March City of V. 1877 though there be the absence of special rewards or adTerm. vantages. The distinction is so stated in The City of Richmond v. Long's adm'rs, 17 Gratt. 375. The remarks Petersburg just made by us, concerning the liability of a municipal corporation, apply only to cases arising under the Appleg❜h's adm'r. second branch of the distinction, the principles of which are strongly applicable to a case in which a municipal corporation is a wharf owner, entitled as such to receive wharfage. See Dillion on Municipal Corporations, ch. 23, and notes. We have examined the authorities referred to by the learned counsel for the city of Petersburg, to wit: Home v. Richards, 4 Call 441; Mayor v. Cunliff, 2 Comst. 165; Sh. & Red. on Negligence, §§ 123, 126, 147, 148 and 407; Wharton on Negligence, § 52; City of Richmond v. Long's adm'rs, 17 Gratt. 375; Fowle v. The Common Council of Alexandria, 3 Pet. R. 398; The City of Providence v. Clapp, 17 How. U. S. R. 161; Coe v. Wise, 5 Best & Smith (117 E. C. L. R.) 439; Weightman v. The Corporation of Washington, 1 Black's R. 39; Mayor v. Sheffield, 4 Wall. U. S. R. 189; Withers v. The North Kent Railway Company, 3 Hurlst. & Nor. 969. But without stating the purport of these authorities, it is sufficient to say that we do not consider any of them to be in conflict with what we have stated, as in our opinion the law and the authorities cited by us in support thereof. None of the cases referred to by the counsel are cases of a wharf owner, receiving or entitled to receive wharfage; in which case the obligation of such owner to keep his wharf in repair, and to keep the water adjacent thereto free from obstruction, as before stated, seems to be well settled. And though in an action for negligence in such a case, the burden of proving such negligence, devolves, of course, on the plaintiff, yet proof of the existence of an obstruction in such a case is, generally at least, prima facie evidence of such negligence. 1877. March Term. City of Petersburg V. That it is made the duty of the port warden to see that the navigation of the Appomattox river, in the city of Petersburg, is kept free from obstruction, and Appleg❜h's to attend to the duties of the city, in regard to the city adm'r. wharf, can make no difference. The port warden in this matter is but the agent of the city, and a principal is always bound for the acts and neglects of his agent in the execution of the agency. The same rule on this subject, which applies to a private principal, applies to a corporation, whether ordinary or municipal, and a fortiori to a corporation, which can only act by an agent. Nor can it make any difference that it has been made the duty of the Lower Appomattox company to dredge and remove obstructions from the river at and below Petersburg, under the acts passed December 8th, 1824 (acts 1823-24, p. 45, ch. 48), and March 28th, 1851 (acts of 1850-'51, p. 72, ch. 91). It seems that the city is now in effect the Lower Appomattox company, owning all the stock of that company, and electing its directory, which company, therefore, is a mere agency of the city. But even if it were a separate and independent organization, its obligation to perform a duty, which the city is also bound to perform, on common law principles, would not relieve the city from its common law liability for the non-performance of such a duty. If so, a party affected by the neglect of such duty might be injured by this substituted liability of the company. Nor can it make any difference that the United States have made appropriations to the improvement of the navigation of the river, and have occasionally dredged it. While such operations are beneficial to VOL. XXVIII-44 March 1877 the city, they do not relieve it from its common law Term. liability in regard to the city wharf. City of Petersburg V. That no wharfage was actually received by the city in this case, and that it does not usually charge wharfage in such cases, can make no difference. It is suffiAppleg❜h's adm'r. cient that the city was entitled to make the charge, and that wharfage was due by the vessel owner. He could not know that no wharfage would be received of him. He came to the city with his vessel, laden with a cargo of coal consigned to merchants of the city, and not being able to go up at once to the wharf nearest his consignees, he moored his vessel to the city wharf, relying on the city for the safety of his vessel, expecting and intending of course to pay the legal wharfage. The court is further of opinion that the circuit court did not err in overruling the demurrer to the fourth count of the declaration. Without setting out the substance of that count here, it is sufficient to say that it sets out a good cause of action, and is free from just ground of objection. The demurrer to the third count was sustained, and there was no demurrer to the first or second count. The court is further of opinion, that the circuit court did not err in giving the six instructions asked for by the plaintiff; nor in refusing to give the first, second, third and fourth instructions asked for by the defendant; nor in giving the instruction which it gave of its own motion. These instructions, taken altogether, correctly expounded the law, and were not calculated to mislead the jury. (The court here read the instructions, and commented briefly upon them.) The court is further of opinion, that the circuit court did not err in overruling the motion of the defendant to set aside the verdict and grant a new trial upon the ground that the verdict is contrary to the law and the evidence in the cause. It is not necessary 1877. March V. Appleg❜h's to decide whether the certificate is of evidence or of Term. facts. Regarding it as a certificate of facts so far as it City of is possible so to regard it, and even viewing it most Petersburg favorably for the defendant, still we think it fully sustains the verdict. The plaintiff's vessel while lawfully admr. lying at the city wharf, struck against a pile at the bottom of the river, about two and a half feet from the wharf, which penetrated the bottom of the vessel, and caused it to sink. It is probable from the certificate of facts, that the said pile was a part of the wharf, at least originally. But whether so or not it evidently had been there a long time. It was buried more than two feet in the sand, projected from a foot and a half to two feet above the bottom, and leaned from the direction of the wharf towards the opposite side of the river. There had been no dredging at that point, nor within two feet of the wharf, either by the defendant or by the Lower Appomattox company, or the United States, or any other agency. Due diligence on the part of the wharf owner required that there should be such a dredging at reasonable intervals of time; for the existence of such an obstruction occasionally might reasonably have been expected, and the risk of injury to vessel owners who are invited to come to the wharf required the exercise of such diligence. Had there been such dredging during the year next preceding the injury complained of, the obstruction which occasioned it would no doubt have been discovered, and might have been removed in time to prevent the injury. In fact it could be seen from the surface of the water at low tide. Upon the whole, we are of the opinion that there is no error in the judgment, and that it ought to be affirmed. JUDGMENT AFFIRMED. 1877. March Term. Richmond. GRIGSBY fals. v. SIMPSON, ass'nee, &c. April 5. In an action on a bond by the assignee of a deceased obligee, the obligors are incompetent witnesses to testify in their own behalf under the statute. Code of 1873, ch. 172, % 22. . This was an action of debt upon a bond by Harrison M. Simpson, assignee of Alfred Moss, deceased, against A. S. Grigsby, R. H. Cockerille, and two others, surviving obligors of themselves and J. C. Gunnell. The bond was for $6,600, bearing date the 26th of April 1859, and payable one year after date. It was made to Alfred Moss, and was by him assigned to Simpson on May 9th, 1859. The pleas were payment and usury. The case was tried on the 4th of June 1873, when there was a verdict and judgment for the plaintiff'; and the defendants applied for and obtained a writ of error and supersedeas to the judgment. On the trial the defendants took three bills of exception to rulings of the court excluding evidence tendered by them. The grounds of these exceptions are sufficiently set out in the opinion of Judge Christian. Meredith and Claughton, for the appellants. S. F. Beach, for the appellee. CHRISTIAN, J., delivered the opinion of the court. |