thing to Peter, I give or lend it to Paul, whom I mistake for Peter, the gift or loan is void for want of my consent. The plaintiff supposed he was dealing with a man of full age, and not with an infant, and the fraud which induced the contract, furnishes the ground for the impeachment of it. Thus in the case of Buffington v. Gerrish [ante, 97], where one purchased goods on credit, by means of false representations, and afterwards the creditors of the vendee attached them, it was very well held that the vendor had not parted with his property, but might maintain replevin against the attaching officer. It has been further objected that the writ was delivered to the officer before a demand was made for the goods. It is a sufficient answer that if the defendant had delivered the goods upon the demand, there would have been no necessity to serve the writ. It may be considered as purchased at any moment of the day of its date which will most accord with the truth and justice of the case. And it is evident that it was not to be considered as of any validity until after the demand and refusal to deliver the goods was had.

Judgment for the plaintiff.

By a liberal interpretation, the courts in Massachusetts hold that replevin will lie where detinue formerly would, and therefore the action may be maintained for an unlawful detention: Grimes v. Briggs, 110 Mass. 449; Pirani v. Barden, 5 Ark. 87; Trapnell v. Hattier, 6 Id. 21; Eveleth v. Blossom, 54 Me. 452; Sayward v. Warren, 27 Id. 457. In Ronge v. Dawson, 9 Wis. 251, the principal case is criticised on this point, and the court say: "In Massachusetts, the courts assuming that the action of detinue had become entirely obsolete (though there are numerous modern instances of its use in England, and many of the American states, viz.: Virginia, Kentucky, North and South Carolina, as will be seen by the note and reference to authorities in Badger v. Phinney) by a process of reasoning, to say the least, not a little strained, generously endeavored to apply the action of replevin to cases of unlawful detention, without at the same time infringing the rule that there must be a tortious taking; until the decision of the case of Marston v. Baldwin, 17 Mass. 606, where the broad ground that it would lie under the provisions of their statute of 1789 for an unlawful detention was assumed. Prior to that decision the action was sustained upon the somewhat doubtful position, that one lawfully in the possession of the goods of another might be considered as constructively taking them when he refused to surrender them upon the lawful demand of the owner."

The principal case is more frequently cited on the doctrine that where one disaffirms a contract, he must restore what he has received; and to support this well established point, it is cited in Strain v. Wright, 7 Ga. 572; Carpenter v. Carpenter, 45 Ind. 146; Chandler v. Simmons, 97 Mass. 514; Cogley v. Cushman, 16 Minn. 402; Goulding v. Davidson, 26 N. Y. 608; Henry v. Root, 33 Id. 553; Fulton v. Moore, 25 Pa. St. 478; Mustard v. Wohlford, 15 Gratt. 341; Cummings v. Powell, 8 Texas, 93; Smith v. Evans, 5 Humph. 78; Hogsdon v. Hubbard, 18 Vt. 507.

REYNOLDS v. TOPPAN.

[15 MASS. 370.]

WHEN OWNER LIABLE.-An owner of a vessel is liable for the master's contracts when it appears that the vessel was in the employment of the owner, and the master was appointed by him, and that the latter acted within the scope of his authority.

CASE against the owner of the schooner Margaret for the nondelivery of certain flour at New York. The case was submitted on an agreed statement, as follows: On the fifteenth of May, 1817, the defendant was sole owner of the schooner, and on that day entered into an agreement with one Marshall, whereby he let and chartered her to him for the season, on the following terms: The vessel was to be at the risk of the defendant, and after deducting the first cost of lumber, or whatever she might carry, he was to receive two fifths of the net proceeds, the said Marshall to purchase the cargo at his own expense, to victual and man the vessel, and to pay the said two fifths at the end of each trip, to certain agents of the defendant in Boston or Salem, as the cargoes should be discharged at either of those ports.

Upon this agreement being executed, Marshall took possession of the schooner, victualled and manned her, took the command himself, and made two voyages to ports in Maine, where he loaded her with lumber, agreeably to the provisions of the said agreement. About the first of September, 1817, he, without the defendant's consent, went southward, from port to port. In January, 1818, he was in Philadelphia with the schooner, and offered to take freight to New York. The plaintiff put on board one hundred barrels of flour, and took Marshall's bill of lading therefor in the common form, promising, for a certain agreed freight, to deliver the same at New York. Marshall sailed with the schooner for New York, but was driven by stress of weather to St. Bartholomew's, where he sold the flour; and, having repaired the vessel, returned with her to Massachusetts. The defendant never expressed his dissent or disapprobation to Marshall, nor did he reclaim the vessel, until after this action was commenced. The plaintiff never received any compensation for the flour, or any part thereof.

W. Sullivan, for plaintiff.

Gorham and Peabody, for defendant.

By Court, PUTNAM, J. The plaintiff having produced a reg

ular bill of lading, signed by the master of the vessel, relies upon the general rule, that the owner is answerable for the faithful performance of the contract. This rule must be taken with its qualifications. It is not enough to prove that the vessel was owned by the defendant. It must appear, also, that she was in his employment. It must likewise be proved that the master was appointed by the owner, and acted within the scope of his authority, for no one is answerable for the unauthorized acts and doings of another. It is true that the title to this vessel was in the defendant, but by the agreement between him and Marshall, the latter became the owner pro hac vice. She was in the employment of Marshall, and he directed when and where she should go. He had a right to act as master himself, or to appoint any other master. He also employed and paid the marines, and the expenses of navigating the vessel. The defendant, for a season, had parted with his right to govern and manage the vessel, and Marshall cannot be considered as the defendant's agent or servant.

It would be otherwise if the owner had directed the voyage, appointed the master, employed the seamen, and had become answerable for their conduct. Such was the case of Parish v. Crawford, Strange, 1251, S. C.; and of McIntire v. Bowne, 1 Johns. 229. But in the case at bar, Marshall, who chartered the vessel, must be considered as the owner, according to the principles settled in the cases of James v. Jones, 3 Esp. R. 27, S. C.; Vallejo v. Wheeler, Cowp. 143; Oliver v. Green, 3 Mass. 137 [3 Am. Dec. 96]; and Frazer v. Marsh, 13 East, 137. The defendant may also contend in this case, not only that Marshall was not the master of his appointment, but that he never employed the vessel to carry goods for hire. She was to be used in the coasting trade in the transportation of such cargoes as Marshall should purchase and lade on board her. But Marshall, without any authority from the defendant, instead of buying cargoes, had taken them on freight. In the case of Boucher v. Lawson, Cas. Temp. 199, observed, that "it must appear that the ship was employed in that voyage to carry goods for hire. For anything that appears, this ship might have been sent to Lisbon for a special purpose, and if so, no one could say that the master, by taking goods of his own head could make the owners liable."

Suppose an owner should send his ship from Boston to Charleston, S. C., to take a cargo there belonging to him, to carry to London, and the master, instead of going to Charleston,

should proceed to New Orleans, and take a cargo on freight, could it be supposed that the owner would, in this case, be answerable to the freighter or shipper of the goods? In such a case, notwithstanding the master was appointed by the owner, yet the latter could clearly defend himself on the ground that he never had employed, or authorized the master to employ, his ship to carry goods for hire. From the facts in the case at bar, we are of opinion with the defendant on both grounds, that Marshall pro hac vice, is to be considered owner, and that the vessel has been employed for a different purpose than the defendant directed.

Plaintiff nonsuit.

Showing when an owner is liable, this case is cited in Mosher v. Murphy 121 Mass. 280.

KING V. DEDHAM BANK.

[15 MASS. 447.]

RETROSPECTIVE ACT VOID.-A statute cannot alter the nature and legal effect of an existing contract, to the prejudice of either party, nor give to such contract a judicial construction binding on the parties or the courts. ACTION to recover the amount of certain bills and notes issued by the defendant, in the following style:

"No. 2,062.

DEDHAM BANK, 18—.

To the Cashier of the Middletown Bank at Middletown. Pay to C. Strong, or bearer, on demand, ten dollars, on account of the President, Directors and Company of the Dedham Bank. Dedham, Mass., Aug. 20, 1816.

"JABEZ CHICKERING, Cashier.

WILLARD GAY, Pres't."

Besides the money counts the declaration contained two counts on each bill or note. The first, after alleging the promise of the defendant to pay ten dollars to the holder, stated that the plaintiff, a bona fide holder, had been refused payment according to the tenor and effect of the said bill. The second merely stated an order addressed to the Middletown Bank, and a demand and refusal from the cashier of the defendant, and concluded: "By reason whereof, and by force of the statute entitled 'An act to enforce the payment of bank notes,' and of the statute entitled 'An act to incorporate the president, directors and company of the Dedham Bank,' and of the statute entitled 'An act concerning banks,' the said president, directors and company became liable to pay the sum of said note,

with additional damages, at the rate of twenty-four per cent. per annum until paid; and being so liable, promised," etc.

Presentation and refusal were admitted as before stated. All the bills were dated twentieth August, 1816, and the plaintiff did not show that any had been issued after the passing of the statute concerning banks," aforesaid. The defendants objected that the bills did not agree with the counts; they contended that they were not liable until they had been presented for payment to the party on whom drawn, and payment refused. The judge being of this opinion directed a verdict for the defendants, which was rendered accordingly. The plaintiff made a motion for a new trial.

Savage, for plaintiff, argued that the defendants were bound by the statute to redeem these notes, as other current bank notes payable to bearer. They were not intended to be taken as bills of exchange. They were not received as inland bills. Promises should be performed in the sense in which the parties understood them: Paley, Moral Phil., c. 5, sec. 2.

The statute on which this action is founded has not affected the rights of the defendant. It is merely declaratory; and the defendants are the only corporation to whom it can apply.

Webster, for the defendants, contended: 1. That the evidence did not maintain the declaration, independent of the statute. The declaration is on direct and absolute promises. The bills offered are but evidence of conditional promises, after due presentment. If it were unlawful for the defendants to issue these bills, the plaintiff could acquire no right under the contracts, although perhaps the defendants may be liable to process by quo warranto. These were, and could not be taken as ordinary current notes; 2. The action cannot be maintained by virtue of the statute. So far as it is prospective, no objection can be made; but if retrospective, it is bold legislation. It is void if applicable to a contract already made: Brown v. Penobscot Bank, 8 Mass. 445. The act would make a contract which the parties had agreed should be performed at Middletown, to be performed at Dedham. It is therefore an attempt to operate on a vested right, to adjudicate on an existing fact: 2 Vent. 227; 1 Mod. 310. It is contrary to the United States constitution. The case of Dash v. Van Kleeck, 7 Johns. 477 [5 Am. Dec. 291], was not as strong, yet it was held the statute could have no retrospective effect.

BY COURT. It is very clear that the action cannot be main

AM. DEO. VOL. VIII-8