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London: Stevens & Sons; H. Sweet; and W. Maxwell. ROSCOE'S CRIMINAL EVIDENCE.-Sixth Edition. ROSCOE'S DIGEST of the LAW of EVIDENCE in CRIMINAL CASES. Sixth Edition, with considerable Additions. By DAVID POWER, Esq., Q. C. Stevens & Sons; H. Sweet; and W. Maxwell, Law Publishers, London. Sept. 15087 THE JURIST. THE JURIST. LONDON, SEPTEMBER 1, 1866. master, for a voyage from the port of Liverpool to Hobson's Bay, Port Philip, and the plaintiff claimed damages for the non-delivery, pursuant to the terms of the bill of lading, of goods shipped on board the vessel for that voyage. The bill of lading had been THERE could be no doubt, that in the ordinary case signed by the master (Kavanagh) in his own name, of principal and agent, that where the contract having and the defence pleaded to the declaration which set been made by the agent in his own name, he is sued out the bill of lading, and alleged performance of conupon it, and judgment recovered against him, no ac-ditions by the company, and assigned as a breach by tion for the same cause of action could be afterwards the defendants, the owners of the vessel, the nonmaintained against the principal. And, indeed, where delivery of the goods, was, that the plaintiff had, as the principal is known, much less than suing the agent secretary for the said company and in its behalf, sued to judgment would prevent the party claiming under Kavanagh as having been the master, and having the contract against him from maintaining an action signed the bill of lading in the Supreme Court at MelIf, for instance, he had, know- bourne, for the same identical causes of action, and against the principal. ing the principal, by any deliberate act clearly elected recovered judgment in that court against him, and to credit the agent, in such a case it would be conclu- then had, in the same capacity, brought an action on sive against his having any further claim against the such judgment in the Court of Exchequer at Westprincipal; and this would be on the old rule of law, minster, and recovered judgment against him for 2887. explained by Crompton, J., in Ward v. Day (4 B. & S. 10s. 10d., and costs, and taken him in execution on a 352), "Quod semel placuit in electionibus amplius dis- ca. sa. under such judgment. To this the plaintiff replicere non potest;" that is, if a man, having an op- plied, that whilst Kavanagh was a prisoner under the tion, by some solemn act, declared his determination, said writ of ca. sa., he became bankrupt, and was disand elected, he cannot afterwards recede from it; and charged from the judgments, and that the same rethe reason of this is, that the other party may have mained wholly unsatisfied, and that the plaintiff had been led by this expression communicated to him to not at any time before the recovery of the said judgalter his position. On the general rule of law just ment in the said Court of Exchequer, or before the referred to, an exception has been said, by Mr. Justice said Kavanagh obtained his order of discharge under Story, in his work on agency, to exist in the case of the said bankruptcy, any notice or knowledge that the masters and owners of ships. And this doctrine of an said bill of lading and contract was made by the deexception in the case of shipowners and masters of fendants, or any of them. The plaintiff also demurred ships has recently been brought to the notice of the to the plea. The defendant rejoined, that after KaCourt of Exchequer in the case of Priestly v. Fernie (3 vanagh became bankrupt, as in the replication menIn respect of the judgment recovered in the Court of H. & C. 984), and has there, after a full consideration tioned, the plaintiff proved under the bankruptcy in of the whole matter, been held to be erroneous. Story on Agency, § 295, p. 397, 4th ed., it is said, Exchequer for the amount due upon the judgment. "There seems, however, to be one peculiarity in the For a fuller account of the pleadings we must refer Roman Law on this subject; and this, while it gives a to the report at length, which sets out all that is maright to proceed against the owner or employer, as terial. The Court held that the action against the well as against the master, of the ship for the amount owner was not maintainable. The judgment of the of the repairs and supplies furnished for the ship, and Court was delivered by Baron Bramwell, who, after for other contracts made by him within the scope of his stating the ordinary rule, said-" But it is said that employment, yet if the creditor elects to proceed in a the liability of the master of a vessel acting for his suit against either of them, he thereby discharges the owners, and their liability where he acts for them, is other: Est autem nobis electio, utrum exercitorem different from the liabilities in ordinary cases of prinau magistrum convenire velimus. Hæc actio ex per- cipal and agent, and that first one and then the other Et ideo si cum may be sued. The plaintiff's argument, then, viz. that sonâ magestri in exercitorem dabitur. utro eorum actum est cum altero agi non potest.' the present case is anomalous, is exceptional. When Our law, on the other hand, while it gives election that is contended, strong reasons ought to be given to the creditor to sue either the master or the owner for it." in a distinct and separate action, does not preclude the creditor, by such election, from maintaining another action against the party not sued, unless in the first action he has obtained a complete satisfaction of the claim." This point has now been directly raised in the case in the Exchequer, where the master having been sued to judgment without any actual satisfaction of the claim having been obtained, the owners were sought to be made liable in a second action. In Priestly v. Fernie, the action was brought by the secretary of the Melbourne Gas Company, on its behalf, against the owners of a vessel called The Queen of Commerce, of which D. Kavanagh had been the Then, after an examination of the reasons for the exceptional doctrine contended for, the judgment concludes as follows:-" The case, then, must rest, not on principle, but on authority, and that authority is limited to a passage in Story on Agency. It is remarkable that he is of opinion that there was, by the Roman law, an option to sue either, but not both. If doubly anomalous. He gives no reason for it, but so, what he lays down is peculiar to 'our law,' and cites 2 Livermore on Agency, 267. He (Story) says the second action may be maintained, unless in the first action he has obtained complete satisfaction of his claim.' On reference, however, to Livermore, we say it with great respect, he really says nothing in support of such a proposition. What he says is, masters of merchant vessels are personally answerable upon the contracts made by them in relation to the employment of the ship, to repairs, or to supplies furnished for the ship's use; 'for the law gives to the merchant who contracts with the master a twofold remedy, against the owner and against the master.' For this he cites Rich v. Coe (2 Cowp. 636; Story on Agency, § 290), which, though a very questionable decision, justifies Livermore's proposition, but not Story's. It only decides that the owners are liable upon an order by the master for necessaries, though without their authority. It is true, Lord Mansfield says, the master, the owners, and the ship are trusted, but he says nothing to support what is contended for. markable Story does not cite this authority so cited by Livermore. Melius est petere fontes quam sectari rivulos. It is re “Then, really, there is no authority for this conten tion, while there is much the other way, in the silence of all other writers on the subject. It is not suggested in Abb. Ship. 91; nor in Kent's Commentaries (see 3 Kent, 161); nor in Maude & Pollock on Shipping, p. 102; nor in Maclachlan, p. 128; nor in Parsons on Maritime Law, vol. 1, p. 378. There is one powerful consideration the other way, viz. if the master contracts under seal, no action lies on the contract against the owners. Why? If the master makes two contracts, one for himself and one for his owners, why should his contract being under seal prevent the owners being sued on that which the master has made for them? Nothing. But if he makes one contract only, as in ordinary cases where the agent contracts in 1 his own name, which a merchant may say binds him, because made in his name, or binds his owners because made for them, then the decisions are intelligible, and the expression is correct; the owners are not liable because of a technical rule, that a contract under seal cannot bind a person not executing, and not giving authority under seal for its making. (See Abb. Ship. 169, ed. 1856). Leslie v. Wilson (3 Ball & B. 171) is not opposed to this. Therefore, we give judgment for the defendant." The above-mentioned decision of the Court of Exchequer will be read with interest both in England and America, inasmuch as it relates to a question of maritime law, "which is not the law of a particular country," and controverts the opinion of an eminent jurist, whose services in aid of that science which he knowledged in this country as well as in his own. made his principal study, are universally felt and ac JUDICIAL STATISTICS FOR 1865.-ENGLAND AND WALES. (Continued from p. 340). In addition to the above, there were fifty-seven causes entered for trial on circuit in the Common Durham; and eight issues from the Court of Probate, Pleas of Lancaster; four in the Common Pleas of all of which were tried, with the exception of twenty from the Common Pleas of Lancaster, and one from the Common Pleas of Durham, which were withdrawn or struck out. all those entered for trial at Nisi Prius on circuit is shewn under the following classification in the returns furnished respectively by the associates and by the clerks of assize and clerks of the Crown: The nature of the suits tried at Westminster and of West- Nisi West- Nisi West- Nisi West- Nisi minster. Prius. minster. Prius. minster. Prius. minster. Prius. 176 122 55 32 20 12 2 5 41 75 9 40 48 80 11 25 21 |