Part I. with it at this day, and I adopt the doubt (a). The case, which is given by Mr. Abbott from the register book, is a clear decision by Lord HARDWICKE, that part-owners of a ship, being tenants in common, and not joint-tenants, have a right, notwithstanding, to consider that as a chattel, used in partnership, and liable as partnership effects, to pay all debts whatever to which any of them are liable on account of the ship. His opinion went the length that the tenant in common had a right to a sale. There is great difficulty upon that case; and the inclination of my judgment is against it; but it would be a very strong act for me, by an order in bankruptcy, from which there is no appeal, to reverse a decree made by Lord HARDWICKE in a cause. From a manuscript note, I know it was his most solemn and deliberate opinion, after great consideration, that the contrary could not be maintained; and there is no decision in equity contradicting that." Upon a subsequent day, Lord ELDON said, that after much consideration he must decide against the case of Doddington v. Hallett; and soon afterwards a petition, presented under similar circumstances in another bankruptcy, was also dismissed (b). 6. Ship's Accounts, how adjusted between Part-owners. The ordinary remedy for part-owners to obtain an adjustment of the ship's accounts among themselves is by action in the chancery division of the High Court of Justice (c). [But in a case where several part-owners entered into a written agreement, whereby they and each and every of them did agree to and with the others and each and every of the others, that the ship should proceed on a certain voyage, and be under the exclusive management and control of one of the parties as husband thereof; and that, after the ship's return, a full account should be made out of the ship and her concerns, and the net profits be divided according to the proportions; it was held that each individual party to the agreement might maintain an action at law upon it against him who had acted as the husband, for not making out an account and dividing the profits within a reasonable time after the ship's return (d).] Thus, where two part-owners of a ship, who were also partners as to the proceeds of a voyage, settled and adjusted their accounts as to (a) Referring to the author's observa- Harrison, ex parte, 2 Rose, 76. 338. mere fact of part-ownership does not make the part-owners of a ship partners, but they may be jointly interested in her use and employment; and the law as to the earnings of a ship, whether as freight or cargo, follows the general law of partnership. See Green v. Briggs, 6 Hare, 395; Helme v. Smith, 7 Bing. 709; Holderness v. Shackels, 8 B. & C. 612; Bovill v. Hammond, 6 B. & C. 149; Way v. Milestone, 5 M. & W. 21. that voyage, and one of them, in consideration of a larger share of Chap. 3. profit than he was otherwise entitled to, agreed to pay the broker's bill, it was held that the broker's bill became his own individual debt, which might be recovered from him by the other partners, by whom it had been paid to the broker (e). So also, where, before the Judicature Acts, the master of a vessel covenanted with the several part-owners to pay certain moneys to them, and their several executors, &c., at a certain banker's, and in such parts and proportions as were set against their several and respective names, it was decided that each covenantee might sue severally in respect of his several interest, and that they could not maintain a joint action (ƒ). [It is said to have been decided in the Court of Chancery, in a case where the majority of the part-owners had settled an account of the profits of a voyage, that the others were concluded thereby ; and the court would not entertain a suit by one of them to unravel the accounts (g). I presume this to have been a settlement with the master.] 7. As to the Interest of Part-owners with regard to Strangers. Who should sue or be sued. [The several part-owners of a ship make in law but one owner, and in case of any injury done to their ship by the wrong or negligence of a stranger, they ought regularly to join in one action at law for the recovery of damages, which are afterwards to be divided among themselves according to their respective interests; for otherwise the party who had committed the wrong might be unnecessarily harassed with the expense of several suits to obtain the same end, which might be as well effected in one.] But this rule of law is made for the ease of the wrongdoer; and therefore, before the Judicature Acts which abolished pleas in abatement, the law required that he should avail himself of it at the very beginning of the cause, by pleading in abatement of a suit brought by one part-owner, that there were others living who ought to be parties to it. If one single part-owner sue he will recover damages for the injury proportionate to his share in the ship (h). In the case, however, of an action of contract for the freight of goods conveyed in a general ship, all the part-owners ought to (e) Wilson v. Cutting, 10 Bing. 436. (f) Servante v. James, 10 B. & C. 410. See Radenhurst v. Bates, 3 Bing. 463; Helme v. Smith, ante, p. 68. As to joinder of plaintiffs since the Judicature Acts, see J. Act, 1875: 0. 16, r. 1; Arch. Pract. by Prentice, p. 197. (g) [Robinson v. Thompson, 1 Vern. 465. The Hanseatic Ordinance of 1614 requires the master at his return home to summon all the part-owners to receive and pass his accounts, and imposes a fine upon those who (h) Sands v. Childs, Salk. 32. Addison v. Part I. join (a). And although the share of each part-owner be his separate property, yet where A., B., and C. were owners of a vessel, and B. and C. employed D. to sell it for them, which he did, and paid over their proportion of the purchase-money to B. and C., but refused to pay A. his proportion of the proceeds of the sale of the vessel, and A. alone sued him for the amount, it was held he could not recover: for here was a joint-contract, and persons having separate interests in a ship may jointly agree to authorize another to sell the entirety for them (b). But if several part-owners allow one of their number to deal with their joint property as his own, and he lend the proceeds of it and receive credit for them in account in his own name, although the property was joint, his contract with the borrower may have been separate, and they must show that it was not so, if they would sue upon it (c). So where the master was part-owner, and had in fact the ship let to him, it was held that he might sue in his own name for a breach by the consignor of his contract in the bill of lading (d). On the other hand, if an action is to be brought against the partowners upon any contract relating to the ship, regularly such action should be brought against all jointly, yet if all are not sued, the plaintiff will recover his whole demand, and the defendants must afterwards call upon the other for contribution (e). If a ship is held by its owners as partners, all are jointly liable on the contract of one of them made as their agent in the name of and for the purposes of the partnership. It is assumed in that case that a partner acts as agent for his co-partners; otherwise as respects part-owners, each of whom is bound only by his own act or the act of his agent, duly authorized by him. Between part-owners agency must be proved; between partners it is implied by law (ƒ). 8. Extent of Liability of each Part-owner for Supplies [If a tradesman who has repaired a ship take from some of the part-owners sums equivalent to their shares, they still remain respon-] (a) There is a loose note in 3 Keble, 444, Stanley v. Hales, of a dictum of Chief Justice HALE at Nisi Prius, to the contrary of what is here advanced in the text; but the reporter adds, that the cause went off to a reference. See Ex parte Christie, 10 Ves. jun. 105. (b) Hatsell v. Griffith, 2 C. & M. 679. See also Brown v. Bradford, 2 Moo. & Rob. p. 413, and see Walshe v. Provan, 8 Exch. 843, in which it was held that a ship-agent, who, having been directed by the ship's husband and part-owner of a ship to charter her, did so, making the freight payable to himself, could not retain the freight received by him under the charter-party against a debt due to him by the ship's husband; and that the plaintiffs, who were the owners of the ship, were entitled to recover the amount either on a special count for wrongfully making it payable to himself, or as money had and received by him to the plaintiffs' use. (c) Sims v. Bond, 5 B. & Ad. 389. Ex parte Gribble, Deacon and Chitty, 339. (d) Cawthron v. rickett, 15 Č. B. (N.S.) 754. (e) Govett v. Radnidge, 3 East, 62. Powell v. Layton, 2 New Rep. 365. Max v. Roberts, 2 New Rep. 454 12 East, 89. Weal v. King, 12 East. 452. (f) Brodie v. Howard, 17 C. B. 109. Mitcheson v. Oliver, 5 E. & B. 419. Helme v. Smith, 7 Bing. 709. Young v. Brander, 8 East, 10. Briggs v. Wilkinson, 7 B. & C. 33. Ex parte Harrison, 2 Rose, 76. Frost v. Oliver, per ERLE, J., 2 E. & B. 301. [sible for the residue, if not paid by the others, unless at the time of Chap. 3. the payment the tradesman specially agree to discharge them from all further demand, upon some good consideration inducing him so to do, such as payment before the expiration of the usual credit, or release them by deed (g), which no prudent man will do without some very strong inducement. In this respect the law of England differs from the civil law, which gives an action against any one part-owner upon a contract made by the master to the full extent of the demand, but in the case of contracts made by the part-owners themselves, holds each to be chargeable only in proportion to his own share of the ship (h). By the law of Holland, the several part-owners are, in all cases, chargeable only according to their respective interests in the ship (¿).] (g) Pasmore v. Bousfield, 1 Starkie, 296. Bac. Ab. Merchant, D. The observations in the text must now be understood to apply where the part-owners are jointly liable for the repairs-as to which see ante, p. 62. [Teed v. Baring, before Lord ELLENBOROUGH, Ch. J., at Guildhall, 1806. The receipt given by one of the plaintiffs was as follows: "Received, 30th of May, 1804, from Messrs. B. M. & Co., one-fourth owner of the ship William, Captain James Thompson, the sum of 450l., being the amount of their proportion of the (h) Dig. 14, 1, 1, 25 and 14, 1, 2, 3, () Vinnius in Peckium, p. 155. Part II. PART THE SECOND. OF THE BOARD OF TRADE (a) AND NAVAL COURts. SECT. 1. Its General Functions in relation to the Mercantile Marine, p. 72. 2. Local Marine Boards, p. 74. 3. Duties of Mercantile Marine Offices, p. 75. 4. Naval Courts, p. 75. 1. Of the Board of Trade; its General Functions in relation to the Mercantile Marine. THE general superintendence of matters relating to merchant ships and seamen is committed, by the 17 & 18 Vict. c. 104, to the Board of Trade, which is authorized to carry into execution the provisions of that Act, and of all other acts relating to merchant ships and seamen, and not relating to the revenue (b). It is empowered from time to time to prepare and sanction forms of the various books, instruments, and papers required by the Act (with the exception of those relative to the registry of ships, of which it prescribes the forms), and to make such alterations therein as it deems requisite. These forms are to be scaled with the seal of the board, or marked with some other distinguishing mark; they are to be supplied at the custom-houses and mercantile marine offices (c) of the United Kingdom free of charge, or at moderate prices to be fixed by the board, which may license persons to print and sell them; and no such book, instrument, or paper, unless made in such form, is admissible in evidence in any civil proceeding on the part of any owner or master of any ship (d). All documents whatever, purporting to be scaled by the board or signed by its secretaries, and all certificates issued by the board and sealed with its seal, or signed by an officer of its marine depart (a) The Board of Trade shall mean the Lords of the Committee of Privy Council appointed for the consideration of matters relating to trade and foreign plantations sect. 2. They may be described in all Acts of parliament, contracts, &c., as "the Board of Trade," 24 & 25 Vict. c. 47, s. 63. As to the Board of Trade taking proceedings under the Merchant Shipping Acts in the (c) 25 & 26 Vict. c. 63, s. 15. |