Miln v. Spinola

4 Hill & Den. 177

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: January 15, 1843
• Status: Published

Opinion

By the Court,

Bronson, J,

Although the mortgagee of a ship who has not taken possession cannot be charged as owner; yet where he is in possession, and has caused the ship to be registered in his own name, I see no reason why he should not be regarded as owner, and as such, answerable for supplies furnished, and repairs made upon the ship. (Champlin v. Butler, 18 John. R. 169 ; Tucker v. Buffington, 15 Mass. R. 477; and see 3 Kent’s Com. 133—6 ; Abbott on Ship. 17—19, and note (1), p. 19.) In most of the cases where the question has been discussed whether a mortgagee out of possession could be charged as owner, it has been taken for granted that he might be so charged if he 'had taken possession, and I am not aware of any good reason why such should not be the rule.

Although the plaintiff probably expected to get his pay from Robertson when the supplies were furnished, he charged the goods to the ship “ and owners,” and I think he was at liberty to resort to the defendant.

Whether the judge was right or not in his comments upon the evidence, is a question which cannot be made on a writ of error.

Judgment affirmed.