Opinion of the Court by
Tompkins Judge.Byrne in his complaint states, that on the 23rd day of February in the year 1839, the steam boat Elk was indebted to him in the sum of f213 20, on account of supplies furnished for fhe use of said boat, it being for debts contracted by the owners of said boat, and then &c., due and payable; and as an evidence of the indebtedness of the owners of the said boat to said Byrne, the owners of said boat by their authorised agent gave the said Byrne an instrument in writing, of which the following is a ‘copy. “One day after date, St. Bt. Elk and owners promise to pay P. Byrne, two hundred and thirteen dollars and 20.100 for value received, Louisville, Feb. 23rd 1839, (signed) St. Bt. Elk and owners, by John Russell jr., clerk.” The averment of non payment is then made, as well as the affidavit required by law.
The complaint was demurred to and demurrer sustained.— The demand appears to me to be very well set out. When we take into consideration that the clerk, as agent of the boat, by making the note of the owners to the complainant for the amount claimed, admits on their partas well the justice as the amount of the claim. The same objections are urged on the part of the owners against this complaint as against that of John Russell against the said boat; and for the same reasons as were given for the reversal of the judgment in that case, the judgment of the circuit court in this case ought to be reversed and such being the opinion of the other judges of this court it is accordingly reversed, and this court proceeding to give such judgment as the circuit court should have given, order that the plaintiff have judgment, &c.