The opinion of the Court was by
Whitman C. J.The question presented for the consideration of the Court in this case is, who was the owner, pro hae vice, of the schooner Caleb, at the time the supplies were furnished, as charged in the account of the plaintiffs. It is believed to be a well settled principle, that one may be the general *216owner of a chattel, and another the special owner for a particular purpose. And it is believed to be equally well settled, that, he who has the special property, cannot, without the knowledge and consent of the general owner, and without a special agency for the purpose, incur charges by way of repairs, or for the purpose of rendering the chattel more useful, and create a liability upon the general owner therefor. It was nevertheless, for sometime doubted, whether ships and vessels, under the mercantthe law, did not present an exception to this principle. But a series of decisions, in the course of thirty or forty years, have dissipated all doubt upon the subject. Ships and vessels, in this respect, are now placed upon the footing of other chattéls.
In a late case, Reeve v. Davis & al. 1 Adol. & Eu. 312, the Lord Chief Justice of the King’s Bench remarked, “If the ship is let out to hire, I do not see how the owners are liable for the work done upon it, by order of the party hiring, more than the landlord, who lets a house.” Hence it is, that the mortgagee of a ship, although the register or enrolment may stand in his name, if he has not taken the actual possession and control of the vessel mortgaged, is not held to be answerable for supplies furnished by order of the master, acting under the orders and authority of the mortgagor. Fraser v. March, 13 East, 239; Adol. & Eu. above cited; Brooks v. Bonsey, 17 Pick. 441; McCartee v. Huntinton, 15 Johns. 298; Colson v. Bonzey, 6 Greenl. 474, and cases there cited.
In the case at bar, the defence proceeded upon the ground, that the defendant was a mortgagee, who had not, at the time the supplies were furnished, taken possession under his mortgage. And the jury found, that such were the facts; and yet returned their verdict for the plaintiff. Under what instruction from the Court this was done does not appear. But the Judge has certified, “ if the Court should be of opinion, that such, finding, upon the evidence, sustained the defence, the verdict is to be set aside, and the plaintiffs are to become non-suit ; otherwise judgment is to be entered upon the verdict.”
*217The facts detathed in the report of the Judge do not seem to exhibit the defendant and his son precisely in the predicament of mortgagor and mortgagee. The transaction may rather be viewed in the light of a contract of sale, by an absolute and original owner, in which he had agreed, upon the happening of certain contingencies, to wit, the payment of certain sums of money, to convey the vessel to his son; and, at the same time, had given up to his son the sole control of it, together with the right to appropriate its earnings to his own use. This was done doubtless, with a view to enable him to realize funds, with which to make payments in pursuance of the contract of sale.
This however does not vary the case, upon principle, from that of a mortgagee out of possession, whthe the mortgagor retains the sole control. This position is fully sustained by the case before cited in 15 Johnson, 298. indeed it is but carrying out the principle, that the hirer of a chattel cannot, without special authority for the purpose, create a liability of the owner for the costs of repairs or supplies furnished by direction of the hirer, to aid him in deriving advantage from the thing hired. As well might, the landlord at a public inn claim to charge the owner of a horse, hired by a traveller, and there, by him put Up to be fed, for his keeping.
It no where appears in the report of the evidence, that the defendant was conusant of the furnishing of the supplies, or ever assented to it, or promised to pay for them. Whatever may have been the expectations of the plaintiffs, the defendant cannot be rendered liable without consent on his part, either by himself personally, or by his lawfully authorized agent. No such consent, appearing in the case it is the opinion of the Court, that the verdict must be set aside, and a nonsuit entered.