
    Stillman & Brother v. Hurd.
    The possession of a cargo by the master of a vessel gives him no authority to sell, except in the casos recognized by the mercantile law.
    It is an established principio at common law that a possessor of personal chattols cannot transfer to another a greater right than ho has himself. This rulo is qualified in England by tho exception of sales in market overt; and in' this country by tho registry laws, where they apply.
    Where a witness for the plaintiff, in answer to a cross interrogatory as to his interest in the suit, replied tiiat he had no more interest in that suit than in any other which might be brought by tho plaintiff, the court said tlie answer was not so directas it should have been, but that fairly construed it established a negative; and that the error, if any, was immaterial, as tho facts necessary to recovery wero established by other unexceptionable evidence.
    It is not competent to prove a custom of captains of coasting vessels, laden with lumber, to make sales in the harbor of Brazos St. lago and along the southern coast of Texas, without other authority for that purpose than tho fact of their being captains, or masters of the vessels. This custom, if any such exist, is in contravention of established law. At all events it is inapplicable in cases such as this, where the manifest repels tho existence of possible authority in the captain.
    The mere fact of suing the master of the vessel who has wrongfully disposed of thé cargo, and afterwards abandoning the suit, constitutes no defense in an action brought against the purchaser for tho recovery of the cargo.or its value.
    Where one wrongfully sells the property of another, and the owner sues the seller and recovers full damages, which are satisfied, he cannot also recover from tho purchaser.
    Error from Cameron. The plaintiff at the port of Sabine shipped on board the schooner Boane, bound for port La Yaca, a large quantity of lumber, to be delivered at said port, to' Sidney E. Sweet or bis assigns. The master, Charles Getty, executed throe bills of lading in the usual form.
    The vessel ran aground a few miles from Indianola; and the consignee, Sweet, who was on board, wont ashore to find a market for the lumber. During his absence the master set sail, and proceeded to the port of Brazos St. lago, where he sold the lumber to defendants through their agent, Mr. Harrison.'
    Tlie plaintiff proved property in the lumber by the production of the bill of lading, a copy of the manifest, and tlie testimony of Sweet, the consignee, and of Scaly, a partner of the firm, who had shipped the lumber on account of the plaintiff.
    It appeared from a bill of exceptions, Unit “the deposition of a certain John “ Scaly was offered by tlie plaintiff; whereupon the following cross interrogatory propounded by defendant to said witness, to wit: llave you any interest, direct or indirect, in this case? Have you been paid for your services? “How? by whom? and for wliat? being read; and I be following answer to the “said interrogatory, to wit: I have no more interest in tlie termination of this “suit than I would in any other which plaintiff might be engaged in, being “also read, defendant’s counsel objected to the reading of tlie deposition, “because,” &c. Overruled; exception.
    Tlie defendants offered to prove “that it was and had been tlie usual prac- “ tice in Brazos harbor, and along the southern coast of Texas, for masters “and captains of coasting- vessels laden with lumber of all sorts, to make “ sale of tho same to purchasers without shewing or being called upon to show “any oilier authority for so doing than tlie fact of their being master or cap'“tain of said vessels in which said lumber was brought, in'for sale.” Rejected ; exception.
    The defendants also offered to introduce the record of a suit commenced by the tho and which was subsequently abandoned. The evidence was refused. Mr. Harrison proved that he had seen the manifest previous to making the purchase. There was judgment for the plaintiff for the lumber, or for its value, with damages for the detention.
    
      Allen Hall, for plaintiffs in error.
    
      S. Powers, for defendant in error.
   Hemphill, Ch. J.

The appellants assign various grounds of error, upon some of which we will comment briefly, but not in the order of their arrangement. The main question in the cause, and which controls it, is, whether tiie master had any authority to make the sale; for if he had not, the appellants acquired no title. Unquestionably the captain of a ship lias, by law, no authority to sell the cargo unless in case's of absolute necessity. In case of shipwreck without the power of transhipment; capture, or other casualty interrupting the voyage; or where it becomes necessary to sell part of the cargo, to enable the vessel to prosecute the voyage ; and in like eases, the master becomes, of necessity, the authorized agent of the owners, freighters and all concerned. And lie has power to sell the goods which are damaged or of a perishable nature; or if any other necessity exist for the sale; but not otherwise. (9 Mass. IÍ., 548; Abbott on Shipping, p. 1 GO, note; Id., 365; Freeman v. TheEast India Company, 5 Bam. & Aid., G17.) But the mere possession of the goods without any authority, express or implied, gives the master no power, and his sale passes iio title. It is an established principle at common law that a possessor of personal chattels-cannot transfer to another a greater right than ho lias himself. If he have neither property nor authority his sale will be invalid. (1 Wils. It., 8; 2 Campb. It., 335; notes to Bickbarrow v. Mason, Smith’s Loading Cases.) There are some exceptions to this rule; as, for instance, under a sale in market overt, in England; under registry acts, if title be not recorded in conformity with their provisions. (Arts. 2774, 2775, &c.) But none of these, or other exceptions recognized by law, are applicable in this ease. There was no such necessity as conferred upon the master any authority. He had none from his possession. All pretense, if any could exist, that he had such, was repelled by the manifest on record at the custom-house, and of which the defendants had full notice ; and consequently no title was vested in them by their purchase.

There was no error in the admission of Sealy’s evidence. His response, as to interest in the suit, was not so direct as it should have, been; but fairly construed it establishes a negative. The error, if any, was immaterial, as the facts necessary to recovery were established by other unobjectionable evidence.

ISTor was there any error in refusing evidence as to the alleged custom of' captains of coasting vessels, laden with lumber, making sale, in the Brazos harbor and aloug the southern coast of Texas, of the cargo, to purchasers, without other authority for that purpose than the fact of their being captains or masters. This custom, if any such exist, is in contravention of established law. At all events it is inapplicable in cases such as this, where the manifest repels the existence of possible authority in the captain.

JSTor was there any error in rejecting the record of the suit brought by the plaintiff against tire master.

Tlio mere fact of suing the master was no ratification of his act.

Had the suit proceeded to judgment, and full damages been recovered, and had they boon satisfied, this action would have been barred, as the law would not permit the plaintiff to recover a double satisfaction. (Morris v. Bobinson, 3 Barn. & Ores., 196.) But in this case (here was no judgment; consequently there was no ground for the admission of the record

We are of opinion that there is no error in the judgment; and it is ordered that the same be aflirmed.

Judgment aflirmed.  