ALBANY, August, 1813. LEONARD V. HUNTINGTON. Where a con ed into for the LEONARD & M'CARTEE against HUNTINGTON and another THIS was an action of assumpsit, for work done and matetract was enter- rials furnished by the plaintiffs, in repairing the brig Recomsale of a vessel, pense, against the defendants, as owners of the brig. The the possession cause was tried before Mr. J. Spencer, at the New-York sittings, taken immedi- in April, 1817. of which was ately, but it was agreed that a until the whole paid, and in the the name of the exercised no respect, it was The brig was repaired by the plaintiffs, who were ship-carbill of sale was penters in the city of New-York, during the month of Septemnot to be given ber, 1815. She was originally registered at Middletown, in the of the purchase state of Connecticut, and the register was in the name of the demoney was fendants as owners, from April, 1815, to the 28th of September, mean time the in the same year, including the time in which she was repaired register stood in by the plaintiffs. On the 3d of May, 1815, a charter-party of original owner, the brig was executed by the defendants and Luther Bingham, who, however, by which the former chartered her to B. for a voyage from [* 299] New-York to the West Indies and back, *B. assuming all the control over the expenses of the voyage, and paying 550 dollars per month, for vessel in any the use of the brig. The charter-party mentioned that James held that he Pierce was to sail as master for the voyage, who was appointed was not liable by B., with the consent and concurrence of the defendants. for repairs made On the 4th of May, one of the defendants, in the name of both, agent for, and gave a receipt to B. for four notes, payable at different periods the cred- and a small sum in cash, amounting altogether to 6,300 dollars, it of the pur- for which, when paid, or secured to be paid, they were to exethe time of exe- cute and deliver, or cause to be executed and delivered unto B. cuting the con- a bill of sale of the brig, and also to deliver and relinquish in his final consumma- favor the above-mentioned charter-party. The last of the notes tion of it, by the having been paid, the contract was consummated, by the delivery bill of sale, but of a bill of sale, on the 14th of October, 1815, after the vessel's that the persons return from her voyage to the West Indies, for which she had furnishing repairs must look been manned and fitted out by B., and after her being repaired to the purchaser by the plaintiffs. the master, as on chaser, between tract, and the delivery of a for payment. (a) B., who was examined as a witness, stated, that he could not say who employed the plaintiffs, but that it was either himself, or the captain, by his direction; that he was sometimes on board of the brig while repairing, but not often, and that the plaintiffs were strangers to him. He also stated, that he did not know whether the plaintiffs had ever sent a bill to him for repairs or not, but that they had once asked him if he would pay their demand, to which he replied, that it was out of his power; that he did not know that the defendants had had any concern with, or exercised any act of ownership over, the brig, after the execution of the contract for the sale of her, and that the repairs were commenced a few days after her return from her voyage. Pierce, the master of the brig, stated, in his deposition, taken (a) Vide Thorn v. Hicks, 7 Cow. Rep. 697. ALBANY. LEONARD V. HUNTING FON de bene esse, that he was employed by Bingham; that after the vessel had returned to New-York and discharged her cargo, he August, 1813. was directed by B. to take her to be repaired, and that she was repaired by Leonard, one of the plaintiffs; that he did not himself employ Leonard, but he always understood and believed that B. had employed him. The deponent was master of the vessel on a subsequent voyage, commenced on the 29th of September, 1815; and during the whole time that he was master, acted under the orders and *direction of B., as owner, and never received any orders from the defendants, or either of them, relative to the voyage. All the expenses of the first voyage were paid by B., and the deponent frequently mentioned to Leonard that Bingham was the owner. B. came frequently to the place where the vessel lay, and in one instance consulted Leonard as to the expediency of sheathing her; but the deponent could not say whether Leonard saw B., when he was at the vessel, more than once or twice. A verdict was found for the plaintiffs, subject to the opinion of the Court, on a case containing the foregoing facts. Cowdry, for the plaintiffs. The defendants are to be deemed the legal owners of the vessel, so as to be answerable for the repairs. The registry was in their names. It is true, there was a charter-party, but that ended in August, and the repairs were made in September; and until October, when the bill of sale was executed by the defendants to Bingham, the defendants must, in judgment of law, be considered the owner. (Abbott on Ships, part 1. ch. 2. s. 29, 30. Westerdell v. Dale, 7 Term Rep. 306. Rich v. Coe, Cowp. 336.) The charter-party described the defendants as owners, and they were to continue such, until the happening of certain events. Suppose the contract with B., as to the sale, had never been fulfilled on his part, would not the defendants have remained owners of the vessel; and the repairs have accrued to their benefit? In the case of Young v. Brander and another, (8 East, 10.) which may be cited by the defendants' counsel, the defendants had executed the bill of sale, and had done every thing in their power to devest themselves of the property, and the purchaser took possession, but neglected to deliver the certificate of registry to the proper officer, until nearly a month after the sale. And in Wendover and another v. Hogeboom, (7 Johns. Rep. 308.) which may, also, be cited on the other side, Vosburgh, the purchaser, took immediate possession of the vessel, and represented himself to the plaintiffs as the owner, and obtained an extension of the term of payment for the repairs. *Griffin, contra. The true and actual owner of a vessel is the person responsible for repairs, when the repairs are ordered by him, or by some person authorized by him as his agent. He is not answerable for repairs ordered by a stranger, or to any [ * 300 ] ALBANY, LEONARD v. person voluntarily doing them, without any request or authority August, 1818. from him. (8 East, 10.) The register of a ship is necessary only to show her national character, and is not evidence that the person whose name is inserted in it is the owner. (Sharp v. HUNTINGTON. The United Insurance Company, 14 Johns. Rep. 201. Fraser v. Hopkins, 2 Taunt. Rep. 5.) In James v. Bixby, (11 Mass. Rep. 36.) the grounds on which owners of vessels are liable for repairs are very clearly and distinctly stated, none of which exist in this case. The defendants gave no directions as to the repairs; they knew nothing of them; they were not done on their credit; nor have they derived any benefit from them; nor were the repairs ordered by any person having any agency or authority from the defendants. Bingham was the charterer, and, by the contract, was to have the appointment of the master, who, as well as the crew, were to be provided and paid by him. (7 Johns. Rep. 308.) Even if B. was not to be deemed owner, by virtue of the contract of sale, yet, being the charterer, and having the entire control and direction of the vessel, the defendants cannot be liable for repairs. (Fraser v. Marsh, 13 East, 238.) B. was the owner, pro hac vice. [* 302 ] Again; a mortgagee of a ship out of possession is not liable for repairs of the ship, or for necessaries furnished for her. (M'Intyre v. Scott, 8 Johns. Rep. 159.) The defendants are not in a worse situation, in this respect, than a mortgagee out of possession. The agreement may be considered as a virtual, though not a formal mortgage. T. A. Emmet, in reply. Owners of vessels are liable for repairs, unless a credit has been given to some other person, or they can show some act or contract which prevents their liability. The register is prima facie evidence of ownership. The defendants were, in fact, the real and legal owners. The charter-party speaks of P. as the master: he was appointed by the joint consent of the defendants and *Bingham, and was their agent. B. could not remove him without the consent of the defendants, THOMPSON, Ch. J., delivered the opinion of the Court. The demand on which this action is founded is for repairs done to the brig Recompense. The ground upon which it is sought to make the defendants responsible, is, that they were owners of the brig. But this ground is not, under the circumstances of this case, tenable. The brig, on the third of May, 1815, had been chartered by Bingham for a voyage to the West Indies. The next day, she was purchased by Bingham; but, by the contract, a bill of sale was not to be given until the stipulated price was paid, or secured to be paid: possession was taken of the brig under this charter and contract. Having performed the voyage stipulated in the charter, the brig was sent by Bingham to the plaintiffs to be repaired, they being previously informed that she was owned by Bingham, and he occasionally attending while the repairs were going on, and giving directions relating to them. Soon after the repairs were made, the last note given by Bingham fell due. The bill of sale was thereupon given, according to the contract. As between the parties to the contract, there can be no doubt this would relate back to the time when the contract was entered into. Third persons are not, however, to be prejudiced by such relation; and had the defendants remained in possession of the brig, or had the repairs upon her been made upon their credit, in any manner, the plaintiffs ought not to be affected by such relation; but that was not the case. They were not, in point of fact, employed by the defendants to make the repairs; nor could they be considered as looking, in any way, to unknown owners. For they were expressly informed that Bingham was the owner, and so far, therefore, as any claim upon the owner was relied on, he was the person they looked to for payment. The register standing in the name of the defendant, did not, in any manner, determine the ownership of the brig, according to the decision of the Court in Sharp v. The United Insurance Company, (14 Johns. Rep. 201.) The repairs were not made for the defendants, or for their benefit, *by authority or direction of the master. He was not their agent, or acting under their authority or direction. He was, to be sure, the master agreed upon by the charter-party; but that was at an end some time before the repairs were made. Pierce was the exclusive agent of Bingham, the purchaser, and held the vessel for him; and he claimed under the contract, and not under the charter-party. So far as respected the repairs, the defendants were mere strangers, (8 East, 10.) and could derive no benefit from them. They had not a right to the possession or use of the vessel. She was held by Bingham under his contract. In the case of Garman v. Bennet, (Stra. 816.) it was held, that, prima facie, the repairer of a vessel has his election to sue the master who employs him, or the owners; but if he undertakes it on a special promise from either, the other is discharged. There was not, to be sure, in the present case, any special promise by any person to pay for the repairs. But there was something equivalent to it-an actual employment by Bingham, as owner, through his agent, the master; and there can be no doubt but Bingham would be liable for such repairs. When a master contracts for the use of the vessel, the credit is given to him in respect of his contract; and it is given to the owners, because the contract is on their account. (1 Term Rep. 109.) But when the contract is made on account of any particular person, as owner, it is on his credit, and not on the credit of any unknown owner, that the expenditure is made. This case is very analogous to that of Wendover and Hinton v. Hogeboom and others, (7 Johns. Rep. 308.) There, as in this case, the consideration money was to ALBANY, August, 1818. V. HUNTINGTON. [* 303 ] ALBANY, QUIMBY V. НАЕ.Г. be paid by instalments, and a formal bill of sale was not to be August, 1818. executed and delivered until the payments were completed. No possession of the vessel was delivered; and it was held, that a regular bill of sale was not essential to transfer the property in a vessel, and that the former owners, under such a sale, were not responsible for articles furnished the vessel. They had ceased to be owners, so far as to exempt them from responsibility for supplies, especially as the credit was not given to them. These are principles which apply directly to the case before us, and go to exonerate the defendants from the present demand. They are, accordingly, entitled to judgment. [* 304 ] Judgment for the defendants. In an action of trespass on land, in a jus defendant can issue, interpose QUIMBY against HART. IN ERROR, on certiorari to a justice's Court. The plaintiff in error brought an action of trespass in the tice's Court, the Court below, against the defendant in error, for cutting down not, after plead his trees. The defendant appeared personally, pleaded the ing the general general issue, demanded a jury, and moved for an adjournment, a plea of tide; which was granted; when the venire was returned, and the der the general justice was about to impanel the jury, the defendant, by his issue, give evi- counsel, offered a formal plea of title, and tendered security. tence of title. The plaintiff objected to the new plea as too late, and the jus nor can he, un tice allowed the objection. The plaintiff having proved the trespass, the counsel for the defendant offered to prove title to the locus in quo, but the justice excluded the evidence. There was, nevertheless, a verdict, and judgment for the defendant. Per Curiam. The only question is, whether the plea of title was tendered in due season to suspend the jurisdiction of the justice. We think it was too late after pleading the general issue, demanding a jury, and obtaining an adjournment. The defendant must make his election to interpose his plea of title, before any other plea. It would be inconvenient and irregular to allow a different practice. Judgment reversed. (a) Vide Marsh v. Berry, 7 Cow. Rep. 314. Douglass v. Valentine, 7 Johns. Rep. 273 Strong v. Smith, 2 Cuines's Rep. 28. 240 |