1840.

ARTHUR

v.

BARTON.

manning the ship, is left wholly to the management of Exch. of Pleas, the master in places where the owners do not reside, and have no established agent:" and that "his character and situation furnish presumptive evidence of authority from the owners to act for them in these cases." Robinson v. Lyall (a) appears to be a direct authority in favour of the plaintiff. That was an action against a shipowner in London, to recover a sum of money furnished to the master at Portsmouth, on the return of the vessel from a foreign voyage, in order to pay seamen's wages, and other debts contracted by the master at that place for necessaries for the use of the ship, some of which were contracted on the outward voyage. Holroyd, J., at the trial, nonsuited the plaintiff, on the ground that the master could not bind the owner, even for necessaries, in England; but the Court set aside the nonsuit, holding the owner liable for all such money as had been advanced necessarily; and directed the verdict to be entered for the plaintiff for such sum as should be awarded to be due for seamen's wages, in respect of which alone a supply of money was necessary for the then present use of the vessel. Here, also, some of the payments made by the master must necessarily be made in ready money— for instance, the charge for a pilot, and the payments for clearing out the vessel. And it was more for the benefit of the owner that he should be the debtor of the plaintiffs for one single sum, than of many persons for different small amounts, for articles obtained on credit.-They cited also Rocher v. Busher (b), and Palmer v. Gooch (c).

Jervis and Cowling, in support of the rule.-The master had no authority by law to pledge the credit of his owner for this money. The advance of money is very different from the supply of goods, or the doing of repairs to the ship. The master does not represent the owner to the (b) 2 Stark. Rep. 27. (c) 2 Stark. Rep. 428.

(a) 7 Price, 592.

Exch. of Pleas, full extent of his authority, but only so far as is necessary

1840.

ARTHUR

v.

BARTON.

for the prosecution of the voyage; and for that purpose, in an English port, it is not necessary that he should have authority to borrow money. Abroad, he can only borrow money where he can pledge the security of the ship. The owner cannot know that the money, when obtained, will be properly applied; in the case of repairs, the party who does them sees that they are necessary to be done. Robinson v. Lyall, which is the only case cited of an advance of money in an English port, is very shortly reported, and there is no statement of the judgment of the Court; but admitting its authority, it is distinguishable from the present case, because there the money, in respect of which only the verdict was ultimately entered, was advanced to pay seamen's wages, without the payment of which the ship could not leave the port, inasmuch as the crew would have a lien upon her for their wages. Suppose the owner of a vessel in England had an agent within two days' post of New York, could the master, even there, pledge the credit of the owner in England for money borrowed? [Alderson, B.-The master has no authority even to get credit for repairs, if the owner is at hand; but if money be indispensable for the prosecution of the voyage, where is the difference in principle between the two cases?] If the necessity be proved, the defendant is no doubt liable; but the argument is, that in an English port, where the master and the owner may readily communicate together, there can be no necessity for the borrowing of money, in order to proceed on the voyage; whereas abroad, from the nature of the case, that necessity does exist.

Cur. adv. vult.

The judgment of the Court was afterwards delivered by

Lord ABINGER, C. B.-In this case we are of opinion that the rule must be discharged. The point reserved by

1840.

ARTHUR

the learned Judge was, whether the master of a coasting Exch. of Pleas, vessel could, by a contract made in England, bind his owner, who also resided in this kingdom, the contract being for a loan of money for the necessary use of the ship. Here the owner resided in North Wales; the contract was made in the county of Glamorgan.

We think this was a question of fact, and was properly left to the jury by the learned Judge.

Under the general authority which the master of a ship has, he may make contracts, and do all things necessary for the due and proper prosecution of the voyage in which the ship is engaged. But this authority does not usually extend to cases where the owner can himself personally interfere, as in the home port, or in a port in which he has beforehand appointed an agent, who can personally interfere to do the thing required. Therefore, if the owner, or his general agent, be at the port, or so near to it as to be reasonably expected to interfere personally, the master cannot, unless specially authorized, or unless there be some usual custom of trade warranting it, pledge the owner's credit at all, but must leave it to him, or to his agent, to do what is necessary.

But if the vessel be in a foreign port, where the owner has no agent-or if in an English port, but at a distance from the owner's residence, and provisions or other things require to be provided promptly, then the occasion authorizes the master to pledge the credit of the owner.

But then the further question arises, for what things he may pledge that credit? This also is limited, either to such things as are necessary, or (as Lord Tenterden, in his book on Shipping, page 116, and Mr. Justice Story, in his valuable book on Agency, section 122, very clearly lay it down) to such things as are reasonably fit and proper for the ship, or for the voyage, under the circumstances of the

case.

But if repairs are needed, it is admitted he may pledge

v.

BARTON.

1840.

ARTHUR

V.

BARTON.

Exch. of Pleas, the owner's credit for them. But repairs are only instances of the above rule. If therefore money be necessary, it may be raised upon credit. In the case cited, of Robinson v. Lyall, this was done. There, without money the wages of the seamen could not be paid, and unless they were paid, the seamen might have refused to assist in the further navigation of the ship. The Court therefore held, that the master could pledge the owner's credit for money to that extent. So also, it may in some cases be necessary to pay harbour-dues, or pilotage, or the like, and to pay them in ready money; and if that be the case, and the prosecution of the voyage cannot take place till they are discharged, then also a necessity for having money in specie may arise; and if so, the master would be authorized, under this general power of doing all things necessary for the due prosecution of the voyage, to procure money by loan, and to bind the owner by a contract for that purpose. It is not doubted that in a foreign port, where the owner has no agent, this may be done: Evans v. Williams (a); Abbott on Shipping, page 117; and we think that all these questions are referable to one general principle, although, when it is applied to a case like the present, it will require stronger circumstances to establish the fact of the necessity, upon which the liability of the owner must depend.

In the present case, the learned Judge left the question to the jury, and they have found for the plaintiff. There was clearly evidence on which they might reasonably act; and as the verdict is under £20, we should not, even if we doubted as to the propriety of their conclusion, interfere to grant a new trial. The rule, therefore, must be discharged.

(a) 7 T. R. 481, n.

Rule discharged.

Exch. of Pleas, 1840.

MORSE V. APPERLEY.

THIS was an action of trespass for breaking and entering the plaintiff's close. The defendant pleaded, 1st, not guilty; 2ndly, that the plaintiff was not possessed of the close in the declaration mentioned; 3rdly, that the defendant was seised in fee of the close in which, &c.; 4thly, that A. B. was seised in fee of the close in which, &c., and that the defendant as his servant, and by his command, committed the trespass complained of. The plaintiff had obtained a summons, calling on the defendant to shew cause before a Judge at chambers, why the third and fourth pleas should not be struck out, as being in contravention of the "General Rules and Regulations" of H. T., 4 Will. 4, s. 6. Gurney, B., before whom the summons was attended, refused to make any order, whereupon Gray applied to this Court for a rule to shew cause why the second plea, or the third and fourth pleas, should not be struck out, as being founded on "the same ground of answer or defence," within the meaning of the above rule.

W. H. Watson shewed cause.—The Court has no jurisdiction over the subject-matter of this application. If more than one plea is used, in violation of the rule of Court, the party is at liberty to apply to a Judge at chambers, but if he refuses to interfere, the rule gives no appeal to the Court. [Alderson, B.-My Brother Gurney having refused to make any order, I do not see how this Court can interfere. When a Judge makes an erroneous order, then you may appeal to the Court; but here he makes no order. The Court has

not the same power in this respect as the Judge has; for

In trespass qu.

cl. fr., the de

fendant plead

guilty; 2ndly,

that the plaintiff

was not possess

ed; 3rdly, that

defendant was

seised in fee; 4thly, that A. B.

was seised in fee, and that the defendant,

by his com

mand, com

mitted the trespass complained of, &c. A summons having been taken out to strike out the pleas, the Judge

3rd and 4th

refused to make

any order, application for

whereupon an

Will. 4, s.6.

Quære, whether such an appeal lies to the Court, where

the Judge at

chambers has refused to make

example, if parties come before me at chambers upon an application like the present, and in answer to my inquiry any order. whether the defendant intends to make two separate

VOL. VI.

L

M. W.