#### Zachrisson *v.*Ahman.

Replevin in the *detinet,*may be brought when the taking was tortious ; and that form of action does not admit the original possession of the defendant to have been lawful.

Where one claiming the right to bales of cotton on board a ship, for which bills of lading have been signed, demands the bills of lading, it is a sufficient demand of the cotton which they represent.

The charterer of a vessel cannot withhold goods for which the master has signed bills of lading to third parties, against *bona fide*assignees of gutih bills for value, on the ground that the property was his own, and the bills should have been signed to him.

A general clerk of a merchant, who transacts the out-door business of the latter, negotiates purchases and charter parties in the name of and ratified by his principal, and prepares and presents bills of lading for signature on shipping property of *the principal; has*no authority as such clerk, or as commercial agent, to pledge such bills of lading, or to receive advances on the faith thereof.

Such a chief clerk is in no sense a factor, nor is he entrusted with the possession of bills of lading, within the factor’s act of 1830. That statute was intended to protect advances and dealings made on the faith of the ownership of the property, and not on the faith of the possession of the paper title, or the evidences of title.

July 17;

July 27, 1848.

Replevin in the detinet, for two hundred and twenty-one bales of cotton, and for the bills of lading issued for the same cotton ; one set being for 136, and the other for 85 bales ; tried before Sandford, J., June 8th, 1848.

On the trial, it appeared that the plaintiff, a Swedish merchant in New York, in December, 1846, departed for South America, leaving his affairs generally in charge of F. Wissman, a German merchant, in whose counting room the plaintiff kept his office. On his departure, he gave to his clerk, M. A. Súber, *69also a Swede, certain written instructions, among other things authorizing Súber to open all his letters, to forward family and private letters to him; and regarding his business letters as to European affairs, to “ do the needful, and communicate their contents to Mr. Wissman, whom you are aware holds my procuration for transacting them.” As to business letters connected with the house in South America, Súber was to take copies and leave with Mr. Moring, who was to attend to those matters. As to letters from two merchants in Venezuela, Súber was to leave them unanswered, unless some business matter required prompt action, when he was advised to consult Mr. Moring; though if any signature were requisite, Mr. Wissman would have to attend to it. Súber was to correspond with the plaintiff constantly respecting business. Mr. Wissman would furnish Súber the trifling means for office expenses. There were instructions as to keeping the books. “ In shipping goods on my own account, you will select such as are cheapest, most suitable, and which promise best according to former shipments and advices, making out accounts to guide Mr. W. in his opinion.” Then followed specifications, as to various articles of commerce, among which,—11 Cotton. For the purchase of this, Mr. B., &c., is the most reliable person to intrust with the purchase of a given description, if you are not judge enough yourself. Yet Mr. L., cotton broker, &c., would also do you justice, if left to him.” Further on, “ Samples of suitable cottons are also at the store for your government.” Speaking of tobacco, the instructions say,—“Before ordering from Baltimore and Richmond, it will be necessary previously to obtain the prices, so as to enable you to calculate if the price here would be within limits.” Towards the conclusion,—“Of course, in all these matters of purchases, charters of vessels, and every thing connected with the Swedish and European trade, you will always consult Mr. W., who will advise you, as he is responsible to me for a good and faithful execution of the trust I have placed in his hands by means of my procuration.” The power to open letters, was to devolve on Wissman’s clerk, Schenckberg, if any thing should happen to Súber. These instructions were volu*70minous and minute, and generally of such a character as would be addressed to a a merchant’s chief clerk.

The authority from the plaintiff to Wissman, was a full letter of attorney under seal; accompanied with a letter of instructions, as minute and nearly as long as those given to Súber. The letter of attorney authorized Wissman to superintend, manage and conduct, all the plaintiff’s business transactions and correspondence, to and with all persons and places in Europe; to receive and execute orders and commissions; to draw and accept bills of exchange ; to make entries and give bonds at the custom house ; to effect insurances and charter parties ; and to make contracts for .the purchase and shipment of goods on the plaintiff’s private account. The instructions requested Wissman to consult with Súber as to shipments for private account and upon orders; and stated Súber might purchase, guided by W.’s experience and advice. They requested W. to place at Suber’s disposal, sums not above $>10 to $15 at a time, for counting house expenses.

In March, 1847, Wissman, acting for and in the name of the plaintiff, chartered from the house of Grinnell, Minturn & Co., in New York, a Swedish barque, of which they were the agents, to take a cargo of cotton for the plaintiff from New York to Gothenburg in Sweden. The defendant was the clerk in the house of G., M. & Co., intrusted with the business of chartering vessels, and as such, called on Wissman, and proposed to him the charter of the vessel, and stated the terms. After two or more conferences, and considering the terms, W. instructed Súber, (who attended to the plaintiff’s out-door business as clerk,) to take the barque for the plaintiff. Thereupon G., M. & Co., prepared a charter party, dated March 27, 1847, between them as agents of the first part, and the plaintiff of the second part, chartering the barque on the terms stipulated, and sent it, under cover to Súber, to Wissman’s office. Súber examined it, and in plaintiff’s name returned it as correct, upon which G., M. & Co., executed it, and sent it again to W.’s office, who signed it in the plaintiff’s name as his attorney, and Súber attested his signature as subscribing witness. Before the formal charter party was prepared, Súber, in the name of the plaintiff, *71signed at G., M. & Co.’s office, a brief memorandum of the terms which had been agreed upon, drawn up by the defendant. The plaintiff and his agents were, by the charter, to have the entire freighting of the barque.

Wissman, with Suber’s aid as clerk, in the month of April, 1847, bought, paid for, and shipped for the plaintiff, on board the barque, 1189 bales of cotton. There were among others, one lot of 136 bales, and one of 85 bales. Súber filled up the bills of lading for all the cotton so shipped, and left them with the defendant at the office of G., M. & Co., to have them signed by the master. Bills of lading for the 85 bales were signed and delivered to Súber, who kept them in his desk for a few days, and then pledged them to the defendant for money borrowed of him in the name of the plaintiff. These bills of lading were made out to the order of Mr. C. F. Carlborn of Gothenburg. Súber afterwards made out new bills of lading for the 85 bales, in the name of the defendant, and left them with him to be signed by the master, for his security for the loan of $3000, about half of which had then been advanced. The master signed these, on the former being given up. When Súber left the bills of lading for the lot of 136 bales with the defendant for signature, (which was after the delivery of the bills for the 85 bales as security,) he borrowed of the defendant further sums of money, and pledged those bills of lading as security for the loan. He received in all, $6000 in different sums, from the defendant, on the security of the two lots of 85 and 136 bales. For the 136 bales, Súber never had in his possession the bills of lading after they were signed.

In purchasing the cargo for the barque, Wissman bought some lots personally, but nearly all were purchased by S. upon consultation with W. Purchases in a few other instances, for shipment by other vessels, were contracted by Súber without consulting W., but were afterwards approved by him.

When Súber obtained the money of the defendant, he represented to the latter that he wanted to use it for the plaintiff, to pay for cotton already bought to go by the barque. He told the defendant it was not best to mention the loan to any one, as it would be disagreeable to Wissman to have it known. That *72W. was not willing to advance money for the purchases before he could draw against the shipments, and so refund himself.

In fact, no part of the money received by Súber from the defendant, was applied to or for the use of the plaintiff; but it was spent by Súber. When he left the bills of lading for the 85 bales with the defendant to be signed, he left the barque’s receipts for that lot; and when he left the bills for the 136 bales with the defendant as security, he left the receipts for that quantity. The bills of lading left for the 136 bales, were in blank as to the consignee, and so made for the defendant’s security. Wissman knew nothing of these transactions with the defendant till the last day of April, and he never received bills of lading for those two lots of cotton. On calling for them from Súber, he was at first put off; and the next day Súber confessed that he had pledged them with the defendant for advances, and lost the money in gambling. W. then demanded the bills of lading of the defendant, who admitted they were in his possession, but refused to deliver them up. W. proposed to give him security that his rights, if any, should not be affected by delivering the bills to him, but he still declined.

There was some testimony in defence, tending to show that after the plaintiff’s return from South America, in July, 1847, he disclaimed the purchase of the 136 bales ; but W. testified they were bought for the plaintiff’s account.

It was proved, that Súber appeared to have the supérintendence of the cotton for the barque while it was being pressed and loaded.

For all the residue of the cotton shipped by the barque, the bills of lading "were delivered to Wissman. After the discovery of Suber’s misconduct, the master was called upon by W. to sign bills of lading for the 85 and 136 bales, which he refused to do, because he had already signed bills for the same.

The checks in which the defendant advanced the $6000 to Súber, were ten in number, dated from the 14th to the 27th of April, in amounts from $300 to $1500.

The value of the two lots of 85 and 136 bales, at the time of the demand, was $10,551 10.

The defendant, on the evidence being closed, requested the *73judge to instruct the jury, that under the documentary evidence adduced on the trial, Súber was authorized to act as the factor or commercial agent of the plaintiff; and that, as such factor or commercial agent, he was authorized to pledge bills of lading in his hands, for money advanced or negotiable instruments given to him thereon by the defendant in the course of business. The judge refused to give the instructions requested, and the jury rendered a verdict for the plaintiff.

*J. L.*Wendell, for the defendant.

*F. B. Cutting,*for the plaintiff.

By the Court. Oakley, Ch. J.

The defendant contends, that he has a right to hold the bills of lading and the cotton in question, for the advances which he made to Súber; and the principal question in the cause, is whether he has that right.

The plaintiff was indisputably, the owner of the whole of this cotton. The question of fact as to his ownership of the parcel of one hundred and thirty-six bales, was submitted to us on the evidence contained in the case. We have examined the evidence, and have no doubt on the subject.

The first objection made to the plaintiff’s recovery, is that there is no proof of any demand of the property from the defendant before the commencement of the suit; and that a demand was necessary, because it came lawfully into his possession. That the bringing of replevin for the unlawful detention of property, is of itself an admission that its original possession by the defendant, was lawful and not tortious.

There are two answers to this objection. 1. The cases to which we were referred by the plaintiff’s counsel, viz.; *Cummings*v. *Vorce,*(3 Hill, 282;) *Pierce*v. *Van Dyke,*(6 ibid. 613;) and *Stillman*v. *Squire,*(1 Denio, 327;) establish the position that replevin in the *detinet,*lies where the taking of the property was tortious, as well as in cases where the wrong consists in its detention only.

2. Another answer is, that a demand was proved. The plaintiff’s agent, Mr. Wissman, demanded the bills of lading of *74these two parcels of cotton, from the defendant. The bills of lading were the representatives of the cotton, the evidences of the title to the property; and a demand of those evidences, was a demand of the cotton represented by them, and must have been so understood by, the defendant. The demand is therefore held to have been sufficient.

Next, ■ it is insisted by the defendant, that the plaintiff as charterer of the vessel, was *pro hac vice*the owner, and could hold the cotton laden on board of her, and need not deliver it upon the bills of lading, -to the defendant or the assignees of those bills ; and that he could remove the captain of the ship, if he were obstinate and refused to withhold the cotton on the plaintiff’s order to retain it.

This, we must say, is no ground at all. The captain had issued bills of lading for these two lots of cotton, to the defendant and his assignees; which enabled the defendant to dispose of the property to others in good faith for value, by a mere in- * dorsement of the two bills, who could demand the cotton from the master of the ship, whoever he might be, and could hold it by virtue of the bills of lading against any direction or control of the plaintiff; and it is very likely the defendant had so parted with the bills, before any knowledge of the difficulty came to the plaintiff’s agent.

The main question in the cause, is whether the defendant can hold the cotton for his advances, as against the true owner. And in considering the question, we are to regard the advances as having been made in good faith.

It is said, that Súber was the general commercial agent of the plaintiff, and thereby authorized to pledge or dispose of this property for the advances made by the defendant. Arid further, that he was, as agent, entrusted with the possession of the bills of lading ; and his contract, pledging the bills to the defendant, for the payment of the money advanced to him by the defendant, was valid, and barred the plaintiff from'a recovery.

On this subject, it is clear that the plaintiff’s letter of instructions to Súber, affords no pretence for the authority ascribed to him as the plaintiff’s general-or commercial agent. Those instructions are very limited in their character.: They doubtless *75grew out of the fact that Súber, as well as the plaintiff, was a Swede, and Wissman, the plaintiff’s agent, was a German, unacquainted with the language in which much of the plaintiff’s foreign correspondence was conducted; and it thus became necessary to have it interpreted to Wissman; and Súber was therefore,deputed to receive and examine the plaintiff’s letters, keep those which were of a private nature, and furnish to Wissman the contents of the business letters.

The case furnishes no evidence of a general authority in Súber to act for the plaintiff, or of any acts of Súber which were known to the defendant, from which he could infer that Súber had such authority.

The other ground upon which the defence is attempted to be sustained is, that Súber was in possession of the bills of lading of the cotton, having been entrusted with the same ; and that he could dispose of them under the act of 1830, relative to factors, &c., to the defendant acting in good faith, on the strength of such possession.

This ground, in our opinion, entirely fails. A clerk is not within the statute at all. Súber was not a factor in any sense of the word, or an agent for the sale of this property. He had no control at all of the cotton, nor was he entrusted with the possession of the bills of lading, in any other manner than any clerk or porter is entrusted to whom bills of lading are handed to be carried from a shipper’s office to the master, or *vice*versa. Indeed, if Súber had been a factor, the defendant could not hold the cotton for his advances, because he knew from the bills of lading, that Súber was not the owner of the property. The act of 1830 was made for the protection of those who dealt with a factor in ignorance of his not being the true owner. This is well settled by the case of *Stevens*v. Wilson, (6 Hill, 512, and in error, 3 Denio, 472,) cited by the plaintiff’s counsel. The statute was iniended, (as this case decided,) to protect advances and dealings made on the faith of the ownership of the property, and not on the faith of the possession of the paper title, or the evidences of title.

In this case, if Súber were to be deemed a factor of the plaintiff, yet the defendant knew, or ought to have known, that he *76was not the owner of the cotton. On this point also, there is no room for doubt; and we must give judgment for the plaintiff for the value of both parcels of cotton.