Smith, C. J.,
delivered the opinion of the court.
This was a proceeding by attachment, in the Circuit Court of , Claiborne'county, under the act, providing “a remedy against steamboats, and other water-craft.” A verdict and judgment were rendered against the defendant below, by whom this writ of error is prosecuted.
Several exceptions are taken to the regularity of the proceedings : — First; it is insisted that the court erred, in overruling the motion to quash the writ of attachment; because, 1st. No debt is alleged, or claim asserted against the owner, master, or supercargo of the vessel, against which the writ was sued out; and 2nd, because the attachment bond was insufficient, illegal and void.
. 1. The affidavit is in strict conformity to the statutory regulations on the subject.
The statute of 1840 provides that, “ whenever the owner, captain, master, supercargo, or other person in charge of any steamboat, &c., in any of the navigable waters of this State, shall or may be liable to any action for, or on account of any such steamboat, &c., to any person or persons, who may be ignorant of the name of such owner, &c.j or other person in charge thereof, or any or either of them, it shall be lawful for such person or persons, having a right of action as aforesaid, to prosecute the same by suit against such steamboat, &c., by its name, or by such description thereof, as will enable the officer executing the writ to identify the same.” Hutch. Dig. 288, art. 6. The supplemental act of February, 1841, was passed expressly for the purpose of authorizing persons having a right of action against the owner, captain, &c., or persons having-in charge any steamboat or other vessel, to proceed directly against such steamboat or other vessel by name, whether they know or not the name of the owner, captain, supercargo, or other persons having the same in charge. Hutch. Dig. 290, art. 8.
[709]*709It was therefore unnecessary, under the statute, to allege in the affidavit, that the owner, captain, or other person having the vessel in charge, was indebted to the party suing out the attachment. The process authorized by the statute, was strictly a proceeding in rem. The levy of the attachment was consequently sufficient, and legal notice to the owner or persons interested in the boat, of the pendency of the suit. And as the attaching creditor could not succeed in subjecting the vessel for the satisfaction of his demand, unless upon proof, by legal and competent evidence, of a debt or claim against the owner, captain, or other person having the boat in charge, and for whose contract the vessel would be liable, no conceivable injury could result to any party interested in the attached vessel.
2. The second ground upon which the motion was based, is also untenable. It appears from the record, with sufficient certainty, that the attachment was issued from a court within this State, having jurisdiction of the subject-matter.
3. In the next place, it is insisted that the defendants’ exception to the deposition of William E. Muir, was improperly overruled.
Muir was the captain in charge of the General Worth, at the date of the alleged transaction. And it is said that he was interested, as shown by the evidence, in the success of the attaching creditor. For, as it is argued, he would thereby get rid of his liability to the plaintiff.
If it be assumed that Muir’s statements were true, he was not responsible to the attaching creditor for the contents of the draft. It is equally evident, upon his testimony, that he could not be made liable over to the owners, in the event of their being compelled to pay plaintiff’s demand. On the other hand, if the statements of McDonough, the clerk, who was examined for the defendant, be taken as true, it is manifest that Muir would be responsible to the owners of the Worth, if a verdict and judgment should be rendered against them. It is manifest, therefore, that Muir was not interested, or that he was incompetent as a witness for the boat, having a direct interest in defeating the action. Angel, Law of Carriers, 440, § 469; 1 Greenl. Ev. 394. But Muir was ex[710]*710amined by the.plaintiff, and hence could not be objected to by the defendant.
4. A witness was offered by the plaintiff, who testified that the Worth, at the date of the transaction, was a regular packet on the Mississippi, running between Vicksburg and New Orleans, stopping regularly at Grand Gulf, and that it was the usage of the captain and clerk to receive for collection in New Orleans, drafts and bills of exchange. This testimony was excepted to, and the objection overruled. This action of the court is also alleged to be erroneous.
It was unquestionably competent for the plaintiff to prove the general custom or usage of steamboats, employed as packets between the cities of Vicksburg and New Orleans. Satisfactory proof, therefore, that it was the usage of such vessels to receive for collection, drafts drawn on. the latter place, would, in the present case, have warranted the jury in determining the liability of the owners, in the absence of evidence showing that the collection of drafts and bills of exchange was no part of the business of the Worth, and that the plaintiff was cognizant of such fact. In such cases the law presumes the assent of the owners of a particular vessel to the prevailing usage, and holds them bound by its terms.
The conduct and management of vessels engaged in trade upon the Mississippi, are almost always intrusted to the master, whether he has, or has not, any interest in the boat under his charge. In the latter case, he is the confidential agent of the owners at large; in the former, of his copartners. In either case, the owners are bound to the performance of every lawful contract made by him relative to the usual employment of the vessel. From this, and the principle above stated, it is clear, that the course of the usual employment of the vessel is evidence of authority, given by the owners to the master, to make for them, and on their behalf, a contract relating to such employment; and consequently, a contract so made by him is esteemed in law a contract made by them. Abbott on Shipping, 157. And this principle is in nowise affected by the additional rule, that the master is also personally bound by such contract; for the law in favor of commerce, gives a twofold remedy; a remedy against the master as well as the owners.
Clear proof that such, as stated by the witness, was the usage [711]*711or custom of tbe officers of the General Worth, was prima facie sufficient to fix the liability of the owners. The court was hence, correct in overruling the objection.
5. It is objected further, that the court erred in charging the jury. The following is the instruction to which exception is taken, to wit: “The captain or clerk of the steamboat has the general authority to make all contracts or agreements, to carry on the boat all commodities, drafts or moneys, with or without hire’ or pay, unless it is shown that his authority was restricted in this case.”
In regard to the acts of agents and persons in the employment of a carrier, the maxim, respondeat superior, applies fully. But the principal can only be bound to the performance of contracts made, or be held responsible for acts performed within the scope of the authority conferred.
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Smith, C. J.,
delivered the opinion of the court.
This was a proceeding by attachment, in the Circuit Court of , Claiborne'county, under the act, providing “a remedy against steamboats, and other water-craft.” A verdict and judgment were rendered against the defendant below, by whom this writ of error is prosecuted.
Several exceptions are taken to the regularity of the proceedings : — First; it is insisted that the court erred, in overruling the motion to quash the writ of attachment; because, 1st. No debt is alleged, or claim asserted against the owner, master, or supercargo of the vessel, against which the writ was sued out; and 2nd, because the attachment bond was insufficient, illegal and void.
. 1. The affidavit is in strict conformity to the statutory regulations on the subject.
The statute of 1840 provides that, “ whenever the owner, captain, master, supercargo, or other person in charge of any steamboat, &c., in any of the navigable waters of this State, shall or may be liable to any action for, or on account of any such steamboat, &c., to any person or persons, who may be ignorant of the name of such owner, &c.j or other person in charge thereof, or any or either of them, it shall be lawful for such person or persons, having a right of action as aforesaid, to prosecute the same by suit against such steamboat, &c., by its name, or by such description thereof, as will enable the officer executing the writ to identify the same.” Hutch. Dig. 288, art. 6. The supplemental act of February, 1841, was passed expressly for the purpose of authorizing persons having a right of action against the owner, captain, &c., or persons having-in charge any steamboat or other vessel, to proceed directly against such steamboat or other vessel by name, whether they know or not the name of the owner, captain, supercargo, or other persons having the same in charge. Hutch. Dig. 290, art. 8.
[709]*709It was therefore unnecessary, under the statute, to allege in the affidavit, that the owner, captain, or other person having the vessel in charge, was indebted to the party suing out the attachment. The process authorized by the statute, was strictly a proceeding in rem. The levy of the attachment was consequently sufficient, and legal notice to the owner or persons interested in the boat, of the pendency of the suit. And as the attaching creditor could not succeed in subjecting the vessel for the satisfaction of his demand, unless upon proof, by legal and competent evidence, of a debt or claim against the owner, captain, or other person having the boat in charge, and for whose contract the vessel would be liable, no conceivable injury could result to any party interested in the attached vessel.
2. The second ground upon which the motion was based, is also untenable. It appears from the record, with sufficient certainty, that the attachment was issued from a court within this State, having jurisdiction of the subject-matter.
3. In the next place, it is insisted that the defendants’ exception to the deposition of William E. Muir, was improperly overruled.
Muir was the captain in charge of the General Worth, at the date of the alleged transaction. And it is said that he was interested, as shown by the evidence, in the success of the attaching creditor. For, as it is argued, he would thereby get rid of his liability to the plaintiff.
If it be assumed that Muir’s statements were true, he was not responsible to the attaching creditor for the contents of the draft. It is equally evident, upon his testimony, that he could not be made liable over to the owners, in the event of their being compelled to pay plaintiff’s demand. On the other hand, if the statements of McDonough, the clerk, who was examined for the defendant, be taken as true, it is manifest that Muir would be responsible to the owners of the Worth, if a verdict and judgment should be rendered against them. It is manifest, therefore, that Muir was not interested, or that he was incompetent as a witness for the boat, having a direct interest in defeating the action. Angel, Law of Carriers, 440, § 469; 1 Greenl. Ev. 394. But Muir was ex[710]*710amined by the.plaintiff, and hence could not be objected to by the defendant.
4. A witness was offered by the plaintiff, who testified that the Worth, at the date of the transaction, was a regular packet on the Mississippi, running between Vicksburg and New Orleans, stopping regularly at Grand Gulf, and that it was the usage of the captain and clerk to receive for collection in New Orleans, drafts and bills of exchange. This testimony was excepted to, and the objection overruled. This action of the court is also alleged to be erroneous.
It was unquestionably competent for the plaintiff to prove the general custom or usage of steamboats, employed as packets between the cities of Vicksburg and New Orleans. Satisfactory proof, therefore, that it was the usage of such vessels to receive for collection, drafts drawn on. the latter place, would, in the present case, have warranted the jury in determining the liability of the owners, in the absence of evidence showing that the collection of drafts and bills of exchange was no part of the business of the Worth, and that the plaintiff was cognizant of such fact. In such cases the law presumes the assent of the owners of a particular vessel to the prevailing usage, and holds them bound by its terms.
The conduct and management of vessels engaged in trade upon the Mississippi, are almost always intrusted to the master, whether he has, or has not, any interest in the boat under his charge. In the latter case, he is the confidential agent of the owners at large; in the former, of his copartners. In either case, the owners are bound to the performance of every lawful contract made by him relative to the usual employment of the vessel. From this, and the principle above stated, it is clear, that the course of the usual employment of the vessel is evidence of authority, given by the owners to the master, to make for them, and on their behalf, a contract relating to such employment; and consequently, a contract so made by him is esteemed in law a contract made by them. Abbott on Shipping, 157. And this principle is in nowise affected by the additional rule, that the master is also personally bound by such contract; for the law in favor of commerce, gives a twofold remedy; a remedy against the master as well as the owners.
Clear proof that such, as stated by the witness, was the usage [711]*711or custom of tbe officers of the General Worth, was prima facie sufficient to fix the liability of the owners. The court was hence, correct in overruling the objection.
5. It is objected further, that the court erred in charging the jury. The following is the instruction to which exception is taken, to wit: “The captain or clerk of the steamboat has the general authority to make all contracts or agreements, to carry on the boat all commodities, drafts or moneys, with or without hire’ or pay, unless it is shown that his authority was restricted in this case.”
In regard to the acts of agents and persons in the employment of a carrier, the maxim, respondeat superior, applies fully. But the principal can only be bound to the performance of contracts made, or be held responsible for acts performed within the scope of the authority conferred. In the case before us, the owners of the Worth were bound to the performance of all contracts made in regard to the business of the boat, embraced by the authority conferred upon the persons intrusted with its management and control. And the extent of such authority will be inferred from the general usage of boats engaged in the trade, and from the usage or custom of the persons having the boat in charge.
In the case before us, the evidence shows that it was the usage and custom of the officers of the boat, to receive for collection drafts drawn on New Orleans. This was sufficient to raise the presumption that this usage was sanctioned by the owners, and embraced by the authority conferred; and, consequently, that they were bound by the contract in this case. Upon the hypothesis that this usage and custom of the boat was clearly established, the instruction was unobjectionable. But the question of the conclusiveness and sufficiency of the evidence to establish the usage of the boat, was within the exclusive province of the jury to decide. This seems to have been overlooked by the court. The jury were informed that, according to the law, the captain and clerk of the steamboat had the general authority to make any contract, or agreement, to carry on the boat all commodities, drafts, or moneys, with or without charge, unless it were shown that their authority in this case was restricted- This language of the judge [712]*712was necessarily based upon tbe assumption that the usage was established. Under the instruction, the jury were bound to find for the plaintiff, if they believed from the evidence, that the draft was delivered to the clerk or captain, that it was collected in New Orleans, and thé proceeds not paid over to the plaintiff, without inquiry into the question of the authority of these parties to bind by their acts, the owners of the boat. The instruction assumed as proved, a material fact in issue between the parties, that is, the authority of the captain and clerk to bind the owners of the boat in the manner alleged. Upon any other supposition, the law was incorrectly laid down. For it is certainly not true, as a general legal proposition, that the master of a steamboat, engaged alone in the transportation of. freight and passengers, without authority, express or implied, has the right to make contracts, which would bind the owners, for the receipt and collection of bills of exchange, and the carrying of specie.
For this error in the charge to the jury, the judgment will be reversed, and the cause remanded for a new trial.