1 of the owners. With such consent, however, it is an item of expense proper to the voyage, and a prior assignee of freight, who does not interpose, cannot afterwards resist the deduction." The title to freight is prima facie an incident of ownership. If a sale and transfer of shares therefore be effected while the ship is on her voyage, the proceeds of that voyage go to the purchaser, nothing appearing in the contract to the contrary, and notwithstanding his vendor subsequently evinces a different intention by a contract purporting to transfer his right in respect of this particular freight to another. Therefore, in the case of an insurance on the ship with one, and on the freight with another, and abandonment afterwards to the several underwriters upon their respective policies, any afteracquired freight, if the vessel should survive the accident, is the property of the underwriters on the ship, subject to the deduction of all expenses, proper to the earning of freight, and incurred since the abandonment." For the same reason a mortgagee who enforces his right, by taking possession of the ship before the termination of the voyage, entitles himself to the accruing freight as against the mortgagor and his assignees. The foreign agent of a ship's husband having a claim against his principal, made the freight on the charter-party payable to himself, intending to set it off against his claim; but the owners, in virtue of their title to the ship, recovered the freight from him notwithstanding. On the other hand, it is the recognised rule of law, to charge the assignee or purchaser with the outfit and other expenses incurred in respect of the 1 Ogle and another v. Wrangham and others, coram Kenyon, C. J., Guildhall Sitt. post, H. T. 1790; French v. Backhouse, 5 Burr. 2727. Lindsay v. Gibbs, 4 Jur. N. S. 779; (on appeal) 28 L. J. (Ch.) 692. Lindsay v. Gibbs, supra. Morrison v. Parsons, 2 Taunt. 407; Davidson v. Case, 5 M. & Sel. 79; (in error) 8 Price, 542; Sharp v. Gladstone, 7 East, 24; Kerswell v. Bishop, 2 C. & J. 529; Dean v. M'Ghie, 4 Bing. 45; Green . Briggs, 6 Hare, 395, 404; Alexander r. Simms, 23 L. J. (Ch.) 721; 18 Beav. 80, S. C.; Lindsay v. Gibbs, 2 Jur. N. S. 1039; Alexander v. Freight an inci dent of owner ship. Part-owners not affected by bank them. voyage, of which he is entitled by his purchase to share the profits; and as that can only be the voyage in prosecution at the time of the purchase, he is under no liability for the expense of an antecedent adventure, in respect of which he has no claim.' The interest of part-owners in ship and adventure, is not ruptcy of one of affected by the bankruptcy of one of them after the commencement of the voyage, although he has not paid his full share of the outfit. In such a case, if the other part-owners have in that character paid the expense of the outfit, or made themselves responsible for it, they will have a right to deduct his share from the portion of the profits to be paid to his assignees.* In one case, however, where the outfit had been conducted by a person appointed to manage the concern as purser or ship's husband, in pursuance of an agreement made by three others at the time of their becoming owners of the ship, and this person settled the accounts with them, and took from one of them, who afterwards became a bankrupt, promissory notes payable at a future day for a part of his share of the expense; it was determined, that the assignees of the bankrupt were entitled to receive his full share of the profits, and that the ship's husband must take a dividend under the commission for the amount of the notes. In this case the ship's husband had, after his appointment, acquired an interest in the ship, by purchasing a part of the share of one of the other part-owners; but his right as a part-owner does not appear to have been insisted upon; and indeed he had made the disbursements, and managed the concern, not in the character of a part-owner but of an agent. After the bankruptcy had happened, the other two part-owners paid two-thirds of the amount of the bankrupt's notes to the ship's husband, and agreed with him to consider the bankrupt as interested only in the proportion, which the money he had paid bore to the whole cost and outfit. But this transaction was held not to affect the question, nor alter the right or interest of the bankrupt, or his assignees upon whom they had devolved." 1 Green v. Briggs, 6 Hare, 395; Lindsay v. Gibbs, 4 Jur. N. S. 779; (on appeal) 28 L. J. (Ch.) 692. 2 Holderness v. Shackels, 8 B. & C. 612. 3 Smith v. De Silva, Cowp. 469; but In respect of the obligations incurred by the owners upon contracts with strangers, it is clear, if they hold the ship as partners, that all are jointly liable on the contract of each made in the name, and for the purposes, of the partnership. If they are part-owners, and not partners, as is much more commonly the case, the law is, that they are severally liable, each upon his own contract, made by himself or by a duly authorised agent on his behalf. Between partners the relation of principal and agent is implied by law; between part-owners it remains to be proved in fact." 3 OBLIGATIONS OF PART-OWNERS TO A modification of this general doctrine, not at all received in American Law. this country, is stated by Chancellor Kent to have been adopted as law in the United States. He says, using the words of an English text-writer, "As the law presumes that the common possessors of a valuable chattel will desire whatever necessary to the preservation and profitable employment of the common property, part-owners on the spot have an implied authority from the absent part-owners, to order for the common concern whatever is necessary for the preservation and proper employment of the ship. They are analogous to partners, and liable, under that implied authority, for necessary repairs and stores ordered by one of themselves; and this is the principle and limit of the liability of part-owners." In this country, since Lord Hardwicke's decision in Dod- Law of England. dington v. Hallett was over-ruled, we have no such doctrine. Nor have we, in regard to British ships, followed the civil law, so generally received in this particular on the Continent, and per Lord Tenterden, C. J., "It is clearly established as a general principle of law, that if one partner becomes a bankrupt, his assignees can obtain no share of the partnership effects, until they first satisfy all that is due from him to the partnership. The case of Smith v. De Silva, is a very entangled case, and the facts stated in the report are not very clear or perspicuous *** it may therefore have been properly decided, Mahout breaking in on the general principle to which I have adverted.” Holderness e. Shackels, 8 B. & C. 612, 618. Brodie v. Howard, 17 C. B. 109; Mitcheson v. Oliver, 5 E. & B. 419; 2 See cases in preceding note. 3 Kent's Comm. 155, citing Holt, ut infra; King v. Lowry, 20 Barb. Rep. 532; Hardy v. Sproule, 29 Me. Rep. 258; 31 Me. Rep. 71, S. C. 4 Holt, Law of Shipping, Introd. 33. 5 Doddington v. Hallett, 1 Ves. sen. 497. 6 Dig. 42. 5. fr. 26, & 34; lib. 20. 4. As to Foreign ships. to some extent in the United States,' which gives a lien on the slip for necessaries supplied and repairs executed, so as to ..enable the creditor to attach and sell her for the amount of the debt. Early attempts were made in the Court of Admiralty in this country to introduce into our law that principle of implied maritime lien; but, with two or three exceptions, very neces sary to be maintained for the safety and preservation of the ship, as in the case of wages, towage, pilotage, salvage, and collision, they failed, so completely, that even bottomry must be effected by an express agreement in writing. As to foreign ships, however, it was found that this state of the law, in respect of implied maritime lien, and the exclusive jurisdiction of the common law courts over contracts within the body of a county, operated to their serious prejudice in circumstances of distress or necessity whenever personal credit failed the master. It was, therefore, enacted,' that "the High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever in the nature of salvage for services rendered to, or damage received by, any ship or sea-going vessel, or in the nature of towage, or for necessaries supplied to any foreign ship or sea-going vessel, and to enforce the payment thereof, whether such ship or vessel may have been within the body of a county, or upon the high seas, at the time when the services were rendered, or damage received, or, necessaries furnished, in respect of which such claim is made." In respect of salvage, we shall see that considerable modifications of jurisdiction have been made by recent legislation; but in respect of claims upon contracts made within the jurisdiction of the common law courts, this provision is still in full force. It does not extend, however, to a ship in a foreign port; and it applies to foreign ships exclusively. To such a ship, therefore, necessaries are primâ facie supplied on the credit of the vessel, and that whether she be fr. 5, & 6; Novell, 97, c. 3; Domat, 4 1 Kent's Com. 635, note, cited ante, p. 59, n. 3. 2 Per Lord Stowell, The Zodiac, Scott, 1 Hagg. Ad. 320, 325. 3 3 & 4 Vict. c. 65, § 6. 4 Post, c. xiii. Salvage. 5 The Ocean, 2 W. Rob. Ad. 368. 6 The Perla, 4 Jur. N. S. 741. in a colonial or an English port; but, in the absence of exigent necessity for such supplies, the Court of Admiralty has no jurisdiction, and the party, appealing to it, must prove the existence of such necessity.' There is no doubt a practical difficulty, though the principle of law is plain, in the case of contracts made by a stranger with one, such as the master, who appears to be in the position of a general agent for the purposes of the ship. Whether he was the agent of the defendants, or was held out by them as their agent, in making the particular contract, may be a proposition difficult of proof under the actual circumstances of the case; but it is the main proposition to be affirmed or negatived, and usually it determines the result of the action." The defendants, therefore, are not liable, on contracts for the ship made by the master, merely because they are owners, or appear on the register as such or hold themselves out as owners, and are in possession of the ship at the time of the contract; or because the contract is made by the registered master, acting as master with the privity and consent of the defendants, and making the contract with their privity, and the goods and work are supplied and done on the credit of the defendants, being fit proper and necessary for the ship under the circumstances existing at the time of the contract ;-unless the master is also held out by the defendants as their master of the particular ship, acting on their behalf in the conduct, 1 The Wataga, 1 Swabey, Ad. 165. The Ocean, 2 W. Rob. Ad. 368; The N. R. Gosfabrick, 4 Jur. N. S. 742; The Helena Sophia, 3 W. Rob. Ad. 265; The Alexander, 6 Jur. 241. 3 Myers v. Willis, 17 C. B. 77; (in error) 18 C. B. 886; Mackenzie v. Pooley, 11 Exch. 638; per Erle, J.; Frost r. Oliver, 1 E. & B. 301; Mitcheson . Oliver, 5 E. & B. 419; Curling v. Robertson, 7 M. & Gr. 336; Beldon v. Campbell, 6 Exch. 886; Briggs v. Wilkinson, 7 B. & C. 30; Young v. Brander, 8 East, 10; and see on the general principle, per curiam, Reynell . Lewis, 15 M. & W. 517, 526; Wylde v. Hopkins, ibid.; Smith v. M'Guire, 27 L. J. (Ex.) 465, 468. 4 "Title has nothing to do with these cases; we must look to the contract between the parties," per Lord Ellenborough, C. J.; Annett v. Carstairs, 3 Campb. 354; "The doctrine, that the legal ownership of the ship is proof that the master has authority to contract for such owner, has been repeatedly negatived," per Erle, J., Frost v. Oliver, 22 L. J. (Q. B.) 353, 360; 1 E. & B. 301, S. C.; Brodie v. Howard, 17 C. B. 109; Myers v. Willis, 17 C. B. 77; (in error) 18 C. B. 886; 25 L. J. (C. P.) 39, S. C.; Hackwood v. Lyall, 17 C. B. 124; 25 L. J. (C. P.) 44 n. S. C.; Flower v. Young, 3 Campb. 240; Smith v. Fuge, 3 id. 456; Fraser v. Hopkins, 2 Taunt. 5; 2 Camp. 170, S. C. Depends on cipal and Agent. relation of Prin |