If an action is brought against part-owners of a ship on a contract, and all are not joined, if the defendants do not avail themselves of the non-joinder by a plea in abatement, they cannot afterwards. It is now well settled, that an action of tort can be maintained against one or more part-owners, as well as against all.2

not object to an action by some of them, that they were partners. Bunn v. Morris, 3 Caines, 54.

1 66 Formerly, indeed," remarked Ld. Kenyon, in Addison v. Overend, 6 T. R. 766, 770, "especially in cases of contract, it was held, that, if it appeared at the trial that there was a joint contract, and only one of the contracting parties was sued, it was a decisive objection against the plaintiff's action. But afterwards, for the convenience of the suitors, on considering the principles on which those decisions proceeded, it was held that if a defendant meant to avail himself of such an objection, he must plead in abatement." See also Boson v. Sandford, 2 Show. 478, 2 Salk. 440, 3 Mod. 321; Govett v. Radnidge, 3 East, 62; Rice v. Shute, 5 Burr. 2611; Abbot v. Smith, 2 W. Bl. 947; Marquand v. Webb, 16 Johns. 89; Hathaway v. Russell, 16 Mass. 473; Converse v. Symmes, 10 Mass. 377; Bowen v. Stoddard, 10 Met. 375; Robertson v. Smith, 18 Johns. 459; Ziele v. Campbell, 2 Johns. Cas. 382.

But where to a declaration in assumpsit, alleging that the defendants A and B, being owners of one fourth part of a certain vessel, and that C, D, etc., being owners of the other three fourth parts, the several owners individually, in their several proportions, and the defendants jointly, in their said proportion, promised the plaintiff to pay him for certain repairs of the vessel by him performed; and averring that the other owners had paid, but that the defendants had not paid, the defendants pleaded in abatement that it appeared by the plaintiff's own showing, that there were other persons liable who ought to have been joined, and subsequently, from a judgment of respondeat ouster, appealed, the judgment was affirmed. Barstow v. Fossett, 11 Mass. 250.

* One part-owner cannot, therefore, plead in abatement that there are others who should be joined with him. An exception to this is where land is held in common, and the title is put in controversy by the suit. 1 Chitty on Plead. 75; Mitchell v. Tarbutt, 5 T. R. 649; Low v. Mumford, 14 Johns. 426; Patten v. Gurney, 17 Mass. 182.

But where the declaration assumes the form of an action ex delicto, alleging a breach of duty and not a breach of contract, the question has arisen, and has been the subject of much discussion in England, whether one part-owner who is sued alone can plead in abatement that there are others who should have been joined with him. The question being, whether the tort or breach of the duty resulting from the contract is to be considered as the gist of the action, instead of the contract itself. It was held in Govett v. Radnidge, 3 East, 62, that the plea was not available. This was in the Court of King's Bench. Subsequently, the court of common pleas decided the opposite way. Powell v. Layton, 5 B. & P. 365; and in another case, that a plaintiff who failed to prove all the defendants to be part

If an action, which should be brought against all the part-owners of a ship, is brought against some only, and they satisfy the judg ment recovered, they will have an action for contribution against those who do not pay. If persons are joined who did not contract, or were not contracted with, this misjoinder may be shown, either by defendants or plaintiffs, on the general issue, and it is a fatal variance.1

In fourteen of our Western and Southern States, actions may be brought against vessels by name. They are Georgia, Florida, Alabama, Arkansas, Kentucky, Ohio, Michigan, Indiana, Illinois, Missouri, Mississippi, Iowa, Wisconsin, California.

But in these

owners could not recover at all. Max v. Roberts, 5 B. & P. 454. This case was afterwards argued in the King's Bench and in the Exchequer Chamber before all the judges. It is stated by the reporter that a difference of opinion was understood to prevail among them upon this question. The case, however, went off on a collateral point. Max v. Roberts, 12 East, 89. In the subsequent case of Weall v. King, 12 East, 452, the plaintiff declared in case, alleging a deceit to have been effected upon him by means of a warranty made by two defendants upon a joint sale to him by both of sheep, their joint property, it was held that the plaintiff could not recover upon proof of a contract of sale and warranty by only, as of his separate property, as the action, although laid in tort, was founded on the joint contract alleged. See also Leslie v. Wilson, 3 Brod. & B. 171; Bretherton v. Wood, 3 Brod. & B. 54. In Pozzi v. Shipton, 8 A. & E. 963, the court say: "We purposely abstain from giving any opinion, whether the doctrine in Govett v. Radnidge, or that in Powell v. Layton, be the true doctrine, as we do not feel ourselves called upon to decide between them, supposing them to differ." In Connecticut, declarations in the form of tort, stating the injury to have been effected by breach of a contract, have been sustained. Stoyel v. Westcott, 2 Day, 418; Bulkley v. Storer, 2 Day, 531.

one

น.

1

2

Spalding v. Mure, 6 T. R. 363; Tom v. Goodrich, 2 Johns. 213; Livingston Tremper, 11 Johns. 101; Jordan v. Wilkins, 2 Wash. C. C. 482.

Georgia.

Act of Dec. 11, 1851, Hotchkiss, Stat. Law, 625. See Robinson . Steamer Lotus, 1 Kelly, 317; Butts v. Cuthbertson, 6 Ga. 159; Adkins v. Baker,

7 Ga. 56.

Florida. — Stat. of 1847, Thomps. Dig. 414. See Flint River Steamboat Co. v. Roberts, 2 Florida, 102.

Alabama.

Act of 1836, Clay's Dig. 139. See Steamboat Robert Morris v. Williamson, 6 Ala. 50; George v. Skeates, 19 Ala. 738; Otis v. Thorn, 18 Ala. 395. Arkansas. Rev. Stat. ch. 14. In a suit by attachment against a boat, the plaintiff should declare on the contract as having been made by the party making it, as the case may be, and not as made by the boat, but the attachment must run against the boat by name or description. Holeman v. Steamboat P. H. White, Eng. 237. See also Steamboat Napoleon v. Etter, 1 Eng. 103; Steamboat P. H. White v. Levy, 5 Eng. 411.

6

States it seems that actions of this sort will not be sustained under their statutes, if the cause of action arose out of the States.1

Kentucky. - Act of 1839, 3 Stat. Law, 112; Act of 1841, 3 Stat. Law, 113. See Strother v. Lovejoy, 8 B. Mon. 135.

Ohio. This Stat. Swan's ed. ch. 26, p. 185; Curwen's Stat. in Force, 503. statute has been held to be constitutional. Keating v. Spink, 3 Ohio State, 105. It substitutes the boat for the owner, and authorizes suit against it by name for all money demands against the owner arising from debts contracted on account of, or for the use of the boat, or for injuries resulting to passengers or property by the boat, or from misconduct of officers and crew. The Ocean v. Marshall, 11 Ohio State, 379; The Ohio v. Stunt, 10 Ohio State, 582; The Monarch v. Potter, 7 Ohio State, 457; The Monarch v. Marine Railway Co. 7 Ohio State, 478; Canal Boat Huron v. Simmons, 11 Ohio, 458. In a suit against a boat, however, the controversy is really and practically between the plaintiff and the owners, and the provisions of the code applicable to parties in other suits apply. Young v. Steamboat Virginia, 1 Handy, 156. It only establishes the liability of the craft, but gives no lien prior to its seizure. Scott v. The Plymouth, 1 Newb. Adm. 56; Wick v. The Samuel Strong, 1 Newb. Adm. 188. Therefore claims against the vessel are to be satisfied in the order of actual seizure by warrant. Jones v. Steamboat Commerce, 14 Ohio, 408. In this case, and in that of Steamboat Waverly v. Clements, 14 Ohio, 28, it was held that a purchaser of a craft with notice of a debt or liability created or incurred on account of it by the original owner, takes it subject to such debt, but that a judicial sale vests the title in the 1 Ohio, Steamboat Champion v. Jantzen, 16 Ohio, 91; Goodsill v. Brig St. Louis, 16 Ohio, 178; Missouri, Steamboat Raritan v. Pollard, 10 Mo. 583; Steamboat Time v. Parmlee, 10 Mo. 586; Noble v. Steamboat St. Anthony, 12 Mo. 261; Twitchell v. Steamboat Missouri, 12 Mo. 412; Fisk v. Steamboat Forest City, 18 Mo. 587; James v. Steamboat Pawnee, 19 Mo. 517. In Swearington v. Steamboat Lynx, 13 Mo. 519, it was held that the Mississippi River, from the northern to the southern boundary of the State of Missouri, is one of the waters of the State referred to in the statute, and that the Missouri courts have jurisdiction over a tort committed on the river, though it be on the Illinois side. In Illinois, the statute has no extra-territorial jurisdiction. Frink v. King, 3 Scam. 144. So in Michigan. Bidwell v. Whitaker, 1 Mich. 469; Turner v. Lewis, 2 Mich. 350. And in Iowa, Steamboat Kentucky v. Brooks, 1 Greene, 398. The law is the same in Kentucky. Strother v. Lovejoy, 8 B. Mon. 135. In Ohio, in 1848, a supplementary act was passed, declaring that a wrong construction had been placed upon the statute by the court, and declaring that the courts should have jurisdiction in suits then pending as well as in future suits, notwithstanding the boat was out of the jurisdiction of the State at the time the tort was committed or the supplies furnished. The court, however, in a subsequent case, held that this act, so far as it provided for cases then pending, was unconstitutional and void, because those cases arose under a statute which it was the province of the court, and not of the legislature, to interpret. The Sch. Aurora Borealis v. Dobbie, 17 Ohio, 125. For a learned exposition of the various provisions and objects of the statutes of the different States upon this subject, see Merrick v. Avery, 14 Ark. 370.

T

The question of the right of State courts to exercise jurisdiction purchaser free from all liability to be again proceeded against under the statute for a claim existing at the time of the sale. It was decided in Kellogg v. Brennan, 14 Ohio, 72, that a mortgagee of a craft has not a lien to be preferred to the claims of creditors, especially if the vessel is running for the joint interest of owners and mortgagees. So also in Provost v. Wilcox, 17 Ohio, 359. An action does not lie against the boat for money loaned; nor for breach of an executory contract for the transportation of goods where the goods are not delivered to the vessel, and where, therefore, the obligations of a carrier have not arisen. Dewitt v. Schooner St. Lawrence, 3 Ohio State, 325. The statute does not extend to a claim for salvage, but if the boat receives the property saved, and promises to pay a certain sum, an action can be maintained against the boat for this. Boyd v. Steamboat Falcon, 1 Handy, 362. In Lewis v. Schooner Cleveland, 12 Ohio, 341, the statute was held to apply to the recovery of seamen's wages. See also, generally, Wayne v. Steamboat Gen. Pike, 16 Ohio, 421; Steamboat Albatross v. Wayne, 16 Ohio, 513; Schooner Argyle v. Worthington, 17 Ohio, 460.

Michigan. The first statute relative to this subject was passed in 1839 (Sess. L. 1839, p. 70). This was repealed in 1846 (R. S. ch. 122). Under the statute of 1839, it is held that there is no lien until the vessel is attached. Robinson v. Steamboat Red Jacket, 1 Mich. 171; Moses v. Steamboat Missouri, 1 Mich. 507. In declaring upon a bond executed under § 13, ch. 122, R. S., it is not necessary to aver that the plaintiff made the application in writing in the manner and form required by sections 2 and 3 of said chapter. Nor is it necessary to aver that the vessel released upon the execution of the bond was, at the time of its seizure, within the jurisdiction of the court. Truesdale v. Hazzard, 2 Mich. 344. See also Ward v. Wilson, 3 Mich. 1. Where a vessel was attached at the instance of a creditor, and, notice to creditors to produce their claims puplished three months, and, before any order of sale, the owner of the vessel procured her discharge by giving the bond provided by statute, it was held that creditors, who failed to file their demands with the proper officer within three months after the first publication of notice, lost the benefit of the lien given them by statute.

Watkins

v. Atkinson, 2 Mich. 151.

Indiana.

Stat. 1838. Under this statute it has been held, that, where there are several liens on a boat, and the boat is sold on a judgment in a suit under the statute for one of the claims, the purchaser takes the boat discharged of the rest. Steamboat Rover v. Stiles, 5 Blackf. 483. See also Southwick v. Packet Boat Clyde, 6 Blackf. 148; Olmstead v. McNall, 7 Blackf. 387; Brayton v. Freere,

1 Smith, 35.

Illinois. Rev. Stat. 1845, p. 71, ed. 1856, p. 107. It has been held, that, to enable the owner or consignee of a vessel to take an appeal from the judgment of a justice of the peace, he must make himself a party defendant to the suit before the justice. Sch. Constitution v. Woodworth, 1 Scam. 511. The master cannot proceed against the vessel in rem for his wages. Chauncey v. Jackson, 4 Gilman, 435. And in Germain v. Steam Tug Indiana, 11 Ill. 535, it was decided that the lien attaches the moment the liability is incurred, but it cannot be asserted to the prejudice of creditors or purchasers, unless the remedy be pursued within three months; but a party is not bound to enforce his lien till that period has elapsed,

in rem over matters which are within the admiralty jurisdiction of and when once acquired it remains in force, unaffected by any proceeding to enforce subsequent liens. And the sale of a vessel under a judgment on an attachment obtained by a seaman or material man does not divest any liens of a superior degree, nor any antecedent liens of the same degree. An attachment will not lie for towing a canal boat. Merriman v. Canal Boat Col. Butts, 15 Ill. 585.

Missouri.-R. C. 1845. The action must be commenced within six months after the cause of action has accrued, and in the county where the boat may be found at the time. If the boat does not come within the jurisdiction till after that time, the lien will be gone. Williamson v. Steamboat Missouri, 17 Mo. 374. Process cannot issue until a bond is filed. Steamboat Archer v. Goldstein, 13 Mo. 24. The attachment is dissolved by giving a bond, and after this the court cannot order the boat to be sold. St. Louis Perpet. Ins. Co. v. Ford, 11 Mo. 295. On an open running account, the lien continues for six months from date of last item. Carson v. Steamboat Daniel Hillman, 16 Mo. 256. But where the articles are furnished under a special contract, and delivered on different days, the lien attaches upon the delivery of the first. In computing the time within which the suit should be commenced, the day on which the delivery is completed should be excluded. Steamboat Mary Blane v. Beehler, 12 Mo. 477. It is provided by statute, that when a constable attaches goods or property he shall take possession, if they are accessible, and if not, he shall declare to the party in possession that he attaches the same in his hands, and summon such person as garnishee. It has been held, that the return of a constable on a warrant against a steamboat that he executed it by going on board the boat, and by reading the same to the clerk, finding the sheriff in charge, is sufficient to give the justice issuing the warrant jurisdiction to hear and determine the case against the boat. Steamboat Eureka v. Noel, 14 Mo. 513; Parkinson v. Steamboat Robert Fulton, 15 Mo. 258. A boat cannot be sold under an execution issued by a justice of the peace. Markham v. Dozier, 12 Mo. 288. In a suit against a boat before a justice, a judgment by default against the boat being rendered, and a motion to set aside the same being overruled, an appeal will lie. Hore v. Steamboat Belle of Attakapas, 11 Mo. 107. One of several part-owners can sue, under the statute, in the name of the boat. Steamboat Beardstown v. Goodrich, 16 Mo. 153. But he must give notice to all the others of his intention to sue, twenty days before the commencement of the action. Langstaff v. Rock, 13 Mo. 579. Whether a part-owner be mortgagee, or his right be absolute, he cannot acquire a lien on the boat for services rendered while he was owner. Nor can he sue the other part-owners without giving them the notice required by law, and he must show affirmatively that he gave them such notice. Steamboat Raritan v. McCloy, 10 Mo. 534. The St. Louis Court of Common Pleas has jurisdiction of actions of trespass against boats. Holloway v. Steamboat Western Belle, 11 Mo. 147. Under the statute an interpleader cannot be entertained. Garrison v. McAllister, 13 Mo. 579. The statute provides that the demand must be for services rendered on board the boat. It is sufficient if the demand be for services rendered as fireman, Jones v. Steamboat Morrisett, 21 Mo. 142, or as deck-hand, Williams v. Steamboat Morrisett, 21 Mo. 144. An action will lie against the boat by name for the non-performance of a contract made by her master, upon a trip up the river, for the transportation