Jordan v. Young , 37 Me. 276 ( 1853 )

Wells, J.

— It is contended by the plaintiff, that the interest of Levi Sawyer and Charles E. Sawyer, who were r'eceiptefs in their co-partnership name for the property attached in the suit, and who were introduced as witnesses by the defendant, was not removed by the deposit with one of them for the benefit of both of a sum of money equal to the damages demanded in the writ. It does not appear, that they were liable as receipters for any greater sum, nor is it contended that they were, hut it is insisted, that the act of the attorney was unauthorized. The cases cited show, that whore money is placed in the hands of a receipter by the party calling him, sufficient to cover his whole liability, he is a competent witness for such party. Although an attorney might not be under any legal obligation to deposit money in such case, there is no law that forbids him from doing it, and when it is received by the witness as a fund out of which he may discharge his liability, he can no longer have any interest in the controversy. He is supplied with money, not a mere indemnity, which may fail, to the full extent of any claim, that can be made upon him, and the act being done for the benefit of the defendant, it may well be presumed, that he would assent to it. The question does not turn upon the legal liability of the defendant to reimburse the attorney, but upon the effect of the payment of the money to the witness. And it is not perceived, why its reception does not place him in a position entirely indifferent between the parties.

It does not appear,.by the facts stated in the exceptions, who ordered the repairs, which were made upon the vessel, or in whose employment she then was. The jury were instructed, “that a master of a vessel without any other authority than that derived from his official capacity, was not authorized to order repairs to be made upon a vessel in her home port, that if they found the defendant to be a resident of Cape Elizabeth, and the vessel to be moored at a wharf in Portland, when the repairs were made, she must be considereed to be in her home port, and the master as such would not be authorized to order repairs.”

It might be inferred from this instruction, that the repairs were ordered by tbe master, but tbe case does not so state. But if they were ordered by Mm, tbe instruction appears to be correct. Tbe master of tbe vessel can do all things necessary for the prosecution of the voyage. But this authority does not usually extend to cases where the owner can personally interfere, as in the home port. If the vessel be at a home port, but at a distance from the owner’s residence, and provisions or other things require to be provided promptly, then the occasion authorizes the master to pledge the credit of the owner. Abbott on Shipping, (Perkins’ ed.) 178; John v. Simons, 2 Adol. & Ell. N. S. 424; Stonehouse v. Gout, Ib. 431. There is nothing in the present case to indicate an exigency so pressing as to preclude an application to the owner before the repairs were made, and the master, merely as such, could not make the owner liable for them. The owners of a vessel are not liable for repairs, unless they are made by their order, or by the direction of some one, who has a right to act for them.

The enrollment is evidence of ownership, but not conclusively so, and the owners may p§,rt with the control of the vessel by chartering her or letting her on shares, and thus not be liable on contracts made by those in whose employment she may be. Dame v. Hadlock, 4 Pick. 458; Colson v. Bonzey, 6 Greenl. 474. The master is agent of the owners only so long as he acts for them. They can discharge him at any time, and put an end to his authority. The enrollment is evidence of what it declares at the time it is made, and it may be presumed that the same facts exist until a change is shown. But as other persons than those, whose names appear upon the enrollment, may be shown to be owners, so it may be shown that the person, whose name is enrolled as master, has ceased to be such.

The Judge did not withdraw from the jury the right of deciding upon the credibility of the person stated to be master. The meaning of the instruction is, that if the jury believed the facts, to which the witness testified, the legal con-struction of them, notwithstanding the enrollment, would ■show that he was not master when the repairs were made.

Exceptions overruled.

Tenney, Howard and Appleton, J. J., concurred.