to be both intelligent and credible. The mistake in their protest, which was written in a language they understood but imperfectly, does not seriously impair. the effect of their testimony. It is also noticeable that the wheelsman of the Fernande had, according to the testimony of the master, been at the wheel continuously since 8 o'clock-three hours and a. half.. The master says that while he saw the light of the Adolph he" spoke to him two or three times to' keep her close to the wind. And when he saw the two lights of the Adolph he ran to call the crew from below, thinking there would be a collision. It is not at all impossible that the wheelsman, from fatigue, steered badly, and that the final fatal movement of luffing across the bow of the Adolph was his act by mistake or from panic, without the order or the knowledge of the master. But he is not here to answerfor himself, and it is of no avail to pursue the inquiry further. Libel dismissed, with costs.
FROST and others.
(District (/uurl. 8. D. New York. 1.
executors of the deceased part owner of a vessel are not chargeable for necessaries supplied or money advanced the vessel after their testator's death, where they have done nothing to t.ake the benefit of the employment of the vessel, nor given. any authority to the master or ship's husband to act for them.
would be a breach of trust for executors to authorize the master or ship's husband, in the absence of an express power under the will, to act in such a matter for them, and no presumption. can therefore arise that they have done so. Stedman v. Fiedler. 20 N. Y. 446.
In Admiralty. W. R. Beebe, for libellant. John E. Parsons, for respondents. CHOATE, D. J. This is a suit brought by the libellant, who resides in London, England, against the owners of the ship
Princeton, an American vessel, to recover advances made to the master for the necessary disbursements of the ship while in the port of London, at the request of the master and of and at the time was acting one Frost, who was a part as ship's husband. The advances were made between December, 1875, and February, 1876, and are alleged to have amounted to about $1,500. While all the owners are named. in the libel as defendants, the only ones who have been served and who have appeared are the respondents Sturges, Mitch. ell, and Davis, who are sued as executors of Samuel L. Mitchell, deceased, and as such defend the action. It appears that Samuel L. Mitchell died in 1873; that at the ,time of his death he was the owner of one-sixteenth part of the vessel; and that these defendants are his duly-qualified executors. The voyage upon which the vessel was when the ad vances were made by the libellant was therefore subsequent to the death of Mitchell, the part owner. No act of the executors is shown in any way indicating their assent to the employment of the ship, nor any express authority on their part to her employment on their account or for their benefit; nor does it appear that they have, since they qualified as executors, received any share in the earnings. Upon these facts the libellant insists that, as executors, these defendants became jointly the owner of their testator's sixteenth part, and that, as part owners, they are liable for necessaries supplied to the ship. The liability of part owners for supplies furnished at the request of the master, or of another part owner, who is ship's husband, depends on the existence of the relation of principal and agent between the parties. Ordinarily, and in the absence of any prohibition or expressed dissent on the part of the owner sought to be charged, his consent to the employment of the vessel, and his assent to the expenditures, if necessary to the vessel in the due course of her employment, will be presumed. But it may be shown that he has actually parted with his interest, though still a registered owner, or that he has committed the vessel to the exclusive care and control of the other owners, and thereby disentitled himself to share in her earnings, or has expressly dissented from the employment
GUU t1. I'BOST.
of the vessel, and communicated such dissent to the master or ship's husband; and in every such case it seems that he will not be liable, unless, indeed, by some previous act, he has misled the party furnishing the necessaries into the belief that he was liable. The question is, was the master or part owner authorized by the defendants to make the contract for them? Brodie v. Howard, 17 C. B. 109; Mitcheson v. Oliver, 5 E. & B. 419; Reeve v. Davis, 1 Ado!. & Ellis, 315; Hackwood v. Lyall, 17 C. B. 124; 1 Parsons, 8h. and Adm. 101; Abbott on Shipping, (11th Ed.) Upon the same principle, if the ship is chartered upon terms which give the charterer the entire control of the ship, he is regarded as owner pro hac vice, and the general owner is not liable. Nor does the exemption of the owner, or part owner, in the above cases, depend upon notice t.o the person supplying the necessaries or making the advances of the facts exempting him from liability. .Same cases; also see Ma.cy v. Wheeler, 30 N. Y. 231. Upon the principle of thes", decisions, the executors of a deceased part owner, especially if they have done nothing to take the benefit of "the employment of the vessel, nor given any authority to the master or ship's husband to act for them, cannot be charged for necessaries supplied or money advanced after their testator's death, and in the course of a new adventure, for it cannot be presumed as to them that they have, as executors, consented to the employment of the vessel, orthe expenditure of tht1 money, in prosecuting the voyage. As executors, to whom falls the interest of their testator in the ship, they have no rightful authority to conduct a mercantile adventure for the purpose of making the property available or remunerative. Their power and duty is only to hold and sell and convert theassete into money. Indeed, if they joined in the adventure, while they might make themselves individually responsible, they would have no power to charge the estate for any loss, nor would the assets in their hands be chargeable on account of the business. Labouchere v. Tupper, 11 Mo. P. C. 221; Bacon v. Pomeroy, 104 Mass. 582; 3 Williams on Ex'rs, (6th Am. Ed.) 179, and notes. It follows that, as it would be
unlawful and improper, and a breach of trust, for executors to authorize the master or ship's husband to act in such a matter for them, no presumption can arise that they have .aone so. In the case of Stedman v. Fiedler, 20 N. Y. 446, it was expressly so held by the New York court of appeals in respect to an administrator. The decision is clearly in accordance with the authorities above cited, and no distinction can be made between executors and administrators, no express power under the will being shown to confer any unusual power on these defendants. Libel dismissed, with costs as to the defendants Sturges, Mitchell, and Davis, executors.
(Circuit Oourt, 8. D. New Yrrrk.
L APPEAy,...,...BILL OF EXCEPT10NS.-A 'bill of exceptions, to present for review, upon appeal to the,supreme court, the rulings of the. circuit court, must be based on exceptions taken to such rulings at the time . the rulings were made. .
SAME-SAME--PRAcTICE.-Where no exceptions are taken during the trial, the only paper which the judge can sign upon appeal is a recshowing the proceedings which took place in court in the case at the trial prior to the decision of Jt by the court, embodying the requests to find on both sides, and also the findings mnde and the writ'ten opinion of the court, and the exceptions tiled, showing the dates of the several proceedings.
Shipman, Bm'low, Lrrrocque d: llfcFarland, for libellant. Blatchford, Seward, G-risltold et Da Costa, for claimant.
BLATCHFORD, C. J. In this case, a suit in admiralty in rem, there was a final decree by the district court in favor of
the libellant. The claim'1nt appealed to this court. The trial in this court took place in February, 1879. At the trial each party presented to the court requests to find certain faets and certain conclusions of law. In June, 1879, the court