par 151 Something of this is perhaps true of all cotenants of chattels; and it may possibly be carried further in the case of ships, from the nature of the property; but there must be a limit to this rule, for certainly absent part-owners would not be bound by any act of a part-owner, which was in itself or by force of circumstances so utterly and obviously unreasonable or prejudicial, that no one could rationally believe that they had authorized the act. Indeed, a consideration of the cases, and especially the latest, would lead to some doubt, whether a part-owner of a ship, as such, that is, when not authorized by being master or ship's husband or otherwise, has any more power to bind his copartowners, than the cotenant of any other chattel has.1 1 It is said in Abbott on Shipping, 105, "With regard to the repairs of a ship and other necessaries for the employment of it, one part-owner may, by ordering these things on credit, render his companions liable to be sued for the price of them, unless their liability be expressly provided against." In support of this proposition several cases are cited, but it will be found on examination that they are either cases of partnership, or those in which the repairs were ordered by a person who was also the ship's husband or the master. The question, whether one part-owner is liable for repairs ordered by another who is not the ship's husband, has seldom arisen, though there are numerous dicta on the subject. In Ex parte Bland, 2 Rose, 91, 93, and in Stewart v. Hall, 2 Dow, 29, the repairs were ordered by the master. In Beckham v. Knight, 5 Scott, 619, and in Patterson v. Chalmers, 7 B. Mon. 595, the parties were partners, and not part-owners merely. In the following cases the repairs were ordered by the ship's husband, and the other part-owners were held liable. Chapman v. Durant, 10 Mass. 47; Schemerhorn v. Loines, 7 Johns. 311; Muldon v. Whitlock, 1 Cow. 290; Thompson v. Finden, 4 Car. & P. 158. In Carlisle v. The Steamer Eudora, Ann. 15, the action was brought by a pilot against the steamer and owners. plaintiff was employed by one owner, who represented the vessel, by a written contract. There was parol evidence that at the time of entering into the contract the plaintiff contemplated the liability of all. Both owners were held liable. See also Hardy v. Sproule, 29 Maine, 258. This question has been recently the subject of much discussion in La. The England, in the The action was case of Brodie v. Howard, 17 C. B. 109, 33 Eng. L. & Eq. 146. It has been held, that, if a part-owner expressly dissents from the employment of a ship on a certain voyage, and the ship is lost, he is not liable, in equity, for his share of the loss; but if he objects, and nevertheless does not expressly dissent, he is so liable. If a part-owner arrests a ship and prevents a voyage, after the other owners have expended money to repair and fit her out, he has been held bound to pay his proportion of these expenses. But the repairs in this case were of a permanent nature, and such as would be beneficial to the ship after the voyage was ended.2 are not in the situation of partners. To this extent they resemble partners, that they are all liable for repairs and such other necessary expenses for the ship which may be presumed to have been incurred with their assent; but they differ from partners in this respect, that the authority of one part-owner to pledge the credit of the others does not exist, as in the case of partners, unless such authority has been determined only by express dissent, communicated to third parties. There is no authority that any such law is applicable to part-owners." And Jervis, C. J., in the same case says: "The only matter of difficulty which I have felt is the authority of Lord Tenterden,” (cited in the beginning of this note,) "from which it would seem that something must be expressly done by a part-owner to limit his liability. I think, however, that means this, that, when a ship goes into dock to be repaired, where the part-owner has previously allowed his credit to be pledged, or has held himself out as liable, he must give express notice in order to determine the authority; but where there has been no such credit, or holding out as liable, no such notice is necessary. The explanation of it is this, that the authority once given continues, unless notice of the contrary has been given." So in Revens v. Lewis, 2 Paine, C. C. 202, the court say: "Where one of the part-owners is the master or ship's husband, in the absence of all special agreement on the subject he is presumed to have authority to do every thing necessary to be done for the employment of the vessel, and has of course authority to make repairs, and bind the vessel for the same; but as this is only an implied or presumed authority, it must, like all other implied powers, cease when it is revoked, or any thing is done to rebut the presumption." But in King v. Lowry, 20 Barb. 532, where one part-owner assumed the control of the vessel to the exclusion and against the will of the others, it was held that all were liable for the supplies ordered by this one in the home port, the party making the repairs not having knowledge of the differences which existed between the part-owners. 1 See supra, p. 86, note 2. 2 Davis v. Johnston, 4 Sim. 539. SECTION III. OF THE LIABILITY OF PART-OWNERS FOR REPAIRS OR SUPPLIES. In general, all the part-owners are liable in solido for the repairs of a ship, or for necessaries actually supplied.1 This rests in part upon the general principle, that one receiving and holding a benefit must pay for it; and in part upon the peculiar nature of this property, and the necessity there is for the public good, as well as for the advantage of each owner, that, wherever the ship may be, all who are interested in her should be regarded as authorizing such expenditure for repairs or supplies as she may require.2 We shall see hereafter, that persons making repairs or furnishing supplies have also a lien on the ship. But they can neither have a lien on the ship, nor a personal claim against those of the part-owners who do not order them, if the repairs or supplies are wholly and obviously unnecessary, and therefore unreasonable. But the necessity in this case may not be a strict one. If the things furnished are reasonable conformity with the character of the ship, or the nature and purposes of the voyage, or if, in fact, they are such that any rational part-owner may be supposed to have desired them, it will be difficult for the absent part-owners to escape their liability. in any 1 Westerdell v. Dale, 7 T. R. 306; Chapman v. Durant, 10 Mass. 47; Schemerhorn v. Loines, 7 Johns. 311; Muldon v. Whitlock, 1 Cow. 290; Hardy v. Sproule, 29 Maine, 258; Wright v. Hunter, 1 East, 20; Baldney v. Ritchie, 1 Stark. 338; Thompson v. Finden, 4 Car. & P. 158; Macy v. De Wolf, 3 Woodb. & M. 193, 204; Gallatin v. The Pilot, 2 Wallace, C. C. 592. In Louisiana, it is held that part-owners are not liable in solido, except when they form a partnership. Carroll v. Waters, 9 Mart. La. 500; Kimbal v. Blanc, 20 Mart. (La.) 386; David v. Eloi, 4 La. 106, 108; Burke v. Clarke, 11 La. 206. 2 See remarks of Parker, J., in James v. Bixby, 11 Mass. 34, 36. * Molloy, B. 2, ch. 1, § 10; The Vibilia, 1 Wm. Rob. 1, 10; The Sophie, 1 Wm. Rob. 368; Mackintosh v. Mitcheson, 4 Exch. 175; The Ship Fortitude, 3 Sumn. 228, 233; United Ins. Co. v. Scott, 1 Johns. 106, 111; Pratt v. Tunno, 2 Brev. 449; Wainwright v. Crawford, 3 Yeates, 131, s. c. 4 Dall. 225; Merwin v. Shailer, 16 Conn. 489; Philips v. Ledley, 1 Wash. C. C. 226; Beldon v. Campbell, 6 Exch. 886, 6 Eng. L. & Eq. 473; Leddo v. Hughes, 15 Ill. 41. Webster v. Seekamp, 4 B. & Ald. 352, and cases supra. It has been said, that a part-owner of a vessel is not liable to another for repairs made at a home port without his consent. If made against his prohibition, he would not be liable; but we should suppose his consent would generally be inferred, if the repairs were reasonable and proper, and he made no objection. A considerable distinction exists in respect to all the powers of a part-owner, a master, or a ship's husband, between the exercise of them abroad and in a home port. The reason is obvious. A ship far from its home might perish for want of aid which was delayed until all the owners could be consulted. But if at home, all who will have to pay have an unquestionable right to be consulted. It is not, however, quite certain whether the fact that the vessel is in a home port, which certainly limits these powers, goes so far as to destroy them. In other words, the question, whether one part-owner can bind another in a home port without specific authority, may be regarded as still open.1 If one who has a claim for repairs or supplies receives a part of his claim from one or more of those liable in solido, those who thus pay a part, even if it be their share, or more than their share, are still liable for the residue. And they are thus liable, although the supplier expressly promised to discharge them in consideration of their paying as they did; for their payment alone would not be consideration enough in law to sustain the promise, even if they paid more than their shares, because they were legally bound to pay the whole. But if they paid on request, before they were bound to pay, or otherwise in any man-` ner beneficial to the promisor, and not obligatory on them, or if they received a discharge under seal, the part-owners paying would be no further liable. It may, however, be doubted whether, in admiralty, the presence of a seal upon the discharge would make much if any difference. This we shall consider in our chapter on Admiralty practice. In 1 Benson v. Thompson, 27 Maine, 470; Hardy v. Sproule, 31 Maine, 71. Mitcheson v. Oliver, 5 Ellis & B. 419, 32 Eng. L. & Eq. 219, 236, the question arose, whether a master had authority in a home port to make repairs. The point was not decided. Parke, B., stated that the court considered it an open question. 2 Fitch v. Sutton, 5 East, 230; 2 Parsons on Contracts, 129 et seq. 8 Teed v. Baring, Abbott on Shipping, 116. If especial credit is given to one only of several part-owners, the others are not liable; but it must be clear that this was the intention of the creditor; that is, it must be certain that he not only intended to charge one, but intended also that the other part-owners should not be charged. If the creditor knew but one, and for that reason charged him only, that we should not deem a sufficient discharge of the rest. If the charge were to "ship and owners," and were in any way authorized by those who were owners, they are all held, whether known or unknown; 3 1 Ex parte Bland, 2 Rose, 91; Baldney v. Ritchie, 1 Stark. 338; Stewart v. Hall, 2 Dow. 29; Thompson v. Finden, 4 Car. & P. 158; Hussey v. Allen, 6 Mass. 163; James v. Bixby, 11 Mass. 34; Muldon v. Whitlock, 1 Cow. 290; Cox v. Reid, 1 Car. & P. 602; Reed v. White, 5 Esp. 122. In Jennings v. Griffiths, Ryan & Moody, N. P. 42, the court go so far as to say: The true question is, upon whose credit was the work done. This will generally be determined by the legal ownership, but may be rebutted by proof that the defendant has parted with the beneficial ownership, and all management of the vessel. This doctrine is entirely overthrown in England. Numerous recent decisions settle the law now to be, that where repairs are ordered by one person, and another is sought to be charged, the only question is, whether the party ordering was held out by the other as his agent, for if not he cannot be held. Thus Parke, B., in Mitcheson v. Oliver, 5 Ellis & B. 419, 32 Eng. L. & Eq. 219, 232, says: "We have often said the expression, 'Upon whose credit the work was done, or the goods were supplied,' is an incorrect expression, and likely to mislead the jury; the correct mode of leaving the question to the jury is, ' who was the contracting party.' See also, Myers v. Willis, 17 C. B. 77, 33 Eng. L. & Eq. 204; affirmed, 18 C. B. 886, 36 Eng. L. & Eq. 350; Brodie v. Howard, 17 C. B. 109, 33 Eng. L. & Eq. 146; Mackenzie v. Pooley, 11 Exch. 638, 34 Eng L. & Eq. 486. 2 Thomson v. Davenport, 9 B. & C. 78. Miln v. Spinola, 4 Hill (N. Y.) 177. But it is perfectly clear that the fact of credit given, of which the charge "to the ship," or to "A. & B. owners of the ship Hero," or whatever the words used may be, is evidence, cannot, unless ratified or adopted by the party or parties. intended, enure to charge them, if they are not otherwise liable. The only effect it can have is, on the one hand, to restrict the liability to one or more of several parties who would otherwise be answerable, by showing the intent of the creditor to look exclusively to those named, and of this it is at best but prima facie evidence, and liable to be rebutted by proof that the repairs, etc., were credited to those named, because the furnisher knew of no others; and, on the other hand, where words sufficiently comprehensive are employed to embrace all those who for any reason are legally chargeable, as, "To the ship and all concerned." This is but evidence of an intent to preserve the remedy of the party entire, which the law will, generally at least, imply as well without it. In Jones v. Blum, 2 Rich. 475, supplies had been furnished for the ship by the plaintiff on a contract with one Stocker, who was the owner, but had mortgaged her to the defendants by a surrender of the old register, and taking out a new one in their names. He continued, however, in possession of her, and sailed her for his exclusive benefit until she was taken possession of by the defendants. The goods were charged in the plaintiff's books "to the Brig |