
    *Cortes against Billings.
    The owner of a vessel who has overpaid money shipped' in the vessel to the shipper, and been ré-imbursed the amount by the 'master, is a competent witness in an action brought by the master against the shipper; forth© "same money, though in the first instance, the owner is liable for 'the default of the master.
    An agent is a good witness, ex necessitate.
    
    This was an action for money had and received. Pled the general issue. On the trial before Mr. Justice Rad-¡cliff, at the last November circuit in the city of New. York, the plaintiff’s, counsel having opened, the case, and stated the testimony of the witness, Hervey, as hereafter mentioned the defendant’s counsel objected to the admission of the witness on the ground of interest. The objection was overruled, and Hervey being sworn, testified, that about the beginning of June, 1796, the plaintiff arrived at New York from New Orleans, in a ship belonging to the witness, and John Hervey of New York, merchants, of which the plaintiff was master; that the plaintiff brought with him upwards of 40,000 dollars in cash, which had been shipped at New Orleans, and consigned to different persons at New York; that the money was lodged in one of the banks by the witness, and his account credited for the amount; that the witness paid thereout from time to time, to different persons, who held bills of lading for the amount due to them, according to such bills ; that 13,061 dollars 37 cents of the said moneys were shipped by the house of Sarping & Co. of New Orleans, of which house the defendant was a partner, and were consigned to J. Thebaud of New York; that one Longchamp, a clerk of Thebaud, soon after the arrival of the said ship, applied to the witness for the last mentioned sum, and also for 566 dollars 37 cents, for which no bill of lading or other voucher was produced; that the witness offered to pay the sum for which bills of lading were shown, but refused to pay the said 566 dollars 37 cents, and Long-champ declined accepting the former sum; that soon after, -on the same day, the defendant in person, applied to the wiu ness for both the said sums, and stated that he had brought the said 566 dollars 37 cents on board the ship for his prk vate expenses, and that when going down the Mississippi from *New Orleans, he delivered the same [*271] "to the plaintiff from a fear that a search would be made at the mouth of the river for money, and that he took the plaintiff’s receipt for the same, which receipt the witness " understood he then had in New York, but could not readily find, and the defendant said he would produce it, or hold himself accountable for the amount; that in consequence of this representation, the witness, on the next day, being the 6th of June, paid to Longchamp, the clerk of Thebaud, the sums specified in the bills of lading, and also the said 566 dollars 37 cents, and took a separate receipt for the latter sum, which receipt being called for by the defendant, was. produced in'evidence on the part of the plaintiff.
    The witness also, on the 26th of June, received the freight for the sum last mentioned, and by his clerk, gave a- receipt therefor. The witness, Hervey, further deposed, that during the above transaction, the plaintiff and. defendant were both in New York, but that the witness did not inform the plaintiff of the payment of the said 566 dollars 37 cents, nor of the receipt of the freight for the same, and believed that he did not know of such payment ; that the money was. received by Thebaud as agent of the defendant, which agency and the receipt of the money by the defendant were admitted ; that afterwards, when the plaintiff And witness settled the account of all the moneys brought in the. ship, they discovered a deficiency corresponding with the sum in question ; that the plaintiff allowed the same in his account with the witness in order to reimburse him, but at the same time denied the defendant’s right thereto; that the defendant resides . at New Orleans, and on his arrival at New York about eighteen months since, the plaintiff caused him to be arrested for the said 666 dollars, 37 cents ; the witness further stated, that he was at New Orleans in the. month of May last, and saw the defendant there, and several times mentioned to him the subject of the plaintiff.’s receipt; that the defendant still alleged that he had such receipt, but did not produce it, and the witness further said, that he had no. interest in the event of the suit. [*272] *The plaintiff having rested his cause; the defendant’s counsel again objected to the competency of this witness, and on that ground moved for a nonsuit, which motion was overruled.
    On the part of the defendant, Longchamp was then examined, who proved the same facts mentioned by Hervey, as far as he is above stated to have been concerned in the transaction.. A deposition of G. Dubuys was also read. Who testified"that he resided at.New Orleans in May, 1796 ; that She ship above-mentioned was there at that time, commanded by- the plaintiff; that she sailed in the same month for New York, and the defendant was a passengerthat he saw a receipt given by the plaintiff to the defendant for 566 dollars 12 cents, and the reason of taking such receipt was that the defendant had, unexpectedly, received that sum at the moment of sailing, and it was therefore not included in the bills of lading; and that the business was transacted in his counting house.
    The witness, Hervey, was again called by the plaintiff, who further testified that it was very difficult to bring money from New Orleans, it being against the laws of that country, and if detected would subject the same to seizure. It was, therefore, usually done by delivering small parcels at a time and giving the shipper separate receipts, and when the whole was received on board, to sign a bill of lading for the total amount and take up the receipts.
    On this evidence it was submitted to the jury to determine, whether the plaintiff had ever received the sum in question, and if so, whether from the non-production of the receipt, and the other circumstances, it was not to be presumed that that the same had been included in the bills of lading. The jury found for the plaintiff for 692 dollars 35 cents damages, being the amount of the sum claimed, including interest and deducting the freight paid for the same.
    On the part of the defendant, a motion was made for a new trial, on the argument of which the following points were raised:
    *1. Whether Hervey was a competent witness. [*273]
    2. Whether the action ought not to have been brought by the Herveys, who were the owners of the ship, instead of the plaintiff, who was the master.
    3. Whether the verdict ought not to be set aside, as being against evidence.
    Riggs, for the plaintiff.
    Mvertson, for the defendant.
   Radcliff, J.

delivered the opinion of the court.

The objections to the witness, Hervey, and to the propriety of the action in the name of the plaintiff, may be considered in one .view. The argument of the defendants counsel as to,both, is founded on the idea that this witness, as one of the owners of the ship, was liable to the'defendant for all the-moneys delivered to the master, and if there was an over-payment, that the owners were entitled tó recover it, and not the plaintiff. It is true that the owners of a ship are generally liable to the shippers, for the skill and fidelity of the master whom they employ. Whether this liability ought to be limh ted to the amount of the property for which bills of lading were actually given, as has been supposed 'by the counsel for the plaintiff, or would extend to all property received by the piaster, in the ordinary course of the trade ih which he was engaged, it is unnecessary to consider. Admitting the responsibility of the owners in the fullest latitude, they were in fact discharged from it in the present case, by the actual payment of the sum in question to the defendant, who, if it Were originally due, could not afterwards maintain an action against them for it. They were also discharged from their' responsibility to the master, by his reimbursing the amount to the.witness, and allowing it in the settlement of their account! The plaintiff might have -disaffirmed the payment, and the witness, Hervey, would then have been compelled to seek his remedy against the defendant. But the plaintiff appears to have considered Hervey for this purpose, as acting in the capacity of his agent,: and having allowed the [*274] *payment, he thereby discharged him from all responsibility, and from all interest either as a witness or a party. It follows, -that if there was an over-payment, it became so much money received by the defendant to the plaintiff’s use.

Allowing the competency of Hervey as a witness, and that the action was rightly brought by the plaintiff, we think the evidence was sufficient to support the verdict. No part of the conduct of the plaintiff can be. construed into an admission that the money in question, was- due to the defendant.

■ On the contrary, considering that the defendant alleged that he had a receipt for the money in his possession, and; that he did not produce it, although he had ample opportunities for that purpose, nor pretended that it was lost; considering also, that the account of the transaction at New Orleans, as given by his witness Dubuys, differs essentially from the account given by himself to Hervey, and that it is probable from the manner in which money is usually shipped from New Orleans, the sum in question, if received by the plaintiff, was included in the bill of lading, we think the jury were justified in the verdict they found, and that it is consistent with, rather than against, the weight of evidence.

Rule refused. 
      
       Generally as to the admissibility of agents, servants, and factors; see Mackay v. Rhinelander, infra, 488. Jones v. Hake, infra, vol. 2, p. 60. Abbot v. Sebor, infra, vol. 3, p. 39. 1 Phill. Ev. Cow. & Hill’s ed. 129 and references. “ Stewart v. Kip, 3 John. R. 256. Burlingham v. Deyer, 2 John. R. 189. Fisher v. Willard, 13 Mass. Rep. 379. Cox’s adm’rs v. Hill, 3 Ham. Ohio R. 423, 4. Trouard v. Beauregard, 1 Mart. Lou. R. 80. Ruan v. Gardner, 2 Condy’s Marsh. 706, b. See the remarks of Underwood, J. in Bank of Kentucky v. M’Williams, 2 J. J. Marsh. 260, et seq.; Also Hicks v. Fitzsimmons, 2 Condy’s Marsh. 706, and Wallace v. Child, 1 Dali. 7.
      “ Thus, in an action to recover the difference upon a stock contract, it was held, that the broker who made the contract was a good witness to prove that he had received a parol authority from the plaintiff to make the contract; Livingston v. Swanwick, 2 Dallas,'300 ; and also to prove every part of the transaction. And the court further said, if the broker or agent were not permitted to give evidence of the instructions he received, (Which were oral in this case, and were usually so in similar cases,) it would be impracticable to ascertain the facts, that are essential to enable the court to decide upon the . merits of the controversy. Id. An agent or attorney is a competent witness for his principal, although the witness, by his testimony, may discharge himself from a supposed liability.
      “ Thus, in an action against an officer for not seizing goods on an execution, which had been attached on mesne process, the attorney who commenced the suit is a competent witness for the plaintiff to prove the delivery of the execution to the officer, being considered by the court an agent for the plaintiff and his supposed liability going only to his credit. Phillips v. Bridge, 11 Mass. Rep. 242.
      “ But in Pennsylvania, an agent to sell lands is not a competent witness to prove his authority. The power of an agent to sell lands is required by statute to be in writing and proved by disinterested witnesses. Meredith’s lessee v. Macoss, 1 Yeates, 200. Nicholson’s lessee v. Mifflin, 2 id. 38. S. C. 2 Dali. 246. Girard’s lessee v. Krebbs, cited 2 Yeates, 38. Plumsted’s lessee v. Rudebagh, 1 id. 502. Nor is the agent competent to prove that a written power had been given, and was mislaid. 2 Dallas, 246. But one who purchased lands as the. agent of another, was held competent, to prove his authority, and to establish the purchase. Miller v. Hayman, 1 Yeates, 23. Steward’s lessee v. Richardson, 2 id. 89.
      “ An assumed agent may be received either to prove or negative the fact of his being .such agent. Cox’s adm’r v. Hill, 3 Ham. Ohio R. 423, 4. Farther as to proofs by agents, and the manner in which their authority is to be established, see Renaudet v. Crocken, 1 Cain. R. 167; Stewart v. Richards, 1 Day, 406, note 1; and Proprietors of Kennebeck Purchase v. Call, 1 Mass. Rep. 483.” Cowen & Hill’s notes to 1 Phill. Ev. 254, 255,96, 97, 98. See also id. 264, for a collection of cases which present the various means of extinguishing, or neutralizing the.interest of a witnéss, besides release and payment.
     