#### Nathaniel C. Bissell *v.*Joseph Bozman.

For the benefit of trade, the captain of a ship is liable for her disbursements in a strange port; but if he consigns to the person making them, property of the owner sufficient to cover them, the consignee, by paying the funds in his hands to the owner, without deducting the disbursements, discharges him.

After the reference ordered in this cause, *(ante p.*154,) tiie master filed his report, from which it appeared, that the account of *Myers*& Son, against the brig William, amounted to the sum of $499 82, of which, $50 was charged as having been paid to the plaintiff, and $ 223 14 as “cash paid the custom-house bill.” The residue was for pilotage, sea stores, repairs and commissions ; the particulars of the custom-house hill, were not given. In an account hereinafter mentioned, *Myers*& *Son*charge for storage, $48 52, and for bond and permit and duties at the custom-house, $2523 66; but *Myers*himself swore positively, that no part of the bill for disbursements for the brig were charged to the defendant’s account, and they no where appeared to have been, unless the custom-house bill was by mistake included in the large item for duties. ,;

The plaintiff, as captain of the brig, had consigned the vessel and cargo to *Myers*& *Son,*as the property of the defendant, to whom he directed them to account.. This was in March, 1816. The cargo sold for $4774 45, and netted over and above all charges then debited to the defendant, the sum of $1994 57. The consignees took up a bill of the defendant’s for $1056 33, draw n in March, 1816, w'hich, wdth other small matters, left a balance due him of $ 904 23, w'hich *Myers*& *Son*acknowledged to him on the 22d of August following. Early in 1817, *Myers*& *Son*received another consignment of property belonging to the defendant, which netted him $203 71, and on the 21st of May, of that year, they rendered him their account, including that sum and the former balance of $904 23, and charged him with *“ TF. P. Foster’s*note for sugar in sales per brig William, *230protested $301 25:” this account showed a balance due the defendant of $806 11, which was remitted him on the 29th of July following. The defendant then sent an agent to Norfolk, where *Myers*& *Son*resided, to demand the amount of *Foster’s*note, claiming that lie was not bound for it, as *Myers*& *Son*had never informed him of such a note being received for his sugar, and refusing to recognize it as his property. This claim was finally, hut reluctantly acquiesced in by *Myers*& *Son.*The plaintiff in a letter to the defendant dated July 18th, 1820, informed him that he had refused to allow *Myers*& áfon their claim of $499 82, because they knew he was only the master of the brig, and because they had the owner’s property in their hands, and might have paid •themselves, and could not resort to him four years after paying over the monies in their hands to the owner.— One of theJMr. *Myers’*proved, that after their letter to the plaintiff, informing him of the collection of the bill on the 'West Indies, and of their charging against it the amount of the brig’s disbursements, be applied to them for all the money collected for him, which was refused by them, because as captain, he, as well as the owner, was liable to them, and that the owner liad .refused *to*pay them.

*Myers*& *Son,*bad become bankrupt, and bad made an assignment of their effects, and it did not appear that the plaintiff had received any payment from them or their assignees.

On these facts, the master charged the defendant with the amount of the plaintiff’s money retained *by Myers ‡ Son,*and for this lie- excepted.

As to so much of the order of reference which directed the master to enquire as to the value of the mortgaged slaves, which had been bought by third persons, he reported, that this was the fact as to one only ; that -the evidence as to his value, was so contradictory lie could not come to any just.conclusion upon it; that in this uncertainty, he, liad, from his own knowledge of the slave, charged him to the defendant at $400, de,duct-ing from it $153, at which lie was credited to the *231plaintiff; to this, both parties excepted, the plaintiff, because it was too low, and the defendant, because it was too high.

*Iredell*and *Kinney,*for the plaintiff.

*Gaston,*for the defendant.

RuppxN, Judge,

after stating the facts, proceeded: The first thing-to be done in support of *BisseWs*claim is, to establish a debt to *Myers.*In that view, it might be material to enquire, whether a general advance of money to the captain is a disbursement for the ship, without showing the purposes to which it was applied, or at least was tobe appled. The item of “customhouse bill” might also need explanation; for of itself it is not sufficient to charge a consignor,. who has a right to the particulars, especially when there is a probability, from the nature of the charge, and the delay in presenting the whole claim, that it might have been included in other general charges.

Questions might also be raised upon the right of a surety to charge his principal by the acknowledgment or voluntary payment of a debt, barred by the statute of limitation, on which *Boxman*insists. But as the protection to which *Bissell*was entitled against this demand, has a foundation much more meritorious than mere lapse of time, I do not think it worth while to consider the effect of that.

Has *Bissell*paid *Myers*& *Son ?*If he has, was he so liable to them as to enable him by paying them, to make *Boxman*his debtor?

There seems to be no reason to doubt, that in a port, not the vessel’s own, proper disbursments on, or for the vessel, constitute a demand for which, the vessel, the master and the owner are all liable. As to the master, this is a departure, introduced for the sake of trade, from the general principle, that he who acts as agent, and is known as such, is not bound personally, unless he expressly promise. Whatever may be the grounds of this rule in reference to strangers, as between him and his owner, the master is in the nature of a surety, *232ln that character, he recovers back from the owner any ' monies he has paid, and has a lien upon the ship for ad-vanees, standing in the place of those whose claims he ]ias satisfied. And in that light he must be viewed by the consignee of the ship and her cargo ; at all events as fa[. as the proceeds of the cargo will serve to satisfy the consignee, or indemnify the captain. It the consignee, ag wcij ag strangers, has the right to regard the captain in ordinary cases as the owner, because in possession, and another owner may riot be found, yet a consignee with funds does know the owner in the most effectual manner. When the master thus leaves behind him tho means of paying tho debt, for which lie was liable, and in the hands ofthc man to whom the debt is due, lie feels that he has no right to retain tho vessel, and readily gives her up to the owner., thereby parting from the security given him by the law for his indemnity. The consignee can retain his whole demand out of the proceeds of the cargo. Common sense and common honesty say, the debt is paid as to the surety. It is not the ordinary case of a creditor getting a security of his own provision. Even then, the creditor is bound in good faith to take care of tho surety. The relation between them calls for that benevolence. B ut here the surety himself provides the security, lie docs it for his own benefit, as well as that of the creditor. The creditor cannot part from it to the prejudice of the surety. He cannot say, he did it by mistake ; hut must boar the consequences of his ow n mistake, and ought not afterwards to look to any body but the principal. *BisseU*was competently discharged ; and I think in no court of justice couid a recovery have been made him.

The captain is liable as the surety has, as to him, all the rights of one.

Tlie captain ditóhavgedfromh-ability to the con-se-neV, cannot af-lect. the relations tween him and tho a sabs-'quentpay^ menttotheformer can ho make, tho latter lus own debtor.

yf as he aware of his discharge? Expressly on that ° ‘ ^ ground, he refused to pay the demand in 1820, and so :¡¡f0..Enei] *Boaman.*Then could he afterwards pay *Myers*& *Sou,*and make the debt his own? I am now supP0íi^!S that *Boxnuin*owed *Myers*& *Son,*and that the latter bad a remedy against him. Could *BisseU*inter- > j Yhiiik. not. The connexion between them was * dissolved. He was cut loose, and had no right nor power *233to untie *Bozman*from *Myers,*for the sake of getting a faster hold himself. *Bozman*had a right to prefer *Myers*& *Son*for creditors ; he might be able to pay them easier, or to resist this demand altogether when made by them. Having gotten clear, *Bissell*could not again make himself a party, but by a new request from *Bozman*like any other stranger. This is not like reviving a debt, barred by the statute of limitations, by the acknowledgment of a surety. Here there was no debt remaining as far as concerned Bissell. He was under no obligation legal or moral, except not to interfere to the prejudice of either party. And that obligation was increased by the refusal of *Bozman*to *Myers*& *Son;*of which no doubt, *Bissell*was informed, in answer to his letter of July, 1820 — a refusal not founded *on*the ground that the disbursements had not been made, or had been paid for by *Bissell,*or any thing else, which *Bissell*could know to be false ; but on the ground that *Bozman*had himself paid. And if *Bissell*did not get that information from *Bozman*in 1820, ho did from Mr. *Myers in 1824,*before be assented to the arrangement made by *Myers*& *Son*of his debt. After *Bissell*was discharged, and he knew it; after *Bozman*had refused to pay, which ho also knew; after the lapse of eight years, for four of which *Myers*& *Son*had abandoned their claim against *Bozman,*or not prosecuted it; it was out of the power of *Bissell*and *Myers ‡ Son by*any act or agreement of theirs’, to resuscitate this demand against *Bozman,*and especially to transfer him to *Bissell.*But has *Bissell*paid it, or even agreed to pay it? *Myers*makes it appear in his books that he did. But the fact is not so. *Bissell*never assented to that application of his money. They promised a dividend on the balance. He rejected it, and demanded the whole. They assigned as a reason for their conduct, the refusal of *Bozman to*pay them. Did that appear to *Bissell*to be a good reason? Did he think that he and *Bozman.were*both bound, or that the refusal of the latter made him, *Bissell,*bound? Did he act on such a belief? No. He made no settlement with *Myers;*took no receipt for the money, no order on *Bozman.*He gave * *234no acquittance to *Myers*for so much of his own money ; but kept bis demand open, as a subsisting one, which ho would have rendered available, but for *Myers’*insolvency. When the present controversy arose, he thought he could use it to more advantage in it, and therefore, pursued his claim against the others no further.

A master cannot act upon facts which are within his own knowledge.

A mortgagee who sells without a foreclosure is responsible fdr the value of the property sold.

Upon no ground can the claim be sustained, and the exception must be allowed.

As lo the other exception, the master says, that he could form no satisfactory opinion of the value of the slave upon the testimony of the witnesses, because they differed so widely | and fixed the value upon his own knowledge. That was not a proper ground for him to proceed on ; for we cannot act on it, and must decido upon the evidence. Upon the weight of that, the court ascertains the value to be §5200. That *Boxman*objects to, because he thinks the other party confined to §5153, the price bid. The court has already said, the effect of that sale under the act of 1812, whatever it may bo, is waived by the cross bill to foreclose. We must now look upon it as a sale by *Bosnian*himself; confirmed, indeed, by *Bissell,*by not making the purchaser a party to his bill. But bow far does that confirmation go? Only to the title, not to the price. Suppose the slave sent to distant parts, so that *Bissell*could not reach him, or sold to a person without notice. The mortgagee who soils without a decree, must be sure to get the full value ; for be is parting with another man’s'property. The expression, “price or value,” used in this case before, meant, that- if the price exceeded the value, *Bissell*was entitled to it; if less, then to the valué. That is the risk a mortgagee must bo made to run, to keep him straight

Per Curiam. — Decree accordingly.