Moore v. Anderson

• Decision Date: 29 May 1856
• Citation: 8 Ind. 17
• Parties: Moore v. Anderson and Another
• Court: Indiana Supreme Court

8 Ind. 17

Moore v. Anderson and Another

Supreme Court of Indiana

May 29, 1856

From the Floyd Circuit Court.

The judgment is affirmed with 5 per cent. damages, costs.

W. T Otto and J. S. Davis, for appellant.

J Collins, for appellees.

OPINION

Davison J.

The appellees, by their partnership name of Anderson and Corn sued Moore on a note for the payment of 150 dollars. The declaration alleges that Moore, on the 22d of August, 1845, made his promissory note whereby, thirty days after date, he promised to pay Owen P. Crow, (by the style of St. Bt. Juda and owners,) or order, one hundred and fifty dollars; that Crow was, then, the sole owner of the steamboat Juda; and that afterwards, on the same day, he indorsed said note to Anderson and Corn. The note is as follows: "$ 150, August 22, 1845. Thirty days after date I promise to pay St. Bt. Juda and owners, or order one hundred and fifty dollars for services rendered St. Bt. Seabird--N. Moore." Pleas, 1. Nil dibet. This plea is verified by Moore's affidavit, which states that the matters alleged in the plea are true; and that affiant has good reason to believe, and does verily believe, that the assignment to Anderson and Corn was not made before the commencement of this suit. 2. That Owen P. Crow was not, as alleged, the sole owner of the steamboat Juda. By consent, the cause was submitted to the Court, who found for the plaintiffs; and over the motion for a new trial, there was judgment. The record contains the evidence. It was proved that the note was executed by Moore; and there was evidence tending to prove that Owen P. Crow indorsed it to the plaintiffs. For the purpose of proving that William C. Anderson and Joseph H. Corn constituted the firm of Anderson and Corn, the plaintiffs proposed to introduce the record of a suit between William H. Anderson and Joseph H. Conn, and the said Nathaniel Moore. The introduction of this evidence was resisted on the ground of a variance between Conn and Corn; but the Court admitted it. We think these surnames are idem sonans, and the variance is, therefore, immaterial. No other objection being raised, the record was properly admitted. Stewart v. State, 4 Blackf. 171. To prove the averment that Owen P. Crow, at the date of the note, and time of the assignment, was the sole owner of the steamboat Juda, the plaintiffs offered the registration or enrollment of that boat, made by the proper officer, at the port of St. Louis, on the 24th of July, 1845, under an act of Congress entitled "an act for the enrollment and licensing of ships and vessels," etc. The enrollment states that John N. Young, having taken the oath required by said act, and having sworn that Owen P. Crow is a citizen of the United States, and the owner of the ship or vessel called the "Juda" of St. Louis, whereof the said Young was then master, who was also a citizen of the United States, and that said ship or vessel was built at St. Louis, in the year 1842, etc.; and sufficient security having been given according to said act, the said steamboat was duly enrolled." This, over the defendant's objection, was admitted. The registration being founded on the oath of the master of the vessel, and not of the owner, is not, as intimated by counsel, objectionable on that account. The master or person having command of the vessel, instead of the owner, is expressly authorized to make such oath. U.S. Statutes at Large, vol. 1, p. 289. The rule governing the admission of such testimony is this: where the right of property in a ship or vessel is directly involved in the suit, the registration itself would be no evidence in favor of one claiming to be the owner; because such registry is not a transaction of which the public officer who makes it, is cognizant, it being nothing more than the owner's own declaration, nor is it sufficient to charge a person as owner, unless proved to have been made with his consent, or had been recognized by him. Where, however, the question of ownership is merely incidental, the registry alone is deemed sufficient prima facie evidence. 1 Greenl. Ev. 494; 1 Phil. Ev. s. 114; 3 Kent's Com. 149, 150. ^[1] If the averment that Crow was the sole owner of the Juda, presented a mere incidental, and not a direct inquiry on the trial, the register was properly admitted. The declaration, it seems to us, would have been sufficient without any...