Henry M. Hoyt, for plaintiff in

error.

Henry W. Palmer and George K. Powell and D. L. Patrick, for defendants in error.

TRUNKEY, J. Prior to 1848, statutes had been enacted providing for application, survey and grant of islands in the river Susquehanna. They were not subject to appropriation at the prices paid for other lands, but the value of each was to be ascertained by the board of property, and in no instance to be sold for less than eight. dollars by the acre. What shall be deemed an island for purpose of sale by the Commonwealth, is defined in the statute; it must "be at least four feet high above common low water, containing at least forty perches of ground exclusive of rocks, be susceptable of cultivation in grain or esculent roots in common seasons, by their growing and becoming maturely ripe." Sand or gravel bars, or ac

Pennsylvania Coal Company v. Winchester.

cumulations of mud, which do not come under said description, shall be a part of the public highway. No warrant of survey shall be for a less quantity than the whole of the island-the sale and grant cannot be limited to the ground, exclusive of rocks, susceptible of cultivation in grain or esculent roots.

The act of April 11, 1848, provided for application, survey and grant of a quantify not exceeding one hundred acres of the bed of any navigable river, beginning at a point designated in the application, at low-water mark on the bank of said river and pursuing the course of said river at low-water mark to a designated point, thence at right angles across said river to low-water mark, thence along the shore at low-water mark to a point opposite the place of beginning. A warrantee under this act has the "right to dig and mine for iron, coal, limestone, sand and gravel, fire-clay and other minerals," but he takes no title to the soil or sand or any thing in the bed of the river. His grant is confined within the limits of low-water mark, and this recognizes the principle that a grant of land by the Commonwealth, bounded on one side by a large navigable river, vests in the grantee the entire land to the line of low-water mark. The riparian owner has the right of soil to ordinary low-water mark of the river, subject to the public right. of passage for navigation, fishing and other proper use of the highway to the mark of ordinary high water. Wood v. Appal, 63 Penn. St., 210. Between high and low-water mark, the title of the riparian owner is qualified, being subject to the right of navigation over it and improvement of the stream as a highway. Wainwright v. McCullough, 63 Penn. St. 66. In that case it was said that the land lying between the low-water line of the island as fixed by the commissioners, and the top of the island bank, is a part of the island. And in Hartley v. Crawford, 82 Penn. St. 478, it was again remarked that the riparian rights of the owner of an island attached to the land between the bluff bank to which the survey came and the ordinary low-water mark; and subject to the rights of the public, the owner of the island might use the sandy or pebbly beach or shore. Although the principle may not have been necessary to the decision in Wainwright v. McCullough, or in Hartley v. Crawford, and therefore not authoritatively ruled, its assertion shows how naturally it comes into view in considering the bounds of an island as defined in the statutes providing for sales of that kind of land. No difference is made in the laws providing for