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concealment must be proved against the principal.” And in giving his judgment, his lordship further enlarges upon that distinction. (a) Howard v. Tucker (6) is distinguishable from this case. There, the captain received the goods, and signed a bill of lading purporting that freight had been paid in Bengal,—which he clearly had authority to do. That being so, it was not competent to the owner to detain the goods, as against the assignee of the bill of lading, for freight. [Cresswell, J. Had the captain authority to give a bill of lading acknowledging that freight had been paid, when in fact it had not ? Jervis, C. J. The case of Howard v. Tucker does not seem to have undergone much discussion.] In Ewbank v. Nutting (c), the goods were sold by the captain without necessity: there could be no doubt, therefore, that the owner was liable. The extent of the liability of the principal for the acts of his agent, is much discussed in Cornfoot v. Fowke (d), Fuller v. Wilson (e), Moens v. Heyworth (f), Taylor v. Ashton (g), and Evans v. Collins (h), all of which cases are commented upon in the notes to Pasley v. Freeman, in Smith's Leading Cases. (i) In Jarmain v. Hooper (k), in trespass quare domum fregit against the sheriff and A., the sheriff justified under a fi. fa. issued against the goods of the plaintiff by A.: to this plea the plaintiff replied, that the fi. fa. did not issue against the goods of the plaintiff. It appeared that A. had obtained judgment against Joseph Jarmain, who was the son of the plaintiff, and thereupon issued a fi. fa. against Joseph Jarmain, with
(a) 1 House of Lords Cuses,
(6) 1 B. 8. Ad. 712.
797. (d) 6 M. & W.358.
(e) 3 Q. B. 58. 1009., 2 Gale & D. 460., 3 Gale & D. 570,
(f) 10 M. & W. 147.
(h) 5 Q. B. 804. 820., Dav. & Meriv. 72. 669.
(i) Vol. II. pp. 70–71 b.
(k) 6 M. & G. 827., 7 Scolt, N. R. 663.
out any further description, under which the goods of Joseph Jarmain the elder were taken: and it was held, that the writ afforded no justification to the sheriff; and that A. was also liable in trespass, notwithstanding he was not proved to have in any way interfered, beyond giving instructions to the attorney to sue Joseph Jarmain,
In giving the judgment of the court in that case, Tindal, C. J., says (a): “As to the defendant Heenan, the only question in his case is, whether he is bound by the act of his attorney, in giving the directions to the sheriff to take the goods of the plaintiff. That the plaintiff in the original action is liable in trespass, if the sheriff by his own order takes the goods of a stranger in execution, is clear law,-2 Roll. Abr. 553, l. 5, 10. And it appears to us that the direction given by the attorney is a direction given by an agent within the scope of his authority, and binds the principal. The attorney has the general conduct of the cause ; he is the only person with whom the sheriff has communication: and, in taking a step essentially necessary for the benefit of the client, that is, for the obtaining the fruit of his judgment, we think he cannot be held to have acted beyond his authority, though he has miscarried in its execution. And, when it is argued that he cannot be his agent in giving false information, the answer is, that, if his agent to do the particular act, the client must stand to the consequences if he acts inadvertently or ignorantly.” Here, however, the captain was not acting within the scope of his authority in signing bills of lading for goods which he had never received: the act done by him was as distinct from his authority as if he had committed an assault or any other crime. That the consignee could acquire no property in the goods under a bill of lading so signed, is clear from the cases of Osey v. Gardner (6) and Begbie
() 6 M. & G. 849., 7 Scott, N. R. 680.
(6) Holt, N. P. C. 405.
v. Clarke. (a) The transaction was there treated as a mere fraud. In no case is the master or the principal responsible for the act of his servant or agent, where the act done is not done fairly within the scope of the authority conferred upon him: M‘Manus v. Crickett (b); Croft v. Alison (c); Hutchinson v. The York, Newcastle, and Berwick Railway Company (d); Wigmore v. Jay. (e) With respect to the suggestion that the owner, who appoints the captain, thereby places him in a position to impose upon the world, -the obvious answer is, that he appoints him in the expectation that he will do his duty, and nothing else.
Crowder, in reply. The master of a ship is especially classed amongst those who are said to be general agents : his authority is not limited; and, from the very nature of his duties, he must often act upon his own discretion. In Smith's Mercantile Law, in treating of the authority of an agent to bind his principal to third persons, the learned author says (f): “In solving all questions on this subject, the general rule is, that the extent of the agent's authority is (as between his principal and third parties) to be measured by the extent of his usual employment; for, he who accredits another by employing him, must abide by the effects of that credit, and will be bound by contracts made with innocent third persons, in the seeming course of that employment, and on the faith of that credit, whether the employer intended to authorise them or not; since, where one of two innocent persons must suffer by the fraud of a third, he who enabled that third person to commit the fraud should be the sufferer.” Again (g),—“A general agent is a person
(a) Cooke & Alcock, 150.
(6) 1 Eust, 106.
(d) 5 Erch. 343.
man puts in his place to transact all his business of a particular kind: thus, a man usually retains a factor to buy and sell all goods, and a broker to negotiate all contracts of a certain description, an attorney to transact all his legal business, a master to perform all things relating to the usual employment of his ship, and so in other instances.” It is difficult to conceive a man acting more apparently within the scope of his authority, than a master in giving bills of lading. It is true, his real authority and duty are, to sign bills of lading only upon receiving the goods: but he is still acting within the scope of his authority, if he, whether fraudulently or mistakenly, signs bills of lading before the goods are sent on board. Lord Campbell's dictum in Wilde v. Gibson, as a general proposition, is not accurate: it is inconsistent with Lord Holt's doctrine in Boulton v. Arlsden (a), and with that of Parke, B., in Cornfoot v. Fowke. (6) There are many cases where the principal is responsible for the misconduct of his agent. Thus, in Ellis v. Turner (c), the owners of vessels on the navigation between Hull and Gainsborough had given public notice that they would not be answerable for losses in any case, except the loss were occasioned by the want of care in the master, even in such case beyond 101. per cent. unless extra freight were paid. The master of one of the ships took on board the plaintiff's goods, to be carried from Hull to Stockwith (an intermediate place between Hull and Gainsborough), and delivered at Stockwith. The vessel passed by Stockwith without delivering the plaintiff's goods there, and sunk before her arrival at Gainsborough, without any want of care in the master: and it was held, that the owner of the vessel was responsible to the plaintiff for the whole loss,
(a) 3 Salk. 234., 1 Lord Raym, 224.
(6) 6 M. & W. 358.
in an action on the contract. Lord Kenyon said: “ Perhaps, as between the defendants and their servant, the master of the vessel, this was misconduct in the latter; but, as between the defendants and third persons, the former are answerable upon their contract. The maxim applies here, respondeat superior." So here, as between the master and the owners, the former may have been guilty of a breach of duty; but still they are responsible to innocent third parties. After stating the facts of that case, his lordship proceeds: “ As the vessel reached Stockwith in safety, and might have delivered the plaintiff's goods there, I think that this action may be maintained; for, though the loss happened in consequence of the misconduct of the defendants' servant, the superiors (the defendants) are answerable for it in this action. The defendants are responsible for the acts of their servant in those things that respect his duty under them, though they are not answerable for his misconduct in those things that do not respect his duty to them; as, if he were to commit an assault upon a third person in the course of his voyage.” Jarmain v. Hooper (a) is also a distinct authority in favour of the liability of the principal for the act, though not strictly authorised, of the agent. Osey v. Gardner (b) and Begbie v. Clarke (c) have no application whatever to the present case.
Cur. adv. vult.
Jervis, C. J., now delivered the judgment of the court.
This case was argued before my brothers Cresswell and Williams and myself. It arises upon a special verdict, and presents a question of considerable import
(a) 6 M. & G. 827., 7 Scott, N. R. 663.
(6) Holt, N. P. C. 405.