true it is that it is well known that the captain's real authority, is, to sign bills of lading only for goods that are actually put on board the ship: but, he says, there is an apparent authority to sign all bills of lading without restriction. Try that by the test of a partner's authority to sign bills of exchange for the purpose of the trade. One draws or accepts a bill in fraud of his partner,— what answer does this afford to a bonâ fide holder for value?] The similitude between bills of lading and bills of exchange, is not very perfect: if they were in all respects analogous, the argument on the other side would be much more formidable. But there is a manifest distinction between cases of contract and tort: the indorsement of a bill of exchange transfers the contract; not so the indorsement of a bill of lading; the contract between the shipper and the owner remains unassignable. In Story on Agency, § 119., it is said the master is ordinarily intrusted with the authority, "in cases of a general ship, of receiving goods on board on freight, and of signing bills of lading for the same." Most of the authorities are collected in the case of Wilde v. Gibson (a), where the House of Lords resolved, amongst other points, that, to set aside a purchase, perfected by conveyance and payment of the purchase-money, for fraudulent concealment by the vendor of a defect in the title, where there was no warranty or statement that there was no defect, proof of concealment by the vendor's agent is not sufficient, there must be proof of direct personal knowledge and concealment by the principal. Lord Campbell, in the course of the argument of that case, observes (b): "In an action upon contract, the representation of an agent is the representation of the principal; but, in an action on the case, for deceit, the misrepresentation or
(a) 1 House of Lords Cases,
(b) 1 House of Lords Cases,
concealment must be proved against the principal." And
in giving his judgment, his lordship further enlarges upon
that distinction. (a) Howard v. Tucker (b) is distin-
guishable 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.
[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 with-
out 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 jus-
tified 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 Cases,
(b) 1 B. & Ad. 712.
(c) Antè, Vol. VII. p. 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.
(g) 11 M. & W. 401.
(h) 5 Q. B. 804. 820., Dav.
& Meriv. 72. 669.
(i) Vol. II. pp. 70-71 b. (k) 6 M. & G. 827., 7 Scott, 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,
the son.
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, 1. 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 con-
sequences 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 dis-
tinct 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 (b) and Begbie
(a) 6 M. & G. 849., 7 Scott, (b) Holt, N. P. C. 405. N. R. 680.
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
(b) 1 East, 106.
(c) 4 B. & Ald. 590.
(d) 5 Exch. 343.
(e) 5 Erch. 354.
(f) 4th edit. p. 116.
(g) Page 118.
whom a 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 mis-
takenly, 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 incon-
sistent with Lord Holt's doctrine in Boulton v. Arls-
den (a), and with that of Parke, B., in Cornfoot v.
Fowke. (b) 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 naviga-
tion 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, nor even in such case beyond
10l.
1. 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.
(b) 6 M. & W. 358.
(c) 8 T. R. 531.
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