It has often happened that an action by a boat owner against the charterer for alleged breach of contract results in a trial of a cause of action for tort, presented by the joinder of the alleged tort-feasors, under the fifty-ninth rule, upon the petition of the respondent. In some cases the libelant alleges, at the outset, the commission of a tort by a third party, for which, as surety or guarantor, the respondent is charged to be liable for a breach of the charter, and of his duty as charterer to return the boat in good order. In such cases the tortfeasors are treated as agents of the charterer, who is thereby charged with responsibility for the tort and alleged to be liable in contract therefor. But in the present action the libelant has alleged a cause of action in contract against the charterer and causes of action in tort against the alleged tort-feasors, who were outside parties, in no sense agents, and with no privity of contract or business relation with the charterer. The libelant has thus brought action on contract against the charterer, with whom he had the contractual relation, and has also alleged negligence against third parties, who might be brought in by the charterer. under the fifty-ninth rule. In so doing he seeks to unite an action upon implied contract (as where there is an express agreement to return the boat in good order) with an action for tort. He thus unites the principal in the tort action (the alleged tort-feasor) with the charterer, who could be called upon only in case the tort-feasor fails to make good the damage caused by his own negligence. The libelant, while seeming to sue the charterer directly, has in reality named the charterer as a proper party, rather than one who is necessary to the maintenance of the tort action, and the issues of negligence must be tried out between the libelant and the third parties. The relations of the parties do not show any liability on the part of the charterer, Merritt & Chapman Company, for the consequences of any of the acts of the Dalzell Company or the Vauban, and the Merritt & Chapman Company could be held, therefore, in this case only if no negligence is shown on the part of the Dalzell Company or the Vauban. The libelant seeks, by a sort of subrogation, to stand in the shoes of the Merritt & Chapman Company with respect to an act of negligence to property in the custody of the Merritt & Chapman Company at the time. [3] But it is also alleged that the Merritt & Chapman Company were guilty of some negligence in transporting the boat to the berth at the end of Pier 9 and of leaving her moored in that position, contrary to the provisions of section 879 of the Charter of the City of New York. Inasmuch as the boat was left there temporarily, in order to be at the disposal of other persons, and in order that the captain of the barge could put his boat at the disposal of the steamer when this was desired, it is impossible to hold that the Merritt & Chapman Company are liable for the consequences of a situation arising three days later, and after the slip had been cleared, so that the barge could have been carried around out of danger into the end of the slip. Wright & Cobb v. New England Navigation Co. (D. C.) 189 Fed. 809, affirmed 204 Fed. 762, 125 C. C. A. 129. [4] But the act of the scow's captain in leaving her after warning, and after sufficient opportunity to take her from the end of the pier, raises a question of another nature. In the first place, while the scow may have been demised (that is, completely surrendered to the charterer for the purposes of the charter, except in so far as the master of the scow represented the owner in looking after those matters which cannot be delegated from the owner to the charterer), such an oral charter does not make the captain the agent of the charterer in all respects, nor would a formal written charter, with the covenant to return in good order, make the captain of the scow the servant of the charterer in these matters. He was the servant or agent of the owner (that is, the libelant) in keeping the boat afloat, handling her lines, observing the method and amount of loading, and maintaining her in positions where she would not be endangered by matters which could be prevented through his activities. In so far as these very duties might concern the use of the scow, he would also be the agent of the charterer, but as between the owner and the charterer his authority is that of the owner. If, therefore, the captain of the Stella was intoxicated, or refused to observe obvious precautions, and if he neglected to look out for his master's property at a time when danger was apparent and imminent, and when care on his part would have protected the property, there would be reason for holding that his negligence would affect the right of the libelant to recover. But beyond this is the proposition presented by the statute just referred to. The word "adjacent" means lying next to or adjoining. An "adjacent pier" to any particular pier must mean the next pier; that is, the pier on either side of the adjacent slip. The statute says that, if a boat is lying at a wharf, it shall be liable for damages by a vessel entering an adjacent dock or pier. As was said in the case cited, this does not make it illegal to lie at the end of a pier, nor can a vessel be held responsible for a collision out in a river with a boat which is not entering the adjacent slip. [5] But in this case the Stella was certainly lying at a pier head (that is, a wharf) adjacent or next to the pier for which the Vauban was intended. Her captain was bound to recognize the danger of a large vessel entering that slip, particularly as the Stella projected several feet into the slip. We have, therefore, the situation of a vessel illegally maintaining a berth, where she received injury from the very matter prohibited by the statute. The Stella, therefore, was liable for the consequences of her own fault; but this did not absolve the Vauban, and the tugs which were handling the Vauban, from avoiding negligence on their own part. If The court finds from the testimony that the Dalzell tugs undertook to move the steamer up river at a time when, for the entire voyage, the wind was blowing at the rate of from 50 to 55 miles an hour. the tugs were able to handle the Vauban on the voyage up the river, they could have proceeded further with the steamer in case it proved dangerous to enter the slip. The strong and sudden squall from the west caused the maneuver in question; but, according to the oral testimony and diagram made by the Dalzell captains, the direction from which they claim this squall came would have been the northwest. west wind, as was inadvertently stated by the captain of the Raymond, A would blow against the port quarter of the Vauban, and not against her port bow, as would be necessary to drive her in the direction claimed by the witnesses. This leads the court to conclude that the wind did not overcome the control of the tugs, until they appreciated the fact that the Stella was not going to move, and until they decided, as the steamer gradually drifted in, to go ahead and to place the Vauban into the slip, without further loss of time and without waiting until a tug could be sent to move the Stella for them. The strong wind made it much more convenient to proceed at once into the slip, and as the captain of the Stella seemed to need to be aroused, and the Stella evidently was disregardful of the rights of the Vauban and of her own liability for damage by a boat entering the slip where the Vauban was going, the Dalzell tugs took the matter into their own hands and disciplined the Stella, but were evidently negligent in failing to avoid the infliction of unnecessary damage in so doing. The libelant may have a decree for half damages against the owners of the Dalzell tugs. Inasmuch as the pilot on the Vauban did not interfere or prevent the maneuver, no costs will be awarded the Vauban, but the libel against the Vauban will be dismissed. The libel against the Merritt & Chapman Company will be dismissed, with costs. WELLMAN v. BETHEA. (District Court, E. D. South Carolina. May 30, 1917.) 1. EXECUTORS AND ADMINISTRATORS 453(4)-ACTIONS-JUDGMENT-COLLATERAL ATTACK. In an action against an administrator, in which he pleads plene administravit, a judgment paid by him, which was regular in form and based upon the verdict of a jury, cannot be attacked, whatever inferences may be indulged regarding the bona fides of the account on which such judgment was recovered. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1897-1908.] 2. DEATH 11-ACTIONS FOR CAUSING DEATH-NEW CAUSE OF ACTION. The statutory right to sue for wrongful death is a new cause of action, independent of any cause of action for the tort committed by defendant, which the deceased may have had during his life, or would have had, if he had survived the injury. [Ed. Note. For other cases, see Death, Cent. Dig. §§ 10, 15.] 3. STATUTES 181(1)—CONSTRUCTION—ASCERTAINING INTENT. In construing a statute, the court must ascertain the intention of the Legislature; but such intention must be ascertained from the words used in the statute and the subject-matter to which it relates. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 259.] 4. STATUTES 188-CONSTRUCTION-MEANING OF LANGUAGE. When words used in a statute have a well-settled legal meaning they will be given such meaning; but, when they have no such meaning, it will be presumed that the Legislature used them in the light of their usual and ordinary meaning. [Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 266, 267, 276.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 5. EXECUTORS AND ADMINISTRATORS 261-PAYMENT OF CLAIMS-PRIORITY— "DEBT." Under the South Carolina statute fixing the order of payment of debts and charges against the estates of decedents, by providing five classes, and specifying, as the fifth class, bonds, debts by specialty, and debts by simple contract, a judgment recovered against the administrator for wrongful death, founded upon a statute of another state, is not a “debt," and is not of equal dignity and entitled to prorate with a judgment upon a contractual cause of action, especially as it is doubtful whether Civ. Code S. C. 1912, § 3955, giving a right of action for wrongful death, gives any such right of action against the personal representative of the wrongdoer.` [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 944-974. For other definitions, see Words and Phrases, First and Second Series, Debt.] 6. STATUTES 184-CONSTRUCTION-ANNULLING PURPOSE OF LEGISLATURE, While, if a statute is open to construction, the courts will not construe its language so as to nullify its purpose, this rule is to be resorted to only for the purpose of ascertaining the Legislature's intention, and will not justify reading into the statute something not expressed by its terms. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 262.] 7. EXECUTORS AND ADMINISTRATORS 111(6)—EXPENDITURES-COUNSEL FEES. Where, at the time judgment was rendered against an administrator, his counsel exhibited an account by the administrator showing a balance in his hands of $380.40, and proposed to plaintiff's counsel that they take judgment for that amount, or that it would be turned over to plaintiff, which offer was not accepted, and subsequently the judgment was opened, and the administrator was permitted to plead plene administravit, on a showing that $380.40 was all the unadministered assets, the subsequent payment by the administrator to his counsel of $250, in addition to $250 previously paid, could not be justified. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 456.] 8. EXECUTORS AND ADMINISTRATORS 261-PAYMENT OF CLAIMS. While, under the South Carolina statutes, a judgment recovered against an administrator for wrongful death is not entitled to share in the assets of the estate with debts due by simple contract, any balance remaining in the administrator's hands after the payment of such debts is subject to the payment of such judgment. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 944-974.] At Law. Action by Sarah A. Wellman against John C. Bethea, administrator. Judgment for plaintiff for a part of the amount sued for. See, also (D. C.) 213 Fed. 367. Mitchell & Smith, of Charleston, S. C., for plaintiff. CONNOR, District Judge. The pleadings, exhibits, and admissions of the parties, disclose the following facts: On March 2, 1911, plaintiff, Sarah A. Wellman, in behalf of herself and her children, instituted an action in this court against defendant, "John C. Bethea, clerk of court, as administrator of the estate of John H. Bethea, deceased," for the recovery of $25,000 damages, alleged to For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes have been sustained by reason of the death of her husband, Ora E. Wellman, caused by the wrongful and unlawful act of defendant's intestate. The homicide occurred in the state of Delaware, and the suit was based upon the cause of action given to plaintiff by the statute in force in that state. Defendant, in his answer, denied the allegations contained in plaintiff's complaint. At a term of this court held on January 7, 1913, plaintiff recovered judgment against defendant, in his representative capacity, for the sum of $4,000. Execution was issued. against defendant, in his representative capacity, for the sum of $4,000. Execution was issued against defendant administrator, and was returned unsatisfied, except for the sum of about $23. Plaintiff, on June 28, 1913, instituted an action against defendant John C. Bethea, personally, and the Gulf & Atlantic Insurance Company, surety, on his official bond, for the recovery of the balance remaining due and unpaid on said judgment, alleging that defendant John C. Bethea, having failed to plead plene administravit, or insufficient assets, was liable personally for the full amount of said judgment. Defendant, in his representative capacity, on May 25, 1914, instituted a suit in this court, in equity, alleging that he had, prior to the rendition of the judgment of January 7, 1913, administered and disbursed the assets which came into his hands as administrator of John H. Bethea, except the sum of $380.40, and that since the rendition of the judgment he had disbursed, in due course of administration, this amount, less $35. He further alleged that his failure to plead plene administravit in the action against him was due to excusable mistake, etc. This cause, upon defendant's answer, came on for hearing, whereupon a decree was passed March 19, 1915, permitting the said John C. Bethea, administrator, to enter his plea in the original action. This decree was affirmed. 228 Fed. 882, 143 C. C. A. 280. The liability of defendant, as administrator, to plaintiff, is dependent upon his making good his plea-that he has fully, and in accordance with the statutes in force in South Carolina, administered the estate of his intestate. His accounts, filed in the probate court, show that, on November 27, 1910, he received, as administrator, $2,214.64. He disbursed in cost of administration and commissions, $115.24; counsel fees in the defense of plaintiff's action, $250; and action of Mrs. Medlin against him as administrator, $25. On March 2, 1911, being the same day on which this action was instituted, Mrs. M. E. Medlin instituted an action in the court of common pleas of Dillon county against defendant, as administrator of John H. Bethea, and in her complaint she alleged that his intestate was indebted to her for "board and service" during the years 1904 to 1909, inclusive, at the rate of $20 a month, aggregating the sum of $1,440; that she had presented her account to defendant and he refused to pay same. Defendant, on April 5, 1911, filed his answer to the complaint, averring that he had not sufficient information to form a belief as to the truth of the allegation of the complaint, and therefore denied same. On October 26, 1911, the cause was brought to trial before the court and a jury, when a verdict was rendered against defendant for the full amount claimed by her, and judgment rendered accordingly. On December 1, 1911, defendant paid said judgment, together with $4 cost, |