Opinion of the Court. from him, to make deeds for the property to Haines, Ranney, and Robinson, in accordance with its stipulations. The record shows other pregnant facts. On October 2, 1868, the day before the execution of the Buffalo agreement, Oliver signed a contract in writing, in which, in consideration of the execution of that agreement, he covenanted to convey to Robinson, Haines, and Ranney certain lands not included therein, and, on November 12, 1868, a month after he had seen and read the Buffalo agreement, he executed to Robinson, Haines, and Ranney a deed for said lands, "together with the right to run logs through Devil River over and through any lands owned by said David D. Oliver on the second day of October, 1868, and for that purpose to dam said river, and to flood any lands that may be necessary for the purpose of running logs," etc.; and afterwards, on January 12, 1869, he procured the acknowledgment of his wife to the deed, which was delivered, of course, after that date. This was equivalent to a ratification under his own hand and seal of the Buffalo agreement. Both the agreement by which he contracted to convey the lands and his deed of conveyance are in the record. If Oliver was not satisfied with that agreement, as reduced to writing, he should have assailed it at once. As soon as he learned of the fraud which he alleged had been practiced he should have repudiated the contract, and informed Robinson, Haines, and Ranney thereof. But he did nothing of the kind. He allowed the contract to be carried out by Cunningham without objection. He himself made a deed in pursuance of the contract, and he permitted the vendees to expend large sums of money in establishing and carrying on the business for which they purchased the property. These facts prove beyond question, either that the Buffalo agreement was made upon the terms to which he had given his assent in advance, or if not, that he was satisfied with it as it was written, and ratified and performed it. All the complaints of Oliver, therefore, in reference to the execution of the Buffalo agreement, are shown to be groundless. But the case stated in the bill fails for want of proof of the necessary and vital averment, that these appellants were part Opinion of the Court. ners in the firm of Cunningham, Robinson, Haines & Co., and, as such, appropriated and converted to their own use the property of the plaintiff. The partnership just named was formed under written articles, under which Henry S. Cunningham, George J. Robinson, Calvin Haines, and Philip M. Ranney, and no others, became partners. With the exception of George J. Robinson, every member of the firm named in the articles of partnership testifies that neither Hunt nor Eschleman was in fact a partner. Hunt and Eschleman testify to the same effect. The testimony of George J. Robinson may be laid out of consideration. He is not only contradicted on this point by every other witness who testifies on the subject, but is flatly contradicted by his own deposition and answer in the foreclosure suit brought by Hunt and Eschleman against Oliver. Without going into details, it is sufficient to say that this witness is so thoroughly discredited that his deposition, uncorroborated, is not worthy of attention in settling the facts of the case. It is shown beyond question that neither Hunt nor Eschleman ever agreed to become partners in the firm of Cunningham, Robinson, Haines & Co.; and that they never held themselves out as partners, or contributed anything to the capital of the firm, or derived any profit whatever from its business. They were, therefore, not partners in any sense. Berthold v. Goldsmith, 24 How. 536; Felichy v. Hamilton, 1 Wash. C. C. 491. The only facts upon which the contention of the plaintiff is based that Hunt and Eschleman were partners in the firm are, first, that Cunningham appeared as a partner under circumstances which indicated, as the plaintiff claims, that his contribution to the capital of the firm was the money due on the mortgage to Hunt and Eschleman. This position, it may be observed, is at variance with the bill, which avers that Cunningham did not contribute any capital to the firm. The second fact relied on to show that Hunt was a member of the firm is, that he lent it his credit by endorsing its paper. But these facts are inconclusive. Hunt could aid Cunningham, his son-in-law, by advancing him means and by endorsing Opinion of the Court. paper of the firm of which Cunningham was a member, without himself becoming a partner in the firm. These acts of Hunt were perfectly consistent with his testimony, and that of all the other witnesses, that he was in no sense a member of the firm. Conceding, therefore, that Hunt and Eschleman allowed Cunningham to get a foothold in the firm by authorizing him to promise that the property of the firm should be protected from the Hunt and Eschleman mortgage, and the testimony shows nothing more, this does not prove or tend to prove that they were partners. If they had given Cunningham outright their whole interest in the mortgage, that fact would not have invested them with any rights in the property of the firm, or subjected them to its liabilities. The contention that they were partners in the firm of Cunningham, Robinson, Haines & Co. is based on vague conjectures built on the sayings and doings of others, which neither Hunt nor Eschleman is shown to have authorized or ratified. Much stress is laid by Oliver's counsel upon the alleged fact that the assignment by Cunningham to Hunt and Eschleman, of his interest in Oliver's mortgage to Hunt, Eschleman, and Cunningham, was without consideration and simulated. We regard this assignment as a fact of no weight in this controversy. As Hunt and Eschleman are shown not to have been partners in the firm of Cunningham, Robinson, Haines & Co., the assignment did not injuriously affect Oliver's rights as against them. Whether it was made with or without consideration was a matter of no concern to Oliver. The fact is, and so the record shows, that it was made upon the advice of counsel, and Oliver was told of it by Cunningham early in November, 1868. Its purpose evidently was to avoid any embarrassment to Hunt and Eschleman in case Cunningham became Oliver's vendee of the mortgaged lands, and not to gain any unfair advantage over him. Finally, the evidence shows that all the stipulations in the Buffalo agreement for the benefit of Oliver have been performed by the parties, except when his own conduct has prevented performance; the $4000 has been paid to Hunt on Oliver's account, and Hunt has acknowledged its receipt, and Syllabus. the Hawkins mortgage has been assigned to Hunt according to the contract; all of the lands conveyed by him to Cunningham, and all of the Preston lands, not in townships 28 and 29, have either been conveyed to him by Cunningham or will be upon his demand. There are over 6000 acres of these lands to which he now has a clear legal or equitable title, and which are valued by an uncontradicted witness at $40,000. In short, the Buffalo agreement, which the bill assails, appears to have been made with Oliver's assent, to have been to his advantage, and to have been fairly performed. On every ground for relief alleged in the bill there is a failure of proof. This view renders it unnecessary to consider the effect, as a bar to the relief sought in this case, of the decree in the suit for foreclosure brought by Hunt and Eschleman against Oliver. The decree of the Circuit Court against the appellants Hunt and Eschleman must, therefore, be reversed and the cause remanded, with directions to dismiss the bill as to them. HARTRANFT v. DU PONT. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA. Submitted April 19, 1886.-Decided May 10, 1886. The Repauno was a wooden vessel 37 feet in length at the water line, 8 feet beam, 3 feet 9 inches depth of hold, 2 feet 1 inch draught, with a small engine and boiler; could carry 25 persons in smooth water, and was used to transport her owner and superintendent, and occasionally some workmen across the Delaware, between Thompson's Point and Chester: Held, That, although it is sometimes difficult to draw the line between vessels so small and insignificant that they do not come within the inspection laws, and larger vessels which do come within them, the Repauno was liable to inspection under the statutes of the United States. The case is stated in the opinion of the court. Opinion of the Court. Mr. Assistant Attorney General Maury for plaintiff in error. No appearance for defendant in error. MR. JUSTICE WOODS delivered the opinion of the court. This was an action at law brought by Du Pont, the defendant in error, against Hartranft, collector of customs, to recover $500, that sum being the amount of a penalty unlawfully exacted by Hartranft, as collector, from Du Pont, as the latter alleged. The facts were as follows: The plaintiff resided in Wilmington, Delaware. He was the proprietor of certain powder works at Thompson's Point, upon the Delaware River, across from Chester, Pennsylvania, and distant about two miles. He owned a wooden boat called the Repauno, open except her forward part, which was boarded over. Her dimensions were as follows: Length of water line, 37 feet; length of keel, 34 feet; width of beam, 8 feet; depth of hold, 3 feet 9 inches; draught of water, 2 feet 1 inch. She had a small engine and boiler, and was used by the plaintiff to transport himself and his superintendent across the Delaware River, between Thompson's Point and Chester. Occasionally the plaintiff used the boat to carry over his workmen, sometimes as many as nine or ten. When the water was smooth the boat could carry twentyfive persons. She never carried freight or passengers for hire. She had been inspected, but her papers had expired. When she was seized she was sailing without inspection papers. The plaintiff to get possession of her again, paid to the defendant, under protest, a penalty of $500, and brought this suit to recover it back. The jury returned a verdict for the plaintiff for $500, based upon a finding of the foregoing facts, with point of law reserved, which was stated as follows: "If the court should be of the opinion that a vessel of the size and description, and used as found by the jury, is liable to inspection under the statutes of the United States, the verdict and judgment to be entered for the defendant non obstante veredicto; and if the court should be of the opinion that such a vessel is not liable to such inspection, then the judgment to be |