CASES

ARGUED AND DETERMINED

IN THE

SUPERIOR COURT

OF THE

CITY OF NEW-YORK.

ZEBEDE RING AND PETER MCNAMARRA

versus

THOMAS FRANKLIN."

1829.

THE registry of a vessel at the Custom House, although accompanied by the oath June Term, required by law of the person in whose name the registration is made, is not conclusive evidence that the ownership of such vessel is in him. The registry does Ring and Mcnot determine the ownership of the vessel, its object being merely to show her national character, and to secure the advantages belonging to vessels of the United States.

:

The mortgagee of a vessel out of possession, is not liable for repairs, unless they are
made upon his credit, or by a special contract with him and parole evidence is
admissible to show, that the bill of sale whereby the vessel is conveyed, although
absolute upon its face, was, nevertheless, intended as a mortgage.
The agree

ment which operates as a defeasance, need not be under seal; nor is it neces-
sary
that it should be made or executed simultaneously with the deed, in order
to give it validity.

Namarra

V.

Franklin.

1829.

Ring and Mc-
Namarra

June Term, The mortgagor of a vessel is a competent witness for the mortgagee, who is sued as owner, to show the nature of the transfer, and to prove that a conveyance, apparently absolute, was in fact conditional. His interest in the suit is balanced, and as the mortgagee, if liable at all, is liable, either as owner, or as mortgagee in possession, the mortgagor would not be responsible to him for costs, it being the duty of the mortgagee, under such circumstances, to pay for the repairs in the first instance, without suit.

V.

Franklin.

ASSUMPSIT to recover the amount of a bill of repairs upon the ship Concordia. The declaration contained the usual counts for work, labour, and materials; a count for goods sold and delivered; the money counts; and a count upon an account stated. Plea, the general issue.

The cause was tried before Mr. Justice OAKLEY. At the trial, it appeared, that the repairs, for which the action was brought, were made between the 10th day of September, 1827, and the 5th of June, 1828; and no objection was made as to the items of the plaintiffs' account. The charges in the books of the plaintiffs, were against the "ship Concordia and owners,” and the work and materials were furnished by the order of Samuel G. Bailey, the captain of that ship. While the vessel was receiving her repairs, one Nathaniel G. Minturn, (who it afterwards appeared was the owner of the ship, but had mortgaged her to the defendant,) was occasionally at the yard of the plaintiffs, and a bill of the repairs was rendered to him in the month of December, 1827, or in January, 1828. No bill was ever presented to the defendant; but Minturn had given his note to the plaintiff's for the amount of the repairs, and had become insolvent before the commencement of this action. The note, however, had never been paid by Minturn, and was produced in Court by the plaintiffs. The defendant, it also appeared, was never present while the repairs were in progress, nor was payment ever demanded of him; but Minturn had a general account with the plaintiffs for the repairs of the vessel. It further appeared from the plaintiffs' evidence, that the ship was registered on the 15th day of October, 1824, and that at the time of such registration, the defendant had made "affirmation," according to the act of Congress, that he was the "true and only owner" of said ship. It also appeared that