
    John F. Burquin & Co. vs. James Flinn.
    Where the plaintiffs, consignees at AVilming'lon, wrote to the defer, dant, owner at Charleston, that his ship would need some repairs, bill did not know the amount, but perhaps 6 or $>700, and tliat the captain would write the particulars ; and.also said that the captain would want funds to have the same done, and requested to knovi if they, the plaintiffs, should draw for the disbursements; and in answer, the defendant directed that the Captain should draw in favor of the plaintiffs for the disbursements; and the disbursements afterwards turned out to he jg 2,195 85; the court Held, that the captain was the legally constituted special agent of the defendant; and that the defendant was bound to pay a draft he drew in favor of the plain tiffs for the full amount of the disbursements,
    An owner is generally only responsible for necessaries to his ship ; bn' the jury only can decide what are necessaries.
    TlilS was an action to recover the amount of the disbursements of the British brig Mary, Robert Bibly, mas - ter, owned ■ by the defendant. On th^ 17th May, 1817, the Mary arrived at Wilmington, North-Carolina, from Kingston, with a cargo of rum, sugar and coffee, on account of Palmer. She was to return with a cargo of lumber. Tlie plaintiffs were consignees. They sold the rum, sugar and coffee, and purchased and shipped a cargo of lumber.
    Ou the ,7th June, the plaintiffs wrote to the defendant in Charleston that the brig had arrived; that she was hove ■ 'flown and required some repairs : the amount of disbmse* ments bad not yet been ascertained; that captain Bibly appeared attentive and economical, and would write, they presumed, by the same mail, to the defendant. The plaintiffs further stated, that they were unacquainted with the particulars of the charter party.
    On the 9th they wrote to the defendant, that by the same mail, captain Bibly would advise him of particulars relative to the brig; and, “ as it is possible he may require some funds for his disbursements, and is disappointed in receiving facilities from Messrs. L. and M. -he wishes us to point out a mode to you to remit here. This can be done readily by your friend in Charleston, authorizing our draft on him at GO clays. We do not yet know the amount of the disbursements, perhaps 6 or 700 dollars. Captain Bibly has attended closely'to her repairs. Every economy, we presume, will be practised.”
    On the 17th, the defendant wrote to the plaintiffs, acknowledging the receipt of their letter of the 9th, and directed them to take captain Bibly's draft in their favor, on Charles Edrnonsfon of this city, for the disbursements of the Mary, and then states that he was about to leave Charleston for Liverpool, and begged that he may there hear from them.
    It appeared from the account filed, that the disbursements amounted to $>2,195 85, leaving a balance of S 1,790 48-100 against the brig; for which balance, a bill was drawn by Bibly in favor of the plaintiffs, on Charles Jidmonston, who refused to acccqrt it, as only 700 dollars had been left in his hands for that purpose by the defendant.
    The plaintiffs then produced a witness, who, on exami • nation of the account, declared it to be reasonable. That it was very common for the disbursements of vessels to overrun the estimates. That the plaintiffs were a very reputable house in Wilmington. The witness further stated that he knew Roach, who was the confidential clerk of the plaintiff’s in 1817; he left the city of Charleston in ISIS, and was reputed dead.
    
      Another witness, who was the under clerk of the plain» tiffs in 1S17, proved that the account filed was a correct copy from the books of the plaintiffs, that the entries were in the hand-writing of Roach. He further stated, that large sums were paid by the captain for seamen’s wages t that on the arrival of the. Mary, her crew were paid off, and advances made to such as re-shipped.
    In conformity with the charge of the court, the jury found a verdict for the plaintiffs to the full amount of the bill, with interest.
    A motion, was now submitted for a new trial on several grounds, all of which are embraced under the three following :
    1st. That the defendant’s letter of the 17th of June, cannot be considered as an. agreement to accept a bill for more than $ 700.
    2ndly. That the defendant is only responsible for necessaries furnished.
    3d!y. That the account of the articles furnished is not sufficiently proved.
   Mr. Justice Huger

delivered the opinion of the court.

The plaintiffs, in their letter of the 9th, only suggested that the disbursements of the Mary would, perhaps, amount to $ 700. They were not known, and could not indeed have been ascertained at the time ; for they were not complete. The defendant, in his letter of the 17th, refers to no particular sum, but merely directs that a draft of the captain should be accepted for the disbursements. The plaintiffs state that the captain will want money for the disbursements, and propose that they should be permitted to draw on some friend in Charleston for the advances to the captain for disbursements. The defendant replies that the captain himself must draw, not the plaintiffs, thereby constituting the captain his special agent for the purpose. This shews that the owner reposed confidence in the captain, and trusted to him, not to tbe plaintiffs for the propriety of the disbursements : and this is in answer to a letter, in which the plaintiffs write, that they presume the captain will practise economy ; shewing that they regarded him responsible for the economy used. It is not pretended that the plaintiffs acted fraudulently ; but it is contended that they are responsible for the supposed imprudencies of the captain. The jury thought the trust had been reposed by the defendant, not the plaintiffs, and therefore gave them a verdict. I entertained the same opinion at the trial, and nosv see no reason for changing it. On the first ground, therefore, the motion must fail.

That an owner is generally only responsible for necessaries, is not denied. In the case of Carey vs. White, (1 Bro. Par. Cases 284,) thi's doctrine was fully considered and firmly established. It has not, I believe, been seriously questioned since. But what are necessaries, the jury only can decide, as was ruled in the case just cited.— But it is contended the jui'} had not sufficient evidence before them to authorize the conclusion that the ariieh s furnished in this case were necessary. One witness declared that the articles furnished were generally necessary to vessels similarly situated. The captain who was the confidential servant of the owner, and the best judge of what was necessary, certifies, under his hand, this account.— Another witness proves that large sums were paid and advanced to the seamen. A large item in the account is for the duty; another is the carpt uler’s bill, &x. ike. This was evidence enough to goto the jury; and I have seldom seen a jury better qualified to decide such a question, than the one to which it was submitted. They were generally merchants.

But it is contended that it was not only incumbent on the plaintiffs to shew the necessity to borrow the money, but to prove the actual application of it. The account states the particular disbursements with the exception of about § 800, advanced to the captain at different times.— Out of this sum he must have paid the crew discharged as well as the advances to the crew shipped; and there are several articles essential to the voyage not specifically charged, and which must have been paid out of the money advanced to the captain. This was enough to authorise the jury to find as they did, independent of the special au - thority given in the. defendant’s letter of the 19th June.— In the case of Palmer vs. Gooch,---relied upon by the appellant, the captain had been'engaged in some speculation on his own account; for which advances were made by Palmer to more than £ 20,000.— £ 1,700 were charged to the ship ; bnt it appeared that the disbursements of the ship amounted to but £ 2,894, and the captain had funds belonging to the owner to about £ 9,559 7s. and 3d. And it was not even contended that more than £953 8s. of the £ 1,700, had been applied to the disbursements of the ship. And of this there was no other evidence than that of the purser, who merely stated that so much had been expended on the ship. This was no advance on account of the owner, nor was the bare declaration of the purser without an account stated, or a particular charge mentioned, sufficient evidence of the appropriation. The words of lord C. J. Abbott, are explained by the case he decided, and when thus explained, afford no ground for this motion.

On all the grounds, the appellant must fail.

Justices -Colcock, Gantt, and Johnson, concurred.  