Phila., Wil., and Balt. R. Co. v. Phila. and Havre de Grace Steam Towboat Co. engineers employed by the appellants. Before the completion of the contract, the appellants abandoned their purpose of building the bridge, and discharged the contractors. During the progress of the work, the contractors had driven certain piles, called sightpiles, into the channel of the river, which were not removed or cut off level with the bottom, but were cut a few feet under the surface of the water, so that they became a hidden and dangerous nuisance. The steamboat Superior, engaged in towing boats between Philadelphia and Havre de Grace, left a port in Maryland on Sunday morning, and soon after came into forcible collision with one or more of these piles; in consequence whereof she suffered great damage, and for which this libel was filed. The appellants have, in this court, insisted chiefly on three points of defense to the charges of the libel: I. It is contended that the "marine torts," over which courts of admiralty have jurisdiction, are trespasses done and committed. with force on the sea and navigable waters, such as collision of vessels, assaults, &c., and that the placing and leaving the piles in the bed of the river, and within the body of a county, is a nuisance at common law, and the remedy of the appellees should have been by an action on the case. The jurisdiction of courts of admiralty, in matters of contract, depends upon the nature and character of the contract; but in torts it depends entirely on locality. If the wrongs be committed on the high seas, or within the ebb and flow of the tide, it has never been disputed that they come within the jurisdiction of that court. Even Lord Coke (4 Inst. 134) declares, "that of contracts, pleas, and querels, made upon the sea or any part thereof, which is not within any county, the admiral hath and ought to have jurisdiction." Since the case of Waring v. Clark, (5 How. 464,) the exception of "infra corpus comitatus" is no longer allowed to prevail. In such cases, the party may have his remedy either in the common-law courts or in the admiralty. Nor is the definition of the term "torts," when used in reference to admiralty jurisdiction, [*216] confined to wrongs or injuries committed *by direct force. It includes, also, wrongs suffered in consequence of the negligence or malfeasance of others, where the remedy at common law is by an action on the case. It is a rule of maritime law, from the earliest times, "that if a ship run foul of an anchor left without a buoy, the person who placed it there shall respond in damages." (See Emerigon, vol. 1, page 417; Consulat de la Mer, chap. 243; and Cleirac, 70.) 1 Phila., Wil., and Balt. R. Co. v. Phila. and Havre de Grace Steam Towboat Co. In the resolution of the twelve judges, in 1632, it was determined in England, "that the courts of admiralty may inquire of and redress all annoyances and obstructions that are or may be any impediment to navigation, &c., and injuries done there which concern navigation on the sea." Hence, "the impinging on an anchor or other injurious impediment negligently left in the way," has always been considered as coming within the category of maritime torts, having their remedy in the courts of admiralty. (See 2 Brown Civ. and Adm. 203.) The objection to the jurisdiction of the court is therefore not sustained. II. The testimony showed that the injury to the steamer was caused by her coming in contact with one of the sight-piles, driven into the channel by the contractors, and left in the situation already stated. This contract is set forth at length. It showed that the contractors were bound to "provide all necessary machinery, &c., and to furnish (and remove, when done with) all scaffolding and piles that may be used while building." It is contended by the appellants that they are not liable for the negligence which caused this injury, because the piles were not placed in the channel by their servants, but by those of the contractors; and that the case was not altered by the fact that the contractors were directed to do so by the engineers, who were the servants of appellants. If the contractors had proceeded to complete their contract, and left the piles in the condition complained of, this defense to the action might have availed the appellants. But as the driving the piles for the legitimate purpose of the erection was *by authority of the law and in pursuance of the contract, [217] the contractors had done no wrong in placing them there. The nuisance was the result of the negligence in cutting off the piles, not at the bottom of the river, but a few feet under the surface of the water. This the contractors were bound to do, after the piles had served their legitimate purpose in the construction of the bridge, and after they had completed their contract. But before this, the railroad company determined to discontinue the erection of the bridge. They dismissed the contractors from the further fulfillment of their contract. Under such circumstances, it became the duty of the appellants to take care that all the obstructions to the navigation, which had been placed in the channel by their orders, and for the purpose of their intended erection, should be removed. The nuisance which resulted from leaving the piles in Phila., Wil., and Balt. R. Co. v. Phila. and Havre de Grace Steam Towboat Co. this dangerous condition was the consequence of their own negligence or that of their servants, and not of the contractors. III. The appellants urge, as a further ground of defense, that this collision took place on Sunday, shortly after the steamboat had commenced her voyage from a wharf, "parcel of the territory of Harford county, in the State of Maryland; that the boat was used and employed by her owners in towing canal boats; and that, when entering on her voyage, those who had her control and management were engaged in their usual and ordinary work and labor -the same not being a work of necessity or charity-contrary to the laws of the State of Maryland." A statute of Maryland forbids persons "to work or do any bodily labor, or to willingly suffer any of their servants to do any manner of work or labor, on the Lord's day-works of necessity and charity excepted ;" and a penalty is prescribed for a breach of the law. It has been urged, that there was nothing in this provision inconsistent with any of the laws regulating commerce, and that the federal courts should therefore take notice of and conform to the laws of the State. * But assuming this proposition to be true, the inference from it will not follow as a legitimate conclusion; for, if we [*218] admit that the master and mariner of a ship or steamboat are liable to the penalty of the act for commencing their voyage from a port in Maryland on Sunday, it by no means follows that the appellants can protect themselves from responding to the owners of the vessel for the damages suffered in consequence of the nuisance. The law relating to the observance of Sunday defines a duty of a citizen to the State, and to the State only. For a breach of this duty he is liable to the fine or penalty imposed by the statute, and nothing more. Courts of justice have no power to add to this penalty the loss of a ship, by the tortious conduct of another, against whom the owner has committed no offense. It is true, that in England, after the statute of 29, ch. 2d, forbidding labor on the Lord's day, they have, by a course of decision perhaps too obsequiously followed in this country, undertaken to add to the penalty, by declaring void contracts made on that day; but this was only in case of executory contracts, which the courts were invoked to execute. It is true, that cases may be found in the State of Massachusetts, (see 10 Metcalf, 363, and 4 Cushing, 322,) which, on a superficial view, might seem to favor this doctrine of set-off in cases of tort. But those decisions depend on the peculiar legislation Phila., Wil., and Balt. R. Co. v. Phila. and Havre de Grace Steam Towboat Co. and customs of that State, more than on any general principles of justice or law. (See the case of Woodman v. Hubbard, 5 Foster, 67.) We would refer, also, to a case very similar in its circumstances. to the present, in the supreme court of Pennsylvania, in which this subject is very fully examined by the learned chief justice of that court; and we concur in his conclusion: "That we should work a confusion of relations, and lend a very doubtful assistance to morality, if we should allow one offender against the law, to the injury of another, to set off against the plaintiff that he too is a public offender." (See Mahoney v. Cook, 26 Penn. Reps. 342.) We do not feel justified, therefore, on any principles of justice, equity, or of public policy, in inflicting an additional penalty of seven thousand dollars on the libelants, by way of set-off, because their servants may have been subject * to a penalty [219] of twenty shillings each for breach of the statute. Moreover, the steamboat in this case was sailing on a public river, within the ebb and flow of the tide; she had a coasting license, and was proceeding from a port in one State to a port in another. Has it ever been decided that a vessel leaving a port on Sunday infringes the State laws with regard to the observance of that day? We have shown, in an opinion delivered at this term, that in other christian countries, where the observance of Sundays and other holidays is enforced by both church and State, the sailing of vessels engaged in commerce, and even their lading and unlading, were classed among the works of necessity, which are excepted from the operation of such laws. This may be said to be confirmed by the usage of all nations, so far, at least, as it concerns commencing a voyage on that day. Vessels engaged in commerce on the sea must take the advantage of favorable winds and weather; and it is well known that sailors (for peculiar reasons of their own) give a preference to that day of the week over all others for commencing a voyage. In the case of Ulary v. The Washington, (Crabbe, 208,) where a sailor justified his departure from a ship in port, because he was compelled to work on Sunday, Judge Hopkinson decided, "that, by the maritime law, sailors could not refuse to work on Sundaythe nature of the service requires that they should do so." We have thus disposed of the questious of law raised in this case, and concur with the district and circuit court in their decision of them. Some objections have been urged to the assessment of damages, and their amount. Dermott v. Jones. On this subject there was much contradictory testimony, as usually happens when experts are examined as to matters of professional opinion. The judges of the courts where this question was tried can better judge of the relative value of such conflicting testimony, from their knowledge of places and persons, and they may examine witnesses ore tenus, if they see fit. [* 220 ] *There was evidence to support the decree; and we can see no manifest error into which the court below has fallen. Appellants ought not to expect that this court will reverse a decree, merely upon a doubt created by conflicting testi mony. The judgment of the circuit court is affirmed, with costs. ANN R. DERMOTT, Plaintiff in Error, v. ZEPHANIAH JONES. 23 II. 220. BUILDING CONTRACT-DEPARTURE-NATURE OF THE ACTION. 1. Where, by a special contract for building, the time is fixed within which it is to be completed, the builder is not relieved from his obligation as to time by a change in the work ordered by the owner, unless the builder procures the assent of the owner to an enlargement of the time when he consents to the change in the work. 2. Nor can he recover in such case on a count which sets out the contract specifically and avers performance of it. 3. Neither the extra work ordered, nor the sinking of the foundation, nor the acceptance by the plaintiff of the building afterwards, was any release of the defendant from his obligation to finish within the time limited by the contract. 4. But when that time had passed, and plaintiff, with the knowledge and consent of defendant, continued to do the work specified in the contract, and to do extra work, and when the work, however imperfectly done, was afterwards accepted by the defendant, the law implies that the work done and materials furnished must be paid for. 5. In such case the law implies a promise to pay such remuneration as the benefit conferred is worth, and this may be recovered in an action of indebitatus assumpsit. 6. But the defendant may, in such action, set off or recoup the damages sustained by her for the failure of the plaintiff to perform his special contract, and is not driven to an original action against the plaintiff on the contract. WRIT of error to the circuit court for the District of Columbia. The case is fully stated in the opinion. Mr. Brent and Mr. Poe, for plaintiff in error. Mr. Bradley, Mr. Carlisle, and Mr. Badger, for defendant. [ * 226 ] *Mr. Justice WAYNE delivered the opinion of the court. This record shows that the plaintiff and the defendant |