1-2. As to the competency and effect of admissions made by J. O. Printup in his answer filed in another case, the head-notes speak all that need be said.
3. The alleged tort was not committed by J. C. Printup, but by his- codefendant, Talley, who was the ferryman. It was sought to hold Printup liable, if not as employer of the ferryman, as owner or part owner of the land. Whether he was such owner or not was a controverted fact. How a receipt signed by his father, in which he, the father, acknowledged payment of a sum of money on a judgment in his favor, would illustrate this question or any other involved in the case, we are unable to see. That the defendant in the judgment paid the money and was administrator with the will annexed of J. J. Printup, who formerly owned the ferry, seems utterly immaterial. What connection did the judgment, or the payment or the receipt, or Printup’s father, have with the ferry or the land on which it was situated ? *433None whatever, so far as appears. The receipt was several years older than the tort complained of.
■ 4. Jury, not witness, ought to determine whether the ferryman was as careful as he should have been. Negligence is a question of fact dependent upon other facts. Witnesses supply the latter, and from them the jury infer the former, when the inference can properly be •drawn.
5. The code, §690, reads thus: “ Any proprietor of any bridge, ferry, turnpike or causeway, whether by charter or prescription, or without, or whether by right ■of owning the lands on the stream, are bound to prompt and faithful attention to all their duties as such; and if any damage shall occur by reason of non-attendance, neglect, carelessness or bad conduct, he is bound for all damages, even if over and beyond the amount of any bond that may be given.” We construe this section as stated in the fifth head-note. Where ownership of the ferry is separated from that of the land, the owner of the latter has no control over keeping the ferry open, using it, or the manner of its use. But where he owns the ferry as well as the land, he must keep it closed or take the consequences. He must at least do all in his power to prevent any tenant of the land from using it as a public ferry. The policy of the statute is to protect the public against injuries by careless or incompetent ferrymen who may be too indigent to respond in damages. Another object is, to make it easy for strangers and wayfaring men to ascertain whom to sue in case they are injured. The name and residence of the particular ferryman in whose charge the ferry-boat was when the injury was sustained might be hard to prove; but to whom the ferry or the adjacent lands belonged would generally be widely known in the neighborhood, and readily established. We say this would generally be so, though in the present case the reverse seems to be true.
*434. 6. It must be conceded that where ownership of the-ferry or the land is the sole ground of liability, and such, ownership is in two or more persons jointly, they should all be joined as defendants in the action. But the nonjoinder, unless pleaded in abatement, would not defeat-a recovery. In the present case, however, there was no adequate evidence of joint ownership, and no charge to the jury on that subject was appropriate.
7. It did not affirmatively appear that the executor of J. J. Printup, deceased, though still living, had not resigned or been removed before Forsyth was appointed administrator with the will annexed. The fact of Forsyth’s appointment by the court of ordinary, which had jurisdiction of the subject-matter, implied that there was a vacancy in the office of executor, since, were there not a vacancy, no occasion for such an appointment would have existed. That court, being one of general jurisdiction touching the administration of estates, testate and intestate, every presumption is in favor of the-regularity and validity of its judgments. Nothing appeared to impeach this one, save the previous qualification of the executor and the issuing to him of letters-testamentary. There was no necessary inconsistency between the two representations of the same estate, one-succeeding the other, though the first representative was not yet dead. Had it been shown that he had not vacated the office when Forsyth was appointed, that would have branded the appointment as void.
8. As between husband and wife, parent and. child,, brother and brother, or sister and sister, payment of the purchase money of land by one of the correlatives, and causing the conveyance to be made to - the other, will generally suggest an intention to make a gift. This may or may not prevent a resulting trust; according to the circumstances of the particular transaction. Certainly, a trust for the benefit of the one paying the-money does not necessarily result.
*4359. We are clearly of opinion that the court erred in not granting *a new trial.
