10. It is said to have been decided in the Court of Chancery, in a case where the majority of the partowners 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 (¿). I presume this to have been a settlement with the master.

11. SECONDLY. As to the interest of part-owners with regard to strangers.

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 expence [98] 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 wrong-doer; and, therefore, the law requires 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 are others living, who ought to be parties to it. For if the defendant does not do this, the single partowner will recover damages for the injury proportionate to his share in the ship, whether the nature of his interest is made to appear upon evidence at the trial, or is originally stated by himself in the allegation of his

(i) Robinson v. Thompson, 1 Vern. 465. The Hanseatic Ordinance of 1614 requires the master at his return home to summon all the partowners, to receive and pass his accounts, and imposes a fine upon

those, who do not attend the first time in person or by agent; and at the second time authorizes the others to make a final settlement without them.

cause of complaint (k). And if afterwards another part-owner sues for his own interest, the defendant can no longer avail himself of the objection, because the party to the first suit has no longer any matter of complaint (1). In the case of the death of any part-owner after an injury received, the right of action survives in general to the surviving part-owners, who must afterwards pay to the personal representatives of the deceased the value of his share.

12. In the case, however, of an action for the freight of goods conveyed in a general ship, all the partowners ought to join, or if they do not, the de- [99] fendant may avail himself of the objection by evidence at the trial, and without plea in abatement ; according to the general rule of law, and the distinction between contracts and wrongs (m); unless perhaps some one should have received his own share, or have released his claim to it. The necessity of all the part-owners joining as plaintiffs in the suit in this case, is founded upon the consideration, that all of them are partners with respect to the concerns of the ship; and, upon this consideration, the present Lord Chancellor, in a case of bankruptcy, wherein it appeared that the owners of a ship, upon a settlement of accounts with the master, who had become a bankrupt, were indebted to him, and that, on the other hand, he also was indebted to some of them severally upon separate and distinct concerns,

(k) Sands v. Child & others, Salk. 32. Addison v. Overend, 6 Ter. Rep. in K. B. 766, and see Dockwray v. Dickenson, Comb. 366.

(1) Sedgworth v. Overend, 7 Ter. Rep. in K. B. 279. In this case, the plaintiff was the only remaining part-owner: but the opinion deliv. ered by Mr. Justice Lawrence is an

authority for the text.

(m) There is a loose note in 3 Keeble, 444. Stanley v. Ayles, 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.

refused to allow the latter to set off their respective demands against the claim of his assignees for their shares of the general debt (n).

13. On the other hand, if an action is to be brought against the part-owners upon any contract relating to the ship, although regularly such action should be brought against all jointly, yet if all are not sued, the

defendants can only avail themselves of the [100] objection by plea in abatement: and if they

omit to plead such a plea, the plaintiff will recover his whole demand, and the defendants must afterwards call upon the others for contribution. And if a tradesman,, who has repaired a ship, take from some of the part-owners sums equivalent to their shares, they still remain responsible for the residue, if not paid by the others, unless at the time of 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 (0); which no prudent man will do without some very strong inducement (1). In this respect, the law of England differs

(1) But if, in such case, the tradesman takes in payment the bill of the ship's husband (a part-owner), and settles with him alone, the other owners are discharged. Therefore, where a

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 (p). By the law of Holland, the several partowners are in all cases chargeable only according to their respective interests in the ship (q). (2)

(p) Dig. 14. 1. 1. 25. and 14. 1. (4) Vinnius in Peckium, p. 155.

2. 3. & 4.

tradesman brought his action for cordage, against the owners of a ship, and it was proved that he had taken a bill for the amount of the managing owner, which was dishonored, and renewed, and again dishonored. Lord Ellenborough held that if the plaintiff had, by so dealing, adopted the managing owner, he discharged the others, and that it was not necessary that there should have been a receipt. If he adjusted the accounts with the managing owner on that footing, the others were entitled to the benefit of it; and the jury found for the defendants. Reed v. White, &c. 5 Esp. N. P. C. 122.

(2) In cases of abandonment, the insurers become the owners of the ship, and as such, are liable to the expences of repairs, and other necessary equipments for the ship, made after the time of the loss to which the abandonment refers. But in this case, as the ownership is thrown upon them by the law, and as the association is not voluntary, they have been held not to be partners; but that each is severally liable for his proportion of the expences in the ratio, the sum by him insured, bears to the whole sum insured on the ship. And the case was likened to the case of Hoare v. Dawes. Dougl. 371. where a broker was employed by a number of persons to purchase a lot of tea, of which they were to have a separate share, and he made the purchase,

and it was held that they were answerable severally, and not jointly. So it was decided in Coope, &c. v. Eyre, &c. 1 H. Bl. 37, on a purchase of oil. And Kent C. J. said the true principle was established in Speering v. De Grave. 2 Vern. 648, where it was decreed that for the necessary appropriations by the master for the wants of the ship, the owners should pay in proportion to their respective shares and interests in the ship. United Insurance Company v. Scott. 1 John. Rep. 106.

Part-owners of privateers are, in like manner, as part-owners of merchant ships, liable for any torts committed by the master or crew of such privateers. And in the court of admiralty, even where there has been a release to a part-owner from his responsibility, upon his paying a certain sum for damages, occasioned by the capture of a ship, and not proceeding to adjudication, the court will compel him to appear to a suit in common with the others, for in such a case the party injured has not only a right to call on all the owners for reparation, but also for all information in their possession. Karasan. 5 Rob. Adm. Rep. 260. And in Del Col v. Arnold. 3 Dall. Rep. 333, the Supreme Court of the U. S. held that, the owners of privateers are responsible for the conduct of their agents, officers and crew, to all the world, and that the measure of such responsibility, is the full value of the property injured or destroyed. See also Talbot, &c. v. Owners and Commanders of three Brigs. 1 Dall. Rep. 95. But in cases of capture by a privateer of neutral property, where restitution is decreed, without damages, the owners are not liable under the decree, unless the property or its proceeds come to their hands. Jennings v. Carson's executors. 4 Cranch. Rep. 2. Penhallow v. Doane's administrators. 3 Dall. Rep. 54.