Average

shipowners, and the point has been incidentally

Agreements. noticed, it is remarkable, that it has never yet been fully discussed, in any of our Courts.

Lien for Ge

In one case, in the High Court of Chancery"", neral Average. the ship Ocean returned to this country, from Buenos Ayres, having met with tempestuous weather, it became necessary, for the safety of the ship, to lighten her, by throwing part of the cargo overboard, and accordingly a quantity of bark, the property of the plaintiff, was, with other goods belonging to other persons, thrown overboard. The plaintiff moved for an injunction, to restrain the master and shipowner from delivering any part of the cargo, and receiving the freight, or parting with any share of the ship, insisting on a lien for contribution, which the Court refused to order; and Lord Chancellor Eldon stated, "It seems to me also, as well as I recollect the text law upon this subject, that in such case there is a lien upon the goods of each freighter for contribution and average in some sense: that is, the master is not bound to part with any of the cargo, until he has security from each, for his proportion of the loss; but there is no authority, that on the ground, that he has a lien to the extent of entitling him to call on every person, to give security for the amount of their average, when it shall be adjusted, every owner of a part of the cargo can compel the captain to do so." And he also held that the (1) Hallett v. Bousfield, 18 Vesey, 187.

mode of adjustment, was not confined by usage Average to arbitration.

Agreements.

In an action" by the plaintiffs as surviving Lien for Geowners of the brig Solon, against the defendant, neral Average. as consignee at Liverpool, of goods shipped on board her at Demerara, upon a voyage from thence to Liverpool, for general average, where the consignee (who was not the owner) of the goods, received them in pursuance of a bill of lading, for delivery, to the consignee by name, or to his assigns, "paying freight for the same with primage and average accustomed," but general average not being mentioned in it, the Court decided that he was not liable in an action on an implied promise, as consignee, for general average; and Lord Tenterden, C. J. stated, "There can be no doubt, that if a person receives goods in pursuance of a bill of lading, in which it is expressed, that the goods are to be delivered to him, he paying freight, he by implication. engages to pay freight, and so he would to pay general average, if that were mentioned in the bill of lading. But here general average is not so mentioned."

"It is true that the master has a lien on the goods for general average, and if he had exercised that right, and informed the defendant, that if he took the goods he must pay the general average, and the defendant after such notice had taken the goods, there would then have been an

(1) Scaife & others v. Sir John Tobin, Knt. 3 Barn. & Adol. 523.

Average

Agreements.

neral Average.

implied if not express contract on his part to pay it ;" and per Parke, J. "The shipowner is not Lien for Ge- without his remedy in such a case, for to prevent the inconvenience of resorting to the consignor, he may insert in the bill of lading, an express clause, that the goods shall be delivered to the consignee, he paying general average; or he may insist on his right of lien, and refuse to deliver, unless the consignee pays or agrees to pay it. Then on what ground is a contract to be implied? The shipowner's parting with his lien on the goods, may be a good consideration for an express promise by the consignee to pay general average, but does not raise any implied contract to pay it, even though the consignee has notice that a general average has been incurred. The cases in which a mere consignee not the owner of goods, has been held liable to freight or demurrage, proceed on the ground, that his acceptance of the goods in pursuance of a bill of lading, whereby the shipper has expressly made the payment of freight or demurrage a condition precedent to their delivery, is evidence of a contract by the consignee, to pay such demand."

Of course, after the opinions pronounced by judges, so talented and distinguished, and also so perfectly conversant with the law merchant, as those just named, the owners or consignees of goods, will not be very likely to contest the shipowners' or master's right of lien, for general

Agreements.

Lien for Ge

neral Average.

average; but the goods may be perishable or Average
partially injured, or the market may be in a
tickle or peculiar state, and it may be very im-
portant, to obtain the immediate delivery, without
waiting for the getting in, and paying the accounts
and disbursements, and for the adjustment of the
general average, which may be a work of time.
If the owner or consignee want the goods im-
mediately, it is still a matter of doubt, what kind
of security the shipowner may require before the de-
livery: Lord Chancellor Eldon, in the case before
cited, merely says generally, that the master is not
bound to part with any of the cargo, until he has
security from each, for his proportion of the loss.
The security might be given, by a formal bond
or agreement duly stamped with a surety, by a
deposit of money in some approved third person's
hands, by pledging a part of the goods with the
shipowner or master, by warehousing it in one
of their names, or by various other modes; and
it is much to be regretted, that it has never yet
been decided, what is the exact nature, of the
security, which ought to be given or tendered,
especially in those cases, where in consequence
of the adjustments of general averages being in-
complete, some time may elapse, before the pro-
portions of each can be ascertained.

Powers of

Attorney.

To transfer American Stock.

Stamp Duty.

CAP. VIII.

POWERS OF ATTORNEY.-DECLARATIONS SUBSTITUTED
FOR OATHS.-NOTARIAL ATTESTATIONS.-CERTIFI-
CATES. REGISTRATIONS, &c.

THERE are various kinds of powers or letters of
attorney, which when executed, require to be
authenticated by a notary. A power of attorney
for the transfer of American stock in the banks,
&c. of the United States, requires to be executed
by the party, in the presence of two witnesses,
before and attested under a notary's hand and
seal, and at the end of it, is a further certificate of
attestation under the hands of two other nota-
ries, testifying that the former is a notary. These
powers of attorney are generally executed with
blanks, left for the name of the agent empowered
to act for the party.

To save repetition, it may be here remarked, that in the instance of such a certificate as that just mentioned, or others of a similar nature, where a deed, power of attorney, or other document, is duly impressed with a stamp, at least equal in amount to the stamp duty imposed upon a notarial act, any certificate or attestation by a notary, for the mere purpose of authenticating such deed, power, or document, and subjoined to it, is ge

(1) The latter Certificate of Attestation, is occasionally under the hands of two Merchants, or Inhabitants residing at the place, which is said to be sufficient, in lieu of the two Notaries.