Thomas et al. v. Osborn.
nished, Leach was in full possession of the barque, exercising his authority as master, under his contract with the owners hereinbefore stated. 2d. He was recognised and paid as such by the owners. 3d. He was dealt with as such by Loring & Co., in good faith, without the slightest grounds for suspecting that the owners disapproved of his conduct, or had requested him to bring the vessel home. 4th. The repairs and supplies were necessary to enable her to go to sea, and she must have remained idle in the port if they had not been furnished; and they were made and furnished with prudence and economy, under Leach’s own direction. 5th. He had no money except the five hundred dollars hereinbefore mentioned, which he needed for his personal expenses, and had no funds either of his own or the owners within his reach, with which he could make these repairs or obtain the necessary supplies.
These facts appear to me to be conclusively established by Leach’s own testimony. And as it is admitted, on all hands, that the repairs were made and the supplies furnished at his request and by his order, it follows, from the decisions in this court, and at the circuits to which I have already referred, that, by the maritime code of the United States, Loring & Co. obtained an implied lien on the vessel for the amount, unless it can be shown that they were furnished on the personal credit of Leach or some other person.
An attempt has been made to offer such proof, and to show that the supplies were furnished upon the personal credit of Leach. But it is an obvious failure. He is asked by them whether the repairs and supplies were furnished upon his responsibility? or the credit of the vessel? or how otherwise? He answers, “I presume they were furnished on my responsibility.” And this is the whole and only evidence offered by the appellants to show that they were furnished on the personal credit of Leach, and not on that of the vessel or owners. Certainly, such evidence can hardly be sufficient to remove the implied lien given by law. Whether the credit was given to him was a question of fact. If the fact was so, he must have known it, and could have sworn to it in direct terms. But instead of this, he merely expresses an opinion in general terms, and gives no reason for that opinion, and states no fact from which it might be inferred that this opinion was well founded. The answer is, in truth, no evidence; it is but the opinion or conjecture of the witness; and, even if there was no evidence in the record to contradict it, would leave the case upon the implied lien which the law creates.
But it is directly in conflict with the written instruments signed by the witness himself at the time of the transaction.
