
    George and Joseph T. Donnell, Plaintiffs and Respondents, v. L. Walsh, B. Carver, and John Chase, Defendants and Appellants.
    1. Where one part owner of a vessel brings suit as such, to recover his aliquot share of the net earnings of the vessel on a voyage, the objection that all the owners are not made parties, must be taken by demurrer, when the defect appears on the face of the complaint.
    2. A master of a vessel although part owner, has no power to settle a claim arising before he became master, and allow the ship’s husband to retain the adjusted amount from the proceeds of a voyage performed after persons had become part owners who were not such while the account thus adjusted was accruing. Such settlement cannot affect the incoming part owners, especially when made with a knowledge of their rights, and after they had demanded payment of their aliquot share.
    3. Proof that a person who has been examined de bene esse, resides in another State; that he has been seen there since he was examined; and that'the witness is informed that he is there at the time of the trial, when the competency of the evidence to establish his absence is not questioned, is sufficient, prima fade, to entitle the deposition to be read.
    (Before Bosworth, Ch. J., and Moncrief, J.)
    Heard, May 18th;
    decided, June 2d, 1860.
    Appeal by the defendants from a judgment on a verdict rendered on a trial, had June 7, 1859, before Mr. Justice Pierrepont and a jury.
    This is a suit brought by the plaintiffs, copartners in trade, and as such copartners, owners of one-half of the brig Crimea, of Bath, Maine, to recover the sum of $712.62, net freight-money of said brig, collected by defendants, and belonging to plaintiffs, as owners of said one-half.
    The plaintiffs, to maintain the issues on their part, offered to read in evidence a deposition of Joseph T. Donnell, one of the plaintiffs, taken de lene esse. The defendants’ counsel objected to the reading of said deposition in evidence, on the ground that the absence of said Donnell from the State had not been shown.
    Dexter A. Hawkins was then called as a witness for plaintiffs, who testified: “ I have known Joseph T. Donnell ten or fifteen years; heard from him about a month since; he lives at Bath, Maine, and is now there, as I am informed and believe.”
    
      On being cross-examined, witness said: “ I saw him in Bath in August last; have not seen him once since; I have received a letter from him in .relation to attending this trial as a witness. He thought he should be unable to come on. The letter is signed with his firm signature, and is, I think, in the handwriting of his partner, George Donnell. I have the letter. I made inquiries of several persons in South street, of Eastern captains who knew him, and at C. C. Duncan & Company’s counting-room ; don’t recollect their names; have done business for them; have their names at our office; this was the latter part of May. (To the Court.) — Have had correspondence with him since he resided in Maine, for several years last past.”
    The Court held that the evidence of the absence of Joseph T. Donnell was sufficient, and the deposition was allowed to be read in evidence. To which ruling, the counsel for defendants duly excepted.
    Erom the admissions contained in the pleadings and evidence given, it appeared that plaintiffs bought one-half of the brig, March 28th, 1857. She was then at Kew Orleans. She after-wards brought a cargo from Cardenas to Kew York, arriving at Kew York last of May, 1857. With consent of master, defendants collected the freight and demurrage on said-cargo, $2,675 TVo, and out of said money paid for disbursements of brig for that voyage, $950T°/W, leaving in defendants’ hands the sum of $1,724.57, net freight for this voyage. Plaintiffs notified defendants that they were owners of one-half of the brig, and they demanded their share, namely, one-half of the said net freight-money. Thereupon, on June 5th, 1857, defendants paid plaintiffs, as owners of said one-half of said brig, the sum of $150, and also, with plaintiff’s consent, paid the master, for the other owners, $149.30, leaving still in defendants’ hands $1,425.23 of said net freight; one-half of this, or $712.62, belonging to plaintiffs as owners of one-half the brig during said voyage. Payment of this was demanded, but defendants refused to pay it, and claimed to retain the whole balance of freight in their hands, on account of an old bill of $1,425.23, which defendants had against the brig and owners in May, 1855.
    L. Walsh, one of the defendants, testified thus: “ I made arrangements with Captain Stinson, on arrival of vessel, to allow this account. I understood him to allow it. We threatened to attach the vessel, and he said he would prefer us to deduct the amount from the freights. This is the receipt, (marked,) dated June 6, 1857.”
    The receipt was fbr $149T3/o, “ in full, for balance due brig Crimea and owners, as per account rendered,” and was the balance remaining in defendants’ hands, after retaining the $1,425.23, which they claimed a right to hold and apply in payment of their old account to that amount. ' J. Auld was master during the time in which the items of account footing $1,425.23, accrued.
    The Judge, inter alia, charged thus, viz.:
    “ The captain was part owner. It appears that defendants threatened to libel, and the captain said they had better hold the money, and not libel the vessel, and the captain gave a receipt; although defendants had notice of Donnells’ claim, and they took the risk of the right of the captain to make this settlement. The captain, although part owner, under circumstances of the case, had no right to take freight-money and pay the claims of defendants, unless it was a lien on the vessel, and he paid it to release the vessel from a lien. To which defendants’ counsel duly excepted.
    “ The mere fact of his being part owner did not authorize him to make such settlement. To this defendants duly excepted.”
    The jury then found a verdict for plaintiffs, against defendants, for the sum of $812.98.
    From the judgment entered on the verdict, the defendants appealed to the General Term.
    
      W. R. Beebe, for appeEants.
    I. Owners of ships, as to the earnings, are partners, and actions to recover earnings or freights must be prosecuted in the names of all the owners. One owner cannot sue for his proportionate share of the freights. They are partners in the undertaking, and their rights are to be determined by their rights as partners. (Abb. on Shipping, 111, 115; Story on Partnerships, §§ 56, 57.)
    II. John P. Stinson, as master and part owner of the vessel, had authority to aEow the defendants to retain the amount of their claim; and defendants having, by his authority and direction, retained such amount, and discontinued their proceedings against the vessel, and paid over to the plaintiffs and Captain Stinson the balance, the plaintiffs cannot recover in this action.
    III. The Court erred in permitting the deposition of Joseph T. Donnell to be read in evidence. There was no proof of his absence.
    IV. The claim of defendants for $1,425.23 was a lien upon the brig, and the Captain was authorized to pay and allow the same, and thus discharge the lien. The claim of defendants being a lien on the vessel, they were justified in retaining the same from any moneys of the vessel in their hands.
    V. The Court erred in charging the jury that, under the circumstances of the case, the Captain had no right to take freight-money and pay the claim of defendants, unless it was a lien on the vessel, and he paid it to release the vessel from the lien.
    VI. The Court erred in charging the jury that the mere fact of the Captain being part owner, did not authorize him to make such settlement.
    VII. The objection that, by the provisions of the Code, we should have demurred, cannot be sustained.
    The question in this case, as to the. parties, is not, whether there is a defect of parties, but, that the plaintiffs, as partners or part owners, cannot maintain an action for a proportionate share of the earnings of the vessel, and, consequently, no cause of action exists—this action being brought to recover one-half the earnings of the vessel. (Abb. on Shipping, 150.)
    
      D. A. Hawkins, for respondents.
    I. Plaintiffs were purchasers in good faith of one-half of the vessel on March 28th, 1857, and without notice of any claim or lien of defendants.
    II. Defendants’ bill of $1,425.23, of May 5, 1855, even if unpaid on March 28, 1857, was not then a lien upon the vessel. (Pratt v. Reed, 19 How. U. S. R., 359.)
    IIL The master had not the power, on June 5th, 1857, to appropriate the freight-money in defendants’ hands to pay the old account of 1855, even if the account was still unpaid.
    The master, as such, has no power to settle disputed clnimg arising before he became master. (1 Parsons’ Mar. Law, 384; Kelly v. Merrill, 14 Maine, 228.)
    
      This disputed claim arose two years before, while Auld was master.
    IV. This action was properly brought in the name of plaintiffs alone. And even if the other part owners should have been joined in the suit, this defect of parties has been waived by defendants by their not raising the point either by demurrer or by answer.
    Part owners of a ship are tenants in common and not partners. (1 Parsons’ Mar. Law, p. 82, and n. 1, p. 83, and n. 5.) .
    If there is a defect of parties, such defect either appears or does not appear upon the face of the complaint.
    If it appears, defendants should have taken the objection by demurrer. (Code, § 144.)
    If it does not appear, defendants should have taken the objection by answer. (Code, § 147.)
    If no such objection be taken, either by demurrer or by answer, the objection is waived. (Code, § 148.)
    No such objection was taken, hence it is waived.
    The exceptions are not well taken, and should be overruled, and the judgment affirmed.
   By the Court—Bosworth, Ch. J.

The recovery in this action is right, and the judgment should be affirmed, unless the fact that all the owners of the vessel are not plaintiffs; or unless the settlement made by Stinson constitutes a defense.

That all of several partners do not join as plaintiffs is no objection to a recovery by those who do sue, where the defect appears on the face of the complaint, and the defendant fails to demur. (Zabriskie v. Smith, 3 Kern., 322.)

If the plaintiffs might recover the whole sum due, had they sought to do so, it is no objection which the defendants can take, that they have recovered less. The verdict is for the precise sum equitably due to them as owners of one-half of the vessel, provided they are entitled to recover anything.

The owners of the vessel in question, were as to such ownership tenants in common, not partners. The plaintiffs it is true, as between themselves, owned the one-half as partners. (3 Kent’s Com., pp. 151-157.)

Still it may be, that all the owners must have been made parties, had the defendants insisted upon it, in the manner prescribed by the Code.

But that not having been done, the defendants were precluded from taking the objection at the trial, as a bar to a recovery.

The settlement made between Stinson, as master, and .the defendants, was a settlement of a claim which arose before the plaintiffs were owners, and at a time when Stinson was not the master; and the defendants claim the right, under that settlement, to retain money, which was earned by the vessel and received by the defendants as money thus earned, after the plaintiffs became part owners.

No authority is cited in support of any such power being possessed by the master of a vessel; and we are not aware of any principle upon which it can be upheld. Kelly v. Merrill (14 Maine, 228,) holds the contrary. See, also, Parsons on Maritime Law, (vol. 1, p. 384.)

That claim, whatever it was, had been settled and paid, if not absolutely, yet in such sense that it was not a lien upon the vessel as against these plaintiffs.

We think the plaintiffs were entitled to a peremptory instruction, that a verdict should be rendered in their favor for the sum that was given.

The evidence, as to the fact of the non-residence of Joseph T. Donnell and his absence from this State, is stronger than that given in Nixon v. Palmer, (10 Barb. S. C. R., 175,) and which was there held to be sufficient to authorize the reading of the deposition. No objection being made to the competency, of the evidence given to prove his absence, we think there was no error in holding it to be satisfactory. (7 Wend., 26.)

The judgment must be affirmed, with costs.

Ordered accordingly.  