Thomas et al. v. Osborn.
ral owners were or were not bound personally by his contracts for necessaries; he was at all events master of the barque, and imposed a lien in rem, by ordering and receiving such repairs and supplies for her in a foreign port. His relation to the vessel, so far as this legal consequence of his acts is involved, was not altered by his having temporarily intrusted Easton, his mate, witn her navigation, nor was the responsibility of the vessel herself to Loring & Co., for repairs and supplies, at all affected by the secret agreement between Leach and the owners, of which Loring & Co. were ignorant. The General Smith, 4 Wheaton, 488; The Brig Nestor, 1 Sumner, 78; The Schr. Tribune, 3 Sumner, 149, 150; Arthur v. Schr. Cassius, 2 Story, 92 to 94; The Barque Chusan, ib., 467; The William and Emmeline, 1 Blatchford and Howland, 71; Webb v. Pierce, 1 Curtis, 110; Arthur v. Barton, 6 Mees. and Wellsby, 142; The St. Jago de Cuba, 9 Wheaton, 409; Rich v. Coe, Cowper, 636; Reeve v. Davis, 1 Adol. and Ellis, 315; Sarchet v. Sloop Davis, Crabbe, 201; Story on Agency, sects. 36, 120; Scofield v. Potter, Davis, 397; North v. Brig Eagle, Bee’s Rep., 78; L’Arina v. Brig Exchange, ib., 198; 1 Bell’s Com. 525, 526; The Virgin, 8 Peters, 552, 553; Hays v. Pacific Steamboat Co., 17 Howard, 598, 599; Peyroux v. Howard, 7 Peters, 341; Bevans v. Lewis, 2. Paine’s C. C. Rep., 207.
2. That even if Easton is to be regarded as master, at the time when the repairs and supplies were furnished, the fact that they were so furnished, his knowledge and consent and under his superintendence, is sufficient to charge the barque with the usual maritime lien, notwithstanding that Leach may have ordered or directed them. Stewart v. Hall, 2 Dow, 32; Voorhees v. Steamer Eureka, 14 Missouri Rep., 56.
3. That the onus of showing a waiver of the custom maritime lien, by giving credit to Leach, rests on the appellants, and they must not only show that such credit was given, but that it was exclusive, and with the intent to forego all recourse in rem. It will be argued that there is not only an entire failure of proof to that effect on the part of the appellants, but that the circumstances of the transaction, the mode of making the charges, and the certificates required from Leach, to the validity of the accounts against the “barque and owners,” all establish affirmatively that the credit of the vessel was especially looked to, and the usual remedy against her particularly reserved. Ex parte Bland, 2 Rose, 92; Stewart v. Hall, 2 Dow, 29, 37, 38; The Barque Chusan, 2 Story, 468; Peyroux v. Howard, 7 Peters, 344; The Brig Nestor, 1 Sumner, 75; North v. Brig Eagle, Bee, 78.
