KNOWLES, J.-This is a cause of possession, civil and maritime, promoted by C. T. Childs et al. against Samuel Gladding et al., the libellants, as owners of twenty-three thirty-second parts of the schooner Allen Middleton, Jr., claiming possession and control of her, as against the respondents, the owners of the remaining nine thirty-second parts.

The libel, as filed on the 12th of April 1871, alleged as grounds of judicial action, First-The ownership of the schooner, as above stated, and secondly, "That the libellants are desirous of employing her in the coasting trade, and for this purpose, of placing in her a master satisfactory to themselves, and in whom they have confidence, but that the said Samuel Gladding, having heretofore been master of the said schooner, refuses, though requested to deliver up possession of her to the libellants, and persists in his claim to continue in her as master, notwithstanding the demand made upon him by the libellants for possession and control of her, and he, and some of the other part-owners refuse to unite with the libellants in the employment of said vessel, though, as the libellants believe, a part of the owners, now absent, would join with them in the employment of said vessel, if here present.

On the 20th of April, without objection, the libel was amended. by inserting three additional articles to the effect following: 1st, that said Gladding was appointed master of the schooner, about the 3d of March 1871, under a special agreement that he should remain master only so long as he gave satisfaction to the owners, and that before the filing of the libel, "he was informed by the libellants, who constituted a large majority in interest of such owners, that he did not give satisfaction to the owners, and that they had removed him as such master and demanded of him the possession of said vessel, and to surrender up to them the papers thereof: 2d, that said Gladding, while he was master of said vessel, misused and abused her by greatly overburdening her, whereby she was strained and caused to leak badly and otherwise damaged; and 3d, that said Gladding is incompetent to act as master of said vessel."

To the libel, as thus amended, the said Gladding intervening for his interest in the schooner, filed his answer, embodying six defensive allegations, of the first and sixth of which, however, it is not necessary here to speak.

The second was in substance, That during the months of De

cember 1870, and January and February 1871, he acted as agent of all the owners concerned in the purchase of said schooner, who unanimously appointed him master thereof, without any stipula-. tion or condition, and, in consideration thereof, he became part owner; that in a subsequent agreement, on the 3d of March 1871, a contract concerning the employment of the schooner and the division of her earnings was embodied, and it was expressly stipulated that he, said Gladding, was to act as master of the schooner, as long as he gave satisfaction to the owners-that the meaning of the stipulation was, "that until he, said Gladding, did some act as master that gave the owners just cause of complaint or reasonable ground for dissatisfaction," he was to command and have possession of the schooner; that in pursuance of said agreement he gave up other employments, and on the of March 1871, entered upon his duties as captain and manager of the schooner, having made in her since that date a successful trip to Baltimore, and having settled the accounts of the vessel for that trip with the several shareholders-they "all expressing themselves satisfied;" that he was arranging for and about sailing on a second trip, when the libellants, by instituting these proceedings and arresting the schooner, obstructed the sailing, use and employment of her, to his great damage as one of the owners and master of the same, and in unjust violation and breach of the said contract-he denying that the libellants or owners had any just cause of complaint against, or reasonable ground of dissatisfaction with him for any act done or suffered to be done by him in the command of said schooner, or the management of her affairs or settlement of her accounts.

The third allegation was, in substance, a denial or traverse of the charge of misusing, overloading or straining the vessel: the fourth, in substance, a denial of the charge of incompetency as master of said vessel, coupled with an averment that for over thirty years he had been a mariner by profession,-had served in all capacities (save that of cook) on board of vessels, and had been master of other schooners before, to wit, of the Mary H. Mifflin; Thomas Hallet; Flight; Gov. James Y. Smith; Science, of Bristol; Phoenix, of Stonington; and others, and that no vessel under his command ever had any injury done to her, or any accident happen to her that might have been avoided by the master. The fifth was, substantially, an allegation that he was the legal, bond

fide owner of two thirty-second parts of the schooner, and that another thirty-second part is held for him by one William Butler, under an agreement to convey to him on payment of an agreed price.

The cause came to hearing upon libel, answer and documentary and oral proofs, several of the owners, the captain included, appearing as witnesses, and the several points set forth in, or suggested by the libel and answer, were distinctly presented and made the subjects of inquiry and argument. To such only of these as upon full consideration of the whole cause I deem of controlling importance shall I refer, as matters of comment on this occasion.

In regard to certain principles or maxims of the law maritime, no question is raised at the bar. The learned counsel of the parties agree that in general the majority in interest of the owners of a vessel are entitled to the control, use and possession of her, and that this right of the majority the admiralty will protect, of course,—duly regarding the rights of the minority, to demand security for the restoration of their property in. specie or otherwise. Also, they agree that in general the owners of a vessel (that is the majority in interest of them), have the power of appointment and removal of the master at will, for any or no cause, as they may see fit, and that of course no objection or complaint, on the part of a captain, to an exercise of this power by the owners, is of any avail, unless grounded on the terms of some special contract between himself and those owners. But, at this point arises a question upon which the learned counsel are widely at variance, and upon which, it cannot be denied, text writers and jurists seem to be not fully in accord. Thus, on the part of the claimant, it is contended that when it happens that a part-owner, co-operating with the minority, occupies the position of captain, the general principles above stated lose their value for all practical purposes, unless the majority can show some adequate, just or reasonable cause for removing or dispossessing such captain.

On the part of the libellants, on the other hand, it is maintained that the right of the majority in interest is as perfect and its power as irresistible, against the captain, though a part-owner, as against any other shareholder, whatever his occupation or his residence-landsman or seaman. And accordingly, as their first

position, they claim that upon their petition or libel, as originally filed, in which the only ground for action set forth, is the majority's right of possession, without even an allusion to any cause of dissatisfaction, they are entitled to the relief prayed. On principle, they say, this claim can be sustained, and, while they acknowledge their inability to produce, in support of it, any adjudicated case from the English or American reports, they challenge a production of an adjudicated case militating with their position.

In reply to this, and in support of his own position, the learned counsel of the claimant, with apt and cogent remarks and arguments, cites several authorities deservedly of high repute, viz. : 3 Kent 162 and notes; Story on Part., §§ 432 and 445 and notes; Flanders on Ins., § 65 and notes; 1 Parsons on S. and A. 95 and notes; Abbott on Ins. 104 and notes.

On referring to these, we learn that whatever is found in these works sustaining the claimant's views, is assumed and represented to be dictated or warranted by certain three cases in the English Admiralty, in tempore Sir William Scott (1802-10-11). The first of these is The New Draper, 4 C. Robinson 287. The owners of 9-16ths of a vessel sued for possession the owner of 7-16ths (who also was captain). The suit was contested, on the ground that the captain was in fact the owner of 14-16ths, having paid for seven of the nine shares holden at the commencement of the suit by certain of the libellants. The bills of sale, which he had taken, were, however, deemed by the court defective, and a judgment for possession was entered for the libellants, as being the majority in interest. So far as appears, the only point raised or discussed was the validity and effect of the alleged purchase of seven shares by the defendant, after suit brought. In pronouncing judgment, the court said: "The dispossession of a master is, in its nature, not an uncommon proceeding. All that the court requires in cases where the master is not an owner, is that the majority of the proprietors should declare their disinclination to continue him in possession. In the case of a master and part-owner, something more is required before the court will proceed to dispossess a person who is also a proprietor in the vessel, and whose possession, therefore, the common law is, upon general principles, inclined to maintain. It is not, however, by any means unprecedented for this court to proceed even to that extent; but then some special reason is commonly stated to induce the court to interpose. I

observe there is a reason given in this case, and the same that most frequently occurs, that the master is irregular in his accounts with his owners.' The conclusion of the court's opinion. is as follows: "The case becomes, therefore, a common case of the majority of owners proceeding against one in which the common rule of the court must be pursued. Possession decreed." The head note of the case, it may be well to state, is simply of possession. Master dispossessed at the application of a majority of interests."

"Case

The second of these cases is Johan and Seigmond, Edwards 242, decided in 1810, eight years after the decision in The New Draper. The head-note is, "Cause of possession. Suit not entertained by the court in the case of a foreign ship." The only allusion in the report of the case to the point in question, is this single sentence: "If this were a British ship, there can be no doubt that, by the practice of this court, it would, upon the application of a majority of the parties interested, proceed to dispossess the master, though a part-owner, without minutely considering the merits or demerits of his conduct."

The third of the three cases is See Reater, 1 Dodson 22, decided in 1811. The majority of the owners sought to dispossess the captain, who was also an owner of 5-16ths of the vessel. The decree was against the captain. The only portion of the report of this case, of any pertinence in this connection, is the first sentence of the court's opinion, in these words: "In cases of ships belonging to British subjects (the See Reater was owned exclusively by aliens), the court has no hesitation in ordering possession to be delivered up on the application of a majority of the owners, without entering very minutely into the causes of dissatisfaction existing between them and the master."

That there is found no adjudication in support of the claimant's position is apparent. Nor less apparent is it, that, in the view of the judge, an assignment of a reason for the dispossession of a master part-owner was rather matter of form than substance. In The New Draper, he says merely that some special reason is "commonly stated"-not that this is necessary, or even important —and his after utterances, in 2 Edwards and 1 Dodson, negative the inference that even he would have sustained a demurrer to a petition in which the majority of part-owners claimed possession, without assigning other cause than the majority's will and order.