275

Cowper, 636; Arthur agt. Schooner Cassius, 2 St.. $1
and 94.)

The jury found for plaintiffs, and if the above stories
are good law, then the finding is conclusive. The excGDIE
taken by the defendants was to the whole charge, t
fore, was too general. If any part of the charge w
the exception was pointless.

Third. The learned judge below was right in fr
non-suit, because the motion went to the question f
rity of William C. Rogers, the master, to bind the d-flas
for necessaries for the vessel, which was one mixed flv
and fact, and that a master who ran on shares had

to bind the owners for supplies for the vessel, yet the rise at
bar went beyond, and showed these further and alt
facts on the question of authority, viz:

(a) That the schooner Moonlight was built for W. C. Rogers, as commander, by the owners.

(b) That Rogers was in the habit of ordering supples and repairs for the vessel, which the owners paid for, and with their objection.

(c) That the disbursements were to be paid eqtr the owners and the master, which made it a joint e The case in 1 Curtis' R. (p. 104), seems to turn on the f that the material man knew of the universal custom at En fast, Maine, to let such vessel on shares. (See p. 11: Reeve agt. Davis (1 Adolph & Ellis, 312), the case of : agt. Coe (Cowper's R. p. 636), is not referred to either counsel or the cor

nts did not explain, by eviden

"running on shares Fr

naster had all the

The vessel H

jers as master

aster. (See

Lalor's Sun. & Br

? a

the

vessel, and to the means of employing her; fitting out, victualing and manning the ship the owners do not reside and have no establis frequently also, even in the place of their His position, therefore, furnishes presumpt authority from the owners to act for them liable indeed to be refuted by proof that the person for them, managed the concern in instance, and that this fact was known to the itor, or was of such general notoriety that he be supposed not to have been ignorant of it and supplies, however, must be such as a would have ordered or assented to if present the master has power, it is insisted, to bind sonally, as well in the place where they r (1 Conklin's Ad. Pr. p. 73, 2d ed; Abbott 2, chap. 3, §§ 2 and 4; Ship Fortitude, 3 Su agt. Chalmers, 7 B. Monroe, 595; The Pa 322; Hardy agt. Sproul, 29 Maine [16 She agt. Lechamp, 4 Barn. & Ald. p. 352.)

This principle is held by the court of a (p. 235); Provost agt. Patchin; Saxton Supplement to Hill and Denio (p. 323).

Second. In the case at bar, the plaint show that he sold the goods (which we request of the master, on the credit of did not know that the vessel was run master who got the goods was to all and command of the vessel, to th masters. That the vessel was built had ordered other repairs and sup by the owners without their objec duced by the defendants that m ally run on shares (Saxton agt.

The learned judge below lef distinction taken in Conklin's and by all the other elemer

Kenzel agt. Kirk.

vessel, and to the means of employing her; the business of fitting out, victualing and manning the ship in ports where the owners do not reside and have no established agent, and frequently also, even in the place of their own residence. His position, therefore, furnishes presumptive evidence of authority from the owners to act for them in those cases, liable indeed to be refuted by proof that they, or some other person for them, managed the concern in any particular instance, and that this fact was known to the particular creditor, or was of such general notoriety that he may reasonably be supposed not to have been ignorant of it; and the repairs and supplies, however, must be such as a prudent owner would have ordered or assented to if present. To this extent the master has power, it is insisted, to bind the owners personally, as well in the place where they reside, as abroad. (1 Conklin's Ad. Pr. p. 73, 2d ed; Abbott on Shipping, part 2, chap. 3, §§ 2 and 4; Ship Fortitude, 3 Sum. 228; Patterson agt. Chalmers, 7 B. Monroe, 595; The Paragon, Ware's R. 322; Hardy agt. Sproul, 29 Maine [16 Shep. 258]; Webster agt. Lechamp, 4 Barn. & Ald. p. 352.)

This principle is held by the court of appeals in 5 Selden (p. 235); Provost agt. Patchin; Saxton agt. Reed; Lalor's Supplement to Hill and Denio (p. 323).

Second. In the case at bar, the plaintiff's proof tended to show that he sold the goods (which were necessaries) at the request of the master, on the credit of the vessel. That he did not know that the vessel was run on shares. That the master who got the goods was to all appearances in charge and command of the vessel, to the same extent as other masters. That the vessel was built for him, and the master had ordered other repairs and supplies, which were paid for by the owners without their objection. No proof was introduced by the defendants that masters of such vessels usually run on shares (Saxton agt. Reed, Lalor, p. 330).

The learned judge below left the case to the jury on the distinction taken in Conklin's Admiralty (vol. 1, p. 73 2d ed.), and by all the other elementary writers. (Rich agt. Coe,

Kenzel agt. Kirk.

Cowper, 636; Arthur agt. Schooner Cassius, 2 Story, pp. 81 and 94.)

The jury found for plaintiffs, and if the above authorities are good law, then the finding is conclusive. The exception taken by the defendants was to the whole charge, and, therefore, was too general. If any part of the charge was good the exception was pointless.

Third. The learned judge below was right in refusing to non-suit, because the motion went to the question of authority of William C. Rogers, the master, to bind the defendants for necessaries for the vessel, which was one mixed of law and fact, and that a master who ran on shares had no right to bind the owners for supplies for the vessel, yet the case at bar went beyond, and showed these further and additional facts on the question of authority, viz :

(a) That the schooner Moonlight was built for W. C. Rogers, as commander, by the owners.

(b) That Rogers was in the habit of ordering supplies and repairs for the vessel, which the owners paid for, and without their objection.

(c) That the disbursements were to be paid equally by the owners and the master, which made it a joint concern. The case in 1 Curtis' R. (p. 104), seems to turn on the fact that the material man knew of the universal custom at Belfast, Maine, to let such vessel on shares. (See p. 113.) In Reeve agt. Davis (1 Adolph & Ellis, 312), the case of Rich agt. Coe (Cowper's R. p. 636), is not referred to either by the counsel or the court.

Fourth. The defendants did not explain, by evidence or otherwise, what was meant by a "running on shares." For all that appeared in the case, the master had all the independent authority of other masters. The vessel was registered with the name of Wm. C. Rogers as master. To the world, therefore, he appeared as master. (See observations of BEARDSLEY, J. on pages 329, 330, Lalor's Sup. to Hill & Denio.) They had let the master in the uncontrolled operation of the vessel, sent him out into the world clothed with apparent authority, and because a loss ensued by his mis