author: Swift. Oh. J. Triimbuh, J. Hosmkii, J. Gocxd, J.

text:
    Starr and another against Knox.
    THIS was an action of book debt, for articles furnished in New-York, in the summer of 1811, as necessaries and outfits of the brig Neptune, bound on a voyage to New-Orleans, and for advances for the repairs of that vessel, made in New-Orleans, in the autumn of the same year. The defendant pleaded nil debet.

    The cause was tried at Middletown, December term, 1816, before Trumbull, Hosmer and Gould, Js.
    Though the register of a vessel is not conclusive evidence of ownership ; yet where a person, from the proper documents appears to be the unconditional owner, it must be considered as a declaration to the world, that he is owner ; and he becomes liable, of course, for necessary disbursements in repairs and supplies, procured by the master, during a voyage.
    To protect a mortgagee of a vessel from the general liabilit y of owners for disbursements, it is necessary, either that he should not appear from the papers to be the owner, or that his character as mortgagee should accompany the evidence of his title.

      New-Haven,

    June, 1817.
    On the trial, the plaintiffs, having proved their account;, gav(! in evidence the register of the vessel, in the name of the defendant, at Middletown, on the 8lh of August 1808, and the following oath made by lmn, at the custom-house : “ l solemnly swear, that to the best of my knowledge and belief, the brig Neptune of Hartford, burthen 152 tons, was built in. the stale of Massachusetts, in the year 1795 ; and that l, Norm mid Knox of Hartford, in the, state of Connecticut, am sole owner of said vessel, and citizen of the United ¿States ; and that there is no subject or citizen of any foreign prince or slate, directly or indirectly, by way of trust, or confidence, or otherwise, interested in said vessel, or in tin; profits or issues thereof.” It was agreed by the parties, that during the time embraced bv the plaintiffs’ account, the vessel was furnished with this register. The plaintiffs claimed, and offered evidence to prove, that one Normaiul Jtutter of Hart• ford, applied to them in the city of New-Fork, where their trading establishment then was, with said vessel, under his care and controul, and represented to them, that she was owned by the defendant, that the register was in the defendant’s name, and that he was the defendant’s agent in regard to the vessel ; that he desired them to furnish the vessel with necessary outfits, on the defendant’s credit; that finding, on application to the custom-house in New-Fork, the register to be in the defendant’s name, they agreed to furnish, and in part did actually furnish such outfits, on the defendant’s credit; that soon afterwards, one Junes, with ¡Sutler’s approbation, entered on board the vessel, as master for the contemplated voyage, and continued in that capacity, until her return from New-Orleans, in April 1812 ; that while she, was <yi her passage to New-Orleans, sundry repairs became necessary, and the plaintiffs, by their agents in New-Orleans, at the request of Jones, made the necessary advances for the repairs, as charged in the account; that at the tlhve of making these advances, the plaintiffs had no knowledge that any other person than 1 he defendant had any interest in the vessel, and made them on the defendant’s credit; trusting to the vessel’s papers, as well as to the representations of Butler.

    The defendant gave in evidence a bill of sale of the vessel to him and one Ledlie, from Thomas Marston of the city of New-Fork, and a writing of defeasance, executed by the dc-íendant and Ledlie to Butler; and the defendant claimed, and offered evidence to prove, that the consideration of that sale was money paid by him to Mansion, to extinguish a debt due from Butler to Marston, as security for which the vessel had been previously held by Marston, by virtue of an absolute conveyance to him from Butler.
    At the time the defendant took this bill of sale, and gave the defeasance, the vessel was on a voyage to Demerara; and the defendant admitted, that he took the freight earned in that voyage, and applied it towards Butler’s debt to him.
    Between the execution of the defeasance, and the registry of the vessel in the defendant’s name, Ledlie conveyed all his right therein to the defendant, by an absolute bill of sale.
    The defendant also claimed, and offered evidence to prove, that Butler, for several years before the plaintiffs’ account accrued, and ever after, had the solo direction, use and emolument of the vessel, and gave notice thereof to the plaintiffs, at the time the application for outfits was made to them ; and also told them, that the defendant had no concern with, or interest in, the voyage to New-Orleans. It was, nevertheless, admitted, that the defendant, in several instances, during the time that Butter had the controul of the vessel, had caused her to be insured, by a policy in his own name, in the insurance office at Hartford ; and that Butler had also, it) several instances, during the same time, caused her to be insured in his name, in the same office. On her voyage to New-Orleans, she was not insured.
    The plaintiffs claimed, that Butler’s interest in the vessel, if he had any, was unknown to them ; and that Butler had the management of the vessel, by the permission of the defendant.
    They finally contended, that if the jury should find the facts as they claimed them to be, the verdict ought to be in their favour] and prayed the court to instruct the jury accordingly.
    The defendant, on the other hand, insisted, that the facts conceded, and proved by him, warranted a verdict in his favour.
    The court charged the jury as follows. “ The court are of opinion, that if the advances were made by the plaintiffs, on the credit of Butler, the defendant is not liable. If you find, that thev were made on the credit of tlm defendant. the question is, whether Butler had authority to contract for the defendant, and on his credit. The register is not conciu she evidence, that, Butler had authority to make the contract in question with the plaintiffs : and ii'you find, that the defendant was only mortgagee of the vessel, not in possession, the defendant is not by law chargeable, unless he actually ena^ powered Butler to make the contract in question for him, and Butler actually made the contract for the defendant under that authority. If, on consideration of the evidence, you shall he of opinion, that the defendant actually gave such authority to Butler, and that Butler actually made the contract for the defendant, you will find for the plaintiffs to recover (d'the, defendant; the amount of ail such items of account, as von shall judge, necessary and proper, as supplies for, anil repairs of, the vessel : if otherwise, you will find for the defendant.”
    Under this direction, the jury found for the defendant. The plaintiffs moved fora new trial ; arid the questions of law arising on such motion were reserved for flic consideration and advice of the nine Judges.
    The, case was fully and ably argued, by Sherman and C. Whillelsey, in support of the. motion; and by T. S. Williams and Staples, contra.
    The authorities principally relied on, by the former, were, Mich v. Coe, Cowp. 636. Cary v. White, 5 Bro. Pari. Ca. 325. (Toml, edit.) S. C. cited Jlbbott 145. (JtStory’s edit.) Stokes v. Carne al. 2 Camp. 339. Westerdell v. Bale, 7 Term Rep. 310. and Williams v. Sanger and Kelly, decided in this Court, June term, 1812. The counsel for the defendant cited Jackson v. Vernon, 1 H. Black. 114. Chinnery v. Blackburne, 1 H. Black. 117. to. JBl'ntyre <$■ al. v. Scott, 8 Johns. Rep. 159.

         Samuel Williams against Hezekiaii Kelly and Johh Saxgek.
      THIS was an action of book debt, brought by Williams against Kelly and Sanger, as joint owners of a vessel, for advancements made, and services rendered, at the request of the master, in a foreign port.
      The facts in the case were these. Kelly and Sanger were joint owners of the schooner George; Kelly owned three fourth parts, and Sanger one fourth part. While the schooner was at sea on a fishing voyage, Kelly projected a voyage from the straits of Bellisle to France, to which Sarigei' dissented ; but, Kelly, being owner of the major part of the vessel, claimed the right of controulinj^the voyage.
      On the luth of June 1807, the schooner being then on the fishing ground at the straits of Bellisle, Sanger executed a charter-party of his fourth part of the vessel to Kelly, for a term of time sufficient for the performance of a voyage from thence to some one or more ports in Europe, and back lo a port of discharge in the United States, to commence on the day when she should sail on the intended voyage, for the consideration of two dollars per ton for each calendar month dux-tag which she should be thus employed.' It was stipulated, that .Kelly should sustain tile whole risk of Sanger*» interest in the vessel during the voyage; and that Sanger should furnish his fourth part of the vessel, on her departure for the voyage, with sufficient rigging, sails and furniture, so as to render her sea-worthy. It was also stipulated, that Kelly should incur the whole expense of victualling, manning, port-charges, pilotage, and all other expenses during the voyage. Kelly appointed Elias Lord master of the vessel, under whom she proceeded from the straits of Bellisle on the intended voyage.
      The schooner, on the 26th December 1807, sailed from Bordeaux, bound to New-Orleans, with a cargo of wines, on freight. On the next day, she was captured by the privateer cutter Mars, and ordered for Falmouth, (England,) where she arrived on the 2d of January 1808, and was libelled in the high court of admiralty. Lord, the master, being destitue of funds, addressed himself, by-letter of the 8th January 1808, to the plaintiff at London, representing his situation, and requesting his advice and pecuniary assistance to enable him to interpose a claim in behalf of the owners, whom he stated to be Hezekiah Kelly and John Sanger. The plaintiff accordingly interposed a claim in behalf of the defendants before the court of admiralty; in the prosecution of which, and in endeavouring to procure a release of the vessel, his claim for advancements and services originated. Kelly had the entire controul of the vessel, and of the voyage ; and the master received Ins instructious from him alone.
      On the trial, before the superior court, the only question was, whether under all the circumstances of the cáse, Sanger was liable to the plaintiff’s demand.
      Upon the facts above stated, the court instructed the jury, that the law was so, that Sanger was not liable to pay the charges' and expenses of the vessel during the voyage, nor for the matters and things charged to the defendant by the plaintiff, during the capture ; and that, therefore, they must find, that the defendant, Sanger, did not owe in manner and form, &c. The jury found a verdict for the defendant Sanger accordingly, and found for the defendants their costs. And the plaintiff moved for a new trial, on the ground of a misdirection ; which motion, -with the matter of law arising thereon, was reserved for the opinion oí the nine Judges,

        Daggett, in support of the motion, contended, 1. That the owners of a vessel are liable for all necessary expenditures, made at the request of the master. Abbott, 142. (Story’s edit.) In cases of extreme necessity, the master may even sell the vessel for the benefit of the owners. Hayman v. Maltón & al. 5 Esp. Rep. 64. The expenditures, in the case under consideration, were clearly necessary.
      2. That Sanger was jointly liable with Kelly : First, because he was not discharged from his liability by his dissent to the voyage. If he were, a minority would govern the majority. From the nature of the property, it would be useless, unless employed together. Abbott, 105, 106. Secondly, the charter-party fixes a liability upon Sanger. He let his share of the vessel; and besides, he was indemnified against its loss. He continued owner; and therefore, was liable for the acts of the master. The papers of a ship are evidence of ownership to the whole world, See Rich v. Coe, Cowp. 636.

        Goddard, contra, contended, that part owners are not liable for expenses incurred, in case they dissent to the voyage. The master can bind the owners only on the ground that he is their agent. Abbott, 142. et seq. (Story’s edit.) Sosonv. Sanford & al. Comb. 117. Jackson v. Vernon, 1 II, Black. 114. 1 Com, Contr. 335.
      The charterers of a vessel are liable for expenses accruing during the voyage, and not the owners. The master is their agent; his acts, therefore, cannot bind the owners. James v Jones & al. 3 Esp. Rep. 27, M‘Intyre V, JBoxrne, 1 Johns, Rep. 229. Oliver v. Greene, 3 Mass. Rep. 133.
      Bbaistaeh, J. [After statingrthe case.] The court in giving the charge to the jury, stated, that inasmuch as Sanger dissented to the voyage, and Kelly appointed Lord master, and gave him all the orders and instructions, the laxa xaas so, that Sanger xaas not liable for the matters and things charged to the defendants by the plaintiff, during the capture; that he xaas not liable to the plaintiff’s demand. Stress seems to have been laid on the idea of a dissent. This ought to have been laid totally out of the case, as not existing; but if it did exist, it would not, in my opinion, vary the conclusion. It is a general regulation, in all commercial countries, in relation to ships, that the majority in value shall direct their employment. Our own maritime code, enacted by our ancestors at an early period of their political existence, lately repealed, and which discovers no small share of knowledge and research on the subject, contemplated the same th ing, and said, “ those sending forth shall be liable to respond to those dissenting, upon insurance, according to the custom of merchants.” But the interest of the dissenting minority is differently protected in different countries; protected reasonably it ought to be Perhaps, the most rational method, is that adopted, and long practised, in Great-Britain. On application to a court of admiralty, by the dissenting minority, a valuation is made, security compelled, and performance of stipulations enforced, in case of loss. These powers of a court of admiralty, have long since been recognized, and established, by courts of common law. And I see no reason why the same method cannot, and should not, be practised here. If the dissenting minor owner has neglected to take these precautions, the vessel, when she sails, sails his, so far as his interest extends ; and he is liable to all the consequences which may flow to an owner.
      But the present case is not the casé of a dissenting minor owner. It is true, Sanger would have nothing to do with the voyage, as such s but he assented, that his part should perform it under a charter-party. The voyage was Kelly’s ¡ but of the vessel, Sanger remained joint owner with him.
      One position, which, in substance, is found in all our elementary writers on this subject, and which is the basis of a vast variety of decisions, determines one question ; which is, that the master, as agent for the owners, can bind them for all necessary supplies, furnished the vessel; and when without funds in a foreign port, especially, when incapable of raising money upon the ship itself, for all monies advanced him to purchase necessaries with. The authority of the master is to provide necessaries. The case of Cary against White, 5 Brown's Parliamentary Cases, 325. (Toml. edit.) determined in the house of lords, in the year 1710, establishes the principle of the personal liability of the owners, and at the same time shews, that there must be an actual existence of the necessity of the thing, which gave rise to the demand. Considering the situation of the vessel, there can be no doubt but that the advancement was highly and eminently necessary; and that the master, as agent for the owners, had power to bind them. ⅜1
      The only question that can arise, is, was Sanger an owner ? It is said, that Kelly, pro hac vice, was sole owner. But the papers under which the vessel sails, must always determine the true ownership. Abbott, 25. et seq. (Story’s edit.) A stranger can rely on nothing else. These, supported by the declarations of the master, are letters of credit; they are drafts, which, for necessaries, he may safely honour. A vessel may be, and frequently is, under a charter, of which the master has no knowledge. A charter-party may be a mere private agreement, which can never affect a stranger. It is true, a charter-party may be of importance in relation to freight. The charterers of a vessel may be the owners, as it respects the freighters. When the master is appointed by the charterers, and in their behalf; when he makes the contract with the freighters; they, as owners, are accountable for his contract, and for his conduct as their agent When there is a claim for misbehaviour or defalcation of the master, the question must always be, whose servant was he ? Whose, by the contracting parties, was he understood to be ? But for supplies and advancements necessary for the ship, the owners are liable; for these, the. master is always their agent. For necessaries, he can bind them, because it is their ship; unless, indeed, from some particular circumstance, it is apparent, that the owners were intended to be absolved, and the credit is given to some one else.
      An attention to the above distinction, I apprehend, will reconcile all the seeming difficulties in the books. The case of James against Jones & al. 3 Esp, Sep. 27. does not, in my view, militate against Parish against Crawford, 2 Stra. 1251. In the former, although the ship belonged to the - defendants, yet she had been chartered for the voyage to Reed and Parkinson. Lord Kenyon was therefore of opinion, that they were to be deemed owners for that voyage, and the master, pro hac vice, their agent. In the latter, Lee, Ch. J. says, “ the true consideration is, whether Crawford, by chartering to Fletcher, has discharged himself as owneri” And immediately adds, “ Crawford considers himself as governour of the ship/” He covenanted for the government of the ship during the voyage, and it was navigated, by his master. In botii actions, the claim was for not delivering goods taken on freight.
      But the case of Rich against Coe & al, Cowfi. 636. goes the whole length of the case tinder consideration. Rich, the elder, and Rich the younger, rope-makers, supplied the ship with cables, by order of Harwood, and made Harwood and the owners of the ship, without naming or knowing them, particular debtors. The fact was, the ship, at that very time, was, by the defendants, let to Harwood, under certain articles, for eleven years ; and Harwood had covenanted, at his own cost and charge, to repair, maintain, and keep the vessel, for tackle, rigging, &c. at all times, in good and sufficient repair. This, however, was unknown to the Riches. Lord Mansfield, in delivering the opinion of the court, says, " whoever supplies a ship with necessaries, has the personal security of the owners, whether they know of the supply, or not; that the trust, among others, is to the owners ; and although there may be a private agreement between them and another, thathe shallhave the sole management of the ship, keep in repair, &c. yet, that shall not affect creditors, who are total strangers to the transaction.”
      in this opinion the other Judges severally concurred.
      New trial to be granted

   Swift. Oh. J.

It is clear, that the register is not conclusive evidence of the ownership of a vessel : and this is a reasonable rule ; for there may be cases where it would be advantageous to commercial men that vessels should be transferred on a voyage, when the register cannot be exchanged.

It is a general rule, that the owners of vessels are liable for necessary disbursements in repairs and supplies, procured by the master, during a voyage. Though, in some instances, this may bear hard on the master, as where he lias chartered the vessel ; yetis for the advantage of ship-owners that this rule should bo adopted ; otherwise, vessels might be lost for want of a power in the master to pledge the credit of the owners for necessary repairs and supplies. Hut a mortgagee not in possession is not liable for such disbursements ; for if he were liable, it would render it extremely inconvenient to take a mortgage on a vessel for the security of a debt 5 and this would discourage, if not prevent, a practice, which is frequently found to be advantageous to the interests of commerce.

The court, then, decided correctly, in stating these general principles in their charge. But there is another point in the case, on which the court gave no opinion ; and by the omission of which, the jury were permitted to come to a wrong result. From the facts stated, it is agreed, that the defendant had executed a writing to Butter, by which he held the vessel as security for a debt •, yet from the register and papers he appeared to be the absolute, unconditional owner of the vessel. Whenever the mortgagee of a vessel intends to protect himself from the general liability of owners for disbursements, it is necessary, either that he shall not appear from the papers to be the owner, or that his character as mortgagee should accompany the evidence of his title ; otherwise, merchants furnishing supplies may be deceived and defrauded. If be procures a register in his ovui name, there should be an indorsement on the register, or some other evidence that he claims as mortgagee; and then no deception will be practised.

But where a person, from the proper documents, appears 10 be the unconditional owner of a vessel, it must be considered as a declaration to the world, that he is the owner ; and it is a necessary consequence, that he becomes subject to all the liabilities of an owner : for no principle is more fully established, or more equitable, than that a man should be responsible according to the character he holds out to the world ; and that he shall not be permitted to protect himself from responsibility, by proving that he acted in a different character..

In this case, it appears, that the defendant, by the documentary evidence, w as the unqualified owner of this vessel: as such, he was, unquestionably, liable to the demand of the plaintiff. He ought not now to be permitted to shew, that he was only a mortgagee, by evidence not accompanying his filie, and which was unknown to the plaintiff,- for if this can be done, merchants abroad could not know for whom they furnished supplies ; and it might often be prevented in cases w here it was necessary for the preservation of the vessel.

it is said, that the same difficulty occurs where there is an absolute sale, when a vessel is on a voyage. But this cannot be prevented, without an entire prohibition of such sale; and though some inconvenience may arise from the practice, yet it is much more than counterbalanced by the benefit to commerce in permitting the sale of vessels at sea. But in the case of a mortgage, it will always be in the power of the mortgagee to ifiake the nature of his title appear in connex-ion with the evidence of it.

I am of opinion that a new trial ought to be granted.

Triimbuh, J.

By the charge, in this case, two questions arc submitted to the decision of the jury. One of them is t his, whether Knox, the mortgagee, was, or was not, in possession of the vessel, at the time when the repairs were furnished by the plaintiffs.

Such a possession may be proved, either by direct testimony, or by evidence of his having exercised such acts of ownership, as are in law equivalent.

It appears, that the plaintiffs, in the court below, relied on the bill of sale and the register, as conclusive on this point: and the charge is, in my opinion, correct, as to them.

It is conceded, that the register is not, of itself, conclusive proof of ownership; nor can I conceive, that its being in fact onboard, during the voyage, can make the least difference. It is a public document, appertaining to the vessel, and necessary to show her national character.

Knox was the sole owner in law, as he has testified in the register, though his title, like that of every mortgagee, was defeasible. He held out no false colours.

To render him liable in this action for repairs, it must appear that be had exercised some act of ownership, which would amount in law to the taking possession of the vessel, or had acknowledged himself to be in actual possession. Merely to suffer the mortgagor to continue in possession can incur no additional liability.

But sundry other facts appear on the motion, tending to show that he exercised other acts of ownership, by receiving freight, making insurances, &c.; and it is claimed, 1 hat tí idler had the management of the vessel, by his permission. None of these matters are, indeed, stated with such accuracy and precision, as to evince to my mind, that the verdict was wrong, but only to show that the case was not thoroughly investigated, either as to the facts, or the points of law now claimed to arise upon them.

I concur, therefore, in advising a new trial, on this ground only, that the court submitted to the decision of the jury the question, respecting the possession of the mortgagee, without giving them any directions as to the lawr, upon the facts claimed to be proved, or the legal effect of any presumptive evidence of possession ; and that the principle, involved in this decision, is of such importance to the commercial world, that it ought not to be settled without the most deliberate investigation.

Edmond, J. dissented to, and Smith, Bbainakd and Baldwin, Js. concurred in, the opinion given by Ch. J. Swiff.

Hosmkii, J.

The brig JVbpiime was conveyed to the defendant, by an absolute hill of sale. A separate defeasance was executed by him, shewing it to be a mortgage. At; this time, the brig was at sea, on a voyage to ltemerara. Some time afterwards, the defendant, on his personal oath, that he was sole owner of the vessel, obtained a register in his own name. Notwithstanding this, .Wm«»d Butler, the mortgagor, was permitted to have the controul and use of the brig. Under the above register she sailed to ¿Tew-York; and as supplies were necessary for a foreign voyage on which she was destined, they were there procured by Butler, as was contended, on the credit of the defendant. The brig, it was claimed, was represented by him, as belonging exclusively to the defendant; and in corroboration of his assertions, he appealed to the register on board.

The court, in their charge to the jury, remarked, that if the supplies were made on the credit of the defendant, it became a question whether Butler had authority to make a contract, which should be obligatory on him. Of this fact, they say, the register is not conclusive evidence. They then direct the jury, that if they should find the defendant was only mortgagee, not in possession of the vessel, by law lie is not chargeable, unless he actually empowered Butler to make the contract in question. Pursuing the same idea, they thus express the final result of their charge. “ If, on consideration of the evidence, you shall be of opinion, that the defendant actually gave such authority to Butler, and that Butler actually made the contract for the defendant, you will find for the plaintiffs; if otherwise, you will find for the defendant.” If the defendant had omitted to take out a register, this direction to the jury would have been precisely correct. But, it is clear, beyond a question, that notwithstanding the court commenced by informing them, that the register was not conclusive evidence of Butler's authority, they end their charge by withdrawing it wholly from their consideration.. Nothing short of its being an utter nullity as to all legal effect between the parties, can justify the putting it out of the enquiry, and resting the case entirely on the actual authority conferred on Butler.

In my judgment, the court were incorrect in two particulars. The register, connected with the facts contended for by the plaintiffs, estopped the defendant from denying, that he had imparted the authority in question, and so the jury should have been instructed. Besides,^the jury should further have been informed, that if the facts contended for by the plaintiffs were true, the defendant, as mortgagee, was in the constructive possession of the brig,

1. By the law of the United States, the vendee of an American ship, who desires a register, must, exhibit a bill of sale duly executed, to the collector. Stat. U. S. vol. 2, Hr. He must swear, that he is sole owner of the ship : or, if there are other owners, he must name them, and ¡(‘resident within the United States, they must, within ninety days, transmit a like oath to the collector, or the certificate of registry granted, is void. Slat. 17. S. vol. 2. 183. He must likewise give bond that the certificate of registry shall be solely used for-illo ship for which it is granted, and in the event of a sale, that it shall be returned to the collector’s office. Slat. U. 8, vol. 2. 137 . All these pre-requisites are implied, of course, in the existence of that document.

I readily admit, that a ship’s register is not conclusive evidence of owership in favour of the person who procured it; whether it ought to be considered as presumptive proof of title, is, perhaps, not so decisively clear; but this inquiry 1 decline, as being unnecessary in the present case. For the sake of argument, I concede, that a ship’s register furnishes no proof in behalf of the registered owner. But, does it sup ply no evidence against the person who procured it? It is his personal ad, containing a solemn declaration to all mankind, that he is the owner of the ship registered in his name. Connect with this idea the following facts, applicable to the case under discussion ; that the vessel, w ith the knowledge and approbation of the defendant, sailed under this document i that he has not parted with his property since he obtained the register ; that, with his permission, Bit tier navigated the brig; and that the plaintiifs, who supplied the necessaries for a foreign voyage, had no knowledge concerning the Neptune, except what they derived from the register, and the asseverations of Haller. Is not, then, the defendant estopped from denying, that lie is the owner of the brig ?

The question, though not of frequent occurrence, seems to have been decided in several cases. The result of them is well expressed in the following words. “ Registers are not evidence to fix the parties therein named, as owners, unless •hey are shewn to have been made by their assent, or recog. nized by them.” See Phill. Ev. 308. Tinkler et al. v. Walpole, 1.4 East, 226. The necessary implication is, that with diis assent and recognition, they, as against the persons procuring them, are proof of ownership. The public declaration of a fact by a register, is, at least, equivalent, in point of legal effect, to any other declaration equally explicit. If a man live with a woman to whom he is not married, and suffer her to pass in the world as his wife, he will be responsible for such contracts made by her, as would be binding on him, if made by a woman to whom he was actually married. Watson v. Threlkeld, 2 Esp. Ca. 637. So if he permit a person to announce him to the world as a co-partner, he shall be considered in that character. Waugh v. Carver, 2 H. Black. 246, 247. A fortiori, shall he be bound for the contracts made by an assumed wife or co-partner, whom he has expressly declared to stand in that connexion with him. On the same principle, if the defendant had either orally, or by letter, informed a merchant of New-Fork, in particular, or the merchants generally, that he was the owner of the brig Neptune, he could not be permitted to recede from this declaration. He is, quoad such persons, the owner of the vessel, and responsible in that character. What can he more equitable than this doctrine ? What more promotive of good faith, or preventive of fraud ?

Now, the register of the Neptune contained the declara tion of the defendant, made on solemn oath, that he was the sole owner of the brig; and this he publicly announced to the world. Shall he be permitted to defend himself against the demand for supplies to the brig, made in confidence of the truth of his declaration on oath ? I cannot bring my mind to admit the validity of a defence, so manifestly contrary to the first principles of natural justice, and so opposite to the analogy of established cases.

The decision in Williams and Sanger in this Court, ratifies principles, confirmatory of the opinion I have expressed. •'* The papers,” say the Court, “ under which a vessel sails, must always determine her ownership ; a stranger can rely on nothing else ; these, supported by the declaration of the master, are letters of credit. They are drafts, which for necessaries he may safely trust.”

I readily admit, that the register of a ship, is not any evidence of ownership, at any given time posterior to the taking out. The registered owner may have sold the ship, and a register in the name of the vendee may not have been procu - red. But. the person who charges the owner for necessary supplies has a right to confide in The veracity of the register ; and may rest assured, that unless there has been a subsequent disposition of the property, the person named in tile register is owner still. It is true, he may be deceived in his expectations. There may have been a sale of the property, and change of the register, in a case thus circumstanced, the less good must give way to the grealer ; the sale of ships must not be obstructed, as it undoubtedly would be, if the vendor were to remain liable to demands, because his vendee has omitted to take out a register in his own name.

If it be Once established, that the register of a ship is not, as against the registered owner, proof of what it purports, a fatal stab will be given to that credit which is indispensable to the success of mercantile adventures. No man in a foreign country, or at any considerable distance from the place where she belongs, will trust a ship on the foundation of papers which prove nothing. And what is the essential difference between no register, and a register which evinces no fact ?

While the principles for which I contend, furnish a shield against the perpetration of fraud, they will not, in the minutes! degree, restrain tiie mortgaging of ships. The mortgage maj be indorsed on the register of the mortgagor, and then appearances will correspond with realities. If the mortgagor is permitted to navigate the ship, the register will evince the precise condition of the property. Hodgson v. Bulls, 3 Crouch, 140.

The grand object of the acts of registry is, “ to advance the public policy of the state, by the notoriety-of property, obtained thro gh the medium of a public register.” It is difficult <o see how this object would; be attained, if this document were not evidence, even prima facie, against the person named in it. The supposition, that in favour of the United States, it is proof of ownership, but in behalf of individuals, that it proves nothing, is founded on a distinction too attenuated for my optics to discern.

2. It is admitted, that if the defendant had taken the actual occupancy of the brig, he would be liable for all necessary supplies. He would then be the mortgagee in possession. I am of opinion, that: to all legal intents, if the facts contended for bv the plaintiffs were established, he is to be viewed in that character. That the defendant has a right derived from the mortgage to possess the brig, is not susceptible of disi-póte. It is equally unquestionable, that if he would continue bis lien upon her, it was necessary that he should take possession. Although a ship at sea may be mortgaged, yet the mortgagee, so soon as may be, on her return, must take possession of her, before the mortgage is complete. This act is indispensable to the validity of his title. Ryall v. Rowles, 1 Ves, 360. et. seq. Cooke’s Bankrupt Law, 339, 357. New land on Contr. 376. Sturtevant & al. v. Ballard, 9 Johns. Rep. 340. Ex parte Matthews, 2 Ves, 372. Russel & al. v. Hammond & al. 1 Atk, 16. Atkinson v. Mating, 2 Term Rep. 462. Portland Bank v. Stubbs & al. 6 Mass. Rep. 422.

The essence of possession is the assuming the controul and disposition of the property. This may be done in various ways ; but the taking out a register is equivalent to all oth ers, and can only be contravened, from its appearing, that the mortgagor occupied in defiance of the mortgagee’s claim. The brig, in this case, though subject to the direction of the mortgagor, in some capacity, sailed under the register procured by the defendant. Evidence was exhibited to the jury tending to prove, that the register was in the actual possession of Butler, .who averred its authenticity, and declared that Knox was the sole owner of the brig. In my judgment, the preceding facts, more especially, when connected with the asseverations of Butler, that the supplies must be charged to the defendant, are decisive to show, that Knox was in possession. The most explicit declarations of Butler cannot be more convincing : and the presumption of possession arising from the taking out the register, is corroborated and confirmed. The assertions and whole conduct of Butler evince the nature of his possession, and that he occupied the brig, not by virtue of his right as mortgagor, but by the actual permission of the registered owner. The registered owner, then, was in possession. Jackson v. Vredenbergh, 1 Johns. Rep. 159.

If the defendant, is considered as sole owner of the brig, or as the mortgagee in possession, he is bound for all necessary supplies furnished on request of his agent. Any private understanding between the defendant and Butler, can make no difference in the case. Waugh v. Carver, II. Black. 246, The confiding the care and management of the brig to But ler, constituted him the agent of the defendant. Rich v. Coe. Cowp. 636. Williams v. Sanger, ubi sup. Westerdell v. Dale, 7 Term Rep. 302. This point need not be further pursued, for a part of the supplies were delivered at the request of the master of the brig.

The principles advanced, founded in the highest equity, are indispensably requisite to prevent the perpeti ation of fraud. Under the cover of the doctrine contended for by the de fondant, a confederacy may exist between the mortgagor and mortgagee, almost beyond the possibility of detection, and infinitely detrimental to the commercial world. False colours may be displayed, and a hopeless bankrupt be enabled, by a credit derived from his mortgagee, to defraud mankind.

Gocxd, J.

From the best consideration I have been able to give the case, I am satisfied, that the direction to the jury was right. The general doctrine, that, in ordinary cases, a ship-owner is liable for supplies obtained upon his credit, by the master, is not now in question. For the court and counsel appear satisfied with the rule, (notwithstanding the doubt expressed about it in Westerdell v. Dale,) that a mortgagee, out of possession, is, prima facie, at least, not regarded as owner, within the scope of that general doctrine, and of course, not liable, as such : and in the present case, it is ascertained, that the defendant was mortgagee out of possession : that point having been left to the jury, and found for him. It has been suggested, indeed, that the defendant was once constructively in possession, by receiving freight, in part payment of his demand in the year 1806 ; and that the jury ought to have been so instructed. To this it would be a sullicicnt reply, that the point was not made at the trial. But if the act of receiving freight were to be considered, as a virtual possession ; still, that possession terminated with the act, and ceased, of course, several years before the voyage commenced, in which the advances were made by the plaintiffs. And it can make no difference, whether the defendant once had possession for a moment, and immediately abandoned it, or whether he never had it at all. But further : the freight received was earned for, and at the risk of Duller. If it had been entirely lost, the loss would have been his, and not the defendant's : and it is, surely, immaterial, whether it was received through Rutler’s hands, or those. of the freighters. But it does not appear, at all, from whom, or ¡o what way, it was received.

Upon a view of the whole case, it appears to me, I confess, that no mortgagee of a vessel could, with a prudent and proper regard to his own security, have done less, to bring himself under the liabilities of a general owner, than has been done by the defendant in the present case. As the facts must be taken to be, upon this motion, he took merely the legal title to the brig, by way of mortgage security — took out a register, in common form, as evidence of her American character, which might be essential to the stability of that security — and had her insured for a time, to guard it against the common hazards, to which such property is exposed : but he never had possession of her, for an hour; he had no contend over, or concern in, her employment; he was not interested, either in her cargoes, or her earnings ; he neither furnished her outfits, appointed her masters, nor paid her crews : but left her, for a series of years, from the time of taking the mortgage, to that of her final loss, in the sole possession, and entirely under the contro ul, of the mortgagor j w ho continued, through that whole period, to employ her, precisely as he had done before — that is, precisely as lie pleased — -without any interruption, superintendence, or interference, on the part of the defendant. The case has been argued for the plaintiffs, as if the defendant had put Butler into possession of the brig, and actually sent her to sea, with the register on hoard : and it is, indeed, difficult to conceive, how he could have sent her abroad, upon a voyage, without being, in some way, concerned in it. But he gave possession to Butler, no otherwise, than by never taking possession himself; and he sent the brig to sea, in no other sense, than that he did not prevent her going. He took a transfer of ihe legal title, merely by way of security for a debt: but was, in every other respect, practically a stranger to the vessel, as he was, in all respects, to the employment of her. If, upon this state of facts, the defendant can be subjected, it must bo upon the broad ground, that it is impossible, in any case whatever, for a creditor to hold a mortgage security upon a ship, accompanied with the usual and proper evidence of her national character, without either laying her up to decay, or exposing himself, against his will, to all the liabilities of a navigating ow'ner : a doctrine so unreasonable in itself, and so inconsistent with common con venienre, and commercial policy, that, nothing short of the most direct and decisive autlioritv could induce me to assent * to it. And no such authority, I trust, exists.

To this argument ab inconvenienti it is replied, that the defendant should have indorsed the defeasance to the bill of sale upon the register, for the purpose of giving notice to third persons. I. might ask, in tlie first place, what law, or usage, requires this to be done ? Hut, at any rate, it is sufficient to say, that such an indorsement would answer no useful purpose whatever : since it could furnish no evidence of the defendant’s being in, or out of, possession — of his being interested, or uninterested, in the voyage, the earnings, or the employment of the vessel — or, of the acting master’s being, or not being, his agent, The register, thus indorsed, would, therefore, on principle, be as conclusive, as if no such in-dorsement were made. Of course, if it is conclusive in either case, it must be so in both.

Whether, after a lapse of four years, or more, during which a thmfperson was constantly in possession, the register was proper evidence, at all, against the defendant, is not now- the subject of inquiry. It has been admitted, as evidence, w ithout objection; and the plaintiffs have had the advantage of it.

We come, then, to the main, and only material, question, which is, whether, under the circumstances of this case, the register is, as to third persons, conclusive evidence, that the defendant was owner, in such a sense, as to come within the general rule of liability for supplies, and that Butler had authority to bind him, in that character ? It is admitted, that the register would not be conclusive, if the brig had not sailed, with the defendant’s consent. What this consent was, has been already explained ; but independently of this explanation, the admission virtually concedes away, in my view, the whole ground of claim. For if the effect of the register is not — as it is properly admitted not to be — like that of a negotiable instrument, which, at all events, binds those, who have put their names upon it, in favour of a bonajide holder, by regular transfer ; it-follows, that third persons, who trust to the former, do it at their own risk. For how could the secret fact of another’s having assented to the voyage, influence them ? The register could furnish no proof of that fact-And in this case, the evidence, upen which the plaintiffs relied, of the defendant’s ownership, of his interest in the. voyage or earnings, and of Butler’s agency, nmsi have heen precisely the same, whether the defendant had usaculcd to the voyage, or not. Their right of recover} ought, therefore, to he the same, in the one case, as in (lie other ; i. c. it ought to depend upon the fact of the defendant’s being the responsible owner, and of Untier's being his agent.

In no one of the cases, cited for the plaintiffs, is the. rule, upon which they reiv, the ground of decision ; and in no one. of them, except that of Williams v. Sanger, is there so much as a uidinn to he found in favour of ii — md in that case, there is nothing more. They have all been decided upon grounds entirely foreign to that, which is now assumed in support of the motion. As far as Í am informed, no court has ever determine!!, nor does any decision, which has been produced, imply, that a register is, under any circumstances, conclusive to any purpose whatever, that can affect the rights of these parties: but there are highly respectable authorities, which, I think, plainly establish the contrary.

The case of Cary v. While was determined upon the ground, that the defendant’s testator, who was the gene ral owner, not only was interested in the voyage, (he being entitled, under the charter-party, to the freight)-; but, that lie, appointed the master, was to pay the. seamen’s wages, and to furnish the ship with necessaries. In Hick v. Coe, the defendant, who was general owner, was benefited by the employment of the ship, for which he received rent; and the court considered the master as his agent. Stokes v. Carne was decided expressly upon the ground, that the defendants, who were general owners, were entitled to the freight; and the other point, ruled in that, case, by Lord Ellen,borough, viz,, that the register, obtained upon the oath of one of the defendants, was prima facie evidence against all of them, (though, for the sake of the present, argument, it might safely he admitted to he law,) lias been since over-ruled by himself and the. whole court of B. K. in Tinkler v. Walpole, 14 East, 226. In Westerdell v. Dale, the supplies were furnished, upon the personal application of Wharton, who w as a joint general owner, with the defendant: and the case was determined upon the principle, that the act of one of two partners, in Relation to the partnership-property, is, in law, the act of both. 8 East, 13. The defendant in that case was, mo reo-v er, entitled, as two of the judges declare, to part of the profits of the ship. In Trewhilla v. Rowe, the supplies were ordcr-ed by the documentary owner in person, (the defendant being a subsequent purchaser;) and the court therefore held, that the former only was chargeable. Scott v. Stanley is so entirely foreign to every question, arising in the present case, that it would be a mere waste of time, to point out all the particulars, in which they are distinguishable. It is sufficient to say, that the defendants in that case, by taking benefit of the contract, made by Tatjlor, adopted it, as their own. In this whole list of cases, cited for the plaintiffs, there is not one, in which the principle, for which they contend, is either established, or in any way, directly or tacitly recognized. In Williams v. Sanger, determined in this court, the defendant was joint general owner with Kelly, in whose service the vessel was employed ; and was not only bound by the latter’s acts, as a partner, but was, by the terms of the charter-party, entitled to freight. In Tinkler v. Walpole it was decided, merely, that a register, obtained upon the oath of third persons, and naming the defendant, as part owner, is not even prima facie evidence against him : and the expression, imputed to Lord Ellenborough, that “ if it had appeared, that the defendant had, by any act of his own, recognised the register, he. would leave been liable to all the consequences, as a part owner,” is, if correctly reported, effectually done away, by what he afterwards declares, in the same ease ; viz. that he reserves his opinion, as to “ what conclusions may b# drawn from them,’' (ship-registers,) “ if adopted by the parties, therein named.”

Thus stand the authorities, adduced in support of the mo ¡ion : and they certainly prove no one contested point in the case. It was urged, indeed, for the purpose of showing one point of resemblance between some of those cases and the present, that lite defendant had the. actual benefit of tiie repairs bestowed upon the brig : as they were necessary to her preservation. He might have been benefited, it is true, in certain events, which might have happened ; and the same filing may be said of any other of lluller's creditors. But the claim, that the defendant was, in fact, benefited, has no foundation in the present motion. And if it had, still the question. in respect to the responsibility of his situation, as exist ing in fact, or as established by the register, would be the same, as it now is : and the determination of this question must ultimately decide the motion. Indeed, if the defendant is to be subjected, by reason of a supposed benefit, accruing to himself from the repairs ; every mortgagee of a house, or even of land, ought, upon the same principle, to be liable for repairs, procured upon his credit, though without his authority, by the mortgagor in possession.

It is to be recollected, that, to sustain the present motion, the register must be conclusive, not only that the defendant was owner, in such a sense, as to come within the general rule, subjecting ship-owners, upon the contracts of the master — but of the additional fact, that Butler was his authorized agent. For amere, stranger, though in possession of a ship and her papers, confessedly cannot bind the owner. All the cases, from the time of Lord Holt, to the present time, show decisively, that, in order to charge the owner, the relation of principal and agent must subsist between himself and the acting master. The cases of Boson v. Sanford, 2 Salk. 440. Spearing v. Degrave, 2 Vern. 643. Cary v. White, 5 Bro. P. C. 325. (Toml. edit.) Parish v. Crawford, 2 Stra. 1251. Rich v. Coe, Cowp. 636. Frazer v. Marsh, 2 Campb. 517. S. C. 13 East, 238. and Hussey v. Hullen, 6 Mass. Rep. 163., are all express and full upon this point.

Now, the jury have found, that Butler was not, in fact, the defendant’s agent ,* but it is objected, that the register precludes the defendant from making this defence. The objection, however, cannot, upon any supposable principle, be a valid one, unless the defence is contradictory to something expressed or implied in the register : for it would be a strange doctrine, that a party should be estopped, by any document, however solemn, to aver what is not inconsistent with the document itself. In the nature of the case, then, what possible evidence could the register furnish to third persons, of Butler’s being the defendant’s agent ? Butler was not the master, named in it; and there was no documentary evidence of a change of masters. How, then, could the register furnish any proof, that Butler was not a pirate, or a trespasser ? or, that the defendant was not, as lie is proved, in fact, to have been, a mortgagee out of possession — a stranger to the employment of the brig r That document certainly did not purport to confer any authority upon Butler; and if the plaintiffs trusted to it, as proof of iiis authority, they trusted to what they knew, or should have known, afforded no evidence of the fact — and therefore, trusted at f lieu-peril. The consequence is, that their right of recovery must depend upon the question, whether Butler, as master, was actually the defendant's agent ? And the jury have found, that lie was not. Indeed, if upon any principle, the register is conclusive of Butler’s authority to hind the defendant, for the supplies in question ; why should not the registered title of the mortgagee of a house, he equally conclusive of the authority of the mortgagor in possession, to subject him for repairs ?

Without inquiring, under what circumstances, or to what purposes, a ship’s register may • bé prima facie evidence, I fake t he rule to he, that it can never be conclusive either of the ownership, or of the acting master’s authority to bind the party, in \\ hose name it is made out. And with the single exception of a gratis observation in the very able opinion, delivered in Williams v. Sanger, all the authorities, both English and American, which hear at all upon the point, concur, I think, to pro\c, that such is the true rule.

Bill, if is asked, shall not a man, who,by exposing a sign, or publishing an adverfisement, or by any similar means, cien falsely holds himself out to the wTorld, as the partner, husband, or employer of another, or as sustaining any other responsible relation, he answerable to third persons, in the character which lie lias thus assumed ? Undoubtedly : and, for this plain reason, that he holds out the e\ ideuce of that character, for the very purpose of inducing a belief in the public, that lie. actually sustains it — and because the means, he employs for that: purpose, are adapted to the end. But “ the register arts,” says Lord Ellenborongli, in answer to the same argument, in Frazer v. Marsh, 15 East, 339., « were passed diverso intuitu’* Registers are not required by the law, nor taken out by individuals, for the purpose of furnishing evidence of title or possession in the owner, or agency in the acting master $ but merely to prove the national character of the ship. The object of the law is to ascertain, not whether C. or D. is owner, nor whether C. or J). is master; hut merely whether theship is American or foreign. 7 Johns. Rep. 308. Hence, he who confides in the register, as evidence of either of the two former facts, trusts to that, which was never designed, by the law, or the party, as evidence of either; and therefore, does il at his peril. Such appears clearly to he the rule, even in England, where a compliance with the register acts is necessary (as it is not here,) to the consummation of a transfer of the title. The words of Bayley, J. in M'Iver v. Humble, 16 East, 176, are very strong and pointed to this purpose. It is said,” In* observes, “ that wo must look to the registeis to sec who are the legal owners. But the object of the registry-acts was to inform the government, w bother the owners were British’'— « the object was not to inform the tradesman, to iwhom he should gire credit.” The cases of roung v. Brander, and Frazer v. Marsh, both shew, that a person may be deceived. as to the. true owner, by looking merely'to the registers : and that, therefore, before trust is given, it is proper for the tradesman to enquire further. These remarks are in accordance with the. whole current of authorities, which apply at all to the question. In Fraser v. Hopkins, 2 Taint. 5. which was an action like the present, the court held, that the entry in the custom-house books, of (lie transfer of a vessel, to a particular person, “ is not even prima facie evidence for a stranger to charge that, person, as owner, unless the entry be show'll to be made by the authority of the person named in it.” The only inference, that can he deduced from this determination, in favour of the plaintiffs, is, that, when the entry is made by the “ authority” of the person named in it, it might, perhaps, he prima facie evidence against him. Admitting the inference to he law, (for it does not affect the present case.) the observation of Lord Mansfield, (Jli. .1. in relation to a ship's register, is very material: The entry ,” he observes, “ is evidence of the registration ; it is not evidence of the transaction of sale” — “ nor was it ever supposed, that a register was of itself evidence,” (i. c. of title.) And yet, the register was the only evidence, on which the present plaintiffs relied, except, as they claim, the verbal declarations of Butler; and it will be agreed, that so far as they depended upon those declarations, they did it at their own risk. In Frazer v. Marsh, 13 East, 2.38. the defendant, w ho was the registered owner, had chartered the ship to the master, at a rent for a certain number of voyages. The plaintiff furnished stores foe her, upon the application of the master : and the court of B. Jt. held, that the defendant was not liable for the stores. Whether the register was shown to the plaintiff, before the stores were furnished, does not; appear : but Lord Ellenborough observes, that, “ to say, that the registered owner, who divests himself, by the charter-party, of all controul and possession of the vessel, for the time being, in favour of another, who has all the use ami benefit of it, is still liable for stores furnished to the vessel, by order of the captain, during the time, would be pushing the effect of those acts (the register-acts) much too far.” This case, i admit, is not directly in point; but the doctrine, advanced in it, certainly is. The defendant in the present case, it is true, cannot be said to have “ divested himself of all controul and possession of the vessel j” because a fact, at least equally strong in his favour, rendered it impossible, that he should have done so ; via. that ha never had the controul or possession of her.

The case of Hussey v. Allen & al. 6 Mass. Rep. 163, goes even beyond the length of the present defence. In that case, the defendants were general owners : the register was in their names; the voyage was theirs, and for their sole benefit ; and the master, who procured the supplies, was appointed by them. But, as they had sold the vessel while abroad, before the supplies were furnished ; they were hold-cn not liable. An attempt has been made, to distinguish that case from the present, upon the ground, that, after the transfer, the vessel no longer sailed in their names, with their consent — their apparent ownership, during the residue of the voyage, being unavoidable. But the evidence of their ownership, so far as depended upon the register, was precisely the same, as if there had been no transfer; and this evidence, such as it is, they voluntarily sent abroad. And the case turned entirely upon the question, whether the master, at the time of procuring the supplies, was actually their agent, or not.

But common convenience, it is said, requires, that owners should be allowed to sell a vessel afloat, without subjecting themselves for subsequent supplies. The same principle of convenience as plainly requires, that a creditor should he permitted to take a mortgage security upon a ship, without incurring the indefinite responsibilities, to which the mortgagor, when left in possession, may choose to subject him. The case of Hussey v. Allen, if law, (and I know of no »ase or principle opposed to it,) certainly decides the present. It proves, incontéstibly, that those, who trust to the register, do it at their own risk. And if third persons are unwilling to incur this hazard, they must require a letter of credit, or some other satisfactory evidence, or refuse to make advances.

The case of Young v. Brander, 8 East, 10. in which the register continued in the defendant’s name, after a sale to another, proceeded upon the same principle. The court of //. if. held tlie defendant clearly not liable : and Lord Ellen-borough, in giving the opinion of the court, observes, “ It is true, that the owners of a ship are liable for repairs, order-rd/or them, or for their benefit, by their master ¿ but it was never heard of, that if a stranger ordered repairs for another’s ship, tiic owner was liable for such repairs.” It is to no purpose to say, that the custom-house documents, in that case, continued in the defendant’s name, through the neglect of the vendee. That circumstance is not even adverted to, in the opinion of the court. The judgment proceeded upon the general ground, which l am endeavouring u> maintain : am! if the effect of those documents were such, as is now ascribed to them ; it would have been the defendant’s duty, in that case, to see, that the proper entry of transfer was made, or to indemnify the plaintiff, who was deceived by the want of it.

The case of Pirie v. Anderson, 4 Taun. 652. has a strong, and I think, a decisive bearing upon the general question. That was an action on a policy of insurance, in which the interest was alleged to be in A. B. and C.: and to prove their interest, the original register, purporting to have been made out upon the oaths of all of them, was produced : but the affidavit, upon which the register purported to have been made, was not produced. Here, then, the documentary evi denee, adduced on the trial, to establish the fact of interest.

> was precisely the same, as was exhibited, in the present case, to the plaintiffs : and the court determined, that it was not j even admissible. The evidence in that case, it is true, was Í offered in behalf oí the documentary owners, and not, as in the present case, against them. But the court decided, exclusively, upon the genera] ground, that the mere register is never evidence of title ; and held, that property in a ship Imust he proved by possession in the plaintiff, his vendors, or bailees, accompanied with a certificate of registry.” “ There Can be no doubt,” says Mansfield, Cli. J. « that the register ;• is not legal evidence of ownership.” The reason is, that the register was never intended, and cannot, therefore, be regarded as evidence of title. In the case last cited, Gibbs, J. says, “ It has been asked, how property in a ship is to bo proved ? How was it proved, before the statute ? By proving actual possession in the plaintiff, or in those, to whom, &c. accompanied with the evidence of the registry, in oraer to ■make the other evidence admissible.” But it is not pretend cd, that, under the laws of the U. 8. the register is necessary even for that purpose. Non-compliance with the register-act forfeits the American character of the vessel : hot does not affect the title. Hence, in Wendover v. Hogeboom, 7 Johns. Rep. 308., it was determined, that the tille to a ship may pass — and, of course, be proved — by mere delivery, under a parol contract, without even a bill of sale, in Robertson v. French, 4 East, 130., the same rule is laid down, as to the regular mode of proving title to a ship, (viz. by possession,) as in Pirie v. Anderson. I have referred to the three last cases, not as comparing with the present, in point of precedent, hut for the purpose of showing that the ownership of a vessel is to be proved precisely like that of any other personal chattel; that the register is not the ordinary, nor proper, evidence of title, and therefore, not that kind of evidence, upon which third persons are expected to rely, or upon which they can rely, except at their own hazard.

Upon the whole, every view, which I have been able to take of the case, confirms me in the opinion, that the motion ought not to prevail.

Goddard, J. gave no opinion, having been concerned as counsel in a cause connected with this.

New trial to be granted.


source: Caselaw Access Project

author: Swift, Ch. J.

license: Public Domain

text:
    Trumbull against Smith.
    JUDGMENT being rendered against the defendant by default, before the superior court in Litchfield county, Jiugust term 1817, he moved the court that execution should issue against his goods and estate only, and not against bis person. The facts were these. The defendant, upon his petition, duly preferred, in his own name, was adjudged, in Jiugust 1816, to be an insolvent debtor, within the statute, entitled “ An Act to authorize the superior court to grant relief in certain cases of insolvency (October Session 1815, ch. 14.) and such proceedings were thereupon had, in pursuance of the statute, that the defendant obtained from the commissioners a certificate, under their hands, of his conformity to the requirements of the statute. The debt for which the judgment in this case was rendered, was due at the date of Hut-tile petition, to the plaintiff, from the defendant in his i vidual capacity. The plaintiff was described in the pel ilion as a creditor of the firm of Lucius Smith & Co., consisting of Lucius Smith and the defendant, and as such was legally served ¡tíi a copy of the petition, and had notice of its pendency: but he was not described as a creditor of the defendant in Isis individual capacity, though other persons were named as creditors of the defendant in his individual capacity, and were cited as parties to the petition. The court referred the question to the nine Judges for their advice.

      Where A. an insolvent debtor, in his petition to the superior court. for reljef, under the statute ( October Sess. 1815, ch. 14.) described B. as the creditor of a firm, consisting of . and another, but not as the creditor of A. in his individual capacity, and B. was legally cited to appear; it was held, that he was concluded by the certificate, with respect to a debt against A. in Ills individual capacity.

      Hartford,

    November, 1817.

      Bacon, for the plaintiff,
    contended, that the plaintiff’s rights regarding this debt were not affected by the certificate, because the plaintiff, quoad this debt, was not a party to the petition. Where the insolvent designates the persons to whom he is indebted, and the capacity in which he is indebted, he is to be confined to such specification. The plaintiff bad no notice that the defendant sought to be relieved from this debt. As a creditor of Lucius Smith & Co. he might be willing that the relief prayed for should be granted, while he might be able to shew good reasons, if he had an opportunity, why the operation of law upon a debt against the defendant alone should not be suspended. The principle in question may be tested, by enquiiing whether a general discharge given by the plaintiff in favour of Lucius Smith & Co. would discharge a debt against the defendant in his individual capacity. It clearly would not.

      Trumbull, contra, insisted,
    that it was sufficient that the plaintiff was a creditor of the defendant, and that lie was duly cited to appear. The statute does not require, that the nature of the debt should be described in the petition.
   Swift, Ch. J.

In this case, the plaintiff was a party to the petition for an act of insolvency; he had legal notice thereof; he had right to make defence against granting the same ,- and on its being granted, he was entitled to claim and receive his dividend of the defendant’s estate. He had all the privilege of a party, and ought now to be concluded by it. The execution, therefore, ought to issue only against the estate of the defendant.

, In this opinion the other Judges severally concurred, - except Goutd, J., who gave no opinion, having been of counsel in the cause.


text:
    Starr against Leavitt.

      Hartford,

    November, 1817.
    THIS was an action of ejectment, to recover an undivided part of two pieces of land, bearing such proportion to the whole as 597.01 bears to 5069.94.
    The case was as follows. The plaintiff claimed title by virtue of an execution in his favour, against Simeon Mitchell, on which the premises were set off. The first piece lay partly in Roxbury, and partly in Washington ; and the second, wholly in Washington. They were owned in equal undivided moieties, by the debtor and his brother David Mitchell, during the life-time of the latter, as tenants in common, the titles by which they were held being distinct. On the death of David, the debtor became entitled, as heir at law, to one seventh part of David’s interest, in addition to the moiety which he before owned. The debtor’s interest in the second piece, however, was subject to the widow Susannah Mitchell’s right of dower. The execution and cost amounted to 597 dollars, 1 cent. The land in Washington was appraised, by one set of appraisers, at 3452 dollars, 94 cents ; that in Roxbury, subject to the incumbrance of dower, by another set of appraisers, at 1617 dollars ; making in the whole 5069 dollars, 94 cents, the undivided half being 2534 dollars, 97 cents. The officer setoff the Sand a& follows : “T do, therefore, set off an undivided proportion and interest of the debtor in the above described land and buildings, in the proportion that 597 dollars, 1 cent, is to the aforesaid sum of 2534 dollars, 97 cents ; and in the whole of said land before described, in the proportion that 597 dollars, 1 cent, is to the said sum of 5069 dollars, 94 cents ; and the same is set off, subject to the aforesaid incumbrance of said widow’s dower, to the creditor in said execution, in full satisfaction thereof, and of my fees thereon.”
    The defendant claimed title, by virtue of two executions against the same Simeon Mitchell, issued and levied before that of the plaintiff. One execution, with the cost, amounted to 138 dollars, 21 cents $ which the officer levied on « the one equal half” <d'the second piece above mentioned. The certificate of the appraisers was as follows : “ We, the subscribers, did appraise the above described undivided land tobe worth to the creditor the sum of 13H dollars, 21 cents, in full satisfaction of this execution and costs.” The land was set off, by the officer, thus r “ I do hereby give the within named Samuel Leavitt, creditor, all the right and title to the above described undivided land, that I by law have a right to give, for his own proper use and benefit.” The other exe-cation, amounting with the cost, to 435 dollars, 88 cents, was levied upon “ the equal half of a piece of Sand lying in Washington, as the property of the execution debtor, and containing 12 acres and 79 rods, lying in common and undivided with the heirs of David Mitchell, deceased being part of the second piece before mentioned, designated by metes and bounds, and appraised at the amount of the execution and cost. This land was set off in the same form as the other piece.

      The creditor of one tenant in common cannot take by execution a part of the land held in common, by metes and bounds, but must spread his execution over the whole, and take such an undivided propnt - tion as will satisfy his debt.
    Where there are two or more distinct tracts of. land, held by the debt- or as tenant in common, by distinct titles,(lie creditor cannot spread his execution over them all, and take a part only of the debt- or’s right in each, but he must take the whole of the debtor’s right in one tract, before he takes any portion of another.

      This case was reserved, by agreement of parties, for the consideration and advice of the nine Judges.

      Chapman and Sherman, for the plaintiff,
    contended, 1. Thai the defendant gained no title under his levy ; because he took a part only of the land held in common by the debtor ancf his co-tenant, and had this set off by metes and bounds ; and because he did not take the whole of the debtor’s interest in the part taken. The debtor’s interest was seven twelfths, and one half only was taken. They cited Johnson v. Turner, in the superior court in Litchfield county ; llinman v. Leavenworth,

       in this Court, June term 1813 -, and Porter v. Hill, 9 Mass. Rep. 34.

      2. That the plaintiff acquired a valid title under his levy, as he took an undivided portion of the whole.

      Benedict and Bacon, for the defendant,
    insisted, 1. That it was correct to levy upon the lands of the debtor, and set off so much, by metes and bounds, as would satisfy the debt, the nature and quantity of the debtor’s interest therein being taken into consideration by the appraisers. The statnlc contemplates a levy upon lands, not upon rights, or proportions of interest. The appraisers are sworn to appraise, lands. In England, an elesii must be extended by metes and bounds. Fallen, v. Ilirkbcak, Garth. 458. Count de Stamford v. ¿Gallium, i Lev. 160. Anon. I Gent. 259. Sparrow v. Mattersock <$• al. Cro. Gar. 319. Den v. Lord Abingdon, Doug. 475, 6.
    2. That admitting the defendant’s levy to be defective, on the ground that he did not take the whole of the debtor’s interest, the plaintiff's levy is subject to the same infirmity: and, ofeourse, he cannot recover.

       HofiiAK against Leavenwobth,
      THIS was an action of partition, in which the plaintiff stated, that he was tenant in common with the defendant of thirty acres seventy-five rods of land, in such manner and proportion that the plaintiff was entitled to have and to hold in severalty one third part thereof, and that he had a right to have his said proportion aparted and set out to him, by proper metes and bounds. The defendant pleaded, that he did not hold as tenant in common with the plaintiff, in manner and proportion as in the declaration alleged.
      The plaintiff claimed title under the levy of an execution against Russell Leavenworth. The facts were these. A tract of land called the Burton-farm, had been conveyed, by a deed from one Burton, to the defendant and Russell Leavenworth, in such .proportions of interest, that the former took two third parts, and the latter one third part. The plaintiff having an execution against Russell Leavenworth, levied it on one equal and undivided third part of thirty acres and seventy-five rods of lands, being part of the land so conveyed. The court instructed the jury, that the execution was not duly levied so as to convey t« the plaintiff the interest and title of Russell Leamenworth in and to the land. The jury having found a verdict for the defendant, the plaintiff moved for a new trial on die ground of a misdirection ; and the motion was reserved for the consideration and advice of the nine Judges.

        Racom, in support of the motion.

        Gould, contra.
      Bhaikami, J. The defendant and Russell Leavenworth had a unity of title, though not an equality of interest. The title of each in their several proportions, pervaded the whole ; and whoever undertakes to acquire a title to the interest of either, must take a proportionate interest throughout the whole. Had the plaintiff’s demand been sufficient to absorb the whole of Russell Leavenworth’s third in the farm, the whole of his interest would have been taken and conveyed. Had it been sufficient to cover onl) half of his third, the levy should have been made accordingly; and the half of his third throughout the whole, and that only, would have been taken and transferred.
      In this ease, the levy ought to have been made upon such proportion oí Russell Leavenworth’s third in the whole as the amount of the execution bore to the value of his third throughout the whole. This would have left him tenant in common with the plaintiff and the defendant throughout the farm.
      A different inode would put it in the power of a levying creditor, virtually, to malee partition for himself — to carve his portion to suit his pleasure.
      It was contended, that the plaintiff took and could hold some proportion of the land levied upon; if not a third, yet as much as he could have held, had the levy extended equally over the whole, and a sufficiency of Russell Leavenworth’s{hird throughout the whole been taken to satisfy the execution. But in this, it appears to me, there are two difficulties. In the first place, there is no standard given to measure by — no data to start from. In the second place, if the plaintiff does not hold in the full proportion stated, Russell Leavenworth becomes immediately a party in interest, and ought to be made a party to the suit.
      I am, therefore, of opinion, that the charge was correct.
      Edmond, J. was of opinion, that the plaintiff was not entitled to a verdict and judgment in his favour, because he had not made Russell Leavenworth a party to the suit.
      The other Judges concurred, fully, in the bpinion given by Judge Brainard.

      Hew trial not granted.

         Tit. 63. c. 1. s. 6, 7.

        Tit. 122. c. 1. s. 2f.

   Swift, Ch. J.

The plaintiff and defendant both claim the land demanded, by the levy of executions upon it, as the estate of Simeon Mitchell; and questions arise respecting their validity.

The defendant has levied upon pari of a piece of land, which Simeon owned as tenant in common with the heirs of David Mitchell; the same has been setoff to him by metes and hounds : and he lias taken the undivided moiety or right of Simeon to the part of the tract so described. This levy is void, according to the prim ¡pies adopted by tins Court, in the case of Hinman v. Leavenworth. Simeon had no such estate as an undivided moiety or share in a paid, of the tract he owned as tenant in common : he had an undivided share in the whole tract ; and the proper mode of levying the execution would have been, to spread it over the whole tract Itoidcn by Simeon as tenant in common, and to take such an undivided proportion, as would satisfy his debt. If the debt, had been sufficient to take the whole share of Simeon, then tin; levying credilor would have bren tenant in common with bis co-tenant : if not, then he would have been tenant in common with the others in unequal shares, and a partition of the whole would have been made. .But upon the present levy, partition must be made of part of the common right of Simeon with the other tenants ; which cannot by law be done.

'The plaintiff adopted the proper mode of levying his execution, but lie. has spread it over two distinct tracts of land hidden by Simeon, as tenant in common with the heirs of David, by distinct titles, and has taken an undivided share of Simeon, in both pieces ; but has not taken the. whole of Simeon’s right in either piece. He should have taken the whole of Simeon’s right, in the tract on which he first levied, and then, if that had been insufficient to satisfy his execution, he might have levied on the other tract, and have taken sufficient to pay his debt. If the mode adopted by the plaintiff should be sanctioned, it would be in the power of a creditor to levy an execution upon any number of separate tracts of land, liolden by a debtor as tenant in common, by distinct titles, and with different co-tenants, and take an undivided share of each, so as to become tenant in common with them all. This would be productive of great and unnecessary expense, and might embarrass the title as well as the occupation of the lands, and ought not to be permitted.

I am of opinion that the plaintiff is not entitled to recover.

In this opinion the other Judges severally concurred, except Edmond and Gould, Js., who gave no opinion, the former being related to one of the parties, and the latter having been of counsel in the cause.

Judgment to be given for the defendant.


author: Swift, Ch. J. Gould, J.

text:
    Hill against Blackstone :
    IN ERROR.
    THIS was an action of debt, on a bond, given to the plaintiff, as judge of probate, by the defendant, as administrator with the will annexed of the estate of Stephen Biackstone, deceased.
    The plea, having prayed oyer of the condition, which was in the usual form, averred performance.
    In an action on a probate bond, the plaintiff assigned as a breach,that certain articles of personal property had been given hy will to A. and B,, which the defendant had not distributed, and of which he had not rendered any account to the court of probate. The defendant, in his rejoinder, alleged, that the suit was brought for the sole uss and benefit of the legatees : and that after the estate was inventoried and distributed, they received of the defendant, and gave receipts fir, their whole shares. These facts were traversed by the plaintiff, and found, by the jury, in favour of the defendant. The plaintiff moved for judgment non obstante veredicto. Held, that the facts stated in the rejoinder constituted a complete defence for the defendant; but if otherwise, yet as the defendant had confessed no right of action in the plaintiff, and the defect might have been supplied by a new plea, the plaintiff was entitled only to have the verdict set aside, on a motion in arrest, and a repleader awarded.

      Hartford,

    November, 1817.
    The replication alleged, “ that the defendant did not make* or cause to be made, a true and perfect inventory of the goods, chattels, credits and estate, of the deceased, which came to his knowledge and possession, in this, in®. that after the death of the deceased, there came into the hands and possession of the' defendant the following property, which was the property of the deceased at the time, of his death, viz. 20 ounces of silver bullion, of the value of 25 dollars ; one pair of money scales, of the value of 2 dollars ; and one mortar, of the value of 3 dollars ; whereof the defendant hath made no inventory, nor rendered any account to said court of probate.” The replication further alleged, that 500 dollars worth of personal estate was, by the will, given to Abigail and Elizabeth Hoadley, sisters of the deceased, which the defendant had not distributed, but converted to his own use, and had never rendered any account thereof to the court of probate.
    The rejoinder of the defendant averred, that this suit was brought and prosecuted, in the name of the plaintiff, for Use-sole use and benefit, and by the direction, of Abigail a-ui Elizabeth Hoadley ; and that they, after the death of said Stephen Blackstone, and after the estate had been duly inventoried and distributed, received of the defendant their whole shares of the estate given them by the will, and thereupon acknowledged the receipt thereof in full, by their writing under their hands.
    This last * allegation was traversed by the plaintiff j on which issue was joined. The jury returned a verdict in favour of the defendant. The plaintiff moved for judgment in his favour veredicto non obstante. This motion was disallowed, and final judgment rendered for the defendant 5 for the reversal of which this writ of error was brought.
    JV*. Smith and Bristol, for the plaintiff,
    contended, that he was entitled to judgment upon the whole record, because a breach was well assigned by him, to which no sufficient answer was given. The condition of the bond required the defendant to inventory the estate of the deceased, to make distribution, and to render a just and complete account of his administration. It is no excuse for his omission of duty in these respects, that this suit is brought for the benefit of Elizabeth and Abigail Hoadley, and that they have received, jftd given their receipts for, their shares of the estate. The plaintiff has a right to cali upon the administrator to show how he has administered, and to settle his account. Eliza-abeth mil Abigail Hoadley had no power to discharge a suit on this bond. The defendant might as well have pleaded an accord and satisfaction with them, as such a discharge.

      Daggett and Staples, for the defendant,
    insisted, 1. That the plaintiff had no personal interest in the bond, being merely a trustee for others. He can recover nothing, except for the benefit of others. The rejoinder, therefore, which alleges, that those persons for whose benefit alone the suit was brought, had been satisfied, and had given a receipt in full, forms a complete defence.
    2. That admitting the issue to be immaterial, yet as the defendant has not confessed a right of action, the plaintiff is not entitled to judgment non obstante veredicto, but he should have moved in arrest of judgment, and if the motion prevailed, the court would have awarded a repleader. 2 Tidd’s Prac. 828 ⅜* seq. 1 Chitt. Plead. 633, 4.
   Swift, Ch. J.

The plaintiff assigned as a breach of the bond, that certain personal estate had been given by will to Abigail and Elizabeth Hoadley ; that the same, had been ordered to be distributed; and that the defendant had not rendered any account of said property to the court of probate. The defendant in his rejoinder alleged, that the suit was brought for the sole use and benéfit of the legatees, and tliat after the estate was inventoried and distributed, they received of the defendant the whole of their share, and gave a receipt in full for the same. This fact was traversed by the plaintiff, and found by the jury in favour of tlie defendant.

It is now insisted on by the plaintiff, that this allegation was insufficient, because it does not state that an account was rendered, or return made to the court of probate, and that he is entitled to judgment. I am of opinion, that the facts stated in the rejoinder constitute a complete defence for the defendant. It not only appears, that the parties in interest have executed a receipt in full for their shares of the estate, but it appears that they actually received the same. This was a literal compliance with the will, and a strict perform-anee of the condition of the bond. There is a distribution of the estate informally alleged by the defendant, and found by the jury. No time appears to have been limited for the return ; and the defendant was not bound to render any further account of the property to the court of probate. Of course, there has been no forfeiture of the bond.

Rut admitting the rejoinder to be insufficient, the plaintiff would not have been entitled to judgment; on his motion ; but he should have moved in arrest ; the verdict might have then been set aside, and a repleader ordered.

It is a general rule, that where the issue is joined on a fact totally immaterial, or insufficient to determine the right, so that the court cannot know for whom judgment ought to be given, they will, after verdict, award a repleader: As where in an action of debt on bond conditioned to pay money on or before a certain day, the defendant pleads payment on the day, which issue, if found for the plaintiff, would be inconclusive, as the money might have been paid before ; the court will, therefore, award a repleader. But this will only be in cases where the party can amend his plea, or make a better plea. But if it appears from the whole record, that nothing material can be pleaded in any shape whatever, and that a repleader would be fruitless, it will not be awarded ; as where the defendant’s plea amounts to a confession of the plaintiff’s cause of action, though issue be joined on an immaterial part of it, and a verdict found, yet the court will treat the verdict as void, give judgment on the confession, and assess the damages accordingly. Rex v. Philips, 1 Burr. 301. Lacy v. Reynolds, Cro. Eliz. 214. Jones v. Bodinner, Carth. 370.

But in the present case, the defendant has not confessed the plaintiff’s cause of action ; be has not acknowledged a forfeiture of the bond ; he has, at most, failed to allege the rendering of an account, and making due return to the judge of probate. This defect might have been supplied by a new plea. The plaintiff, therefore, eould not be entitled to judgment on his motion. The proper way would have been to have moved in arrest. ; and the court, if they had considered the rejoinder insufficient, and the issue immaterial, could have set aside the verdict, and have awarded a repleader.

I am of opinion that there is no error in the judgment complained of.

Trumbull, Edmond, Smith, Brainard, Baldwin, Goddakb and Hosmer, Js. were of the same opinion,

Gould, J.

I can discover no foundation for either of the exceptions, which have been taken to the judgment below. The first breach assigned, (that no true inventory was exhibited by the administrator) is, confessedly, to be laid out of the case : It being disproved by the verdict. And it seems to me very clear, that the record furnishes the same answer to the second, vice, that the administrator has never distributed the specific articles,enumerated in the replication, to Abigail and Elizabeth Hoadley. For it is expressly alleged in the rejoinder, and found by the verdict, that “ after the said estate had been duly inventoried and distributed,” they “ received of the administrator, their whole shares of the estate devised.” Now, what is this, in substance, but an averment of a distribution to them, and a receipt, by them, of their respective shares ? The plain amount of it is, that after their distributive shares had been ascertained and set out, the legatees received them. If the averment is, in any respect, informal j advantage should have been taken of it by special demurrer ; but such an exception is now too late. It appears, then, from the record, that the shares of these legatees were actually distributed to them, according to the will, and accepted by them : And this, so far as regards those shares, is a literal performance of the condition.

The objection, that the’ interest of these legatees, in the recovery claimed in this action, is only equitable, and that their acts cannot, therefore, defeat the legal title of the plaintiff, on record, is entirely irrelative. The general question, how far rights, merely equitable, may be recognized in a court of law, does not, and cannot, arise. For as to that branch of the condition, upon which the breach now in question is assigned, the defence pleaded in the rejoinder, and found by the verdict, is that of strict performance. And nothing can be clearer tiian that the performance of a contract, according to the terms and true intent of it, (whoever may be the parties to the act of performance), is a complete defence to any suit upon it, as well at law, as in equity. Thus, if A. executes a bond to B. for the payment of money to C., it could never be doubted, for a moment, that payment to C. is a good defence to an action on the bond : though he is not a party to the action, Now, this is, in principie, pre cisely (lie present case, so far as regards the second breach assigned. The defendants became bound to the plaintiff, that the administrator shook!, among other things, distribute, according to the will, to dbigttil and Elizabeth Hoadley, their respective «liares of the effects, which should come to his hands. The rejoinder alleges, in substance, that those shares have been distributed to them ; and the jury have found the allegation to be true. It appears, therefore, from the record, that that part of the condition, upon which the second breach is assigned, has been actually performed.

it is objected, however, that this allegation, in the rejoinder, is a departure. But it*is impossible to support this proposition. For as the fact alleged, is performance of a part of the condition of the bond, it goes, to that extent, directly to fortify the general allegation of performance, in the plea in bar. But if it were a departure, it would he aided by the verdict : So that, in either point of view, the objection must fail.

The last breach alleged, or rather that which is last alleged as a breach, is, that the administrator has never rendered any account of the property specified in the replication. To this, it is a sufficient answer, that neither the law, nor the condition of the bond, requires of him any such account. All that he was hound to do with the property, was to distribute the surplus of it, after the payment of debts and charges, according- to the will $ ami this, as the record shows, has been done. This part of the replication, then, discloses nothing, which amounts to a breach : Since the subject matter of it is, clearly, not within the condition of the bond.

I am, therefore, of opinion, that the judgment ought to he affirmed.

Judgment affirmed.