Vol. III.] PENTZ V. CLARKE. [No. 1. "Under the general authority which the master of a ship has, he may make contracts, and do all things necessary for the due and proper prosecution of the voyage in which the ship is engaged. But this authority does not usually extend to cases where the owner can himself personally interfere, as in the home port, or in a port in which he has beforehand appointed an agent, who can personally interfere to do the thing required. Therefore, if the owner, or his general agent, be at the port, or so near to it as to be reasonably expected to interfere personally, the master cannot, unless specially authorized, or unless there be some usual custom of trade warranting it, pledge the owner's credit at all, but must leave it to him, or to his agent, to do what is necessary. The rule thus laid down was fully approved and sanctioned by the Court of Common Pleas, in Gunn v. Roberts, 9 Com. Pleas, 331 (Law Rep.), in which it was held, that the master had no authority to bind the owner for necessary repairs, either at the home port where he resided, or at a foreign port at which the owner had an agent appointed for that purpose. In that case, as in this, it was contended that the captain was the general agent of the owner; but, Brett, J., said, "That proposition cannot be supported in the fullest sense of the terms in which it was stated. The captain has authority to bind the owners to pay for supplies, or repay money advanced, only when the necessity of the case gives him that authority. In order to give rise to that authority, it has for many years been recognized that two things are necessary: first, it must appear that the money borrowed or goods supplied were necessary for the use ship; secondly, it must be shown also that it was reasonably necessary that the captain should obtain or order them on the owner's credit. If the captain be in a foreign port, and the owner is not there, and there is no agent of his there, and the captain has not himself been put in funds by the owner, then it may be reasonably necessary that he should order supplies on the owner's credit for the necessary purposes of the ship; but if he is in port in the owner's country, and the owner is there with means to pay for goods, or credit to order them for himself, the owner is the master of affairs, and there is no necessity for the captain to order them, or to pledge the owner's credit, and so there is no necessity for the captain's making a contract to bind the owner." "The leading case on the subject is Arthur v. Barton, and the opinion there expressed by Lord Abinger, as a summary of all the previous authorities, has always been held as a correct expression of the law." The justice further says: "McLachlan, in his work on Merchant Shipping, 131, correctly states the law as follows: As appears from those early cases, but especially the last, there are well defined limits to the exercise of this authority on the part of the master. First, in cases where the owner or his agent is at the port of the ship's anchorage, or so near to it as to be reasonably expected to interfere personally, the master cannot, without special authority for the purpose, pledge the owner's credit for the ship's necessities."" We have quoted at length from the opinion of the court in this case, because it is the latest decision in England, and states correctly, we think, the law on the subject. After all, this question as to the authority of the captain to pledge the credit of the owner for necessary repairs and sup Vol. III.] PENTZ v. CLARKE. [No. 1. plies, rests upon and must be determined by the general principles which govern the law of agency. To a certain extent at least, the captain is and must be treated necessarily as the agent of the owner, and as such, clothed with authority to do whatever may be considered fairly to be within the scope of his appointment. He must of course have the power to do whatever may be necessary to enable him to prosecute the voyage. If he should be in a foreign port and repairs are necessary to be done, and the owner is not there, and has no agent there authorized to act for him, the captain must, from the necessity of his position, be considered as having the authority to order such repairs to be done. But in the home port, where the owner resides, where he can be consulted, and where he can personally interfere, no such necessity exists, and there is no reason why the captain should pledge his credit even for necessary repairs, without special authority for that purpose. If then the captain, as such, had no authority in this case to pledge the credit of the appellant for the work done and materials furnished, does the fact that he was part owner at the time confer upon him any greater authority? This question, as well as the question in regard to the power of the captain, depends upon the fact as to whether he was authorized by his co-owner to pledge the credit of the latter. In other words, it depends upon the question of agency. In Brodie v. Howard, 84 Eng. Com. Law, 109, Jervis, C. J., says :· "I think it is now perfectly well understood that these and all similar cases depend upon the question, with whom was the contract made; and that again depends upon the question of principal and agent, was the party who gave the order for the repairs the agent of the party sought to be charged? Before we consider that, it may be as well to understand what is the position of part owners' of a vessel. They may be partners generally, or partners in a particular adventure; but that they are not necessarily partners is clearly determined by the case of Helme v. Smith, 7 Bing. 709. A part owner, therefore, has not a general authority to bind his co-owners." Williams, J.: "I am of the same opinion. It is well established that part owners of a ship are not in the position of ordinary partners." But although the mere relation of co-owners does not confer this authority, yet it may be implied from the acts and conduct of the parties. As for instance where the co-owner, upon whose order the materials have been furnished and the work done, has been held out by the other coowner as having such authority, or where by previous dealings such authority has been recognized. From what we have said, it follows, that the court erred in granting the plaintiffs' prayers. We find no error in the refusal to grant the defendant's prayers. Although the captain in this case had no express authority from the appellant to order these repairs, yet if the latter subsequently ratified the contract thus made, the plaintiffs were entitled to recover. As the case will be remanded for a new trial, we do not propose to comment upon the evidence tending to prove such ratification on the part of the appellant. It is sufficient to say there was evidence on this subject, which ought to have been submitted to the jury. The proposition of law embraced in the third prayer may be correct in Vol. III.] SANBORN v. KIMBALL. [No. 1. itself, but has no application to the facts in this case. The question here is not whether White was the captain of the appellant, a registered part owner, or the captain of an owner pro hac vice, or the captain of a charter party, and this prayer, which is based upon the decision in Mitcheson v. Oliver, 85 Eng. Com. Law, 419, has no application here. The fourth, fifth, and sixth prayers were also properly refused. The defendant was the registered owner of one half of this steamer, and by his solemn deed of mortgage executed more than two years after the registration, he again declared himself as part owner. So far then as these plaintiffs are concerned he must be considered as part owner, regardless of any private understanding between himself and his brother to the contrary. Having thus held himself out to the public as part owner, if he permitted, or suffered White to assume, and remain in charge of the steamer as captain, the latter must be treated, in a suit by third parties, as the captain in charge, by and with the privity and consent of the appellant. And although as captain he had no authority to pledge the credit of the appellant for the work done and materials furnished by the appellees, yet he will be held liable, if by his acts and conduct he has ratified the contract thus made by the captain. What will amount to a ratification, must depend upon the facts and circumstances of the particular case. In speaking of the ratification of unauthorized acts of agents this court, in Maddox v. Bevan, et al. 39 Md. 497, said: "In many cases it may be inferred from his receiving and holding the fruits of the contract. Long acquiescence also, without objection, and even silence of the principal, will, in many cases, amount to a conclusive presumption of the ratification of an unauthorized act, especially where such acquiescence is not otherwise to be accounted for, or such silence is either contrary to the duty of the principal or has a tendency to mislead the agent." Judgment reversed, and new trial awarded. SUPREME COURT OF MAINE. (To appear in 64 Me.) HOW AND FOR WHAT CAUSES AN ATTORNEY DISBARRED. SANBORN, Petitioner for Penobscot County Bar, v. KIMBALL. An attorney at law is an officer of the court, and may be removed from office for misconduct, ascertained and determined by the court after an opportunity to be heard has been afforded. The statute makes "a good moral character" a prerequisite of admission to the bar; and when an attorney at law has forfeited his claim to such character by such misconduct, professional or non-professional, in or out of court, as renders him unworthy to associate with gentlemen, and unfit and unsafe to be intrusted with the powers, duties, and responsibilities of the legal profession, the court may deprive him of the power and opportunity to do further injury under the color of his profession by removing him from the bar. Vol. III.] SANBORN v. KIMBALL. [No. 1 The evidence in this case conclusively establishes the allegation in the motion that "the respondent does not possess a good moral character," in that it shows that he has committed a fraud upon the court, violated his professional oath and duty, conducted dishonestly in his private dealings, and disregarded the proprieties and civilities due to other members of the profession. By admitting the respondent to the bar the court held him out to the public as worthy of confidence and patronage in the line of his profession. In view of the power of removal vested in the court, to allow the respondent to continue to exercise his profession after he has been thus proved to be unworthy of his office, would be indirectly to involve the court in the responsibility of his acts. And further, after the disclosures in this case, the court cannot forbear to pronounce the judgment of removal from office against the respondent without abdicating the high trust which the law confides to it in this behalf, and rendering that a nullity. The respondent has been pardoned for the forgery of which he was convicted and for which he was confined in the state prison; but the instrument forged was a deposition used in a cause before this court; and though the pardon purged him of the offence of which he was convicted, it did not affect the crime of the violation of his professional oath and duty, nor relieve him from the penalty of removal from the bar for this misconduct. ON report. This was a motion presented by Hon. A. Sanborn, in behalf of the bar of Penobscot County, for the removal of Benjamin Kimball from the office of an attorney and counsellor at law. It prayed for a rule upon Mr. Kimball to show cause why he should not be removed, assigning as causes that he did not 66 possess a good moral character," in this, that at the February term, 1860, of this court for this county, he was convicted of forgery, for which he was at the following criminal term sentenced to two years' imprisonment at hard labor in the state prison; also, in that he had been guilty of repeated dishonest if not criminal acts, and on one occasion if not more, of obtaining money by false pretences; and in that he had been guilty of unprofessional conduct in wittingly promoting and suing false and groundless suits, and otherwise violated his oath and the duties of his said office. The motion was made and the rule to show cause granted at chambers in term time, but while the court was not actually in session, returnable to the court in session. At the return day of the rule the respondent moved that the complaint be dismissed or quashed and the rule discharged, because it did not appear by it that he was convicted of a forgery committed when acting as an attorney and counsellor of this court, or in a matter in which he acted as such attorney; that it did not appear but that he had been restored to all his rights by an executive pardon; nor were the persons of whom he obtained money nor the dishonest acts so specified as to enable him to prepare any defence, nor was there any statement of instances of unprofessional conduct; neither was the complaint sworn to, nor had the judge in chambers authority to take any action or make any order thereon, because the notice was defective and insufficient, requiring him to appear before some judge without designating whom, nor that it should be before the court in session; and also because the court could only pass upon his moral character as affected by some act done by him in the capacity of an attorney and counsellor, and had nothing to do with his conduct as an individual or in other relations. The court then appointed Joseph Carr, Esq., a commissioner to take the testimony relating to this matter, who entered upon and completed Vol. III.] SANBORN v. KIMBALL. [No. 1. the discharge of this duty without taking any qualifying oath. For this reason the respondent objected to the acceptance of Mr. Carr's report when it was offered; also, because (as he said) a commissioner should only state the testimony and had no right to find facts, or his conclusions. from what he deemed to be facts, because he received the proceedings of the Penobscot bar (had before the motion or complaint presented in its behalf was made or any rule served on the respondent) as a specification of the charges upon which these proceedings were based and sent them up to the court with his report, although the same had never been authenticated by the secretary of the bar association; because after the respondent had commenced to take his depositions the complainants were allowed to take the deposition of William P. Tenney, and because testimony was taken of the acts of the respondent as an individual in nowise connected with his professional conduct. Subsequently he filed a motion to strike out all but the charges of a conviction of forgery and of wittingly promoting groundless suits, upon the ground that the other charges were too indefinite to afford any basis of action, and afterwards asked to have this last charge stricken out for the same reason. The minutes of the meeting of the Penobscot bar, annexed to the commissioner's report and referred to in the respondent's motion, set out the report of a committee previously appointed, made to that meeting, in which they reported substantially the conviction of Mr. Kimball of forgery, his sentence and imprisonment; that several years after his release (to wit, in 1873) he returned to Bangor and resumed the practice of his profession there; that he had in the several instances specified obtained money upon false pretences, and had unsuccessfully attempted to do so of various persons mentioned; that he had instituted groundless suits, one against the gentleman who had him arrested to compel repayment of a loan fraudulently obtained, and another against Ezra C. Brett, Esq., for writing to the governor a letter remonstrating against the appointment of Mr. Kimball to be a justice of the peace upon the ground of his unfitness. In the former of these suits Mr. Kimball obtained a verdict for nominal damages, upon the technical ground that the writ upon which he was arrested was in form a summons and attachment containing no order for an arrest, the attorney neglecting to strike out and insert the few words necessary to change it into a capias; the latter suit is still pending. The report also stated the instances of discourteous and improper language and conduct towards other members of the bar which are referred to in the opinion, where will be found a statement of the particular circumstances of his various fraudulent operations that were fully proved. -- Mr. Kimball was married in 1853, in Sutton, N. H., and within the year following his wife left him and they never lived together afterwards. In 1859 he applied to this court for a divorce, and to procure it produced what purported to be the deposition of Joseph Greeley, of Sutton, taken before J. H. Allen, Esq., with a regular certificate of that magistrate attached, in which the deponent was represented as testifying that he saw the parties married, knew that Mrs. Kimball returned to New Hampshire in less than a year and had been there ever since, and had told the witness that she should never return because Mr. Kimball was too literary for her, kept himself in his study, cared nothing for balls, &c., of which she was |