
    D. and A. Sturtevant, Plaintiffs and Appellants, v. Brewer & Caldwell, Defendants.
    1. In an action against the charterers of a vessel to recover the sum covenanted to be paid for a voyage from Galveston to New York, brought by an assignee of the charter party after the voyage has been performed, where it appears that the vessel, which by the charter party was to be kept by the owners staunch and tight, was, at the time the charter party was executed, at Galveston, in Texas, and S., S. & Co., of Galveston advanced $3,971.43 for port charges and putting the vessel in a condition to perform the voyage for which she was so chartered, (she being disabled and in distress, and the master having no moneys to repair her;) and where it also appears that S., S. & Oo. have commenced an action in another court in this State, to establish a lien upon the freight moneys earned on said voyage to reimburse them said advances and obtained an injunction restraining the defendants from collecting any of such freight moneys, and have also obtained an order for the appointment of a receiver of such part of said freight moneys as the defendants have collected; the plaintiffs will be compelled to amend the summons and complaint so as to make said S., S. & Oo., parties defendants, to the end that their claim to such freight moneys may be determined in this action, so as to conclude the present plaintiffs in respect thereto.
    2. The liability of the defendants to the plaintiffs upon the charter party, depends upon the question whether S., S. & Oo., have a right to all of said freight moneys; and that question, and to how much of said moneys S., S. & Oo. are entitled, if not to all of them, should be determined by a single trial, so as to conclude all the parties thereby.
    (Before Bosworth, Ch. J., and Hoffman, Woodruff and Moncrief, J. J.)
    Heard, November 26;
    decided, December 17, 1859.
    
      Jambs L. Ferris was, on the 10th of December, 1858, or claimed to be sole owner of the baric .Convoy, and through his attorney, G. A. Ferris, entered into a charter party with the defendants, dated that day, chartering the vessel to them on her voyage from Galveston, Texas, to the port of New York. The owner was to keep the vessel tight and strong, in the usual language of such an instrument. The defendants were to provide and furnish for such vessel cargo sufficient for ballast, and were to pay for the charter or freight during the voyage $2,250 on the right delivery of the cargo at the port of New York.
    The charterers were to have sufficient time to take in a full cargo at the port of Galveston, Texas, and dispatch in discharging at the port of New York.
    Ferris assigned this charter party to the present plaintiffs, by assignment dated the 22d of June, 1859.
    The bark was at the date of the charter party in the port of' Galveston, where she was loaded with cotton, under the superintendence of Sorley, Smith & Co., her consignees. Bills of lading were signed by her master, to the order of the shippers, or consigning the cargo to various persons in New York. She arrived in New York about the 80th of March, 1859.
    Sorley, Smith & Co., it is alleged, disbursed about the sum of $3,971.43 for the expenses and port charges of the vessel at Galveston. To cover this they drew a draft on the defendants, without authority, and the acceptance thereof was refused.
    „ The defendants were proceeding to collect the freight when they were interfered with by the master, who received $600 of such freight, and gave notice to the consignees not to pay the freight to the defendants.
    By instrument dated April 8, 1859, the master of the vessel assigned to Sorley, Smith & Co. all his interest in the freight money, and his lien thereon, for his advances and claims.
    This action is brought on the charter party for the $2,250.
    The homeward freight is stated to amount to $2,130. The defendants are said to have collected about $1,000.
    Sorley, Smith & Co. have commenced an action in the Common Pleas claiming a lien on the homeward freight to reimburse them their advances, have obtained an injunction in said action restraining the defendants from collecting any of said freight moneys; and also an. order for the appointment of a receiver of the freight moneys collected by the defendants, which injunction and order are in full force. The owner of said vessel is insolvent.
    On a motion made upon notice to the plaintiffs, and on the hearing of which Sorley, Smith & Co. appeared by counsel;
    Bosworth, Oh. J., on the 26th of September, 1859, on affidavits establishing the facts above stated, made an order that the plaintiffs in this action, within ten days, amend their complaint and summons by making Sorley, Smith & Co. defendants, and inserting therein the proper allegations to show the claim made by the latter in their action against the present defendants; and staying all proceedings in this action until such amendments were made, and the amended summons and complaint were served on Sorley, Smith & Co., or their due appearance herein.
    Prom this order the plaintiffs appealed to the General Term.
    
      R. H. Shannon, for appellants.
    
      Jeremiah Larocque, for respondents.
   By the Court—Hoffman, J.

The claim of Sorley, Smith & Co. to a lien upon the freight, by force of their own advances, and under the assignment from the master, is apparently valid. In this country, the master has a lien on the freight and cargo for his necessary advances made and responsibilities incurred in a foreign port. (Flanders on Maritime Law, 180.) In Sorley v. Brewer & Caldwell, in the Common Pleas, the right is distinctly recognized by Mr. Justice Hilton, (18 How. Pr. R., 276;) and the lien upon the vessel in admiralty is sustained in Sorley, Smith & Co., by Justice Betts, upon the facts of the case.

This lien, if it exists at all, will be paramount to the title of the charterers to the freight. Then the consequence will be, that the defendants have a valid, equitable defense to the action of the plaintiffs for payment of the hire of the ship. The fault or neglect of the ship owner, in not providing funds at Galveston, caused the existence of the lien, which deprives the defendants of the homeward freight. His act has defeated the consideration of the promise to pay the charter money. The equities, then, of the parties seem to be, that the plaintiffs must allow, as against the demand on the charter party, the amount of freight which will be necessary to discharge Sorley, Smith & Company’s lien. This the counsel appears to concede.

Thus we have the case of the liability of the defendants to the plaintiffs in this action dependent upon the question, to whom the home freight belongs. The act or neglect of the plaintiffs’ assignor has vested third persons with an apparent right to it, which they are asserting. If the defendants pay the charter money, they may be also compelled to pay the freight they have received, or may be liable for.

The exposition of the 122d section of the Code appears to be, that other parties are to be brought in when it appears that their rights in the subject of the action must be settled before the rights of the parties to the suit can be determined. The court cannot definitely and correctly say what are the rights of the parties before it, in the subj ect matter of the suit, until the claims of others to it are determined. There are many cases in which a defendant may require other parties to be brought in, so that the judgment of the court in the action may protect him against the claims of such other parties. (McMahon v. Allen, 12 How., 39.)

The substantial point, and a main object of the action as now framed, is the determination of the right to the freight. The present seems to me to be a case in which the defendants have a right to the presence of Sorley, Smith & Co. for their protection." The act of the plaintiffs’ assignor gave rise to the adverse claim.

The existence of the suit in the Common Pleas, in which, probably, every right can be properly settled, is not, in the present stage of that suit, an answer to the application to re-forn! and perfect the action here.

I do not examine whether this court can proceed by publication to bring in Sorley, Smith & Co., under the 135th section, subdivision 4, of the Code. As observed by the Judge below, they may, perhaps, be served here, or voluntarily appear. They did appear by counsel on the motion below.

One of the points made by the plaintiffs’ counsel on the appeal is, that they admit that the defendants are entitled to set off the amount of freight which may be proved to have been earned by the Convoy on her home voyage against the sum claimed under the charter party.

But the counsel did not assent that such freight was the $2,130 as stated in the complaint of Sorley, Smith & Co, On the contrary, he was understood to say that it was only about $500. It is necessary to settle the amount to be deducted, as well as the right to a deduction.

The order must be affirmed, with costs.

Ordered accordingly.  