#### Pishey Thompson *versus*William Hamilton *et al.*

Where the master of a coasting vessel, who had chartered her upon shares, testified that the owners authorized him, if he should leave the vessel, to give her up to the mate, and that he gave her up to the mate and made a verbal contract with him to run her upon the same terms as he himself had before done, and the mate testified that he ran her accordingly as master and that the owners ratified the agreement, it was *held,*that a usage at the port where the vessel belonged, to let such vessels to the master upon shares, might be given in evidence, to show the terms of the contract between the owners and the new master and to sustain the testimony of the witnesses.

In an action for not delivering goods shipped on board a vessel which was chartered by parol to an infant, it was held, that the contract of charter was not void but voidable, and it not having been avoided by the infant, the shipper had no cause of action against the general owners.

Assumpsit against the defendants as the general owners of the schooner Caledonia, of Chatham, of which Joshua Atkins (an infant) was master, for not delivering goods shipped on board the schooner at Boston, to he delivered in like good order &c. to the plaintiff at Washington, District of Columbia.

Plea, *non assumpsit.*

At the trial before *Wilde*J. it appeared, that the schooner *431arrived at Alexandria, and that the goods were there, without the consent or knowledge of the owner of them, removed by the master from the schooner into a small river craft, which afterwards sunk and the goods were destroyed.

One ground of defence was, that the owners of the schooner had orally chartered her to the master upon shares, according to a usage alleged to exist at Chatham, in regard to vessels employed in the coasting trade.

Zenas Atkins, (once the master of the schooner,) testified that the owners authorized him, if he left the vessel, to give her up to his brother, Joshua Atkins, who had been his mate ; and that in pursuance of this authority he did give her up to his brother, and contracted with him to run her upon the same terms he himself had run her, namely, upon shares. Joshua Atkins testified that he run her upon shares, according to the agreement made with Zenas, and that the owners afterwards confirmed this agreement.

The judge instructed the jury, that if they were satisfied that the vessel had been chartered by the owners to the master, for the voyage in question, in pursuance of the supposed usage, they should find for the defendants, and that the questions how far the minority of the master, or the usage, would affect the rights and liabilities of the parties, would be reserved for the consideration of the whole Court.

It was objected on the part of the plaintiff, that Zenas Atkins had no power from the owners to let the vessel to his brother, but that he was only authorized to give her up to him. As to this the jury were instructed, that they were to judge from the evidence, what was the intention of the owners in this respect, and whether under the circumstances the authority to give up the vessel did not imply an authority also to agree upon the terms ; and that in weighing the testimony on this point, the usage might serve in some measure to show what was the intention of the parties, or to substantiate the testimony of Zenas and Joshua Atkins ; but of this they would judge, taking it in connexion with the other evidence; and that the usage, whether valid or not, would not avail the defendants, unless the vessel was actually let or chartered to Joshua Atkins.

The jury lound a verdict for the defendants ; but if the *432directions given to the jury were wrong, or if they aught to have been instructed that Joshua Atkins, being a minor, was not competent to charter the vessel, so as to relieve the owners from their liability to the shipper, in this case a new trial was to be granted.

*March 25th,*1831.

*D. A. Simmons*and *Gay,*for the plaintiff,

insisted that the vessel was not chartered to Joshua Atkins ; that no time or voyage or price for the use of the vessel was fixed, and these were essential to the contract of chartering ; that the usage by which it was attempted to construe the contract between the defendants and Atkins, was not proved to have existed time out of mind, and it was unreasonable, and that upon these grounds it was invalid; 1 Bl. Com. 76 to 79 ; 1 Dane’s Abr. 515 ; *Homer*v. *Dorr,*10 Mass. R. 26 ; *Trott*v. Wood, 1 Gallis. 443; that if the usage was good as to adults, it was bad as to minors, for some person must be legally responsible to the shipper, and a minor cannot be responsible ; that it would be impolitic and dangerous to commerce, to permit a minor to be a charterer and master of a vessel, and analogous cases show it to be illegal; *Howlett*v. *Haswell,*4 Campb. 118; *Thornton*v. *Illingworth,*2 Barn. & Cressw. 824; *Claridge*v. *Evelyn,*5 Bam. & Aid. 81 ; Chit. Contr. 32, 33 ; Co. Lit. 3 *b,*157 *a,*172 *b ; Darcy*v. *Leigh,*Hob. 325 ; 2 Rol. Abr. 153; *Herbert*v. *Torball,*1 Sid. 162 ; *Whitney*v. *Dutch,*14 Mass. R. 461 ; *Foresliere, Petitioner,*2 Mass. R. 419 ; that in reference to seamen, a minor should not be allowed to be a charterer or master, as he might plead infancy in a suit for wages ; and that a master is required to give bonds in certain cases, which would not be binding on a minor. *St.*1819, *c.*165 ; Act of Congr. Dec. 31, 1792, c. 45, § 7 ; Act of Congr. Feb. 28, 1803, c 62, § 1; *United States*v. *Hatch,*1 Paine’s C. C. R. 337.

*C. G. Loving*and *Osgood,*for the defendants,

to show that the commercial usage in question was valid, and that it was admissible m evidence to prove the nature of the contract respecting the vessel and to sustain the testimony of Zenas and Joshua Atkins, cited *Homer*v. *Dorr,*10 Mass. R. 28 ; *Weld*v. *Gorham,*ibid. 366 ; *Williams*v. *Gilman,*3 Greenl 276 ; 2 Stark. Ev. 451, (cites 1 Gaines’s R. 43, and 3 *433Connect. R. 9) ; *Morgan*v. *Richards,*1 Browne’s Penn. R. 172 ; *Savill*v. *Barchard,*4 Esp. 53 ; *Harris*v. *Nicholas,*5 Munf. 483 ; *Stultz*v. *Dickey,*5 Binn. 287 ; *Powley*v. *Walker,*5 T. R. 373 ; Soe v. *Charnock,*Peake’s R. 5 ; — to the point, that as the jury had found that the vessel was chartered, though by parol only, the defendants were exonerr ated from responsibility to the plaintiff, unless the fact of the charterer being under age rendered the contract void, they cited 3 Kent’s Com. 160; *Thompson*v. *Snow,*4 Greenl. 264 ; *Emery*v. *Hersey,*ibid. 407 ; *Reynolds*v. *Toppan,*15 Mass. R. 370 ; *Taggard*v. *Loring,*16 Mass. R. 336 ; *Cutler*v. *Winsor,*6 Pick. 335 ; — and to show that the contract was not void, but at most was only voidable, and this by the minor alone and not by a stranger, they cited Bingham on Inf. *preface*and *p.*33 ; *Smith*v. *Bowin,*1 Mod. (Leach’s edit.) 25; *Keane*v. *Boycott,*2 H. Bl. 511 ; Chit. Contr. 34; *Oliver*v. *Houdlet,*13 Mass. R. 239 ; *Warwick*v. *Bruce,*2 Maule & Selw. 205 ; but they contended that this minor was bound, the contract being for his benefit; *Maddon*v. *White,*2 T. R. 161 ; *Freto*v. *Brown, 4*Mass. R. 675 ; *United States*v. *Bainbridge,*1 Mason, 82 ; 2 Kent’s Com. 193. They also argued that an infant might be the master of a vessel, and that any bonds required by law to be given by a master, would be binding on the infant as incidental to his capacity o'f master. 2 Inst. 382.

*April*6th, 1832.

*Per Curiam.*

The defendants do not pretend that there was any charter-party showing the exact terms of the contract alleged to have been made between them and Joshua Atkins, the master of the schooner. But it is settled law in this Commonwealth, that a vessel may be chartered by parol, that the parol charterer, and not the general owner, is answerable to the shipper of goods, and that in this respect, when the general owner is to receive of the charterer a proportion of the profits for the use of the vessel, it is the same thing as if he was to receive a determinate sum, it being only the means of ascertaining the amount of the compensation. *Cutler*v. Winsor, 6 Pick. 335 ; *Perry*v. Osborne, 5 Pick. 422.

We are to consider then, whether the defendants are exonerated from responsibility, on the ground of having let the *434vessel. And upon this point we are of opinion, that the questl0n °f fact was properly left to the jury, and that the Usage was admissible in ■ evidence to explain the act of the owners, and to enable the jury to determine whether that act amounted to a letting to hire, or to an appointment of a master. It was argued that this was not an ancient usage ; but that is im*material. The question is, whether the parties contracted with reference to it; and in this view, the fact of its being well established, so as to be generally known to persons engaged in this course of business, is of importance, but not its antiquity. We cannot perceive that the verdict is not right, and so far therefore the owners appear not to be answerable to the plaintiff.1

But then it is objected, that the vessel was chartered to minor, and so the general owners are liable. We think *t*would be extremely difficult to sustain this proposition, lc would be to declare the contract with the minor an absolute nullity. Now the rule in regard to the contracts of a minor, and which was established for his protection, is, that they are voidable, not void ; they are valid as against- the party of full age, but may be avoided by the minor. Here the contract of hiring being good as against the general owners of the vessel, and not having been avoided by the minor, it could not be avoided by a stranger. The hirer became owner *pro hac vice,*and persons dealing with him did so as with a minor. But if the hiring were a nullity, it is doubtful whether the defendants could be liable, the vessel not being in fact employed on their account, and the minor being a wrong-doer, a trespasser. We do not however put the cause on this ground, but on the ground of the hiring being voidable and not void, and not avoided by the minor.2

*435The question whether an infant can he master of a vessel, need not be determined in this cause.

*Judgment according to the verdict.*

1

 See *Leach*v. *Perkins,*5 Shepl. 462; *Donnell*v. *Columbian Ins. Co.*2 Sumner, 366; *Schooner Reeside,*ibid. 567; *Macomber*v. *Parker,*13 Pick. 175, *Dwight*v. *Whitney,*15 Pick. 179; *Coggeshall*v. *American Ins. Co.*3 Wend. 283; *Dolby*v. *Hirst,*1 Bred. & Bingh. 224; *Taylor*v. *Briggs,*2 Carr. & P. 525; *Smith*v. *Wilson,*3 Barn. & Aid. 728; *Stultz*v. *Dickey,*5 Binney, 287; *Renner*v. *Bank of Columbia,*9 Wheat. 581 ; *Cooper*v. *Kane,*19 Wend. 386; *Bliss*v. *Mayo,*10 Vermont R. 56; *Williams*v. *Gilman,*3 Greenl. 281; *Eager*v *Atlas Ins. Co.*14 Pick. 141.

2

 A conveyance of real estate by an infant is valid as against an attachment *435made after he came of age, by one of his creditors, such conveyance having been neither avoided nor confirmed by him. *Kendall*v. *Lawrence,*22 Pick. 540. See also *Bool*v. *Mix,*17 Wend. 119.