charged in the account was unknown at the time of the order, and, being a female, took no part in the management of the vessel, Tindal, C. J., held that she was liable, and observed, that in order to constitute exclusive credit, there must be a giving up of the owners generally, and the making an exclusive bargain with the person who orders the goods, and an agreement to furnish them on his credit only (a).

It seems doubtful, however, whether one partowner can bind his fellow by bills of exchange, even for repairs (b). But admitting that he might so bind him on the ship account, yet as it is clear that he cannot bind him by bill on any other account, a partowner will not be liable even to a bona fide indorsee, if he can shew that the bill was given on another account (c). It may here be observed, that in a case at Nisi Prius, Lord Ellenborough was of opinion, that a creditor taking the separate bill of the ship's husband, a partowner, for stores supplied to the ship, discharges the other partowners (d).

The liability of partowners in the cases we have mentioned, cannot, of course, be affected by any private arrangement between themselves. In Rich v. Coe (e) an action was brought to recover the value of necessaries furnished to Harwood, the captain, for the use of the ship. The defendants were owners, and had let the ship to Harwood upon certain articles, by which it was covenanted that Harwood should employ her to his sole benefit and advantage; and should pay a rent for her, and should "at all times, at his own cost and charge, repair, maintain, and keep the vessel, her tackle, rigging, &c., in good and sufficient repair," &c. The plaintiffs had no notice of this contract when they supplied Harwood with the goods. The question was, whether the defendants were liable? Lord Mansfield"Whoever supplies a ship with necessaries has a treble security. 1st. The person of the master. 2nd. The specific ship (f). 3rd. The personal security of the owners. The creditors trust specifically to the ship, and generally to the owners. In this case the defendants are the owners, and there happens to be a

(a) Thompson v. Finden, 4 Car. & Payne, 158. Perhaps, however, the parties were in this case part

ners.

(b) D. arg. 10 Barn. & Cres. 135.

(c) Williams v. Thomas, 6 Esp.18. (d) Reed v. White, 5 Esp. 122. (e) Cowp. 636; and see Gleadon v. Tinckler, Holt, 586.

(f) On this point see Abbott,

109.

private agreement between them and the master, by which he is to manage and keep her in repair, &c. But how does that affect the creditors, who, it is expressly stated, were total strangers to the transaction?"

II. 2. But partowners, though jointly liable to the persons with whom they contract on account of the ship, yet in many respects stand in a very different situation from that of partners. Thus it has been ruled that the admission of one partowner as to a subject of partownership is not binding on the others (a). One reason assigned by a learned Judge for this difference is, that, in the case of a partnership, every man knows who his partner is; but when one partowner sells his share, the remaining partowners, not being privy to the instrument by which the new partowners are created, may be entirely ignorant of the fact who the person is who has become a partowner with them (b). It is to be observed, however, that this reason would extend to all contracts made by the partowners, and that it is not necessary for the support of the other powerful observations of the same learned Judge in the same case.

The case here referred to is that of Wilson v. Dickson (c), which depended on the construction of the 53 Geo. 3, c. 1, s. 9, and by which it is settled that one partowner will not incur additional liability for losses occasioned to the shippers by the mismanagement of the master, from the circumstance that the master is likewise a partowner. By the 53 Geo. 3, c. 159, s. 1, it is enacted, that no owner or owners, or partowner or partowners, of any ship, shall be liable for any loss or damage arising by reason of any matter or thing done, omitted, or occasioned without the default or privity of such owner or owners, which may happen to any goods &c., put on board the ship, further than the value of the ship, and the freight due or to grow due for and during the voyage. In the case in question an action was brought against three joint owners of a ship, on account of the loss of certain goods therein laden belonging to the plaintiff, the nature of the loss being the improper sale of those goods in the course of the voyage by the captain, who was also a partowner. One question was, whether, inasmuch as

(a) Jaggers v. Binnings, 1 Stark. 64. (b) Per Bayley, J., 2 Barn. & Ald. 15.

(c) 2 Barn. & Ald. 2.

there was fault or negligence on the part of one of the three owners, that circumstance took away the protection given by the statute to the other partowners? The Court held that it did not; and, consequently, that the other partowners were not liable beyond the value of the ship and freight; the value of the ship being calculated at the time of the loss, and the freight being deemed to include money paid in advance.

Neither will the share of one partowner be liable to condemnation for acts done by his copartner without his privity. Where one of several partowners is owner of the whole cargo, condemnation of the cargo will carry with it condemnation of his share of the ship. But the shares of the other partowners will remain safe, if they can shew by attestation that they had no knowledge of the contraband goods (a).

But partowners are answerable in solido for costs and damages for wrong capture and condemnation of another ship (6).

SECTION VI.

Of Actions and Suits by and against Partowners.

It is laid down by a high authority, that in an action for the freight of goods conveyed in a general ship, all the partowners ought to join as plaintiffs, or, if they do not, the defendant may avail himself of the objection by evidence at the trial, and without plea in abatement; unless perhaps some one should have received his own share, or released his claim to it. It is added, that the necessity of all the partowners joining as plaintiffs is founded on the consideration that all of them are partners with respect to the concerns of the ship (c).

And even if the partowners authorize their agent to sell the entire ship, they cannot, if they give him a joint authority,

(a) The Jonge Tobias, 1 Rob.

329.

(b) The Karasan, 5 Rob. 291; Praris v. Martine, 2 Stair, 319.

(c) Abbott, 182, (Ed. Shee. p. 98). Contra, Stanley v. Ayles, 3 Keb. 444.

maintain separate actions against the agent for their respective shares of the money received by him on account of such sale; though each may maintain a separate action, if they separately authorize the agent to sell their respective shares (a).

But it is to be observed, that the situation of partowners differs in many respects from that of partners, and not the least in this circumstance, that the interest of the former in the profits of their trade is, comparatively speaking, an ascertained interest. Hence it seems, that admitting the original interest of the partowners in the profits of the ship to be joint, that will not prevent them from suing separately for their respective shares of the profits, where the covenant or agreement for payment of those profits is separate, and it is clearly intended that they should have a separate interest under the covenant or agreement. In Owston v. Ogle (b), it was jointly and severally agreed between partowners and the ship's husband, who was one of the partowners, that the management and expenses of the ship should be under the controul of the husband; and that, after the ship returned from her voyage, a full account should be made out of the ship and her concerns, and the profits divided: it was held, that an action might be maintained by either of the partowners against the husband for not making out such account and dividing the profits. In a subsequent case (c), the law on this point seems to have been confirmed. A covenant was entered into by the master of a vessel with the several partowners, and their several and respective executors, administrators, and assigns, to pay such sum as should be allowed to the owners by the Postmaster-general for the hire of the ship, unto the owners, and to their and every of their several and respective executors, administrators, and assigns, at a certain banker's, and in such proportions as were set against their several and respective names; this was construed to be a several covenant, and as giving to each a several interest: and it was held, that each covenantee must sue severally in respect of such several interest, and that they could not maintain a joint action.

In an action ex contractu by partowners against their agent,

(a) Hatsall v. Griffith, 4 Tyr. 487; 2 Cro. & Mee. 679.

(b) 13 East, 538.

(c) Servante v. James, Lloyd & Welsby, 54; 10 Barn. & Cres. 411.

the defendant cannot dispute their title, by shewing it to be defective under the registry acts (a).

In an action of tort by partowners, for any injury, for instance, done to the ship, all the partowners ought to be plaintiffs; but the defendant can only take advantage of the defect by plea in abatement. So, in an action of trover, all the partowners ought to join as plaintiffs, though one only may bring trover for the whole ship, if the defendant do not plead in abatement (b).

II. In an action against partowners, upon any contract relating to the ship, all should be sued jointly; but the defendants can only avail themselves of the objection by plea in abatement (c). The same observation seems to be applicable to actions ex quasi contractu against partowners (d). However, if the creditor were ignorant, at the time of the contract, that there were other partowners, he may sue him alone to whom the credit was given, and the defendant cannot plead the nonjoinder of the other partowners in abatement (e).

In an action by an attorney, against one of several partowners whose interest is insured, for business done for the assured, the defendant may plead in abatement the non-joinder of the assignees of his bankrupt copartowners (f).

The rule that joint and separate debts cannot be set off against each other, applies as well to partowners as partners. Therefore, upon the bankruptcy of a person separately indebted to each of the partowners of a ship, they cannot set off their proportions of a debt due from them jointly to the bankrupt on the ship account against the debts due by the bankrupt to them separately (g).

In actions against partowners for stores supplied to the ship, it used to be the custom to produce the register as proof of their title, and the proof was received without question or ob

(a) Dixon v. Hamond, 2 Barn. & Ald. 310.

(b) Addison v. Overend, 6 T. R. 766; and see ante, p. 474; Dockwray v. Dickenson, Comb. 366; Skin. 640. (c) Abbott, 81 (Ed. Shee. p. 100); Attorney-General v. Borrodaile, 1 Price, 162.

(d) Ante, p. 506, et seq.

(e) Doo v. Chippenden, Abbott, 76; Baldney v. Ritchie, 1 Stark. 338. (f) Pasmore v. Bousfield, 1 Stark. 296.

(g) Ex parte Christie, 10 Ves.

105.