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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 de

cisions 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 suit, 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, and 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 seas 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 colour 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, Justice, 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.

"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."

1815.

FAITH

and Others

v.

PEARSON.

1815.

Tuesday, December 19.

employs B. to

A., a merchant,

effect some policies of insu

employs C.,

the defend

insurance bro

no reason to

suppose that

he was not act

cies in their

own names, as

time of this

WESTWOOD v. BELL and Another.

ROVER to recover a policy of insurance.—
Hebden and Co. of Leeds, had been employed

rance; B., un- by the plaintiff, as agents, to effect an insurance on
known to A., goods on board the Sally and Speculator. Hebden
who applies to and Co. employed Robinson and Son to procure the
ants, who are policies, and Robinson and Son transmitted to them
kers. C. gives copies of two policies, which purported to have
the defendants been effected by Robinson and Son, and debited
Hebden and Co. with the premiums and expences.
ing as a princi- Robinson and Son did not effect the policies; but,
pal, and they
effect the poli- without the knowledge of Hebden and Co. or plain-
tiff, they applied to one Clarkson, who employed
agents. At the the defendants, who are insurance brokers; and
transaction C. the defendants effected the policies in their own
to the defend names, as agents. The defendants had no know-
lance of ac- ledge that any other person was interested in the
action brought policies except Clarkson, whom they debited with
by A.to recover the premium, and who, at the time of this transac-
tendering the tion, was indebted to them on a balance of accounts.
premium and
expences: The defendants claimed a lien upon the policies
Held, that the
defendants
till their demand on Clarkson was satisfied. The
them until C.'s Sally was lost: the plaintiff tendered the premium
and expences on both the policies; but the defend-
ants refused to deliver them up, until Clarkson's
debt was paid.

was indebted

ants on a ba

counts. In an

the policies on

had a lien upon

debt was sa

tisfied.

The

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

1815.

WESTWOOD

0.

Another.

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 BELL and 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 entrusted, his principal is not bound by his acts. The person who gives credit to the representations 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 lading; he had none; therefore he could not bind the principal. The

1815.

WESTWOOD

v.

BELL and
Another.

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 and Son, but the present case stands on principle and authority. I should have determined it on principle without authority.

Plaintiff nonsuited.

The Solicitor General, and Littledale, for the plaintiff.

Lens, and Copley, serjeants, and Campbell, for defendants.

[Attornies, Dennetts and G.

-Holt and F.]

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, for his own private debt. Thus, in Maans v. Henderson, 1 East, 335, it was deter

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