receives a sum of money, which is to be paid in one event to the vendor, that is, *provided the purchase is completed; and in the other, if it [*154] is not completed, to the vendee: he holds the money in the meantime, as stakeholder, and he is bound to keep it, and pay it over, upon either of these events, immediately.(g)

194. An auctioneer may or may not be agent for both parties; if he is so, this must result from the facts of the particular case,(h) and is not a necessary, though it is a primâ facie inference from the character in which he acts. An auctioneer's clerk was held to be so, who entered in the salebook the names of the highest bidders at an auction, with their acquiescence.(i) And an auctioneer may bind the highest bidder at an auction, by signing his name in the catalogue to which the conditions of sale are annexed;(k) though this, it was held, would not suffice to take the case out of the statute, in an action against the vendee by the auctioneer, on the ground that one of the contracting parties cannot be the agent of the other for the purpose of signing.(1) If an *auctioneer sell property, with [*155] notice that it does not belong to his principal, he will be personally liable for the produce of the sale.(m)

195. It is not intended to consider generally the law respecting the liability of carriers; but we may observe that a carrier receiving goods impliedly and primâ facie undertakes to carry them to the party whose address is upon them; that the fact of their coming to him through a series of agents does not prevent his being liable to the sender; and that he cannot, in such a case, throw back the liability upon the earliest agent.(n) The undertaking of the keeper of a booking-office, on the other hand, is to deliver to the carrier or at the proper coach-office, and, by such delivery, he is discharged from liability.(0) The declaration against common carriers may be framed either in tort on the custom of the realm, in which case a verdict may of course be found against one defendant only, or in assumpsit on the promise, which the law implies from the nature of the contract ;(p) and, in which latter case, the non-joinder of a co-defendant is now no ground for pleading in abatement.(g)

196. The shipper and owner of goods is (in absence of any special cus

Willcock, Id. 382, n. (a); Duncan v. Cafe, 2 M. & W. 244;* Harrington v. Hoggart, 1 B. & Ad. 577.z

(g) Per Parke, J., Harrington v. Hogart, 1 B. & Ad. 588, 589. See Fitt v. Cassanet, 5 Scott, N. R. 902.

(h) Bartlett v. Burnell, 4 A. & E. 792; Mesnard v. Aldridge, 3 Esp. 271. See Hinde v. Whitehouse, 7 East, 558; Emerson v. Heelis, 2 Taunt. 38; Simon v. Motivos, 3 Burr. 1921.

(i) Bird v. Boulter, 4 B. & Ad. 443. See Gosbell v. Archer, 2 A. & E. 500; Graham v. Musson, 5 Bing. N. C. 603; recognized, Graham v. Fretwell, 4 Scott, N. R. 25.

(k) Kenworthy v. Schofield, 2 B. & C. 945; per Rolfe, B., Eden v. Blake, 13 M. &. W. 619.

(1) Wright v. Dannah, 2 Camp. 203; Farebrother v. Simmons, 5 B. & Ad. 333,f cited per Maule, J., Wethered v. Calcutt, 5 Scott, N. R. 416; but see Bird v. Boulter, 4 B & Ad. 447, 448; Rayner v Linthorne, R. & M. 325. (m) Hardacre v. Stewart, 5 Esp. 103. (n) Syms v. Chaplain, 5 A. & E. 642; Muschamp v. Lancaster and Preston Railway Company, 8 M. & W. 428, 429. (0) Ib.; Gilbart v. Dale, 5 A. & F. 543,h (p) 1 Selw. N. P. 10th ed. 409, 410; Pozzi v. Shipton, 8 A. & E. 963;i judgment, Boorman v. Brown, 3 Q. B. 525; S. C. 11 Cla. & Fin. 1. (9) 11 Geo. 4 and 1 Will. 4, c. 68, s. 5.

Eng. Com. Law Reps. 20. sId. 24. bid. 31.

See Pozzi v. Shipton, 8 A. & E. 963.i

tom to the contrary) the party to be sued for their carriage or freight, for by him the contract to pay is by law implied; and this implication

arises quite independently of any charter-party or bill of lading,' [*156]

which is only evidence of the express contract. (r) Even where the bill of lading stipulates that the goods are to be delivered by the ship-owner to the consignee or his assigns, he or they paying a certain specified sum for freight, and without any reference to a charter-party, no promise to pay freight will be implied by law from the receipt of the goods by virtue of the bill of lading, although such receipt will be evidence from which a jury may infer a contract to pay in the absence of an express disclaimer of liability. Such a contract may likewise be inferred from former dealings between the parties. But there is no authority for saying that, under the above or similar circumstances, there is a contract raised by law to pay the freight, which another, viz., the consignor, has contracted with the shipowner to pay.(s) This remark seems likewise applicable with respect to the liability of the consignee to demurrage or general average,(t) and will apply a fortiori to cases where the goods are accepted by the consignee without any bill of lading.(u)

197. With respect to freight pro ratâ itineris, we shall only observe, that the true principle upon which this description of freight is due, is that a new contract *may be implied to pay it from the acceptance by the consignee of his goods delivered at an intermediate port [*156 a] instead of the destined port of delivery, "to justify a claim for pro rata freight, there must be a voluntary acceptance of the goods at an intermediate port, in such a mode as to raise a fair inference that the further carriage of the goods was intentionally dispensed with."(x)

198. The master of a ship has authority not only to borrow money in certain cases on the credit of the owners,(y) but likewise to order such repairs upon their credit as may be fit and proper for his vessel upon her voyage, and the party executing the order may consequently look to them as his security ;(z) it is, therefore, necessary to determine who are the owners; for the persons registered as owners will not necessarily be liable as such, the register acts not having been passed for the purpose of rendering them so. (a) Soon after the passing of those

(r) Domett v. Beckford, 5 B. & Ad. 521; Shepard v. De Bernales, 13 East, 565. (s) Sanders v. Vanzeller (in error), 4 Q. B. 260 ;m and cases there cited, particularly Coleman v. Lambert, 5 M. & W. 502 ;* Cock v. Taylor, 13 East, 299; Moorsom v. Kymer, 2 M. & S. 303. Bell v. Kymer, 3 Camp. 545. See Amos v. Temperley, 8 M. & W. 798.* (t) Scaife v. Tobin, 3 B. & Ad. 523; Jesson v. Solly, 4 Taunt. 52.

(u) Coleman v. Lambert, 5 M. & W. 502 ;* Wilson v. Kymer, 1 M. & S. 157 ; Pinder v. Wilks, 5 Taunt. 612;o Ward v. Felton, 1 East, 507.

(x) Judgment, Vlierboom v. Chapman, 13 M. & W. 230. 238;* Hunter v. Prinsep, 10 East, 394.

(y) Post, s. 200; Arthur v. Barton, 6 M. & W. 138,* there referred to, is fully recognized in Johns v. Simons, 2 Q. B. 425 ;P and Stonehouse v. Gent, Id. 431 (a); Williamson v. Page, 1 Carr. & K. 581.9

(z) Reeve v. Davis, 1 A. & E. 312. 315; Webster v. Seekamp, 4 B. & Ald. 352 ;* Rich v. Coe, Cowp. 636; Thompson v. Finden, 4 C. & P. 158. The master may like. wise hypothecate the ship or cargo for repairs in a foreign port. The Gratitudine, 3 Rob. Adm. R. 240.

(a) Per Littledale, J., Reeve v. Davis, 1 A. & E. 315, 316; Briggs v. Wilkinson, 7 B._ & C. 34, 35; Harrington v. Fry, 2 Bing. 179; Per Bayley, J., M'Iver v. Humble, 16 East, 176.

'Eng. Com. Law Reps. 27. *Id. 6. Id. 19.

Id. 45. Id. 23. "Id. 14. Id. 9.

Id. 1. PId. 42. Id. 47. Id. 28. Reprinted at $2.50 per vol.

acts," observed Lord Tenterden, (b) "the leaning of the courts of law in the construction of them was to say, that the registered owners of ships should at all events be liable for the repairs. But the *subject having [*156 b] become more accurately understood, a better and more correct principle now prevails, and the recent cases have decided that the true question in matters of this description is, upon whose credit was the work done. That question would in most cases be decided by the fact of legal ownership, the repairs being generally done for the legal owner. But it may so happen, that the name of a person may be retained on the registry after he has ceased to be beneficially interested in the ship or to interfere with its concerns." Where, therefore, the defendant's name appeared on the ship's register as part-owner at the time that repairs were done to the ship, but the defendant had previously entered into a contract within the knowledge of the party who ordered the repairs, and who was also a part-owner, and acted as ship's husband, by which she ceased to have any beneficial interest in the ship it was held, that the defendant was not liable, there being no evidence to show that the plaintiffs, who did the repairs, had any knowledge whatever of the defendant, and the party ordering the repairs having under the circumstances no implied authority to bind the defendant. (c) So, where the legal title remained for a month after sale in the vendors, upon the face of the register, and the repairs were ordered (d) during that interval by the captain under direction from the vendee, the latter was held liable.(e) And where, in assumpsit for goods sold, &c., it appeared that a steam-vessel was *chartered for twelve months, and the charterer bound himself to do [*157] all the repairs, except to the engine (which was to be kept in repair by the owners), and acted himself as captain: it was held that, for repairs done under his orders by persons unacquainted with the charter-party, no action lay against the registered owners.(i)

200. Not only may the master of a ship pledge the owner's credit for needful repairs, but if the vessel be in a foreign port, where the owner has no agent, or if in an English port, distant from the owner's residence, he is likewise authorized to pledge it for such things as are reasonably fit and proper for the ship, or for the voyage, under the circumstances of the case; as, for goods supplied or money advanced when necessary; the question of necessity being for the jury.(k) And it seems, that the master has also a power, when, in consequence of injury sustained by the ship, there is no prospect of bringing her to the termination of the voyage, to sell her for the benefit of all parties interested; but, at all events, the receipt by the owner of the proceeds of such sale, is a sufficient ratification by him of the act of the master in selling her.()

(b) Jennings v. Griffiths, 1 Ry. & M. 42.y

(c) Curling v. Robertson, 8 Scott, N. R. 12; Stokes v. Carne, 2 Camp. 340; cases supra (a). (d) Per Lord Ellenborough, C. J., 2 Camp. 340.

(e) Young v. Brander, 8 East, 10. See Briggs v. Wilkinson, 7 B. & C. 30.a (i) Reeve v. Davis, 1 A. & E. 312;b Frazer v. Marsh, 13 East, 238.

(k) See per Lord Abinger, C. B., delivering the judgment in Arthur v. Barton, 6 M. & W. 138; ante, p. 156 a (y); Weston v. Wright, 7 M. & W. 396; Robinson v. Lyall, 7 Price, 592.

(1) Hunter v. Parker, 7 M. & W. 322. 341, 342, throwing doubt on Reid v. Darby, 10 East, 143, contra. As to forwarding goods shipped in a general ship which is unable to complete the voyage in consequence of damage, Shipton v. Thornton, 9 A. & E. 314.c

Eng. Com. Law Reps. 21. Id. 14. bld. 28. ¢Id. 36. Reprinted at $2.50 per vol.

*201. The reason why the master possesses such authority is, that the law, which generally provides for ordinary events, and [*158]

not for cases which are of rare occurrence, considers how likely and frequent are accidents at sea, when it may be necessary, in order to have the vessel repaired, or to provide the means of continuing the voyage, to pledge the credit of her owners; and therefore it is, that the law invests the master with power to raise money; and, by an instrument of hypothecation, to pledge the ship itself, if necessary.(m) It is, however, requisite in all these cases to examine with whom the contract was in fact made, and to whom credit was given; for if it appears that the owner or master alone was trusted, he alone will, generally speaking, be liable :(n) the former being liable as principal, and the latter as the party actually contracting, if he do not stipulate against his personal liability, and confine the credit to his owners.(0)

202. It is clearly established, that a servant of the Crown contracting in his official capacity(p) is not personally liable on contracts so entered into ; and this rule is grounded on public policy, for no prudent person would accept a public situation at the hazard of exposing himself to a multiplicity of suits by parties *thinking themselves aggrieved.(g) Therefore, personal liability does not attach to the governor or commander of a colo- [*159] ny ;(r) to the captain of a ship contracting by deed " on account of government ;"(s) to a military commissary ;(t) or military or naval officer, for supplies furnished for the troops, it not appearing that he had received money from government for their payment, or that he had expressly pledged his personal credit.(u) So, a purser in the navy is not liable to the purser's steward for pay ;(x) nor is the secretary at war liable to a retired clerk of the war-office for his retired allowance, although funds have been received by the defendant, in his official capacity, for its payment. (y) Neither will the paymaster of civil services at the Treasury, who has received money for the plaintiff's use, be liable to him in an action for money had and received; at all events, unless the demand for payment be accompanied by a proper authority from the lords commissioners.(z) In like manner, an action for money had *and received will not lie against the receivergeneral for the excise, to recover money received by him as agent

[*160]

(m) Per Parke, B., Hawtaine v. Bourne, 7 M. & W. 599, 600.* As to the right of the master to bind the ship and cargo, see Smith's Merc. Law, 2nd ed. Book III., Chap. 7. (n) Hoskins v. Slayton, Cas. temp. Hardw. 376; Thomson v. Finden, 4 C. & P. 158,d and cases cited in the preceding notes; Thacker v. Moates, 1 M. & Rob. 79.

(0) Per Lord Ellenborough, C. J., Hussey v. Christie, 9 East, 432; Thompson v. Finden, 4 C. & P. 158.d (p) See per Ashhurst, J., 1 T. R. 181.

(9) Per Dallas, C. J., Gidley v. Lord Palmerston, 3 B. & B. 286, 287;e Per Ashhurst, J., Macbeath v. Haldimand, 1 T. R. 181, 182.

(r) Macbeath v. Haldimand, 1 T. R. 172.

(8) Unwin v. Wolseley, 1 T. R. 674. See Thompson v. Pearce, 1 B. & B. 25 ;f Cunningham v. Collier, 4 Dougl. 233. 235, n. (a).

(1) Lutterloh v. Halsey, cited 1 T. R. 180.

(u) Rice v. Shute, 1 East, 578; Rice v. Everett, Id. 583, n. (a); Myrtle v. Beaver, Id. 135; Prosser v. Allen, Gow, R. 117. See Keate v. Temple, 1 Bos. & P. 158; Priddy v. Rose, 3 Mer. 102. (x) Carter v. Hall, 2 Stark. R. 361.5

(y) Gidley v. Lord Palmerston, 3 B. & B. 275.e

(2) Rex v. The Lords Commissioners of the Treasury, 4 A. & E. 286. 298. See the judgment in Gibson v. The East India Company, 5 Bing. N. C. 274.i

Eng. Com. Law Reps. 19. Id. 7. fId. 5. Id. 3. Id. 31. Id. 35.

*Reprinted at $2.50 per vol.

for the Crown, and for the purpose of being paid over to government ;(a) nor against a provisional assignee, for money received by an agent appointed with due care.(b)

203. With respect to the general liability of parliamentary trustees, it has been said, that persons so acting, and stating themselves to be so acting, are not to be held personally liable; but that, as such trustees must know whether there are funds to answer the purpose in view, they act, when contracting with others who do not know, as if representing that they had a fund applicable to the object, and are then personally bound to provide funds to pay the contractors. (c) A party entering into the contract relating to a trust, does not necessarily do so in the character of a trustee; and where the particular act limits his liability on certain contracts specified or contemplated thereby, if entered into in the form which it prescribes, and conformably to its provisions, yet his liability on other contracts, not so contemplated, must accrue according to his own engagement, and the intention of the contracting parties.(d)

204. Therefore, where commissioners, under an inclosure act, were empowered to make a rate to defray the expenses of obtaining the act; and it was enacted that persons advancing money should be repaid out of *the first money raised by the commissioners, who, accordingly, [*161] drew drafts on their bankers, directing them to pay the sums therein mentioned, on account of the public drainage, and to place the same to their account as commissioners: they were held personally responsible to the bankers for advances so made.(z) But where an act directed that the expenses of obtaining it should be paid out of the money to be raised under it, and which had already been raised, in pursuance of the provisions of a previous act, the plaintiff, who sued for such expenses, having failed to show that money had been raised under either of the acts, was nonsuited, the commissioners not being personally liable. (a) Nor are justices of the peace contracting on behalf of the public for rebuilding a public bridge, under the provisions of an act which provides a fund for the payment, liable to the contractor. (b) But parish officers giving promissory notes for money advanced for the use of the parish, and, adding to their signatures the titles of their respective offices, were held to have signed in the character of principals. (c)

205. Since every agent may contract, so as to render himself personally liable,(d) the rule, in cases like the above, seems to depend on the evidence to be submitted to the jury, which will determine to whom credit was in fact given.(e)

[*162]

*206. Whether the members of a club, or benefit society, are personally liable for goods ordered, or contracts entered into by their

(a) Atlee v. Backhouse, 3 M. & W. 633. (b) Raw v. Cut ten, 9 Bing. 96.k (c) See per Lord Eldon, Higgins v. Livingstone, cited 10 Bing. 287; per Best, C. J., Sprott v. Powell, 3 Bing. 482, 483.m

(d) Per Bosanquet, J., Parrott v. Eyre, 10 Bing. 289, 290.1

(z) Eaton v. Bell, 5 B. & Ald. 34;n Horsley v. Bell, Ambl. 770.

(a) Andrews v. Dally, 4 Bing. 566.° (c) Rew v. Pettet, 1 A. & E. 196.P

(e) Smith's Merc. Law, 2d ed. 120.

(b) Allen v. Waldegrave, 2 Moore, 621.

(d) See per Ashhurst, J., 1 T. R. 181.

*Eng. Com. Law Rep. 23. 'Id. 25. Id. 13. "Id. 7. Id. 15. Id. 28.