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Page:United States Reports, Volume 2.djvu/201

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I Suruua Couar or Pmrfylvanin. rg; l Heath, for the Plaintid} contended, that the general princi- 1792. ple was, that the bwner was bound by all aéls of the malter.’V* 2 Emerig. an In:. 422. 448. It is laid down in Cnuper, 639, ¥ that whoever fupplies a hip with necelfaries has a threefold fe- curity, the {hip, the owners and the mailer: And the fame · doctrine is recognized, 1,5Qrm Rep. 108. As to the decree of _ the judge of the Admiralty, it was founded wholly on the inpr- mg? or the hypotheoation, and therefore not conclulive. Ian, for the defendant, contended: rlt, That the Admi- ralty liad already decided on the merits of the cafe, and that the hypothecation was adjudged void, becaufe there was no necelli- ty to warrant it. In qpungft a decree of theadmiralty, on a libel for wages, is conclulive againll the plaintilii 1 Lp. 178. _ So, a decilion of the Legbnrn court was held conelulive, 2 Sha. 733. 2d, But be this as it may, it is clear that if a captain borrows and impawns the {hip without necellity, it will not be good. Hub. p. n2. Mal. B. 2. cb. 2. fe:. 14. 3 Mad. 244. S. ` gd, He contended, in the lalt place, that·the mailer cannot make ` his owners p¢r{mal{y liable by his contraii in a foreign port. Malloy B. 2. c . rr.jP:. tr, isin point, and fo is _‘}’ob»g/bu 1:. Sbqbpiu, Sal}. gg. The cafe in Cowper only applies to a con-- · traét for neceffaries in the port where the owners relide. 'I`he didum in Emerigon is-too extenlive in its terms, and in other parts of the fame book is limited. Thus. in. p. 424, it is {lated, that _ the captain cannot hypothecate where the owners relide. Br ·rr·u—: Coun:-It is clear mat the captain can hypothe- cate his veifel only in cafe of necellity—l`uch a necellity as this; that if he did not.take up the money, the voyage would be defeat- cd, or at lealt retarded. This does not appear to have been the cafe in the prefent inflance. But, in addition to that general rule, it is held, that the ca tain cannot hypothecate, while there are goods of lair own, or oi? his mvnzr on board. Now if there was no authority to hypothecate the vejél, how can it be pre- tended that. he can make his owners perfonally liable? Great mifchiefs wouldenfue if the mailer had fuch a power. Upon this ground, therefore, the a£lion mult fail. Another point, al-- Fo, is in favorof the defendant; namely, that this very queltioxt ` has been already decided in the Court- of Admiral: . Since, then, we think he had no authority to bind the perliins of his owners in a foreign port (and in point of faét he does not feem to have done it, as the writing appears to bind only the captain and the veffcl) and lince the decilion of the Admiralt on the ·` merits, is, in our opinion, conclulive, the Plaintiff ouglit not to . recover. - ‘ Verdift for the defendant. YB ba januar-