
    Stephen Glover et al. versus Joseph Hunnewell.
    Where R made a bill of sale to G of all the lumber and materials in a ship-yard for building and finishing a ship, without any schedule or specification of the articles, and without keeping them by themselves, it was held, that nothing passed by the conveyance j but taking such instrument in connexion with a former one by which R agreed to build a ship for G, and a subsequent one by which he conveyed to G the keel and other parts of an unfinished ship, then lying on the stocks, it was held, that all the timber which was actually selected and fitted for the ship would pass, if it could be identified.
    A witness called for that purpose being unable to identify it, except by a schedule made some months after the sale, and even with that having no present recollection as to the articles enumerated, his testimony was rejected.
    G having, immediately after he had made the contract with R for the building of the ship, agreed that L should be the owner of one quarter, it was held that L had no property in any of the timber before it was inserted into the ship.
    Trespass against the defendant for taking and carrying away certain lumber and materials alleged to be parts of an unfinished ship. The defendant, as a deputy sheriff, on the 8th of August, 1826, attached these articles as belonging to Edward Rogers and Henry Rogers, and the question was, whether the property was in the plaintiffs (Glover and Lap-ham) at the time of the attachment.
    At the trial, before Wilde J., the several instruments men tioned in the preceding cáse were given in evidence. The plaintiffs also offered to prove, that within a few days after the 20th of May, 1826, a delivery was made to Glover of the lumber and materials, and of the unfinished ship, and that a considerable portion of the materials claimed in this suit was at the time of the attachment, partly or wholly finished and fitted to be applied to the ship. And they showed that advances had been made to the Rogerses on account of the ship, of 1000 dollars prior to the bill of sale of May 12th, and of 5,800 prior to the attachment.
    To show that the materials and lumber claimed in the suit were in the ship-yard at the time of the execution of the bil of sale above mentioned, the plaintiffs produced a schedule, and offered to show by H. Rogers, that a day or two after the attachment the witness and Glover went into the yard with the view of identifying and distinguishing such part of the lumber and materials as were in the yard on the 12th of Ma) and were comprehended in the bill of sale, and that the witness thereupon carefully selected the same, and Glover, in his presence, set down the same in writing, article by article ; which schedule was produced and identified by the witness, but inasmuch as he said, that after the lapse of time which had occurred, he could not testify from his present recollection that the articles were in the yard on the 12th of May. and that the perusal of the schedule did not refresh his recollection, the judge refused to allow the schedule so identified to be read to the jury. The judge being also of opinion, that upon the evidence produced and offered to be produced by the plaintiffs, this action could not be maintained in the joint names of Glover and Lapham, a nonsuit was entered, with a view of reserving these questions for the consideration of the whole Court.
    March 18th.
    
      June 21st.
    
    
      Shaio and Bartlett contended that the materials for the ship passed to Glover by the terms of the contract, or if not, that they passed as appurtenant to the ship ; and in either case, they became the joint property of the plaintiffs, Lapham being a dormant partner. Woods v. Russell, 5 Barn. & Aid. 942.
    On the point that the evidence rejected was admissible, they cited Union Bank v. Knapp, 3 Pick. 96 ;
      State v. Rawls, 2 Nott & M'Cord, 331.
    
      Rand and Morey, contra, cited Clough v. Woods, 5 Serg. & Rawle, 282:—Mawman v. Gillett, 2 Taunt. 326, note ; Lucas v. Be La Cour, 1 Maulé & Selw. 249.
    
      
       See 2nd ed. p. 109, note 1; Shove v. Wiley, decided in Essex, Nov. term 1836.
    
   Parker C. J.

delivered the opinion of the Court. In the case as it now stands there is no evidence of property, of the chattels sued for, in the plaintiffs. Their claim is under an instrument dated the 12th of May, 1826, which ^purports to convey to Glover, one of the plaintiffs, all the materials in a shipyard then occupied by E. & H. Rogers : there is no schedule or specification of the articles which were intended to be passed under the terms, materials for building and finishing a ship. Taking this instrument in connexion with preceding ones of November 10, 1825, and the succeeding one of May 20, 1826, we have no doubt it would have passed all the timber and sticks which were actually selected and fitted for the vessel which by the first instrument was contracted to be built and by the last was transferred to Glover. But in order to give it effect, ttie plaintiffs should be able to show that the very sticks attached were the subjects of the transfer ; which they have failed to do. The witness called for this purpose was not able to identify them, except by a schedule taken after the attachment, and even with that he was unable to swear with any certainty as to the identity of the sticks. We think his testimony was rightly rejected, and this is ground enough for the nonsuit to stand.

Another question arose as to the proof of property (supposing the timber could have been identified) in Lapham, who is joined with Glover as plaintiff in the suit. By his contract with Glover he became part owner of the ship, but he had no legal ownership of the timber from which she might be built. He was not a party to the transfer from the Rogerses, and therefore ought not to have been joined in the action.

Motion to take off the nonsuit overruled. 
      
       See Johnson v. Hunt, 11 Wendell, 135.
     
      
       See Glover v. Austin, ante, 221, 222.
     