#### David Tucker *versus*Jonathan Buffington and Another.

Whether the mortgagee of a. ship, not m possession, is answerable for repairs done upon her while Ms title continues, seems a question not yet settled.

But where one took an unconditional bill of sale of a vessel, and took out a certificate of enrolment in his own name, he was held answerable for such repairs; although he had given the vendors a written acknowledgment that the conveyance was made to him as collateral security for a debt due to him, with a promise to reconvey on payment of the debt; and had received none of her earnings, nor acted in any manner as owner.

Assumpsit for labor in repairing the sails of the sloop *Messenger.*Trial on the general issue, before *Thatcher,*J. The following facts were in evidence: —

On the 7th of June, 1815, the defendants advanced about 10,000 dollars to *Samuel &f Seward Porter,*who gave their promissory note therefor, and, as collateral security, gave a bill of sale of a ship then at sea, and also of the said sloop, then lying at *Boston.*On *425the same day the defendants gave said *Porters*a writing not under seal, acknowledging the receipt of said bills of sale, as collateral security for the debt aforesaid, and promising to reconvey said vessels on payment of the sum advanced, and interest. On the same ***day the defendants took out a new certíficate of enrolment in their own names, and marked her of *Boston,*their place of residence, instead of *Portland,*where the *Porters*had their home. But they never took possession of the vessel, nor received any of her earnings, nor had any care or manage ment of her, or any concern in manning, victualling, or employing her— the said sloop remaining in the possession and under the entire control of said *Porters,*and of the master appointed by them, who received the whole earnings of the vessel, without accounting to the defendants for any part thereof. On the 7th of November, 1815, the said *Porters*paid the defendants the whole money they had advanced, with the interest; but as *Seioard Porter,*who paid the money, was then on a journey to *New York,*the vessels were not reconveyed until his return, *viz.,*on the 14th of February, 1816. No account of the earnings of the vessel were rendered to the defendants, nor were they informed that any charges for repairs existed against her. On the 20th of February, the certificate of enrolment was exchanged at the custom-house in *Portland.*

While the vessel stood enrolled as the property of the defendants, the master of the sloop, who had been appointed by the *Porters*after the conveyance to the defendants, by their direction requested the plaintiff, who then had an account open with them, to make the repairs in question, which he did, charging them to the “ sloop *Messenger,”*the materials used in the repairs being furnished by the *Porters.*The plaintiff presented his account to the clerk of the *Porters,*who referred him to the master, as the person who kept the books and accounts of the vessel, and who then paid him 10 dollars, which is credited by the plaintiff. The defendants knew nothing of the existence of such an account, until after July, 1816, when the *Porters*had failed in business.

Soon after the reconveyance to the *Porters,*they conveyed the vessel to one *Hall,*who did not take possession of her until the time of said failure; to which time the **Porters*received all her earnings. *Hall*afterwards paid the plaintiff for such repairs as were made after the conveyance to him, deducting the amount out of the credit he gave the *Porters*for the proceeds of the sale of the vessel; but he refused to pay that part of the account which arose prior to the conveyance to him.

The jury returned a verdict for the plaintiff, against the opinion of the judge; and the defendants moved for a new trial on that *426ground, and also because the verdict was against the evidence in the case.

*Hopkins,*for the plaintiff,

contended that the defendants were liable for these repairs, whether the conveyance to them was considered as an absolute sale, or a pledge or mortgage. They had solemnly sworn that they were the owners, and tradesmen must look at the certificate of registry or enrolment, to learn who are the owners liable for the repairs. (1)

*Longfellow,*for the defendants,

insisted that they were mere mortgagees, and as such were not liable for the plaintiff’s demand. It was quite an afterthought in him to resort to them. The *Porters*furnished the materials, and employed the plaintiff. He made his charges against them, and it was not until after their failure that he called on the defendants. The property in the vessel did not pass, there having been no delivery ; and the defendants could never have entitled themselves to her earnings, while they permitted the vendors, or their agent, to continue in the open and exclusive possession of her. (2)

(1)

*Abbot on*Shipping, 20. — 5 *D.*& *E.*709, *Cambden & Al.*vs. *Anderson.*— 7 *D. & E.*306, *Westerdell*vs. *Dale.*— *Doug.*265, *Mass*vs. *Gallimore.*

(2)

 3 *H. Black.*114, *Jackson*vs. *Vernon.*— *Ibid.*117, note (a), *Chinnery*vs. Black*burne.*— 6 *Mass. Rep.*425, *Portland Bank*vs. *Stubbs.*

Parker, C. J.

Whether the mortgagee of a ship, not in possession, can be held answerable for repairs done upon her while his title continued, seems not to be settled in *England.*The Common Pleas, in the case of *Jackson*vs. *Vernon,*distinctly negative this responsibility, but in the King’s Bench, although no contrary decision has taken place, yet a very strong opinion is expressed by Lord *Kenyon*in favor of such liability. And *Abbot,*in his Treatise on Shipping, considers the point not settled ; but plainly coincides with Lord *Kenyon*in opinion.

* With us the question has not been distinctly raised. But, as it is laid down, in the case of the *Portland Bank*vs. *Stubbs,*that a mortgage of a chattel is not valid without possession by the mortgagee, it may well be doubted whether a mortgagee, who might have taken possession, but never has, can be considered an owner, to any purpose whatever, *(a)***In such case, the mechanic, who works upon the ship, may sue the mortgagor, and attach the ship as his, notwithstanding the mortgage; and there is no necessity for him to resort to the mortgagee as owner.

But the case before us does not seem to depend on this unsettled *427question; for the defendants, under the circumstances proved, ought to be considered as absolute owners, not as mortgagees of the vessel. They took an absolute bill of sale; and, having represented her as their property in the custom-house, took out a new certificate of enrolment in their own names ; and, further to give the appearance of ownership to themselves, they caused the name of the place of residence of the former owners to be erased from the stern, and *Boston,*the place of their own residence, to be substituted.

It is true, they had given the *Porters*a written contract, obliging themselves to reconvey the vessel on performance of certain things by the *Porters.*This might, perhaps, as between the parties, have operated to make the conveyance of the vessel a mere security ; but as to all the world besides, the transaction had the appearance of an unconditional sale. For the contract was known only between them, and it was probably intended that the defendants should assert themselves to be the owners of the vessel unconditionally, whenever the creditors of the *Porters*should find it necessary to resort to it as their property.

The defendants, having voluntarily placed themselves in this condition, must submit to the consequences of it. A tradesman, who intended to work on the credit of the owners of the vessel, would have no means of conjecturing any one to be owner, but him in whose name the vessel was * enrolled; and this fact, together with the alteration on the stern, would give a better indication of the ownership than actual possession of the vessel. For, in almost all cases, those who own are not those who are employed about the vessel.

The application to the clerk of the *Porters*by the plaintiff, and his receiving part of his pay from the master of the vessel, do not tend to show that he credited any but the vessel and her owners; for the *Porters*apparently acted as agents, and the master was in fact the agent of the owners, (a)

*Judgment on the verdict.*

(a)

**Sed vide *Holmes & Al.*vs. Crane, 2 *Pick.*607.— *Wheeler*vs. Train, 3 *Pick.*255. — *Gould*vs. Ward, 4 *Pick.*104.— *Ward*vs. Gould, 5 *Pick.*291.— *Gardner*vs. *Howland Tr.*2 *Pick.*599.— *Butterfield*vs. Baker, 5 *Pick.*522.— *Flagg*vs. Dryden, 7 *Pick.*52. — *Shumway*vs. Rutter, 7 *Pick*56.

(a)

**Vide *Dame*vs. *Hadlock, 4 Pick.*458. — *Perry*vs. *Osborne,*5 *Pick.*422.— *Cox vs. Reed, 1 C. & P.*602. — *M'lver vs. Humble,*16 *East, 169.—James vs. Bixby,*11 *Mass. Rep.*34.— *Phillips*vs. *Ledley,*1 *Wash. Cir. C. R.*226. — *Mulden*vs. *Whitlock, 1 Cow.*290. *—Leonard*vs. *Huntington,*15 *Johns.*298. — *Thorn vs. Hicks, 7 Cowen,*697.— *Champlin vs. Butler,*18 *Johns. 169.—M'Intire vs. Scott,*8 *Johns.*159.— *Hodgson vs. Butts,*3 *Cranch, 140.—Jackson*vs. *Vernon,*1 *Hen. P. & C.*114.— In *Jennings vs. Griffiths, Ry. & M.*43, Lord C. J. *Abbott,*said, “ Soon after the passing of the Registry acts, the leaning, of the courts of law, in the construction of them, was to say that the registered owners of ships should, at all events, he liable for repairs. But the subject having become more accurately understood, a better and more correct principle now prevails ; and the recent cases have decided that the true question in matters of this description is — Upon whose credit was the work done? That question would, in most cases, be decided by the fact of legal ownership, the repairs being general y done for the legal owner But it may so happen that the name of the *428person may be retained on the registry after he has ceased to be beneficially interested in the ship, or to interfere with its concerns.” — And, in *Harrington*vs. *Frye,*2 *Bingk.*179, *Best,*C. J. said, “ A man can only be charged in respect of property in a ship either upon credit given to him as legal owner, or as having holden himself out as legal owner.”