construction of that license was to protect a trade in any ship except one bearing the French flag. Sed vide Hagedorn v. Bazett, 2 Maule and Selw. 100. Mennett v. Bonham, 15 East, 477. Flindt v. Crokatt, ibid. 522. Fenton v. Pearson, 419. Parkin v. Dick, 11 East, 502. and the cases referred to in the argument in 2 Maule and Selw. 104. A license to "sail under any flag except the French," was held to exclude French ownerships. Edw. Adm. Cases, 44. But a similar license was held to protect the property of persons in countries unexpectedly annexed to France, whilst engaged in British commerce. ibid. 45. But a vessel carrying a cargo to the ports of the enemy, under a license to proceed thither in ballast, for the purpose of bringing a cargo to this country, was held not to be protected. ibid. 11. A license to import a cargo into this country, was deemed sufficient to protect a vessel proceeding in ballast to the port of shipment for that purpose. ibid. 34. Whenever a license is granted on a condition, that condition must be truly and faithfully performed. Vandyck v. Whitmore, 1 East, 486. See likewise a note of Gordon and Vaughan annexed to the case of Shiffner v. Gordon, 12 East, 302. Thus in the case of the Europa, where the condition of the license was, for the vessel to touch at Leith, and it was not complied with, Sir William Scott condemned the vessel. Edw. 32. And the sentence was affirmed on appeal. It is a violation of a license to touch at an interdicted port, under, a license for a direct voyage to this country. The presumption being, that, at the intermediate port, the vessel might receive another destination, or might actually deliver her cargo in that port. Edw. 42. Secus, if it be not known to be such at the time of sailing, ibid. 40. The words in a license, "to whomsoever the property may appear to belong," have been held to protect the property of an enemy. ibid. 20. A license to sail under any flag except the French wasnot deemed to be vitiated by the owner becoming a French subject during the course of the transaction. ibid. 45. So, in a case where permission has been given by a license to export a cargo, the original license is sufficient to protect the ship and cargo, not only eundo, but redeundo, where the 1815. GREGG and Another v. SCOTT. SCOTT. 1810. A license granted subsequently to the date of the capture was held to be no protection. Case of the St. Ivan, Wacklin, Nov. 12, 1811. In this case Sir William Scott observed, "a license is in its very nature prospective, pointing to something which has not yet been done, and cannot be done at all without such permission. Where the act has already been done, and requires to be upheld, it must be by an express confirmation of the act itself, as by an indemnity granted to the party; but a license necessarily looks to that which remains to be done, and can extend its influence only to future operations." A license to import a cargo in one vessel was held to protect the importation of the me cargo in two vessels; and from a different port, it being shewn that it was impossible to make the shipment at the port specified in the license. Case of the Vrow Camelia. But a license to proceed to an enemy's port in ballast, for the purpose of bringing a cargo to this country, was held not to be a protection for a vessel carrying a cargo to the port of shipment. Case of the Wolfarth. In cases in which the parties have used due diligence, but have been prevented by accidents not within their controul, from carrying their intentions into effect within the time, it has been holden that, though their licenses have expired, they are entitled to protection. The case of the Goede Hoop, Nov. 7, 1809. Edw. 1. This case is most important on account of the masterly judg ment of Sir William Scott, who therein discusses the rules of interpretation to be applied to licenses generally. 1815. GEVERS and Another v. MAINWARING. THIS A broker is a witness to tract; but in brought THIS was an action on the case. The declaration stated that the plaintiffs had employed prove a conthe defendant as their agent, to purchase 129 an action bales of tobacco of the best quality, for a certain against the commission and reward, &c.: that in consideration principal for negligence and thereof he undertook to conduct himself skilfully he course of and diligently as an agent; but that, on the contrary, he purchased tobacco of a very inferior quality, and of no use to the plaintiffs; to their mage, &c. Plea: the general issue. da The plaintiffs having made out a case, the defendant's counsel called the broker employed in the purchase, for the purpose of proving that the bacco was of the best quality. to The Solicitor General objected to his competency. He is liable to the defendant if he misconducted himself in his employ. If he acted contrary to the orders he received, he is responsible to his principal. Lens, contrà.-The necessity and convenience of commerce require that his testimony should be admitted. The expediency of the thing relaxes, in this case, the ordinary rules of law. GIBBS, C. J.-A broker may be received to prove that a contract was made; but it is a dif his employpurchase of ment in the certain bales of tobacco, the broker, who made the contract for him, cannot be called to there was no negligence of prove that or misconduct in the execution of it, without a release from his principal. 1815. GEVERS and v. MAINWAR ING. ferent case where the question is, whether the contract be properly executed. A sale may be proved by an agent from the necessity of trade; but in an action for the misconduct or negligence of a servant, such servant cannot be called to prove that there was no negligence. If the broker had no direction to purchase the best tobacco, you might call him to prove that he did purchase the best tobacco. But I reject him on the ground of his being called to prove that he was directed to purchase according to the contract, and that the tobacco was purchased in conformity with those directions. The defendant refused to release the broker ; and the principal question, which it was intended to raise in this action, was not therefore determined. Verdict for the plaintiffs. The Solicitor General, Vaughan, serjeant, and Taddy for the plaintiffs. Lens, Best, and Rough, serjeants, for the defendant. [Attornies, Kaye and Co. Vide Green v. The New River Company, 4 T. R. 589. Miller v. Falconer, 1 Camp. 251. Martin v. Ilenrickson, 2 Ld. Raymond, 1007. S. C. -Bleasdale and Alexander.] Salk. 287. The King v. Bray, Cases, tempore Hardw. 358. 3 Lev. 174.; and Gilbert's Law of Evidence, 122, &c. See likewise 15 East, 474. 1815. STEIGLITZ and Another v. EGGINTON and Others. DE if one partner acknowledge EBT on an award; to which were added An authority common counts for goods sold and deli- deed-must be vered, &c. The defendants pleaded: 1. Non est by deed; and factum. 2. That they did not covenant and agree, &c. 3. That they did not submit themselves, There were other pleas, the substance of which was the same as the foregoing. &c. that he gave another partto execute a ner authority deed for him, the presump tion is, that it was a legal au must be under The plaintiffs were merchants at Petersburgh; thority, whi and some differences having arisen between them seal and proand the defendants, an agreement was entered duced. An acknowledginto to submit to the award of Mr. Ludlam. The ment is not sufficient. agreement, which was under seal, was executed by one of the defendants for self and partner. On the part of the plaintiffs, it was executed by an agent of the name of Jonn; but he had executed it in his own name, without stating that it was by procuration, or for the plaintiffs. A power of attorney had been given by the plaintiffs to Jonn to sign any instruments or documents relating to commercial affairs, in their names, either jointly or severally, or in the names of their attorney. Vaughan and Parke objected to the execution. This deed may bind Jonn, but it cannot bind any other person. An attorney should execute in the name of his principal. The power of attorney is not sufficient: he must be connected with the |
