Moynihan v. Drobaz

VAN DYKE, J. This action is to recover a balance due from defendant Matteo Drobaz on a contract to construct a boiler for the fishing steamer “Golden Gate,” and to enforce a lien on said steamer to satisfy said demand, under the provisions of the Oode of Civil Procedure in reference to actions against steamers, vessels, and boats.

On the trial the court admitted as evidence, over the objection of the plaintiffs, a copy of the register of the vessel “Golden Gate,” for the purpose of showing that the plaintiffs were part owners in the said vessel. The entry in the custom-house books of the registry or transfer of a vessel is not even prima facie evidence as against one not claiming to be an owner, unless such entry be shown to have been made by authority of the person named in it. In Fraser v. Hopkins, 2 Taunt. 5, Lord Mansfield said, in reference to the contention that the entry was evidence against such person: “To suppose the effect of the act to be such as is contended for would he to impute madness to the legislature.” And Hunter, J., said: “Any bystander may put down a name in the register. You must connect the defendant with it.” And Lawrence, J., adds: “Unless you show all this taken down by authority of the person who is to be charged, the register cannot be made evidence even prima facie.” (See, also, Tinkler v. Walpole, 14 East, 226; Hozey v. Buchanan, 16 Pet. 215; Calais etc. Co. v. Van Pelt, 2 Black, 388.) And for like purpose the court also admitted as evidence, over the objection of the plaintiffs, a decree and copies of certain papers in the case of Chandler, as libelant, against the same steamer “Golden Gate,” in the United States district court. In admiralty, where the proceeding is in rem, the libel prays for process—-that is, a warrant of arrest of the thing itself—and a monition to all persons interested to appear upon a certain day and intervene for their interests. The jurisdiction acquired by the seizure of property in such proceeding is to pass upon the question of ownership of such property after opportunity has been afforded to parties to appear and be heard, and the decree in such cases is conclusive upon all such parties. Every person interested in [214]the vessel is warned to come in and assert his interest; necessarily no one can he decreed to he a part owner who has not appeared and asserted part ownership, or other interest. It was clearly error to admit a copy of .said register and copies of said papers in admiralty for the purpose indicated. (Benedict on Admiralty, 410-34; Windsor v. McVeigh, 93 U. S. 274.) But respondent’s counsel say if the court erred either in admitting the ship’s register, or in admitting the judgment in the "United States district court, or in both respects, it is not such error as entitles the plaintiff to a new trial, for the reason, it is claimed, that there is still sufficient independent proof of ownership to warrant the finding in favor of the defendants.