May, 1804.

v.

NEW-YORK tomry, who may advance on bills. Every agent has an implied authority to bind his principal respecting the subJoin Millward, ject matter of his agency. The appointment to the comR. S. Hallet. mand of a vessel is a certificate of confidence by the owner, and equal to a letter of credit respecting his ship. It is enough, if she be in difficulty, to authorize any one to lend. The visible necessity of the vessel is all a lender is bound to look to. If she cannot depart without money, he is warranted in advancing, and is not bound to look to the application, or enquire whether funds be in the master's hands. Mol. B. 2. C. 1. S. 10. Marsh. 639. Abbott. 121. This would be to ask a stranger to doubt the very man, the owner himself has trusted. He holds him up to the world as trust-worthy, and cannot say the reverse. The same principle exists in cases of executors. A man purchasing of them, is not bound to see to the application. Whale v. Booth. 4 D. & E. 625. n. (a.) Though the bankrupt law transfers to the assignees of Yard, the property delivered to the defendant, it is, subject to the lien, for the amount of the exporting duties and freight.

Boyd in reply. If the master can thus bind his owners, the whole of every ship-owner's property will be at the mercy of his captain, and the consequence must be ruinous to

commerce.

Thompson, J. The two questions arising out of this case, and made on the part of the defendant are: 1. Whether James Hussey was a competent witness. 2. Whether the defendant is bound by the contract Hussey made with the plaintiff, and to what extent. I think the master of the vessel was a competent witness. His testimony would tend equally to charge himself on any event: and although, perhaps, he might himself have objected against being exam-ined, yet, as his interest between these parties is equal, the objection against him could, with propriety, be made by neither. The witness was liable to the plaintiff on his bill of exchange which he had drawn on the defendant, which had not been accepted: and, if he had borrowed the money from the plaintiff in capacity of master of the vessel of which the defendant was owner, and had misapplied that money, he would be responsible to the defendant for such misapplication. He was therefore competent, not on the

V.

ground of necessity, but because, as between these parties NEW-YORK, May, 1804. he stood perfectly indifferent on the score of interest, which must exclude every presumption of bias on his mind. With John Millward, respect to the second question, there is no doubt but the R. S. Hallet master of a vessel may make his owners personally responsible for necessary expenditures, relating to the usual employment of the vessel. The master is held up to the world as the agent of the owners. His character and situa tion furnish presumptive evidence of authority from the owners, to act for them in such cases. But in order to make the owners responsible, it is necessary the supplies furnished the master, should be reasonably fit and proper for the occasion; or that the money advanced to him for Abbott, 103. the purchase of them, should at the time appear to be want ing for that purpose; the contrary would furnish a strong presumption of fraud and collusion on the part of the cre ditor. The court, however, I think, ought not to be scrupulously nice in requiring the creditor to shew this necessity, to the full extent of the money advanced. The master is elected and appointed by the owners, and by their appointment of him to a place of trust and confidence, they hold him forth to the public as a person worthy of such trust and 1 Bro. Pa. Ca. confidence. The existence and extent of such necessity were proper questions for the determination of a jury. The master swears, that the money borrowed was for the purpose of paying the necessary expenses of the ship, and the exporting duties of the cargo, the whole of which has been delivered to the defendant, together with a full account of all the transactions. So that if all the money borrowed was not expended for the purposes for which it was loaned, it has been accounted for by the master. There can be no doubt, I think, that the captain had a right to borrow money on the credit of his owner, to pay the necessary expenses of the ship, and the money applied to the payment of the exporting duties, was clearly for the benefit of the defendant; he was interested in the outward cargo, and it is fairly to be presumed he was also, in the return cargo. At any rate the whole of the cargo upon which the exporting duties were paid, has been delivered to the defendant, and upon which he will have a lien for the re-payment of the money against any claim on the part on the assignees of Yard.

L

284.

V.

NEW-YORK, There appears some contradiction between the master and May, 1804. mate as to the extent of the necessity of the expenditures; John Millward, their credibility was, however, a proper subject for the jury, with whose decision I see no reasonable ground for dissatisfaction. I am therefore of opinion that the plaintiff ought to have judgment.

R. S. Hallet.

92. 94 to 97. Abbott. 102, 1 Bro. P. C. 284.

3 Rob. Adm. Rep. 257, 268.

Kent Judge. It will not be requisite for me to examine the first question, because admitting captain Hussey to have been a competent witness, I am of opinion, the plaintiff is not entitled to recover. There was no special authority given to the captain, to bind the owner of the vessel. All the power that he had was derived from his general and ordinary character as master, and in that character, he can only bind the owner of the ship to contracts relative to the Abbott, 83 to usual employment of the ship, and the means requisite for that employment. This power relates only to the carriage of goods, and the supplies requisite for the ship. The master quoad the cargo is limited to the duties, and authorities of safe custody and conveyance, and except in cases of unforeseen necessity, he is a stranger to the cargo, beyond those purposes. The contract in the present case, was not respecting the employment of the ship. It was wholly distinct from it. The payment of the export duties at Port Republican, was made by the master, in the assumed character of agent respecting the cargo, and whe ther well or ill assumed, is perfectly immaterial, as it concerns the owner of the ship. He can only be affected by contracts relative to the master's trust, who is set over the ship, and not over the cargo; and the owner of the ship cannot be bound by any contract of the master concerning the purchase of goods, or the charges attending them. If this had been a contract concerning the destination of the vessel from Port Republican, the time of sailing, or the amount or species of goods she was to carry; or if it related to the repairs of the ship, or the stores and provisions requisite for the voyage, the question would have been very different. But it would be of most dangerous consequence to ship owners, to be held responsible for all the masters contracts, and loans, relative to the goods on board; and it would be unjust on principle, because such contracts are not within the purview of the master's trust. It is very clear in

v.

R. S. Hallet.

Salk. 35.

284.

this case, that the loan of the plaintiff was not requisite, for NEW-YORK, the ship's expenses: the master had funds in hand, more than May, 1804. sufficient for all such purposes. The loan was for the pay- John Millward, ment of the export duties, on the sugar and logwood, and the sugar and logwood were purchased with the proceeds of the outward cargo belonging to Yard, and were delivered on board, for, and on behalf of Yard, and consequently, the property vested in him, and went to his assignees. The delivery of the sugar and logwood to the defendant,on the ship's arrival at New-York, cannot alter the nature and operation of the contract of loan; for the defendant must be responsible to the assignees of Yard, for the amount of that cargo. It was formerly held, that the master of a ship had no credit Johnson v. Shippen. pr. abroad, but upon the security of hypothecation; that he Holt, C. J. 2 could not bind the owners personally, and that the hypothe- L. Ray. 982. cation must have been for necessaries for the ship. But in Abbot. 102. 1 the case of Carey v. White, it was established, after great Bro. Pa. Ca. litigation in the House of Lords, that the owners were liable for money borrowed by the master for necessaries for the ship, but it must appear that the money was wanted for the necessary use of the ship, and this I apprehend is the extent to which the owners liability has hitherto been carried. I do not think that the receipt of the cargo by the defendant, makes any alteration in the case. The cargo did not belong to the plaintiff, and the acceptance of it, cannot, I think, be construed into any affirmance of the loan, because there is no necessary connexion between the cargo, and the loan, and the defendant had a right to receive and. detain the cargo, as a security for the freight, and it was prudent for him to do so, since Yard to whom the cargo belonged, had already become a bankrupt. But there is another fact which completely does away this inference of any affirmation of the loan, and it is a fact direct and unequivocal; and this was, the refusal to accept the bill of exchange. For these reasons, I am for the defendant.

Livingston, J. Two questions are made by this case. 1. Whether Hussey could be examined without a release from the plaintiffs? and 2. Whether his contract was binding on the defendant? Unless masters be admitted as witnesses in cases of this kind it will be extremely difficult to ascertain whether such a necessity existed as would justify their

V.

R. S. Hallet.

NEW-YORK, taking up monies on their owner's account. I will not, howMay, 1804. ever, say that from necessity, this testimony ought to have John Millward, been received; because as the witness had no interest, I see no reason why he should have been excluded. In any event, he stood indifferent between these parties, being liable either to pay the money received, to the plaintiff; or to refund it in another action to the defendant. Thus in 7 D. & E. 481. in notis, it appears that a master who had, as in this case, drawn a bill on his owners, was a witness between the bill holder and his owners, he being liable in Lord Kenyon's opinion to the plaintiffs, on his bill of exchange, and to the owners if the money was borrowed improperly or for himself. As to the damages for which Hussey may be liable on this bill, it does not appear that any are due; and if that be the case, I am not certain that the defendant, if he wrongfully suffered the bill to be protested, is not liable for them. If not, what is to prevent an action on the bill against Hussey, in which he would be entitled to a credit only for the sum recovered in this suit. I think, therefore, he was a competent witness. As to the second point, it is not easy to conceive a case of stronger necessity for making the loan, than is here presented. It was the only way of securing the freight, and most manifestly for the owner's benefit. Yard being a bankrupt, made no difference; for his assignee could not get at this property without discharging the freight and the monies paid for exportation duties. This lien existed against all the world. It is true, the cases generally speak of monies borrowed for repairs and necessaries, but the same reasoning applies here. This was money borrowed for the benefit of the owners, and in relation to the voyage then pursuing, and the whole transaction being in good faith, it would be hard to say the master shall refund it himself. But without deciding this point, it appears that the cargo brought back was received by the defendant, who it is probable was immediately informed of what his captain had done. He must, therefore, for aught that appears to the contrary, have in his hands the very money for which this action is brought, and at any rate the acceptance of the cargo under these circumstances must be regarded as an affirmation of the captain's conduct. The plaintiff is in my opinion entitled to judgment.

END OF MAY TERM.