that an appeal against the decision of a judge is too late if a term has been allowed to elapse. Here, the decision of the judge took place on the 21st of August, 1857; and this rule was not moved until the 27th of January, 1858. The plaintiff could not place himself in a better position in respect of time by taking out another summons in November. BYLES, J., concurring, Rule discharged, with costs.

BERWICK v. HORSFALL and Another. April 22.

Where a written instrument has been lost, and parol evidence of its contents has been received, its construction is still for the court, and not for the jury.

A., professing to act as the agent of B., the owner of a vessel in the African trade, under a power of attorney, during the voyage removed C. (the master) from the command, for alleged misconduct. At the termination of the voyage, the master (who had been permitted to remain on board) sued the owner for wages :-Quære, whether the act of A. in removing C. from the command of the vessel, was one which could be ratified by B. after the voyage was over?

THIS was an action by the plaintiff as captain of a vessel called the Cherokee, against the defendants as owners, for wages on a voyage to the coast of Africa and back, between the 18th of October, 1856, and the 30th of May, 1857, at the rate of 147. per month.

The defendants pleaded, never indebted, payment, and a further plea that the plaintiff, whilst in command of the vessel, so grossly misconducted himself as to cause the defendants to dismiss him therefrom; upon which pleas issues were joined.

The cause was tried before Cresswell, J., at the second sitting at *451] Guildhall in last Michaelmas Term, when the *following facts. appeared in evidence :-The ship sailed for the coast of Africa in October, 1856, having on board, besides the captain, a surgeon, a chief mate, and a trading-master named Cheetham. Arrived on the

coast, at Benin, Cheetham found that the master, from his habitual drunkenness and brutal treatment of the seamen, was wholly unfit to retain the command of the vessel; and accordingly he caused a court of inquiry to be held pursuant to the Merchant Shipping Act, 17 & 18 Vict. c. 104, (a) the result of which was, *that, by the unanimous judgment of the members of that court on the 13th of December,

*452]

(a) The 260th section enacts that "any officer in command of any ship of Her Majesty on any foreign station, or, in the absence of such officer, any consular officer, may summon a court, to be termed a Naval Court,' in the following cases, that is to say,

"1. Whenever a complaint which appears to such officer to require immediate investigation is made to him by the master of any British ship, or by any certified mate, or by one or more of the seamen belonging to any such ship;

"2. Whenever the interest of the owner of any British ship or of the cargo of any such ship appears to such officer to require it;

"3. Whenever any British ship is wrecked or abandoned, or otherwise lost at or near the place where such officer may be, or whenever the crew or part of the crew of any British ship which has been wrecked, abandoned, or lost abroad, arrive at such place."

The 261st section enacts that "every such naval court as aforesaid shall consist of not more than five and not less than three members, of whom, if possible, one shall be an officer in the naval service of Her Majesty, not below the rank of lieutenant, one a consular officer, and one a master of a British merchant ship, and the rest shall be either officers in the naval service of Her Majesty, masters of British merchant ships, or British merchants; and such court may include the naval or consular officer summoning the same, but shall not include the master or

1856, the captain was pronounced incompetent to retain the command; and on the 26th he was formally dismissed therefrom by Cheetham, though suffered to remain on board the vessel. The plaintiff had been paid his wages up to the 26th of December.

Cheetham, who was called as a witness on the part of the defendants, stated that he was acting under a power of attorney from the owners, but that the document was lost. The learned judge, being satisfied that *sufficient search had been made for the missing document to let [*453 in secondary evidence of its contents, Cheetham stated that it gave him a general power over the property of the defendants, and authority to look after their interests, and to act as their representative or plenipotentiary in all that concerned the voyage. He further stated that it was within the scope of the general authority of a trading-master in the African coasting trade to transfer the captain and crew from one ship to another; and that, in many instances, trading-masters had dismissed captains.

The learned judge ruled, as a matter of law, that the plaintiff ceased to be captain from the date of the decision of the naval court by which he was superseded, and that he was not entitled to recover for wages subsequently to that day: and he left two questions to the jury,—first, whether they thought that Cheetham, the trading-master, had a precedent authority from the owners to supersede or dismiss the captain for misconduct, secondly, whether Cheetham did, in point of fact, dismiss the captain on the 26th of December, 1856, and whether the owners ratified his act after the termination of the voyage.

The jury found that there was no proof to satisfy them that Cheetham had such precedent authority; but they found that Cheetham did in point of fact dismiss the captain on the 26th of December, 1856, and that the defendants subsequently ratified what he had done.

The learned judge thereupon directed a verdict to be entered for the defendants, ruling, notwithstanding the finding of the jury upon the first question, that Cheetham had such precedent authority, and that that was a matter for him to decide, and not for the jury.

consignee of the ship to which the parties complaining or complained against may belong; and the naval or consular officer in such court, if there is only one such officer in the court, or, if there is more than one, the naval or consular officer who, according to any regulations for settling their respective ranks for the time being in force, is of the highest rank, shall be the president of such court."

The 262d section enacts that "every such naval court shall hear and investigate the complaint brought before it, or the cause of the wreck or abandonment (as the case may be), and may for that purpose summon and compel the attendance of parties and witnesses, and administer oaths, and order the production of documents, and shall conduct the investigation in such manner as to give any person against whom any charge is made an opportunity of making a defence."

The 263d section enacts that "every such naval court may, after hearing the case, exercise the following powers, that is to say (inter alia),

"1. It may, if unanimous that the safety of the ship or crew, or the interests of the owner, absolutely requires it, supersede the master, and may appoint another person to act in his stead; but no such appointment shall be made without the consent of the consignee of the ship, if then at the place:

"And all orders duly made by any such court under the powers hereby given to it shall, in any subsequent legal proceedings, be deemed conclusive as to the rights of the parties."

And the 264th section enacts that "all orders made by any such naval court, shall, whenever practicable, be entered in the official log-book of the ship to which the parties to the proceedings before it belong, and shall be signed by the president of the court."

Brett, in Michaelmas Term last, moved for a new *trial, on

*451] the ground of misdirection. The decision of the naval court did

not amount to a sentence at all. The acts of these courts, from which there is no appeal, are to be construed most strictly. The act of Cheetham, therefore, in dismissing the plaintiff, was wholly unauthorized. The finding of the jury upon that point was conclusive. And it was an act which no subsequent ratification could legalize. It is a general principle that there can be no ratification of an act done on one's behalf by 'a stranger, if such ratification would affect the intervening rights of a third person. Thus, it has been held that there can be no subsequent ratification of a stoppage in transitu: Whitehead v. Anderson, 9 M. & W. 518, 526; Nicholls v. Le Feuvre, 2 New Cases 81 (E. C. L. R. vol. 29), 2 Scott 146. [WILLES, J.,-That is because it affects the acquisition of a right by a third party. Thus, in Bird v. Brown, 4 Exch. 786,† C. & T., merchants at Liverpool, sent orders to I., a merchant at New York, to purchase for them certain goods, which were accordingly shipped by I. in five vessels bound to Liverpool, and consigned to C. & T., who, after the receipt of the goods by one of the vessels, stopped payment on the 7th of April, 1846. I. had drawn bills for the goods, partly on C. & T., and partly on R. & Co., with whom C. & T. had dealings. B. & Co., who were merchants at Liverpool, and who also had a house of business at New York, purchased there several of the bills, which were drawn at sixty days sight, and were dated, some on the 25th of March, and the rest on the 30th. On the 8th of May, a fiat in bankruptcy issued against C. & T. The four other vessels arrived at Liverpool respectively on the 3d, 5th, 6th, and 9th of May; and, immediately on the arrival of each, and whilst the transitus of the goods on board continued, B. & Co., on behalf of I., gave notice to the master and consignees of each ship, claiming to stop the goods *in transitu. B. & Co. were not the general agents of I., nor *455] had they received from him any authority to make this stoppage. On the 11th of May, the assignees of C. & T. made a formal demand of the goods from the master and consignees of each of the four ships, at the same time tendering the freight; but they refused to deliver them, and on the same day delivered the whole to B. & Co. On the next day, the assignees made a formal demand of the goods from B. & Co., but they refused to deliver them up, claiming title under the stoppage in transitu. On the 28th of April, I. heard at New York that Ċ. & T. had stopped payment; and, on the next day, he executed a power of attorney to H. of Liverpool, authorizing him to stop the goods in transitu. This was received by H. on the 13th of May, and he on that day adopted and confirmed the previous stoppage by B. & Co. I. afterwards adopted and ratified all that had been done both by H. and B. & Co. In trover by the assignees of C. & T. against B. & Co.,-it was held,-first, that there could be no valid stoppage in transitu after the formal demand of the goods by the assignees on the 11th of May, and the subsequent delivery of them to the defendants,-secondly, that the ratification of the stoppages by I. after the conversion by the defendants, had not the effect of altering retrospectively the ownership of the goods; and the reason assigned is, that the goods had already vested in the plaintiffs. WILLIAMS, J.-The ratification here did not take place until after the termination of the voyage.] In Right d. Fisher v. Cuthell,

5 East 491, a lease for twenty-one years contained a proviso that, in case either landlord or tenant, or their respective heirs and executors, wished to determine it at the end of the first fourteen years, and should give six months' notice in writing under his or their respective hands, the term should cease: and it was held, that a notice *to deter

mine the lease, signed by two of the three executors of the [*456 original lessor, to whom he had bequeathed the freehold as joint tenants, expressing the notice to be given on behalf of themselves and the third executor, was not good under the proviso, which required it to be given under the hands of all three; and that, the notice being such as the tenant was to act upon at the time, no subsequent recognition of the third executor would make it good by relation. The principle is well stated in Story on Agency, § 245, where it is said, that, "although the ratification of an unauthorized act of an agent acting without any authority, or beyond his authority, will in general bind the principal, not only as to his agent, but as to third persons, and give the ordinary rights and remedies both for and against him; yet this doctrine is to be received with some qualifications, or, rather, it is not universally applicable. Where an act is beneficial to the principal, and does not create an immediate right to have some other act or duty performed by a third person, but amounts simply to the assertion of a right on the part of the principal, there the rule seems generally applicable. Thus, for example, if a continual claim, or an entry to avoid a fine, or an entry for condition broken, is made by a person having no present authority, the principal may bring an action upon any of these acts, and his ratification or adoption of them will supply the want of an original authority." Again, in § 246, it is said: "On the other hand, if the act done by such person would, if authorized, create a right to have some act or duty performed by a third person, so as to subject him to damages or losses for the non-performance of that act or duty, or would defeat a right or an estate already vested in the latter, there the subsequent ratification or adoption of the unauthorized act by the principal will not give validity

to it, so as to bind such third person to the consequences. Thus, [*457

if a lease contains a condition that it may be determined by either party upon six months' notice, such notice, given by an unauthorized person for the landlord, although subsequently ratified and adopted by the latter, will not be a valid notice to determine the lease. The ground of this decision is, that it is a notice to defeat an estate, and the tenant is entitled to such notice as he can act upon with certainty at the time when he receives it, so that he may deliver up the possession at the end of six months, without being liable to further claims in respect to the remainder of the term. The case is distinguishable from that of an entry without authority for a condition broken; because, in the latter case, the third person's act is not to depend upon the validity of the entry at the time when it is made. The rule omnis ratihabitio retrotrahitur, et mandato priori æquiparatur, seems applicable only to cases where the conduct of the parties on whom it is to operate, not being referable to any agreement, cannot in the mean time depend on the fact whether there be a ratification or not."

A rule nisi was granted "on the ground of misdirection, inasmuch as the act of Cheetham was without precedent authority from the owners, and was not an act which could in point of law be ratified by the de

fendants after the voyage was over, so as to affect the plaintiff; and that the finding of the naval court was not a sentence superseding the plaintiff."

Edward James, Q. C., and Quain, now showed cause.-Whether the dismissal of the captain was wrongful or not, is quite immaterial in this form of action. The captain can only sue for wages where he has earned them and here, from the date of his dismissal, on the 26th of December, 1856, the plaintiff ceased to exercise *the functions of cap*458] tain. Cheetham was acting under a power of attorney, of the contents of which, the document being proved to have been lost, secondary evidence was allowed to be given. The learned judge told the jury that, upon Cheetham's evidence, he had charge of the property of the defendants, and authority to do all that was necessary for their benefit in relation thereto, and that that gave him power to deal with the master as he did,-holding as a matter of law, that the act of Cheetham was authorized; and, further, that if the owner ratified what he had done, they were responsible for it. There clearly was no misdirection in that; and the learned judge was fully warranted in directing the verdict to be entered according to his own view of the construction of the document. The general rule upon the subject of ratification is well stated by Tindal, C. J., in Wilson v. Tummon, 2 M. & G. 236, 242 (E. C. L. R. vol. 40), 6 Scott N. R. 894, 904, where that learned judge says: "That an act done for another by a person not assuming to act for himself, but for such other person, though without any precedent authority whatever, becomes the act of the principal, if subsequently ratified by him, is the known and well-established rule of law. In that case, the principal is bound by the act, whether it be for his detriment or his advantage, and whether it be founded on a tort or a contract, to the same extent as by, and with all the consequences which follow from, the same act done by his previous authority. Such was the precise distinction taken in the Year Book, 7 H. 4, fo. 35,(a)—that, if the bailiff took the heriot, claiming property in it himself, the subsequent agreement of the lord would not amount to a ratification of his authority as bailiff at the time; but, if he took it at the *time as bailiff of the lord, the subsequent *459] ratification by the lord made him bailiff at the time. The same distinction is also laid down by Anderson, C. J., in Godbolt's Reports 109: 'If one have cause to distrain my goods, and a stranger, of his own wrong, without any warrant or authority given him by the other, takes my goods, not as a bailiff or servant to the other, and I bring an action of trespass against him, can he excuse himself by saying that he did it as his bailiff or servant? Can he also father his misdemeanor upon another? He cannot; for, once he was a trespasser, and his intent was manifest.' The rule referred to in the sections quoted from Story on Agency does not apply to this case: neither do the cases as to stoppage in transitu, where the rights of third persons have intervened. And the notice to quit, or to determine a lease, is an exceptional case; because the tenant or lessee is entitled to know at the time it is given whether the notice is a valid and effectual notice or not.

Brett, in support of the rule.-The plaintiff, having in contemplation of law performed his contract, sues for wages. The answer set up, is,

(a) H. 7 H. 4, fo. 24, pl. 1. See 6 M. & G. p. 239, n. (a) (E. C. L. R. vol. 46).