#### Manuel A. Heridia *versus*Josiah Ayres.

Upon *St.*1829, c. 2, which provides, that in case no Boston branch pilot shall offer his services to the master of a vessel bound into Boston harbour, before such vessel shall have passed a line drawn from Harding's rocks to the outer Graves, and from thence to Nahant Head, any person may pilot the vessel without incurring the penalties of the statute, it was held, that pilot ground commenced outside of the line above designated.

The extent of pilot ground outside of that line must be determined by evidence of usage or otherwise, as a matter of fact, it not being fixed by law.

The statute above mentioned makes no special provision for any remedy to a party injured through the negligence of a pilot, and consequently, an action on the case for such negligence is an action at common law, and although some of the counts refer to the statute, the objection of a misjoinder of counts at common law with counts on the statute, cannot apply.

Where the declaration contained originally a count alleging that the defendant was a pilot for the harbour of Boston duly appointed and commissioned, and that he undertook to pilot the plaintiff's vessel, but that by his negligence the vessel was lost, and a new count was filed, setting forth the same loss by the defendant's negligence and likewise reciting the rules made, pursuant to the abovementioned statute, by the Boston Marine Society, which were referred to in the defendant's commission and served to show the nature and extent of his duties as pilot, it was *ifId,*that the new count was not for a different cause of action from the original count, and consequently that the amendment was allowable.

The statute having authorized the Boston Marine Society to establish rules for the government of pilots for the harbour of Boston, and there being a clause in the commission of those pilots that they are to be governed by the rules so established, it was held, that the defendant, by his acceptance of such a commission, recognized those rules and became bound by them.

The statute of 1829, *c.*2, ta regulate the pilotage for the harbour of Boston, is a public statute.

This was an action on the case by a foreign merchant against the defendant, a branch pilot for the harbour of Boston, for the negligence and unskilfulness of Josiah Ayres, junior, his deputy.

The declaration contained originally two counts. The first alleged, that the defendant, on July 28, 1831, was one of the pilots for the port of Boston, duly appointed, &c. and was furnished with a branch or warrant for the due execution of the duties of his office, and was entitled to the lawful fees of pilotage ; that the plaintiff was the owner of a vessel called the Isabella, which was laden with a cargo, the property of the plaintiff, which vessel was sailing upon a voyage from Malaga to Boston, and had arrived in the Massachusetts bay and near to the harbour of Boston ; and that the defendant boarded the *340vessel off the port of Boston and for the legal fees of pilotage undertook to pilot the vessel into the port of Boston and to bring her safely to her moorings therein ; yet the defendant, not regarding the duties of his office, &c. so ignorantly, negligently and unskilfully managed the vessel, in piloting her into the port of Boston, that he ran her aground on certain rocks called the Minots, situated off a certain place called Cohasset, near the entrance of the harbour of Boston, and upon pilotage ground of the pilots for the port of Boston, by which means the vessel with her cargo was wrecked and totally lost to the plaintiff.

The second count alleged, that the defendant was one of the pilots for the port of Boston, duly appointed, &c. and that the plaintiff was the owner of the Isabélla, &c. and that one Josiali Ayres, junior, a deputy pilot under the defendant and for whose acts, misfeasances and non-feasances as such deputy the defendant was answerable, boarded the vessel off the port of Boston, and for the legal fees of pilotage undertook faithfully to pilot her into the port of Boston, but that he ignorantly, negligently and unskilfully ran her aground, &c. to the damage, &c.

The plaintiff, upon leave to amend, filed a third and a fourth count.

The third recites, that the trustees of the Boston Marine Society, at a regular meeting on January 16, 1830, did, in pursuance of a statute of the Commonwealth *(St.*1829, *c.*2,) among other rules, establish the following, &c. (reciting the 2d, which prescribes the form of the branch for the Boston pilots, containing this clause, viz. “you are to be governed by such rules and regulations, and to receive such fees, as may be prescribed in conformity to the provisions of the act above named ; ”— the 6th, which provides that eight commissions or branches shall be granted for piloting, &c. and that each person so commissioned may appoint deputies ; — the 7th, prescribing the fees of pilotage ; — the 8th, providing that if any branch pilot of the harbour of Boston oilers himself to any vessel liable to take a pilot, outside of a line drawn from the Harding’s Rocks to the outward Graves, and from thence to Nahant Head, if inward bound, or any branch pilot *341offers himself to any vessel outward hound, &c. and the master of said vessel refuses to take such pilot on board, the master and owners of said vessel, or either of them, shall incur and be liable to the penalty in the first section of *St.*1829, c. 2; — the 9th, providing that if any vessel, whilst under the charge of a branch pilot or his deputy, shall be lost, or run aground, or sustain any damage, through the negligence or unskilfulness of such branch pilot or his deputy, such branch pilot shall be liable not only for himself but for his deputy, to pay the owner of such vessel all damages, and also be liable to have his branch or commission taken from him; — the 11th, prescribing that it shall be the duty of the pilot, after having brought a vessel into the harbour of Boston, to have her properly moored, &c.; — the 13th, making the hull and appurtenances of the vessel liable for the fees of pilotage; — and the 14th, recommending eight persons, including the defendant, to the governor and council, as duly qualified for pilots,) which rules and regulations, on February 12, 1830, were duly approved by the governor, with the advice of the council, after a due hearing of the parties interested, a copy of which the plaintiff brings into court; and the plaintiff alleges, that on July 28, 1831, the defendant was one of the pilots, &c. duly appointed, commissioned and sworn according to the rules and regulations aforesaid, and was entitled to the lawful fees for pilotage, and subject to the liabilities according to the rules and regulations aforesaid; that Josiah Ayres, junior, was a deputy pilot duly appointed by the defendant, &c. and for whose acts, misfeasance and nonfeasance as such deputy pilot the defendant was and is by law answerable, according to the rules and regulations aforesaid ; that the plaintiff, on July 28, 1831, was the owner of the Isabella, &c. laden with a cargo, &c. the property of the plaintiff, &c. and sailing on a voyage from Malaga to Boston, &c. ; that Josiah Ayres, junior, being a deputy pilot under the defendant, &c. and for whose acts, &c. boarded the vessel, the same being liable to take a pilot and inward bound in the said bay, off the said harbour of Boston and outside of a line drawn from the Harding’s Rocks to the outward Graves and from thence to Nahant Head and -ipon pilotage ground of the pilots for said port of Boston, *342and offered himself to the master of the vessel as a pilot, and *n executi°n of his office as deputy pilot aforesaid' and for the legal fees for pilotage, took upon himself all the charge of piloting the vessel into the port of Boston and of bringing her safely to her moorings therein, and promised the plaintiff that he would faithfully do the same ; yet the said Josiah Ayres, junior, deputy pilot &e. not regarding the duties &c., so ignorantly, negligently and unskilfully managed the ship in piloting her into the port, that he ran her aground on certain rocks, called the Minots, situated off a certain place called Cohasset, near the entrance of the harbour of Boston, and upon pilotage ground, &c. by means whereof the vessel was wrecked and wholly lost to the plaintiff and the cargo was greatly damaged, wasted and destroyed, &c.

The fourth count alleges, that the defendant, on &c. was a pilot for the port of Boston and entitled to the fees for pilot-age for his services as such pilot, and that the plaintiff was the owner of the Isabella and cargo, which vessel was sailing &c. and had arrived near to the harbour of Boston, and that the defendant, in the execution of his office of pilot and for the fees of pilotage, by one Josiah Ayres, junior, his servant and deputy, took upon himself all the charge of piloting the vessel into the port of Boston and bringing her safely to her moorings therein; yet the defendant, not regarding, &c. by his said servant and deputy so ignorantly, negligently and unskilfully managed the vessel in piloting her into the port of Boston, that he ran her aground on certain rocks called the Minots &c., and upon pilotage ground &c., by means whereof the vessel was wrecked &c. All which is to the damage &c.

The defendant moved to strike out the 3d count because it could not lawfully be filed, the 1st and 2d being according to the common law, and the 3d being according to a special statute and making admissible a new and different class of evidence.

After a verdict for the plaintiff, the defendant moves in arrest of judgment; —

1. Because there is a misjoinder of counts, the 3d not being according to the common law, as the 1st and 2d are, *343bul being grounded on a special act of the legislature, and not admissible in a special action of trespass on the case.

2. Because there is a general verdict, and the 1st, 2d and 4th counts are defective.

3. Because, in effect, this is a suit on a special statute, and the statute is not recited, and the form of an action on tne statute is not complied with.

The *St.*1829, c. 2, provides in the first section, that no person shall undertake to pilot any vessels (fishing vessels &c. excepted) into or out of the harbour of Boston, without first having obtained a commission or branch as ■ in the statute is provided, under a penalty of fifty dollars for each offence. The second section provides, that to such persons as may obtain from the trustees of the Boston Marine Society a certificate that they are duly qualified, the governor, with the advice of council, may grant commissions or branches au thorizing such persons to exercise the business of pilots for the harbour of Boston, and to employ deputies. By the third, the trustees are empowered, from time to time, by votes passed at their regular meetings, to record, to ordain and establish such rules and regulations for fixing the duties to be performed by these branch pilots, with penalties for the nonperformance or mal-performance thereof, &c., and in general to establish all such rules and regulations, for the government of the pilots and of the pilotage into and out of the harbour of Boston, as the trustees may deem necessary or expedient, “and the same shall be of as full force and effect as if herein specially enacted, &c. provided however that such rules and regulations shall not take effect until the same shall be approved by the governor, with the advice of council, after a due hearing of the parties interested by petition or remonstrance.” In the fourth section it is enacted, that in case no Boston branch pilot shall offer his services to the master of a vessel bound into Boston harbour, before such vessel shall have passed a line drawn from Harding’s Rocks to the outer Graves, and from thence to Nahant Head, such master shall be at liberty to pilot his own vessel, or to employ any other person to pilot his vessel into Boston harbour, without incurring the penalties of this act.

*344*March 22d*

S. *D. Parker,*for the defendant.

The first two counts arts at common law and are misjoined with the third. The third 15 on the statute, although it does not conclude *contra formam statuti.*It sets out regulations of the Boston Marine Society ; it avers every thing that is necessary in an action on the statute; and it refers to the statute. *Coundell*v. *John,*2 Salk. 505; *Kendall*v. *John,*Ld. Holt, 634; *Lee*v. *Clarke,*2 East, 333; Com. Dig. *Action upon Statute, A*3, — *C,*cites 2 Rol. Rep. 49*;*Com. Dig. *Action, G*1, cites Jenk. 211,— *G*2, cites Ventr. 366.

The verdict js general on all the counts ; but even if it had been for the plaintiff on the good count and for the defendant on the defective counts, it would not cure the misjoinder. *Prescott*v. *Tufts,*4 Mass. R. 146; *Holms*v. *Taylor,*2 Lev. 101; *Bage*v. *Bromuel,*3 Lev. 99; *Rose*v. *Bowler,*1 H. Bl. 108.

The statute in question is a private statute, and should have been set forth in the declaration, if either of the counts is founded upon it. *Commonwealth*v. *M'Curdy,*5 Mass. R. 324. It is a private statute, because its operation is confined to the port of Boston ; because it enforces the rules of a private corporation ; *Kirk*v. *Nowill,*1 T. R. 125; because no provision is made for the promulgation of those rules, it being merely required that they shall be recorded on the books of this corporation; because the rules are contrary to the common law, and are not passed upon by the legislature ; because the legislature cannot delegate to any private body the power to make a public law; because a discretionary power to ordain, alter, annul and repeal rules which are to have the effect of public laws and yet are not promulgated, cannot be granted by the legislature ; and because the statute affects the tenure of office and the duties of the officer in a single harbour.

All the counts are defective, in not setting forth a cause of action. Though the misfortune is alleged to have taken place on pilotage ground, yet according to the statute and the .rules' recited, it did not happen on pilotage ground ; and as the deputy therefore was not acting within the scope of his authority, the defendant is not liable. If a pilot should go on board a vessel on the high seas, (off Cape Cod, for instance,) he would not *345begin to act as pilot until the vessel should reach the line designated in the statute, namely, from Harding’s Rocks to the outward Graves and from thence to Nahant Head. Minot Rocks are five miles outside of that line. The pilot or his deputy takes the direction of the vessel at that line, and any thing done outside of it by the deputy is not within the scope of his authority. He is indeed to go on board before, but it is for the purpose of being ready to enter upon his duties when he reaches that line. So in the case of a vessel outward bound, that is the line where the pilot must quit the vessel, for no other line is designated.

*Fletcher*for the plaintiff.

*March 26th*

Shaw C. J.

delivered the opinion of the Court. In this case, after verdict, there is a motion in arrest of judgment on several grounds, which will be particularly stated.

The first and by far the most important ground is, that upon principles of law, the defendant is not liable either in this action or in any action which the plaintiff could bring.

This objection is founded on the assumption, that the defendant is not responsible for the acts of his deputy except so far as he was acting within the scope of his authority as a pilot; that in fact the deputy went on board the plaintiff’s vessel, and the loss of the vessel actually occurred, beyond the limits of the defendant’s authority as a pilot; that this appears from the declaration itself, and therefore that whatever remedy the plaintiff may have against the deputy personally, he has none against the defendant, and consequently that no judgment can be rendered against him on the verdict.

If this were a correct view of the law of the case, the conclusion contended for would undoubtedly follow. The defendant is responsible for the acts of his deputy, only so far as he acts in his character of a pilot for the port of Boston, and should he undertake to perform services, in another place, or of another character, it could not for a moment be maintained that the defendant would be responsible either for his capacity or due diligence.

The objection here is, that the services were not done, and the loss did not happen, withir the pilot ground of the pilots of Boston

*346The declaration alleges that both did happen upon pilot ground, and after verdict, the averment must be understood by the Court to have been proved.

But it is contended that the law determines what is pilot ground, that the deélaration shows that the loss did not happen within the limits of pilot ground as fixed by law, and that any averment expressly against law, can be of no avail, whether proved or not. The argument is founded upon a construction of the act to regulate the pilotage for the harbour of Boston, passed June 11, 1829. This act provides that no person shall undertake to pilot any vessels, with certain specified exceptions, into or out of the harbour of Boston, without first having received a commission in the manner appointed in the act. The fourth section provides, and it is upon this that the defendant relies to maintain the construction contended for, that in case no Boston branch pilot shall offer his services to the master of a vessel bound into Boston harbour, before such vessel shall have passed a line drawn from Harding’s Rocks to the outer Graves and thence to Nahant Head, such master shall be at liberty to pilot his own vessel or to employ any other person to pilot his vessel into Boston harbour, without incurring the penalties of the act.1

From these provisions it is contended, that pilotage ground commences at the line in question and extends thence westerly into and through the harbour of Boston to the town. But to the Court it appears that the clauses, taken in connexion with the known localities and subject matter, must have a precisely opposite construction, and that they go to show that although the duties of an inward pilot do not terminate till the vessel is brought safely to her moorings, at the town, the pilotage ground, properly speaking, must commence to the eastward of the fine in question. The act speaks of *inward*pilotage of vessels bound into the port, necessarily implying that they are proceeding towards but have' not yet entered the port The purpose of the act is manifest, that, to secure the services of persons of competent skill and qualifications, all other persons are prohibited under a penalty, from acting as pilots, and *347the exclusive right is secured to the commissioned pilots, to perform the service and receive the fees ; which are intended to be liberal. But this right depends upon their offering themselves before the vessel arrives so far inward towards the harbour as the line in question, thereby plainly manifesting that the law regards it as the duty of the pilots to offer themselves to vessels before they arrive at this line, and that after having so arrived the danger is principally over. This is equally manifest from a consideration of the nature of the duties of pilots, the purposes of their appointment, and the local dangers to which a foreigner might be exposed and against which the accurate local knowledge, skill and experience of a pilot are intended to guard. The object is to secure the benefit of such local knowledge, combined with competent skill and experience, in favor of vessels bound in from sea to the port. This construction might be strengthened, if necessary, by a reference to other statutes upon the same subject, which, although repealed, being in *pari materia,*might be resorted to for the purpose of putting a construction upon ambiguous or doubtful provisions of this statute enacted as a substitute ; but it is not necessary, as the Court consider it very clear, from the statute itself, that it was intended that pilots should go on board vessels inward bound and take charge of them as pilots, before they arrive at the line in question ; and they are to be secured in the exclusive enjoyment of the emoluments of this employment, upon the condition of doing so. It becomes unnecessary to inquire how far seaward the pilot ground of the Boston pilots may be considered to extend, because if the line is not fixed by law, it must be determined by evidence of usage or otherwise as a matter of fact, and the loss being averred in the declaration in the present case to have happened on pilot ground, that fact is now affirmed by the verdict.

It is contended, that upon this view of the case, pilots might be responsible for the defaults of their deputies, on the high seas, though pilots for the port of Boston, and that being pilots for the port, their jurisdiction does not extend beyond it ; and that the line at which pilots of outward bound ships may leave them is the same at which they can lawfully take charge of inward bound ships.

*348If by the high seas is understood that portion of the ocean which lies beyond the head-lands, the *fauces*terra, it is not perceived to be an objection to the liability of pilots that iheii duty and employment does extend to the high seas. It is to conduct vessels from the high seas safely towards and into port, and must necessarily commence on the high seas, in the sense above suggested. It is obvious therefore, that though in common parlance they are called Boston pilots, a very small part only of their duty consists in conducting vessels up to town after entering the harbour. Nor can we discern any analogy between the limits of pilot ground for outward and inward pilots, even if the former were proved (as it is not) to be limited to the line in question. Vessels outward bound have the selection of their time for sailing, under favorable circumstances of wind and weather, with a full knowledge of their position, and when they have cleared the land can proceed to sea without danger. With inward bound vessels all this is reversed. The danger consists in approaching the land, and they need the aid of a pilot when this danger commences. Other cases of pilotage ground over the high seas, are familiar. The pilot ground of the Vineyard pilots extends from the Sound to Cape Cod, almost entirely upon the high seas.

Being of opinion that the loss happened whilst the deputy of the defendant was acting within the scope of his authority as pilot, upon pilot ground, the responsibility of the defendant for his default did attach, and therefore there is no cause, in this respect, to arrest the judgment.

*2.*The next cause assigned for arresting this judgment, is a misjoinder of counts, some being on the statute and some at common law.

Whether this would be ground for arresting the judgment were the record in such a state as to warrant the application of the rule, we give no opinion. That counts at common law and on statutes may be joined where the pleas and judgment may be the same, has recently been decided in this Court.1*349But we think the rule has no application. Here all the counts are at common law. The statute, whilst it simply provides for the appointment and commissioning of pilots, makes no special provision for any remedy to the party injured, but leaves him to his remedy at the common law. There is then no such misjoinder of counts as the motion in arrest of judgment supposes.2

But it is contended that the third and fourth counts are not admissible by way of amendment, being for a different cause of action from that contained in the two first counts. Were this point open on a motion in arrest of judgment, there would be no ground to sustain it. Amendments are allowed for the purpose of setting forth in more accurate and technical form a claim for the same substantive cause of action. We cannot perceive that the allowance of the additional counts transgresses this rule. The same loss and the same substantial claim of indemnity are set forth in all, and it is in form only that they differ from each other. The rules and regulations set forth in the third count serve to show the nature and extent of the duties of the defendant, in his office and character of a pilot, and the manner in which he had assumed and become bound for the discharge of those duties. To whatever extent these rules and regulations have the force of laws in regard to others, the defendant is bound by them by expressly recognizing them in the acceptance of his commission. They are binding upon him by force of that acceptance, in the same manner and to the same extent as if they had been recited at length in his commission.3

3. The last objection is, that the statute is a private act and ought to have been recited in the declaration. Without going minutely into this subject, which sometimes involves distinctions of much nicety and difficulty, there is one consideration which renders it decisive that this is a public act, which is, that the first section in terms imposes a penalty upon every person who shall violate its provisions. It is therefore binding *350upon every citizen of the Commonwealth, and upon every stranger who, coming within its jurisdiction, owes a temporary allegiance and is bound by its laws.

*Judgment on the verdict.*

1

 Rev. Stat. *c.*32, § 24.

1

*Fairfield*v. *Burt,*11 Pick. 244; *Worster*v. *Proprietors of Canal Bridge,*16 Pick. *541.*

2

 See Rev. Stat. c. 32, § 15 *et*seq.

3

 See *Morton*v. Fairbanks, 11 Pick. 368; *Mixen*v. *Howarth,*21 Pick. 205; *Bishop*v Baker, 19 Pick. 517; *Kester*v. Stokes, 1 Miles, 67; *Cunningham*v. Day, 2 Serg. & R. 1; *Brown*v. Crump, 6 Taunt. 300.