
2 U.S. 194 (____)
2 Dall. 194
CUPISINO
versus
PEREZ.
Supreme Court of United States.

*195 Heatly, for the Plaintiff.
Moylan, for the defendant.
BY THE COURT:  It is clear that the captain can hypothecate his vessel only in case of necessity  such a necessity as this; that if he did not take up the money, the voyage would be defeated, or at least retarded. This does not appear to have been the case in the present instance. But, in addition to that general rule, it is held, that the captain cannot hypothecate, while there are goods of his own, or of his owner on board. Now if there was no authority to hypothecate the vessel, how can it be pretended that he can make his owners personally liable? Great mischiefs would ensue if the master had such a power. Upon this ground, therefore, the action must fail. Another point, also, is in favor of the defendant; namely, that this very question has been already decided in the Court of Admiralty. Since, then, we think he had no authority to bind the persons of his owners in a foreign port (and in point of fact he does not seem to have done it, as the writing appears to bind only the captain and the vessel) and since the decision of the Admiralty on the merits, is, in our opinion, conclusive, the Plaintiff ought not to recover.
Verdict for the defendant.
