delivered the opinion of the Court.
McCloy instituted proceedings under the statute concerning boats and vessels against the steamboat Raritan for services as captain of the said boat. At the February term, 1845, judgment was recovered for $376 25.
It appears that the steamboat Raritan, was in custody of the law at Cincinnati for debt, when McCloy made advances for her relief. It does not appear whether he purchased the boat or whether he took a mortgage upon it, or in what manner he secured his advances. A witness testified that he was told by Capt. Sheble, who was a captain on board of the boat, and Sam. Marks, that the plaintiff had advanced money to get the the boat out of difficulty, and was’to hold her until he was repaid; but that the boat was still theirs. Sheble said he was the owner of the said boat, and Marks said the same, but that for some reason she stood in Marks5 name. This took place about the 7th November, 1843. On the 7th November, 1843, McCloy executed a bill of sale for the steamer Raritan. This instrument recites that he sold seven-eighths of the hull of the boat to S. T. Marks; that on 8th September, 1843, he had enrolled her as owner of seven-eighths, at Cincinnati, Ohio. There was also an agree-, ment between McCloy and Thomas W. Pollard, dated 11th September, *5361843, by which McCloy engaged the services of Pollard as clerk of the Raritan, in which it is recited that McCloy is master and owner. The plaintiff, McCloy, commenced services as captain about the 1st September, 1843.
The court was asked to instruct the jury, in substance, that if they believed from the evidence that the plaintiff was owner, or part owner, of the boat, he could not recover.
The court instructed the jury that if they believe from the evidence that the plaintiff was owner or part owner of the Raritan during the time or any portion of the time for which he claims to be paid for services on said boat, he is not entitled to recover for such services, unless the jury believe from the evidence that such title was in the plaintiff as mortgagee for the purpose of securing the payment of money advanced by him for the boat.
It does seem that a bare statement of this case is sufficient for its determination. That an individual should hold himself out as the owner of a boat, sell it to another, and, after it has passed into the hands of a third person, should be permitted to attach that boat for services which he rendered whilst he himself was the owner, is very strange! Suppose he was only a mortgagee, of which there is no evidence, yet being a mortgagee in possession, and rendering services on the boat, so that she might earn the means of paying his debt, on no principle could those services become a lien on the boat, as they were rendered for himself. He being the owner for the time, he could not contract with himself. If McCloy was a part owner, he had no right to proceed against the boat without giving notice to his part owner. The right existing by statute, it could only accrue by a compliance with its terms, which only give it after twenty days notice. It was not necessary on the part of the boat to show that notice had not been given. It was the duty of the plaintiff to show it affirmatively.
The other Judges concurring, the judgment will be reversed.