#### CLARK *v.*LONGWORTH.

Evidence — writing not produced — interest—release—lien upon a steamboat — discharge.

Testimony will not be received as to the contents of a writing not produced or accpunted for. One who lias conveyed properly in trust for himself and family, is incompetent to sustain such claim to the- property', unless he release his interest. ' •

The purchaser of a steamboat may dischaige her from previous liabilities and look to her ovvners for pay, such payment is not merely voluntary.

But if the owners of the boat have been applied to discharge the lien, the debt is extinguished, and no after loss of his would confer the right again to look to the owners for such debt.

Assumpsit for advances to a steamboat.

Plea non assumpsit, with notice of set-off.; The plaintiff purchased the steamboat Mexico, but found her subject to a lien for advances; and to release her, had to give his own note for $555 50, the amount of the advances, which he subsequently paid. He now claims to oblige the defendant with the sum so advanced, as one of the owners of the boat at the time the debt, which he was compelled to discharge, was contracted.

The deposition of Millikin, clerk of the boat, was offered, which went on to relate the contents of a letter not produced or accounted for. This was objected to by the defendant, and the objection was sustained by the court.

Robert Armstrong was offered as a witness. It appeared that he was formerly owner of the boat, and had conveyed her to create a trust for himself and family. He was objected to by the plaintiff, but having executed a release of his interest, was permitted to be sworn.

He testified that the plaintiff was only part owner of the boat. The defendant owned nine twentieths of her. The plaintiff told him about the time he discharged the lien upon the boat, that there was profit enough to pay the debt out of the defendant’s interest; and then showed the boat’s books, and said he had paid it out of the earnings of the boat. The boat was subsequently in a losing business, and was finally lost.

*190Fox, objected to this evidence of the off-set, because the transaction was between different parties.

F. Worthington, contra,

said it was not a question of off-set, but of payment, 12 *Mass. R.*173. In all cases where an agent contracts, he must show to make the principal liable. 13 *Mass. R.*83, 178.

Storer,

in reply, thought the real question was whether there was any original liability on the part of the defendant.

Lane, J.

to the jury. If the boat was liable for debts, and about to be attached, the plaintiff had a right to relieve her from the lien, and look to her owners for pay. Such payment is not a mere voluntary one, but such as a person interested in discharging a lien from a boat may make and charge the owners with. If the payment in this case was so made, the plaintiff will have a right to recover, if he has not been paid. But if so made, and the defendant by subsequent agreement with the plaintiff, authorized him to apply his portion of the boat’s earnings to satisfy the debt, and they were so applied, the debt was extinguished by the payment, notwithstanding a dividend of the boat’s earnings had not been then declared, and notwithstanding the boat afterwards became subject to other liabilities and losses which swallowed up all her earnings.

Verdict and judgment for the defendant.