Knox v. Campbell

• Decision Date: 01 January 1845
• Parties: KNOX, Assignee of BUTLER, v. CAMPBELL.
• Court: Pennsylvania Supreme Court

Page 366

1 Pa. 366

KNOX, Assignee of BUTLER, v. CAMPBELL.

Supreme Court of Pennsylvania.

IN ERROR.

ERROR to the District Court of Alleghany county.

Knox, for plaintiff in error, cited Story on Part. 584, 417; 3 Johns Rep. 175; 3 Penna. Rep. 297; 6 Watts & Serg. 529.

Black, for defendant in error, cited Story on Part. 449; 2 Watts, 86; 1 Binn. 191.

The opinion of the court was delivered by KENNEDY, J.

Butler and Campbell were the owners of a steamboat which was tortiously taken from them, and detained for some considerable time by the sheriff of the county, against whom they brought an action of trespass, and obtained a verdict against him in their favor for $400. Before however a judgment was had on the verdict, a release of the damages was executed and filed by Campbell in the clerk's office with the papers of the cause, which caused the court to arrest the judgment. Thus Campbell, by his act, without the consent of Butler, prevented Butler from receiving any portion of the damages recovered. They were equal owners of the steamboat, and consequently entitled to receive equal portions of the damages recovered. The court below, however, seem to have considered Butler and Campbell not as tenants in common of the boat, but as joint owners, and quoad hoc special partners; and therefore no action would lie by the assignee of Butler against Campbell, excepting an action of account render, without a settlement first made between them of all their partnership accounts, and a balance struck in his favor before commencing the suit; and accordingly so instructed the jury. Now in this we think the court erred, for it seems to be settled by a train of decisions, that part owners of a ship are generally considered as tenants in common, and not as joint-tenants. Ex parte Harrison, 2 Rose, 76; Merrill v. Bartlett, Horndike v. De Wolf, 6 Pick. Rep. 46, 120; Nicholl v. Mumford, 4 Johns. Ch. R. 522. This I take to be the clear established rule on the subject, when nothing more appears than that they are part owners of the vessel; yet it may be that a special partnership may exist between them in the ship as well as the cargo in regard to a particular voyage or adventure, and the proceeds arising from the sale of the ship and cargo, and the profits of the adventure. See Nicoll v. Mumford, an appeal, 20 Johns. Rep. 611. Ship owners are analogous also to partners, and liable as such for necessary repairs, and stores ordered by one of themselves for the vessel. Scot...