Citizens' Bank v. Nantucket Steamboat Co.

5 F. Cas. 719, 2 Story 16

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1811
• Status: Published

Opinion

STORY, Circuit Justice.

This cause has. come before the court under circumstances, involving some points of the first impression here, if not of entire novelty; and it has been elaborately argued by the counsel on each side on all the matters of law, as well as of fact, involved in the controversy. I have given them all the attention, both at the argument and since, which their importance has demanded, and shall now proceed to deliver my own judgment The suit is in substance brought to recover from the steamboat company a sum of money, in bank bills and accounts, belonging to the Citizens’ Bank, which was intrusted by the cashier of the bank to the master of the steamboat, to be carried in the steamboat from the island of Nantucket to the port of New Bedford, across the intermediate sea, which money has been lost, and never duly delivered by the master. The place where, and the circumstances under which it was lost, do not appear distinctly in the evidence; and are not otherwise ascertained than by the statement of the master, who has alleged that the money was lost by him after his arrival at New Bedford, or was. stolen from him; but exactly how and at what time he does not know. The libel is not in rem, but in personam, against the steamboat company alone; and no question is made, (and in my judgment there is no just ground for any such question,) that the cause is a case of admiralty and maritime jurisdiction in the sense of the constitution of the United States, of which the district court had full jurisdiction; and, therefore, it is properly to be entertained by this court upon the appeal.

There are some preliminary considerations suggested at the argument, which it may be-well to dispose of before we consider those which constitute the main points of the controversy. In the first place, there is no manner of doubt that steamboats, like other vessels, may be employed as common carriers;- and when so employed, their owners are liable for all losses and damages to goods and other property intrusted to them as common carriers to the same extent and in the same-manner, as any other common carriers by sea. But whether they are so, depends entirely upon the nature and extent of the employment of the steamboat, either express or implied, which is authorized by the owners. A steamboat may be employed, although I presume it is rarely the case, solely in the transportation of passengers; and then the liability is incurred only to the extent of the common rights, duties and obligations of carrier vessels of passengers by sea, and carrier vehicles of passengers on land; or they may be employed solely in the transportation of goods and merchandise, and then, like other carriers of the like character at sea and on land, they are bound to the common duties, obligations and liabilities of common carriers. Or the employment may be limited to the mere carriage of particular kinds of property and goods; and when this is so, and the fact is known and avowed, the owners will not be liable as common carriers for any other goods or property intrusted to their agents without their consent. The transportation of passengers or of merchandise, or of both, does not necessarily imply, that the owners hold themselves out as common carriers of money or bank bills. It has never been imagined, I presume, that the owners of a ferry boat, whose ordinary employment is merely to carry passengers and their luggage, would be liable for the loss of money intrusted for carriage to the boatmen or other servants of the owners, where the latter had no knowledge thereof, and received no compensation therefor. In like manner the owners of stagecoaches, whose ordinary employment is limited to the transportation of passengers and their luggage, would not be liable for parcels of goods or merchandise intrusted to the boatman employed by them to be carried from one place to another on their route, where the owners receive no compensation therefor, and did not hold themselves out as common carriers of such parcels. A fortiori, they would not be liable for the carriage of parcels of money, or bank bills, under the like circumstances. So, if money should be intrusted to a common wagoner, not authorized to receive it by the ordinary business of his employers and owners, at their risk, I apprehend that they would not be liable for the loss thereof as common carriers, any more than they would be for an injury done by his negligence to a passenger, whom he had casually taken up on the road. In all these cases, the nature and extent of the employment or business, which is authorized by the owners on their own account and at their own risk, and which either expressly or impliedly they hold themselves out as undertaking, furnishes the true limits of their rights, obligations, duties, and liabilities. The question, therefore, in all eases of this sort is, what are the true nature and extent of the employment and business in which the owners hold themselves out to the public as engaged? They may undertake to be common carriers of passengers, and of goods and merchandise, and of money; or, they may limit their employment and business to the carriage of any one or more of these particular matters. Our steamboats are ordinarily employed, I believe, in the carriage, not merely of passengers, but of goods and merchandise, including specie, on freight; and in such cases the owners will incur the liabilities of common carriers as to all such matters within the scope of their employment and business. But in respect to the carriage of bank bills, perhaps very different usages do, or at least may, prevail in different routes, and different ports. But, at all events, I do not see how the court can judicially say, that steamboat owners are either necessarily or ordinarily to be deemed, in all cases, common carriers, not only of passengers, but of goods and merchandise and money, on the usual voyages and routes of their steamboats; but the nature and extent of the employment and business thereof must be established as a matter of fact by suitable proofs in each particular case. Such proofs have, therefore, been very properly resorted to upon the present occasion. In the next place, I take it to be exceedingly clear, that no person is a common carrier in the sense of the law, who is not a carrier for hire; that is, who does not receive, or is not entitled to receive, any recompense for his services. The known definition of a common carrier, in all our books, fully establishes this result If no hire or recompense is payable ex debito justitiae, but something is bestowed as a mere gratuity or voluntary gift, then, although the party may transport either persons or property, he is not in the sense of the law a common carrier; but he is a mere mandatary, or gratuitous bailee; and of course his rights, duties and liabilities are of a very different nature and character from those of a common carrier. In the present case, therefore, it is a very important inquiry, whether in point of fact the respondents were carriers of money and bank notes and checks for hire or recompense, or not. I agree, that it is not necessary, that the compensation should be a fixed sum, or known as freight; for it will be sufficient if a hire or recompense is to be paid for the service, in the nature of a quantum meruit, to or for the benefit of the company. And I farther agree, that it is by no means necessary, that it a hire or freight is to be paid, the goods or merchandise or money or other property should be entered upon any freight list, or the contract be verified by any written memorandum. But the existence or non-existence of such circumstances may nevertheless be very important ingredients in ascertaining, what the true understanding of the parties is, as to the character of the bailment. In the next place, if it should turn out, that the steamboat company are not to be deemed common carriers of money and bank bills; still, if the master was authorized to receive money and bank bills as their agent, to be transported from one port of the route of the steamboat to another at their risli, as gratuitous bailees, or mandataries, and he has been guilty of gross negligence in the performance of his duty, whereby the money or bank bills have been lost, the company are undoubtedly liable therefor, unless such transportation be beyond the scope of their charter; upon the plain ground, that they are responsible for the gross negligence of their agents within the scope of their employment.

Having stated these preliminary doctrines, which seem necessary to a just understanding of the case, we may now proceed to a direct consideration of the merits of the present controversy. And in my judgment, although there are several principles of law involved in it, yet it mainly turns upon a matter of fact, namely, whether the steamboat company were, or held themselves out to the public to be, common carriers of money and bank bills, as well as of passengers and goods and merchandise, in the strict sense of the latter terms; or the employment of the steamboat was, so far as the company are concerned, limited to the mere transportation of passengers and goods and merchandise on freight or for hire: and money and bank bills, although known to the company to be carried by the master, were treated by them as a mere personal trust in the master by the owners of the money and bank bills, as their private agents and for which the company never held themselves out to the public as responsible, or as being within the scope of their employment and business as carriers.

The question has been made at the bar, upon whom, in this case, the burden of proof lies to establish, that the company were common carriers of money or bank bills, or not. It does hot appear to me to be of any great importance in the actual posture of the present case, how that matter is decided. But I have no doubt, that the onus probandi is upon the libellants to establish the affirmative; for, until that is done, no liability can attach to the respondents; and the libellants are bound to establish a prima facie case; and indeed it is scarcely within the rules of evidence to call upon the respondents to establish the negative. But it seems to me the less necessary to sift this matter, since the evidence on the part of the libellants is in my judgment sufficient to establish such a prima facie case, at least to the extent of a compliance with the exigency of the rule. It is abundantly proved, that the masters of the steamboat have been constantly and habitually employed in the transportation of money and bank bills for banks and private persons (as indeed common packet masters were likewise employed long before steamboats existed) upon this very route, and upon the common routes from Kan tucket to other ports. This usage, or practice, or employment, (call it which we may), was so notori-. ous, that it must be presumed to be known to the steamboat company; and indeed, that fact is not controverted. Under such circumstances the natural inference would be, that the transportation of money and bank bills was within the scope of the usual employment of the master in his official capacity, and on account and at the risk of the owners, unless the inference were repelled by other circumstances. The onus probandi then, of disproving this inference, may be deemed to be fairly shifted upon the respondents.

The ground of the defence of the company is, that in point of fact, although the transportation of money and bank bills by the master was well known to them, yet it constituted no part of their own business or employment; that they never were in fact common carriers of money or bank bills; that they never held themselves out to the public as such, and never received any compensation therefor; that the master in receiving and transporting money and bank bills acted as the mere private agent of the particular parties, who intrusted the same to him, and not as the agent of the company or by their authority; that in truth he acted as a mere gratuitous bailee or mandatary on all such occasions; and even if he stipulated for, or received, any hire or compensation for such services, he did so, not as the agent of or on account of the company, but on his own private account, as a matter of agency for the particular bailors or man-dators. Now, certainly, if these matters are substantially made out by the evidence, they constitute a complete defence against the present suit. There are some facts in the case, which are beyond the reach of any just controversy. In the first place, there is no pretence to say, that the company have ever received any freight, hire, or compensation, for the carriage of money or bank bills transported in the steamboat, either from the master, or from the owners thereof, or have ever supposed themselves entitled thereto. No claim of that sort has ever been set up by them against the owners of such bank bills, or against the master, although the carriage of packages of money and bank bills by him has been constantly known and understood by them; nor has the master ever credited them with any sndh hire, freight, and compensation, although he has constantly credited them with the freight of goods and merchandise carried in the steamboat, whenever he has received it. This is a very significant circumstance to establish, on the part both of the master and the company, their mutual understanding of such transactions, — that they were mere private agencies of the master, and not agencies on behalf of the company, authorized by them, either as common carriers, or as manda-taries. There is also a total absence of all evidence to establish that the company ever held themselves out to the public by advertisement or otherwise, through their directors, or the other regular officers of the corporation, as common carriers for such purposes; or that they ever entered into any contracts of this sort, for hire or compensation, directly with any person or persons for whose benefit the money or bank bills were transported. The most, that can be said, is, that the master might well be deemed their agent for such purposes. But that must proceed upon the ground, either that he had full authority, or that he was held out to the public as having full authority, or that his acts admit of no other reasonable interpretation. If his acts may just as fairly be attributed to a private personal agency for third persons, and, a fortiori, if taking all the circumstances, they naturally lead to the latter conclusion, then the presumption of the liability of the company therefor is completely repelled. In the next place, if the testimony of the persons, who have been successively masters of the steamboat is admissible, and is believed, they state facts and circumstances, which directly confirm the material grounds of the defence. They state in substance, that at the successive periods of their command of the steamboat, they have been accustomed to carry packages of bank bills for the banks at Nantucket, and for various private persons, to New Bedford, for several years, to the amount of hundreds of thousands of dollars; that they have always deemed themselves as acting therein as the private agents of the bailors; that they have never received any such packages for the account of the company or by their authority; that they have always done this business as gratuitous bailees, never charging any commission or requiring any compensation as a matter of right, except when requested to give a special receipt therefor, (which, however, was rarely done,) and then they7 charged on their own account a small commission; that they7 have occasionally received from the banks, as well as from private persons, a small compensation for these services, such as they chose to pay, as a mere gratuity, or voluntary recompense, but without any claim of its being due to them as a matter of right or duty; that such gratuities and recompenses have been rarely paid by private persons, and not even uniformly paid by the banks, which were in the constant habit of sending such packages; but it has been sometimes intermitted by them for a considerable length of time; and that, such gratuities and recompenses were never accounted for by them to the company: but were always applied to their own private use and benefit.

Such is the substance of the facts and circumstances, either directly7 stated by the masters, or fairly deducible from their testimony. It is in no small degree corroborated in its general bearing by the testimony of common packet masters, who have been accustomed to cany like packages of bauk bills for the last forty years, and who always treated-such bailments as gratuitous, and as special agencies of their own, and never claimed any compensation therefor, on account of the owners of their vessels. It is also in no small measure sustained by the absence of any positive testimony on the part of the libellants of any instances except those stated by Mr. Starbuck, in which a compensation has been claimed of banks, or allowed by them, as a matter of right by the master, or of its having been paid by individuals at any time otherwise than as a gratuity to the master, or as a personal compensation to him for his services. There is this additional consideration of no small weight, that if these packages were within the scope of the business of the company, and were carried at them risk, and for compensation and hire, it is surprising that there should not have been a uniform course of dealing with all persons sending the packages, and a uniform price, or at least a reasonable recompense, always charged on one side, and paid on the other. Tet there is a total absence of all proof to this effect. It is not pretended that the company7 ever received any such price or recompense, or ever claimed an account therefor from the master; or ever made it an item of charge or credit in their dealings with the bailors. How are we to account for such a state of things, if in truth they were incurring on every trip such vast risks and responsibilities for uncounted sums? One should suppose, that such risks and responsibilities would naturally introduce a regular commission or charge therefor, such as is generally paid in other cases, in nature of a commission del credere or guaranty. It would seem strange, that the company should slumber over their own rights during so long a period, and should indiscriminately receive all such packages from all persons, and yet should not charge any fixed commission, or uniformly claim any from the bailors for such risks and responsibilities. On the other hand, if these were cases of gratuitous bailments, or of personal agencies on the part of the master unconnected with his official duties, or the common business of the company, the state of the facts is exactly what it ought to be; and there is nothing which either requires explanation, or solicits inquiry. On the opposite supposition, there would seem to be many circumstances admitting of no reasonable or satisfactory explanation. But the testimony of the masters has been denied to be competent; and the exception has been especially urged against that of Capt. Phinney. The latter was the master, who took the package of bank bills, for the loss of which the present suit is brought. In order to establish his competency7, notwithstanding his relation to the cause, the respondents upon their direct interrogatories annexed to his deposition, asked him, if he had not received a release from them of all liability on account of the subject-matter of the suit? He answered, that he had, and produced the supposed release and annexed it to his answer. Now, it was first objected, that his answer upon the interrogatories of the respondents was no proper proof of the execution of the release, (whatever might have been the case, if the answer had come out upon the cross examination upon the interrogatories of the libel-lants) but the execution should be proved by the subscribing witness. I thought at the argument, that the objection was untenable, and that it was wholly immaterial, by which party the question was asked; because a witness, producing a release from his own possession, as a part of his testimony, in answer to a question put to him, need not prove the execution of the release by the subscribing witness; but it is to be taken as a part of his testimony. Indeed, when the question was asked by the respondents in order to establish the competency of the party, as their own witness, they would be estopped afterwards to deny it, and the witness having received the release, it would be and must be treated as between him and them as a true and valid release, without any other proof. The case of such a release, produced by a witness, is entirely different from that of a release produced by a party to a suit, to establish his own title. In the latter case, the party must prove its due execution by the subscribing witness. Several of the cases cited at the bar turned upon this distinction. Moises v. Thornton, 8 Term R. 303; Jackson v. Pratt, 10 Johns. 381, were cases where the party to the suit founded his title upon the deed or diploma. The case of Hall v. Connecticut Steamboat Co., 13 Conn. 319, stands upon a distinct ground; for there the witness did not produce the release, nor did it appear ever to have been delivered to him, and his interest was established by independent testimony, and not upon his own examination or cross-examination. Whether some of the dicta in the opinion of the court are maintainable, or not, in point of Jaw, is a matter, therefore, which this court is not now called upon to consider. In all cases of this sort, where the question of eom-tency of a witness arises upon his deposition, and not otherwise, it is to be disposed of upon the interrogatories in the deposition, in the same manner as it would be upon an examination upon the yoir dire; that is to say, the objection of incompetency may be removed in the same way and by the same evidence of the witness, by which it has been established. The doctrine is fully borne out by the language of Mr. Phil-lipps in the later editions of his work on Evidence, and by the cases there cited (Phil. Ev., Amos’ 8th London Ed., 1838, pp. 149-151; S. P. 1 Phil. Ev., Cowen's 7th Am. Ed., 1839, p. 134); and especially by the case of Ingram v. Dada (before Lord Ellenborough, in 1817) 1 Car. & P. 235, note; and Goodhay v. Hendry, 1 Mood. & M. 319; and the case of Wandless v. Cawthorne, 1 Mood, & M. 320, 321, note; and Carlisle v. Eady, 1 Car. & P. 234. Indeed, the only point of difference among the learned judges upon any of these occasions has been, not, whether the release should be proved by other witnesses; but whether it should be produced at the trial by the witness.

Another objection of a more serious cast has been taken to Phinney; and that is, that the release cannot be operative at all to discharge the master from the damages, which may be recovered by the libellants in this case, because it is not a release of a present but of a future interest, not yet vested in the releasors; and for this position the dictum of the court in Francis v. Boston & R. Mill Corp., 4 Pick. 367, 368, is relied on, that a release cannot operate to extinguish or defeat future rights or claims; a dictum, which may be perfectly correct, when applied (as it there was) to a release of future damages for future acts; but which cannot be applied to a release of future damages for past acts, without shaking the well established doctrine. If the argument be well founded, then every person, who is sued as principal, for any act of negligence of his agent, or servant, such as a coachman, or a factor, or a master of a ship, could not by a release restore the competency of such person; and yet, as we all know, this is every-day practice. In the case of Green v. New River Co., 4 Term R. 589, which was an action against the principals for the negligence of their agent, the court held the agent incompetent without a release; and by necessary implication, therefore, held him competent with a release. The same doctrine is abundantly shown to be well established by Mr. Phillipps in his treatise on Evidence, and in the cases there cited. Phil. Ev. (Amos’ 8th London Ed., 1838) pp. 84-104; Id. 152; S. P. 1 Phil. Ev. (Cowen’s 7th Am. Ed. 1S39) p. 56; Id. 134; Com. Dig. “Belease,” E. See, also, Trueman v. Loder, 11 Adol. & E. 589, 596. Indeed, it may be taken as a general principle, in coses of this sort, that a release of all actions and causes of actions, or of a particular cause of action, which has happened before the time of the release, will discharge the witness from all liability depending upon the event of the suit in which he is called as a witness, touching his conduct in the matter on which the suit is founded; for the cause of the liability then existing, the release will operate to discharge that, and incidentally the future damages recovered on account thereof. The cases of Scott v. Lifford, 1 Camp. 246, and Miller v. Falconer, Id. 251, and Cartwright v. Williams, 2 Starkie, 342, are directly in point Another objection was taken to the language of the release; and certainly there was an accidental mistake in it, which might, perhaps, have brought its true construction into doubt, as a release of the present cause of action. But 1 should have had no difficulty, if this objection had not been waived, in deciding, that time ought to be allowed to correct the mistake, as it was obviously a matter of entire surprise upon all the parties thereto. But it does not appear to me, that, upon a just survey of the whole evidence, any thing very material hinges upon the admissibility of any of the witnesses whose testimony has been objected to; for the main facts are abundantly supported by evidence aliunde; and presumptive inferences against its force are equally repelled by the offer, as they would be by the production of their testimony. Now, it is not a little remarkable, (as has been already suggested), that most of the witnesses, who have been examined on each side, agree, that they never supposed the owners responsible,, but they have treated the case as one of a private personal agency of the master, either gratuitous, or as his personal and private perquisite. Most of them have deemed the service gratuitous; and not one of them pretends, that the company ever, to their knowledge, held themselves out as common carriers, for hire, of bank bills; or that they avowed any responsibility for the carriage thereof, or ever demanded any compensation therefor.

The main stress of the argument for the li-bellants is, indeed, founded upon the general proposition, that steamboat owners generally are common carriers not only of passengers, but of goods and merchandise of all sorts, including money and bank bills, for hire. Now, if this were clearly made out, there would, in my judgment, be great difficulty in maintaining, that any evidence would be admissible to prove any usage or custom in this particular business, to exempt them from the ordinary liabilities of common carriers, and to throw the responsibility exclusively upon the masters of the boat. I have in former cases had occasion to express my entire dissatisfaction, with the practice of introducing supposed usages and customs, to control the construction of contracts and the ordinary principles of law. Donnell v. Columbian Ins. Co. [Case No. 3,987]; The Reeside [Id. 11,637], And I greatly rejoice to find, that my own doubts and difficulties have been fully borne out and confirmed by very recent decisions in England, and especially by the case of Trueman v. Loder, 11 Adol. & E. 589, 597-601, where the subject was very elaborately considered by Lord Denman, in delivering the opinion of the court. I am not unaware of the bearing of the cases of Halsey v. Brown, 3 Day, 346, and Renner v. Bank of Columbia, 9 Wheat. [22 U. S.] 582, 590, 591, in the opposite direction, but they are clearly distinguishable. They do not go to the extent of establishing that a local custom or usage will dispense with the principles of law; but merely to establish, in the one case, what the local custom, as to days of grace, was, and in the other case, what were properly to be deemed contracts on-account of the owners of the ship, and what merely personal contracts of the master. That is the very question involved in the present case. It is, therefore, assuming the very point in controversy, to assert, that the company in the present case were common-carriers for all purposes for the carriage of bank bills, as well as for the carriage of passengers and goods and merchandise for hire; and that the master acted as their agent, and on their account, in the receipt of bank bills, as well as in the transportation of passengers and goods and merchandise. That is a matter to be made out by proofs, establishing that it was within the ordinary scope of their business, and adopted and sanctioned by them; or, at all events, that they held themselves out to the public as general carriers to such an extent. It is said, that the owners of a ship are bound by the contracts made by the master thereof, notwithstanding he may have violated his private orders; and this is true, where the act done is within the scope of the ordinary employment of the ship; for to that extent he is held out by the owners as having a general authority. But this doctrine leaves the question quite open and untouched, what is the ordinary employment of the ship; for the master cannot bind them beyond it. Lord Tenterden in his treatise on Shipping (see Johnston v. Usborne, 11 Adol. & E. 549, 557) lays down the rule of law on this subject in its true terms, that the owners are bound to the performance of every lawful contract of the master relative to the usual employment of the ship (Abb. Shipp, pt. 2, c. 2, §§ 2, 3, 6); and he adds in illustration of the rule, that if a ship were built for the purpose of conveying passengers only, or merchandise only, and employed in that particular trade, the owners are not answerable for a contract made by the master to employ the ship for a different purpose or in a different trade; for it does not relate to the usual employment of the ship. Abb. Shipp, pt. 2, c. 2, § 3; Id. § 6. The case of Boucher v. Lawson, Cas. temp. Hard. 85, Id. 194, turned mainly at the argument upon this consideration. The property (gold) there taken on board in Portugal was on freight, and shipped under a bill of lading; and the special verdict found that fact, as also that it was usual, when any gold is exported from Portugal to England, for the master of the vessel to take the whole freight to his own use, without accounting for any part of it to his owners, unless there be some special agreement between them to the contrary, which there was not in that case. The cause was several times argued, and finally went off upon another point. Lord Hardwicke however seems to have thought, that the special verdict was not as full as it should be. He said, that the property being shipped on freight, and freight, being the fruit and earnings of the ship, by the rule of law, belonged to the owners, and the master was only entitled to wages; and, therefore, upon the terms of the bill of lading, the freight would belong to the owners under such circumstances. The usage might not make any difference; for tlien it might amount only to this, that the owners intended to make an allowance to the master of this part of the freight, in consideration of paying him less wages, or on some other consideration; so that it would he but an allowance of part of their own profits to the master; and they would, notwithstanding, be liable. And, therefore, if the finding on the usage was to be taken consistently with the bill of lading, and the reward for carrying the gold was freight, and consequently by the rule of law belonging to the owners, they would be liable for the loss. The whole of his lordship’s reasoning turned upon the peculiar wording of the special verdict, as to the shipment being on freight and technically so called; and upon this, that the taking of goods, on freight was within the scope of the ordinary employment of the ship. But it seemed to be understood on all sides, that if such was not the ordinary employment of the ship, or if the shipment was a mere personal contract of the master, on his own account, and he alone was entitled to the hire, and the owners had no title to the hire as owners, that then and under such circumstances, they were not liable for the loss. See Abb. Shipp. pt. 2, c. 2, §§ 6-9. The case of Dwight v. Brewster, 1 Pick. 50, 54, does no more than affirm that the owners are liable, where they are common carriers, and the profit made by the carriage of bank bills is within the scope of their business and for their account; and that of King v. Lenox, 19 Johns. 235, shows, that the owners are not bound for shipments not made in the course of the employment of the ship on their account, but on account of the privilege of the master. The case of Middleton v. Fowler, 1 Salk. 282, is, however, still more directly in point to the circumstances of the present case. There, the action was against the proprietors of a stagecoach for the loss of a trunk of the plaintiff; and Lord Chief Justice Holt was of opinion that the action did not lie, saying that a stage-coachman was not liable, within the custom, as a common carrier, unless such as take a distinct price for carriage of goods as well as persons; as wagons with coaches; and though money be given to the driver, yet that is a gratuity, and cannot bring the master within the custom, for no master is chargeable with the acts of his servant, but when he acts within the execution of the authority given by his master. See, also, Story, Bailm. §§ 500, 507, and cases there cited. The case of Allen v. Sewall, 2 Wend. 327, is not an authority the other way, for it was reversed upon error by the court of errors of New York. Sewall v. Allen, 6 Wend. 335. If I were compelled to choose between the relative authority of these decisions, upon the ground of the reasoning contained therein, I should certainly have deemed that of the court of errors the best founded in the principles of law. The reasoning of the court below in that case seems to me to have been founded mainly upon an assumption of the-very point in dispute; that is, whether the owners of the steamboat were common carriers of money for hire; for no one can well doubt, that they were not liable therefor, if the ordinary employment of the steamboat, on account of the owners, was confined to-passengers and common merchandise for hire,, and that the carriage of money was a personal perquisite of the master upon his own. sole account, and he received the same and pay therefor, not by their authority, or as a part of their business, or by their command,, but simply at his own personal risk as special bailee. The knowledge of the owners,, that he carried the money for hire, would not affect them, unless the hire was for their account, or the master held himself out as then-agent in that business, as being within the scope of the usual employment and service of the steamboat That is the true doctrine, and is fairly deducible from the case of Edwards v. Sherratt, 1 East, 604. although the circumstances of that case called for a somewhat modified statement of it. The case of Shelden v. Robinson, 7 N. H. 157, directly decided, that the driver of a stage-coach (the proprietors of which were common carriers of passengers, for hire), did not, by carrying packages of money and bank bills for hire,, which he received for his own sole account, become himself responsible as a common carrier; but was merely a common bailee for hire, and subject only to the responsibilities thereof; which necessarily supposes, that he-did not in such cases act as agent of the proprietors in their common stage-coach business; and that they were not responsible for his acts.

In short, in all cases of this sort, the true solution of every question of the liability of the owners of a steamboat must depend upon this, whether the master is acting within the scope of the ordinary employment of the owners of the boat, or not. If the master alone receives the hire for himself, and on his own sole account, and does it as a matter of favor and not of duty, and it constitutes no part of the business or employment in which the owners are engaged, and is not performed by their orders or authority, and they are entitled to no share of the profits, then the owners are not responsible, unless, indeed, the-owners hold aie master out to the public as acting in these respects for them, and as-capable of binding them by his acts. And my judgment, therefore, is that the onus pro-bandi is upon the libellants to establish, that the owners are common carriers to the full extent of incurring liability for the carriage of these bills before they are entitled to recover. If they leave the matter in doubt, that is decisive for the respondents. It is precisely in this view, that the evidence, as to the supposed usage or practice introduced into this case, is admissible, not to show, if the owners were common carriers of bank bills for hire, some usage or practice to treat them as not liable for losses of bank bills intrusted to them, for I am not prepared to say that any such evidence would be admissible to control the well-established rules of law; but as evidence to show what was the ordinary employment or business of the company, and whether they ever held themselves out to the public as common carriers of bank bills for hire, or that the master was authorized as master to contract for the carriage thereof on their account. In this view it appears to me, that the evidence is exceedingly strong and cogent to establish that the public, at large, did not understand that the company ever held themselves out as common carriers of bank bills for hire, or even as gratuitous bailees; or that the masters of the steamboat ever held themselves out as capable or authorized to bind the company by any such contract, or that it was within the scope of the ordinary employment or business of the company. Most of the witnesses, as has been already suggested, treat it clearly as a case of personal agency of the master on his own personal account, either as a common bailee for hire, or as a gratuitous bailee. The weight of the evidence, indeed, seems to lead to the conclusion, that the master acted often, if not generally, as a gratuitous bailee, and that the reward sometimes paid him was either a mere gratuity, or at most a mere personal charge on his own account. If it was a mere gratuity, it would be difficult to show, how the company could be liable therefor, since it would be almost incredible, that they should be willing to incur said extraordinary risks without any compensation; and, indeed, since it might well be questioned, whether any such business was within the scope and objects of their charter. At all events, no presumption of this sort should be indulged, unless upon the most direct and positive proofs, that the company had expressly sanctioned and authorized it. And this leads me to say a few words upon the language of the charter of incorporation of the company, by the act of 1S33. a 11 (7 Mass. Sp. Laws, p. 2S3). That act incorporates the company, expressly for the purpose of running “a steamboat and two other vessels, not exceeding seventy-five tons each, for the convenience of the public travel, and the transportation of merchandise between Nantucket and New Bed-ford, and the intervening places.” Now, certainly, it may be fairly presumed, that the public either knew, or were bound to know, what the powers and rights conferred by the charter upon the company were; and the company are to be presumed not to intend to transcend the powers and rights so conferred, or to usurp other functions. Unless then the word “merchandise” in that act, fairly interpreted in its common sense, includes the transportation of bank bills, it is certain that the company had no authority to engage in such business for hire, as common carriers; and the public had no right to contract with the company for the transportation thereof. The argument, therefore, has been addressed to the court, that bank bills are “merchandise” within the scope and objects and sense of the charter. I confess, that I am unable to accede to the argument. I agree, that the word “goods” may in some connections, (certainly not in all) include bank bills; for the term goods (bona) in the common law has a very extensive signification. So, the word “chattels” may; and a fortiori the word “property,” which is of larger signification. Some of the cases cited at bar go to this effect. In Tisdale v. Harris, 20 Pick. 9, it was held, that under the word “goods,” in the statute .of frauds, the sale of the stock or shares of an incorporated company is included. But the same question has never yet been decided in England; and upon argument, at one time, before all the judges of England, they were divided in opinion upon the point See Pickering v. Appleby, Comyn, 354; 2 P. Wms. 308; Mussell v. Cooke, Finch, Prec. 533; Long, Sales (Rand’s Ed. 1839) pp. 90, 91; 2 Starkie, Ev. (4th Am. Ed.) 608; Id. (2d Eng. Ed. 1833) p. 352; Calye's Case, 8 Coke, 32, 33. In Whiton v. Old Colony Ins. Co., 2 Metc. [Mass.] 1. the same learned court held that “bank bills” were well insured under the word “property,” in a policy on time in the coasting trade. In this case the court placed some reliance upon the nature of the business, the insured being the master, as well as the owner, and therefore contemplating various changes of the property from sales and purchases. But at the same time the court admitted that, ordinarily, bank bills are treated as money or cash. In Turner v. Fendall, 1 Cranch [5 U. S.] 117, 133, the supreme court of the United States held, that money (that is, coin or specie) might be taken in execution; and in Handy v. Dobbin, 12 Johns. 221, the supreme court of New York held, that “bank bills” were money, and might be taken in execution. On the other hand, it was held by Mr. Justice Dampier in Thomas v. Royal Exch. Assur. Co. [1 Price, 195] (Man. Dig. “Insurance,” B. a, pis. 5, 6; 1 Phil. Ins., 2 Ed., p. 172, c. 5, § 2), that although a policy on goods and merchandise will cover specie dollars, yet it will not cover “bank bills.” In Rex v. Beacall, 1 Car. & P. 310, 454, it was held, that an indictment for embezzlement of money, alleged to be the money of certain directors, who were by statute vested wdth “all goods, chattels, furniture in the house of industry, clothing, and debts,” due to the corporation, established by the act, was not sustained by proof, that the money belonged to the corporation; for that the word “goods, chattels,” &c. did not include money. Under a bequest in a will of “goods,” bank bills and money w’ill pass; and under a bequest of “money” bank bills will pass. But no case can be found, at least as far as my researches extend, in which it has been held, that a bequest- of merchandise would include “bank bills.” The term “merchandise” is usually, if not universally, limited to things, that are ordinarily bought and sold, or are ordinarily the subjects of ■commerce and traffic; and is never applied to choses in action, as bank bills really are. In truth bank bills are ordinarily treated as money or currency, and the phrase “merchandise” is used in contradistinction thereto. The fact, that a thing is sometimes bought and sold is no proof, that it is merchandise. A bond, an annuity, a legacy, a debt due on account, may be bought and sold; but no one ■would assert any of these things to be merchandise. They would never pass by a grant of merchandise. A sale of all the goods and merchandise in a certain shop would never be -presumed as intended to include the personal wearing apparel of the owner, although at the time it might be deposited there. It is said, that bank bills are often bought and sold; that is true; but it does not hence follow, that they cease to be currency and become merchandise. Their primary function, that of currency, gives them their common denomination, and they are, therefore, in the ordinary transactions of life, treated as money. They may, if not objected to, be a good tender in payment of a debt. But no person ever supposed that merchandise, in the ordinary acceptation of the word, could be a good tender. In short, the term “merchandise” is usually applied to specific articles, having a sensible, intrinsic value, bulk, weight, or measure in themselves; and not merely evidences of value, such as notes, bills of exchange, checks, policies of insurance, and bills of lading. In the case of Sewall v. Allen, 6 Wend. 335, the court of errors held that a steamboat charter, authorizing the company to transport “goods, wares, and merchandises,” did not necessarily or naturally include the carriage ■of bank bills, so that, unless the company actually made that a part of their ordinary business of common carriers, they were not liable for any loss thereof. Upon that occasion two of the learned judges, constituting a part of the majority, were of opinion that “bank bills” did not fall within the denomination of goods, wares, or merchandises; and another judge held that although they might fall within the denomination of goods, under certain circumstances, yet that they ought not to be held so in that case, unless that was a part of the ordinary business of the company. My own judgment strongly inclines me to the same conclusion; and the reasoning of the judges of that high court, in support of it, appears to me very cogent and striking. But in the charter now under consideration, the word “goods” is not found. If it were, there might be a more distressing difficulty to be encountered in construing it. 2 Williams, Ex’rs (2d Ed. London, 1838) pt. 3, bk. 3, pp. 851, 855, S61, 802, c. 2, § 4. As it is, I have not been able to persuade myself, that either the corporation or the legislature, under the word “merchandise,” meant to include “bank bills,” as an object of regular transportation for hire. At all events, if they did, it seems to me, that the word merchandise, ordinarily, has a much more restricted meaning, and in this respect I adopt -the doctrine of the court of errors of New York. It is incumbent upon those, who assert, that the charter includes such an expanded meaning, to show by some clear and determinate proofs, that the company have positively adopted and acted upon that meaning. If they had advertised, that they would transport merchandise or freight in their steamboat, it would hardly be pretended, that the public were misled, by supposing, that it included transporting bank bills for hire, unless some unequivocal act of the company established that interpretation beyond controversy. There is no evidence in the present case, that the company ever did intend to receive any bank bills for transportation for hire, or held out such an intention to the public, or ever gave any authority to the master, to receive it on their account. All his acts admit of a very different interpretation, whether the compensation received by him was a gratuity or a price for the service, and are of just such a character as must occur, if he was acting on his own personal account, and at his own personal risk, and for his own personal .advantage, or his desire to oblige others. It is no sufficient answer, that the company did not give notice, that they would not be responsible for the acts or negli-gences of the master, in the carriage of bank bills. Such a notice could be required only in cases, where they had reason to believe, that the master held himself out to the public as entitled to contract on account of the company, or it was an act done within the ordinary scope of their business or employment.

In the view, which I have taken of the law applicable to the present case, and the evidence produced by the parties, it has been unnecessary for me nicely to compare and sift the relative credibility of those of the witnesses, whose testimony is in contradiction to each other, because the facts, which stand uncontradicted, or are supported by an unequivocal weight of evidence, in my judgment satisfactorily dispose of the whole merits. The result to which I have arrived upon a review of the evidence, is, that the company never intended to be common carriers of bank bills for hire; that they never held themselves out to the public in that character; that they never authorized the master to contract on their account for the carriage thereof; that he never intended to do so, or held out to the public that he had any authority; that all the contracts made by him for the carriage of bank bills, were designed by him to be his own personal contracts, and upon his own personal responsibility; that for the most part the services performed by him in the carriage of bank bills were gratuitous; and even when he received any compensation, it was commonly received by him as a gratuity, and not as a matter of right, although there were some instances to the contrary. That the public generally, although not universally, seem to have understood these to be the' mere personal contracts of the master, and not at the risk, or for the account of the company; or, at least, that this was a common impression among many of those who intrusted him with the carriage of bank bills; that the charter of the company does not seem to have contemplated the transportation of bank bills as an ordinary business or employment of the company, even if capable of being construed to include the right so to do, under the term “merchandise;” and, therefore, clear and unequivocal proofs ought to exist, to establish the broader construction on the part of the company, before they should be affected with liability therefor; and, finally, that in this case there are no such proofs. Under such circumstances, it seems to me that the decree of the court below, dismissing the libel, ought to be affirmed. In delivering this opinion, I have studiously abstained from deciding, whether the master in this case was guilty either of gross or of ordinary negligence, in the loss of this package of bank bills, because that question may yet arise, and be brought directly in judgment in a suit against the master. I feel, however, bound to say, that if I had been entirely satisfied, that the master was not guilty either of gross or of ordinary negligence, I should have been spared the many other laborious inquiries, to which this opinion has been addressed. It is the doubt on this head, brought to my mind, which has compelled me to go at large into all the other grounds, upon which I hold the company absolved, even if the master was guilty either of gross or of ordinary negligence.

In the course of the argument it was intimated, that in libels of this sort, the proceedings might be properly instituted both in rem against the steamboat, and in per-sonam against the owners and master thereof. I ventured at that time to say, that I knew of no principle or authority, in the general jurisprudence of courts of admiralty, which would justify such a joinder of proceedings, so very different in their nature and character, and decretal effect. On the contrary, in this court, every practice of this sort has been constantly discountenanced, as irregular and improper. The case of The Triune, 3 Hagg. Adm. 114, was cited at the bar, in support'of the right to join the proceedings. That case is very imperfectly reported. But it appears that the original proceeding was in rem against the ship, for a collision, and that Wardell, who was the master, and also the principal owner, and to whose negligence the libel attributed the collision, alone appeared in the suit. By the statute of 53 Geo. III. c. 159, the owners, when the loss has been without their fault or privity, are not liable beyond the value of their ship and freight; but the owners, who are in fault, and' the master also, are liable to full damages to the extent of the injury done to the other party. No bail was given. The freight was brought into court, the ship was sold, and the proceeds falling short of the damages by £400, a monition issued against Wardell to pay that sum, which failing to do, he was imprisoned upon an attachment, moved for and granted by the court Now, it is apparent, that there was a great peculiarity in this case, Wardell being the sole party, who intervened, and being by the statute liable for the full damages. A monition issued before the attachment was granted; and if that monition was preceded by a supplementary libel, or act on petition, stating the facts of the sale of the ship, and the deficiency to pay the damages, the proceeding was clearly regular and right. But if no preliminary proceeding was had, I confess that I do not well see how a proceeding, originally in rem, could be prosecuted in personam against a party, who in such proceeding intervened only for and to the extent of his interest. Probably there were other circumstances which varied the general rule. At all events, I am not prepared to accede to the authority of this case, if it is to stand nakedly, and only upon the circumstances above stated. In cases of collision, the injured party may proceed in rem, or in personam, or successively in each way, until he has full satisfaction. But I do not understand how the proceedings can be blended in the libel. The case of The Richmond, 3 Hagg. Adm. 431, is a case more conformable to my notion of the practice. But there the ship was not arrested; and the proceedings were in personam against the owners.

On the whole, I am of opinion that the decree of the district court ought to be affirmed; but as the appeal seems to me, under all the circumstances, in a case of such novelty and intricacy, to have been fully justifiable, I should have inclined to award that one half of the respondents’ costs in this court should be borne by them, and the other half should be borne by the libellants, if it could have been done without breaking in upon the settled practice of the court As it is, the respondents must take their full costs.