As to the lien of the ship's husband, it may not be quite certain. If a partner, then he has the lien of a partner; if not, he may have a lien on the proceeds of a voyage, or of the ship itself if sold, or on her documents, provided any of these have come into his actual possession. And this lien covers all his actual expenses and disbursements for the ship, and his indemnity for any obligation incurred for the ship. But it is doubtful whether the mere office of ship's husband gives him any lien.1

If the sum for which a part-owner is liable for outfits, has been, with the consent of all the parties, balanced upon the ship's books, by charging the same to a firm of which he was a member, the lien of the ship's agent on his share of the proceeds is discharged, and a purchaser of his interest takes it free from incumbrance.2

It is undoubtedly the duty of a ship's husband to obtain from each part-owner his share or contribution towards the payment of broker's commission for effecting a charter of a vessel, which had been incurred some time before, on the ground that the purchaser participated in the benefits of the charter-party, but the court disallowed the item.

1 It would, indeed, seem that the ship's husband as such cannot have any lien on the vessel, or the proceeds thereof. The Larch, 2 Curtis, C. C. 427; Ex parte Young, 2 Ves. & B. 242; Smith v. De Silva, Cowp. 469. In this last case, the outfit of a vessel had been conducted by De Silva, who was appointed to manage the concern as ship's husband, in pursuance of an agreement made by three others at the time of their becoming owners of the ship; and De Silva settled the accounts with them, and took from one of them, who afterwards became bankrupt, promissory notes payable at a future day for a part of his share of the expense. Lord Mansfield held, that the assignees of the bankrupt were entitled to receive his full share of the profits. The ship's husband, subsequently to this transaction, had acquired an interest in the ship by purchasing a part of the share of one of the other part-owners. (The time when he acquired that interest does not distinctly appear in the report of the case; but Lord Tenterden, in his remarks on this case in Holderness v. Shackels, states it to have been subsequent to the taking of the note.) It was held that he was entitled only to a dividend under the commission for the amount of the notes. In this case, no distinction was made between the bankrupt's share in the ship, which was sold in the course of the voyage, and his share in the profits of the adventure; but it seems now settled that on the latter the ship's husband has a lien for the expenses incurred in the outfit, &c. Holderness v. Shackels, 8 B. & C. 612; Gould v. Stanton, 16 Conn. 12, 23; Macy v. De Wolf, 3 Woodb. & M. 193, 210. And there seems to be no valid reason why this lien should not extend to the proceeds of the ship where her sale during, or at the end of the voyage, is contemplated and effected as a part of the adventure.

any general charge that he has made. And if he himself advances the share or contribution of any part-owner, he may sue him for it.1

SECTION VII.

OF THE LIENS OF PART-OWNERS.

There is much reason, and some authority, for giving to partowners a general lien on their common property for all their just and reasonable charges or balances of accounts against each other in relation to their common property. Indeed, there might seem to be some reason for extending such a rule to all cases of cotenancy of chattels. But there is no authority whatever for it in respect to common chattels; and in regard to cotenancy in a ship, we have no doubt that the prevailing authority of the courts, as well as the general usage of merchants, gives no such lien. In other words, part-ownership is one thing, and partnership another, whether in relation to ships or other property. These two modes of ownership may be perfectly separate and distinct; and when they are so in fact, and by the intention and understanding of the parties, both the common law and the law merchant keep them so. They may run together, absolutely, as when a ship is held as a part of the stock of a copartnership, or partially, or specially, as in the case of the joint adventures or quasi partnerships which we have already considered. And in these latter cases, the rules of the law of partnership, at least in courts of equity or admiralty, would be applied, so far as the merits and substantial justice of each case required their application. It has been adjudged, that, where two persons build a ship together, to be owned by them in certain proportions, and one of them advances more than his proportion, he has no lien on the ship for the balance due to him.2 And elsewhere it has been expressly denied that a part-owner has a lien on the shares of other owners for his advances on account of a voyage. The cases are in irreconcilable conflict on this sub

1 See cases ante, p. 113, n. 1.

2 Merrill v. Bartlett, 6 Pick. 46. See contra Pragoff v. Heslep, 1 Am. Law Reg. 747.

Braden v. Gardner, 4 Pick. 456.

.

ject. Most of them are complicated with the question, how far part-owners may be treated as copartners.1 But we should say, that, if a part-owner, or even if a ship's husband, who is not an owner, makes advances for a certain voyage, and then comes into possession of the proceeds of that voyage, he should have a lien on them for his advances, by the general principles of agency; and as between the cases which admit and those that deny that a partowner, merely as such, has a lien on the ship for his advances, while the more numerous authorities agree that there is no such lien, we cannot but think that those who favor it,- we may name Hardwicke in England,2 and Story in this country,3- find some reason for their opinion in the nature of the property and of the ownership. But no principle will go so far in reconciling the leading cases on this subject as this; a part-owner, merely as such, has no lien whatever; but acquires such a lien when any of the elements of partnership, or agency with bailment, upon which a lien may rest, enter into his relation with the other part-owners.

1 See Doddington v. Hallet, 1 Ves. Sen. 497; Ex parte Young, 2 Ves. & B. 242; Ex parte Harrison, 2 Rose, 76; Ex parte Parry, 5 Ves. 575; Nicoll v. Mumford, 4 Johns. Ch. 522, reversed 20 Johns. 611, and n. 1, p. 108. This may, perhaps, be regarded as one of the instances in which the common law has refused to yield to the exigencies of the law merchant, and in which some mischief has been the result of the conflict. The argument appears to have stood thus. A copartner certainly has a lien on the common property for his charges and expenses; a cotenant of a chattel certainly has not. A part-owner of a ship is but a cotenant of a chattel, and therefore has no such lien. But when cases involving this question came before the courts, it was apparent that the principles and reasons which gave this lien to a copartner applied with more or less force to a part-owner of a ship. And while the courts usually, or, at least, for the most part, have adhered to the rule that a part-owner has no lien, they have in some instances disregarded it, and in others admitted exceptions on very narrow grounds. We cannot but think it would have been better if the whole had been conceded, and a part-owner of a ship permitted to have his lien on the ship for his expenses and charges on account of the ship. But this certainly is not the law, as settled by the authorities.

* Doddington v. Hallet, 1 Ves. Sen. 497.

3 Story on Partnership, §§ 441, 443.

SECTION VIII

OF SUITS BY AND AGAINST PART-OWNERS.

The admission or acknowledgment of a partner, in relation to the business of the firm, binds all the partners. But this rule has been held not applicable to the case of a part-owner of a ship;2 although we have no doubt it would be applied, with other principles of copartnership, to cases of part-ownership, to which particular circumstances gave a character of partnership. So it has been the custom for part-owners of a ship to bring a bill against each other in equity for adjustment of accounts, in like manner as is done by partners. Until recently in England, admiralty had no jurisdiction of matters of account between part-owners, but jurisdiction is now given by statute. In this country admiralty has not jurisdiction in such a case. All part-owners should join in an action for a tort committed against all; but if they do not, no advantage can be taken of the non-joinder, except by a plea in abatement."

1 Story on Partnership, § 107.

Jaggers v. Binnings, 1 Stark. 64.

Story on Partnership, § 449; Moffatt v. Farquharson, 2 Brown's Ch. 338; Good v. Blewitt, 13 Ves. 397.

The Apollo, 1 Hagg. Adm. 306, 313, per Ld. Stowell.

524 Vict. ch. 10, § 8.

• Steamboat Orleans v. Phœbus, 11 Pet. 175; Grant v. Poillon, 20 How. 162; Kellum v. Emerson, 2 Curtis, C. C. 79; Minturn v. Maynard, 17 How. 477; Ward v. Thompson, 22 How. 330.

Cabell v. Vaughan, 1 Wms. Saund. 291, g; Dockwray v. Dickenson, Comb. 366; Child v. Sands, 1 Salk. 31; Addison v. Overend, 6 T. R. 766; Sedgworth v. Overend, 7 T. R. 279; Barnardiston v. Chapman, cited 4 East, 122; Wheelwright v. Depeyster, 1 Johns. 472; Hart v. Fitzgerald, 2 Mass. 509; Thompson v. Hoskins, 11 Mass. 419; Patten v. Gurney, 17 Mass. 182.

In Addison v. Overend, supra, Ld. Kenyon held that it made no difference in this respect, that the defect appeared on the plaintiff's declaration. The succeeding case of Sedgworth v. Overend was an action brought by the remaining part-owner, who had not joined in the first action against the same defendant for the injury to his share in the ship. The non-joinder was now pleaded in abatement, to which the former recovery was answered, and upon demurrer the court were of opinion that the plea was bad. Lawrence, J., remarking: "The defendants, not having pleaded in abatement in the first action, cannot now make this objection; by omitting to plead in abatement then, they assented to the severance of the actions. There might have been greater weight in this objection, if

If, however, the action is for freight, or on any contract, the defendant may show the non-joinder in evidence under the general issue. But part-owners of a ship may be sued separately on separate covenants.2

there had been several remaining owners, and only one of them had sued; but here the whole remaining interest in the ship is vested in this plaintiff; however, if there had been several remaining part-owners, I do not think the defendants could ever have objected to the severance of the actions after they had omitted to plead in abatement in the first action." In Phillips v. Claggett, 10 M. & W. 102, the declaration contained ten counts. The first five were in trover; the rest set forth that the plaintiffs having employed the defendant at his request, for reward, as agent or factor, to receive and take into his possession certain goods belonging to the plaintiffs, the defendant misconducted himself after the receipt thereof, in and about the care and disposal of the same, and by reason of such misconduct they became and were wholly lost to the plaintiffs. The defendant pleaded in abatement to the whole declaration, that the goods therein mentioned were not the property of the plaintiffs only, but were the joint property of the plaintiffs and two other persons. On demurrer the court ordered a judgment of respondeat ouster, on the ground that the plea was no answer, except to the first five counts, and that, being bad as to part, it was bad as to the whole.

1 In Stanley v. Ayles, 3 Keb. 444, Hale, C. J., was of opinion that indebitatus assumpsit by one joint-owner of a ship for his share of the freight was joint or several at the plaintiff's election, and that evidence of the custom of merchants to bring it alone was sufficient. It seems, however, well settled, that, where the contract is joint, either by agreement or implication, as where the part-owners are general partners or quasi partners in the particular adventure, they must sue together. "The necessity of all the part-owners joining as plaintiffs in the suit in this case," says Abbott, in his treatise on Shipping, p. 115, "is founded upon the consideration, that all of them are partners with respect to the concerns of the ship." Perhaps it is more accurate to say that the part-owners are all parties to the contract, which relates to the use of the property which they hold as tenants in common. And if they do not, it need not be pleaded in abatement, but may be shown under the general issue. Hart v. Fitzgerald, 2 Mass. 509; Austin v. Walsh, 2 Mass. 401; Peters v. Davis, 7 Mass. 257; Baker v. Jewell, 6 Mass. 460; Robinson v. Cushing, 2 Fairf. 480.

In Baker v. Jewell, supra, the court were of opinion that the want of proper plaintiff's in actions of contract is an exception to the merits, and is to be taken advantage of either upon demurrer, in bar, or on the general issue, but not in abatement. The other cases seem, however, to consider that it may be so pleaded. In replerin, all must join, and if they do not, the court will abate the writ ex officio. Hart v. Fitzgerald, supra.

* Servante v. James, 10 B. & C. 410, where the part-owners of a vessel agreed to load and despatch her on a voyage, the loss or profits arising from which were to be shared in proportion to the lading they respectively put on board, it was held, that a third person, who promised expressly to pay to each his share, could