Gordon v. Coolidge. their agent, Dwinal, and by Hatch, as their Attorney. The second is, that the assent of Gilman, Pritchard, & Co. is to be deemed complete and perfect from the moment the letter was put into the post-office at Boston: and as the letter was put into the post-office on the same day, that the attachment was made; and as the trustees have no means of ascertaining and stating with certainty, whether it was on that day before or after the time of the attachment; and as evidence aliunde is not admissible to establish it; the Court ought not to adjudge the parties trustees, as they may thus be rendered twice responsible, if it shall hereafter be established, that the letter was in fact put into the post-office before the attachment. This latter point involves questions of a good deal of nicety, upon which the authorities are not entirely agreed, and upon which much juridical astuteness of argument and opinion has been employed. Whether, then, the assent is to take effect from the moment, when the letter is placed in the postoffice; or from the time when the notice reaches the trustees, the assent is not in the intermediate time withdrawn; whether, if not withdrawn, it relates back after notice to the period, when first placed in the post-office; and whether, if the assent is once given, it can be withdrawn at any time before the letter reaches the trustees, by any intermediate though uncommunicated act;-these are questions admitting of no small scope of argument and observation. Merlin, in his Répertoire, (title Vente, § 1, art. 3, note xi. Vol. 36, pp. 42, 50-54,) to which I have been referred by my brother, the District Judge, has given an elaborate pleading or argument on the subject, in which he has cited many of the continental authorities. It will well reward a diligent perusal. Then, there are the cases of Adams v. Lindsall, (1 Barn. & Ald. R. 681,) and Mc Culloch v. The Eagle Insurance Company, (1 Pick. R. 278,) pressing on the same points. I am studi Gordon v. Coolidge. ous of avoiding any decision on these controverted matters, unless they are absolutely indispensable upon the present occasion. And it does appear to me, that we may dispose of the present case upon the first point already stated; that is, that Dwinal and Hatch had an original authority to assent to the assignment in virtue of the general implied power from Gilman, Pritchard, & Co. to Dwinal, "to obtain security for the note due to them, or its amount in goods." It is said, that there is no proof, that Dwinal had any such authority. But it appears to me, that under the circumstances the fair presumption is, that he had the authority. He acted as upon authority, and gave directions to the Attorneys, and assented to the assignment; and the Attorneys understood him to have full power, and governed themselves accordingly. There is no pretence to say, that Gilman, Pritchard, & Co. have ever repudiated his acts, or denied his powers, or treated him as a tortious interloper in their affairs. That he was an agent to collect their debt, or to secure it, does not seem susceptible of any doubt; and if an agent, we cannot presume a limitation upon his agency inconsistent with his acts. There must be proof to establish that he has exceeded it. The letter of Gilman, Pritchard, & Co. of the 12th of December, in reply to the statement of the proceedings in regard to the assignment, contains no expressions controlling the presumption of authority. They simply express their acceptance of the assignment, without a single intimation, that Dwinal, or McGaw and Hatch, had acted against their instructions. And in a subsequent letter (of the 23d of December), written, indeed, after the attachment of the plaintiffs was known to them, but still evidence in the case, they say to McGaw and Hatch: "We consider, that we agreed to the assignment the moment it was made through yourselves, our agents." Now, the Court are called upon to draw the conclusion from the mere Gordon v. Coolidge. deficiency of positive proof of an antecedent authority, that there was in fact none; and this conclusion is to be drawn against the direct statement of Hatch, that he supposed the firm of McGaw and Hatch fully authorized through Dwinal; and without any corroborative circumstances to fortify it. I cannot persuade myself, that, in a process of this nature, the Court are to indulge in any such latitude of inference and conjecture. We ought to see clearly, that there was no such antecedent authority, in order to defeat the title under the assignment. If the disclosures leave the weight of presumption the other way, the Court are bound to abstain from declaring the parties trustees in the suit, as to the sum retained for this particular debt. And this, upon the most mature reflection, is the judgment to which my mind has arrived. The remaining consideration is, what deductions are to be allowed to the trustees from the small balance in their hands, for which they are liable to be adjudged trustees. That will require further interrogatories to be put to them on this point; and for this purpose, and for this only, should I be disposed to allow any further interrogatories. The District Judge concurs in this opinion, and the cause will be disposed of accordingly. CIRCUIT COURT OF THE UNITED STATES. Spring Circuit. MASSACHUSETTS, MAY TERM, 1834, AT BOSTON. BEFORE Hon. JOSEPH STORY, Associate Justice of the Supreme Court. THE SCHOONER VOLUNTEER AND CARGO, THEOPHILUS PARSONS AND OTHERS CLAIMANTS. The Admiralty has jurisdiction in cases of charter-parties for foreign voyages; and may enforce, by a proceeding in rem, the maritime lien for freight under a charterparty. The general owner is owner for the voyage, notwithstanding a charter-party, if the vessel is navigated at his expense, and by his master and crew, and he retains the possession and management of her during the voyage; and especially, where he retains a part of the vessel for his own use. By the general Maritime Law, there is a lien on the goods for freight, whether shipped under a bill of lading, or a charter-party. But that lien may be waived or displaced by any special agreement inconsistent with such lien. But it is presumed to exist, until such inconsistency appears. A stipulation for the payment of the freight ten days after the return of the vessel, is not necessarily inconsistent with such lien. By the Maritime Law, the ship is pledged to the merchandise, and the merchandise to the ship, for the performance of the contract of shipping. A clause in the charter-party, that the parties bind the ship and goods respectively for the performance of the covenants, payments, and agreements thereof, is a valid clause, creating a pledge or lien on the goods for such performance; and may be enforced against the goods by a detention by the ship-owner for the freight; and by a suit in the Admiralty. LIBEL in rem for freight, brought by Ezra Weston, libellant, against the proceeds of the cargo of the schooner Volunteer, The Schooner Volunteer and Cargo. for freight asserted to be due to the libellant, as owner of the vessel, and earned under a charter-party made by the libellant with Messrs. Bixby, Valentine, & Co. on a voyage from Boston, (Massachusetts,) to Havana in the Island of Cuba, and back again to Boston. In the course of the voyage Messrs. Bixby, Valentine, & Co. failed in business, and the proceeds of the outward cargo, then on board, were assigned to the claimants as assignees for the creditors; and though the voyage was successfully performed, they decline the payment of the freight upon the grounds stated in their answer. The libellant, upon the arrival of the schooner at Boston, refused to deliver up the homeward freight without payment or security for payment of the freight. The parties then agreed to have the same sold, and the proceeds deposited as a substitute, subject to the same claims for freight and process as the cargo might be. The present libel was accordingly filed against the proceeds. The assignees filed a claim and answer denying the jurisdiction of the Court, and the rights of the libellant to any lien for the freight; and praying a restitution of the same to them. The cause was argued by C. P. Curtis for the libellant, and by Theophilus Parsons for the claimants. But the points made by the Counsel are so fully stated in the opinion of the Court, that it is not deemed necessary to state the arguments at large. STORY J. This is the case of a libel in rem for freight earned under a charter-party, brought by the general owner of the schooner Volunteer against the homeward cargo, (the proceeds being substituted for it by consent of parties,) which the claimants assert a title to under an assignment of the charterers, who became insolvent in the course of the voyage. Three questions have been made at the bar. First, whether |