Page images
PDF
EPUB

A factor shonld always be punctual in the advices of his transactions, in sales, purchases, affreightments, and more especially in draughts by exchange; for if he sells goods on trust without giving advice thereof, and the buyer breaks, he is liable to trou. ble for his neglect; and, if he draws without advising his having so done, he may justly expect to have his bill returned protested, to his no small detriment and discredit.

If a factor deviates from the orders he receives in the execution of a commission for purchasing goods, either in price, quality, or kind, or if after they are bought; he sends them to a different place from that he was directed to, they must remain for his own account, except the merchant, on advice of his proceedings, admits them according to his first intention.'. , ,

A factor that sells a commodity under the price he is ordered, shall be obliged to make good the difference; and, if he purchases goods for another at a price limited, and afterwards they rise, and he fraudulently takes them for his own account, and sends them to another part, in order to secure an advantage that seemingly offers, he will (on proof thereof) be obliged, by the custom of merchants, to satisfy his principal for damages.

If a factor, in conformity with a merchant's orders, buys with his money, or his credit, a commodity he shall be directed to purchase, and, without giving advice of the transaction, sells it again to profit, and appropriates to himself the advantage, the merchant shall recover it from him, and besides have him amerced for his fraud.

If a merchant orders his factor to ship him a sum in the current coin of a kingdom, when exportation is prohibited, and the money is seized in endeavouring to get it. abroad, the loss is for the merchant's account, and not the factor's.

It a factor pays money of a merchant's without his orders, it is at his own peril; and if he lends his cash, without his leave, (though he proposes the interest shall be the merchant's) and any loss happens before principal's deterinination about it be kgowit, it shall remain to the factor. ,. ,

A factor may be a bankrupt. 115 Geo. II. c. 30., S. 39.· The office of a supercargo has already been mentioned.

Supercargoes are persons employed by commercial companies or private merchants, to take charge of the cargoes they export to foreign countries, to sell them there to the best advantage, apd to purchase proper commodities to relade the ships on their return home. For this reaşon, supercargoes generally go out, and return home with the ships, on board of which they were embarked, and therein differ from factors, who reside, abroad at the settlements of the public companies for whom they act. The East India Company only send out supercargoes to the places where they have no factories; and sometimes the chief supercargo remains at the place of a ship's destination, for a time, waiting the arrival or return of other ships, and acting as factor for the Company.

Agents are persons employed in the different departments of commerce, the law, the army, and the navy.

Commercial Agents are frequently appointed to settle accounts, and dispose of the effects of merchants and other, persons dying, or failing in foreign countries, or at home; their commission terminates with the particular business for which they were appointed; and they generally give security for the trust reposed in them. Agents are likewise appointed by colonies, and particular districts of colonies, to, transact the public commercial soncesas, of the places from which they are deputed, with the officers under the government of thg mother country, to which they belong. It is their duty to preserve the commercial rights, and franchises of their principals, to present petitions against any measures that are about to be taken detrimental to their interest, and regularly to correspondi with them upon these subjects, and also to consult and advise with the merchants, planters, ayd others, interested in the welfare of the said colonies, and

VOL. I.

[ocr errors]

residing in the mother country. Such were the agents for Carolina, Virginia, and the other colonies of North America, before the revolt of those colonies. And such at present are the agents for our West India islands and other settlements abroad, their public business lies chiefly with the Board of Trade and Plantations, and the Secretary of State for the Colonies.

Ships' Husbands, a class of agents so called, whose chief employment in capital sea. port towns, particularly in the port of London, is, to purchase the ship’s stores for her voyage; to procure cargoes on reight; to settle the terms and obtain policies of insulrance; to receive the amount of the freight both at home and abroad; to pay the captain or master his salary, and disbursements for the ship's use; and, finally, to make out an account of all these transactions for his employers, the owners of ships, to whom he is, as it were, a steward at land, as the officer bearing that name is, on board, when the ship is at sea. The general commission allowed to ships' husbands on their accompts is two per cent.

Of the Law Agents little notice need be taken in this work, especially as it is a limited term, and mostly confined to such attornies and solicitors as are appointed to manage appeals to the House of Lords, from decrees of the inferior Courts of Judicature of Great Britain and Ireland. It is their business to present the petitions for appeals to be heard, to produce and attend the witnesses to be sworn, and to retain the counsel.

Army and Navy Agents receive the pay, wages, pensions, and frequently the prizemoney of the officers of the army and navy, their wives, widows, and children, and keep cash accounts for them, nearly in the same manner as bankers for merchants.

They likewise pass the commissions of officers through the proper offices. All this business they transact in virtue of letters of attorney from their principals, and wills. When they have cash in hand, officers may draw upon their agents, from any part of the globe, where they shall happen to be stationed ; and for men of approved character and credit agents will frequently advance money by anticipation upon their wages, pay, &c. having full powers to reimburse themselves from their accruing effects.

With respect to agents in general it is a rule of law, that whenever a person has a power, as owner, to do a thing, he may consequently, as incident to his right, do it by attorney or agent. Combe's Case, 9 Co. 75. b. Kyd. 32. As this agency is a mere ministerial office, infants, feme coverts, persons attainted, outlawed, excommunicated, aliens, and others, though incapable of contracting on their own account, so as to bind themselves, may be agents for these purposes. Co. Lit. 52. a. As to the extent of the agent's authority, if a person be appointed a general agent, as in the case of a factor for a merchant residing abroad, the principal is bound by all his acts; but an agent, constituted so for a particular purpose, and under a limited and circumscribed power, cannot bind the principal by any act exceeding his authority. Per Buller, J. in Fenn v. Harrison, 3 Term Rep. 757.-East India Company v. Hensley, 1 Esp. Rep. 111.

Therefore, where A. desired B. to get a bill discounted for him, but declared that he would not indorse, it was decided by the majority of the court, that no representation of B. could bind A. as an indorser, though it was insisted that what B. had done, was within the scope of his employment, which was to raise money on the bill. It appearing, however, on a second trial, that A. did not declare that he would not indorse it, it was adjudged, that as he had authorized B. to get the bill discounted, without restraining his authority, as to the mode of doing it, he was bound by his acts. Fenn v. Harrison, 3 Term Rep. 757.-Id. 4 Term Rep. 177.-Collis v. Emett, i Hen. Bla. 313 -Russel v. Langstaff, Doug. 514.

An authority may in some cases be implied and inferred from prior conduct of the principal; and therefore, if a person has upon a former occasion, in the principal's ab

sence, usually accepted bills for him, and the latter on his return approved thereof, he would be bound in a similar situation on a second absence from home; (Beawes, pl. 8C.

Mar. 2d. ed. 135.-Barber v. Gingell, 3 Esp. Rep. 60.-Gardner v. Baillie, 6 Term Rep. 592.---Good v. Watkins, 3 East. 498.) and it has been held that if a person usually subscribes an instrument with the name of another, proof of his having done se in many instances, is sufficient to charge him whose name is subscribed, without producing any power of attorney. Neal v. Erving, 1 Esp. Rep. 61. And we have seen that where a married woman is permitted by her husband to carry on trade on her own account, and in her own name indorses a bill or note, received in the course of such trade, an authority may be presumed from the husband. Coles v. Davis, i Camp. 485.Barlow v. Bishop, 1 East. 434. It has also been decided, that a subsequent assent will. make the act of an agent binding on the principal. Ward v. Evans, Lord Raym. 930.Boulton v. Hillesden, Comb. 450. accord.-Fenn v. Harrison, 3 Term Rep. 757.Howard v. BaiHie, 2 Hen. Bla. 618. semb. contra. It appearing from the above, that the principal will be bound by every act of his general agent, although he exceed his authority, it has therefore been observed, by way of caution, that it is incumbent on the employer to take particular care whom he authorises, as otherwise, it may be of the most fatal consequence to him. Beawes, pl. 84. And as it appears ( v. Harrison, 12 Mod. 346.-Beawes, pl. 231.) that a master, who has empowered a servant to draw bills of exchange in his name, is bound by acts done by such servant subsequently to leaving his service, unless notice has been given; it is therefore incumbent on every employer to give notice of such fact, to all his correspondents individually, notice in the Gazette not being sufficient to affect a former customer, unless he has had express. notice thereof. Gorham v. Thompson, Peake. 42.-Graham v. Hope, id. 154.-God. frey v. Turnbull, i Esp. Rep. 372. As the authority of an agent is not coupled with an interest, he cannot delegate it, so as to enable another person to act for his prin. cipal; (Combe's case, 9 Co. 75. i Rol. Ab. 330.) if, however, an express authority be given for that purpose he may exercise it. Palliser v. Ord, Bunb. 166.

When a person has authority, as agent, to draw, accept, or indorse a bill for his principal, he should either write the name of his principal, or state in writing, that he draws, &c. as agent; for otherwise, the act will not in general be binding on the prinei. pal; (Wilks v. Back, 2 East. 142.-Barlow v. Bishop, 1 East. 432, 434.-3 Esp. Rep. 266. S. C.-White v. Cuyler, 6 Term Rep. 176.—Combe's case, 9 Co. 75.-Frontin v. Small, 2 Stra. 705.-Com. Dig. Attorney, C. 14.-Beawes, pl. 83, 4, 5, 6, 7.) and if a person, draw, &c. in his own name, without stating that he acts as agent, he will be personally liable, (Thomas v. Bishop, 2 Stra. 955.--Rep. Temp. Hardw. 3 S. C.-Poth. pl. 118.Appleton v. Binks, 5 East. 148.- De Gaillon v. L'Aigle, i Bos. and Pul. 368.-Macbeath v. Haldimand, i Term Rep. 181.) unless in the case of an agent contracting on the behalf of government. Macbeath v. Haldimand, 1 Term Rep. 172.-Unwin v. Wolseley, id. 674.-Myrtle v. Beaver, 1 East. 135.- Rice v. Chute, id. 579. But in some cases an informal mode of executing the authority will not vitiate. Coles v. Davis, i Campb. 485, 6.-Mason v. Rumsey, i Campb. 384.

Of Ships and the Navigation Laws. THE great advantages that arise from trade to a nation, have been fully proved by the introductory discourse, and, as I have therein given a deduction of it from the earliest times, the separate history of navigation would be here superfluous, as this and commerce are so blended, or more properly only distinct parts of the same thing, that

having spoke so largely to the one, I have little room, and less need, to expatiate inuch on the other in an historical way: however, if any gentleman inclines to a separate account of them, he will find his taste fully gratified, and expectation answered, on reading the history of navigation, (supposed to be wrote by the celebrated Mr. Lock,) prefixed to Churchill's collection of voyages and travels; but to omit it as inconsistent with my intended conciseness, I shall proceed to particularize the integral parts of maritime affairs; and, as a ship is a principal one in them, and indeed without which

no foreign trade could be carned on, I shall begin with this wonderful piece of art. Franc.

The name (Navis) is derived from the effect, that is (à navigando) sailing, and the Roccus.de use of it is certainly both necessary and profitable to every commonwealth capable of Nav, Nau. & Assec. employing it. Not. 1.

Who was the first architect of these floating fabrics has been hitherto contested, progress of and therefore, in all probability, will now never be known; however, (rejecting the

fabulous stories of Dædalus, Janus, &c.) it is natural to suppose Noah's ark inspired the idea, and that it served as a pattern to be improved by the first navigators, though, as there was no occasion for such, till about three centuries after the confusion at the Tower of Babel had dispersed its builders, so we may reasonably conjecture that occurrence to have been the epocha from which navigation took its beginning; as Providence chastised their audacious attempt to scale Heaven, by dispersing the offenders over the face of all the earth, and consequently in their peregrinations they must bave found it necessary to invent some sort of vessels for their conveyance across those great rivers, which undoubtedly sometimes impeded their progress, by laying in the way of their journey : how they managed in their maritime affairs, when they reached the sea, history leaves us in the dark, but necessity would certainly inspire them with some means of (at least) supplying themselves with its products, and it is natural to believe, they went on improving the first invention, as they had occasion to discover its defects, till by successive ones, and nations, it was brought to the, perfection in which we now see and admire its

The Phænicians, who are the saine the Scripture calls the Plailistians or Canaanites, as is largely proved by Bochart and others, are generally allowed to have been the first and ablest mariners we read of; yet the commerce of those early ages did not require vessels of such strength and compactness as latter times have, to resist the stoxins and tempests they are now exposed to, by launching out into the main ocean, and engaging in long and hazardous voyages, unknow!), and, consequently, unattempted by intant navigation. For, though these people were bold anık daring enough to engage ių several long voyageš, as to Ophir, &c. in which they must cross many spacious gulfs and bays, to avoid expending a vast space of time in coasting round them, yet it is hardly credible, they ever ventured to cross that immense; body of waters, that lie between Europe and America, as some, suppose ; and the reflection, on their doing what they did, without the assistance of the compass (then undiş, covered) I must confess is.to.me a matter of no small surprize. for, though a learned author supposes them to have conducted their navigation by the sun's course in the day, and by that of the stars in their nocturnal sailing, and only ventured to sea during summer; yet when one considers, that these guides must be frequently lost to them by cloudy weather, even in that season, not only for a little while, but often for days together, and consequently their knowledge of them, (let it have been as great as the said author conjectures) by this intervening occurrence rendered unserviceable, we must allow them to have been daring adventurers, in combating the frowns and ruffles of a louring sky, which must frequently have been too boisterous for their little skill and slightbuilt vessels to resist or evade, and to risk the imminent dangers they exposed them selves to on that fickle element, by their engaging in those voxages, which might then be justly counted long and dangerous.

commands

-

. Us such strength and compactness se les

The Greeks, who were their scholars in this science, greatly improved it, and gave their masters several signal overthrows in their naval encounters, as at the famous battle of Salamis, &c. and though the Romans succeeded the Greeks in their profession of this art, and undoubtedly their practice must lead them to the discovery of its defects, and, consequently, to that of its improvement, yet they and several suc. ceeding ages still laboured in the dark, till Providence, about the year 1300, discovered the loadstone's virtue, and by this means dissipated the mists of guess-work, and ren. dered navigation more clear and certain : It is to this happy discovery we owe that of new worlds, and the great improvement of maritime affairs, since brought to such perfection.

The fabrick of ships has been various, as occasions have required, and invention could dictate to make them answer the intent; which variety continues to this very day, not only between nations, but even in the same country, some being built for war, some for sailing, and others with the lucrative view of stowing well, and each has a name properly adapted, as gallies, frigates, &c.; and the increase of these, and improvement of navigation, has always so much merited the attention of the legislators from the earliest times, as to have occasioned many excellent laws being made for these purposes.

Laws.

15 Pupunun Acts.

It appears to have been the favourite and uniform object of British policy to confine British Naour foreign trade as much as possible to the shipping and mariners of this country; and vigation in order to accomplish that object, to hold out peculiar privileges and immunities to the mariners and shipping of Great Britain ; and to prohibit, under severe penalties, the communication of these immunities to the shipping and mariners of foreign states. We will concisely consider the ancient acts as well as the modern provisions.

The Act 5 R. 2. stat. 1. ch. 3. is generally considered as the first of the British Ancient Navigation Laws.* This act ordained, that none of the King's liege people should Navigation export or import merchandize, except in ships of the King's liegance.

But subsequent statutes of the same reign seem to have permitted the employment of foreign vessels when there was not sufficient British shipping, or when the owners of the British shipping demanded unreasonable freight :

The Statute i Hen. 7. ch. 8. prohibited the traffic in any wine of Guienne or Gascony, unless brought in English or Irish ships, and by mariners of England, Ireland, Wales, Calais, or the Marches of the same. Having expired, it was revived by 4 Hen. 7. chap. 10. and its provisions were extended to Thoulouse woad, with the requisition that the master, as well as the majority of the mariners, should be of one of the countries before mentioned, or of Berwick. These acts are remarkable for having brought forward, in a specific form, two of the leading provisions of the modern navigation code; the requisition as to the British property of the vessels, and the requisition as to the British character of the master and mariners. The third great requisition, that the ship should be British built, as well as British owned and British navigated, was reserved for later times. As to other merchandizes than the wines and woad above-mentioned, the same statute of 4 Hen. 7. c. 10. permits such general trade to be carried on by merchants, strangers, in any vessels, but forbids that any other persons, inhabiting here, shall carry it on in ships belonging to foreigners, except

* There was a prior act, 42 Edw. 3. c. 8.; but this cannot be properly ranked amongst the acts of navigationsReeves' Law of Shipping, 11, 12.

« PreviousContinue »