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as to make together with 97. 108. more than 107. It was agreed that the jury were to be taken as finding, so far as it was a question for them, that the writing was of no value.

In last Michaelmas Term, Willes obtained a rule nisi accordingly. Alfred Wills now showed cause.-The question is, whether this document was of any value as a bill or note, security or writing, within the meaning of the statute. It was not a bill of exchange; for there was no drawer. Nor was it a promissory note. In Peto v. Reynolds, 9 Exch. 410,† a person drew a bill of exchange without any direction; and another person accepted it in defendant's name, professing to do so as agent for defendant. The Court appeared disposed to consider that this was not a bill of exchange, though, if the defendant ratified the promise to pay, it might be treated as his promissory note. But there the document, whether a bill or promissory note, was a promise by a person named, to pay to the order of another named: here Goold has not become a party in any way; nor is he named. There is neither drawer or payee. The *only name on the document is that of [*554 Cruttenden; and he does not engage to pay, except to the order of a person not named, and who has in fact made no order. Cruttenden cannot have meant to pay the bearer generally. [Lord CAMPBELL, C. J.-That would be utterly contrary to his meaning in fact. Willes said that he would offer no argument in favour of its being a promissory note, but would avail himself of that point, should the Court think it tenable.] Nor does it fall under the head of "securities for payment of money." In Rex v. Hart, 6 C. & P. 106 (E. C. L. R. vol. 25), a person signed a blank acceptance on a paper which had a six shilling stamp it was afterwards taken away and filled up as a bill of exchange for 5002. Littledale, J., Bolland, B., and Bosanquet, J., held that this, at the time of such taking, was not a "bill, note, warrant, order, or other security whatsoever for money or for payment of money," within stat. 7 & 8 G. 4, c. 29, s. 5. Littledale, J., said that the instrument was only in a sort of embryo state." [Lord CAMPBELL, C. J.-No amount was there named when the document was taken.] That would have made no difference: the security, when completed, would have been effectual for any amount that might be inserted within the limit. of the stamp; Russell v. Longstaffe, 2 Doug. 514. (a) [Lord CAMPBELL, C. J.-It is more like an authority for making a security than an actual security.] Further, if it is contended that this was a writing. of the value of 117. 108., the answer is that the value which is to bring the case within the statute must be a value existing at the time of the delivery to the carrier. But, as no one had authority to complete the instrument besides Goold, the paper could never acquire any value *till it reached Goold's hands, that is, till the duty of the carrier The value at the time of the delivery, was merely that (a) See Abrahams v. Skinner, 12 A. & E. 763 (E. C. L. R. vol 40)

66

was over.

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of the paper; no value derived from the writing on it existed at that time. The supposed value is in the piece of paper plus the authority to do something to it which has not been done here. The piece of paper was sent by the carrier; the authority could not be sent: and neither of these elements apart from the other is sufficient to make the instrument of value. A similar reasoning was pursued in Rex v. Clark, Russ. & R. 181. There are many cases in which a party to an incomplete instrument becomes liable upon the completion; Schultz v. Astley, 2 New Ca. 544, is an instance, and represents a class of cases. But the liability never arises, and consequently the value of the instrument never is created, unless the completion is by an authorized party. Suppose this instrument to have been lost, no one except by means of forgery, or at least of some fraud, like that in Regina v. White, 1 Den. Cr. C. 208, could make it available. [Lord CAMPBELL, C. J.-You need not labour to show that a person having no authority to sign it would commit a forgery in doing so. (a) CROMPTON, J.-If Goold had died during the transit, could his executors have completed the instrument?] They could not. In whose name could they sign? [Lord CAMPBELL, C. J.-If the carrier had lost the paper, could Goold have recovered the sum named in it by an action for damages against the carrier?] He could not. And this shows that the object of the statute does not require the interpretation for *which the defendants *556] must contend; because, if the instrument be worthless, the cal rier requires no protection from the consequences of its loss.

Willes, contrà. From the list of articles in sect. 1, it appears that the Legislature did not mean to confine the provision to such things as are valuable in the hands of every person: gold and silver are so; but "writings" and "title deeds," though very valuable to their owners, are commonly worthless to others. Therefore the Court will not inquire to whom this paper was valuable. After the paper left Cruttenden's hands, any one deriving authority from Goold might make it complete and valuable. In the case put by Crompton, J., Goold's executors or administrators could have signed it; Murray v. The East India Company, 5 B. & Ald. 204 (E. C. L. R. vol. 7), seems to go as far as that. In Schultz v. Astley, 2 New Ca. 544, it was held that the conduct of the acceptor gave such authority even to a stranger. [CROMPTON, J.— That case goes to the utmost extent of the law.] But it is enough that the paper was valuable as a writing; it was that which the creditor might use, and might obtain money for by discounting it. Further, suppose the paper to have got into the hands of a bonâ fide transferee. [Lord CAMPBELL, C. J.-How could that possibly happen without its passing through Goold's hands?] It is not probable, but it seems not impossible; the cases are collected in Mr. Smith's note (1 Lead. Ca.

(a) See Rex v. Bateman, note b) to Regina v. Wilson, 2 C. & K. 529 (E. C. L. R. vol. 61); Rex v. Birkett, Russ. & R. 86.

258) to Miller v. Race, 1 Burr. 452. [WIGHTMAN, J.-If a man found it, and inserted his own name, and endorsed it over for value, might the endorsee recover on it?] That might be *maintained.(a) [Lord CAMPBELL, C. J., referred to Young v. Grote, 4 Bing. 253 (E. C. L. R. vol. 13, 15).]

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Lord CAMPBELL, C. J.-I am of opinion that this rule ought to be discharged. The case of the defendants is clearly untenable unless this paper can be brought within sect. 1 of the Carriers' Act, 11 G. 4 & 1 W. 4, c. 68. It must be shown to be a bill, order, note, or security for payment of money, or writing, of such value as to make up, with the 97. 10s., more than 107. It is not a bill of exchange; there is neither drawer nor payee. Nor is it a promissory note to pay any one who might happen to be the bearer; that Cruttenden should become liable generally to the bearer was quite contrary to his intention. Nor is it & security for money; for we must look at the time of the delivery to the carrier; and at that time nothing could be claimed on it. I think it is a writing; it would be very difficult to define a writing so as not to include this paper. Then the question is as to the value. If this writing possess any value beyond that of the paper material, that value must be 117. 108. Now can it be said that the writing bore that value at the time of its delivery to the carrier? I do not see that it was of intrinsic value to any person. It empowered a particular individual to claim to that amount, by putting his name to it; but that had not been in fact done by the individual, Goold. I cannot agree that the executors of Goold could have made it valuable by putting to it his name, or their own, or any name whatever. Nor could any one have bestowed value on it, who, not being contemplated by Cruttenden, had found it. It is therefore in entire *accordance with all the authorities, to hold that this writing was of no value at the time of its delivery to the carrier.

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WIGHTMAN, J.-The question is, whether that which beyond all doubt was a writing was, at the time of its delivery to the carrier, of a value exceeding 107. The fallacy of the argument lies in attempting to make the power of conferring the value at the end of the destined carriage the criterion of the value at the time of the delivery. I think the rule should be discharged.

ERLE, J.-I am of the same opinion. This being an imperfect instrument, and not a complete bill, order, note, or security for money, but clearly a writing, we are not bound to say that, in point of law, it was of value. I use that expression, because it may be that, this being, except for the absence of the name of the drawer, an accepted. bill of exchange, a jury may in a similar case find that the writing is of value; and I do not wish to preclude myself from considering whether such a finding might not be sustained.

(a) See contrà, Awde v. Dixon, 6 Exch. 869.t

CROMPTON, J.-I am of the same opinion; and I have no remarks to add. Rule discharged.

*559]

*ARTHUR JULIAN HARRIS v. ROBERT CARTER and ROBERT BROOKS. April 24.

Plaintiff, a sailor, signed articles, for a voyage out to M. and home, at 31. per month. On the arrival of the ship at M. several of the crew deserted. The captain, to induce the rest to remain, signed fresh articles with plaintiff and others at the rate of 67. per month for the home voyage. Plaintiff continued in the vessel till her arrival home, and then sued the shipowner for work and labour. Defendant paid money into Court at the rate of 31. per month. Plaintiff claimed to be paid at the rate of 61. for the home voyage. On the trial, there was some evidence that at M. the captain had consented to the discharge of some of the crew. The Judge asked the jury if the plaintiff himself had been discharged before entering into the fresh articles. On their answering that he had not, the Judge directed a nonsuit. Held, on a motion for a rule for a new trial, that the nonsuit was right; for that there was no evidence of any circumstances to free the plaintiff from his original contract, so as to enable him to give consideration for the fresh promise to him, or to authorize the captain to bind the owners by such a contract.

COUNTS for work and labour, and on accounts stated. Pleas: 1. Except as to 331., Never indebted. 2. As to 337., Payment into Court. The plaintiff took issue on the first plea, and took the money out of Court on the second.

On the trial, before Platt, B., at the last Liverpool Assizes, it appeared that the plaintiff was a sailor, and that his claim was against the defendants, as owners of the ship Monteagle, for wages on a voyage out to Melbourne and home. Before sailing, the plaintiff signed articles by which he agreed for the voyage, out and home, at 31. per month. The defendants had paid money into Court at that rate for the whole voyage: the plaintiff claimed to be paid at therate of 67. per month for the homeward voyage. It appeared that, on the arrival of the vessel at Melbourne, many of the crew deserted: the captain, to induce the others to stay, promised to pay 6l. per month on the home voyage, and signed fresh articles with the plaintiff and the rest of the remaining crew to that effect. After this, more of the crew deserted; the captain had some of them put in prison; *but, being unable to get fresh *560] hands, he finally agreed with four of the deserters to take them out of prison, and pay them high wages, and discharge them at Bombay, if they would work the vessel so far home as that port. This was accordingly done; and these men were discharged at Bombay. The plaintiff served on the whole voyage home till the vessel arrived safe in London.

On the proof of these facts, the learned Judge declared his opinion to be that there was no evidence to go to the jury in support of the plaintiff's claim. The plaintiff's counsel urged that there was evidence that the captain had, at Melbourne, consented to the discharge of some of the crew, and had thereby improperly increased the labours of the

plaintiff and those who remained and did their duty; which, they contended, might form a consideration for a fresh promise. The learned Judge refused to leave any question to the jury, except as to whether the plaintiff himself had been discharged before the fresh contract. The jury having answered in the negative, his Lordship directed a nonsuit, with leave to move to enter a verdict.

C. Milward now moved to enter a verdict pursuant to the leave reserved, or for a new trial on the ground of misdirection.-The nonsuit proceeded on the authority of Stilk v. Myrick, 2 Campb. 317: but there Lord Ellenborough says: "If they" (the crew in that case) "had been at liberty to quit the vessel at Cronstadt, the case would have been quite different; or if the captain had capriciously discharged the two men who were wanting, the others might not have been compellable to take the whole duty *upon themselves, and their [*561 agreeing to do so might have been a sufficient consideration for the promise of an advance of wages." [Lord CAMPBELL, C. J.—If anything had occurred to relieve the plaintiff from the engagement he contracted when he signed the articles in this country, he might enter into a fresh contract. What is it that, as you say, set him free?] There was evidence that the captain discharged at least one of the seamen at Melbourne: that should have been left to the jury. [WIGHTMAN, J.-Do you contend that, whenever the captain on a foreign voyage discharges one of the crew, improperly if you will, all the rest are at liberty to leave the ship?] Perhaps not: but, if there could be any improper discharge of any portion of the crew which would set the remainder free, there was some evidence here of their being set free. The captain might have exercised the powers given him by stat. 13 & 14 Vict. c. 93, sects. 71, 72, and did not. It is plain, from the high pay given to the deserters who went on to Bombay, that the vessel was short-handed, and the labour of the plaintiff and those who did their duty greatly increased.

Lord CAMPBELL, C. J.-I am of opinion that the nonsuit was most properly entered, and ought not to be disturbed. Had the plaintiff been relieved from the obligation which he had contracted towards the shipowners, he might have entered into a fresh contract, and, under some circumstances, the captain might have had authority to bind the owners by entering into a fresh agreement on their behalf with him. Had there, for instance, been an entire change of the voyage it might have been so. But here there were no circumstances of that kind. voyage remained the same voyage for *which the men had

The

shipped; there was no consideration for a promise to the plain- [*562

tiff; and the captain had no authority to bind the owners. The whole foundation for the new contract was the desertion at Melbourne. We need not consider what happened afterwards at Bombay; for that could not affect the contract made at Melbourne. Now nothing which VOL. III.-45

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