
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN., 1810.
    Pritchard v. Muir and Boyd.
    A ship builder has a lien for building, or repairs, of a vessel; but he may release the same, or waive his dependence thereon. And the consignee may be liable.
    Motion for a new trial. Action of assumpsit, for work done, and materials found, for the ship Jane, in the port of Charleston, tried before Bay, J.
    Verdict for plaintiff.
    The defence was, that the ship Jane was a British ship, owned by persons m England. That the plaintiff’s remedy, as the Jane was a foreign ship, was cither against the ship, the owners, or the master, or against the ship owners and captain. That the defendants were only consignees, and had entered into no engagement to pay the plaintiff for the repairs in question ; and that as consignees they were not responsible, except under a written agreement. It was proved at the trial, that the defendants put the vessel into the plaintiff’s hands to repair. That before the work was done, estimates were made out of the expense, and the repairs required. That one of the defendants frequently attended the progress of repairs, and insisted the repairs should be made, although advised by the plaintiff that the ship ' was not worth repairing. The repairs were done, and the bill of the plaintiff rendered to the defendant, who made no objection. It was proved that the plaintiff applied to the Court of Admiralty, to be paid out of the proceeds of the Jane, as having a lien for the amount of his account for repairs ; the ship being libelled for seamen’s wages. The plaintiff’s account was made out against the ship Jane, and owners.
    The presiding judge charged, that if a ship is repaired in a port to which she belongs, an implied contract for payment is raised be" tween the owner and the shipwright; and when the ship once goes out of port, into the commerce of the world, then the bottom becomes liable for repairs ; but that consignees are not liable for repairs to a foreign ship, though they may become so by their contract. That the evidenee went to prove an undertaking on the part of the defendants, expressly to compensate the plaintiff, which was not done away by the petition to the Court of Admiralty.
    January 7th, 1810. Present, Grimxe, Bay, Brevard, Wilds, and Smith, Justices.
    Drayton, for the defendant.
    No express contract was proved. None can be legally implied. Plaintiff had a lien. The ship was foreign. This was known to the plaintiff, who relied on the bottom, and not on any other security. This is manifest from his application to the Court of Admiralty, and the account he exhibited on that occasion. The ship was libelled, and sold for seamen’s wages. The proceeds of the sale were not enough to satisfy the wages of the seamen, and the repairs. The plaintiff finding that he could not be compensated by proceeding on his lien, turns round, and endeavors to make the defendants personally liable. There was a lien ; this being so, the defendants aie not liable. They cannot be made responsible, but by a promise in writing. The undertaking, if any such was made, was collateral. The plaintiff cannot have a remedy against the ship ; and also on an express undertaking of a stranger. The lien still existed. The following authorities were cited. I Esp. Dig. 100. 3 Burr. 1386. 2 Esp. Dig. 585. 1 Bos. and Pull. 158. 1 H. Blac. 120. 3 Esp. Rep. 86. 2 East. 325. 2 T. R. 80.
    Cheves, for the plaintiff.
    Not a case affected by the statute of frauds. No proof that the plaintiff knew the ship was owned by a foreigner. Not certain it was so. The defendants appeared to be owners. No proof that the plaintiff relied on the bottom of the ship. The presumption the other way. Defendant should have ordered the repairs as agent. They did not so ; therefore personally bound. Cited Roberts, 208. 1 Com. on Contracts, 331. The entry in plaintiff’s book, charging the ship, owner, &c., not conclusive evidence that the defendants are not liable. The ship, owner, and master, are liable, as well as tho defendants. A man may have a choice of remedies. The defendants had an interest in the ship as consignees; their undertaking was direct, and not collateral, not within the statute of frauds. Roberts on' Fr. 23,24, 223. An original promise, by substitution, may be good. I Com. on Con. tracts, 58. Cowp. 636. Triple liability. But suppose plaintiff mistook his remedy in applying ro the Court of Admiralty ; shall he for that forfeit his proper remedy 1 Express declarations of a party not conclusive evidence, if in favor of a party’s interest. Com. on Contracts, 57. 1 Bos. and Bull. 158. Plaintiff could not be supposed to rely on the vessel, since he did not think her worth repairing; and defendants insisted on the repairs being done,
    DraytoN, in reply.
    The plaintiff must be supposed to have relied on the ship, from the nature of the case, as an express contract was not proved with defendants. The entry in plaintiff’s books, against the ship and owner, and not against defendants, puts the matter -out of doubt, connected with the petition to the Court of Admiralty. No disclosure of the principal was required from the agents, seeing the captain was known to the plaintiff. His account being debited to “ the ship Jane and owner, Capt. Trenholm.” The plaintiff, a ship builder, could not be ignorant (hat the Jane was a foreign built ship. Not being an American ship, could not be owned .joy an American. ¿In such a case as tips, the plaintiff cannot have a triple security. The credit must be given to one only. Consignee not like a factor, in a foreign country. There was 1,0 Pr‘mary undertaking, with the defendants, proved. A collateral undertaking, not binding, unless in writing. No considera-c'on shewn to make defendants liable. Cited 8 Esp. Rep. 86. 2 East. 335. 3 Burr. 1880. 2 L’d Raym. 1085. 1 H. Bl. 120. Cowp. 236. 1 Bos. and Pul., Keith v. Temple. 1 Com. on Con. 332.
    
      Note. 2Com. on Con. Concermngtheowner’sandmaster’sIiability,forrepair9 and necessaries, see 1 Com on Con. 331 1 Stra. 816. 7 T. R. 306. 3 Burr. 1592. Cowp. 636 3 Vein. 643. Abbot, 95, 104. IT. R. 77,108. Abbot, 116, 132. 1 East. 20. Abbot, 108. 84, 117, 118,255. 254 3 Bos. and P. 420, 405. 1 Bos. and P- 637. 2 Bos and P. 321. The rule is said to be, that prima facie, the repairer of a ship has his election to sue the master, who employs him, or the owners; but if he undertakes it, on a special promise from either, the other is discharged. Abbot, 97. 2 Str. 816. But whether a person, who supplies a ship with necessaries, has the security of a specific ship, as well as the personal security of the master and owners, is a question that seems not completely settled. Abbot, 104. Cowp. 630. 1 T. R. 109. 1 Com. on Cont. 333. A shipwright may retain possession till paid for repairs; but tradesmen, who provide ropes, &c., have no particular claim or lien on the ship. Abbot, 104, 305. 2 Show. 338. 1 Salk. 34. 2 T R. A master may hypothecate both Bhip and cargo for repairs, daring the voyage, but not where the ship is in port infra carpus comitatus; then there is not a lien on the ship. 2 P. Wm’s, 367. 1 Ves. 154. 1 Atk. 234. Abb. 108-9, Doug. 101. Bee’s Adm. Rep. 419. A shipwright cannot sue, in the Admiralty, for contract wages for building a ship designed for navigation on the high seas. Cro. C. 296. lStr.707. Bee’s Adm. Rep. 433. A ship carpenter has no lien for repairs, after the vessel is out of his possession, if the contract was made on land, and the owners resident in the place. Hopkins, 99. Cro. C.216. Hob. 11. Salk. 35. 2 L’d Ray. 805. 2 P. Wm’s, 367. Cowp. 638. As to necessaries, furnished for the use of the ship, 1 H. Bl. 116. Cowp. 636. IT. E. 108.
   January 13th, 1810.

Bat, J.,

delivered the opinion of the court, Gkimke, J., absent. This isa case not within the statute of frauds. The- jury were instructed to enquire whether the plaintiff did not contract with the-defendants, and look to them for compensation. A consignee may make himself liable. The pvidenee was strong to prove that the plaintiff considered the contract to be a personal one with the defendants, and relied on them for payment. He might have afterwards taken up the idea that he had a lien on the ship, or he might have thought so from the first; but if he was right or wrong in this idea, it would not impair the dependence he had, or the contract wifh the defendants. A party may have a choice of remedies. He had a lien on the ship. He had a right to charge the owner. He had also a right to charge the defendants on their contract. He may abandon one remedy, and resort to another.

Motion rejected.  