Opinion of the Court.

insuperable difficulty with the application of that principle of construction to the present instance is, that by rejecting the exceptions intended by the legislature of Georgia the statute is made to enact what confessedly the legislature never meant. It confers upon the statute a positive operation beyond the legislative intent, and beyond what any one can say it would have enacted in view of the illegality of the exceptions. We are, therefore, constrained to hold that the provisions of § 1512 of the Code of Georgia cannot be separated so as to reject the unconstitutional exceptions merely, and that the whole section must be treated as annulled and abrogated by § 4237 of the Revised Statutes.

We are also of opinion that the claim for pilotage in the present case is defeated by other provisions of the Revised Statutes. Section 4401 provides that " All coast wise sea-going vessels, and vessels navigating the great lakes, shall be subject to the navigation laws of the United States, when navigating within the jurisdiction thereof; and all vessels, propelled in whole or in part by steam, and navigating as aforesaid, shall be subject to all rules and regulations established in pursuance of law for the government of steam vessels in passing, as provided by this Title; and every coastwise sea-going steam vessel subject to the navigation laws of the United States and to the rules and regulations aforesaid, not sailing under register, shall, when under way, except on the high seas, be under the control and direction of pilots licensed by the inspectors of steamboats."

And § 4444 is as follows:

"No State or municipal government shall impose upon pilots of steam vessels any obligation to procure a State or other license in addition to that issued by the United States, or any other regulation which will impede such pilots in the performance of the duties required by this Title; nor shall any pilotcharges be levied by any such authority upon any steamer piloted as provided by this Title; and in no case shall the fees charged for the pilotage of any steam vessel exceed the customary or legally established rates in the State where the same is performed. Nothing in this Title shall be construed to annul or affect any regulation established by the laws of any State

Opinion of the Court.

requiring vessels entering or leaving a port in any such State, other than coastwise steam vessels, to take a pilot duly licensed or authorized by the laws of such State, or of a State situate upon the waters of such State."

According to the agreed case the Saxon was a coastwise seagoing steam vessel, was not sailing under register, and, at the time when the defendant in error tendered his services, and, subsequently, when she passed up the river into Savannah, was under the control and direction of a pilot licensed by the United States inspectors of steamboats. She was, therefore, at the time, piloted as provided by that title of the statute, so that she was lawfully exempt from any pilot charges levied by any State or municipal government. The section expressly excepts coastwise steam vessels from the regulations established by the laws of any State requiring vessels entering or leaving a port, in any such State, to take a pilot duly licensed or authorized by the laws of any such State, or of a State situate upon the waters of such State. The owners of the Saxon were, therefore, at liberty to employ any pilot, licensed under the author. ity of the United States for the particular service in which he was engaged, without regard to the provisions of the Georgia Code requiring it to accept the services of the pilot first tendered, or, in case of refusal, to pay pilotage therefor. The engagement of the services of the pilot actually taken, by previous contract, was equivalent to keeping him on board for that pose during the whole voyage, as he was, in fact, under pay from its commencement; and had he been actually on board at the time the defendant in error tendered himself as pilot, we think the right of the vessel to reject the offer could not have been reasonably questioned.

pur

For these reasons the judgment of the Supreme Court of Georgia is

Reversed, and the cause is remanded with instructions to take further proceedings therein according to law and in conformity with this opinion.

Syllabus.

CLAY & Another v. FREEMAN & Another.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF MISSISSIPPI.

Submitted January 12, 1886.-Decided April 26, 1886.

The surviving partner of a partnership after payment of the partnership debts, may retain the partnership property until the indebtedness of the firm to him is paid, if no proceedings are taken against him to enforce a settlement: in such case if the statute of limitations runs against anybody, it is against the representatives of the deceased partner.

A and B became partners in 1855 for the purpose of carrying on a plantation in Mississippi owned by them jointly as partners. B furnished the larger part of the capital, and received the firm's notes for the amount advanced by him in excess of A's advances. A died in 1859, and his administrator and B carried on the partnership business until the outbreak of the war, without a settlement. In July, 1867, B died, having been for some time administrator of A (but without receiving any property or filing any account), and leaving surviving his sole heir and daughter P, who became of age in November, 1869. On the death of B, C was appointed administrator of each estate, and obtained a decree of court for sale of the real estate. It was struck off at the sale to P in December, 1869; the amount of the purchase money was credited on the partnership notes; and P entered into possession; but the whole proceeding subsequently proved to be illegal and invalid, and the supposed sale and transfer to be void. In 1876 dower in the estate was allotted to the widow of A in a proceeding in which P contested her right to it. In 1880 the widow began suit, which is still pending, to recover damages for dower, and about the same time the heir at law of A, having come of age, sued to recover an undivided half interest in the real estate, claiming that the partnership debts were outlawed. P then brought this bill in equity to settle the partnership business, and to charge all the real estate, including the undivided interest of the heir at law of A therein, and the interest of the widow, with the partnership debts. Held: That the statute of limitations could not be set up by the heir at law of A or by the widow against P; that P was the proper party to bring the suit; that the cancellation of the sale restored P to her rights as partnership creditor; and that while the court would not set aside the assignment of dower, no further exaction for detention would be enforced.

In equity. The case is stated in the opinion of the court.

Mr. William L. Nugent for appellants.

VOL. CXVIII-7

Opinion of the Court.

Mr. Frank Johnston and Mr. J. E. McKeighan for appellees.

MR. JUSTICE BRADLEY delivered the opinion of the court.

This case was commenced by bill in equity filed in the court below in July, 1882, by Pattie A. Clay and Brutus J. Clay, her husband, citizens of the State of Kentucky, against Lucy C. Freeman and C. L. Freeman, her husband, and David I. Field, citizens of the State of Missouri. As the bill was dismissed on demurrer, and the appeal is from the decree of dismissal, it is necessary to state its principal allegations. The facts alleged are substantially as follows:

In 1855 Christopher I. Field, (of whom the complainant, Pattie A. Clay, is only child and heir-at-law,) and his brother, David I. Field, (of whom the defendant, Lucy C. Freeman, is the widow, and the defendant, David I. Field, is only child and heir-at-law,) jointly purchased a plantation in Bolivar County, Mississippi, called the Content place, for the purpose of carrying it on in partnership, under an agreement by which said David was to possess, manage, and control the partnership property for the firm, and the partners were to be equally interested in the property and business. They were also equally to bear losses and expenses, and to share equally the profits realized; but Christopher, being a man of large wealth, did not have the same necessity for calling upon the firm profits as David did. The style of the partnership, as advertised by the partners, was David I. Field & Co., or D. I. Field & Co. The plantation and its equipment of slaves and implements cost from $60,000 to $70,000, the lands alone costing about $54,000. Of this capital Christopher advanced $15,541.26 more than David, which advance was made in the years 1856, 1857, 1858, and 1859, and four partnership notes were executed by David and delivered to Christopher as evidence of these advances, which notes were as follows, namely:

1. "$73853. On or before the first day of January, 1858, the concern of David I. Field & Co. will be owing C. I. Field the sum of seven thousand three hundred and eighty five

Opinion of the Court.

dollars for money advanced the concern for payment for the Leach land and cash advanced for the purchase of negroes in K'y in the summer of 1856, and to bear six per cent. interest from maturity, or when due. This 23d Dec'r., 1856. "D. I. FIELD & Co. [SEAL.]"

2. "The concern of David I. Field & Co. is owing to C. I. Field the sum of five thousand six hundred and sixty-six and two-thirds dollars (it being that amount advanced by him of payment to Kirk, balance on concern note due him 1st day of January last); he is to be paid six per cent. for said amount from date until paid. This 20th March, 1857.

"DAVID I. FIELD & Co."

[On this note is endorsed a credit as follows:

"$243.50.

Rec'd on the within note the sum of two hundred and forty-three 10 dollars on settlement of articles purchased at D. I. Field's sale of personal property by C. I. Field and D. I. Field & Co., this 1st day January 1861.

"C. I. FIELD."]

3. "Due C. I. Field, or order, the sum of eleven hundred dollars ($1100), it being money this day advanced by paying to Wm. Kirk, through his draft on Hewitt, Norton & Co., of New Orleans, this fifth day of June, 1858.

4.

"D. I. FIELD & Co. [SEAL.]"

"BOLIVAR, June 13th, 1859.

"Due C. I. Field, or order, one thousand three hundred and eighty-nine dollars, for value rec'd, on settlement to this date (to this date).

"D. I. FIELD & Co."

David I. Field (whom for the sake of brevity we will call D. I. Field) conducted the plantation, and lived on it until his death, which took place on the 11th of September, 1859; and from that time until the commencement of the late war, it was