Starr v. Knox

2 Conn. 215

• Court: Supreme Court of Connecticut
• Decided: June 15, 1817
• Status: Published

Opinion

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 Butler, 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.