#### Elliot Higgins *versus*Henry Packard, Scott Fickett, Francis Fickett, and John W. Russell.

P., one of the defendants, agreed with R., another of the defendants, in the month • of July, 1825, to purchase one fourth part of a ship of him, which had performed but one voyage, at one fourth of her original cost, and to come in as a part owner from the beginning. He was accordingly debited by R. with that amount, and credited with one fourth part of the profits of the voyage. Held, that this purchase did not constitute P. such an owner from the beginning, as to make , him liable for bills of the ship, which had accrued before the voyage was performed.

Quare—As to- the effect of taking the promissory note of *one*of several Joint owners, for a debt of the whole?

*Qumre,*also, as to the admissibility of the books of one of the joint owners, in ait action by a third person, for the purpose of showing that another of the joint owners had fulfilled all his stipulations with such owner, and had paid for his proportion of the vessel ?

Assumpsit to recover the sum of $287.25, with interest from the 21st of May, 1825, for work, labour, &c. in rigging the ship Russell, alleged to have been owned by the defendants. Plea, the general issue. The cause was tried before the Chief Justice, on the 4th of February, 1829.

At the trial, the principal question in dispute was, whether the defendant, *Packard,*was in fact the owner of any part of the vessel *at the time*the plaintiff’s services were performed. The defendants insisted, that the amount claimed was due to the plaintiff from such persons only as owned the ship at the time the services were rendered; and it was admitted, that those services were performed between the last of April, 1825, and the 21st of May of the same year.

The plaintiff, on his part, to establish the joint ownership, called several witnesses to show, that Packard, who was master of the *227Russell, was frequently on board while the plaintiff was rigging that ship, and gave general directions concerning the work; and from certain expressions used by him, it might be inferred, that he was a part owner at the time the plaintiff’s work was performed. Indeed, one of the witnesses, (Gorham, a sail-maker,)'testified, that Packard took one of the sails of another vessel, of which he was a part owner, and caused it to be used in covering the ropes of the Russell. This witness heard Packard say, while the work was going on, that he was a part owner of the ship; and the other defendants had made the same admissions.

The testimony of the plaintiff consisted, almost exclusively, of the declarations and acts of Packard, the most material of which have been already related.

The defendants, on their part, produced the deposition of one Henry W. Barstow, who was a clerk of the defendant Russell, at the time the plaintiff’s work was performed on the ship. He testified positively, that Packard had no interest in the vessel at *that time,*or at any other time, until after her first voyage. The vessel was intended as a packet between New-York and New-Orleans, and was to be commanded by Packard. Russell offered to sell Packard one fourth of the vessel, at the original cost, before her first voyage, and gave him the option to take that proportion upon those terms, after the voyage was performed. After the ship’s return, Packard accepted Russell’s offer, and purchased one fourth part of him, he being the owner of three fourths, and the other defendants of one fourth. The ship returned from her first /oyagein July, *1825,*and Packard having then elected to take an interest in her, one fourth part of her original cost was passed to his debit, in general account by Russell, who gave him a regular bill of sale of one fourth part of the ship, for the consideration of $6,600. The bill of sale bore date the 17th of September, 1825, and was executed in due form of law.

The defendants also produced a receipt, signed by the plaintiff in the following words: “ Rec’d. New-York, Oct. 7, 1825, from John W. Russell, his note of the 6th inst. at 60 days, for six hundred and two 87-100 dollars in full for bills, up to August last *228and it was proved, that this sum included the bill, for which this action was brought.

The defendants also offered Russell’s books of account, (which the plaintiff had called for,) in evidence, in order to show the state of his accounts with Packard; the plaintiff objected to the admission of this evidence, but the defendants having proved, that the entries were in the hand-writing of a clerk, who was dead, the Chief Justice overruled the objection, and the accounts were read to the Jury.

After the defendants had gone through with their evidence, the plaintiff produced the note of Russell for $602.87, showed that it had never been paid, and offered to cancel it in court. The plaintiff also proved, and the defendants admitted, that Packard received and was credited by Russell with one fourth part of the profits of the first voyage of the ship, he having the election to come in, as a part owner from the beginning.

Upon this evidence, by consent of parties, a verdict was taken for the plaintiff, subject to the opinion of the court upon a case to be made.

The cause was now argued by *Mr. Anthon*for the plaintiff, and *Mr. Talman*for the defendants.

For the plaintiff it was contended, that the acts of the defendant Packard, coupled witli his admissions to Gorham, completely established the fact, that he was a part owner from the beginning.

II. That the taking of the note of Russell, one of the part owners, who was the ship’s husband, did not vary the rights of the plaintiff against *all*the owners. No damage was suffered by the other defendants, by this course of dealing, as they, in their accounts, had not *paid money*to each other, but had brought in various matters of account. [1 *Cowen R.*297.]

III. The books of Russell were inadmissible in evidence, and the death of the clerk, who made the entries, gave the defendants no additional rights. If the clerk were alive, the accounts could not have been proved by him and made evidence, being *res inter*
      *229
      *alios,*[Bul. *N*. P. 282. 2 *Esp. R.*646, *and notes by Day.*8 *John. R.*212.]

For the *defendants*it was contended, I. that Packard was not an owner at the time the plaintiff’s demand accrued. He had an election to become part owner or not, and he did not elect to become such owner, until long after the plaintiff’s services were performed. He was then charged with one fourth of the cost, and credited with one fourth of the earnings. The agreement had no reference to *time,*but only to *price ;*hence, in order to ascertain what Packard was to pay, the profits of the ship were passed to his credit. If this had not been done, he would have paid the same sum for the ship after the deteriorations of a .voyage, as when new.

II. The books were produced upon the plaintiff’s own call, and they were admissible to establish a fact, which might as well be proved in that way as any other. The defendant, Packard, wished to show, from the books, that he had settled with Russell for his one fourth of the ship, and the books were clearly admissible. *[Wharam v. Routledge,*5 *Esp. R.*235.]

III. The facts of the case warrant the conclusion, that the note of Russell, taken by the plaintiff, was at the time intended, and agreed to be considered, as a payment of the demand. [12 *John. R.*409, *Arnold v. Camp. Reed v. White & al.*5 *Esp. R. p.*122.]

IV. The original credit was given to the defendant Russell, and the plaintiff having taken the note of Russell upon a balance of account, including the demand in question, and given Russell a receipt in full, and the other defendants having, since the receipt, settled with Russell, and paid him their proportions of the plaintiff’s bill, they were discharged. *[Muldon v. Whitlock,*1 *Cowen R.*290, *and the cases there.]*

*Anthon,*in reply, observed, that the plaintiff was not to be prejudiced by taking the note ; for when it was taken, he did not *230know, who the owners were, nor who were liable to him. In the case cited from Cowen, all the owners were known, and a receipt in full was taken, with a full knowledge of all the facts. But no court has ever decided, that a note given by one of several persons, for services performed for them *all,*should be considered as a discharge of the others, unless the responsible parties were known, at the time the note was taken, to him, who received it. [7 *John. R.*311.]

Oakley J.

This case comes before us on a verdict subject to the opinion of the court. The action is to recover the amount of a bill for work, in rigging the *ship Russell,*in the month of May, 1825 ; and the principal question of fact to be determined is, whether *Packard*was a part owner of the ship, at the time the work was done. The ownership of the other defendants is admitted.

I am satisfied, on a careful examination of the case, that the decided weight of the evidence is, that Packard had no interest in the ship, when the plaintiff’s demand for work accrued. The testimony of *H. W. Barstow,*together with the bill of sale of the fourth part of the ship to Packard, is sufficient, in my judgment, to outweigh the proof of the declarations of Packard, as stated in the case. The evidence of the declarations of a party, is at all times to be received with great caution, and is of all species of evidence, the least satisfactory.

It appears, that on the return of the ship from her first voyage, in July, *1825,*the defendant *Packard*agreed to purchase one fourth part, at her original cost, and to come in as a part owner from the beginning. Accordingly he was charged with his portion of the expense of the outfit of the vessel, for her first voyage, and credited with a portion of the profits of that voyage. This cannot he considered as constituting him a part owner from the beginning, so as to render him liable, to third persons, for demands against the vessel, accruing before he had any actual interest in her. It was adopted merely as a mode of ascertaining, as between Russell and Packard, the price to be paid by the latter on his purchase. It is quite clear, that in performing the work in question, the plaintiff did not look to the responsibility of *Packard.*
      *231He trusted Russell alone, and took his individual note for the amount of his demand. *Packard*can be made liable only as being in fact a part owner of the ship, at the time the work was done, in which case, the law would render him liable, though his interest in the vessel might not have been known to the plaintiff. The proof, I think, shows, that *Packard*was not, in fact, a part-owner of the ship at the time, and there must be judgment, therefore, on this case, for the defendants, no joint assumpsit on their part being established.

The view I have taken of the case renders it unnecessary for me to examine the other points raised on the argument.

*Judgment for the defendants.*

[E. Anthon, *Atty. for the plff.*J. Leveridge, *Atty. for the defts.]*