that a leaf had been torn out. He added, that the ship was not in the proper course for London. He took possession of all the ship's papers, and put them under seal, and then directed the vessel to be taken in tow by a brig belonging to his squadron, and in this state she arrived at Barbadoes. After a few days every thing was restored, and the vessel was set at liberty; but the master had. previously been sent ashore in custody of one of the defendant's officers, and the mate and crew had been treated as prisoners of war. The vessel made London on the 10th of August, 1814. The John had been in the American service; she had been taken by an American privateer, but recaptured. She had, at the time of the seizure, American rigging and canvass. The reason stated for her not having a manifest on board was, that there was [*115 no Custom House at Senegal or Goree; and that when a vessel was bound outwards no papers were ever given her by any public officer. She had, however, a clearance, which was a document signed by the collector of the duties inwards, certifying that those duties had been paid. The point in which she was captured was in her fair course for England; and a witness stated that she would in all probability cross that point in making her way home. The vessel was sailing as close to the wind as possible; and no suspicion could reasonably attach that she was out of her course.

The Solicitor General, and Best, Serjt., for defendant, contended, that the action could not be maintained. The question is not whether the ship be good and lawful prize; not whether there was strong and reasonable suspicion; but whether the defendant did not, in fact, take the John as prize. If so, a court of common law cannot try this question; it belongs to a Court of Admiralty. If such cases were to be the subject of a common law jurisdiction, no captain could venture to detain a ship for an hour after he had examined her papers. They cited Le Caux v. Eden, Douglas, 594. If the plaintiffs have a right to recover, the captain, and every officer and sailor, would severally have a right to bring an action of trespass. The question, therefore, is, did the defendant, exercising, if they please, an erroneous judgment, take the John as prize? If so, no action lies at common law. *The want of a manifest was a strong

ground of suspicion. The 26 G. 3. c. 40. s. 3 requires the masters of [*116

vessels, before clearing out from the king's dominions in foreign ports, to deliver a manifest to the officer or collector of the customs there; and, if there be no officer or collector, then to some principal officer or magistrate of the place, who is to cause a duplicate to be made, and to indorse upon the original manifest the day and year when it was produced, and to return it to the master of the vessel before she clears out. Add to this, that the vessel had been in the American service, and had, at the time, American rigging and canvass on board. They contended, that these circumstances, though they did not make the vessel a subject of prize, constituted a strong ground of suspicion, and warranted her detention.

GIBBS, C. J.-I am of opinion that the present action cannot be maintained: though the capture might have been improper, a court of common law has no jurisdiction. The injured are not without remedy, but this is not their remedy. If such an action might be supported here, the consequence would be, that every mariner might bring a separate action against the captors. The law has established a proper tribunal in the Courts of Admiralty, who are better acquainted with the principles of such cases, and can apply themselves to each particular, and examine every circumstance. In a case, whether a capture be prize or not, they inquire whether the captain has misconducted himself: if he has, they give the injured party a suitable recompense. There is nothing in the plaintiff's case which does not show that the defendant seized the

John as an American prize; and if she were seized under this impres- [117

sion, there is an end of the question. The want of the manifest was a strong circumstance that she was not British. She had been in the American service; she had been fitted out in that service, and had the rigging and canvass of that

nation on board. Then she had no manifest. The defendant sends a prize master on board; the captain and officers are treated as prisoners of war. On the whole, therefore, I am of opinion that this ship was seized as prize, and that the present action cannot be maintained. I consider it purely upon the general issue, and not on the special pleas.

Plaintiffs nonsuited.

Lens, and Vaughan, Serjts., and Abbott, for plaintiffs.

The Solicitor General, and Best, Serjt., and Richardson, for defendant.

REPORTER'S NOTE.

In the ensuing term, Lens, Serjt., moved to set aside the nonsuit. He contended, that it ought to have been left to the jury to say, whether the seizure was as prize, or on any other ground. The case of Le Caux v. Eden did not decide that the plaintiffs could not recover where there were several conjoint pretences for the seizure, but only where the ship was taken as prize; that action, he observed, was for false imprisonment; here, the only question was, whether the ship had been seized for this cause only. The defendant ought to have been called upon to prove that, in fact, *the vessel had been seized as prize, and that this was *118] not a mere afterthought on his part. Lord Chief Justice Gibbs repeated, in substance, the opinion which he had expressed at the trial. He added, I am still of opinion, that this ship was seized as prize, and I am not sure that I ought not to have stopped the cause sooner than I did. The rest of the court concurred.Rule refused.-2 Marshall's Rep. 133.

The cases of Le Caux v. Eden, Dougl. 570, and Lindo v. Rodney, ibid., have so fully estab lished the maxim, that captures made on the high seas, jure belli, are exclusively within the conusance of the Courts of Admiralty, and thereby entirely exempted from the jurisdiction of the common law, that it is unnecessary to review the principles of the present decision. The reason is as simple as the maxim. Such cases, whether of capture or detention, form the subject matter of the admiralty jurisdiction. They often arise from circumstances which could not be given in evidence in courts of justice without great public mischief; and are frequently made upon the discretion, the opinion, the apprehension, of naval officers, which can only properly be examined by the equitable jurisdiction of courts proceeding in the latitude of the law of nations. Subsequent, however, to the cases of Le Caux v. Eden, it has been questioned, whether the common law should not exercise a jurisdiction, so far at least as to ascer tain whether a capture or detention have been made upon reasonable and probable grounds. Would not this be at once to determine the question. In order to decide the reasonableness of the capture, would it not be necessary to enter into the evidence of the eircumstances which determined the defendant to make it. In many cases the discretion of the king's officers, acting on the high seas, necessarily requires a most extensive latitude. They may act, and in some cases are bound to act, upon suspicion; they may act upon secret communications; they may act upon innumerable causes, which, from their vagueness, have not a sufficient body to be tangible at common law. But the rules of evidence in the Courts of Admiralty are framed accordingly; and a long practice, and an uninterrupted course of precedents have marked out *119] an equitable compass to their *discretion, and administered a remedy against a dangerous generality or abuse of power. It is no answer to say a Court of Admiralty has acquitted a ship seized as prize. There might have been cause for the detention, though none for the condemnation. There might be a reasonable suspicion upon which an officer would be wanting in his duty, if he should not make a seizure. The Courts of Admiralty administer justice between the parties in all those cases. On the one hand, they necessarily protect the proper discretion of the king's officers, and will not subject them to ruin for errors natural and venial in the exercise of a general prudence. On the other hand, they will equally protect the neutral, or the native merchant, from oppression, caprice, or any loss and damage, whether from negligence or criminal indifference. The rule, therefore, seems to be this:-Whenever it appears, incidentally, in the trial of a question of wrong committed on the high seas, by capture of detention, that such capture or detention has been made bona fide as prize, a Court of Com non Law has no jurisdiction; they must dismiss the subject to its proper court, the instan the question of prize or no prize presents itself upon the evidence.

With respect to privateers, or letters of marque, the Courts of Admiralty have a more extensive jurisdiction than as respects king's ships. As regards the former, if any act of oppression, cruelty, or general abuse, have been committed, they have not only the power of awarding a suitable compensation to the party injured, but they are authorized to deprive them of their letters of marque. They, in fact, act as a Board of Admiralty to ships of such denomination, and have their summary jurisdiction. The law is laid down by the prize act, which expressly inflicts on all acts of cruelty the forfeiture of the letters of marque. In 5 Robinson, 9, Sir William Scott, speaking on this point says, "I consider this to be no more than a formal declaration of what was the ancient law of the Admiralty." As regards the king's ships, they are, in the first inrance, more immediately under the superintendence of the Lords Commissioners of the Ad miralty. The dignity of the flag, and even of the officers, puts them in a degree above the aecessity of this vigilant control.

It might le easy to cite cases in which the Courts of Common Law have dis[*120 laimed a jurisdiction over matters of an analogous kind. But the rule is sufficiently prominent in all of them.

It may be necessary, however, to observe, in order to mark the distinction, that the case of Le Caux v. Eden, was an action of trespass for false imprisonment of the plaintiff's person. In the capture or detention of a ship, the officers and crew are necessarily imprisoned for a time; and if the principal question, that of seizing the ship, belong exclusively to the admiralty jurisdiction, to separate the question of prize or no prize, and that concerning the incidental damage would be to divide between two different jurisdictions the same entire transaction. It is equally a trespass to take a man's ship as to take his person; but if the original or principal matter be not conusable at common law, neither are the consequences. 1 Lev. 243, 2 Lev. 25, Molloy, lib. 1. c. 4. § 32.

The common law jurisdiction, however, is not excluded, without a just consideration of the greater advantages to be obtained before that tribunal to which the case is referred.

The promptitude of the decisions of the Courts of Admiralty is a great benefit to both parties; for, so admirably framed are the rules of that court for accelerating business of this kind, that a cause can hardly last beyond a month. There is another great convenience in the admiralty Buit, that all parties concerned may join in one libel; whereas, if an action at common law could be supported, the numberless suits to which every individual amongst the captors would be exposed, in the circumstance of costs alone, independent of damages, would bring ruin upon the parties involved in them.

All the cases which have been determined upon this subject have been decided upon the general issue pleaded by the defendant. No special pleading can be necessary, because the Courts of Common Law have not a concurrent jurisdiction, but the Courts of Admiralty have the sole and exclusive concurrence. If the capture be, prima facie, a trespass at common law, it would be incumbent on the defendant to plead specially that he seized the ship as prize, and what was the cause, or ground of seizure. The plea of not guilty, therefore, is the proper and sufficient plea; it is in the nature of a denial of the jurisdiction of the *common law courts, [*121 an assertion that the question is alieni fori. In the great case of Rous v. Hassard, cited in Le Caux v. Eden, Douglas, 581, in which the question was, whether an action of trespass would lie for taking a ship as prize, Lord Chief Justice Lee, having called two civilians to his assistance, delivered the judgment of the court that, though for taking a ship on the high Beas trespass would lie at common law, yet when it was taken as prize, though taken wrongfully, though it were acquitted, and though there were no color for the taking, the judge of the admiralty was judge of the damages and costs, as well as of the principal matter. And his lordship laid it down as law, that if such an action were brought in England, and the defendant pleaded not guilty, the plaintiff could not recover.

Admitting the question of prize or no prize to be of exclusive and peculiar jurisdiction in the Courts of Admiralty, it has been contended notwithstanding, that if the sentence of that court shall declare the ship to be no prize, an action may be maintained at common law. But to this it may be replied, if the original matter be not conusable by the common law, the subsequent matter cannot; the whole question must altogether be appropriated to the jurisdiction of the admiralty. "That sentence (says Buller, J., in his admirable judgment delivered in Le Caux v. Eden) does not alter the nature of the original taking. It was still a seizure as prize, which the common law does not take notice of, as a trespass; and the sentence cannot make that a trespass, which was not so at the time when the fact was committed.

46

Upon the whole, (addressing himself to the case of Le Caux v. Eden) as the plaintiff has had or may have, a remedy elsewhere, as there is no case in which it has ever been holden that such an action can be maintained, and it would be attended with great mischief and inconvenience if it could be maintained, and as there are several authorities which say, the action will not lie, I am of opinion that there must be judgment for the defendant.”

*WESTWOOD v. BELL et. al.

[*122

4., a merchant, employs B. to effect some policies of insurance; B., unknown to A., employs C., who applies to the defendants, who are insurance brokers. C. gives the defendants no reason to suppose that he was not acting as a principal, and they effect the policies in their own names, as agents. At the time of this transaction, C. was indebted to the defendants on a balance of accounts. In an action brought by A. to recover the policies on tendering the premium and expenses: Held, that the defendants had a lien upon them until C.'s debt was satisfied.

TROVER to recover a policy of insurance.-Hebden & Co., of Leeds, had been employed by the plaintiff, as agents, to effect an insurance on goods on board the Sally and Speculator. Hebden & Co., employed Robinson & Son to procure the policies, and Robinson & Son transmitted to them copies of two policies, which purported to have been effected by Robinson & Son, and debited

Hebden & Co. with the premiums and expenses, Robinson & Son did not effect the policies; but, without the knowledge of Hebden & Co. or plaintiff, they applied to one Clarkson, who employed the defendants, who are insurance brokers; and the defendants effected the policies in their own names, as agents. The defendants had no knowledge that any other person was interested in the policies except Clarkson, whom they debited with the premium, and who, at the time of this transaction, was indebted to them on a balance of accounts. The defendants claimed a lien upon the policies till their demand on Clarkson was satisfied. The Sally was lost: the plaintiff tendered the premium and expenses on both the policies; but the defendants refused to deliver them up until Clarkson's debt was paid.

Lens, Serjt., for the defendants, contended, that the plaintiff was not entitled to recover. The defendants have effected the policy without notice

*123] *that it was not on account of the person from whom they received the

order; they have, therefore, a lien upon it for their general balance. They must be supposed to have made advances to Clarkson on the credit of the policies which were allowed to remain in their hands. They have a right, therefore, to satisfy their general balance, whether before or after notice communicated to them of the plaintiff's interest.

He cited Mann v. Forrester, 4 Camp. 60. Snook v. Davidson, 2 Camp. 218.

The Solicitor General, contra.—If a merchant puts goods in the hands of a factor, and the factor places them with another merchant, who makes him advances upon them, he does not thereby obtain a lien against the original owner. If an agent represent himself to have a power, with which he is not intrusted, his principal is not bound by his acts. The person who gives credit to the misrepresentations of an agent must run the risk of their being true or false.— Lanyon v. Blanchard, 2 Camp. 597.

GIBBS, C. J.-In the case put, it is assumed that the goods originally belonged to the merchant; and when a merchant trusts goods out of his hands, they cannot be burthened with any charges but those to which he has consented to subject them. I subscribe to the doctrine in Lanyon v. Blanchard. But, in that case, the agent represented that he had authority to indorse the bill of *124] lading; he had none; therefore he could not bind the principal. The *plaintiff has founded himself on false grounds, viz. that the policy was his property; it never was his property. In its creation it was a policy subject to the rights of the defendants against Clarkson. The contract was as between principals; Clarkson gave the defendants no reason to suppose that he was not a principal; and, because they treat him as a principal, they undertake the duty. The defendants, therefore, cannot be stripped of their lien. The plaintiff, notwithstanding, has his remedy against Robinson & Son, but the present case stands on principle and authority. I should have determined it on principle without authority.

The Solicitor General and Littledale, for the plaintiff.
Lens and Copley, Serjts., and Campbell, for defendants

REPORTER'S NOTE.

l'laintiff nonsuited

Where a factor, under a del credere commission, sells goods as his own, and the buyer knows nothing of the principal, the buyer may set off any demand he may have upon the factor against the demand for the goods made by the principal. This was the case of George v. Claggett, 7 T. R. 359. But if an agent disclose his principal at the time, it is clear that he cannot pledge the property of such principal to another, with whom he is dealing, *125] for his own private debt. Thus, in Maans v. Henderson, 1 East, 335, it was deter mined, that an English subject, in time of war, informing the broker that the property insured was neutral, was sufficient indication to the broker that the party acted as agent, and not on his own account, and that, therefore, the rights of the principal could not be effected by the state of accounts between the agent and the broker. If a factor pledge the property of his VOL. III.-8.

principal, the latter may recover the value of it in trover against the pawnee, on tendering to the factor what is due to him, without any tender to the pawnee. Daubigny v. Duval, 5 T. R. 514. It it clear, however, that a sub-agent cannot acquire the broker's general lien, because a lien is a personal right, and cannot be transferred. Vide M'Combie v. Davis, 7 East, 6. Man v. Shifner, 2 East, 523, 529.

*AUSTIN et al. v. DREWE.

[*126

A policy of insurance (against fire) is effected on the stock and utensils of a sugar house, the different stories of which were heated by a chimney running up to the top. By the negli gence of the plaintiffs' servants, in omitting to open the register, the heat is considerably increased, by means of which large quantities of the sugar are spoiled; but no damage was occasioned to any thing but the sugar, and no greater fire existed than on ordinary occasions ; held, that this was not a loss within the policy.

COVENANT on a policy of insurance against fire, on the stock and utensils in the plaintiffs' sugar house. The declaration averred a damage by fire on the 8th December, 1813. The defendant pleaded, that the damage was occasioned by the negligence and improper conduct of the plaintiffs and their servants, in regulating and managing the fires in their sugar house; and that the stock and utensils were damaged by the smoke arising from such fires; without this, that they were damaged by fire in the sugar house within the meaning of the policy.

The plaintiffs were sugar bakers. The sugar house contained eight stories, in each of which were raw sugars undergoing preparation. In order to convey heat throughout the premises, there was a chimney which formed nearly one side of the house, along which a flue ran, for the purpose of communicating warmth to each room. In one of the stories was a register, which was shut at night, when the fires were extinguished. On the day when the damage took place, the plaintiffs' servant had lighted the fire in the morning without opening the register; by these means the several rooms were filled with sparks and smoke; the sugar was damaged by the excessive heat, and some of the syrup spoiled; the beams and ceiling in the upper stories were blackened, and the walls a little blistered. No damage of moment was occasioned to *127 anything but the sugar; there was no greater fire than was ordinarily used for the purposes of sugar baking, and no part of the substance of the premises was injured by fire.

Vaughan, Serjt., for the defendant, contended, that this was not a damage by fire within the meaning of the policy.

The Solicitor General, contra.

GIBBS, C. J.-I am of opinion that this is not a loss within the policy. No greater fire existed than was necessary for the purposes of the business. By omitting to open the register, heat and smoke have been forced into the rooms where the sugars were preparing; the heat produced the mischief: no sensible damage resulted from the smoke and sparks, and the occasion which produced the excess of heat was not a fire against which the defendant had undertaken to indemnify the plaintiffs. The servants had neglected to open the register. What is this but a bad management of their own machinery? The fire is where it ought to be; no more than it ought to be. But it received a false direction by the irregular and improvident conduct of the plaintiff's servants. As no substance, therefore, was taken possession of by the fire, which was not intended to be fuel for it; as the sparks and smoke caused no mischief, but as the damage arose from an excess of heat in the rooms, occasioned by the register being shut, I *am of opinion that the plaintiffs are not enti

tled to recover.

[*128