stages of water, without lowering their chimneys. These seven boats could let down their chimneys, but the operation was attended with delay and some danger; or, they could navigate the river, though with less speed, with chimneys considerably reduced in height; and yet, the Supreme Court of the United States held, that the bridge was an essential impediment to navigation-in fact, a public nuisance; and decreed that unless so altered as not to impede the passage of any of the boats used on the Ohio, it must be abated. This decision, emanating from the highest Court of the Union, is obligatory on this Court, and must be received as the law, so far as applicable to the present case.

Having reference to the principles here stated, it will be the duty of the jury to pass upon the question, whether from the evidence, the Terre Haute Bridge is an impediment to the navigation of the Wabash river. It is insisted by the counsel for the Bridge Company, that the structure has been erected in compliance with the charter granted by the State of Indiana, and that therefore, the company are not liable for the injury complained of. The charter, as before stated, authorizes the erection of the bridge, with "a convenient draw." This clearly implies that it shall be such a draw as may be used without vexatious delay or loss of time; and also with safety to persons and property. Nothing less than this will meet the requirement of the act of incorporation. And if the jury find the charter has not been complied with, it cannot shield the defendant from liability for the injury sustained by the plaintiff in passing the bridge. Or, if the jury come to the conclusion from the evidence, that the bridge and draw are in accordance with the charter, and yet a material obstruction to navigation, the company are liable, if ordinary skill and care were used in navigating the plaintiffs' boat through the draw. For reasons already stated, it was not competent for the Legislature of Indiana to authorize a structure across the Wabash, which would be an essential hindrance to its navigation; and any law conferring such authority, is a nullity.

It will therefore be a proper inquiry for the jury, whether the plaintiffs' boat in passing the bridge, was managed with ordinary

skill and caution. For, conceding the bridge to be an unlawful obstruction, yet if the plaintiffs' injury is clearly referable to the reckless and unskilful management of their boat, the company are not responsible for such injury. On this point, as on all others involving the weight and credibility due to the witnesses, the jury are the exclusive judges. If the evidence of the pilot, who was at the wheel, and of others connected with the boat is entitled to credit, the proof is satisfactory that the boat was managed with skill and caution. She was not let down stern foremost by a rope, as was the more usual way of passing the draw; nor is it regarded as essential to the plaintiffs' right to recover for an injury sustained in passing the draw, that such a precaution should have been used. Some of the witnesses express the opinion that this is the safer course, while others having skill and experience in the navigation of the Wabash, say that neither prudence or safety requires it. The pilot of the boat has testified very intelligently, and with apparent candor, and says that he did not consider it necessary to pass the draw stern foremost. He also says that great care and caution were observed in passing through the draw, and that the injury to the boat was not the result of either carelessness or want of skill. He also says the boat would have passed safely through the draw, but for a strong wind which suddenly struck her, and caused her to veer from the course he was steering. In this statement the pilot is corroborated by several of the plaintiffs' witnesses, while most of the witnesses for the defendant say they have no recollection that there was any wind, exceeding a very moderate breeze. This is not viewed as a material point in this case, as the liability of the Bridge Company is in no way affected by the state of the wind, or its influence in causing the collision. If the bridge is an unlawful obstruction, and the plaintiffs used ordinary care and skill in passing it, the company are responsible for the injury, irrespective of the agency of the wind. And this for the obvious reason that wind or no wind, the injury could not have been sustained, but for the fact that the bridge was there.

It is proper here to remark, in reference to the pilot of the plaintiffs' boat, that the evidence is satisfactory as to his professional

character. He had served in that capacity for some years, on the Wabash, and it is in proof that he is esteemed a safe, prudent and skilful pilot. But notwithstanding this evidence of general good professional reputation, if in this particular case he evinced recklessness and want of skill, and the injury to the plaintiffs' boat is attributable to that cause, they must bear the consequences of his misconduct.

In this case, a large proportion of the evidence for the plaintiffs is in the form of depositions of persons who were on the boat at the time of the accident, and of others experienced in the navigation of the Wabash, who have been examined as experts. These depositions were taken at Cincinnati, without previous notice to the opposite party, and without the attendance of his counsel. This mode of taking testimony is expressly authorized by an Act of Congress. It is liable to the objection that the opposite party is precluded from the opportunity of cross-examining the witnesses, and thus testing the truthfulness of their statements. It is, however, the right of the party against whom depositions thus taken are to be used, to re-call and re-examine the same witnesses, if he deems it necessary. The defendants in this case have not availed themselves of this right; and the plaintiffs' depositions are therefore committed to the jury, as taken by the other party, without any cross-examination by the defendant. Under these circumstances, it is insisted by the defendant's counsel that these depositions should be viewed with suspicion, and that they are entitled to very little weight by the jury. On this point, it is only necessary to remark, that these depositions are by law admissible to the jury as evidence; and, although they would be entitled to greater weight if taken upon notice to the other party, and with an opportunity for cross-examination, they are, nevertheless, entitled to credit, unless otherwise impeached. It is, however, for the jury to give them such consideration as they may deserve.

It has been before noticed that a part of the evidence for the plaintiffs in this case, consists in the opinions of experts-those experienced in and familiar with the navigation of the Wabash-as to the practical effect of the Terre Haute Bridge upon the navi

gableness of that river, and the correctness of the professional conduct of those entrusted with the management of the plaintiffs' boat in passing the bridge. In reference to this description of evidence, it is only necessary to remark that for the obvious reason that those best acquainted with any particular art, profession or business, in all matters directly concerning them, are accounted more satisfactory and reliable witnesses than those who have no such skill or experiHence it is well settled, that the testimony of intelligent and credible experts is entitled to the most respectful consideration. The principle here stated, applies as well to navigation as to any other art or occupation.

ence.

It only remains for the Court to say, that if the jury find the plaintiffs are entitled to their verdict, the amount of damages to be awarded is wholly with them. The actual expenses of repairing the injury sustained by the plaintiffs' boat forms, of course, an element in estimating the amount. But it is, moreover, proper to bring to to the notice of the jury, a late decision of the Supreme Court of the United States,' having a direct bearing on the question of damages in this case. That Court has held, that in an action for an injury by collision with another boat, the boat of the plaintiff not being in fault, he was entitled to compensation, in damages, for the profits his boat would have made during the time necessarily lost in repairing the injury sustained. No reason is perceived why the same principle does not apply to the present case. If, therefore, the jury find for the plaintiffs, they should include in their verdict, the amount of the probable earnings of the plaintiffs' boat during the time she was delayed in making the repairs necessary to refit her for service. This amount will be settled by the evidence before the jury, on that point.

The jury returned a verdict for the plaintiffs, assessing their damages at $1,000. A motion for a new trial by the defendants was overruled.

'The case referred to is that of Williamson and others vs. Barrett and others, 13 How. S. C. Rep., 101. The same principle was decided in this case by the Circuit Court of Ohio, 4 McLean, 589.

In the District Court of Philadelphia-Sept., 1854.

PROUTY vs. HUDSON.

1. As a general rule, debts sued for and intended to be set off, must be mutual and due in the same right.

2. Where a judgment has been obtained against executors individually, they cannot set off this judgment against one obtained by their decedent in his life-time against their judgment creditor, because the claims are not between the same parties nor in the same rights.

Rule to set off judgment.

The opinion of the Court was delivered by

SHARSWOOD, P. J.-The defendants have produced the evidence that they are the executors of Brown, and show a judg ment in favor of Brown against the plaintiff, which they ask to set off against the judgment in this case. The judgment in this case was obtained against them individually, in an action of trover.

The set-off of one judgment against another, is not within the statute of set-off. It is a practice which has long prevailed in the courts of this State as well as England, to allow such set-off upon the equitable principle that in conscience and morality all that the party really owes is the balance. In the exercise of this jurisdiction, while not absolutely bound to allow set off in all cases in which it would be allowable under the statute, the Court however have adopted the rules established in the construction of the statute. More especially the rule that the claims asked to be set off, should be between the same parties and in the same right, has received the unequivocal sanction of the courts here as well as elsewhere, in regard to the set-off of judgments. Best vs. Lawson, 1 Miles, 11; Dunkin vs. Calbraith, 1 Brown, 47; Mason vs. Knoulson, 1 Hill, 215.

It seems to be well settled in England, that a defendant sued for his own debt, cannot set off a debt due to him as executor or administrator, because debts sued for and intended to be set off, must be mutual and due in the same right. 1 Tidd's Practice, 718; 2 Williams on Ex'rs, 1,200. The last named writer cites Bishop vs. Church, 3 Atkins, 691; Gale vs. Suttler, 1 Young & Jervis, 180.