Majority
p. 648Joshua Atkins et al., Plaintiffs and Appellants, v. Thos. N. Stanton et al., Defendants and Respondents. (Before Hoffman, Pierrepont and Robertson, J. J.) Heard, June 14th; decided, June 16th, 1860.
Headnote
1. Where one part owner of a ship furnishes supplies for it, he does not thereby acquire a lien upon it, which can be enforced by proceedings under 2 Revised Statutes, 493, section 1.2. If in such a case an attachment be issued, and other part owners execute a bond with sureties, as prescribed by that statute, and thereupon procure the ship to be discharged, no action will lie on the bond at the suit of the part owner who attached.
Appeal by the plaintiffs from a judgment against them entered on the report of J. W. C. Leveridge, Esq., as Referee.
The plaintiffs are Joshua Atkins, Joshua Atkins, Jr., and Edwin Atkins, composing the firm of J. Atkins & Company. They bring this suit against Thomas N. Stanton and John Thomson as principals, and George S. Roe and William B. Scranton as sureties in a bond, executed to procure the discharge of a warrant of attachment that had been issued under 2 Revised Statutes, 493, section 1, on the application of the plaintiffs’ against the ship Liberty, her tackle, apparel and furniture, to satisfy a claim of the plaintiffs alleged to be a lien thereon, for materials furnished prior to December 23, 1857, for repairing, fitting, furnishing and equipping said ship, by order of her master, Benjamin Atkins, and the defendants, Stanton and Thomson, who were the ship’s agents.
The Referee found, (inter alia) “ that at the time the said supplies were ordered and at the time the same were furnished, the plaintiffs were part owners of the said ship Liberty, and that the defendants, Thomas N. Stanton and John Thomson, together with Chester Hillard, Rouse Babcock, Benjamin Atkins, William H. Webb, and the estate of Elliot Higgins, were also, at the time said supplies were ordered and delivered, also part owners of said ship; and also that the said ship was sailed for the joint account and benefit of all the owners.”
The Referee held, “ as matter of law, that in furnishing the said supplies to the said ship or vessel, in which the plaintiffs
p. 649This is an action on a bond given to discharge a vessel attached under the State lien law. (2 R. S., 493, § 1.) The whole proceeding is a special one under the Act, and is to be governed by the Act. The Act alone creates the lien, and by the Act alone can we determine whether in any particular case there be a lien. The statute provides that, whenever a debt, amounting to $50 or upwards, shall be contracted by the master, owner, agent or consignee of any ship or vessel, on account of any work done or materials or articles furnished towards the repairing, fitting, furnishing or equipping such vessel, or for provisions and stores furnished, “ such debt shall be a lien upon such ship or vessel, her tackle, apparel and furniture.” (2 R. S., p. 493, § 1.) The master and agent contracted a debt with the plaintiffs for the specified purposes: this is conceded; but the plaintiffs were, at the time, part owners of the ship, and the question is, whether that fact defeats the statute. I. There is no such exception in the statute. The statute is clear, positive, and without exception. If the statute had added, ?“ and this Act shall apply to cases where work or materials or provisions and stores are furnished by one of the part owners of the ship,” there certainly could have been no doubt; but it says so, just as effectually, by saying, “ whenever a debt,” with any possible person, and under any possible circumstances,. no matter with whom, without any exception, “ shall be contracted.” II. Part owners of ships are not partners: they are only tenants in common.
and defendants, and others not included in this action, were interested, the plaintiffs acquired no lien, and they cannot recover against these defendants in this action, for such supplies as are stated in said complaint.
“ That this action being on a bond given to discharge such ship or vessel from an attachment issued under such a lien, this action cannot lie, no lien having existed against said ship or vessel which these plaintiffs could enforce as against these defendants.”
The Referee dismissed the complaint, and from the judgment entered on his report the plaintiffs appealed to the General Term.
E. C. Benedict, for appellants.
p. 650“ There is a material difference between the two cases. Partners are, at law, joint tenants of their merchandise,” but part owners are tenants in common of a ship. (Abb. on Shipp., 111.) They may buy supplies of each other, and in such case it is, surely, a debt contracted; and if it be a debt contracted for the purposes of the statute, then it is a lien upon the ship by the statute. III. There is nothing in the suggestion that the plaintiffs, being part owners, furnished the articles to themselves, with others, and must thereupon sue themselves with the others, which cannot be done. The old common-law rule, that a man could not sue himself, nor sell goods to himself, was one of pure technicality, which did not deprive the party of his right, but drove him to a court of equity, where the action always lies in its true nature. This objection falls to the ground: first, because the distinction between courts of equity and law is abolished, and the rule of parties is now everywhere what it was in equity; and, second, because the Act gives a new cause of action, a.bond, and new parties—the obligors. 1. In the sailing of a vessel where she is sailed for the joint benefit of all the joint owners are partners in that undertaking, and their rights are to be determined by their rights as partners. (Abbott on Shipping, 111, 113; Story on Partnership, §§ 56, 54.) II. Such being the case, each partner is liable for each article furnished to the full value, he having only a right to call on his partner for contribution. (Abbott on Ship., 111, 113; Merritt & Trask ads. Wood, 2 Bosw., 368 ; Story on Part., §§ 448-453, &c., shows this right.) III. In this case it follows that Atkins & Company themselves furnished to themselves these articles; the person purchasing was their own agent, and he bound them for the purchase-money to the whole amount. (Story, §§ 219-222, &c.) IV. Part owners, even a ship’s husband have no lien for supplies or advances, where in Admiralty, if a stranger he would
C. Donohue, for respondents.
p. 651have. How, if where a lien is given by law in a case generally, a partner is deprived of its benefits, clearly the statute makes no stronger right. V. A person can have no lien on his own property; it is merged in his own title. (Ladd v. Billings, 15 Mass., 15 ; McArthur v. Porter, 1 Ham., 19; 1 Dal., 349 ; Roberts ads. Jackson, 1 Wend., 478 .) As long as it remains in use with the partnership, he is furnishing himself, he cannot have a lien on part and not on part. Where seamen’s wages are paid by an owner, they are not a lien. (2 Mason, 58; Merrill v. Bartlett, 6 Pick., 46 ; Gilp., 457.) Thus it is a principle in trover, if a man claims the goods, when demanded, as his own, he cannot afterwards allege a lien, the title he claimed merging all else. VI. It is perfectly apparent that it would be unjust to enable Atkins & Company to get their debts, and then call on them to repay their share of other expenses paid by the other owners. VII. Plaintiffs claim the old Court of Chancery would have given the same lien; their action here is wrong. 1. They do not count on such a right in their complaint. 2. The Court of Chancery never made the balance on accounts found due to one partner a lien on the individual property of another. VIII. What these partners did in effect, was to have the use of this chattel for that voyage, and in the use, they mutually agreed to furnish the funds to pay expenses with, and they, individually, and not their property, are the debtors. IX. Ho debt was or is due for this; for when Atkins & Company furnished it, they furnished to their own undertaking, and if any debt was contracted it was theirs, they being both debtor and creditor, the debt paid itself, and no remedy remained but the taking and settling of the account on equitable terms. (Grant v. Poillon, 20 How. U. S. R., 162.) This, as the plaintiffs’ counsel argue, is an action on a bond, not one for an account. The Court of Chancery, and no other Court ever treated an open partnership account as a debt. X. The claim is specifically under the statute. How, is it under that a lien ? § 1. Whenever a debt amounting to $50 is due.
p. 652Is a debt due here ? From whom, to whom ? From Atkins & Company to Atkins & Company, if at all. Mot certainly from the property of the parties. § 3. Any person having a debt due to him * * * Had these parties any debt due to them ? Certainly not, until accounts were adjusted. § 12. The owners may apply to discharge. Can one owner seize and the other apply to discharge ? § 16. It must be a subsisting lien. § 17. This section shows the proceeding to be one at law, not in equity. § 24. Shows that it contemplated the lien creditor on one side, and the owner on the other. § 25. Also shows that the claim is to be paid, unless the owners contest. The judgment should be affirmed.
The appeal is from a judgment entered on the decision of a Eeferee, dismissing the complaint with costs.
The action is against Stanton and Thomson, as principals, and Roe and Scranton, as sureties, on a bond given to obtain the discharge of an attachment of a vessel, under the statute “ for the collection of demands against ships and vessels. (2 R. S., p. 493.)
The plaintiffs furnished supplies to the vessel, on the order of the master. The plaintiffs and the defendants, Stanton and Thomson, were owners (with some others) of the vessel. The plaintiffs obtained an attachment, upon the usual affidavit of a debt contracted by the master and Stanton and Thomson, describing them as agents of the vessel. The vessel was attached by the Sheriff. The defendants, Stanton and Thomson, applied to have her discharged, and, having given the bond sued upon, procured such discharge.
The case resolves itself into this: Can one part owner make a particular advance for the use of the concern, sue the other part owners, attach the property, or go to judgment and execution, and take to himself part of the joint property ?—all this without the slightest reference to the position of each in general account with the others.
p. 653
We consider such a proposition to be clearly untenable.
The case of Wood v. Merritt, ( 2 Bosw., 368 ,) does not afford any support to the present claim. That case merely decides, that, where a judgment has been recovered against only two part owners of a vessel owned by them and others, for repairs done to it by a third person, and one of the two so sued pays the whole judgment, he may, in an action against his co-defendant, recover such part of the amount as it is the duty of the latter to pay, without making the other part owners parties to the action.
The judgment must be affirmed, with costs.
Affirmed accordingly.