power personified in the respectable, if wealthy, Demon. Protus came in for a castigation. It is said that he had run away because he had been drunk all the time and had embezzled Demon’s money. It was claimed probably that the Syracusans’ money bought the corn to ship it to Athens and that the witnesses for Demon were all suborned. How he explained Hegestratus in accordance with this contention is a subject for a very vigorous imagination. Almost every Greek case seems to have a stale odor of rascality hanging around it.
As we have seen, this sort of transaction was originally provided for in Babylonia. Thence it passed to Asia Minor and on to Athens. The maritime loan ad respondentia, borrowed by the English from the older European commerce, is practically this contract. It appears in the Roman civil law, borrowed from the Greek. It passed with the commerce to the Genoese, the Pisans, the Florentines, and finally to Venice when she held “the gorgeous East in fee.” Wool was imported from England to Bruges in the thirteen hundreds on this kind of contract, and on money supplied by the branch houses of Venetian bankers. An instance will be shown hereafter. As the respondentia loan, it has long been a feature of the English law and most sedulously protected first in admiralty and by the chancellor, then by the common law, after judges of enlightenment pulled out some new mercantile stops in that old, broken-winded instrument.
In the course of time an improvement has changed the rule of risk to the lender. Marine insurance has enabled the lender to exact from the borrower the taking out of insurance for the lender to the value of the goods. There was no longer any maritime risk. In another respect there has been an improvement. The great mass of marine carriage is now conducted by responsible carriers. Their bills of lading are marketable. The bill of lading, symbolical of the goods, by its transfer passes title. The holder of the bill of lading is completely protected while the goods are carried. The lender, by having the bill of lading made out to him, by exacting insurance payable to him, is protected until the goods bought with his advance come to the port of entry. In the simple commerce at Athens the lender, being present at the port, could take possession of the goods and sell them if the borrower did not. He could in any event be present at the sale by the borrower and protect his ownership.
But the plain fact that the straightforward case of Demon must be pleaded on a purely technical defense, that a rascally skipper would dare to sell goods confided to his carriage, and that the purchaser of the goods from the skipper without any title at all could make such a strong defense, shows the law in one of its stages of most glorious uncertainty. It is no wonder that the Greeks by their contracts sought to avoid the necessity for any recourse to their courts. Yet even to-day the lender is always in peril. The Supreme Court of the United States once made a stupid decision that enabled the assignees of a fraudulent importer to prevail over an honest lender.1 The law was correctly held as to the lender’s title, but the decision was ruined by the extraordinary holding that the document which provided that the importer could receive possession of the goods as agents for sale, thereby gave an implied authority to the agent to take out warehouse receipts in his own name. The holding was that a document which provided that the agent for sale could take out documents of title for the account of the lender impliedly authorized the agent to take out documents in his own name. Probably an Athenian jury could have done better than our Supreme Court on this question. That decision was written by a justice,2 who is now practicing law, and it is to be hoped that in the practice he may have an opportunity to learn that a power of agency permitting the agent to take out a document of title for the account of his principal means, as it has, for almost a hundred years, been understood to mean, that the document is to be taken out in the name of the principal. One would think that a trade document in long use would have met inquiry as to the well-known usages of the trade.
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