1. The defendant relies upon the case of The, Phenix Bank of New-York v. Curtis, 14 Conn. R. 437. as showing, that the plaintiffs, a corporation, are not presumed to have power to hold the property, for an injury to which this suit is brought; and he insists, that unless they show, by their charter of incorporation, or in some other way, that they have power to hold a steam-boat, they can not recover.
We think, however, that the case referred to, is very distinguishable from this case, and ought not to controul the decision of it. That was the case of a foreign corporation, and the court could know nothing of its powers, except that it possessed such as are incident to all corporations. By pleading the genera] issue in that case, nothing was admitted, but the legal existence of the plaintiffs, and their right to sue; and unless the court had held, that it was necessarily incident to all corporations, foreign and domestic, that they have power to make such a contract as was then before the court, we do not see how it could have been held, that they possessed power to make that particular contract.
But, it is incident to all corporations, that they can hold property. It is, indeed, a principal object in the creation of most of them, to enable them to hold it, without the necessity of perpetually conveying it from hand to hand, as the members of the society change.
If then, this corporation had no power to own a steam-boat, it was for the defendant to have shown it; and until this is shown, especially when one is found in their possession the presumption is, that they have power to hold it. At any rate, as against the defendant, a mere wrong-doer, who claims no title in himself, and sets up none in any body, under such circumstances, it is not for him to say, that the party in possession has no right to the property.
But if there was any doubt upon this question—even if we thought the case w as within the principle of the Phenix Bank of New-York v. Curtis—we should still be of opinion, that the rule established by this court, soon after that decision, ought *428to controul our decision upon this point. True, the case does not come within the letter of that rule; but we think it comes within its spirit. The same reason exists for compelling a party to give notice, that he intends to dispute the power of the plaintiffs to hold the property, for an injury to which they are seeking redress, as where they sue upon a contract, that he should give notice, that he intends to dispute their power to make the contract. No such notice was given in this case; and we therefore think the plaintiffs, on the trial, had no right to raise the question. 14 Conn. R. 140.
This view of the case makes it unnecessary for us to determine, whether the finding on the plea in abatement, could have any effect upon this question. It is enough that there is no valid objection to the decision of the court, irrespective of the finding on that plea.
2. The defendant, though admitting, that he was the general owner of the steam-boat New-Haven, claimed, that at the time the injury complained of, took place, he had not the controul or management of her; and that the officers and men navigating her, were not his agents; but that they were the agents and servants of Daniel B. Allen, to whom he had previously chartered the boat. A charter-party between the defendant and Allen was introduced in evidence, and the execution of it proved; but it no where appears, that Allen had ever taken possession of the boat under it: on the contrary, the motion shows, that the plaintiffs claimed, and introduced evidence to prove, that said charter-party was merely colourable; that no possession had ever accompanied it; that it was executed privately to Allen, who was a son-in-law of the defendant, and had been kept a secret from every body, and especially from the captain, officers and men, employed on board of the boat. And the plaintiffs claimed, that if these facts were proved, they were badges of fraud, and ought to be explained; and to this the court assented, in the charge to the jury. In this, we think, there was no error—none, at any rate, of which the defendant can complain. Indeed, these facts, if proved, would seem to have justified the plaintiffs in claiming, that they could not be explained, consistently with the defendant’s claim, that the officers and men managing the boat, were Allen’s servants and agents, and not Vanderbilt’s. It does not even appear, that the charter-party was *429delivered; and these men, who had been Vanderbilt’s agents, and must have known if the possession of the boat had been changed, knew nothing of it. The possession of the boat, then, remained in Vanderbilt; and, as regards third persons, he was liable for the negligence of the men managing her. When, it may be asked, did these men cease to be Vanderbilt's servants? If when the charter-party was signed, then it would be in the power of the owner of a vessel, by a secret confidential conveyance, intended only for the purpose of shielding the party from liability, to shift all responsibility on to the shoulders of some irresponsible agent or friend; and this too could all be done with perfect safety to the owner, as the instrument of conveyance, not being delivered, would not pass the title, even between the parties themselves. Doubtless, the defendant attempted to show possession of the charter-party in Allen, and of the boat also; but the charge of the court was upon the supposition that the claim of the plaintiffs was true regarding the facts; and if the jury found the facts, as claimed, then it is very clear, that the charge was unexceptionable.
3. The defendant claimed, that the injury to the Belle, was occasioned by the negligence of her officers and crew, in their neglecting to keep up lights; and they claimed, that the court should instruct the jury, that if this was so, the plaintiffs could not recover, On this subject, the court charged the jury, that if the officers and crew of the Belle were guilty of negligence, either in respect to said lights, or otherwise, to such a degree as essentially to contribute to the injury complained of, the plaintiffs could not recover. The charge of the court, in this respect, is very similar to the charge of the the court in the case of Sills v. Brown, 9 Car. & Pa. 601. (38 E. C. L. 245.) in which Coleridge, J. told the jury, that, “if the plaintiff’s servants substantially contributed to the injury, by their improper or negligent conduct, the defendant would be entitled to their verdict; but if the injury was occasioned, by the improper or negligent conduct of the defendant’s servants, and the plaintiff’s servants did not substantially contribute to produce it, then the plaintiff would be entitled to their verdict.”
The principle involved in the case cited, as well as in the charge under consideration, is, that while, on the one hand, *430a party shall not recover damages for an injury which he has brought upon himself, neither shall he be permitted to shield himself from an injury which he has committed, because the injured was in the wrong, unless such wrong contributed to produce the injury; and even then, it would seem, a party is bound to use common and ordinary caution to be in the right. Lord Ellenborough, in Butterfield v. Forester, 11 East, 60. said, "a party is not to cast himself upon an obstruction, which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right.”
4. The court charged the jury, that the plaintiffs, if entitled to any thing, were entitled to a reasonable sum for the detention of said boat, while she was undergoing repairs. We see nothing objectionable in this. The principle upon which damages are awarded, in such an action as this, is, to indemnify the party for what he has suffered. Bateman v. Goodyear, 12 Conn. R. 575. Now, the plaintiffs were injured, by the detention of their boat, while she was undergoing repairs; and this was a consequence of the injury received by the collision. Why then should they not recover damages for it? The injury was immediate; the extent of it could be estimated by the jury; the damages were not speculative, like the loss of profits. In an action for beating a servant, the loss of service is the injury for which the master recovers. In trespass for money, interest is recoverable by way of damages. Is this any thing more than a substitute for interest, where that is recoverable? The charge then, in this respect, was unexceptionable; and no new trial is advised.
In this opinion, the other Judges concurred.New trial not to be granted.