#### Ernst vs. The Steamboat Brooklyn.

*Suit against vessel; Plaintiff as witness*— Notice-of *his*examination.— *Who may charge boat.*

1.In an action under .ch. 150, R. S. (“for collection of demand against boats and vessels ”), plaintiff cannot be a witness in his own behalf without having given notice of his intended examination, as prescribed by ch. 17, Laws of 1863.

2.Whether the steward of a steamboat is an agent within the meaning of ch. 150, so as to charge the boat with debts contracted by him- for supplies of food used on board, is a question of fact depending on the general usage and authority of stewards in such cases.

3.If the steward was under contract to board the officers and crew for a price to be paid by the owners, and the person furnishing the supplies knew it, the boat would not be liable.

APPEAL from tbe Circuit Court for *Winnebago*County.

Action against a steamboat to recover for meat alleged to have been furnished at the request of an agent of the boat, and used by the officers, hands and passengers. It appeared on the trial that *The Brooklyn*was a freight boat, engaged in navigating Lake Winnebago and Eox River, and that the supplies in question were purchased by the steward. The plaintiff was admitted as a witness on his own behalf, against the objection of counsel for defendant. Some proof was given as to the custom of stewards on such boats to purchase supplies. The defendant offered proof that the steward agreed to furnish provisions and board the *650officers and bands on tbe boat at a certain price per week, to be paid by tbe owners, and tbat tbe supplies were furnished to tbe steward while be was acting under tbat agreement. Tbe evidence was excluded. Verdict and judgment for plaintiff; and defendant appealed.

*Gabe Bouck,*for appellant,

argued, *inter alia,*tbat tbe court erred in admitting tbe evidence of tbe plaintiff below without notice.

*Felker $ Weisbrod,*for respondent.

DixoN, C. J.

"Whether tbe steward of a steamboat is an agent thereof, within tbe meaning of sec. 1, chap. 150, so as to charge such boat with debts contracted by him for supplies of food furnished and used on board such boat, .is altogether a question of fact, depending on tbe general usage and authority of stewards in such cases. If, by tbe general custom and usage of steamboats navigating tbe same waters, stewards are authorized to contract for such supplies and charge their boats, then tbe steward is such agent; otherwise, not — unless expressly made so by tbe owners of tbe boat. This is a question of fact for tbe jury, and tbe court was right in receiving and submitting evidence upon it to them.

If, however, it should be made to appear in such case tbat tbe person acting as steward was engaged under a special contract with tbe owners of tbe boat, by which be was to board tbe officers and crew at so much per week, and tbat tbe party furnishing tbe supplies knew of such contract, tbat would materially change tbe nature of tbe claim. Tbe boat would not then be liable. Tbe difficulty with tbe proof offered upon this point was, tbat it was not shown, nor proposed to be, tbat tbe plaintiff bad any knowledge of such special contract. It was properly excluded. *651Tbe question of the competency of the plaintiff to be a witness in his own behalf, without having given notice of his intended examination, as prescribed by chap. 17, Laws of 1863, is ruled by the case of *Sika v. The Chicago and Northwestern Railway Co.,*21 Wis., 370. He was incompetent; and for the error in receiving his testimony, the judgment must be reversed and a new trial awarded.

*By the Court.*— Ordered accordingly.