
    Barzillai Hussey versus John Allen and John Allen, Jun.
    A merchant in a foreign port furnished necessary supplies to a vessel, which when she left home, was owned by A and B; but before the supplies were furnished, they had parted with all their interest in the vessel, although this fact was not known to the merchant.
    It was held, in an action brought against A and B for those supplies, that they were not liable.
    This was an action of assumpsit for sundry supplies furnished by the plaintiff for the sloop Betsy Ann, Andrew Coleman, master, alleged by the plaintiff to be the property of the defendants. The parties, by a rule of this Court, agreed that certain arbitrators named should ascertain and report the facts in the case, upon which, if the Court should be of opinion that, the plaintiff was entitled to recover in the action, judgment should be rendered for him accordingly ; otherwise he was to become nonsuit.
    The facts reported by the arbitrators were, that the sloop sailed from Edgarton, in Dukes county, on or about the 13th of June, 1805, for the Falkland Islands, on a whaling, fishing, and skinning voyage, being at that time owned by the defendants, and registered in their names; that on the 17th of September following, they sold one fourtl) of said sloop to one J. Jenkins, and another fourtli to one William Kelly; and on the third of December following, the remaining half to B. F. Bourne and Benjamin Rich, for the use and benefit of their (the defendants’) creditors; that in the months of December, 1807, and January and February, 1808, the said sloop being then in Rio Negro, in South America, the plaintiff, at the request of the master, furnished her with necessaries to fit her for sea, and enabled her to proceed on her voyage and return home, to an amount stated ; that it did not appear that either the plaintiff or the master knew of the sale aforesaid, at the time [" * 164 ] the * said supplies were furnished ; that the sloop arrived at Boston, on her return from said voyage, on the 10th of April, 1808, when no measures were taken by Jenkins, Kelley, Bourne, or Rich, to obtain possession of her; that on the 23d of the same April she was attached in this suit; and that on the 4th of May following, she was arrested by the marshal of the district, by virtue of a warrant from the District Court, issued on a libel filed against her for the wages of her crew, and was afterwards sold under a decree of the said court, for the payment of the said wages.
    
      Thatcher, for the plaintiff,
    argued that the supplies, for which the action was brought, were furnished by the plaintiff on the personal credit of the defendants. The vessel was owned and fitted for the voyage by them. She was registered in their names. The master was appointed by them. The transfer of the vessel, if it was bona fide, — of which, from the facts found, there is great reason to doubt, — was wholly unknown, to the plaintiff. From the insolvency of the defendants, the plaintiff is without remedy, unless he can avail himself of his attachment of the vessel, and by this means have an opportunity to try the validity of the pretended sale. 
    
    
      Bourne, for the defendants,
    relied on the general principles which regulate the liability of ship-owners.  Here was no pretence of an actual promise, and as to an implied assumpsit, it was sufficient to say that the defendants, having, before the supplies were furnished, parted with their whole interest in the vessel, could derive no possible benefit from them. 
    
    The opinion of the Court was delivered by
    
      
       3 East. Rep. 10, Young & Al. vs. Brander Dunbar. — 1 H. Black. R. 114 ) Dickson vs. Vernon.
      
    
    
      
      
        Abbot on Shipping, Part 2, c. 2, § 2.
    
    
      
       7 D. & E. 312, Westerdell vs. Dale.
      
    
   Parsons, C. J.

The action is sued by the plaintiff against the defendants, to recover of them compensation for supplies furnished by him to Andrew Coleman, master of the defendants’ sloop Betsy Ann, when on a voyage. The plaintiff’s right to recover must depend on the law, arising from the facts stated by arbitrators appointed by the parties, and which are submitted to us.

* From these facts a general question arises, whether, [ * 16o ] if necessary supplies are furnished to a vessel abroad on a voyage, after the owners of her, when she sailed, have legally and bond fide sold all their interest in her, but of which sale neither the master, nor the merchant furnishing the supplies, has any knowledge, the original owners are liable in law to the merchant for such supplies.

And it is our opinion that the original owners are not liable to pay for any supplies furnished for the vessel, after they have sold all their interest in the vessel, although neither the master, nor the merchant furnishing the supplies, has any knowledge of the sale. The obligation, imposed on owners of vessels abroad, to pay for the necessary supplies furnished to the master, is founded on the principle, that the master is for this purpose their agent, and is authorized to bind them in this case; because the supplies are for their use and benefit, and without which their vessel cannot proceed on her destined voyage. But when the owners have alienated all their interest in the vessel, the master ceases to be their agent, and the supplies are not furnished for their use.

When, therefore, necessary supplies are to be furnished for a vessel on her voyage, and from home, the merchant may furnish them on the credit of the vessel, by taking a hypothecation, or on the credit of the master by his consent, or on the credit of all who are owners at the time the supplies are furnished, because they have the use and benefit of them. But the original owners are exempted from all obligation to pay for such supplies, furnished after the sale, because they are no longer owners, nor interested in the vessel or voyage.

Plaintiff nonsuit.  