pretended; and, if the pretence were set up, it could not be supported for a moment. Union Steamship Co. vs. New York and Virginia Steamship Co., 24 How. 313. Some attempt was made to impute fault to the owner of the vessel because she was delayed in Boston for the purpose of repairs, but the explanations are satisfactory and the position wholly unsustained. Neither party had any knowledge of the dangerous character of the article, so that it may be said that there was no actual fault on either side, except such, if any, as the law implied from the nature of the transaction. The charterers put up the ship as a general ship, and under the terms of the charter-party the ship was at their sole use and disposal to ship such lawful goods as they might think proper, and it was expressly stipulated that their stevedore should be employed by the owner in Boston. The stowage of the mastic was made in the usual way, and it is not denied that it would have been proper if the article had been what it was supposed to be when it was received and put on board. Want of greater care in that behalf is not a fault, because the master had no knowledge or means of knowledge that the article required any extra care or attention beyond what is usual in respect to other goods. Proper precautions in respect to the packing therefore had been taken if the goods had not been of dangerous character, which was wholly unknown to the master or the owner of the ship, or his agents. But damage was occasioned, and loss and expense were incurred, and the only question is who must suffer. Where the owners of a general ship undertook that they would receive the goods and safely carry and deliver them at her destined port, it was held in Brass vs. Maitland, 6 Ell. & Black. 481, that the shippers undertook that they would not deliver, to be carried in the voyage, packages of goods of a dangerous nature, which those employed on behalf of the shipowner might not on inspection be reasonably expected to know to be of a dangerous nature, without expressly giving notice that they were of a dangerous nature. Such was the principle laid down in that case, but the reasoning of the Court in support of the rule is even more applicable to the present case. Although those employed on behalf of the shipowner have no rea owners. sonable means during the loading of a general ship to ascertain the quality of the goods offered for shipment, or narrowly to examine the sufficiency of the packing of the goods, the shippers, says Lord CAMPBELL, have such means, and it seems more just and expedient that, although they were ignorant of the dangerous quality of the goods or the insufficiency of the packing, the loss occasioned thereby should be cast upon the shipper rather than upon the shipAccordingly he held that the shippers, and not the shipowner, must suffer, if from the ignorance of the former a notice was not given to the latter which they were entitled to receive, and from the want of notice a loss had arisen which must fall on either the shipper or the owner of the vessel. Undoubtedly that rule, as is well contended by the libellant, rests upon the same principle as that which is applied in other commercial transactions of an analogous character. Where damage is sustained in a case not falling within the category of an inevitable accident, and neither party is in actual fault, the loss shall fall on him who from the relation he bears to the transaction is supposed to be possessed of the necessary knowledge to have avoided the difficulty. Baron PARKE applied that rule in the case of Gibson vs. Small, 24 Eng. L. & Eq. 40, with great force and rigor in the case of a voyage policy, holding that the law did not regard exceptional cases, but wisely laid down a general rule, which is a most reasonable one in the vast majority of voyage policies, that the assured implicitly contracted to do that which he ought to do before the commencement of the voyage. Judge SPRAGUE approved the rule upon the ground that it ordained that the loss should fall upon the party who generally had the best means of informing himself as to the character of the article to be shipped, which undoubtedly is the foundation principle on which the liability rests. Were the rule otherwise it might, as was well said by the district Judge, encourage negligence, and even induce the general shipper or charterer to try experiments with articles unknown to commerce at the expense of the shipowner. In view of the whole case I am of the opinion that there is no error in the record. The decree of the District Court is accordingly affirmed with costs. For the foregoing very able and interesting opinion we are indebted to the courtesy of Mr. Justice CLIFFORD. The subject is not one which we have before had occasion to examine, and we infer, from the paucity of references to other cases, both here and in the case of Brass Maitland, 36 Eng. L. & Eq. R. 221, where the matter is very extensively discussed, both at the bar and upon the beach, CROMPTON, J., dissenting, that the question has but seldom arisen upon the direct point here ruled. It must therefore be settled by the application of the nearest analogies. And in this view it seems to us not entirely free from doubt. It seems clearly settled that to the extent of the shipper's knowledge he is clearly bound to disclose any and all grounds of apprehension, belief, or suspicion, of any dangerous character in the articles shipped. The omission to do so would be clearly fraud, as has often been held in regard to common carriers. Hutchinson vs. Guion, 5 C. B. N. S. 149; Hudson vs. Baxendale, 2 H. & N. 575; Redfield on Railw. 303, and cases cited. And in this case, where the defect is latent and equally unknown to both parties, the loss must of necessity, so far as the goods are concerned, fall upon the owner. But beyond that, where loss and injury occurs to the shipowner or carrier, through some defect in the article equally unknown to both parties, and where it is the result, not of any defective quality, either in the article or the package, but results solely from the effect of change of temperature necessarily incident to the voyage, which was equally open to the observation of both parties and which might have been anticipated by both, but for inattention or want of experience, it seems to us there may be some ground to question, whether the loss incident to the transVOL. XL-10 action must not fall upon both parties. in proportion as they have been injured, by what, to them, must be regarded as an accidental result. This is clearly so in regard to property under lease, where no special stipulations are made. If the property, be it real or personal, is destroyed, or rendered unfit for the use of the lessee, without the fault of either party, the loss for the term falls upon the lessee and for the remainder upon the lessor. But we have been struck with the force of the suggestion that, as a rule of policy, it is better the loss in cases like the present should fall exclusively upon the shipper. It is clear where the contract, or charter-party, contains any stipulation as to the quality, state, or lawfulness of the goods to be shipped by the charterer, he thereby assumes all risk in regard to those matters. And the unquestionable tendency of the more recent decisions is towards making the party upon whom the selection of goods is devolved, either by the terms of the contract, or the relation of the parties, responsible by way of an implied contract for all latent defects in them, that is for all defects equally unknown to both parties. This question, in regard to the implied warranty of the fitness of particular goods for any given purpose, is lucidly and, as it seems to us, very satisfactorily discussed, in the Exchequer Chamber in the recent case of Bigge vs. Parkinson, 8 Jur. N. S. 1014 (1862), by the Lord Chief Justice of the Queen's Bench. His Lordship thus defines the rule: "Where a buyer buys a specific article, caveat emptor applies; but where the buyer orders goods to be supplied, and trusts to the seller's judgment to select the goods for the purpose to which they were to be applied, and which both parties knew they were to be applied to, then, though 1. This Court has jurisdiction to review and correct the proceedings of inferiot Courts, except where it is expressly excluded by statute, or in a case stated by the parties, wherein they agree to submit their disputes to auditors or referees of the Common Pleas without expressly reserving their right to a writ of error. The presumption in the latter case is, that the parties mean to bind themselves by the award of the domestic tribunal of their own choice. 2. This Court has jurisdiction of a contested election, on certiorari, where it appears from the record that no facts were in dispute; hence the rulings of the Court below upon questions of law purely are reviewable here. 8. This Court is as much bound to take cognisance of questions involving the constitutionality of the election laws, even though they may be raised in a contested election, as they are to pass upon the constitutionality of an Act of Assembly relating to any other subject, as long as the Legislature does not take away that jurisdiction. 4. The 155th section of the Act of 2d July, 1839, giving to Courts of Quarter Sessions the same powers that are conferred on committees of the Legislature, to compel the attendance of witnesses and the production of papers in contested elections, is only a grant of power for the specific purposes named, and does not make the decision of the Court below, like that of the Legislature, final and conclusive. 6. Bills of exceptions are not allowed in the Courts of Quarter Sessions, therefore no question which arises outside of the record can be reviewed by this Court. 6 Election districts, within the meaning of our statute, denotes subdivisions of Pennsylvania territory, marked out by known boundaries, prearranged and declared by public authorities; and election districts mean in the Constitutier Just what they mean in the statute. The Constitution recognises them as among the civil institutions of the State, which can neither be created, nor controlled by the military power. 7. The term "residence" in the Constitution is the same as domicil-a word which means the place where a man establishes his abode, makes the seat of his property, and exercises his civil and political rights. 8. The right of a soldier to vote, under the Constitution, is in the district where he resided at the time of his entering the military service. . The 43d section of the election law of 2d July, 1839, allowing soldiers to vote outside of the boundaries of the State, is in direct conflict with the amended clause of the 3d article of the Constitution of Pennsylvania, and is, therefore, null and void. Appeal from and certiorari to the Quarter Sessions of Luzerne County. A complaint of upwards of twenty qualified electors of Luzerne county, setting forth an undue election and false return of Ezra B. Chase to the office of District Attorney of said county, was filed 29th November, 1861. On December 24, 1861, an agreement between the parties as to the facts to be submitted as a case stated, was filed. This agreement submits the question of the constitutionality of an Act of Assembly of Pennsylvania, allowing volunteers in military service to vote wherever they may be on the day of election, and the commanding officers to transmit their return of votes, tickets, &c., to their respective counties to be counted in the general return. The facts of the case appear at large in the opinion of the Supreme Court. The Court below decided in favor of the constitutionality of the military vote, and decreed accordingly. The case was argued on behalf of the appellant by Messrs. Stanley Woodward, and Lyman Hakes, who cited Sect. 1, Art. 3, of the Constitution of Pennsylvania; McDaniel's Case, 4 Penn. L. Jour. 312; Cooper vs. Gilbraith, 3 W. C. C. R. 546; Story's Confl. Laws 50, 51; Kent's Com. 431, note E.; 1 Bouv. Inst. 96, 99; Guier vs. O'Daniel, 1 Binn. 352; U. S. vs. Penelope, 2 Peters' Adm. 450; 9 Deb. Penna. Const. 300. The Constitution requires a residence of ten days immediately preceding the election in the election district. This restriction is to be strictly construed. The |