
    DECEMBER TERM, 1829.
    Pawson’s Adm’rs vs. Donnell. Donnell vs. Pawson’s Adm’rs.
    It is the unquestionable and exclusive right of the Jury to decide on facts, of the existence of which, contradictory testimony is adduced.
    The owner of a ship and cargo has the uncontrolled power of breaking up, or changing the voyage.
    The principles which should govern such cases, in the absence of all commercial usage on the subject, and by which the effect of its action on the contract of the ship master or supercargo with the ship owner, is to he determined, are
    1st. If by the exercise of this privilege a special injury is done to either, the ship owner must bear the loss, and make a reasonable indemnity.
    2. If by the change of the voyage, the captain or surpercargo be necessarily discharged from the performance of all the duties, for which a remuneration has been stipulated, his claim to such remuneration is thereby extinguished.
    3. If a part of the duties have been executed, then such a proportion of the stipulated compensation should he allowed, as appears just on comparing the services rendered, with those which remain unperformed. For the interpolated part of the voyage, the usual compensation must be paid. The parties should be placed, as nearly as may be, in the same condition in which they would have stood, had a previous contract for the voyage as changed, been entered into between them. To all the customary emoluments of a captain, or supercargo, on such a voyage, are those officers respectively entitled.
    A ship master, who was also the supercargo, was directed to proceed with his ship to several ports; his compensation, in addition to monthly wages, was a sum' certain, with a privilege of bringing home a specified quantity of merchandize from one of such ports. After a part performance of the voyage; the ship owner changed its direction,, and shoidened it; so that the port at which the privilege might have been exercised, was not visited by the ship; before the termination of the voyage, the ship master died'. Held that the privilege was so inseparably connected with the vessel’s destination to the particular port, at which it was to have been .exercised, that upon its ceasing to he one of the termini of the voyage, the privilege of necessity expired, and that the sum certain stipulated to he paid the captain' had relation to the voyage as originally contemplated, and was therefore subject to abatement, in the discretion of the Jury. First, for the alteration of the voyage, if they believed, that the ship master’s labour and responsibility were thereby lightened and, secondly, for that portion of his contemplated services, which were lost by his death.
    The misconduct of a captain or supercargo, which produces neither injury nor ineonvenience to his employer, forms no defence to the payment of his wages..
    The- consignees- selected by a ship master or supercargo in a foreign port, according to the usual course of trade, and in good faith, are so far the agents of the-owners of the ship and cargo, that- upon the death of the captain or supercargo,, his representatives are not responsible for the consequences of the neglect' or misconduct of such consignees, in the execution of their agency after-his death not imputable to instructions given in the life of such- captain or supercargo.
    Ashipment- of merchandize, whose exportation is prohibited, made by a supercargo for aceonnt of. his principal, is at his own risk, and if seized and condemned at the place of exportation, the supercargo must hear the loss.
    The acceptance-by a ship owner of the letters and invoices sent to him by the consignees of his ship in a foreign port, is not such aratification of the acts of those agents, as would throw a loss arising from the seizure of merchandize exported against the laws of tho- port of shipment by them, for his-account, upon such ship owner.
    These- were Cross Appeals from Baltimore County Court, from a; judgment rendered in an action of Assumpsit in favour @£ the plaintiffs, (the appellants in the first and appellee in the second of these appeals) against the defendant (the appellee in the first and appellant in the second of these appeals.) The declaration contained two counts—One for work and labour, &c. goods, &c. sold and delivered, money lent, and for money had and received; and the other on an insimul computassent, between the defendant and the plaintiff’s intestate. The defendant pleaded non assumpsit, and issue was joined. It was agreed between the parties, “that the defendant may give in evidence under his plea, any items of account which he may have in bar of the plaintiff’s claim, and which he might legally set off, or give in evidence, had he filed an account in bar or given regular notice of set off”—Also, “that all errors in the pleadings be mutually released, and that each parly shall be at liberty to give any special matter in evidence under the issue joined.” Also, “that' by the shipping articles entered into in relation to the voyage referred to in this case, John C. Pawson was to receive the sum of sixty dollars per month, as captain of the ship Chesapeake; and that the sum of $2000, also referred to in these proceedings, was a compensation agreed to be paid to him, as stated in the letter of instructions, dated the 18th of November, 1819.”
    1. At the trial of this cause, the plaintiffs read in evidence, by consent, the following letters of instructions: the first dated Baltimore the 18th of November, 1819, from the defendant to the plaintiffs’ intestate, John C. Pawson, viz:
    “ With my ship, Chesapeake, of which you are commander, you will proceed with all possible despatch, to the port of London. On your arrival, you will deliver my letters to John Ilorslman, Esq. to whom your ship and cargo are consigned. In the discharge of the cargo lose no time, and be careful to have it delivered in good order. It may be advisable, that immediately on arrival, you will engage sufficient ballast for your ship, and in every other respect provide what may be necessary to perform a long voyage. When so prepared, apply to Mr. Ilorslman, who will deliver you, on my account, eight thousand doubloons, which you will endeavour to ship on board without the knowledge of your crew. If they arc under a belief that you have no specie, less danger may be apprehended from them; but I recommend to you never to be off your guard. With the ship, and the coin on board, you will proceed to the port of Coquimbo, in Chili, for the purpose of loading entirely with copper, and with it proceed to Canton; there dispose of it, and with the proceeds, load your ship agreeably to the list I have furnished, and return with the same direct to me here. On jour arrival from London at Coquimbo, you must not let it be known the quantity of copper you want, nor of your having only doubloons to purchase it. In the purchase of the copper, if made known how much you wanted, the price would be raised on you, and in relation to the doubloons, if it should be known that you have nothing else to purchase with, it might have the effect of reducing their value. There can be no doubt, from the best information I have, that they will bring fj 17J, and may exceed that by receiving for them the coined dollars under the present government there. All these points you must attend to. If you have the means of completing the purchase, you must put on board at least 12,200 'quintals. It may be necessary to apprise you, that much benefit may accrue by your attending and making the proper arrangements for receiving and weighing the copper. I suppose it to be useless to mention the necessity of discharging from the ship every pound of ballast, or useless matter on board of her, before you take the copper on board, because every pound so discharged, enables you to put in place thereof a pound of copper; Since writing the above, on examining letters from Chili, dated in January last, it appears there is a paper currency, depreciated in its value—this being the case¿ and that this depreciated paper is payable and receivable for the products of the country, I say, if this is the case, much benefit might be made by selling the doubloons for the paper money; but you might find that with the coin you could even do better to purchase, and pay in it, than to first sell your coin for the depreciated currency, and to purchase and pay with it. In all these points, you are to make your estimates and calculations. About two years since, I sent my schooner Midas, Capt. Dickinson, with Edward McClure, supercargo, who loaded the schooner at Coquimbo, with copper, and despatched her to me. MlClure remained at Valparaiso, to dispose of a part of the outward cargo then unsold, and close the entire business of the voyage. He would certainly be there until the month of September, and he may still be at Valparaiso on your arrival at Coquimbo. Should you see him, and he has any funds of mine, or that he has departed from thence, and you find he has placed any of my property in the hands of any person there, in either case, I authorise and empower you to receive and carry it with you, either in copper or Spanish dollars, of the old coin. Mr. Richard R. Boughan, residing at Valparaiso, will give you every information in relation to the affairs of Mature, should he have left that country before you arrive. Boughan ought to have property of mine in his hands from a former transaction, which I authorise you to receive from him also. Boughan may betable to give you useful information. Be particular in the purchase of every article in Canton, to have them of the very best quality, and more particularly that the teas are so. To prevent misunderstanding, I deem it necessary to state your compensation to be two thousand dollars, payable on your return, with a privilege from Canton, not to exceed twenty-five tons, but it is to be understood that you are not to put any copper or heavy article on board at Chili, as my views are that you completely load her there with copper, and that only for my account. After my property and your privilege are on board, and the ship should not be full, if freight offers deliverable here, you will accept it.
    “ Should you fail in procuring copper at Chili, you will proceed in the ship with the doubloons direct to Batavia, where they are rated as high as in Chili, and with them purchase an entire cargo of coffee, which will require with proper storage from 8,500 to 9,000 picols. This quantity was brought in her by Captain Munn, but she was full in every part. Do not purchase a picol of sugar; and should your funds prove insufficient to fill her, I authorise you to draw bills for my account on Messrs. Baring, Brothers &f Co. of London, or on Messrs. Hope Co. of Amsterdam. When you complete your business in Batavia, you will proceed from thence direct to this port. In stating your privilege, it is to be understood the twenty-five tons are measurement, and if in weighty articles, twenty-five thousand pounds.
    The other dated Baltimore, the 26th December, 18,19, from the defendant to the plaintiff’s intestate, viz:
    
      “ I think it is probable you are this day in London, notwithstanding I have concluded to address you, and to take the chance of its reaching you before you depart from thence. The object is-to state to.you, that from mature reflection, supported by various calculations, resulting in a conviction that the voyage will turn out to better advantage by returning direct from the coast of Chili to Baltimore with copper, than to proceed with it from thence to .Canton, as originally intended. I •need not remark to you the great difficulty and delay (arid without an' adequate profit) of realizing a Canton cargo in this market. It is not to be accomplished, and I would consequently be •compelled to send it from hence to Europe, where no gain can be calculated upon. I therefore revoke and countermand the •orders I gave to you to proceed from Chili to Canton, and now substitute that you will return with the ship and cargo of copper direct from the coast of Chili to Baltimore. As relates to ■the investment and disposal of your own funds, you must use your own discretion by investing it in copper or- any thing else, •and bringing it with you in the ship—the .copper may (as I hope it will) be bought on terms' that will, with my funds and yours, load the ship very deep, but if necessary you must load her very deep. Should you fail in getting copper on the coast of Chili, you will immediately, on finding it so, proceed from ¡thence to Samarang, in the Island of Java, and there invest my funds and your own in coffee, (no other article of the produce of fhe Island will answer) and proceed from thence direct to Baltimore. The government of Batavia may object to your loading at Samarang, being an out port, but you must use every .means in your power to obtain from the government a permission, as you will be able to put on board coffee at Samarang, two or three dollars pr. picol less than at Bdtavia.”
    The plaintiffs also offered in evidence that the ship Chesapeake, at the date of the said letter, and before,, was owned by ' Donnell, who continued to be the owner of the said ship during the voyage hereinafter mentioned, and until and after her return to Baltimore, as hereinafter stated—that Pawson, now de■ceased, wás master and supercargo of the said ship, at tire date of the said letter, and so continued until his death at Coquimbo\ as hereinafter mentioned. That the said vessel sailed on the said voyage from the port of Baltimore, November 19th, 1819,. and arrived at London January 25th, 1820. That she sailed on the 4th day of May, 1820, from London for Coquimbo, and arrived there on the 15th of August, 1820, and sailed from Coquimbo for Guaseo in January 19, 1821, arrived at GuaseoJanuary 21,1821, and continued there until January 29, 1821, when she sailed for Baltimore. That, after being out only six-hours, the ship sprung aleak, and put back to Guaseo, where she remained until February 7,1821, when she sailed for Coquimbo, and remained there until July 9,1821, when she sailed for Valparaiso, where she arrived on the 12th July, 1821, and remained there until the 19th of that month, when she sailed for Baltimore, where she arrived October 1,1821- That Pawson died at Coquimbo, December 4th, 1820, when the mate, Thomas JL Lane, took charge of the ship, and continued master and commander until she returned to Baltimore, as above stated.
    The plaintiffs’ then offered and read in evidence, the following letters and papers,, which were admitted to be in the handwriting of the respective parlies thereto, viz: A letter from the-plaintiffs’ intestate to the defendant, dated London, the 7th of February, 1820.
    “ After a very long and fatiguing passage, I arrived in the river on the 23d ult. without any material damage—In consequence of our ship’s heavy draught of water, we were delayed, several days in getting up. We are now about two thirds discharged, and proceeding with all possible despatch. As the ship wants caulking in the bends and upperworks, and a new beam in her (one of them being broken entirely off) I have concluded to put her into a dry dock where it can be done with more despatch and facility, and will not increase the expense above £5, and it will afford a cheap opportunity to examine her bottom, as the copper may have been injured when she lost her rudder. I am sorry to find that doubloons cannot be got at the price you contemplated, and that the quantity cannot be procured in London—Ahoy have only yet got about one third of the number wanted, but have no doubt they can be obtained from France and Holland, they, by the last accounts from Paris, are quoted lower than they cost here, from which circumstance Mr. Horstman thinks they are plenty there—the price here is 75 1-6 per oz.
    “ I have had the pleasure to receive your letter of ,the 26th December, in which you are pleased to alter the original intention of the voyage, which will be cheerfully and strictly attended to, and if on my arrival at Chili, I should find it necessary to proceed to the island of Java, no exertions shall be wanting to have your wishes fulfilled in getting the cargo of coffee only at SamarangP
    
    Another letter from the plaintiffs’ intestate to the defendant, dated London, the 27th of April, 1820. .
    “On the 24'th inst. Mr. Horstman addressed a letter to me, stating that in consequence of the advanced price of doubloons, and the probability that the flour would not produce, so great a sum as you calculated on, the funds you had provided him with, would not be sufficient to fulfil your order in the purchase of the eight thousand doubloons which I am directed to receive from him, and requested me to state in writing what I thought best to be done—In answer to which I wrote him that in my opinion had you foreseen or supposed any deficiency such as above mentioned, you would not have ordered a less quantity of doubloons but would have made the requisite provision to obtain the full quantity of eight thousand. I was the further confirmed in this opinion by reflecting that your only object in sending the ship to London.was to obtain the doubloons, and to be disappointed therein would frustrate the ultimate object of the voyage you had in view. I was, therefore, clearly of the opinion that you would expect him to supply the deficiency (which was about 950 doubloons) so that your ship might proceed without further delay. With this answer he was satisfied, and continued the purchase, and has now ready 7650 doubloons, leaving a deficiency of 350, which he thinks can be obtained in one or two days. Under these circumstatíces, we have fixed on the first day of May for the departure of the ship, with determination of taking what may then be deficient, in dollars, rather than incur further expense by delay. In consequence of the scarcity of doubloons, I have thought it adviseablc to invest my own funds in merchandize, in hopes that it may do as well, and because I would not interfere in any manner with your business, I therefore request that you will effect insurance from hence to Coquimbo, on the following merchandize and amount: 1 bale 8 cases British piece goods,” &c. the whole amounting, with commission, &c. to £1115 13 3.
    “ I shall send copies of the invoices to my family, in case they should be necessary. The circumstance of the crew nearly all running away, after I had paid them the month’s advance they were to receive here, and my being obliged to advance others two months’ pay, this long and unavoidable detention, and the great necessities of the ship in sails, cables, &c. which was indispensable for the voyage, has added greatly to the disbursements, the bills of which Mr. Ilorstman will forward to you; but being now supplied, I shall be careful to keep the expenses for the remainder of the voyage, as low as possible, which I trust will appear to your satisfaction in the event.”
    A letter from Horstman to the plaintiffs’ intestate, dated London, the 24th of April, 1820.
    “ You have been verbally acquainted by me of the difficulties which have arisen since Mr. John Donnell despatched the Chesapeake to my address with a cargo of flour, and with order to invest the proceeds, and a credit of £21,000, on Messrs. Varkevessar, Derrapool fy Brown, of Rotterdam, in the purchase of 8000 doubloons.
    „ “You are aware that the literal execution of this order has become impossible by circumstances. You know that of the flour I have only been able to sell about 700 bbls. and that the remainder remains on my hands—that I cannot, i'or the present, sell it, and that the ultimate proceeds o.f the 4721 bbls. is uncertain. You have been eye-witness of the impossibility of getting the doubloons otherwise than gradually, and this part of the business has only lately taken a turn by the unexpected arrival of about 1600 doubloons from the Mediterranean, and think the remainder, (about 900) or very near, may now be had. But. the £21,000, and the amount of the 700 bbls. which are sold, are not, by far, sufficient for the draft of Mr. Donnell for .£1160, to your order, together with the ship’s expenses, and the cost of the 8000 doubloons; and if you judge that, under all the circumstances of the case, it is necessary for Mr. DonnelVs interest that the deficiency be supplied by me to make up the 8000 doubloons, I am ready to do so, in order to get the vessel away immediately, and to furthering Mr. DonnelVs ulterior views in this affair. You will therefore please to say, in writing, what you deem to be for Mr. DonnelVs interest, and what you wish me to do?’
    A letter from the plaintiffs’ intestate to Horstman, dated London the 24th of April, 1820. •
    “ Understanding from you that there is a deficiency in the means Mr. Donnell has placed in your hands, in order to supply the eight thousand doubloons, I am directed by him to receive from you, which deficiency, it appears, arises from the doubloons being at a more advanced price than he had contemplated, and from the probability that the Chesapeake's cargo of flour, which you hold for sale on his account, not producing so great a sum -as he calculated on, I have to state to you, as my decided opinion, that had Mr. Donnell foreseen or supposed any deficiency, such as above mentioned, he would not have ordered a less quantity of doubloons,' but would have made the ■requisite provision by enlarging the means he has placed at your disposal, so as to supply the full quantity of eight thous- and doubloons. I am the further confirmed in this opinion, by the knowledge that the grand object of the voyage he has in view for the Chesapeake, depends entirely on obtaining the requisite funds in London, (say the eight thousand doubloons) to accomplish which was Mr. DonnelVs only object in sending tbe ship to London. I am therefore clearly of opinion, that Mr. Donnell will not only expect, but esteem it a favor, that you supply that deficiency for his account as soon as possible, so that his ship may, without further delay, proceed on her voyage, and I am confident he will hold himself responsible for the transaction.”
    A letter from the plaintiffs’ intestate to the defendant, dated London the 27th of April, 1820.
    “ I am happy to inform you, that after a very long and tedious delay, Mr. Horstman has at length nearly completed your order for the doubloons, having now already purchased 7650. We have fixed the first day of May for the departure of the ship, and if the remainder of the doubloons cannot be purchased in time, we have determined, rather than incur any further delay, to take the amount in dollars.
    [This letter then incorporates a copy of the previous letter of same date.]
    “ May 3d. Since writing the above, we have completed the quantity, and shall proceed on board to-morrow morning. There is a ship just arrived from Chili, by which I learn indirectly, there is a great probability of our accomplishing our object there. Mr. Horstman will transmit to you the duplicates of the bills for the ship’s outfits, which, together with the enclosed, (which accounts for the cash received from him,) will shew the whole amount. I have one passenger, who has paid £100, one half of which I have paid for stores, and divided the other between myself and the ship, which you will find credited on the enclosed.”
    Another letter from the plaintiffs’ intestate to the defendant, dated Coquimbo the 15th of August, 1820.
    “ I arrived here on the 13th inst. after a passage of ninety-, three days, all well. I have not yet been able to collect sufficient information to act decisively with respect to loading, and shall not determine until I have heard from St. Jago and Valparaiso, whither I hare written to Mr. Boughan, and Mr. M.cClure, (who I understand is yet in this country,) for that purpose; the information I gel here is, that about 6000 quintals of copper may be got immediately here, and at Guaseo, a port a little way to the northward of this, and that I could complete the quantity as far as my funds would go, in the course of three months; the price is said to be somewhat lower than hitherto, and I think may be bought for $12, and will stand on board at about $14, or $14J, with the duties paid. I believe, however, that something may be done to save a part of the duties; the doubloons are worth $17| as you supposed, and 8000 amount to $138,000, which will put on board at the above price, upwards of 9600 quintals, or 998,400 lbs. and valuing that quantity at 20 cents,- and the doubloons at cost, I am of the opinion will yield a better result than continuing the voyage to Batavia; but as there is no ship here wanting copper, I shall not commence the purchase until I make myself better acquainted on the subject, and until I am certain of getting the whole quantity. With respect to the depreciated paper currency you mention in your instructions to me, I find it only receivable by the government in payment for duties, and only for half the amount, they requiring the other half in cash: it may be bought at a discount of twenty per cent, which advantage I shall not neglect to avail myself of. I have not yet learned any thing concerning the state of your business here, under the superintendence of Messrs. Boughan and McClme, but shall take the earliest opportunity of forwarding to you whatever I may learn on the subject.”
    Another letter from the plaintiffs’ intestate to the defendant, dated Coquimbo, August 24, 1820.
    “Since writing you on the 15th inst. stating that 6000 quintals of copper might be immediately secured; and our whole cargo contracted to be delivered in three months, I have concluded to load here, and hope that it may meet your views and approbation. So large a quantity of copper as I want, cannot ever be procured here at once, and from what I learn from the best authority, there has never been a more favourable opportunity than the present, for obtaining so large a quantity. I have therefore thought it most prudent, and have accordingly secured the 6000 quintals at $12, and have every prospect of getting the balance at the same price, and in the túne above mentioned. The copper, at this price, will stand, on board, duties paid, at $14,14^-100. The value of the doubloons are $17£, and with the funds I have, will put on board upwards of 9600 quintals. Mr. Bmghm writes me that he has not made any collections for your account, and indeed, says there is very little probability of his ever doing so. He has instituted a law suit against the debtor, who he says is so poor that he does not expect any thing from him, even if he is cast; he speaks also, of great difficulties he has had in ascertaining the amount of the debt, in consequence of some necessary books or papers having been destroyed in the revolutionary wars of this country. Upon the whole, there is very little prospect of getting any thing from him. I have not yet received any communication from Mr. McClure, (who is married at Santiago) hut Mr. Bmghan informs me that he believes Mr. M'-Clure holds some government paper for your account, and if this intelligence is confirmed, my purchasing copper here offers a favourable opportunity of making use of it to advantage, as it is at twenty per cent, discount, but will be received at par by the government, in payment for half the amount of duties, hut the other half must be paid in cash—this arrangement will also increase the quantity of copper, if effected. In my former letter, I informed you that the government here had issued orders that have a direct tendency to encourage desertion of seamen from our ships, in consequence of which I have shared the fate of several others by losing sixteen of my crew, which entirely disables me from proceeding in the discharge and loading my ship—they are now on board one of their brigs of war, and unless captain Downes arrives here this evening, as we expect he will, they will succeed in carrying them off. I think, however, that if captain Downes should not arrive time enough to prevent this diabolical proceeding, that he will no doubt give me a crew from the frigate.”
    “Account sales of sundries made by Edwards Stewart to the government of Chili, for account of captain John C. Pawson, ship Chesapeake. August 25, 1820. 45 coils cordage, weighing 113 qrs. 87 lbs. a $20, $2277 3|—ánd one day and night glass, $30, amounting in the whole, after deducting $92 02 for commissions, to $2215 011.”
    
      A letter from the plaintiffs’ intestate to Lemuel Goddard, dated Coquimbo, the 25th of August, 1820.
    “ Above you have the account sales of the cordage you shipped on board the Chesapeake, which. you will perceive I have obtained a good price for. I also sold the spy glass, but the foul air extractor and the compasses yet -remain on hand, without any probability of selling them, and if I am obliged to take them to the United States, shall, deliver them to your order there. My principal object in addressing you now, is to give you an opportunity to make insurance on the amount of your interest in the above transaction. This I think the more advisable, because a chance now offers for conveyance to England, and it is quite uncertain if I shall have an opportunity to write to the United States for insurance. Our interest, as per agreement, stands thus: Nett amount of sales, $2215 01 \. Deduct cost and charges per invoice, $1232 01|—leaving $983 00J—One half of which is $496 04J, Which added to the original costs and charges, $1232 0Í, makes $1728 05.J.
    . 11 Which sum, say $1728 05J, I leave yóu to get insured from hence direct to Baltimore, -where, on the safe 'arrival of the funds, I hold myself responsible to pay said amount to your order. It was a mere chance I was enabled to get so good a price for the cordage. The fleet from Valparaiso on the way to attack Lima, put in here, and was very much in want of it, or I fear we should have a poor account of it, and I would advise you not to let our present success induce you to .ship any quantity of cordage to this country, as the probability is, it would not sell.”
    A letter from the plaintiffs’ intestate to Edwards fy Stewart, dated at Coquimbo the 19th of August, 1820.
    
      u In consequence of the representations made by you, that six thousand quintals of copper might be immediately bought at $12 per quintal, and-your decided opinion that the balance of my cargo may be contracted for at the same price, to be delivered on the first of November, I have determined to load my ship here, and hereby-authorise you to purchase the 6000 quintals, and secure the remainder, amounting to between three and four thousand quintals with all possible despatch, on the terms above mentioned, or lower if possible. In making these contracts, I would recommend your particular attention to have them only with men in whom you have perfect confidence, both as to the quality of the copper and to the punctuality of the delivery. It is understood that you secure to me the just and true performance of the said contracts, so that I shall not meet with material delay to my ship. It is also agreed that you are to receive two and a half per cent, commission, and one per cent, storage, amounting to three and a half per cent, on the amount of the purchase. I must also request your particular care and attention to secure every advantage that can be obtained in weighing the copper and in paying the charges and duties. It is also understood that you are not to purchase copper for any other order, until my cargo is completed.
    “Understand that the two and a half per cent, is on the amount of the invoice, and the one per cent, on the amount of the copper at first cost, exclusive of duties and other charges.”
    A letter from Edwards Sf Stewart to the plaintiffs’ intestate, dated Coquimbo the 4th of September, 1820.
    “ We have received your letter of this date, in which you request our purchasing for your account from 9 to 10,000 quintals of copper, at or under $12 per quintal. Agreeably to verbal information given you by us, that we thought 6000 quintals might be secured much before the time limited, we have now the pleasure of confirming it by enclosing you herewith, our obligation at sight, for said amount, say six thousand quintals copper, which you may dispose of when you judge most proper. As regards the residue of your order, although we cannot come under an obligation for its purchase, yet we think our success will be almost certain from information we have, and a pledge we make you on not purchasing on any other order until yours is completed—on this point we can say no more. We accept the commissions as stated by you, two and one half per cent, on cost’ and charges, and one per cent, on storage on the amount of the purchase of the copper. All contracts made by us come under our responsibility, not only as to the faithful delivery, but likewise as to the quantity of the copper. All copper received is weighed by us in person, and every regard is paid to this branch that the interest of the concern requires.”
    A letter from the plaintiffs’ intestate to the defendant, dated Coquimbo, the 4th of September, 1820.
    “ I have to inform you that your business remains nearly in the same state as when I wrote you on the 24th ult. viz. that I have purchased 6000 quintals of copper, and shall have the remainder, amounting to between three and four thousand quintals, ready by the first of November, at $12 per quintal, which, with the duties and shipping charges paid, will stand on board at about $14 more or less. In this transaction I was determined by reflecting that a pound of copper at that price, would nett in the United States, as much profit, and with more certainty, than a pound of coffee, and that the additional expense of pursuing the voyage further would be saved, and I'trust that this view of the subject will meet your approbation. I have not yet received any communication from Mr. McClure respecting your property in his hands, nor can I give you any certain information, except that I have understood that he had invested the government paper which he held in silks, a part of which he sent down the coast for sale, and the remainder he had deposited in this place, but has recently ordered them somewhere else. I shall use my best endeavours to have a settlement with him, if possible, but I think there is no chance whatever, of getting any thing from Mr. Boughan. I am yet without a crew: in consequence of the Macedonian having a long passage from Valparaiso to this place, Cochrane had time to carry off the men, and captain Downes would not supply me from the frigate, as he thought there was a probability of his having some trouble with Cochrane, if he should attempt to obstruct his entrance into Lima. He has taken a list of the deserters, and intends to demand them. Understanding that there are plenty of seamen in Valparaisó, I have written to the consul there, requesting him to procure me a crew, and send them down by the first opportunity, so that I am in hopes of soon being able to proceed with loading, and shall use every exertion for despatch in my power. A s I may possibly not have another opportunity direct to the United States shortly, 1 would thank you when you make insurance on the ship and cargo, also to insure for my account, the same sum which you did me favour to insure from London here. I think it probable it will be shipped in silver bullion and copper. As it is necessary to have some light and bulky article to stow with the copper, in order to raise it in the hold as much as possible, I have purchased for that purpose a few hundred hides, and shall increase the quantity to one thousand, if they can be obtained—they cost from 9 to 12 rials per hide, and will average about 28 lbs. It is usual to purchase-wood for this purpose, which is attended with considerable expense and trouble, and is afterwards worth nothing, while the hides at the above price will pay a good freight. I have employed Messrs. Edwards <$■ Stewart, of this place, as agents to purchase the Chesapeake’s cargo, of whose integrity and honesty as merchants, 1 made myself perfectly satisfied of before I engaged with them; their influence with the governor and collector here is very great, from which circumstance I expect great advantages in the payment of the duties, and I have a good prospect of getting through my business without trouble or delay.
    “ Since writing the above, I have received a letter from Mr. McClure; he says he has on hand a quantity of silks, which, with the discount on government paper, (with which I understood he paid for them) cost about $5000, and a few other articles which would raise the amount to 1000 more ; he has also from 2000 to $2500 in cash, which he promises to put immediately at my disposal; he also olfers to make an immediate sale of the silks, &c. for cash and close the concern, if I will authorise him to do so, but it is his opinion, that to force a sale of the silks, &c. for that purpose would be attended with a loss of at least one half, and as I am only empowered by you to receive whatever he may give me, i must leave him to exercise his own discretion with respect to selling the silks, &c. but strongly recommend him to effect a settlement, if possible, while the Chesapeake remains here, as I am convinced you are anxious to have it closed. '
    Another letter from the plaintiffs’ intestate to the defendant, dated Coquimbo the 4th of November, 1820.
    “ By the Two Catharines I informed you that I had commenced the purchase of the Chesapeake’s cargo of copper, at $12 p’er quintal, which will cost on board, duties paid, about $14|, depending considerably on the amount of that saved by the arrangement with the collector here, and a gain of from five to seven per cent, on the amount of the duties, by paying part of them with the government paper, which is at a discount, though so uncertain that it is dangerous to purchaseoit until the moment it is to be paid into the custom house. There is now purchased for your account 9500 quintals, nearly 7000 of which is on board, and the remainder in Guaseo, whither I shall proceed and take it in as soon as I get my crew from Valparaiso, which I am daily in expectation of, and hope, in about a month more, to be on my passage for Baltimore. We have received accounts here stating that the. United States had proceeded to take possession of the Floridas, and had acknowledged the independence of this country and Buenos Jlyres. If so, I think it quite likely thát a war with Spain must ensue, and of course render me liable to capture on the homeward passage, by privateers under Spanish color's.' Of the truth of this I hope soon to be informed, and if it is the case, I shall endeavour to sail home in company with the Macedonian, which ship is shortly expected here from Lima, and is to proceed immediately home. I have received from Mr. M’Clure the sum of $5500 on your account, to obtain which, he informs me, he sold the greater part of the silks, which in a former letter I mentioned he held at a great loss; he writes me also, that he intends, if possible, to sell the remainder,and close the business, though I cannot inform'you to what amount he still holds. I wrote him a few days ago to inform him that I expected to sail shortly, that he might make his arrangeménts accordingly. I have gotnothing from Mr. Boughan, nor do I think there is any probability that I shall. He writes me that he is paying every attention to the suit he has instituted against the consignee of the Melmthro, and has great, hopes, from the strong vouchers he has presented, of gaining the cause, but if he does, he has no hopes of recovering any money from the circumstance of the consignee being very poor. With respect to loading the ship, I have paid every attention to have the copper of the best quality, and stowed in the safest manner, hut I think it altogether unsafe to put more than 9500 to 10,000 quintals on hoard, as it is a very laborious cargo from its dead weight and small hulk, and the ship begins now to shew her age. I have purchased about 600 hides, which cost from nine to twelve rials each, to stow with i.t, for the purpose of raising the weight and increasing the hulk. I shall, however, he guided by my judgment as the ship comes down in the wralcr, and if possible, bring the whole of your funds in copper. If .there should be any surplus funds, which will not be more than the $5500 received from Mr. McClure, I shall bring it in Plata Pina, or silver in bars, the former al g7 56-100, and the latter $7 81-100 per mark of 8 ozs. In my former letters I requested you to insure for my account, the sum of $5000. I now have to request you will insure $1000 more. If I find the ship too heavy laden with your copper, I shall curtail my privilege in that article, and bring ray funds in silver. I send this across the cordilleras, but I understand there is very little hopes of your receiving it, as the communication is very much interrupted by banditti.”
    A letter from Ilorstman to one of the plaintiffs, dated Lon■ don the 29th of July, 1822.
    “I have to acknowledge your letter of the 18th May, in which you request to he furnished with a copy of the account between the late Captain Pawsnn and myself, and such documents as would cnablp you to come to a settlement, as acting administrator, with Mr. Donnell. In reply Í beg to slate, that I had not any account running with Captain Pawson, as he acted entirely himself; hut ou reference to my books, I hud the following items were paid by me, and repaid by Captain Pasoson, the 19th April, 1820, viz; Parry, for charts, «'fee. amounting to £69.1 2, which were the only pecuniary transactions with him direct.
    “ In regard to the bills of disbursements of the ship Chesapeake, which you mention: were never received by Mr. Donnell, I find that I sent to' Mr. Downell, on the 13th of May, 1820, the following, viz: One letter, 13 th May, with" account of disbursements of the .Chesapeake, £2219 13, anda list of. the vouchersone parcel, containing the vouchers, (original accounts)—one letter from Captain Pawson to Mr. Donnell— two letters from Captain Pawson to different persons, (I think Captain Hamilton and Mrs. Pawson.) These were sent to Liverpool for the purpose of being forwarded, and I find by letter. from Liverpool that were sent per the Mary, which sailed the 15th of May, with the exception of one addressed to Mr. Donnelly which were sent per the Anna Maria, (the latter is presumed to be the one containing the vouchers.) Prom Mr. Donnell I have received no other letter than of the 18th of November, 1819, brought by Captain Pawson, and 26th of December, 1819, enclosing a letter for Captain Pavjson. Captain Pawson had a bill on me, drawn by Mr. Donnell, for £1165 9 1, at sixty days, which was. due 30th of March 1819, and paid to him. I hope these details will answer your purpose.”
    A letter from Edwards Stewart to the defendant, dated Coquimbo the 8th of December, 1820.
    “ With sincere regret we have to inform you of the death of our much lamented friend, Captain John C. Pawson, who departed this life on the fourth of the present month; to us it is particularly sensible, in consequence of his being, from the first of his attack, until his decease, in a state of torpidity, from the nature and violence of his disorder, which prevented our making any arrangements with him in relation to his affairs at this place. We attribute, as the principal cause of Captain Paw-son's death, his extreme anxiety on the subject of his crew, the receiving of which he had placed great reliance by a ship which arrived a few days before his decease, from Valparaiso, to which place he had written to a mutual friend, to ship him a crew, having lost by desertion the day after his arrival at this port. We were much disappointed at hearing that no men were to he found at Valparaiso, from the great enlistments made by the navy agent for the Chilian navy, which left us the only and very uncertain resource, of Captain Downes supplying him with a quota sufficient for taking the ship home. Captain Downes'1 arrival was at that time daily expected, but an arrival from the coast of Peru, where the Macedonian had gone, brought us sad intélligence of Captain Downes not being able to visit this part of the coast for some months. This news created in Captain Pamson a very sensible change in his state of health, which had been delicate from his arrival, by great depression of spirits, which was accompanied by a fever, which changed into the gout, entered the stomach, and after being confined four days to his bed, yielded to his Maker the debt of nature, and trust he is enjoying, through the medium of our Saviour, happiness in that world, where, sooner or later, we are all to appear.”
    Also the extract of a letter from Edwards fy Stewart to the defendant, dated Coquimbo, January 19th, 1821.
    “We likewise enclose you herewith account sales of various merchandize brought by Captain Pawson from London. His accounts, bill of lading for two boxes of Chinchilla skins, to your consignment. We also enclose you the bills of the goods for your government. We confess we' feel awkwardly situated from our perfect ignorance of Captain Lawson’s business, and act only from conversations we have had with Capt. Pawson, and from our judgment. We presume the property belonged to him which came in the ship, for the sale of which he has got credit. His intention was, as well as we can recollect, to invest the proceeds in 250 quintals of copper, provided the ship would load more than the 10,000 quintals, if on the contrary he intended taking only 150 quintals for his account, the Chinchilla skins charged him in his account, and the balance of his funds in silver, if to have been had. This we believe firmly -were Ms views, and on which we should have acted, but fearing compromising ourselves, we have considered it most prudent passing the balance of his account to your credit, and leaving it to your, judgment to settle with his relations in the manner you think most equitable and just, founded on the above facts. We recollect Captain Pawson stating to us, that the cordage sold to the government was shipped on half profits by some manufacturer in England, and in order to throw light upon that part óf his business, should you be addressed from England by-the same, we have enclosed you separate sales of that article.” , . •
    ' Also, the extract of another letter from Edwards Stewart to the defendant,'dated Guaseo, January 28th, 1821.
    “ Enclosed you will receive a bill of lading for 900 pigs of copper, and thirty-six lumps of gold, as likewise another for seventy-four pigs of copper, and one large, and nines mall pigs of bar silver, and sixteen pieces of Pina silver, shipped the former for your sole account, and the latter for account of the late Captain Pawson; by the invoices and áccount which we likewise enclose you, you will perceive that the whole of your funds we have remitted to the best advantage, and we have only to beg you to call to mind, in case that every thing is not exactly correct, the -disadvantages we have been under from the sudden death of Captain Pawson.”
    Also, an extract 'from another letter from Edwards 8f Stewart to the defendant, dated Coquimbo, March 9, 1821.
    “ As we anticipated, the crew has deserted the ship, and has remaining on board only nine men from the Constellation. We hope to get the residue she may want to carry her home. The carpenter of the ship, from a pique he had against Captain Lane, and to revenge himself, gave information of the spot where your gold and Captain Pawson’s silver were stowed on board, to the governor. This was done with so much.secrecy by both parties, that we were not aware of the treachery, until the whole was in their possession. It was 'shipped in Guaseo, and stowed b.y Captain Lane in the bread locker, under all the bread, without the knowledge of any one on board excepting the carpenter, in whom both he and Captain Pawson placed the most implicit confidence. The exportation of virgin silver and gold have been prohibited by the government under confiscation of the property if taken, and many severe penalties inflicted on the parties concerned. Captain Pawson intended shipping any small balance he might have in those articles, from their paying better than any other remittance to Jlmerica, from this, hard dollars being at 6-|- premium, and ounces at $17i, so that in shipping either one or the other, you would have experienced a great loss. We are aware we took upon ourselves some responsibility from not having had written instructions from Capt. Pawson to ship in these articles your balance, but were actuated for your interest, and knowing Captain Pawson would have acted in like mariner. We fear the hopes of recovering this property are small, as the law is explicit and severe. We shall make the necessary representations, and send you copies by next opportunity.”
    And another letter from Edwards &f Stewart to the defendant, dated Coquimbo, July 4, 1821.
    “We enclose you the proceedings of the confiscation of the silver and gold found on board the ship, which we are sorry to say was eventually lost, notwithstanding the exertions of Capt. Ridgely, Judge Prevost, special agent of the United States of Jlmerica, and our representations. We are still in hopes that at a future period this property may be recovered, and with this view have thought proper to send you the documents to substantiate any claim you may think proper to institute.”
    The plaintiffs further offered in evidence, that it was the known custom of trade in Chili and at Coquimbo, to employ agents on shore in the business intrusted to Pawson,and that it was necessary to do so. And also offered in evidence, that the privilege to the captain of twenty-five tons, mentioned in the contract from Canton to Baltimore, was a valuable privilege, much more so than the like one from Coquimbo, and that it was, and is, the usage of trade for the captain, if he does not use his privilege himself, to let it out to others, arid even to be paid for it by the owner, if the owner used it for his benefit. That the freight from Canton to Baltimore, at the time ahovementioned, was from thirty to one hundred dollars per ton. The plaintiffs’ further offered evidence, that it is the usage of trade, when a captain has such a privilege as is stated in the defendants’ first letter of instructions, to wit, of twenty-five' tons from Canton to Baltimore, that this privilege is entitled to a preference even over the owner, in putting the same, into the vessel, and that if the captain dies in the course of the voyage, his privilege does not succeed to the next captain, but survives to his representatives.
    The plaintiffs further offered in evidence, that on the arrival of the ship here, only’ 147 quintals of copper were delivered to the plaintiffs, as the share of the said Pawson; and they read in evidence, the following order and account, which were admitted by consent-^—“74 pigs copper^ weighing 14,779 lbs. of the estate of Captain .Pawson, received per the ship Esther, Captain Low, from Coquimbo,”—signed 29th October, 1821, by the defendant.
    The plaintiffs álso offered in evidence the following accounts:
    
      Dr. John C. Paioson (deooased) in account with John Donnell. Cr.
    To balance per settlement
    in London,) sáterg. £3 IQ 11
    Short credit allowed for passengers from Atmdon, - = - 25 00 00
    »—— - $126* 87
    Premium of Insurance to Maryland Office on $5166, a4p. ct. - $207 89
    Premium of Insuiance to Patapsco Office on $6000 a 2| p. c. - 166 25
    374 14
    Common pr. cent, on the sums insured, 55 83
    ------ 429 97
    Discounts paid on 16 shares Bank Stock, hypothecat.for $1200 in No v.1819, renewed each 60 days, say 14 renewals a 12 80. 179 30
    Proportion of landing copper from ship Chesapeake, and reshipping on board the Esther, total 550,600 lbs. cost $2454 69,
    Which on Capt. Paw-son 14779 will be 66 00
    freight paid the ship Esther t'i'om Coquimbo to Baltimore on 14779 lbs. at 2^ cents per lb. 369 47
    Primage thereon, 5 p.c. 18 47
    Storage, storing,weighing and delivering, 10 00
    --397 94
    Amount invoice of copper and bullion shipped by Edwards fy
    
    
      Stewart for account, 4,694 56
    Oronoineter cost 801 stg. 355 55
    Day and night telescope of J. Alien, - - - 22 00
    
      Morsburg Directory of Boyd,..... 24 00
    401 55
    Balance due by J. D. - 185 00
    $6,481 18
    By wages from 19th Nov. 1819, till 4th Dec. 1820, his decease at «60, - $750 00
    Dividends drawn by J. D. on 16 shares Bank Stock, one l-¿, one $3, - - - - - - 66 00
    Transfer by Edwards # Sternart)Of the balance due by them to Capt. Pamon, after his decease, (very improperly to mo,) - - - $7,777 87
    In which was included tlie proceeds of cordage'taken on board for account some person in London, to be deducted therefrom, 2,215 18
    -——- 5,562 6iK
    Amount sales of said cordage as above, 3,215 18
    After deducting therefrom for freight from London to Coquimbo, being a belligerent port, and, an aiticle contraband of war, which subjected my ship and property to confiscation, and annulled my insurance, , the weight of coidage asp. sales a$5,$569 37
    Cost of lumps of gold, shipped as aremitance for proceeds of said cordage, being a prohibited aiticle, and as seized cost, ... 145284
    
      Edwards fy Stem-art commiss’n thereon, at p. cent. - - 36 32
    Expenses incurred by claiming its restora» tion, - - - 4416
    — 2,102 69
    —> HQ
    
    $6,481 lb
    N.B. Captain Pa.wson took from my ship such valuable articles as lie fancied for the North Point—He took from the NorthPoint every article, when he left her, for the Chesapeake—It is, therefore, nearly out of my power to trace them—But you can certainly allow by his papers, the articles he paid fur,"and such liad, of course, a right to take from the Chesapeake. J. Donnell.
    2 mos. interest on $165, - - $1 65
    10 mos. do oil 165 70, - 8 25
    61110s. do onl721, - 43 10
    $53 00
    Interest on 1200 for 18 mos. - - - 108 00
    $55 00
    Received the above $55, which with the $53, interest until his bond fall due, is to be applied by me to the discount, on renewal of Ilia stock note for hypothecated Bank Stock, 17th Nov. 1819. John Donnell*
    
    Interest calculated on bonus until due, siv cuied by J. J). and for which he lias, in settlement, retained their amount in his hands—the $53 to be applied to paying the discount. 011 J. C. Piuoson.’s ytock note at the Office Discount and Deposit, is to be renewed by J. D. and with the $53, and thc¡ $55now received, it is expected will pay the. above discount, until liis, </. C. P}$ return.
    
      “ Sales by Harrison 8f Slerett, for account of the administrators of the late Captain I. C. Pawson,” in December, 1821 and April and May, 1822, of 14,774 lbs. of copper, amounting, deducting charges, &c. to $2,843 75.
    The plaintiffs further offered in evidence bills of lading, and invoice of the shipments at Coquimbo and Guaseo, on the voyage aforesaid. 1. Of 8000 Spanish doubloons shipped by Horstman from London on tire 4th of May, 1820, for the port of Coquimbo, to the order of Captain Pawson, on account of John Donnell. 2. Of 4219 pigs of copper, weighing 8076 quintals, &c. and 411 cow hides, by Edwards 8f Stewart from Coquimbo, on the 19th of January, 1821, for account of John Donnell. 3. Of, two boxes and one bundle of Chinchilla skins, containing 4561,- dozen,'being the property of the late Captain Pawson, and consigned to John Donnell for the benefit of whom it may concern, by Edwards £y Stewart, -from Coquimbo, on the 19th of January, 1821. 4. Of 74 pigs of copper, weighing 147 quintals, &c. one large and nine small pigs of bar silver, and sixteen pieces of Pina silver, weighing 304 marks, one ounce, shipped by Edwards § Stewart from Guaseo, on the 28th of January, 1821, to John Donnell. 5. Of thirty-six lumps of gold, weighing 608 castellanos, five tomines, and 900 pigs copper, weighing 1795 quintals, ninety-five lbs. shipped by Edwards Stewart from Guaseo, dated the 28th of January, 1821, consigned to defendant.
    “Invoice of copper and hides shipped by Edwards & Stewart, on board the American ship Chesapeake, Captain Thos. A. Lane, by order of the late Captain J. C. Pawson, bound for Baltimore, in the United States of America, and consigned to1 John Donnel, Esq. merchant, of said place.
    4219 pigs of copper, wg. 8076 qqs. 19 lbs. a 12 ds. $96,914 02-1 246 ox, and 411 cow hides, ----- 932 01
    $97,846 031-
    Charges, duties, commission, &c. added, - - 19,259 08|
    $117,106 04
    
      “ Invoice of copper and gold shipped in Guaseo, by Edwards 8f Stewart, on board the American ship Chesapeake, Captain Thomas A. Lane, by order of the late Captain J. C. Pawson, bound for Baltimore, in the United Slates of JYorih America, and consigned to John Donnell, Esq. of said place.
    900 Pigs of Copper, wg. 1795 qqs.
    95 lbs. at $12, - - $21,551 03a
    Storage 1 p. c. - - - - 215 04
    ---$21,766 07|
    20 round lumps of gold, wg. 172 castellanos 7| tomines a 19-J rs. 416 01
    15 do do wg. 403 do 5| do a 19 rs. 958 05-J
    1 do dowg. 32 do a '12¿rs. 78
    —-- 1452 06J
    $23,219 05A
    Charges, duties and commission, &c. added, 4,885 03J
    $28,105 011
    “Invoice of copper and silver shipped in Guaseo, by Edwards Stewart on hoard the American ship Chesapeake, Captain Thomas A. Lane, bound for Baltimore, in the United States of America, by order of the lale Captain J. C. Pawson, for acc. and risk of whom it may concern, and consigned to John Donnell, Esq. merchant, of said place.
    74 pigs of copper, wg. 147 qqls. 79 lbs. a $12, $1,773 04
    Storage 1 p. c. 17 06
    1 large and 9 small pigs silver, wg.
    115 mks. 1 oz. a $8 p. mk. $921 00
    16 pieces of pina silver wg. 189 mks. Ooz. I486 03
    ■---—$2,409 03”
    Charges, duties and commission, &c. added, 493 07|
    $4,694 04A
    “ Amount of money paid by Captain Pawson to the crew of the ship Chesapeake, which returned hove from Coquimbo, $70 59.” Signed by J. IF
    
      And also proved that the voyage was in effect protracted by the determination to return immediately to Baltimore, and not go to Canton, as it was much more difficult to obtain a crew for the former voyage than the latter, and the ship was delayed for a long time, for the want of a crew to navigate her to Baltimore.
    
    The defendant then offered and read in evidence the following letters, which were read by consent, and admitted to be in the hand writing of the respective parties' thereto.
    The only letter which appears to have been offered in evidence by the defendant, is one from one of the plaintiff’s to the defendant, dated Baltimore, 15th May, 1822.
    “From a minute investigation of' the account you furnished, between yourself and the late Captain Pawson, and with a reference to' sundry documents in my possession, I have made out the enclosed account. With respect to the §2,000 for compensation, it appears to have been regularly agreed, upon between you and the deceased, as the privilege he was to have, each voyage, in your ships, consequently it is claimed as a right. The cordage transaction, in your account, is, totally inadmissible, the funds which arose from the sale of it, were laid out in bullion, (silver) which' remains in Coquimbo under seizure, as your gold does, and as you are not known in the transaction at all, it of course remains for settlement between- the owner in London and the executors of Captain Pawson. As to your charging freight on the cordage from London to Coquimbo, it seems strange indeed. Your ship was going in ballast, and Captain Pawson wrote-to you that he would take merchandize, having found great difficulty in procuring the number of doubloons you ordered from Mr. Hortsman. I find that in 1816, you permitted Captain Pawson to take goods from other persons to make up his privilege in the ship, and as, by his agreement with the owner of the cordage, he was interested in the sales, it became, of course, a part of his venture from thence. It appears that Captain Pawson allowed you £25 sterling in the account he furnished before he left London. Balance due to you £3 10 11. £50 sterling he laid out for cabin stores. The $55 83 claimed as commission for effecting insurance, you never charged in any similar case. I have not ascertained whether the expenses charged on the copper, are customary or not. You’ll observe, that Captain Pawson’s privilege in the ship was not taken by several thousand pounds weight, of course you will allow for the deficiency, as you have done before.”
    Mr. John Donnell in account with the estate of tire late Captain Dr. John C. Pawson. Cr.
    
      1819.
    
    Nov. 18. To cash paid interest on 16 shares United States Bank Stock, hypothecated for $1200 p. your receipt,..... $103 00
    Interest on do. from said date until 15th October, 1821, ..... 12 36
    Compensation in ship Chesapeake as per agreement,see your letter of instructions, dated iSCli Nov.1819, and as a proof of its being customan/, see 21 October, 18Í7, when Mr. Jfancarrow went supercargo, $2000, and the 25th May, 1816, when Mr. Stith went supercargo, $3000, 2,000 00
    Wages ofCapt. Pawson, as per your account, - 750 00
    Dividend received on 16 shares United States bank stock,as per your account,..... 56 00
    Amount transferred by Edwards fy StfAoart, of Coquimbo, a balance due by them to Capt. Pawson5 see your and their account, - - - 7,777 87
    Amount deducted out of seamen’s wages, as per your account, - - * 70 59
    $10,774 82
    By balance due to you as per account furnished by Captain Pawson, in London, including £25 sterling, your proportion of passage money, $15 75
    Cash on 16 shares United States bank stock, hypothecated for this amount, 18th Nov. 1819, 1,200 00
    Interest on do. from said period, until 15th Oct. 1821, 137 44
    Insurance in Maryland Pa~ tapsco Offices, per your account, -------- 374 14
    Amount of copper and bullion (silver) shipped by Edwards 8f Stewart, for account of Captain Pawson, see their and your account, - - - » 4,694 56
    Balance in your hands on the 15th October, 1821, - - • - 4,352 97
    $10,774 82
    To balance from opposite.............. 97
    To interest on ditto until PaÍd,Em>rsandE,Excepted.
    Add the stock on the other side, for which there is no credit, ----- $1,200 00 4,352 97
    His claim then is $5,553 97
    Interest to Jan. 26, 1825, 1,084 03
    $6,637 00
    Besides which he claimed loss of privilege, - - 255 52
    DripStones, ----- 13 50
    Duty saved at Guaseo, - 14 56
    Interest on $255 52-100, 49 72
    $6,970 30
    
      Hamilton Graham9 Actg Adm’r.
    Claim as set up in court, viz/$5,552 97
    Drip Stones and duty saved,’ 48 66
    Loss of Canton privilege, 3,050 00
    $8,651 03
    Interest from Oct. 15, 1821, 1,686 94
    $10,337 97
    
      “The defendant then offered in evidence the following invoice of goods shipped at London, the 27th of April, 1820, and the account of the sales thereof, and the other accounts and papers hereinafter inserted, which were admitted by consent.
    “1 bale, 8 cases British piece goods,” &q.
    amounting to.....£1062 10 8
    Commission, brokerage, shipping, &c. 5 p. c. 53 2 7
    £1115 13 3”
    “Account sales of sundries made by- Edwards Stewart to the government of Chili, for account of Captain John C. Lawson, of the ship Chesapeake,
    
    1820
    Agt. 25. 45 coils cordage, wg. 113 qqs. 87 lbs. ■
    a 20 dlls......■ $2277 03-1
    1 day and night glass, - - - 30 00
    $2307 031
    Deduct commission 4 p. c. and spy glass, - - 122 02
    Nett proceeds of cordage, - - - $2185 011-
    Dr. J. C. Pawson’s private acc. with Edwards <Sr Stewart, Cr.
    This account commenced on the 25th of August, 1820, and ended on the 18th of January, 1821.
    The amount of the debits, including charges for 7561 dozen Chinchilla skins, and 10 marks, 6¿ oz. silver, &c.......$2,250 07f
    Amount of credits including nett proceeds of sales herewith sent,$8070 If, - - - 10,028 06|
    Balance due, and this sum credited John Donnell, Esq. ------ $7,777 07
    “Sales of sundry merchandize received by the ship Chesapeake, and sold by order and for account of Captain John C. Paw-son.”
    
    The whole amount of sales, deducting charges, &c. $807013J dated Coquimbo, and signed by Edwards Stewart.
    
    
      
      John Donnell, Esq. of Baltimore, In account current with Edwards Dr. ¿T Stewart. Cr.
    1831.
    Jan. 19. To bill of disbursements of the ship Chesapeake, at Coquimbo, per account herewith, - - - $2,508 031-
    Amount of invoice of 8076 qqs. 19 lbs. of copper,shipped from tills port in the ship Chesapeake, Captain Lane, as per account herewith, - - - - 117,106 0-4
    Balance,..... 32,655 05¿
    $152,270 05£
    1820,
    Aug, .28. J3y our draught in favor of Capt. Brintnal on Captain Pawson, - $28,309 03
    Sep. 16. Cash received from do. 6,192 06 21.
    Tietter of credit of Messrs. Lynch,Hill ty Co. in favor of Capt. Pamon, - - - - 3,500 00
    Oct. 25. 700 doubloons received at $17¿..... 12,075 00
    2000 do do do 34,500 00
    1300 do do do 22,425 00
    Received for 4 bbls. of salt beef, a 35 dlls, 140 00
    Received for 4 water casks a 15, - - - - 60 00
    Months’ advance made to a sailor returned, 24 03
    Cash received oí* him, 60 00
    Nov. 27.2000 doubloons a $17¿, 34,500 00
    Draught oí* I'd. Mc Clare favor J. C. Pawson, 2,000 00
    1821.
    Jan. 18. Cash received for 2 bbls. tar, a $10, - - - - 20 00
    Do do 30 ggs. vine- ■ gar, a 50 cts. - - - 15 00
    Discount on $6713,1 rrl. paid in the custom house in government paper, being this proportion allowed to be received in paper,the residue paid m cash, alOp. c. - - - 671 02¿
    Balance of Capt. Paw-son's acct. current, 7,777 07
    $152,270 05 £
    By balance, $ 32,655 05*
    JE. & O. E. Coquimbo, Jan. 19,1821.
    
      Edwards fy Stewart.
    
      John Donnell, Esq. of Baltimore, in account with Edwards 6jr Dr. Stewart. Cr.
    To amount, of invoice of copper j and gold shipped in Guaseo, $28,105 01-£ !
    To amount of invoice of copper Í and silver, shipped on account of the late Captain Pawson, 4,694 4¿
    To amount of bill for disburse- s went in Guaseo,..... 91 05£
    $32,891 03¿ |
    By balance of account current at Coquimbo, ------- $32,655 05£
    By 10 per cent, discount, allowed on $1,777 paid in government paper on the invoice of $28,105, a 1| rs...... 177 05£
    By do do on that of the late Captain Pawson, - - - 14 04£
    By one months advance charged twice to Kvpcvio, merchant, 30 00 By charge for drip stones not received', - - * - - - - - 13 04
    $32,891 03£
    E. E. Guaseo, Jan. 22,1821.
    
      Edwards fy Steward
    
    
      Disbursements of the American ship Chesapeake, in the port of Coquimbo, by order of Captain Lane, from the 16th February to 30th June, 1821, amounting, including commissions, to $1,654'02|. Dated at Coquimbo the 3d of July, 1821, and signed by Edwards fy Stewart.
    
    Captain Lane, ship Chesapeake, in account with Edwards Sf Dr. ■ . Stewart. ' • Cr.
    To amount charges on 2876 bars of copper, shipped on board the ship .EsiAer, - - - - - - $2,464 05£
    Do do on 800 bars shipped on 1 board ship Chesapeake* - - - v 315 Q2i '
    v '
    v Amount of disbursements of ship ' Chesapeake, *- - - • - - 1,655 02£
    $4,425 02£
    By 124 bars of copper, wg. 304 qqs. 24 lbs. a $14 4-10.0, sold to pay the expenses at the price of $12, and the duties, - - . - - $4,271 04
    An error in the calculation of commissions in the invoice of copper shipped at Guaseo, - * 100 00
    Cashrecd.for839Ibs.ofbreada$6 50 02# • Balance,.....- . - 3 03#
    $4,425 02*
    “Amount.of charges of 2100 bars of copper, discharged in this port, and 900 bars discharged in.Guaseo, from on board the American ship Chesapeake, Captain T. A. Lane, in order to ascertain the extent of injury, received on her passage from Guaseo to Baltimore, of which bars of the-same were reshipped by order of'Captain Lam, on board the American ship Esther, Captain F. G. Low, bound for Baltimore, for account and risk of whom it may concern, and consigned to John Donnell, Esq. merchant, of Baltimore” amounting to $2454 05j-, dated at Coquimbo, and signed by Edwards 8f Stewart the 3d of July, 1821. This account included a commission on 2876 bars of copper, amounting to $1651 06.
    “Account of charges of 300 bars of copper that were discharged from on board the American ship Chesapeake, in order to ascertain the extent of injury received on her passage from Guaseo to Baltimore, and reshipped by order of Captain T. A. Lame, of said ship, for account and risk of whom it may concern, and consigned to John Donnell, Esq. merchant, Baltimore” amounting to §315 2J, including commission on 300 bars of copper, amounting to $179 04|. Dated and signed as above.
    “.Disbursements of the American ship Chesapeake, Captain John C. Pawson, at the port of Coquimbo, by Edwards fy Stewart, 
      amounting, including commission, to §2,508 03f, dated the 19th of January, and signed by Edwards fy Stewart.
    
    An invoice of goods, &c. shipped by Edwards fy Stewart, by order of Captain Lane, on board the Esther, whereof F. G. Low is master, bound to Baltimore, viz: 2876 bars of copper, weighing 5505 quintals, 98 pounds Spanish weight, being part of the original cargo of the ship Chesapeake, and shipped for account of whom it may concern, unto John Donnell, be paying freight, &c. Dated Coquimbo, 3d of July, 1821.
    Also, the check of the defendant on the Office of Discount and Deposit, in favour of the owners of the ship Esther, for §14,453 20.
    To dispense with a commission to take testimony the plaintiffs admitted, 1st. The transaction of cordage from London lo Coquimbo, according to the account of sales of the cordage. 2. That the cordage was for the joint account of Pawson and Goddard. 3. That gold and silver bullion are prohibited articles of exportation at Chili. 4. The parties agreed that all letters and accounts of sales and accounts current, from Edwards Stewart, may be read on both sides.
    The defendant also offered in evidence, that the usual freight from London to Coquimbo, ivas fifty dollars per ton. The plaintiffs then offered in evidence, that it was the usage among ship owners and masters, not to charge freight where the ship was in ballast, for any articles shipped by the captain on his own account The defendant offered in evidence, that there was no usage as above stated, and that the captain was liable for freight to his owner like any other person, if the owner chose to exact it.
    1st Exception. The defendant then prayed the opinion of the eourt to the jury, that upon the evidence above stated, the defendant is entitled to set off, in this case, the freight on the. goods and merchandize, shipped by Captain Pawson, on bis own account, from London to Coquimbo; which opinion the court [Archer, Cli. J. and Ward, A. J. | refused to give, but were of opinion, and so directed the jury, that the defendant is entitled to set off the said freight, unless the plaintiffs can shew by lestimony, that there was a known and established usage that the captain, under the above circumstances, was not chargeable with freight, and that the said usage was so well known and established, that it must be supposed to have entered into the contemplation of the parties at the time they originally made the contract first herein' before stated. The defendant excepted.
    
      2. Exception. The defendant then prayed the court to instruct the jury, that according to the contract of the parties, as set forth in the correspondence exhibited in the first bill of exceptions, the voyage as originally projected, to wit, from Baltimore to London, thence to Coquimbo, thence to Canton, and thence home to Baltimore, having been altered by the direction of the defendant, and the consent of Captain Parnson, so as to strike out the trip from Coquimbo to Canton, and give the ship a destination direct from Coquimbo home to Baltimore, the privilege originally stipulated for Captain Pawson to bring home twenty-five tons from Canton, clear of freight, was voluntarily relinquished by him, and exchanged for the privilege of bringing home his funds in copper from Coquimbo, and that, consequently, the plaintiffs are not entitled to any compensation for the alleged loss of the privilege of bringing home the twenty-five tons from Canton. Which instruction the court refused to give, but gave the following opinion and direction to the jury:
    The court are of opinion and so direct the jury, that the plaintiffs are entitled to recover an equivalent for the loss they may prove their intestate to have sustained, by being deprived of his privilege from Canton or Batavia to the United States, in consequence of the change made by the defendant in'the destination of the vessel, unless the jury should be satisfied from the evidence, that the plaintiffs’ intestate did, with a knowledge of his legal rights, waive the benefit of the privilege accorded to him at the commencement of the voyage, and did accept in lieu thereof a privilege from Coquimbo to Baltimore. The court further instruct the jury, that if they believe from the evidence that the plaintiffs’ intestate shipped goods from London to Chili, on board the- defendant’s vessel, that the defendant is entitled to a credit for the freight thereof, unless the jury shall believe that there existed a definite general and well known usage, at the time of the commencement of the voyage, that freight, under the circumstance of this case, should not be charged by parties standing in the relation of the defendant to the plaintiffs’ intestate. And further, unless the jury believe there was such a waiver and acceptance as is stated in the first part of this direction, on the part of the plaintiffs’ intestate, that then the defendant is entitled to a reasonable freight for such articles as were shipped on account of, or which belonged to plaintiffs’ intestate, from Chili to the United States. The defendant excepted.
    3. Exception. The defendant further prayed the court to instruct the jury, that if they believe that the contract made between the plaintiffs’ intestate and defendant, was an entire contract for §2000, for the faithful performance of the duties of supercargo by Pawson, and a strict conformity to the instructions he should receive, that then the violation of his duty as supercargo by a departure from his instructions in taking on freight, prohibited articles, thereby putting the ship and the owner’s interest therein, in jeopardy, was such an infringement of the entire contract, as took away from the plaintiff any right to demand the fulfilment of the same on the part of the defendant Which opinion and direction the court refused to give. The defendant excepted.
    
      4. Exception. The defendant then prayed the court further to instruct the jury, that according to the contract of the parties as set forth in the correspondence exhibited in.the first bill of exceptions, the compensation of §2000 stipulated to be paid to Captain Pawson, as supercargo, had relation to the original voyage from Baltimore to London, thence to Coquimbo, thence to Canton, and thence homo to Baltimore; and that the voyage having been shortened by striking out the trip to Canton, and making the destination of the vessel direct from Coquimbo to Baltimore, and Captain Pawson having, moreover, died at Coquimbo, in the course of the voyage, before he had completed the investment of the defendant’s funds, that compensation is subject to abatement in the discretion of the jury on two grounds-EAsi, for the alteration of the voyage, if the jury shall be of the opinion that the labour and responsibility of Captain Pawson were thereby lightened—Second, for that portion of the contemplated services of Captain Pawson, which were lost to the defendant by his death at Coquimbo. Which instruction the court refused to give, but were of opinion, and so directed the jury, that if they believed the evidence in the cause, the plaintiffs were entitled to recover of defendant a rateable proportion of the sum of $2060, which proportion the jury should ascertain by computing the time from the commencement of the voyage to Captain Pawson’s death, and from his death until the duties of supercargo were completed by the signature of the bill of lading, for the. homeward voyage, and that the jury may allow him as supercargo such portion of the said sum as they may deem him entitled to, for acting in said capacity, up to the time of his death, at Coquimbo, according to the rule above stated. The defendant excepted.
    5. Exception. The defendant then prayed the court to instruct the jury, that, according to the contract of the parties as set forth in the correspondence exhibited in the first bill of exceptions, the compensation of $2000, stipulated to be paid to Captain Pawson, as supercargo, on the voyage originally projected, to wit, from Baltimore to London, thence lo Coquimbo, thence to Canton, thence home to Baltimore, was one entire compensation to be paid for one entire service, on the return of Captain Pawson to Baltimore, and not subject to be apportioned by a part performance of the service, unless Captain Pawson had been prevented by the defendant from performing the residue thereof—that the voyage having been altered by the consent of the parties (as appears by said correspondence) by striking out that part of it which related to the trip to Canton, and directing the destination of the ship from Coquimbo to Balti-more, without saying any thing of the aforesaid compensation to Captain Pawson, as supercargo, that stipulation attached upon the new voyage, precisely in the same manner in which it had been attached to the original voyage, that is to say, that it was one entire compensation for one entire service, not subject to be apportioned by a part performance of the service, and that consequently, the death of Captain Pawson at Coquimbo, in the progress of the voyage, and before the complete performance of the service, put an end to all claim on the part of the plaintiffs, to any part of the $2000. Which opinion and direction the court refused to give. The defendant excepted.
    6. Exception. The defendant then prayed the court to instruct the jury, that in estimating the value of the privilege of twenty-five tons from Canton to Baltimore, which, according to the opinion expressed in the first bill of exceptions, the plaintiffs are entitled to claim in this action; if it was not relinquished and exchanged by Captain Pawson, by the privilege from Coquimbo, the jury should consider that privilege as having been subject to the contingency of the safe arrival of the ship at Canton, and the continuance of Captain Pawson’s life, and that either the destruction of the ship or the death of Captain Pawson at Coquimbo, in the course of that voyage, would have put an end to all claim by his representatives on account of this privilege. Which instruction the court refused to give, and instructed the jury that these contingencies ought not to enter into their calculation. The defendant excepted.
    
      7. Exception. And the defendant further prayed the court to direct the jury, that the plaintiffs are not entitled to recover the said sum of $2000, nor any part thereof, under the evidence given in this cause. Which opinion and direction the court refused to give. The defendant excepted.
    8. Exception. The defendant also prayed the court to direct the jury, that if the jury believe that Captain Pawson had actually purchased before his death, a sufficient quantity of copper, which, with the other property, purchased by Captain Paw-son for account of the defendant, and afterwards put on board, was sufficient to exhaust the funds of the defendant confided by him to Pawson, that then the plaintiffs are not entitled to recover the compensation of $2000, mentioned in the letters of instruction of the defendant, unless the defendant received on board his ship a sufficient quantity of copper to exhaust his said funds. Which opinion and instruction the court refused to give. The defendant excepted.
    9. Exception. The defendant further prayed the court to instruct the jury, that there is no evidence in the cause from which they can infer that Captain Pawson consented to the change of the original voyage from Coquimbo to Canton, and from Canton to the United States, and waived his privilege from Canton to the United States, through ignorance of his legal rights, the presumption of law being that, if he had full knowledge of the facts, he had full knowledge of his legal rights growing out of those facts. Which opinion and instruction the court refused to give. The defendant excepted.
    10. Exception. In addition to the evidence stated in the preceding bills of exceptions, the plaintiffs offered in evidence, that the gold which was seized at Guaseo, was purchased after the death of Pawson, and after all the copper which the said ship would bear, was actually purchased and loaded on board the said ship, and that the same was purchased with the very doubloons brought by Pawson for, and on account of Donnell, from England, and which remained in possession of Edwards & Stewart, at the time of Pawson’s death ; and that the said gold wras actually purchased by, and under the advice of Thomas Jt. Lane, acting as the captain—which said Lane was the mate of the ship, and succeeded to the command on the death of Pawson—that in the said proceeding Lane had no other authority from Donnell to act as his agent than what was derived from his succeeding Pawson as captain of the ship, and was acting under the instructions of Donnell to Pawson beforementioned. The plaintiffs then prayed the opinion of the court to the jury, that if the jury find from the evidence, that the gold which was seized and lost at Guaseo, after the death of Pawson, was purchased by Edwards 8f Stewart after Pawson’s death, with the separate funds of Donnell, and on his account, and shipped accordingly, without any power or authority from Pawson tc? do so, that then the defendant is not entitled to set off the value or cost of the gold against the claim of the plaintiffs in this suit. Which opinion the court refused to give. The plaintiffs excepted.
    11. Exception. The defendant further prayed the court to instruct the jury, that, according to the orders of the defendant, assented to by Captain Pawson, as set forth in the correspondence exhibited in the first bill of exceptions, it was the duty of the said P meson, as the supercargo and agent of the defendant, to invest all of the defendant’s funds in copper at Chili, if copper could be had, and to bring the same home, and deliver it to the defendant in Baltimore; and if, in these circumstances, Paw-son holding both the defendant’s funds, and his own, after having purchased and put on board the ship Chesapeake, copper equal to the amount of the defendant’s funds, thought proper, for any reason, to make an investment in gold or silver, and did, during his life, make such investment; or, if his agents, Edwards fy Stewart, succeeding to the possession of those joint funds, did, after copper had been purchased and put on board equal to the amount of defendant’s funds, make any such investment in gold or silver, and if such gold and silver was after-wards seized by the government of Chili, and confiscated, as having been attempted to be exported, contrary to the laws of the country, that the loss must, be borne by Pawson and his representatives, and cannot be thrown on the defendant. Which opinion and instruction the court gave. The plaintiffs excepted.
    
      12. Exception. The defendant further prayed the court to instruct the jury, that if, upon the whole evidence in the case, they shall be of opinion, that copper was brought home, equal to the whole amount of the funds of the defendant, and equal to Pawsow’s privilege in copper, (as he was willing to accept it) that the plaintiffs are not entitled to recover of the defendant, the amount of any gold or silver which Pawson or his agents, Edwards fy Stewart, may have put on board the Chesapeake, of their own accord, and without the knowledge, consent, or orders of the defendant, and which may have been afterwards seized by the government of Chili, and confiscated, as having been attempted to be exported, contrary to the laws of the land—and that the defendant’s having received from Captain Lane, the successor of Captain Pawson, in the command of the Chesapeake., the letters and invoices sent to him by Edwards Sf Stewart, is not, under the circumstances of the case, such a ratification of the act of purchasing and putting on board such gold and silver, as to throw the loss of it upon the defendant, and to authorize the plaintiffs to recover it from him in this action. Which opinion and instruction the court gave. The plaintiffs excepted.
    Yerdict and Judgment for the Plaintiffs for the sum of $>5510 -43. From which judgment both parties, the plaintiffs and defendant, appealed to this Court.
    The cause on both appeals was argued before Buchanan, Ch. J., and Stephen and Dorsey, J.
    Williams, (District .Attorney of U. S.) for Pawson'1 s administrators,
    the appellants in the first appeal, contended in argument on the three bills of exceptions’ taken on the part of the plaintiffs below, viz: the 10th, lit h, and 12 ih bills of exceptions, i 1. That the gold, which was seized at Guaseo, and there condemned, having been purchased by Edwards Sf Stewart, after the death of Pawson, without his authority, but with the advice of his successor, Captain Lane, and with the money of the defendant, ought not to be charged to Pawson, nor the cost theréof deducted out of his .funds.
    
      2. That Pawson ought not to bear the loss of the gold, purchased, seized and condemned as aforesaid. 1st. Because he was not bound to invest all the defendant’s money in copper, io the exclusion of his own funds. 2d. Because he did not purchase any gold in his lifetime;—and, 3d. Because Edwards Sf Stewart were not his agents, after his death, so far as regarded the defendant’s funds, but were in that respect, the defendant’s agents.
    3. That Edwards Sf Stewart, being, after Pawson’s death, only his agents, or the agents of his representatives, for the funds of Pawson in their hands, and being the agents of the defendant, for the funds of his in their hands, and Pawson having a co-equal right with the defendant to have his funds invested in copper; and the said agents having actually invested a part of the defendant’s funds in gold, and none of Pawson’s in that artiele, the loss of the gold, is the defendant’s, and not Pawson’s representatives.
    On the second point he referred to 2 Lie. on Agency, 298. 1 Lie. on Agency, 261 to 278. Taylor es. Plummer, 3 Mauls and Sehe. 562- 2 Lie. on Agency, 281.
    
      C. C. Harper for Donnell,
    
    the appellee in the first, and the appellant in the second appeal, stated that for the appellant in the second appeal, it would be contended,
    1. That no usage can, in such a case, be permitted to be en-grafted upon, or to control a written and express contract so plainly and unambiguously set out. This point arises under the first, and a part of the second, bills of exceptions.
    2. That the privilege from Canton depended entirely upon the voyage to Canton, which was within the control of the defendant below, as owner of the ship; that this privilege was expressly waived by Pawson for an equivalent, with knowledge of his legal rights; and that, with knowledge of the facts, ignorance of his legal rights was no excuse. This point embraces a part of the second bill of exceptions.
    3. That Pawson’s acceptance or non-acceptance of the new voyage, and substituted privilege, was a question of law, and that the court ought to have construed the writings under which the question of acceptance arose, and not have left it to the jury. This point embraces also a part of the second bill of exceptions.
    4. That the record aifords no evidence of any ignorance of his legal rights, and that the court ought so to have directed the jury, as prayed in the ninth bill of exceptions, and erred in refusing such direction. This point embraces the ninth bill of exceptions.
    5. That the §2000 agreed to he paid as compensation to Paw-son, depended on the performance of the entire voyage, and on his return to Baltimore, which were conditions precedent. This point embraces the third, fifth, and seventh bills of exceptions.
    
      . 6. That if the whole $2000 cannot be recovered, there cannot be an apportionment, and no part of it can be recovered.. This point embraces the same bills of exceptions' in part.'
    7. That Pawson, by departing from - the instructions of the defendant, (the owner of the ship he. commanded, and in whose employ he was) and by his other, miseónduct, as detailed in the record, lost his right to demand the compensation of $2000, or any part thereof. This point embraces the same bills of exceptions in part.
    . 8. That the court below having pronounced an opinion that there could be an apportionment of the compensation of $2000, they erred in directing the jury not to allow any abatement by reáson of the shortening of . the voyage, or the death of Pawson, and they also erred in fixing the “ date of the signature of the bill of lading for the homeward voyage,” as. the period at which his duties as supercargo, were completed. This point embraces the fourtA bill of exceptions.
    9. That if the privilege from Canton did not depend entirely on the voyage to' Canton taking place, and the defendant was liable to Pawson for the loss of the original voyage and privilege surrendered by him “ under a mistake ofliis legal rights,” then the jury, in estimating the value of the privilege so surrendered, ought Id have taken into their calculation the possible death of Pawson, or the possible loss of the ship before she reached Canton,, and the court below erred in refusing such direction to the jury ,as prayed by the defendant in the sixth bill of exceptions. ,
    10. That if Pawson bad actually purchased, before his- death, an amount of copper, which, with the other property purchased for the defendant, and put on board, was. sufficient to exhaust the funds of the defendant, confided to Pawson by him, that then- the plaintiffs below were not entitled to recover the $2000, unless'the defendant received on board his ship, a sufficient quantity of copper to ■ exhaust his funds, and the court below . erred in not so directing the jury, as prayed for by the defendant below, as stated, in the eighth bill of exceptions. Under this point, the defendant (now appellant) contends, that Pawson^ 
      was special agent for the purchase of copper; that if he was general agent, he violated his duty by not using a sound discretion ; that Edwards Stewart were his agents; and that the gold and silver belonged to him.
    11. The appellant will also contend, under the eighth bill of exceptions. 1st. That independent of the hypothetical assumption in the prayer upon which this exception is founded, the fact that a surplus of copper (over and above all the defendant’s funds, and over and above the 147 quintals delivered to Paw-son) remained in the ship, is proved by the evidence in the record. 2d. That the ship was sent, and Pawson employed for a special purpose; that she was not a general ship, and therefore Pawson could not take in goods for other persons, or interfere with the owner’s arrangements, and thereby throw a loss upon the owner. 3d. That if he could so use the ship as to bind his owner to third persons, the owner might set oif the compensation of $2000 against such loss.
    On the second point he cited 1 Liv. on Agency, 150, 151. Doct. and Stud. ch. 26, page, 79; ch. 46, page, 253. Lowry vs. Bourdieu, Dougl. 471, (455.) Lammott vs. Bowly, 6 Harr. & Johns. 520.
    On the fifth point, Portage vs. Cole, 1 Saund. 320 (note 4.) Furnival vs. Crew, 9 Mod. 455, 459.
    On the sixth point, Cutter vs. Powell, 6 T. R. 320. Cook vs. Jennings, 7 T.R. 381.
    On the tenth point, East India Company vs. Hensley, 1 Esp. Rep. 111. Fenn vs. Harrison, 3 T. R. 757. Gibson vs. Colt, 7 Johns. Rep. 393. Prince vs. Clark, 8 Serg. & Low, 54. Esp. Evid. 64. 1 Com. on Cont. 237. 2 Liv. on Agency, 298.
    
      R. B. Magruder on the same side.
    On the first point, he cited Poth. on Mar. Cont. 13, 14, 32, 135. Abbott on Shipping, 137, (119) 557. 3 Stark. Evid. 998, 1036.
    On the third point, Macbeath vs. Haldimand, 1 T. R. 180, 182 Ferris vs. Walsh, 5 Harr. & Johns. 308.
    On the fourth point, Key’s Exr. vs: Parnham, 6 Harr. & Johns. 418. Davis vs. Davis, et al. 7, Harr. & Johns. 36.
    
      On the seventh point, Abbott 183. Montgomery vs. Wharton, 2 Peters' Adm. Rep. 401. 1 Com. on Cont. 221, 222, 225, 230, 235. Robinson vs. Hindman, 3 Esp. Rep. 235.
    On the eighth point, Abbott 482.
    On the ninth point, Pothier 135.
    
    On the eleventh point, Abbott 119, 1 Com. on Cont. 221,222. Campbell vs. Thompson, 2 Serg. & Low, 481, (1 Stark. Rep. 490.) Locke vs. Smith, 10 Johns. Rep. 250. The act of 1785, ch. 46 and 47. Clarke vs. Magruder, 2 Harr. & Johns. 77. McFadon vs. Baltimore Insurance Company, 4 Harr. & Johns. 45.
    
      Williams, (District Attorney of the U. S.) in reply to the argument of the counsel of Donnell,
    
    on the hills of exceptions taken by him, and which constitute the subject of the second appeal, on the first bill of exceptions, he cited 3 Stark. Evid, 1038. 2 Stark. Evid. 453, 454, 447, 452. Birch vs. Depeyster, 2 Serg. & Low. 359. (1 Stark. Rep. 210.) Senior vs. Armitage, 3 Serg. & Low, 71. Cutter vs. Powell, 6 T. R. 320. Zagary vs. Furnell, 2 Camb. 240. Renner vs. Bank of Columbia, 9 Wheat. 582. Jackson vs. The Union Bank of Maryland, 6 Harr. & Johnson, 146. Bank of Columbia vs. Magrudef's Admx. Ibid, 172, 180. Phill. on Ins. 18. Park, 589, 630. Marsh. 226, 259, 270, 365, 375, 707. Trott vs. Wood, 1. Gall. Rep. 444. Winter vs. Brockwell, 8 East. 308.
    On the' eighth bill of exceptions, Peake's Evid. (Norris's Ed.) 416, Winchester vs. Hackley, 2 Cranch 342, 2 Stark. Evid, 642, 643. Farmsworth vs. Garrard, 1 Campb. 38.
    On the third hill of exceptions, 1 vol. Laws of U. S. 272. .
    On the fourth bill of exceptions, Etting vs. Bank of United States, 11 Wheat. 75. 1 Liv. on Agency, 69 to 180. 2 Liv. on Agency 214, 215. Kendrick vs. Delafield, 2 Cain's Rep. 67,72. The United Insurance Company vs. Scott and Seaman, 1 Johns. Rep. 111, 115. Abbott 270. Thorne vs. White, 1 Peters. Adm. Rep. 176 (note.) Rice vs. The Polly and Kitty, 2 Peters Adm. Rep. 420.
    
      On the fifth bill of exceptions, Cutter vs. Powell, 6 T. R. 320. Abbott, 427. Hart vs. The ship Littlejohn, 1 Peters Adm. Rep. 115, 118, 119, 121. Pothier 116, 117, 118. Pordage vs. Cole, 1 Saund. 320 (note 4.) Campbell vs. Jones, 6 T. R. 570. 2 Stark. Evid. 642. 1 Pow. on Cont. 267.
    On the second bill of exceptions, Laidlaw vs. Organ, 2 Wheat. 178, 183, 195. Etting vs. Bank of United States, 11 Wheat. 75. 1 Liv. on Ag. 71. M'Intyre vs. Bowne, 1 Johns. Rep, 238, 259. Lammott vs. Bowly, 6 Harr. & Johns. 522, 524.
    ■ On the ninth bill of exceptions, Lammott vs. Bowly, 6 Harr. & Johns. 522, 524, 1 Stark. Evid. 399. Etting vs. Bank of United States, 11 Wheat. 76.
    On the sixth bill of exceptions, Etting vs. Bank of United States, 11 Wheat. 75, Abbott, 489, 434. Val. Com. tit. 4 art. 3, 2 Bro. C. & A. L. 533. Pothier 120, 126. JYap. Code, art. 250. Morrison vs. Galloway, 2 Harr. & Johns. 461 to 468. Sigard vs. Roberts, 3 Esp. Rep. 71. Knight vs. Crockford, 1 Esp.Rep. 192, 193. Campbell vs. Jones, 6 T. R. 570. Hoyt vs. Wildfire, 3 Johns, Rep. 518. Sullivan vs. Morgan, 11 Johns, Rep. 66.
    The causes were then postponed, and by agreement, written arguments of the counsel were to be submitted to the court; and the following were accordingly submitted.
    
      Taney, (Attorney General) for Pawsoii’s administrators.
    In the case now under discussion, (the one in which Donnell is appellant,) it will be found that there are three subjects in controversy between the parties.
    1. Is Donnell entitled to charge freight on the goods of Pawson, shipped “on his own account” from London to Co-quimbo ?
    
    2. Are Pawson’s administrators entitled to recover any part of the $2000, mentioned in DonnelVs letter of November 18, 1819? And if they are entitled to recover a part, what proportion are they entitled to recover, and by what rule is that proportion to be ascertained ?
    
      3. Are the administrators of Pawson entitled to recover compensation for the privilege of twenty-five tons, from Canton to Baltimore, stipulatéd in DormelVs letter of November 18,1819, and of which Pawson was deprived by the act of Donnell, in changing the voyage originally contemplated ?
    The defendant below has brought up nine exceptions, and each of them- will be found to relaté to one of .the items above-mentioned, and to involve some of the questions [there stated. Instead, therefore, of taking up the exceptions, in the order in which they are set forth in the record, they will be classed and considered in this discussion, according to the above arrangement. .
    
      First point.—Is Donnell entitled to charge freight on the goods and merchandize shipped by Pawson, on his own account., from London to Coquimbo-.
    
    This question is presented by the .prayer of the defendant, and the' opinion of the court'in the 1st exception. The same principle is again decided in the 2d'exception.
    
    The whole course and objects of the voyage contemplated, when the vessel sailed from Baltimore, are detailed in the letter of Donnell,o£ Novemberl8,1819, and the alterations afterward smade, will be found in his letter of December 26, 1819.
    According to both letters, the ship was to proceed in ballast ■ from London to Chili. The amount of goods shipped by Paw-son, and his motives for this shipment, will be found in his .letter. “In consequence,” says Pawson, “.of the scarcity of doubloons, I have thought it adviseable to invest my own funds in merchandize, in hope that it may do as well, and because I would not interfere in any manner with y.our business.” See also his letter of April 27, 1826.
    It is admitted, that the contract between Donnell and Paw-son was in writing, but the whole of the written contract is not ■ before the court. It was contained in part in the shipping articles, and in.part in the letters of Donnell before referred to. In the admissions, the monthly pay of Pawson as stipulated in the shipping articles, is stated:—but what else.is contained in that paper does not appear. It belonged to the ship, and on her return to Baltimore, must, with the other papers of the vessel, have fallen into the hands of Donnell. It is not suggested in the record, that this document has been lost or mislaid. Why it was kept back, is not explained, nor is it necessary now to inquire. But while Donnell withholds the paper, and gives no proof of its contents, he cannot be allowed to say that the usage relied on by the plaintiffs, is contrary to, or inconsistent with other provisions contained in the agreement. So far as the contents of the writings are before the court,, they are silent as to the privilege claimed under the usage, and certainly contain no stipulation in opposition to it, or inconsistent with it. They do not say that Captain Pates on may, or that he maj not ship goods on his own account from London to Coquimbo. And if goods should be shipped by him, they do not say whether he shall, or shall not pay freight. The contract, as we are allowed to see it, is silent on this subject.
    The writing being silent in relation to the right in question, the first • enquiry is, can the known and established usage of trade, annex to this contract as incident to it, a right in the captain to ship the goods herein before mentioned, free from freight ? This inquiry involves two questions. First, can the known and established usage of trade give to either of these parties a right, not stipulated in the writing ? Secondly, if usage may give such a right, is the usage in question a reasonable usage, or is it unreasonable, and therefore illegal and void?
    Upon the first of these questions the appellees insist, that in a commercial contract, custom and usage may superadd a right to either of the parties, concerning which the written contract between them is silent.
    
    This principal of law is a familiar one, and the authorities to maintain it numerous and undisputed. The court are referred to a few of them, where the principle is clearly and distinctly set forth. 3 Stark. Ev. 1038. Bank of Columbia vs. Magruder, 6 Harr. & Johns. 180. Renner vs. Bank of Columbia, 9 Wheat. 581. The rule, and the reason of the rule, is so well stated in Stark. Em. 1038, that the passage is transcribed for the court— “In many instances extrinsic evidence of custom and usage is admissible for the purpose of annexing incidents to the terms of a written instrument concerning which the instrument is silent. The principle upon which such evidence is admissible, seems to be a reasonable presumption .that the parties did not express the whole of their intention, but meant to be' guided by custom as to such particulars as are generally known to be annexed by custom and usage to similar dealings.; It is evident that in commercial affairs, and all the other usual and common transactions of life, it would be attended with great inconvenience that the well-known ordinary practice and usage on the subject should not be tacitly annexed, by virtue of such a presumption, to the terms of a contract, and that the parties should either be deprived of the certainty and advantage, to be derived from the knoWn course of dealing, or be placed under the necessity of laboriously specifying in their contracts by what particular usages they meant to be bound.” •
    Indeed even' in the case of a sealed instrument, in which parol evidence is much more reluctantly admitted, than in the cases of commercial contracts, usage may be given in evidence to supéradd a right not granted by the terms of the deed itself, and' about which' the deed is silent. Wiglesworth vs. Dallison, Doug. 196, 197. This case was that of a lease.by deed; and usage was received in evidence, and permitted to engraft on it an additional right- to the tenant, not mentioned in the deed. It was a right which by the force of usage grew out of the relation of. landlord and tenant, and was a consequence of that relation which the deed had created. So here usage may en-graft on the contract an additional right to the captain not mentioned in the ■ written instruments,' but which by the force of usage.grows out of the relation of owner and captain, and is a consequence, of that relation. In the language in 3 Stark. Ev. 1038, before quoted, it is annexed as an incident to the terms of the contract.
    The same principle is recognized in Senior vs. Armitage, 3 Serg. & Low, 71, 72, where Baron Thompson says, “that as to the special agreement in order to control the custom, it must be of such a nature, that it operated upon and prevented in 
      
      express terms the custom from attaching.” But it is said on behalf of the appellant, (and much stress seems to be laid on the circumstance,) that the written contract in this case is “ express,” and is “plainly and unambiguously” set out. And it is insisted, that evidence of usage is admissible in those cases only, where the written contract is ambiguous and doubtful in its terms. It would he a sufficient answer to this argument to say, that it cannot be predicated of this contract, that it is plainly and unambiguously set out in the writing. It has been already remarked, that the whole written contract is not before the court; that the shipping articles, a very material, and In this point, the most material part of the contract are not produced. They must he presumed to be in the possession of Donnell, and surely while he withholds the writing itself, he can hardly be permitted to rely on the clearness and perspicuity of its language, in order to bar the claim of the piaintilfs. It is suggested indeed in the argument, that the shipping articles were in the usual printed form, and Abb. on Ship. 557, has been referred to by the counsel for the appellant, to prove that the language of the usual printed form of shipping articles is express, plain and unambiguous. It need only be answered, that there is no proof to support the suggestion. The shipping articles may have been in the usual printed form; but there is no proof of it. No argument, therefore, can he founded on the assumption of that fact. But let us waive this objection to the argument of the appellants and concede, cirgumenli gratia, that the shipping articles were in the usual printed form. The language then is plain and unambiguous: the instrument is silent as to the privilege in question. More than this, the appellant can hardly demand in behalf of the written contract. It is denied that the power of usage to annex a new incident to a contract, and to give a right not mentioned in the contract to one of the parties, is in any degree dependent on the perspicuity, or on the ambiguity of the language used In the writing, it depends on the silence of the written contract, in relation to the incidental right claimed. The wilting may be express, plain and unambiguous, in all the stipulations contained in K, and yet an additional right may he superadded by the force of usage, concerning which the contract is silent.
    In the case of Wigglesworth vs. Dallison, in Doug. 196, 197, the deed was plain and unambiguous in all of its provisions, yet usage superadded an additional right to the tenant, beyond those granted by the deed. And- the same principle is also clearly Set forth'in 3 Stark. Ev. 1038-, and 3 Serg. & Lowb. 71, 72, before referred to, and made to depend on the silence of the writing, and. not upon the perspicuity of the language, and the plainness of the stipulations contained in the deed. What can be more plain than an ordinary promissory note? Yet even local usages, brought home to the knowledge of the parties-, may superadd to it four or five days of grace. It follows, therefore, from the authorities above mentioned, that inasmuch as the written contract is silent as to the privilege in question, it may be superadded by usage. The opinion of the court hypothetically assumes, that the usage was established by proof, and leaves it to the jury to say, whether or not, it was so established by testimony.
    It is not understood that the appellant objects to the opinion upon the ground that the court left it to the jury to find from the testimony, whether there was such a known and established usage as the -appellees alleged. There was evidence for and against this usage-, and in this state of the case, it is not contended by the appellant, that the existence of the usage was a question for the court, and not for the jury. If such an argument should be offered, the following authorities conclusively shew, that it was a fact to be tried by the jury, and not by the court. 2 Stark. Ev. 452, Bank of Columbia vs. Magruder, 6 Harr. & Johns. 180. Many others might be cited, but it is unnecessary to multiply cases upon a point not to be'controverted. In the preceding discussion, the power of custom and usage is limited to cases where the written contract is silent, as to the right whieh the force of usage is invoked to sustain. But it has been extended much further in commercial contracts. There it is called in to aid in the construction of written instruments. Cutter vs. Powell, 6 T. R. 320. Abb. on Shipp. 213. (note.)
    
    In the first of these two cases the Judges declare, that if a usage could be proved, they would expound the contract according to the usage, although it appears that such an exposition would have given to the contract a different meaning from that which, in their judgment, the writing imported. In other words, the usage would have controlled, the language of the written contract In the case in Abbot above referred to, the usage was in opposition to the express words of the written contract, and yet the usage prevailed. The last mentioned case is indeed questioned by Sfarkie in the note, 3 vol. 1038, and perhaps it goes farther than any other decision on the subject. Yet, the judgment of Lord Kenyon on such a point, sanctioned as it would seem to be by Chief Justice Abbot, is entitled to high respect. We are not called upon to define the exact limits of the power of usage on commercial instruments. It is sufficient for us that the contract in this case is silent, as to the privilege or right claimed by the appellees; and if there were no other cases on this subject, but those in relation to bills of exchange aud promissory notes, they would be abundantly sufficient to maintain the position for which we are contending. The words of these instruments are plain and unambiguous. Yet common usage constantly annexes to them the incident of the three days of grace. Three days of grace are the right of the debtor, aud this right is superadded by the force of usage to the words of the instrument. Indeed, so omnipotent is the power of usage on commercial instruments, that although three days of grace, and no more are annexed by law as an incident to every instrument of this description, yet a mere local usage, when brought home to the knowledge of the parties, is sufficiently powerful, not only to superadd a right, but to vary it from the right which the law annexes. Renner vs. Bank of Columbia, 9 Wheat. 581. Bank of Columbia vs. Magruder, 6 Harr. & Johns. 180.
    It may be therefore concluded, that, inasmuch as the contract is silent in relation to the privilege in question, evidence was admissible, to show that by the usage of trade Captain Paivson had a right to ship his goods free from freight. And if the usage was established by proof, it was a part of the contract and as binding on the parties, as if it had been introduced into the. writing. In the language of the court, in Bank of Columbia vs. Magruder, 6 Harr. & Johns. 180, it enters into the contract, and becomes a constituent part of it.
    Whether the usage was proved to the satisfaction of the jury, does not appear-, nor is it material in this part of the controversy. The opinion of the court is founded on the hypothesis, that the jury should find from the testimony, that the usage was a known and established one, and that “ it was so well known and established, that it must be suppposed to have entered into the contemplation of the parties at the time they originally made the contract.” And if we have succeeded in establishing the rule of law before stated, then the opinion of the County Court is free from error, and ought to be affirmed, unless the usage in question is unreasonable, and therefore illegal and void. This brings us to the second question before mentioned.
    2. Is the usage'alleged by the appellees a reasonable usage, or is it unreasonable, and therefore illegal and void?
    This point assumes, that the custom is proved to be a known and established one. The appellant contends, that although it be proved to the satisfaction of the jury, that the captain under the circumstances stated in the record, was not chargeable with freight according to the usage of trade:—And, although this usage of trade “was.so well known and established, that it must be supposed to have entered into the contemplation of the parties, at the time they originally made the contract.” Yet the usage so known and established, and so proved is unreasonable, and therefore illegal and void. This objection does not question the power of usage to give additional rights to the captain, not mentioned in the contract, it merely denies its power to give the particular privilege claimed. The objection applies to the nature and character of the usage, which is pronounced to be unreasonable, and on that account alone illegal and void.
    It is difficult to imagine how a usage proved to be as well known and established, as the opinion of the court requires, could be unreasonable. Men are not apt to enter voluntarily and continually into contracts, contemplating upon every occasion an incident to the contract, which will subject them to unreasonable imposition. The opinion of the court requires, that the usage shall be so well known, that the appellant must be presumed to have looked to it when he bargained. Unless it was proved to this extent, the jury could not regard it, and were indeed forbidden to regard it.
    The usage in question then could not have been proved, unless there had been a general concurrence and consent among the ship owners of Baltimore, for a length of time, sufficient to make it an established custom. It can scarcely be credited, that any class of men, would so long unite together in building up a system of dealing, unreasonable and unjust to themselves. And no class of men are less likely to commit such a folly, than the merchants. The mere fact, therefore, that it had become a known and established usage, is powerful evidence, that it must have been found by experience to be convenient and useful to both parties. Yet it is not necessary for us to prove the usage reasonable; the appellant must prove it to be unreasonable.
    
    “ A custom may be good although the particular reason of it. cannot be assigned, for it sufficeth if no good legal reason can be assigned against it.”—% Stark. Ev. 447, and the authorities there cited.
    But is there any thing unreasonable in the usage alleged ? Can any good reason be assigned against it? The counsel for the appellant have indeed urged, that if the usage in question were established, a captain might load the ship on his own account, contrary to the owner’s wishes—that he might take goods for others for his own profit, or to the injury of the owner —that he might take contraband articles, and thereby subject the ship to seizure—that he might fill the ship with passengers, and that those passengers might, by being belligerent in regard to some other nation, subject the owner to the loss of his ship, or might in some other way do him irreparable injury.
    It is an easy matter to fancy a usage that would be full of evil, and then point out the evils which would spring from it. It will be far more difficult, however, to find them in the custom sanctioned hy the County Court. It authorizes none of the acts above mentioned, and permits no injury to the owner in any shape. The usage in question is confined in express terms to the goods shipped by Captain Pawson on his own account. It does not extend to any other goods, and does not embrace the goods shipped by Goddard, or by any other person but the captain himself. It does not authorize him to take goods for another, either on freight, or free from freight. The court have not decided that any usage would deprive Donnell of the right to charge freight on the goods shipped by Goddard.
    
    The court have not said that any usage would justify him in taking one or more passengers, either for his own profit or the profit of his owner. It is not meant to question the validity of a usage, to take a reasonable number of passengers who would not encumber the ship: but we desire to shew that no question upon that subject is involved in the opinion now under discussion. The usage, of which the court speaks, relates to the goods shipped by Captain Pawson on his own account; and not to the passenger from London to Chili, nor to the goods of Goddard.
    
    The usage in relation to the captain’s goods is also confined to the circumstances of the case before the court. There must have been, says the court, a known and established usage that the captain “under the above'circumstances, was not chargeable with f reight.” They do not speak of a usage extending further, or giving a right under any other circumstances, or to any other extent.
    And what were the “above circumstances” to which the court limited their opinion ? The ship was to go in ballast—the space occupied by the goods would have been vacant—the amount shipped was within the reasonable compass of his private and separate trade—it interfered with none of the owner’s plans— did not delay the ship—did not impede her voyage, or in any respect do injury to the owner, or put to hazard his property, or interfere with his plans of commerce—and the captain was induced to take these bulky articles in order the better to promote the views and the interest of the owner, and did thereby promote them. His original design was, it would seem, to take doubloons, upon which it will hardly be contended that freight would have been chargeable; he changed his intention, because he would not go into the market to compete with his owner, or take from the quantity the owner desired to procure. Is there any thing unreasonable in a usage that, under such circumstances, the captain is not chargeable with freight? It would rather seem that he must be a most unreasonable owner who would demand it. It surely .does not work injustice.
    The counsel for the appellant have cited Poihier on Jllcr. Cont. 14, 32 and 135, to prove that the owner is entitled to the use of the whole ship, and that, by an express article of the French commercial code, the captain can take nothing without paying freight, except what he may put in his chest. The authority cited is certainly entitled to very high respect on all questions of commercial law. The right of the owner to dispose of his vessel as he pleases is not disputed on our part; and it depends upon his will whether the goods may or may not be taken on board, and whether freight shall or shall not be charged. And it is because he has this absolute dominion over the freight that he may grant to the captain, or any one else, the right to take goods free from freight. If by express written contract he had given the privilege in question to the captain,, nobody would doubt the validity of the grant; and if by the' force of usage, the privilege is an incident to the contract, then such usage enters into the essence of the contract, and becomes-a constituent part of it. It is as obligatory upon the parties as if it had been set forth in the writing. , The privilege then is-derived from the contract of the owner himself. In other words, it is granted by him. It is not, therefore, inconsistent with his rights, but is created by the exercise of his rights. It cannot be illegal and void on that account, for the owner may, by his contract, lawfully grant it. The usage therefore is not inconsistent with the right of property in the owner.
    Neither is it unreasonable and void, by reason of its being against law. If we had a positive legislative enactment like the French ordinance in Poth. 135, relied on by the appellant, then any usage in opposition to the statute would be illegal and void. But we have no statute against-it; nor have we airy judicial decision against it; nor is it inconsistent with any principle of law. Pothier’s work is very high evidence of commercial usages, because most of the principles, contained in the ordinances, have been adopted as usages of trade by the commercial world. Still it is nothing but evidence, and not conclusive evidence. All of the ordinances have not been adopted, and they are binding in so far only as usage has made them so: and where they dp bind, it is by the force of usage alone. If, therefore, the custom has been otherwise, and is proved to have been otherwise, the one proved must govern. This court has decided that even a usage, acknowledged and settled by our own judicial decisions to be the law of trade, may be altered by a mere local custom, when brought home to the knowledge of the parties. Besides, what is the usage in one place, is not necessarily the usage in another; and what is the usage in a trade to one place, is very often not the usage in a voyage to another. The usage depends upon the place, and the voyage, and the trade in which the vessel is engaged. And the usage is itself the law of the trade. We know very well that usages often change; and what is the law of trade at one time, is not always the law at another. The power that makes the law repeals it. The new usage, when it has once become the known and established one, abrogates the old.
    If we are right in the positions endeavoured to be maintained, then the usage in question is not contrary to the principles of justice, is not inconsistent with the owner’s right of property, and is not contrary to any positive rule of law. We cannot, therefore, perceive how such a usage can be deemed unreasonable, and therefore illegal and void.
    
      It may be concluded then, 1st, that a usage which is not unreasonable, may superadd a right not expressed in the contract— and 2dly, that the one in controversy is not unreasonable. And . if these propositions have been established, it follows that when the contract was made between the parties, the right to ship the merchandize in question, free from freight, vested in Pawson by virtue of the contract, and consequently Domiell had no right to the set off which he claimed.
    But in order to maintain the opinion of the court, it is not even necessary to insist that the right under it was a positive and absolute one, vesting in Pawson at the time the contract was made. We might, concede that a usage to that extent would he unreasonable. We certainly make no such concession, because we are not aware that any principle of commercial law requires us to do so. But, waiving the argument already offered to prove that the usage to the extent claimed is not unreasonable, yet if its operation be restrained to that of a license to ship under such circumstances, revocable at the will of the owner, it will hardly he contended that there is any thing unreasonable in it. And if it be limited to a mere license, in the absence of orders to the contrary, still Donnell was not entitled to the freight.
    It will be observed that there was no prohibition on the part of Donnell to take the goods in question. , There is, on the contrary, an almost necessary implication, in DonneWs first letter, that he might do it. He says, “ but it is understood that you are not to put any copper or heavy articles on hoard at ChiliP The prohibition for that particular part of the voyage, and the perfect silence of Donnell, with respect to the voyage from London to Chili, strongly implies an actual permission. But we do not put the point on the ground of actual or implied permission in the writing; our object is to shew that it was not forbidden in the writing.
    It has been already remarked that Hie usage, sanctioned by the court, is a usage confined to the circumstances of this case. It is one of Its circumstances, that there was no prohibition 'to do the act. If then it was the usage of trade, not to charge freight on the captain’s private adventure, when the ship was in ballast, unless the captain was notified that it would be charged—if the usage was ih the nature of a license only, and revocable at the will of the owner, it would still, as the license had been acted on, have become compulsory and binding, and could not be recalled, and Domiell would not bé entitled to demand the freight. Winter vs. Brockwell, 8 Mast. 308, is full to this point. And we think it would be difficult' to shew that a usage was unreasonable, which merely inferred a license, and did not become a vested right in the captain and compulsory on the owner^ until it had been executed. - This point need not be enlarged on, as it cannot be deemed a necessary one to maintain the opinion given. It may be proper, however, to remark, that even in Donnell’s account, Pawson is not charged with freight on these goods, although freight is charged on Goddard’s cordage, to the amount Of more than one fourth of what it sold for. If the spirit which concocted that account, could not work itself up to charge freight on Pawson’s goods, the usage to the contrary must indeed have been, well known and established. The omission to do so in such a paper, would seem of itself conclusive proof of the usage, and of the reasonableness of the usage too.
    In contending that the usage was a reasonable one, we have stated that the goods did not exceed the ordinary extent of a captain’s private trade in such a ship. The amount that a captain may ship, must depend on the limits of the usage. The amount .actually shipped appears in the evidence, and was one of’the-“circumstances” by which the jury were to try, whether the shipment was within the boundaries of a known and established usage. If it exceeded the amount fixed by the usage, it was not protected by the opinion of the court; and whether it did, or did not exceed it, was a question of fact for the jury, and was one of the “ circumstances” by which they'were to be governed. This is mentioned in order to shew that the usage contended for does byno means imply the right of the captain to ship, any quantity of merchandize he may think proper, however large. The amount, like other customs, must depend on the nature oi' the trade, and the size of the vessel. It must not exceed the ordinary and reasonable extent of the private trade of a captain in such a vessel, engaged in such a voyage. There is a standard therefore sufficiently certain, whereby the jury may try it—a rule as certain as that whereby they try “ reasonable skill and judgment” and “ reasonable diligence ” when those questions, as happens very often, are questions for the jury, and not for the court. In this case, the amount shipped, including commission, &c. was 11151. 13s. 8d. Pawson took: with him for his private trade, 11651. 9s. Id.—and this sum it appears, was taken with Donnell's consent and knowledge, and in a hill drawn by him on his agent in London. Moreover, Donnell procured the amount shipped, to he insured, and charged a commission on it. These facts furnish evidence from which the jury might very well have found, that the merchandize in question, did not exceed the ordinary private trade of the captain in such a ship on such a voyage: and, that a private trade of this description is well known and understood, appears by Jlbb. on Ship. 213. The other circumstances to which the usage was confined—that is, that the ship was in ballast—-that it did not delay her—that it did not injure the owner, nor interfere with the objects he liad in view—that it was done for the purpose of advancing the interest of the owner—that it was not forbidden—that the act was done before freight was claimed— do not appear from the evidence to have been susceptible of controversy. They might, surely he all found by the jury upon the evidence as it. appears in the record. And if these “ circumstances”—these facts were all found by the jury, it is submitted to this court to' say, whether the usage claimed can be deemed to be against justice—against positive law—or inconsistent with the rights of the owner.
    
      Second Point.—-Are Paulson's administrators entitled to recover any part of the |>,9000, mentioned in Donnell’s letter of November 18, 1819 ? And if they are entitled to recover a part, what, proportion are they entitled to recover, and, by what, rule is that proportion to he ascertained?
    
      The appellant has raised three questions on this part of the .controversy; and these questions are supposed to arise under the 3d, 4th, 5th, 7th and 8th exceptions.
    1st. He insists that Pawson violated his duty as supercargo, ' and thereby forfeited all claim to wages in that character.
    2d. That the compensation ..in question is an éntire one, to be paid for an entire sérvice, and is not subject to apportionment, by a part performance of the service.
    3d. That if it be subject to apportionment, yet it ought not to be apportioned in the manner directed by the County Court.
    It is of importance to attend to the exceptions to which these objections are referred; for it will .be found that some of the questions made here, are not warranted by the record, and do not appear to have been decided by the County Court.
    1. The objection, first above stated, is said to arise under the 3d, 7th and 8th exceptions. To support this objection, Pawson is charged with misconduct in the following instances:—1st, in taking the cordage on freight: 2d, in taking the passenger: 3d, in concealing these acts; and 4th, in the shipment of the gold and silver bullion at Guaseo.
    
    
      The 8th exception certainly does not bring up either of these objections. For, according to the principle maintained by the appellant in this exception, the appellees’ right to recover any part of the §2000 is made to depend on the receipt by Donnell on board his 'ship of a sufficient quantity of copper to exhaust the funds, placed by him in the hands of Pawson. ■ The prayer, is, that unless “ he received on board his ship” this quantity of copper, the appellees cannot recover this part of his wages. If this notion be correct, then although Pawson most faithfully and most skilfully discharged his duty according'to the very letter of his instructions, still he is not entitled to recover his Wages, unless DonmdVs funds had the good fortune to come safe to his hands in his own ship. Such a proposition can hardly be sanctioned by this court. The exception obviously raises no question on the legal effect of any supposed misconduct on the part of Prnson. It does not suggest' that any misconduct has heen committed by him; and if objections exist on that score, they cannot be considered under this exception.
    It is also supposed by the appellant, that the acts of misconduct above stated furnish a sufficient ground for the absolute direction that the plaintiffs were not entitled to recover, prayed for in the 1th exception.
    If it be even admitted, for the sake of the argument, that the acts of misconduct above mentioned might bar the claim for wages as supercargo, yet the court even in that case could only have given a hypothetical direction, and could not have given the absolute one asked for by the appellant. For each of the acts above stated may, or may not be acts of misconduct. F or example—the taking of the passenger is not of itself an act of misconduct in the captain; for merchant vessels generally desire to obtain passengers. And if the passenger in this case was taken by the permission of Donnell, express or implied, it would not be a violation of Pawson’s duty; and whether such assent was or was not to be inferred from the evidence, was a question of fact; and therefore a question for the jury. So too as to the concealment alleged in the argument; it was a question of fact for the jury. And if the shipment of the silver and gold be a breach of duty in any body, it is surely a question of fact, whether it was or was not shipped by Pawson or by his directions. If, therefore, it had been the intention of the counsel for the appellant, to found this prayer on any of these supposed acts of misconduct, the prayer offered should have been hypothetical; that is, “ if the jury find from the evidence, that the passenger was taken by Pawson, contrary to his duty as supercargo;” or, “ if the jury find from the evidence that Pawson concealed his conduct from the owner;” or, “ if the jury find from the evidence that the silver and gold was shipped at Guaseo by Pawson, or by his orders, contrary to his duty as supercargo.” In this, or a like form of prayer, the question of law would have been put to the court-, whether such misconduct forfeited his wages. But as the prayer stands in the record, the court were called on to decide the questions of fact, as well as the questions of law, If there were no other objections, this alone would have been sufficient to warrant the opinion given by the court in the 7th exception.
    In. speaking of the acts of misconduct under the 7th exception, the shipment of the cordage is not mentioned. Because this item is distinctly presented by the appellant in the 3d exception, and it is therefore unimportant whether he can or cannot avail himself of it, under the 7th. But the alleged misconduct in relation to the passenger; the concealment; and the shipment of the gold and silver, are not embraced in the 3d exception; and if these objections cannot be brought under the 7th and 8th, it is useless to discuss them; for they are not presented by the record. We have already shewn, that these three ■ items of misconduct cannot be sustained under the 7th and 8th exceptions; neither are they included in the third; for this applies to the misconduct of “ taking on freight prohibited articles,” and to no other misconduct. • Nowjthe passenger and the concealment are obviously not' within this description; and 'the gold and silver were not taken on freight, but were put on boai'd as the property of the owner and the captain, and therefore are not embraced in the supposed misconduct, described in the 3d exception. We cannot, therefore, be called on to defend ourselves against these three instances of supposed misconduct. These questions are not brought up by the record.
    With respect to the remaining item in the account of misconduct • that is—the cordage which is the foundation of the 3d exception, it is abundantly answered by the treaty between the United States and Spain. The cordage was not prohibited as contraband ; 1 vol. Laws of the United Stales, p. 272. Paw-son did not, therefore, in this particular take on freight prohibited articles.
    But let it be supposed, that these questions of supposed misconduct are all brought here by the '7th exception, and that this court will decide the fact as well as the. law.
    The case of the cordage is already answered; there was in fact no misconduct, because it was not a prohibited article.
    In the case of the passenger, if any misconduct was committed it was done as" captain; and if any wages were forfeited by it, it must have been the wages of «aptain. Yet the right to these wages is not dispute d. They are admitted in Donnell1 s account. The wages now in question are the wages as supercargo, and they are so called by the appellant in the prayers in the 3d, 4th and 5th exceptions; and the recovery is resisted altogether on that ground. If the conduct of Pawson forfeits any wages, it must forfeit the wages of the captain, rather than those of the supercargo.
    But if the taking of the passenger be considered as the act of the supercargo, or that being done by him as captain, it shall nevertheless affect his title to wages as supercargo, still it is incumbent upon the ap pellant to prove, that this act was a violation of Pawson1 s duty. He makes the charge; he must therefore prove it. He must prove that he did the act,, and that the act done was -a violation of his duty. The evidence is, that the act in question was not a violation of his duty to Donnell, for it was sanctioned by Donnell. See Donnell’s account, la the second item of this account, he charges Pawson with “ short credit,'allowed for passenger from London, £25.” The words in which this charge is made strongly imply, that the passenger was taken in the ordinary course of business, and was a matter to be adjusted in the account between them, and not a matter to forfeit all title to wages, on the part of Pawson. Donnell claims the benefit of the contract made by Paioson with the passenger, and thereby certainly adopts it, and treats it as a contract made by his agent for him. He differs indeed with Pawson as to the manner in which the passage money is to be distributed. But no question upon that subject is presented by the exceptions. The question here is, did the act of taking the passenger forfeit his wages as supercargo ? Not, how is passage money to be divided ? And it is apparent from the evidence, that Donnell believed Pawson to have acted in this respect within the scope of his duty.
    The charge of improper concealment is so entirely unsupported by the proof, that we are at a loss to know what part of the testimony is relied on to support it. It is a question of fact not involved in any one of th$ exceptions, and not countenanced by any part of the testimony.
    The charge of misconduct, in relation to the shipment of the gold and silver, is not better supported than that of concealment. The gold and silver was shipped after Pawson1 s death. It was shipped at Guaseo, (see. account of Edwards fy Stewart.) Captain Pawson died at Coquimbo, before the ship sailed for Guaseo■ It has been said that the shipment was made by his orders, although made after his death. This is a'mistake. He left no orders on the subject. From the beginning of his illness, he was incapable of giving any. (See letters of Edwards 8f Stewart, December 8, 1820, and January 19, 1821.) We might indeed safely admit that he intended, if he had lived, to have shipped the silver, and gold. But even if this shipment .would have' forfeited his wages, still as it is perfectly clear that he. did not do the act,, nor cause it to be done, it can never be contended that the mere intention to do it would work a forfeiture. There can be no such principle known to the common law. It is contrary to its whole spirit and provisions. Besides, the shipment did not put in jeopardy the ship, nor the owner’s interest therein.
    ■In this cáse too, as well as in that of the passage money, the evidence is that Donnell adopjed the acts of Pawson, and sanctioned them by his assent. He was informed of Pawson’s intention to ship the silver. (See letter of -November 4, 1820.) This silver was to be a part of the 6,000 dollars which Donnell was requested to insure. He did ensure, and charge a premium for his agency in procuring the insurance.. (See his account.) He lias thus made a profit on this shipment, and took no steps whatever to indicate to-Pawson that he disapproved of it. It forms no part of his defence in his account. Surely, all of these circumstances furnish conclusive evidence, that Donnell did not deem this shipment a violation of Pawson’s duty to him. He regarded it, and treated it as a part of thé ordinary business of the voyage.
    If therefore this, court, under the 7th exception could decide the facts as well as the law, in these four alleged instances of misconduct, yet the testimony in every one of them fully justifies Pawson, and shows that he faithfully discharged his duty: The appellants fail in the facts, if the court deem it proper to try the facts on the evidence.
    But suppose we are wrong in both of the propositions we have endeavored to maintain. Let us assume, for the sake of the argument, that the objections are presented by the record, and that the acts ofmisconduct imputed to Pawson are sufficiently established; it remains to inquire, whether such acts of misconduct will forfeit all title to the wages stipulated in the contract.
    In this aspect of the case, the point to b e decided is this, an agent has faithfully and diligently performed his duty to*; his principal, according to the best of his judgment. Nothing is done, or omitted to be done in bad faith. The services have been rendered by the .agent and accepted by the principal, and a large profit reaped from them. Yet the agent is supposed, in some particular instance, to have mistaken the precise line of his duty; and to have departed from it; and, by tins departure, the gains of his principal are in a slight degree' lessened. It is said by the appellant, that in such a case this injury to the principal, however small, forfeits the wages of the agent, however large. It is even said they are forfeited, although the owner sustain no injury. No authority has been produced to maintain either of these propositions, and it is believed that none can be found.
    The principal is not without remedy in the case supposed, provided he has sustained damage. The law will not indeed forfeit the wages, by way of penalty upon the agent. Neither can the principal, technically speaking, set off the amount of injury received by him, in bar of the claim for wages. 1 Peak. Ev. (Norris' edition,) 416. Winchester vs. Hackley, 2 Cranch. Rep. 342. But he may maintain an action against the agent, and recover damages, commensurate with the injury sustained.' And in this suit Donnell was at liberty to have shewn, if he could, that the duty of supercargo was not performed with fidelity and skill, and have thereby diminished the wages to be recovered, in proportion to the injury he had sustained, And he might have defeated the claim altogether, if it had appeared to the jury, upon the evidence, that Pawson had performed the trust so negligently, unskilfully, or unfaithfully, that he was not entitled to demand compensation. 1 Com. on Cont. 226, 227, (edition of 1809;) 2 Stark. Ev. 642, 644, (notei) Farnsworth vs. Garrard, 1 Camp. 38. But Donnell does not rely on this defence. The record presents no question on these points. Donnell insists that there has been a technical violation of duty by Pawson, and that the law visits it with the total forfeiture of his wages. And, after having received the benefit of the services, he now claims the benefit of the forfeiture. The claim is not founded in justice, nor is it supported by authority.
    If therefore the'points raised were presented by the record, and the imputed acts of misconduct could be proved, still all right to the wages would not be forfeited, and consequently the prayer, contained in the 3d and 7fii exceptions, ought not to havp been granted. We have already shewn that the 8th exception presents a different question, and have offered argument upon it.
    2. We proceed to the second objection, in relation to the $2,000. It is said that the performance of the whole service is a condition precedent to the recovery of any part of the compensation; and that, as Pawson died before the service was completed, his administrators can recover nothing for the services actually rendered.
    This point is presented in the 5th exception, and in none other.
    It is very clear that the court was right in refusing to give the direction prayed for. The appellant called on the court to decide, what is obviously a question of fact, and a disputed question of fact.- The prayer, after stating the services for which the above mentioned sum was supposed to be compensation, proceeds thusthat the voyage having been altered by the consent of parties, (as appears by the said correspondence,) by striking out that part of it which related to the trip to Ccmton7 
      and directing the destination of the ship from Coquimbo to Baltimore, without saying any thing of the aforesaid compensation to Pawson as supercargo, that stipulation attached to the new voyage precisely in the same manner, in which it had attached to tlieoriginal voyage,” &c. &c. This quotation is made from the prayer, in order to shew that the stipulation is supposed to attach on the new voyage, as it has done to the old, by reason of the agreement to substitute the new voyage for the old one. The agreement then to alter the voyage is the foundation on which the prayer is placed by the appellant. It can be supported on none other. And he calls upon the court to say, not only that the agreement had been “ altered by the consent of the parties,” but also that this alteration “ appears by the correspondence.” In other words he assumes, that the correspondence being in writing, it is the province of the court to say, whether the consent of Pawson to the alteration in the voyage is to be inferred from it or not. We deny that it is within the province of the court to decide this question. One of the facts in controversy between the parties, as appears by the record, is whether Pawson did or did not consent to this alteration. The appellant says he did assent, and thereby waived the old agreement and made a new one. The appellees, on the contrary, insist that he merely obeyed the orders of his owner; that it was his duty to obey, and being his duty, his assent to the change cannot be inferred from the fact that he performed the new voyage cheerfully, and without objection. And they maintain therefore, that the original contract was never waived by Paw-son, and the rights of the parties must still be decided by this agreement.
    In this state of the controversy, can the court undertake to decide the question, whether Pawson did or did not consent to the alteration? Is it not a question of fact? It does not depend upon the construction of any particular paper, but depends upon inferences to be drawn from the whole correspondence, and the acts of the parties taken together. It is therefore a question for the jury. Etting vs. Bank of United States, 11 Wheat. 75, 76, is in point.
    
      If we are right in these views, the judgment of the County Court upon this exception must be affirmed.
    But let.us waive this objection and examine the point of law proposed to be raised by the appellant, under this exception.
    The ship sailed from Baltimore, Nov. 19,1819, She returned October 21, 1821, having been absent nearly two years. Pawson died December 4, 1820, having been actively and laboriously engaged in the service of Donnell for more than a year. At the time' of his death he had nearly completed the duties of his agency, and had, by his faithful services, insured to Donnell a gainful voyage.' Donnell accepts all the benefits, which the labours and services of Pawson had procured for him; but contends that Pawson is entitled to no compensation for these services, because he died before the duties of the agency were entirely completed. According to this principle, if only- a single hour’s work remained to be done when Pawson died, his representatives would be entitled to nothing for his services, even although these services had occupied many years of his life, and had enriched the hppellant. Is this the law ? The principles of moral justice are opposed to it; and it cannot, we think, be supported by the authority of adjudged cases.
    The cases upon this point are collected together, and the rule laid down in Portage vs. Cole, 1 Saund. 320, (note 4,) as relates to sealed .instruments.
    The conclusion from all the cases is stated as follows: il Hence,” (says Sergeant Williams,) “ it appears that the reason of the decision in these and other similar cases, besides the inequality of the damages, seems to be, that-when a person has received a part of the consideration for which he entered into . the agreement, it would be unjust that, because he has not had the whole, he should therefore be permitted to enjoy that part, without either paying of doing any thing for it. Therefore the law, obliges him to perform the agreement on his part, and leaves him to his remedy to recover any damage he may have sustained, in not having received the whole consideration.”-
    
      The same principle applies to contracts, not under seal, with this difference that the defendant is not put to his cross action, as in cases of covenant. But if the contract has not been fully performed by the plaintiff, the defendant may show it, and the plaintiff will be allowed to recover to the extent of the benefit derived by the defendant, and no further. 2 Stark. Ev. 643, 644, and (note n.) The doctrine is so clearly laid down in this authority, that we must beg leave to ask for it the particular attention of the court. For in strictness, &c. “ But still,” (says Starkie, in page 643j “ if the defendant be benefited to a certain extent, and does not repudiate the contract in toto, it seems to be a rule of policy and convenience, as w’ell as of equity and justice, that the plaintiff should be allowed to recover to the extent of the benefit derived by the defendant, and no further.”
    Whatever therefore, may have been the ancient decisions upon this subject, it has for many years been settled in the English courts, that in ordinary contracts, with or without seal, the defendant according to the principles of the common law is liable, in proportion to the benefit derived from the contract, although he may not have received the whole consideration for which he stipulated; provided the plaintiff is not in fault, and does not possess the power to perform the whole stipulation. This is the general rule applicable to contracts. It is however admitted that if, from the words of the contract, it appears that the parties intended that the entire performance should be a condition precedent to the payment of any part of the compensation, then such condition, like every other condition precedent, must be strictly and entirely performed. For the parties have a right to contract as they please. But in order to produce this result, it must clearly appear from the words of the contract, that such was the intention of the parties; and such was the case of Cutter vs. Powell. The same principle prevails in commercial contracts.
    If a seaman is prevented by a superior power from performing the service he contracted to perform, he is entitled to a proportional part of his wages; as in the case of sickness or death of the mariner; and also in the case of impressment. Abb. on Ship. 426, (and note 1,) 427, (and note 1,) 433, (and note 1.) In these passages in Abbot, the doctrine is summed up, and the leading authorities referred to. And the eases given in the last mentioned page, seem to be conclusive on this point. The same principle is fully- supported by the following authorities :—Hart vs. Ship Littlejohn, 1 Peters Adm. Rep. 116 to 121. Johnson vs. Sims, Ib. 215, Poth. Marit. Cont. Placita, 179 to 193.
    If it be said that contracts for personal service stand on ’different grounds from other contract's, and that the performance of the whole personal service stipulated is a condition precedent to the payment of any part of the stipulated reward, for which the seryice is the consideration, the answer is that no good reason can be given in support of such a- distinction. Neithér do the authorities sánction it; for the cases of maritime contracts-above quoted, were cases of contracts for personal service; Many of the cases upon the subject of hiring by the year relate to the time when the wages may be demanded—the time when they become' payable. If they were to be paid at the end of the year, they cannot be demanded before. The King vs. Inhabitants of Whittlebury, 6 T. R. 467. 3 Stark. Ev. 1766.
    And in the case of Cutter vs. Powell, so often referred to, it is distinctly admitted in the argument of the counsel for the defendant, and sanctioned by the court, that in the common' casé ' of a hired servant who contracts by the year, and dies in the middle of it, his executors may recover a part of his wages, in proportion -to the time of service.
    The case mainly relied on by the appellant, is the case of Cutter vs. Powell; 6 T. R. 320.
    This case was manifestly not decided upon any general rule of law applicable to contracts for service, but was decided upon the special terms of that particular contract. The Judges say so in delivering their opinion, and the unusually high rate of the wages is'greatly relied on by two of the Judges, for the purpose of proving that the wages were to be contingent and hot certain. There is no circumstance like that in the present case. In Abb. on Ship. 429, in speaking of the case of Cutter vs. Powell, it is said to have been decided “ upon consideration of the particular terms of the note, and of the great excess of the sum to be paid to Cutter, if he had performed the whole voyage according to those terms, above the usual rate of wages upon a monthly hiring.”
    The case of Countess of Plymouth vs. Throgmorton, Salk. 65, referred to by Lcmrence, Justice, in his opinion in the case of Cutter vs. Powell, might be sufficiently answered by saying, that if it be contrary to the cases above referred to, it is then overruled by them. In note (a,) page 323, of Cutter vs. Powell, it is said that the ancient law was different from what the modern is in that case conceded to be.
    But a further sufficient answer may be given. The case of Countess of Plymouth vs. Throgmorton, does not justify the account given of it by Justice Lawrence: He says, in speaking of this case, “ it was argued that without a full year’s service nothing could be due, for that it was in the nature of a condition precedent; that it being one consideration and one debt, it could not be divided; and this court were of that opinion, and reversed the judgment
    
    Now it does appear, it is true, that the argument above stated was offered by Sergeant Holt, who was counsel in the case. But it does not appear that “the court were of that opinion,” as is stated by Justice Lawrence. The report iri Salkeld does not say so. For after giving the argument of counsel it says, “ judgment reversed,” and does not profess to give the grounds upon which the court decided. The doctrines maintained by the counsel in argument are not ascribed to the court, by the reporter. The full copy of the record of this case will be found in 3 Salk. 784; and it is apparent upon looking at it, that the declaration could not be supported, and that the judgment in the court below ought to have been reversed on the pleadings. The declaration states the contract in substance to have been, “ that the earl of Plymouth authorized Edward Picke to demand and receive all sums of money then due to the earl of Plymouth, or that should become due in the next three years, and to apply the same as the earl of Plymouth should by writing direct; and- for his care and labour in the premises, the said earl engaged to pay him a hundred pounds a year for three years. The declaration then avers, that the said Edward afterwards, for the space of three quarters of a year from thence next following, from time to time, “ solicited and requested divers persons the debtors to the said earl, to pay sundry sums of money at that time due and payable to the said earl,” <§'c. Sfc. Now, it will hafdly be contended that this is a good averment, that the service stipulated was performed for any space of time. The duty averred-to have been for three quarters of a year, is not the service contracted to be done; and there is in this declaration no good and legal averment of performance of the service contracted for, even for a single day. The case therefore must have been reversed on this ground; and it certainly .does not appear that the court decided it on the ground, taken by counsel in the argument.
    These two cases then can hardly be sufficient to outweigh the many authorities produced in support of the opinion of the court.\ And it would indeed hardly be desired to find authorities to support the principle maintained by the appellant. For if he be. right, then where a slave is hired by the year, and dies an hour before the expiration of the year, his master loses his wage's. So too the family of an overseer would lose the fruits of his labour, if he died an hour before the expiration of the year. And although such contracts of hiring have been common for A long time in this State, it has never been supposed that the accident of sickness or death would prevent the party or his representatives from recovering for the proportion of the service actually rendered. Yet according to the doctrine maintained by the appellant, if by sickness or death Pawson was prevented from performing the most trifling proportion of his duty, he was entitled to nothing; the contract being an entire compensation for an entire service, and not subject to. apportionment. There is surely nothing like justice in Hie rule to recommend it to the favour of the court.
    
      It has been also insisted on the part of the appellant, that the expressions in Donnell’s letter, that the $2000 were to be payable on .Pawson’s return, make his return a condition precedent, and that the right to the wages depends on the happening of this contingency.
    In reply to this argument, it is sufficient to refer to 1 Pow. on Cont. 267, 268. Abb. on Ship. 433, 434, (note 1.) The words in Donnell’s letter do not create a condition; they are modal only; and relate to the manner in which the contract shall be performed.
    Assuming then that Pawson had not by misconduct on his part forfeited all claim to wages as supercargo; and that the compensation agreed upon is subject to apportionment; the only remaining question, in relation to this part of the subject is, whether the County Court have given the true rule.
    This question is brought up by the 4th exception, and can arise under none other. The rule of apportionment is given in the opinion of the court, and according to that rule it is to be graduated by the time Pawson was actually in service; and the opinion assumes that the duty of supercargo commenced with the voyage, and terminated on the signature of the bill of lading.
    We do not know that the court are supposed to have erred in fixing the commencement of the voyage as the time when the service commenced. Pawson, it is true, was both captain and supercargo, yet in estimating his wages as. supercargo, we cannot take into consideration that he was captain. He must be dealt with as if a different person had been captain, and he nothing but supercargo. And if that had been the case, it would be too obvious for argument, that his service began when the ship sailed from Baltimore. 2 Ur. on Agency, 215.
    But although the time when the service commenced is not questioned, yet the time when it terminated is disputed, and it is said the court have erred in the time mentioned in their direction.
    If the court have erred in this respect, the appellant has no right to complain of it. For in his prayer, he assumes, that the duty of supercargo terminated when he had completed the investment of the appellant’s funds. The court consider it as terminating upon the signature of the hill of lading for the homeward voyage; and this must necessarily happen after the investment of the funds in the homeward cargo. The court therefore, have in their direction, made the portion of time lost by the death of Pawson, to be greater than the defendant asked for; and have given, in this respect, to the appellant more than lie demanded. He, therefore, cannot allege error in that part of the opinion.
    But if we put aside this answer, which is believed to be quite sufficient on this subject, yet it can easily be proved by authority, that the court have not erred in fixing the time when the service ended. For, in the first place, the duties of master and of supercargo are known to the law, and need not be proved as matters of fact. And in the second place, the goods would have been in the charge of Pawson as captain, and not as supercargo, from the signature of the bill of lading until the end of the voyage. These propositions are both proved by the following authorities: Kendrick vs. Delafield, 2 Cain. Rep. 67, 72. United Insurance Company vs. Scott, 1 John. Rep. 111, 115. 1 Liv. on Agen. 69, 72. 2 Liv. on Agen. 215. In the case of Kendrick vs. Delafield, the same person was captain and supercargo, and in that case, Kent, Justice, says: “ The captain did not, and could not lay aside his character and responsibility as master, until the vessel had performed her voyage, and arrived at the port of destination.” His expressions marking out their relative duties, are equally strong in the United Insurance Company vs. Scott.
    
    The bills of lading are the contracts of the master, as master, that he will carry the goods to the port of destination. Abb, on Ship. 217, 218. See the bills of lading in the record. After the bills of lading were signed, what more had the supercargo to do ? It would then have become the duty of Pawson, in the character of captain, to take the goods to the port of Baltimore; and during the voyage, and until the arrival in port, the cargo, if he had lived, would have been in his charge as captain, and tire supercargo would have had no right to interfere. Upon the arrival of the vessel in Baltimore, the cargo was to he delivered to Donnell himself, or his order. The supercargo, therefore, had nothing to do, and could not lawfully interfere, after the hill of lading was signed. His services ended at that time, and the court below were right in fixing that as the period, at which his duties terminated.
    It has heon said that the authority of supercargo did not end at the time above mentioned, and that it ivas his duty to be on board the vesset on her homeward voyage, because he had the power during that voyage to alter the destination of the cargo. The answer to this argument is, that it would have been contrary to the orders of Domiell to have changed the destination of the ship, and take the copper to any other port. And the law hardly makes it the duty of a supercargo to be on board, in order that he may have an opportunity of committing a breach of duty. The law will not require his presence, unless he may have some duty to perform. If the court were right in fixing the time of the commencement, and of the termination of the duly of supercargo, we do not know that any other error is supposed to exist in the direction. The principle of apportionment adopted by the court, is the same with that prayed for by the appellant. His compensation, as supercargo, is not measured solely by the time he was engaged in buying or selling caigo; but the time occupied in getting to the scene of action is considered as a part of his time of service. It is difficult to imagine any other just rule of apportionment .For his time and labour were his capital, and while he was on his voyage, as supercargo, to London or to Chili, he was incapable of engaging in any other profitable occupation. This service so engrossed his whole time, as to exclude, necessarily, any other business. If be was in service, he was, of course, earning wages during all that time.
    But it seems to he supposed that there ought to have been a deduction from the $2000, on account of the alteration in the. voyage, and that the court erred in refusing that part of the prayer.
    
      The claim to this deduction is not based upon the notion that Pawson assented to the change, or assented to any diminution of wages. His agreement in this prayer is put out of the .question. And the--appellant, in effect, contends that if the voyage originally contemplated, was abandoned by the orders of Donnell, and without the consent of Pawson, that the latter is entitled to wages only in proportion to the service actually rendered, and not according to the contract made between tbe parties.
    If this principle be sound, it leads to this conclusion, that if the ship had been ordered back from England, arid the whole speculation given up,. Pawson could have recovered in proportion only to the duties actually performed. In other words, if Pawson was .prevented by Donnell from performing, the service* Domett is not bound to make, him any compensation. The whole current of authorities stand in opposition' to this doctrine. Pawson sails on the voyage originally planned, and for which he Was to receive for his services as supercargo, $2000. When he is in England, and after he had put himself, out of the way of other employment, by proceeding to execute this contract, Donnell, without consulting him, and in the exercise of what was no doubt his lawful power, orders the voyage to be altered. It is altered in obedience to his order. Pawson is ready to perform his engagement, but he is prevented by Donnell. Is he not entitled to demand the pay when he is ready to perform the service.? Donnelly does not appear at that time to have entertained the,notion that the wages were to be cut down, because, the voyage was altered. He does not suggest it in his letter to Pawson, and -their is nothing either in his letter or in that of Pawson in reply, from which it can be inferred that either party looked to any change in the wages agreed on before. On the contrary we think that the jury might and ought to have inferred, from the silence of both parties on the subject, that both of them understood and agreed that the compensation as 'it stood in the original contract was to remain unchanged. And if the jury might .possibly have so inferred from the testimony, then the absolute .direction asked for ought not to have been given.
    
      But putting aside any supposed understanding between the parties, we come to the question of law proposed to he raised on this exception. And we maintain, that inasmuch as Pawson was ready and willing to have performed the service originally agreed on, and was prevented from doing so by the orders of Donnell, he is entitled to recover from Donnell the whole compensation originally contracted to he given. This principle, however, is involved in the questions relating to the Canton privilege.
    
    
      Third Point.—Are the administrators of Pawson entitled to recover compensation for the privilege of twenty-five tons, from Canton to Baltimore, stipulated in DonnelVs letter of November 18, 1819, and of which Pawson was deprived By the act of Donnell, in changing the voyage originally contemplated ?
    The only remaining subject of controversy between the parties is the privilege of twenty-five tons from Canton to Baltimore, stipulated in DonnelVs letter of November 18, 1819. The questions on this part of the dispute arise out of the 2d, 6th and 9th exceptions. The points presented by the other exceptions have been already disposed of.
    In the second exception, as in some of the others hereinbefore examined, it will he found that the appellant called on the court to decide a question which properly belonged to the jury ; and that the court were on that account right in refusing the prayer, if it had even been open to no other objection.
    In this exception, the appellant in his prayer in the first place assumes as a fact, that the voyage liad been “ altered by the direction of the defendant and the consent of Captain Pawson,” and prays the court to instruct the jury that “ the privilege stipulated for Captain Pawson to bring home twenty-five tons from Canton, clear of freight, was voluntarily relinquished by him, and exchanged for the privilege of bringing home his funds in copper from Coquimbo.”
    Now there is no paper by which Pawson is supposed to have relinquished his privilege to Canton, and exchanged it for a privilege to bring copper from Coquimbo. There is no paper the words of which are supposed to imply such relinquishment or exchange. 'The relinquishment and exchange is inferred in the argument, from the correspondence arid the' acts of the parties. If he has relinquished and exchanged in the manner supposed, he has not done it in writing. It is not contended that it is done in any one of the letters or papers contained in the record. And if it is supposed to be a parol relinquishment and exchange, to be inferred from the whole correspondence and the acts of the parti’es-taken together, then surely the question, whether there was such a parol relinquishment and exóhange, must be for the jury and, not for the court. Laidlaw vs. Organ, 2 Wheat. 183. Etting vs. Bank of the United Slates, 11 Wheat. 75. Both of these cases are believed to be fully- in point, and to sliow that the court were right in refusing the prayer made by the appellant.
    The two .cases, relied,upon by the appellant to prove that this is a questiori-for the court, will be found to be distinguishable from the case before the court, and the cases in Wheaton¡, In Macheath vs. Haldimand, 1 T. R. 172, 180, the question was, whether the party who purchased for the government had made himself personally answerable. And this depended on the words of his' written contracts; that is, on his letters, orders, &c., It-was a question, upon the interpretation of the written words, and therefore belonged to the court.
    In Ferris vs. Walsh, 5 Harr. & Johns. 308, it was also a question upon the construction of the written instruments taken together: did the written words amount to a guaranty? Was such the true meaning and construction of the words in the instruments of wilting ? These questions without doubt be. longed to the court, whose office it is to expound written instruments. j ■ -,
    But the question here, is a different one.. It is not. a question, what is the true meaning and construction of any or all of the letters. It is an- attempt to infer from the correspondence a waiver and exchange, which the words of the letters do not imply. It is an attempt to infer another fact from the facts proved. The case of Etting vs. Bank of the United States, 11 Wheat. 75, is precisely like it.
    
      If indeed Pawson had voluntarily relinquished the Canton privilege, or exchanged if for one from Coquimbo, nobody would contend that he was entitled to damages for the loss of a privilege which he had thus voluntarily released, or had exchanged for another. But wo insist that he neither relinquished nor exchanged it. The appellant replies to us, that the voyage was altered by the consent of Pawson, and that by such consent did he relinquish the privilege from Canton, and exchange it for one from Coquimbo. To this we answer, 1st, that whether Pawson did or did not consent to the alteration is surely a matter of fact, and not a matter of law, and the court cannot assume the fact. lie might have written and acted in the manner he did write and act, because he supposed he was bound to obey the owner and had no right to refuse. And he was undoubtedly bound to obey; and his obedience to the orders of Donnell cannot therefore be evidence of a waiver of his rights. At all events, his obedience is not conclusive evidence of such waiver, as is assumed by the appellant in this prayer. In the second place, if the consent of Pawson was admitted, it does not follow as a conclusion of law, that by such consent he relinquished the privilege from Canton, and exchanged it for a privilege from Coquimbo. The jury might indeed infer such relinquishment and exchange, from the fact of consent, but it would be an inference of fact and not of law. It would be a matter for the jury to decide, and not for the court. For the consent to the alteration might be given, reserving the right to demand compensation on account of the Canton privilege. The consent, and the right to compensation for the privilege might exist together. They are not inconsistent with one another. The relinquishment and exchange of the Canton privilege could not therefore be the legal consequence of Paw-son’s consent to alter the voyage. And upon either of the grounds above mentioned the court were right in refusing the prayer contained in this exception.
    After refusing the prayer made by the appellant, the court proceeded to instruct the jury in the manner set forth in the same exception. The propriety of that instruction remains to be examined.
    In this direction the- court leave it to the jury to say, whether Pawson did' or did not waive the benefit of the privilege from Canton. We have already endeavoured to show that the question, whether he did dr did not waive it was a question of fact for the. jury, and not a question of law for the court. It is unnecessary to repeat the arguments already offered on this head. We think vye may safely conclude that the appellant was wrong in treating it as a matter of law, and .the court right in dealing with it as a matter of fact.
    But the court have gone further in their direction, and they say that if Pawson did waive the privilege from Canton, yet unless he did so. with a knowledge of his legal rights, he is still - entitled to recover an equivalent for the privilege lost. It is said by the appellant that no one can avail himself of the pie a of'ignorance of the law, and that, if Pawson waived his privilege he is bound by it, and cannot allege that he did it under a mistake as to the law. The case of Lammot vs. Bowly, 6 Harr. & Johns. 500, is a complete answer .to this objection, and so fully sustains the opinion, of the court that it supersedes all argument, and saves us the necessity of producing and examining the mass; of authorities on this subject. In that case, the court lay down the rule in the following words: “ It is not intended to say that the plea of ignorantia juris would in all instances be available in civil cases, (in criminal it never can be,) because some legal, propositions'are so-plain and familiar even to ordinary minds, that it would be doing violence to probability to impute ignorance in such cases; but it is only meant to say, that where the legal principle is confessedly doubtful, and one about which ignorance may well be. supposed to exist, a person acting under a misapprehension of the law, in such a case, shall not forfeit any of his legal rights by reason of such mistake.”
    The 9th exception is immediately connected with this subject, and the proposition contained in it appears to h.ave been brought before the court, in consequence of the opinion set forth in the 3d exception,
    
      In the prayer in the 9th exception, the court are called upon to assume that Pawson “ consented to the change of the original voyage,” and “ waived his privilege from CantonNow it was not admitted, as we have already shewn, that Pawson consented to the change of the original voyage; and it was not admitted that he waived his privilege from Canton. Both of these matters were matters of fact, and both of them were in controversy between the parties. And the court were right in refusing the prayer upon this ground, even if there had been no other objection to it»
    But if these questions of fact had, by the prayer, been left to the jury, still there would have been no error in this opinion of the court, and it was properly left to the jury to say whether, if Pawson had consented to the change of the voyage, and had waived his privilege to Canton, he had done so in ignorance of his legal rights. For the privilege from Canton is proved to have been a much more valuable one, than the privilege from Coquimbo. Pawson Was a sea captain, toiling in his profession, Donnell is proved by the record to have been a merchant of great wealth. And it can hardly he imagined, that Pawson would have exchanged the privilege from Canton for one of inferior value, unless he Was induced to do it by the ignorance of his legal rights. No other motive is assigned by the appellant, and it will scarcely he said that a man, trusted by Donnell with the execution of this great scheme of commercial adventure, could be ignorant of the relative value of the privilege from Canton, compared with a like one from Coquimbo. It is not necessary however for us to show, that there was sufficient evidence to prove his ignorance of the law. It is enough for us, that there was evidence tending to prove it. “Where there is any legal admissible evidence tending to prove the issue, the effect of that evidence is solely for the consideration of the jury.” 1 Stark. Ev. 399, 400. In the case of Etting vs. Bank of the United States, 11 Wheat. 50, the chief justice in delivering the opinion of the court says, “ If the testimony be examined, it will, we think, appear that the counsel for the plaintiff has not asked the court to give its opinion on any inferences of fact, which it was not at least possible for the jury to draw froth 
      
      the evidence. The knowledge of the Bank is not questioned. The ignorance óf Etting might be inferred from the absence of all testimony, proving his knowledge that any fraud had been practised by Mr. MiCvlloh.” It was surely possible for the jury, from the facts above referred to, and the situation of the parties, to infer that if Pawson had waived his privilege from Canton, that he had done it in ignorance of his legal rights. Indeed we might safely call on the jury to infer the ignorance of Pawson7 from the absence of,all .evidence proving his knowledge. For the counsel for the appellant will not say that the legal rights 'of Pawson were plain and familiar; if they were plain and familiar, there would be no difference of opinion on the subject, between the County Court anil the learned counsel for Donnell. Yet this difference of opinion is manifested by the 6th exception. And on a point of law, where either the County Court or the learned counsel -for the appellant are in error, and that too after the most mature consideration, it would be doing violence to probability, to impute knowledge to Pawson. In such a case, his ignorance ought to be inferred, or at all events might possibly be inferred by the jury, from the absence of all proof or probability of knowledge.
    The appellant has relied on Keys vs. Parnham, 6 Harr. & Johns. 418, and on the case Davis vs. Davis, 7 Harr. & Johns. 36, to shew that the court may direct the jury on the sufficiency or insufficiency of evidence to establish a fact. The present case does not require us to enter on a full discussion of this principle. There is. no question about the sufficiency of evidence presented by any of the prayers in the record, and this court therefore are not called on to decide it. And besides we are very willing to leave it to the court to say, whether the evidence of Pawson’s ignorance of the law is too slight and trifling to be left to the jury.
    The 6th exception is the only one which remains to be examined. Was the privilege from Canton subject to the two contingencies mentioned in the prayer, and liable to be lost upon the happening of either of them? It appears in the evidence, that by the usage of trade, if the captain died, the privilege in question, survived to his representatives, and did not go to the captain who succeeded to the command of the vessel. There is no evidence of any contrary usage. The court could not, in opposition to such proved and undisputed usage of trade, say that “ the death of Pawson at Coquimbo, in the course of that voyage, would have put an end to all claim by his representatives on account of this privilegeand could not therefore give the direction prayed for. It has been said in the argument, that it does not appear that the privilege from Canton belonged to Pawson as Captain, and that it might have belonged to him as supercargo. If any doubt could be raised on this subject, we do not perceive that it would materially affect the argument. But the testimony puts it beyond doubt, that the privilege in question was a captain’s privilege, and not a supercargo’s. And the appellant in his prayer treats it as a captain’s privilege, which he supposes was contingent on the death not of supercargo Pawson, but of Captain Pawson. Neither should the other contingency, mentioned in the prayer, have entered into the calculations of the jury. If the ship had pursued the voyage originally contemplated, and had been lost, Pawson might have lost the benefit of his privilege. Yet it does not necessarily follow that he would even in that case have entirely lost all benefit from it, as is assumed in the prayer. But waiving any discussion on that head, we insist that as Pawson was prevented from performing the voyage by the act of Donnell, .the latter lakes upon himself all the contingencies, and cannot claim an abatement on account of the hazards, to which the contemplated adventure was subject. This is the rule in the case of seamen’s wages, which are always contingent on the safe arrival of the vessel. In Poth. Mar. Cont. PI. 203, page 125, 126, it is said, “ that if the ship is voluntarily, and of course, by the master’s act, unloaded in a place nearer than that which is designated in the contract of affreightment, the wages promised to a sailor hired by the voyage shall suffer no diminution.” In Hoyt vs. Wildfire, 3 Johns. Rep. 518, it is said by chief justice Kent, “that the rule on this subject in the English law, does not, I apprehend, differ from the marine law of France, although I have pot met with any adjudged case in point, and a recent nisiprius decision, Eaken vs. Thom, 5 Esp. JV. P. C. 6, looks strongly the other way.” And in Sigard vs. Roberts, 3 Esp. N. P. C. 71, at the conclusion of the case, Lord Eldon says, “this clause (one in the shipping articles) therefore cannot prevent the sailors suing for their wages when the master discharges them", the voyage then is ended as to the man who is discharged from the ship.” The same principle is ruled by Lord Ellenborough in Gondell vs. Ponteguy, 4 Campb. 375.
    “If the plaintiff was discharged (says Lord Ellenborough) without a sufficient cause, I think this action is maintainable. Having served a part of the quarter, and being willing to serve the residue,' in contemplation of law he may be considered to have served the whole.” (
    In Cook vs. Jennings, 7 T. R. 381, Lawrence, J. in delivering his opinion upon an action for freight, says, “but he is not entitled to the whole freight, unless he has performed the whole voyage, except in cases where the owner of the goods prevents hint.” If then the owner of the goods prevented the ship owner from performing the voyage, the owner of the goods must pay the whole freight. There is. no deduction for hazards or contingencies, which might prevent the ship from receiving freight. The case put by Justice Lawrence is in principle the very case under discussion.
    These cases seem to establish firmly the proposition, that when the party is to be paid by the voyage, he is entitled to full wages if he is prevented by the owner or master from rendering the service. And he is not bound to abate any part of the stipulated wages, on account of the hazards of the voyage. In this case the privilege from Canton was a part of the compensation, and was by the voyage, and not by the time of service. It is supposed by the appellant that this part of the compensation was liable to be lost, by the destruction of the ship on the voyage. If this be the case, it is strikingly analogous to the case of seamen’s wages hired by the voyage, and to the of freight.
    
      The following cases will be found to maintain the same doctrines.
    
      Abb. on Ship. 424, 425 (note 1.) Mahoon vs. The Glocester, 2 Peters Adm. Dec. 403. Rice vs. The Polly and Kitty, Ib. 423, (and note.) Limland vs. Stephens, 3 Esp. N. Pri. Cas. 269. Valin. Com.B. 3. Tit. 4. Art. 3. 2 Br. Adm. 533. Jacobson’s Sea Laws, 148. Napoleon Com. Code, Art. 250. Sullivan vs. Morgan, 11 John. Rep. 66.
    In the case last cited, the seamen were hired by the month, and no freight had been earned. Yet they received their full wages for the time they had served, according to the contract, without any deduction on account of the danger, that the ship might have been lost on the voyage before freight was earned, and consequently before wages were due. This case is the same in principle with the one at bar. In both cases if the ship had been lost in the course of the voyage, the compensation contracted to be given would have been lost also. And as it was held not to be subject to abatement on that account, in one instance, it is difficult to imagine why it should be held differently in the other.
    The case of Hulle vs. Heightman, 2 East. 145, turned upon the form of action. In the case before the court the agreement in the beginning of the record removes any difficulty on that score, and permits us to recover in this action any thing that could be recovered in any other form. Besides, in the case of Hulle vs. Heightman, the time of payment stipulated in the contract had not arrived, when the suit was instituted. In that case, the seamen by an express stipulation were bound “ to assist in bringing the ship back again, and making her fast in a proper place, before they could make any demand upon the captain for the wages due.” And as the homeward voyage was not abandoned, but was in the course of execution, the time had not arrived when the wages would become due, according to the terms of the contract. They could not therefore be sued for as if due. But in this case the original voyage had been abandoned by the defendant, long before this action was brought, and the original contract at an end. The wages were as fully due, at the time the suit was commenced, as they would be at any future time, and in this respect also the case before the court stands, clear ©f the difficulty, which met the plaintiff in the case of Hulle vs. Heightman. Indeed that case furnishes another proof of the> soundness of -the principle for which the appellees contend; for it is not suggested that the wages are to abate on account of the hazard, that the vessel might be lost on the homeward voyage, before she was made fast in her proper place. On the contrary, -it appears to have been conceded on all hands, that if the seamen were entitled to recover any thing in that action, they were to recover according to the sum stipulated in the contract. And that no abatement was to be made on account v of any contingencies to which they might have, been exposed, if they had been allowed to go on the voyage originally contracted for.
    u In fine, the. cases- taken together seem .irresistibly to lead to the conclusion; that if the person to whom the service is to be rendered prevents the performance of it, he must pay as if it were done. In this case Donnell had a right to change the voyage; he did change it; and Pawson was bound to obey, and he did obey. Donnell, therefore, prevented. Pawson from performing the service, and must pay as if it had been performed. The party who is not in fault is not bound to give up any part of the compensation, contracted to be given. It belongs to him by the agreement, and the law will not enable the other party to deprive him of it without his consent.
    Wirt, for Donnell.
    
    The first subject to which the attention of the court is invited, is the claim for the alleged loss of the privilege from Canton, which is the subject of the 2d, 6th and 9th bills of exceptions, on the part of the appellant. This is one of those things which it was not supposed possible for human ingenuity to bewilder . with a moment’s doubt, until the defendants’ second prayer was refused, and the instruction was given which produced the appellant’s 6th and 9th prayers. Graham, the administrator of Pawson, is obviously a man of business, as appears by the record, and it had not entered into his imagination to make this claim. His letter to Donnell will be found in the record, and his account stated. By his letter it will be seen that he manifestly considered the privilege from Coquimbo as substituted for that originally stipulated from Canton or Batavia; and he claimed nothing more for Pawson than the right to bring the same weight, 25,000 lbs. from Coquimbo, which ho was originally authorised to have brought from Canton or Batavia. “ You will observe,” says he, in that letter, “ that Captain Paw-son’s privilege in the ship was not taken by several thousand pounds weight; of course, you will allow for the deficiency as you have done before.” It is not the value of the Canton privilege in Canton goods, wdfich he proposes to estimate and claim; hut simply the weight which he considered Pawson authorised to bring from Coquimbo, and which, not having been wholly brought, he claims an allowance for the deficiency. Turn to his account on the next page, and you will perceive that there is entered at the foot of the account, in the left hand column, Graham’s estimate of this deficiency, to wit, $255 52, under the description of “ loss of privilege,” and this thrown in among several articles, by way of make-weight, after the account had been formally signed and closed, and consequently not presented as articles onwdiich he meant peremptorily to insist. Besides, if Graham, with his knowledge of commercial usage, had considered the Canton privilege as a subsisting privilege, he would have charged that privilege at its full value, and we should find on the other side a credit for the freight of Pawson’s copper and other goods from Coquimbo. That freight was the inevitable consequence of treating the Canton privilege as a subsisting claim; for Captain Pawson surely could not have two privileges subsisting in the same ship at the same time; an actual privilege from Coquimbo, and an ideal one from Canton, charged at its highest speculative value. The total absence of any credit lor the freight of Pawson’s goods from Coquimbo, and of any charge for this Canton privilege, as a Canton privilege, by Graham, and the total absence of any charge for the freight of Pawson’s goods by the Chesapeake, in Donnell’s account, all go to prove that this vision of a subsisting privilege, in a non-subsisting voyage, had never entered the heads of these practical men. It was left for the ingenuity of our learned friends, on the other side, to start this chimera, and it did not occur even to them to start it, till their imaginations had been heated and ignited by the collisions of the trial. The court will find the proof of this fact in the account; where it will be found that, after Graham had closed and signed his account, under his signature, in the right hand column, there are three entries headed “ claim, as set up in court, viz.” and then assuming the balance as it had-been struck by Graham, $5,552 97, they add to it for drip stones and duties saved, $48 06, and then, for the first time, this Canton privilege makes its appearance under the title of “ Loss of Canton privilege, $3,050!” in lieu of the $255 52, whiGh Graham had entered at the foot of the opposite column, on account of the deficiency of weight, merely from Coquimbo. Nor had our learned friends the grace even to throw into the opposite scale the freight of Pawson’s goods from Coquimbo; but they claim both the privilege of supposititious goods, on a sup--posititious voyage, and the privilege of actual goods on an actual voyage; and thus, according to their statement of the account, Pawson gets the benefit of a double investment of the same capital; that is to say, he gets the freight of an imaginary Canton cargo, in which his capital might have been invested if the ship had gone there; and also the freight of the goods in which that capital was actually invested at Coquimbo: the learned counsel, seeming to suppose, that as they had a fat pigeon to, pluck, it was not necessary to be at all scrupulous as to the extent of the depredation. The court, however, not being disposed to ££go the whole” length, instruct the jury, that if they allow the plaintiff the Canton privilege, they must allow the defendant the freight on Pawson’s adventure from Coquimbo. After such a manifestation of the grasp-all disposition on their own part, it does not seem to he with the best of all possible ' graces that the learned counsel on the other side complains of the spirit which concocted Donnell’s statement of the account. But waiving this interchange of courtesies, let us proceed from this view of the origin of this Canton claim, to the consideration of its nature.
    It is proper to observe, in the first place, that this is not an insulated contract for an insulated voyage. This is not Pawson’s first and only connexion with Donnell. It appears by Graham’s letter, that he had been previously in his employment, for in refusing to admit the freight for the cordage, he reasons upon Donnell’s own construction of the captain’s privilege in a previous voyage which had been performed for him by Pawson in 1816. It is the case, then, of a sea captain, looking to a permanent and profitable connexion, in the line of his business, with an opulent and enterprising merchant. This fact should be borne in mind.
    It is essential to the successful pursuit of commerce, that the merchant should have the uncontrolled privilege of planning and altering his enterprizes at pleasure. In all his operations he is governed by the intelligence which he is continually receiving, of the state of the markets abroad; and as these markets are always fluctuating, it is an every day’s occurrence to see a complex voyage, which had contemplated several ports, varied and remodified in the course of its progress, at the pleasure of the merchant for whose benefit it is made. Those who enter a merchant’s employment, enter it with full knowledge of his sovereign power over the destination of his ship. The captain knows that he is bound to obey the owner’s instructions, without asking for a reason. He knows, that with regard to his owner “ sic volo, sic jubeo., stet pro ratione voluntas,” is reason enough, and that he the captain has nothing to do but to obey. With regard to any little adventure which the captain is permitted to have on board, and to carry, free of freight, it is a mere dependant on the great enterprizes of the merchant. The overruling object of the voyage is the profit of the owner. The captain, avails himself of the owner’s experience, skill and knowledge, in seeking the most profitable ports, to make his own small investments at the same ports. He knows very well that the voyage is not made on his account, but on the sole account of his owner. He is not the charterer of the ship. His 
      instructions are not charter parties and contracts of affreightment7 in which light they seem to be erroneously viewed on the other side. The privilege accorded to,him is a mere dependant privilege following the fortunes of the larger adventure as obsequiously as the cock-boat follows the ship to which she is lashed, and to which she belongs; and the cock-boat might just as rationally complain that the ship had changed her course, as the captain c'omplain that the owner had changed the destination of the voyage; because the captain enters the service with full knowledge that this power of change is perfectly arbitrary on the part of the owner.- With regard to his own small venture, he knows that it will be generally true, that what is most profitable for his owner will be most profitable for himself; that if, for example, the market of Baltimore was already glutted with Cam-ton goods, so that his owner had no longer a hope of a profit on Canton goods at that market, neither could he hope for a profit on the same kind of goods in the same market; and even when it is otherwise, and the captain would prefer for his own inter- ' est, that the original destination had not been changed, he knows that he is to find his indemnity for any petty temporary loss, in the permanency of his connexion with a rich and bold and skilful adventurer, whose prosperity had already shewn how well he could play at the game of commerce; .and that if he should lose to-day by the change of a voyage, he would gain a hundred fold in the long run by the permanency of the connexion. The captain’s object is to be permitted to wield his little capital at the ports which he visits for his owner, and to carry his goods free of freight in the owner’s ship. There is no stipulation on the part of the owner, that his ship shall visit such and such ports. If there were such a stipulation, Pawson, if he had lived, might have maintained an action for damages against Donnell for not having sent the ship to Canton. But this, surely, cannot be pretended. Nay, it is conceded that Donnell had the right to change the destination of the ship at pleasure: and this concession is utterly inconsistent with the idea of a stipulation with Pawson, that the ship should go to Canton; for if there were such a stipulation, Donnell had no right to violate it, no man having a right to violate the rights of another. Now, if the original plan of the voyage by Canton did not amount to a stipulation that the ship should go to that port, and consequently gave Pawson no right to sue for damages, the opinion of the court below is wrong, for this is the very thing which they permit Pawson virtually to do; for they permit him to claim damages for the loss of the Canton privilege on the ground of his title to it by stipulation. They allow' him to prove what such a privilege from Canton would have been worth in that year, and to recover the amount so proved in the form of damages; an opinion which cannot possibly be right, except on the postulate that Donnell had no right to alter the original voyage by reason of this stipulated privilege with the captain. But it is conceded that the owner has the sovereign right to change the voyage at pleasure—and if he has a right to do so, he surely cannot be made to answer for it as wrong.
    On. our side, we admit that the captain is entitled to his privilege by force of the stipulation; that is, he is entitled by the stipulation to bring home twenty-five tons by admeasurement, or 25,000 lbs. by weight, of goods, in DonnelPs ship, free of freight. This is the substance and the whole effect, of the stipulation according to the law and usage of merchants. The error of the opposite opinion arises from considering Donnell as under a stipulation to send the ship to Canton, or to answer the captain in damages if he fails to do so. But such a construction would lay a burthen upon commerce, which would not only embarrass it in the extreme, but destroy it altogether. A merchant eould never change the original plan of his voyage, without meeting an action for damages by the master, at every step; and if the voyage be a trading voyage, consisting of many parts, it is easy to perceive that the owner is altogether at the mercy of his captain, and the direction of the voyage taken out of the owner’s hands and placed in those of his servant; a perversion of all commercial ideas so monstrous, that the opinion which leads to it cannot be right. That the owner has a right to change the course of the voyage at pleasure, is one of the first axioms in commercial operations, and it has been necessarily conceded on the other side. The inevitable consequence of which is, that the privilege of the captain is ambulatory and contingent, as to the port from which it shall he taken. It depends upon the owner’s pleasure, and is known on all hands to depend on his pleasure in directing the movements of the ship. The substance of the stipulation is, that the captain shall carry so much free of freight; but from what port he shall carry it depends on the ultimate pleasure of the owner, and grows necessarily out of his sovereign control over the voyage. Hence, when an owner in the outset, plans a complicated voyage, consisting of many parts, and gives the captain a privilege e. g. of twenty-five tons from the last named foreign port, it is always taken as subject to the condition that the plan of the voyage shall not be changed by the owner, or that if it shall be changed, the captain shall have his equivalent in the same number of tons from whatever port shall, under such change of voyage, become the port of departure for the home port. Such, it is manifest, was the understanding of Donnell, of Pawson and of Graham, and it may be with confidence averred, that such is the understanding of all commercial men. It cannot be otherwise without placing commerce under a load of embarrassments, which would long since have crushed and destroyed it.
    If this view of the subject be sound, as it is confidently believed to be, the consent of Pawson to the change of the voyage, is wholly immaterial. The privilege, as a privilege from Canton, fell, when the owner, in the just exercise of his authority, struck out that port from the plan of the voyage. Being, from its nature, dependant entirely on the condition of the ship’s going to that port, there was an end to it as soon as the owner determined that the ship should not go to that port; and, however the question was put to the court, the court erred in the positive instruction which they gave to the jury, that this claim depended on the question, whether Pawson had, with a full knowledge of his legal rights, waived this privilege, and consented to the change of the voyage. They were wrong in treating as a reality and a substance what had never been more than a mere shadow, and which had ceased to be even a shadow after the change of the voyage on which it depended, and they were wrong in making the extermination of that voyage to depend, in any degree, on Pawson’s consent, because its extermination was an act within the sole and perfect competency of the owner alone, and entirely independent of Pawson’s consent, or refusal.
    But suppose, for the sake of the argument, Pawson’s consent to the change of the voyage to have been necessary to put an end to this privilege from Canton; it is respectfully submitted, that that consent is as expressly given as consent in such a case can be given. Not only is it in proof, and that in writing, that he cheerfully acceded to the proposed change of the voyage, but that he recognized the transfer of his privilege from Canton to Coquimbo, and proposed to send home the proceeds of his little capital from Coquimbo, not on the footing of freight, but on the footing of his privilege.
    
    
      Donnell, in his letter of 26 Dec. 1819 to Pawson, after stating that mature reflection had satisfied him that a Canton cargo could not be realized in Baltimore, proceeds thus—“ I therefore revoke and countermand the orders I gave you to proceed from Chili to Canton, and now substitute, that you will return with the ship and cargo of copper direct from the coast of Chili to Baltimore.” He then proceeds immediately to the subject of the captain’s privilege, in these words—“ As relates to the disposal and investment of your own funds, you must use your own discretion by investing it in copper, or any thing else, and bringing it with you in the ship—the copper may, (as I hope it will,) be bought on terms that will, with my funds and yours, load the ship very deep, but if necessary you must load her very deep. Should you fail in getting copper on the coast of Chili, you will immediately, on finding it so, proceed from thence to Samarang, in the island of Java, and there invest my funds, and your own, in coffee, (no other article of the produce of the island will answer,) and proceed from thence direct to Baltimore. The government of Batavia may object to your loading at Samarang, being an out port, but you must use every means in your power to obtain from the government a permission, as you will be able to put on board coffee at Samarang, two or three dollars per picol less than at Batavia?'1
    
    As explanatory of this letter, it is proper to call the court’s attention to the description of the captain’s privilege, as it stood in the Voyage first planned. It will be found at the close of BonnelVs letter of the 18th of November, 1819, and is in these words: “ To- prevent misunderstanding I deem it necessary to state your compensation to bé two thousand dollars, payable on your return, with a privilege from Canton not to exceed twenty-five tons', but it is understood that you are not to put any copper or heavy article on hoard at Chili, as my views are that you completely load her there with copper, and that only for my account.” In his postscript to this letter of the 18th Nov. 1819, Donnell anticipates the possibility of being disappointed in procuring cbpper at Chili, and in that event -gives a similar direction with that in the letter of the 26th Dec. as to proceeding to Batavia for a cargo of coffee, and thence direct to Baltimore; so that in the original plan of the voyage, Canton was not contemplated as a port to which the ship would certainly proceed: for in the owner’s views of the subject at that time it was made to depend on the contingency of being able to get a cargo -of copper- at Chili. -And we find him shifting the cap-fain’s privilege at pleasure from Canton to Batavia, and from Canton goods to Java coffee, at pleasure, in the full exercise of his clearly understood rights as owner. So in his letter of the 26 th Dec. when he had determined that the ship should not visit Canton, he provides for the captain’s privilege by taking off the interdict as to his putting copper, or other heavy articles on board at Chili; and authorises him to bring home his funds in copper, or any thing else he pleases; or if by failing to get a cargo of copper at Chili, he finds it necessary to go to Java, to bring home his funds in coffee. It, is hence very manifest what BonnelVs understanding of his rights as owner were. What says Pawson to this change of voyage ? In his letter of Feb. 7,1820, from London, he says—“ I have had the pleasure to receive your letter of the 26th Dec. in which you are pleased to alter the original intention of the voyage, yvhich will be 
      cheerfully and strictly attended to, and if on my arrival at Chili, I shall find it necessary to proceed to the island of Java, no exertions shall be wanting to have your wishes fulfilled in getting the cargo of coifee only at Samarang.” Again, to shew Paw-son’s distinct understanding that his original privilege from Canton or Batavia was now transferred to Coquimbo, he says in his letter from that place of Sept. 4, 1820, “'as I may possibly not have another opportunity, direct to the United States shortly, I would thank you when you make insurance on the ship and cargo, also to insure for my account the same sum which you did me the favour to insure from London here. I think it probable it will be shipped in silver bullion and copper.” And again, still more explicitly, in his letter of 4th Nov. 1820, from Coquimbo, he says, “In my former letters I requested you to insure for my account the sum of' $5,000. I now have to request you will insure $1,000 more. If I find the ship too heavy laden with your copper, I shall curtail my privilege in that article, and bring my funds in silver.” If this be not a consent, a free, voluntary, cheerful consent, to take his privilege from Coquimbo in lieu of that from Canton or Batavia according to the original voyage, language has lost its meaning, and discussion is idle and delusive.
    It is insisted, on the other side, that this was not a question for the court, but a question for the jury. Why ? Because it is said it is a question which did not depend on letters alone, but was to be inferred from the whole correspondence, and the acts of the parties taken together, and so is exactly like the cases of Laidlow vs. Organ, 2 Wheaton, 183, and Etting vs. Bank of the United States, 11 Wheaton, 75. But it is not so; for it is a question arising upon the letters alone. We do not rely upon a single act of either the parties to aid our construction of the letters. We say, that upon the face of the letters alone there is a clear and cheerful consent on the part of Pawson to the.change of the voyage, and the substitution of the privilege from Coquimbo, in lieu of that contemplated in the original voyage. How are these letters to be construed ? Not by the technical rigour which is applied to special pleading, or to the old common law conveyances. They are letters written by commercial men, in a course of business, and are to be construed with the freedom and candour which are always applied to such a correspondence, and so construed there cannot be a rational doubt that Pawson freely and cheerfully adopted the substituted voyage and privilege. The court’s attention is particularly invited to the declaration in his last letter, that if he should find the ship too heavy laden with Donnell’s copper, he would curtail his privilege in that article, and bring home his funds in silver. His privilege in what article ? in copper. From where ? from Coquimbo. Did he mean that he would curtail his privilege from Canton in copper? Did he even propose to bring home copper from Canton? Once inore, did Pmvson expect to pay freight for the copper which he was about to bring home from Coquimbo? For the court have said, and justly said, that if he meant to rely on his privilege from Canton, he was-bound to pay freight on his goods from Coquimbo? Did he expect that he was to pay such freight when he himself expressly declares that he was going to bring it home in part of his privilege, and the rest of his funds, if necessary, in silver.
    It is unnecessary to pursue so palpable.a proposition any further. It must be manifest to the court, that Pawson knew that Donnell had merely exercised his proper rights in changing the voyage; that Pawson acceded to this change willingly and cheerfully, and perfectly understood that in consequence of that change, and as a necessary part of it, his privilege from Canton to Batavia, according to the original voyage, was now commuted for the same privilege of twenty-five tons from Coquimbo. And as all this appears upon the letters alone, it was a question solely for the court, under the authority of Macheath vs. Haldimand, 1 T. R. 172, 180, and Ferries vs. Walsh, 5 Harr. & Johns. 308.
    But the court below instructed the jury4 that the right to set up this claim of damages for the loss of the Canton privilege, not only depended on the question, whether Pawson had agreed to waive that privilege, and accept in lieu of it the privilege from Coquimbo, but on the further question, whether he made such waiver and acceptance with a knowledge of his legal rights.
    
    In this last qualification of the instruction it is conceived that there is a double error. 1. In supposing that Pawson had a right to object to the change of the voyage, or to insist on this privilege, as a subsisting privilege from Canton, after the voyage had been changed by the authority of the owner. 2. In putting it to the jury to say, whether such waiver and acceptance were made with a 'knowledge of his legal rights, when there was not an atom of testimony in the cause, to draw that knowledge into question. Every man is presumed to be conusant of his legal rights till the contrary appears. The evidence every where exhibits Pawson as a man of superior intelligence. All his letters and all his actions, arc those of a scholar, and a man of judgment and endowments far above the great mass of those who are engaged in similar pursuits, nor is there one scintilla of proof in the whole record tending in the slightest degree to impeach his capacity. And yet it is in this case that the court, sua sponte, raise, for the consideration of the jury, the question, whether Pawson acted with a knowledge of his legal rights. The Court of Appeals, in the case of Davis vs. Davis, 7 Harr. & Johns. 36, took the case out of the hands of the jury on the ground, that, although there was some evidence in the cause, it was not such evidence as ought to satisfy a reasonable man of the truth of the proposition. The court of Baltimore county, reversing this rule, refuse to decide a proposition which properly belongs to them as a court, (the construction of the letters) and hand over the whole subject to the jury, on the ground that the proposition submitted to them depended on another proposition which belonged peculiarly to the jury, to wit, whether Pawson acted with a knowledge of his legal rights, wdien there was no evidence in the case which had a tendency to raise this latter question. Thus it is a question gratuitously raised, without a tittle of evidence to prompt, it, and which, thus raised, is supposed to excuse the court for refusing to decide on the construction of the letters, whereas the truth is, that if the question had really been called for by the evidence, the court ought still to have expressed an opinion on the construction of the letters, and to have made that opinion subject to the finding of the jury on the other question of Pawson’s knowledge of his legal rights.
    But it is alleged that there is evidence tending to show, that if Pawson did waive his Cmton privilege, he did it in ignorance of his legal rights. And what is this evidence ? It is that the Cmton privilege was more valuable than the Coquimbo privilege, and therefore it is not to be presumed that Pawson would have made the exchange if he had known that he had still a right to insist on the privilege from Canton. This argument assumes, 1. That the Canton privilege was still a subsisting legal right after the owner had changed the voyage, which has been disproved. 2. It assumes that Pawson, in making his election, had nothing to consider but the value of the one privilege compared with the other'; whereas it is manifest that this was a trifle, light as air, compared with the far weightier consideration of permanent connexion with such a merchant as Donnell. 3. The argument goes the length of maintaining the proposition, as one universally true in law, that wherever it appears by the evidence that a man has made a bad bargain, no matter what may be the degree of his intelligence and experience, the question fairly arises whether he was conusant of his legal rights, a principle which will put the sponge to the whole class of commercial contracts. But if all these assumptions and propositions were true, (which they manifestly are not) the court would still have erred in refusing this prayer of the appellant, which called upon them merely to say, that on the face of the letters Pawson had freely and voluntarily consented to the change of the voyage, and the substitution of the Coquimbo privilege in lieu of that from Canton. This the court might have done in perfect consistency with the notion that he had done it in ignorance of his legal rights. The court, therefore, looking to the construction of the letters, which belonged exclusively to their jurisdiction, might have told the jury, and were bound so to have told them, that the letters amounted to a free and voluntary waiver of the Canton privilege on the part of Pawson ; and then, (if the case had been a proper one for such an addition,) have gone on to add, that, however free and voluntary this waiver was, if the jury should find from the evidence that it was made in ignorance of his legal rights, it did not bind him. But the conrt refused to give any construction to the letters at all, and threw the whole case upon the jury, on the notion that the construction of. the letters even depended on Pawson’s knowledge of his legal rights; and this in a case in which if they had been called on to instruct the jury that the waiver depended on Pawson’s knowledge of his legal rights, they might correctly, and ought to have refused the instruction on the ground that there was no evidence in the cause to draw his knowledge of his legal rights into question, and therefore no evidence on which such a prayer could be properly founded. And this, it is conceived, would have been a much feebler exercise of judicial authority, than that which was properly sanctioned by this court in the case of Davis vs. Davis.
    
    «Upon the whole it is respectfully submitted, that this Canton privilege ought never to have been suffered to come into controversy before the jury in this cause; that it is a mere baseless vision, and was so considered by Donnell, Pawson and Graham; and that instead of receiving the countenance which it did receive in the instruction now under consideration, it ought to have been expelled from the cause at the first moment of its appearance.
    So much confidence is felt in the views which have been presented of this subject under the appellant’s second exception, which we are now arguing, that it is thought unnecessary t,o add any thing on the appellant’s sixth and ninth exceptions, which relate to the same subject.
    The appellant’s 3d, 4th, 5th, 7th and 8th exceptions, all relate to one and the same subject; the compensation of g2000, which was stipulated by Donnell’s letter of the 18th Nov. 1819, to be paid to Pawson on his return. It is not proposed to go into a rediscussion of all the topics which have been presented to the court in regard to this stipulation. The arguments and authorities bearing on it have been already fully placed before the court on the part of the appellant. Relying on those arguments and authorities, and claiming the full benefit of them, it is intended to confine the further argument to two questions—
    1. Whether the contract was not an entire one, and the whole compensation, therefore, lost by the death of Pawson at Coquimbo before he had completed the contract.
    
      2. Whether if Pawson's representatives are entitled to recover a rateable portion of that compensation, the court did not err in the .termini which they gave to the jury for the ascertainment of the ratio of compensation.
    1. This question arises on the appellant’s fifth prayer, which presents the single point of the entirety of the contract, and its defeat by the death of Pawson at Coquimbo before its completion.
    Natural justice, it may be admitted, would seem to require that every contract for labour should be considered as divisible and apportionable, and where a party has been prevented by-causes over which he has no control, from completing his engagements, he should be paid for so much of them as he has faithfully performed. The law, however, leaves it to the parties to make their own contracts; and wherever they have made an express contract the law never interferes to vary that contract upon any notion of natural justice. There is, perhaps, no class of contracts which more strikingly illustrates the truth of this principle than the contract for rent. A rents of B, a storehouse on a wharf in town, and stipulates expressly to pay him so much rent at the end of the quarter or year. The house is burnt down the next day, and the tenant has no use of the property at all; yet he must pay the rent. . A whole wharf was consumed in Norfolk hy the great fire of February, 1804. The houses which covered that wharf, (Campbell's wharf,), were wholly in the hands of tenants. These tenants, with their families, Were all unhoused in the' severest part of the winter, and many of them lost their goods, as Well as their houses. ' The extent of the calamity excited universal sympathy. They were unable to repair; the misfortune was one beyond their control. They had lost the enjoyment of that for which alone they had stipulated to pay the rent. The landlord was a minor; and his guardian was the late Judge Tucker, who considered himself bound to act according to , law. The tenants insisted on an abatement of the rent. Natural justice seemed to require it. But the law was clear. Their contracts were express; and for that reason alone they were held bound to pay the rent. In the course of the investigation a case was cited from Aleyn’s Reports, where a tenant had been dispossessed, and held out by a hostile invasion of the kingdom. Yet he was held bound to pay the rent by force of his express contract. That was a case in which natural justice seemed to forbid the demand; but all considerations of natural justice were silenced by the express contract of the parties, and the unwillingness of the law to interfere with those contracts.
    It is on this ground that it has become a principle of law in' the construction and enforcement of contracts, that “unless there be some express stipulation to the contrary, whenever an entire sum is to be paid for the entire work, the performance or service is a condition precedent; being one consideration and one debt, it cannot be divided.” These are the words of Starkie in his 3d volume, 1765; and he adds “this holds equally, whether a specific price has been agreed on or not. It is universally incumbent on the plaintiff to prove performance.” In the American edition of Starkie the court will find under note (k,) and note (1,) to the above cited page, a collection of British and American decisions, all going to illustrate and fortify the position, that a contract made entire by the parties, cannot be divided by the court, and several of those, it is believed, at least as strong, if not stronger, than the éase now under consideration.
    Thus in the modern case of Ellis vs. Hamlen, 3 Taunt. 52— “ It was held that a builder who undertook a work of special dimensions and materials, and deviated from the specification, could not recover on a quantum valebant for the work, labour and materials.”
    In The Countess of Plymouth vs. Throgmorton, 1 Salk. 65, the defendant’s testator had appointed the plaintiff to receive his rents, and promised to pay £100 a year for the service, and the testator died after the plaintiff had served him for three quarters of a year, and the court held, that the contract being entire could not be divided. In Cutter vs. Powell, 6 T. R. 326, where the employer engaged in writing to pay a sailor the. sum of thirty guineas, provided he proceeded and continued and did his duty oh board for the voyage, and before the end of the voyage the sailoi’ died, it was held that the contract was entire, and that as the service, which was a condition precedent, had not been performed, nothing could be recovered.
    Is it or is it not to be considered as a principle of law,' that where an entire compensation is stipulated to be paid for an éntire service, the whole service must be performed as a condition precedent to the demand, and that there can be no division or apportionment of the payment for a part performance of the service ? It seems impossible to deny it. Nor will it do to speak of this principle as antiquated and obsolete,: for it is traced through the JBritish books down to Starkie, one of the most recent and authoritative writers, who has engrafted the principle on his text as an existing and solid principle of the English law; and the host of cases'quoted by. the American editor, shows how extensively the principle has been recognized and acted upon in the United States.
    
    It is indeed admitted by the learned counsel on the other side, (C that if from the words of the contract it appears that the parties intended that the entire performance should be a condition precedent to the payment of any part of the compensation, then such condition, like every other condition precedent, must be strictly and entirely performed. For the parties have a right to contract as they please. But in order to produce this result, it must clearly appear from the words of the contract that such was the intention of the parties; and such was the. case of Cutter vs. Powell. The same principle prevails in commercial contracts.
    This admission is taken in the terms in which it is stated, (and it is correctly stated) and we are willing that this case shall be tested by it. It must clearly appear from the. words of the contract, that it was the intention of the parties, that the entire performance should be a condition precedent to the payment of any part of the compensation. But when does the law hold such intention clearly to appear from the words of the contract ? Let Starkie answer the question—“ whenever an entire compensation is to be paid for the entire work, the performance or service is a condition precedent, being one consideration and one debt, it cannot be divided”—“ unless there be some express stipulation to the contrary.” The law then considers this intention of the parties that the entire performance shall be a condition precedent to the payment of any part of the compensation, as always clearly appearing from the words of the contract, where an entire compensation is to. be paid for the entire work, unless there be some express stipulation to the contrary. Such is the legal construction of such a contract; and such will be its fixed and final construction, unless there shall be some evidence of a general and known usage acting upon such contracts to vary its construction. In the case of Cutter vs. Powell, the court, after stating the construction of the instrument upon its face, admitted that it would be modified by proof of a general usage acting upon such contracts, to make them divisible; and they stayed the ultimate judgment to let in such proof if it could be adduced, feeling manifestly all the unwillingness to enforce the legal construction of the instrument which can be possibly felt in the case at bar, if parol proof of such a usage could be adduced. But it appears by the original report of the case that no such usage could be adduced, and the instrument necessarily had its legal effect.
    It will be understood as admitted by us, that, general usage, or, what is the same thing, a general understanding in the community, founded on such usage, will control the construction of these contracts, and render divisible and apportionable a contract which upon its face would be indivisible according to the foregoing rule. An instance of this is put by Lawrence, Justice, in Cutter and Powell; for he said “ that a common servant, although hired in a general way, was to be considered as hired with reference to the general understanding upon the subject, that the servant shall be entitled to his wages for the time he served, - though he do not continue in the service for a year.” Here he puts the course of decision upon the general understanding, founded, manifestly, on the general and known usage, which ■ usage always enters into the contractas a part of the contract. And he confines the remark to common servants, by which he is understood by the annotator to Slarkie, to mean domestic servants : for there is no usage or understanding, it would seem, as to senamts in husbandry, with regard tó whom, therefore, the contract takes its legal .and natural effect of throwing on the servant proof of the performance of the whole service, as a condition precedent to' his right to demand compensation. Hence, in the case of The King vs. Whittlebury, 6 T.R. 467, the same Justitíe, Lawrence, observed “ that nothing could be due to the servant, (who was it seems a servant in husbandry) till the completion of the year, or the end of the service.” The same principle was decided by Lord Ellenborough, as to a servant in husbandly, in the case of Spain vs. Arnott, 2 Starkie’s cases, 265. The learned counsel, on the other side, seems to suppose that these cases decide nothing but as to the time of bringing the action; that is,'that the action, for the part of the wages due, cannot be brought till the end of the year. On the contrary, they are understood by us as being decided on the very principle now under discussion, to wit, that the entire performance of the contract is a condition precedent to the demand of compensation, and the whole wages are forfeited by the failure of any part of the performance. Comyns, in- his Digest, tit. Justices of the Peace, (B 63,) says “if a servant depart from his service he shall lose his whole wages”—for which he cites Bro. tit. Labourer, 40, and the same law is laid down from Dalton’s Justice, in the note already cited from Starkie. Contracts with mariners are subject, it is presumed, to the same law of usage, thus modifying the terms of a contract, which would otherwise be considered as a condition precedent, as is manifest would have been done in the case, of Cutter vs. Powell, if any such usage could have been shewn. And on the same footing of usage and general understanding rests, it is presumed, the construction of contracts for the hire of slaves in this State, if indeed the law has been ever so judicially settled, for which, however, no decision is quoted. In England we have seen it would be otherwise as to servants hired for the purposes of husbandry.
    On this review of the authorities it may be fairly considered as established, that wherever an entire sum is stipulated to be paid for an entire service, the contract is indivisible, and the performance of the entire service becomes a condition precedent to the demand of any portion of the compensation, unless, in the language of Starkie, there be some positive stipulation to the contrary, or unless there be some general understanding or usage in regard to such contracts that they shall be apportioned. Now with regard to a positive stipulation to the contrary, none such can be pretended in this case; and with regard to usage or general understanding, none such can be pretended to have been shewn or to exist in regard to contracts like this with a supercargo. And it will not do to borrow such usage or understanding from other classes of contracts and apply them to this; to say for example that, in given cases, the contracts of mariners of domestic servants in England, and hired slaves in this State, have been apportioned; and then claim the analogy as applying to this contract. If this were allowable the case of Cutter vs. Powell would never have been decided, for there the analogy was close and at hand. The contract in that case was the contract of a mariner, and it would not have been denied that the common contracts of mariners were in some cases apportionable; but this analogy, close as it was, as belonging to the same class of characters and the same description of services, was not permitted to be applied to the specific description of contracts before the court, but the court called for proof of the usage as bearing on that particular form and species of contracts. So, if the analogies now offered would have sufficed, the acknowledged usage to apportion the contracts of domestic servants would have been permitted to be brought to bear on the contracts for servants for the purpose of husbandry. But it, was not permitted, and the impassable line of demarcation between mariners under those two- forms of contract, and servants under those different species of engagement, proves that in that country at least the courts are not disposed to indulge in this loose transfer of usage and understanding from one class of contracts to another. For it is manifest to these courts, and must be obvious to every one who will look steadily at the súbject, that if in answer to the principle of law Which has been conceded with regard to the entirety of a contract, it be enough to say and to show that some contracts entire in form are apportionable by force of usage, the principle is no longer of any valué; nay it has nó longer an existence; it is virtually exploded, if such an answer will suffice because the same answer may be given to every objéction founded on the entirety of a contract. If this principle with regard to the entirety of a contract, which grows entirely out of respect, to the intention of the contracting parties, and their sovereign right to bargain as they please, be immoral or pernicious, and it is thought better that courts should not only expound but make bargains for their fellow-citizens, let the matter be avowed openly and above board, and let the English principle be publicly exploded. But let us not profess to admit and respect the principle in terms, while we explode it in practice, and render it virtually a nullity.
    This, then, be it remembered, is a contract with a supercargo, as to which species of contract there is no proof in the cause of the existence of any usage or understanding explanatory of the contract. It is a contract, then, the construction of .which depends solely upon its own terms, and the only remaining question would seem to be, is it a contract in which an entire compensation is stipulated to be paid for an entire service? This question can only be answered by referring to thé letters of Donnell, which state the whole contract, both the service and the compensation. The letter of the 18th November, 1819, chalks out the whole service in detail. It is a minute specification of the duties which Pawson was to perform; carries him around the whole voyage ;■ and' after this specification of the services, concludes thus—w to prevent misunderstanding I deem it necessary to state your compensation to be $2,000, payable on your return.” Nothing seems to be clearer than that this is one entire compensation stipulated for the entire service. It is not at the rate of $2,000; but the sum of $2,000, in solido, payable on Pawson’s return, and clearly payable for the entire service. II there be any truth in the principle therefore, or any case to which it is to be permitted to apply, this is such a case, unless there be some positive stipulation to the contrary, which is not and cannot be pretended, or some proof of usage and understanding to the contrary applicable to contracts in this form with supercargoes, which can be as little pretended.
    In opposition to this view of the subject, it is intimated rather than directly averred in the opposing argument, that this principle rests on ancient decisions. For the learned counsel, after having quoted Sergeant Williams'’ note (4,) to Pordage vs. Cole, 1 Saund. 320, and 2 Starkie’s Ev. 643-4, and note (»,) proceeds with the following inference from those authorities: “ Whatever, therefore, may have been the ancient decisions upon this subject, it has for manj years been settled in the English courts that in ordinary contracts, with or without seal, the defendant, according to the principles of the common law, is liable in proportion to the benefit derived from the contract, although he may not have received the whole consideration for which he stipulated, provided the plaintiff is not in fault, and does not, possess the power to perfoi’m the whole stipulation. This is the general rule applicable to all contracts. It is, however, admitted, that if, from the words of the contract, it appears that the parties intended that the entire performance should be a condition precedent to the payment of any part of the compensation, then such condition, like every other condition precedent, must be strictly and entirely performed.” So that the learned counsel would seem to give the rule, as he would have it, to be the general rule and the modern rule ; and the principle on which we insist, as an exception from that general rule, resting only on ancient decisions, (one of which, that in the case of the Countess of Plymouth vs. Throgmorton, Salkeld 65, he seems to think was misunderstood by the court of King’s Bench,) and deserv ing very little quarter on the score of morality. There is certainly no want of professional address in this mode of presenting the subject.. But we apprehend, that when the authorities relied on to maintain this view of the ease shall come to he examined, it will be found that these two rules of law, instead of maintaining the relation of a general rule and an exception, are two separate and independent rules relating to different classes of cases, and each, in its respective sphere of action, equal in generality and dignity to the other. Let us make this examination of these authorities as briefly as possible.
    The first of them, as cited on the other side, is Pordage vs. Cole, 1 Saunders’ Reports, 320, (n. 4.) On turning to this note it will be found that the whole business of the note was to shew in the first place the artificial and subtle distinctions on which the question of dependent and independent covenants frequently turned in the old books; and in the next place to offer a few rules by way of test on that obscure and much mooted question of the law. After observing that covenants, &c. are to be construed to be either dependent or independent of each other according to the intention and meaning of the parties, and the good sense of the case, and that technical words should give way to such intention, he proposes the following rules for the discovery of such intention, in order to enable the pleader to distinguish when it is necessary in a declaration to aver performance on his own part. These rules are worthy of attention in this case; first, because of their analogous bearing; and secondly, to enable the court to estimate the value of the passage quoted from this note on the other side. The first rule proposed by Sergeant Williams, is this—1. If a day be appointed for payment of monéy, or part of it, or for doing any other act, and the day is to happen or may happen before the thing which is the consideration, is to be performed, the covenants are independent, and an action may be brought for the money, &c, before performance, for it appears that the party relied upon his remedy, and did not make the performance a condition precedent. Sergeant Williams then offers his second rule in these words: “ But, 2. When a day is appointed for the payment of money, &c. and the day is to happen after the thing which is the consideration of the money, &c. is to be performed, no action can be maintained for the money, &c. before performance.” The court is requested to apply this rule to the case at bar, and they will see that it is decisive of this question. Sergeant Williams proceeds—3. Where a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the covenant on the part of the defendant without averring performance in the declaration.- 4. But where the mutual covenants go to the whole consideration on both sides, they are mutual conditions, and performance must be averred. 5. Where two acts are to be done at the same time, on the same day, neither can maintain an action without shewing performance of, or an offer to perform his part, though it is not certain which of them is obliged to do the first act; and this particularly applies to all cases of sale. This is a skeleton of the1 whole note, and the court will find by reference to it that each of these five rules is separate and distinct from the rest, embracing separate and distinct classes of cases, ,and neither of these rules proposed by the author as connected with or at all influencing the decisions of cases falling under any other rule. The learned counsel, not averting to this structure of the note, and the distinct classes into which the cases are thrown under these several and distinct rules, speaks of them thus: “ The cases upon this point (of conditions precedent) are collected together and the rule laid down in Pordage vs. Cole, 1 Saund. 320, (note 4) as relates to sealed instruments.
    The conclusion from all the cases is stated as followsand then he gives a quotation, which suits the purpose of his argument, and which he exhibits as Sergeant Williams’ result from a view of all the cases touching the subject of conditions precedent, whereas the learned Sergeant himself declares jt to be his conclusion only with regard to that class of those cases which falls under his third rule, and which he is treating as entirely separate from those cases which belong to his other rules. That third rule embraces, as we have seen, those cases in which the covenant goes only to a part of the consideration on both sides, and in which the party who complains of incomplete performance, can redress himself by a cross action for damages on account of that short performance. After citing several cases as illustrative of this rule, the Sergeant proceeds with the words quoted, “ Hence it appears, that the reason of the decision, in these and other similar cases f (that is, cases in which from the form and nature of the contract the covenant goes only to a part of the consideration on both sides, and in which, from the independent, character of the covenants, the party may redress himself for the incomplete performance of the covenant on the other side by a cross action,) “besides the inequality of the damages, seems to be, that where a person has received apart of the consideration for which he entered into the agreement, it would be unjust that, because he has not had the whole, he should therefore be permitted to enjoy that part without either paying or doing any thing for it. Therefore, the law obliges him to perform the agreement on his part, and leaves him to his remedy to recover any damage he .may have sustained in not having received, the whole consideration.” Now, before the learned counsel can have the benefit of this conclusion, he must shew that this is one of those cases to which alone Sergeant Williams applies this conclusion; that is to say, that it is a case in which, from the form and nature of the contract, the covenant goes only to a part of the consideration on both sides. The fallacy of the argument consists in supposing this to be a general conclusion applicable to all sorts of covenants; whereas Sergeant Williams limits it expressly to the specific class of cases embraced by his third head; that is to say, to cases where the covenant goes only to part of the consideration on both sides, and a breach of such covenant may he paid for in damages, which he says makes an independent covenant. And having cited all the cases which belonged to this head, and exhausted his own remarks upon it, among which is the passage quoted by the counsel on the other side, he proceeds to his fourth class in these words: “ 4. But when the mutual covenants go to the whole consideration on both sides, they are mutual conditions, and performance must be averred.” Now, in applying the general conclusion to the case at bar, the counsel begs the question: for he assumes that this case belongs to the third class, and not to the fourth. Whereas we insist that it belongs to the fourth class to which that general conclusion has no relation; and we prove that it belongs to the fourth class, first by the test prescribed by Starkie, that It is an entire consideration stipulated to be paid for an entire service; secondly, by bringing to bear upon it, the test given by Sergeant Williams under the second head in his note, to wit: “ that a day is appointed for the payment of the money, and the day so appointed is to happen after the thing which is the consideration for the money is to be performed;” in which case Sergeant Williams adds, “no action can be maintained for the money before performance.” The day here appointed for the payment of the money was after Pawson’s return—payable on your return—which was necessarily after all the services had been performed.
    We are much deceived, therefore, if this note, instead of operating favourably to the other side, will not, when it is carefully dissected and attended to, be found to operate the other way.
    The passage cited from 2 Starkie, 643-4, when taken in connexion with the context and with the class of cases of which the author was treating, will be found to have no just' relation to this question. Starkie is there treating expressly of the action for goods sold and delivered. He begins this investigation in page 634, and pursues it down to the passage quoted. In page 640, he says, when the goods which have been delivered do not correspond with the contract, the vendee has a right to repudiate the goods so delivered in toto, and if he do so, the vendor cannot recover; but if he choose to keep the inferior goods so delivered, he is considered as adopting them in satisfaction of the contract. He then proceeds, in page 642, to contemplate the case where the contract cannot be rescinded, as where the goods have been used before the inferiority has been discovered; in this case he says the vendor is entitled to recover not the stipulated price; and then comes in the passage.quoted on the other side in this connexion—“ For in strictness the plaintiff who has not performed that which he engaged for, is not entitled tú recover at all; if he contracts to build a dwelling-house, he is not entitled to recover for building a stable. But still if the defendant be benefitted to a certain extent, and does not repudiate the contract in toto, it seems to be a rule of policy and convenience, as well as of equity and justice, that the plaintiff should be allowed to recover to the extent of the benefit derived by the defendant, and no further, &c.” The court perceive, therefore, that the author is here treating of a contract with regard to goods sold, in which the vendee may, if he choose, repudiate the contract, and return the goods; but in which he has chosen to receive and use them. The passage quoted is in application to contracts of that character. But how could Donnell repudiate, the contract in this case and return the partial services which Pawson had rendered. The principle has no practicable application to this case. And that it is not of universal application, the case of Ellis vs. Hamlen, 3 Taunt. 52, proves; where it was decided that a builder who undertook a work of specified dimensions and materials, and deviated from the specification, could not recover on a quantum valebant for the work, labour and materials.
    The cases cited by the opposite counsel from Jlbbot, Peter’s admiralty decisions, &c. relate exclusively to mariners; and are founded on the laws of Oleron, Wisbuy, and the Hanse-towns, and the ordinance of Louis the XIV. This is a class of contracts which stands by itself, and so peculiarly by itself, that we have seen the court of King’s Bench, in Cutter vs. Powell, refusing to extend the principles and usage of these contracts even to the case of a mariner when his contract was in a peculiar form which removed it from the general ground of mariners’ contracts. But the case now before the court is not that of a mariner at all; but of a supercargo, whose contract is not to be tested by the principles established by those ancient laws and ordinances in favour of a particular and favoured class of men; but which is to be tested by the general principles applicable to other contracts, which have been already cited.
    It is true, as the learned counsel has remarked, on the other side, that in the case of Cutter vs. Powell, two of the judges did advert to the circumstance, that the wages were unusually high, as a proof that they were intended to be contingent. But they did not ground their decision on that fact. It is manifest, that they only called it in aid to fortify the construction, which they had given to the contract on its face. And it is equally manifest, that without that circumstance the contract would have received the same construction. The court is, therefore, respectfully requested to compare the terms of that contract with those of the contract in the case at bar; and we are much mistaken if they will not find that the contracts were substantially the same.
    The learned counsel on the other side, supposes that Justice Lawrence mistook the decision in Portage vs. Cole, 1 Salkeld, 65. If he did, Starkie also mistook it in the note before cited, from his third volume, page 1765-6, where he presents the case as deciding the same point, “ that the contract being entire could not be divided.” And it is manifest, that Salkeld himself mistook it, too, or else his report is entirely delusive and deceptive. And with all the unaffected respect, which I feel for the learned counsel on the other side, I cannot help thinking that Justice Laurence, Starkie, and Salkeld, having no particular interest to bias their judgment, will be quite as apt to understand correctly the point of an English decision, as our learned friend on the other side, whose judgment, without any disrespect to him, may be suspected of not being quite so unbiassed.
    The learned counsel seems to think, too, that he has given quite a sufficient answer to the argument drawn from the time of payment of the $2000, to wit, that they were to be payable on Pawson's return, by referring to 1 Powell on Contracts, 267—8, and to Jlbbol on Shipping, 433, 434, (note 1,) and by adding, that “ the words in DonnelVs letter do not create a condition. they are modal only, and relate to the manner in which the contract shall be performed.”
    It is wonderful that this magical word, modal, did not occur to the acute and learned Sergeant Williams, when he was compiling the note before quoted. We find there, that in utter despite of this cabalistic term, he has erected a whole class of dependant covenants, (the 2d class,) on this circumstance alone, of the time, payment being fixed at a day posterior to that at which the services were to be rendered; which he could never have done, if he had been aware of the omnipotence of this word modal.
    
    With regard to Powell, he is looking to a very different case from this. He is by no means affirming it as a proposition of universal truth, that time is never of the essence of a contract, but is always modal. He is asserting merely, what may be safely admitted, that there are cases in which it is merely modal. “We must carefully distinquish, says he, between conditions annexed to contracts or agreements, and circumstances annexed, which seem to import conditions, but which are modal only; neither suspending, disannulling, nor altering, the obligation of them, but only relating to the manner of performance; as that an agreement shall be performed at a certain day, or in a certain place. And he then puts several cases, by way of illustration, which have no reference to the mutuality and dependence of covenants, (which is the very question here,) but which regard the construction of a covenant contemplated on one side only, and in which he says, in effect, that the time and place are not of the essence of the contract, but are modal only, leaving the essence of the contract untouched. This is quite a familiar principle; but it is one of a very different aspect from that which we are now considering, and which formed the subject of Sergeant Williams’ note, which is the mutuality or independence of covenants; and where, as we have seen, the fixing a day of payment, subsequent to the time at which the service is to be performed, creates at once a condition precedent with regard to the performance of the service.
    
      The passage cited from Abbot is the same on which we have already commented, the case of contracts with mariners, resting on a body of old sea-laws peculiar to themselves, and from which, therefore, no analogy can he fairly brought to hear on contracts with any other description of characters which rest on the general law.
    After this review of the law on the subject, it will only remain for the court to say, whether they acknowledge the English principle, that where an entire compensation is stipulated for an entire service, the contract is indivisible, and the performance of the whole service becomes a condition precedent to the demand of the compensation.
    2. But now admitting, argumenli gratia, that this contract is divisible, and the compensation to be apportioned, did the court below assume the proper termini of the service to make the apportionment? We say they did not; for that this is a contract with a supercargo, whose duties begin and end with the voyage, so long as there is a cargo on hoard. What is a supercargo? He is one placed over the cargo as his name imports. He is placed over the cargo, just as the master is placed over the ship. The master represents the owner of the ship; the supercargo represents the owner of the cargo. “ From the general nature of the master’s employment, he is a. stranger to the cargo, except for the purposes of safe custody and conveyance.'1'1 2 Livermore, 214.
    “ But when the character of supercargo is superadded upon that, of master, (as in this case,) the person in whom these characters are united, stands in the relation of agent to two distinct principals at once. To these principals he owes distinct, duties, according to the nature of the business in which they have employed him; for a breach of these duties, he is distinctly responsible to them; and they are separately liable for the injurious consequences of his misconduct in those things which respect his peculiar duties to them.” Ibid.
    
    The master clothed with these double characters may, in bis character of supercargo, do with the cargo what the owner, ¡1' present, might do. lie may (for example,) as supercargo, accept the cargo at a port short of the port of destination, and the owners of the ship will be entitled to freight. He may, as supercargo, accept and sell the goods at a port of necessity, which he could not do as master. 2 Livermore, 215, 216.
    
    Prom the circumstance that the supercargo represents, exclusively, the owner of the cargo, that he has authority over the cargo in all cases of unforeseen emergency, to act for the interest of the owner of the cargo, it is his duty to accompany the cargo, in order to be ready to meet all such emergencies, and take care of the interest of his principals, and consequently, to accompany the cargo to its final port of delivery,
    The court below seemed to be of opinion, that as soon as the cargo was purchased, and put on board at Coquimbo, and the bills of lading were signed, the duties of the supercargo were at an end, because the transportation and delivery of the cargo at the home port became then the duty of the master of the ship. The master, however, as we have seen, is a stranger to the cargo, except for the purpose of safe custody and conveyance. Now, suppose the ship to have been driven into a port of necessity, with a damaged cargo, which made it the interest of the owner to have an immediate sale—the master could not sell it, but the supercargo might. . Suppose a case of capture and carrying into port, where the interest of the owner of the cargo might call for negociation, ransom, or sale. The powers of the supercargo are ample for all these purposes, but not so those'of the captain. These contingencies, to be sure, might not happen. But they might; and as they might, it was the duty of the supei’cargo to have been on board, to meet them and take care of the interest of his principals. It is fairly to be inferred, that it was the intention of the owner of the goods, that the supercargo should be on board, to meet all possible emergencies ; and hence the stipulation, that his compensation as supercargo should be payable on his return.
    
    The court below, therefore, it is conceived, erred in fixing the last terminus of the supercargo’s duty at the signature of the bills of lading at Coquimbo. It ought to have been fixed at the return of the cargo to Baltimore; the supercargo being as indissolubly wedded to the cargo as the master is to the ship, and having no more right to leave the cargo than the master of the ship.
    It is said, however, by our adversary, that if the court have erred in this respect, we have no right to complain of it, because in our prayer we fixed the termination of Pawson’s services at the investment of Donnell’s funds in the return cargo; whereas the court, giving us more than we asked, have fixed it at the signature of the bills of lading.
    There are two answers to this:
    1. That the prayer is misunderstood. It does not make the investment of Donnell’s funds the termination of Pawson’s service. It refers to the investment with reference to the time of his death. He died before he had even completed the investment of the funds. The word even, it is true, is not there. But it is submitted to the court, that this reciting part of the prayer fairly admits that construction. It is not, however, in the recitals of fact, in a prayer, that you look for the prayer itself. To find the point of the prayer, you look only to that which is the prayer: and in this fourth prayer, the prayer is, that the court will instruct the jury, that the compensation was subject to abatement on two grounds. First, for the abridgment of the voyage, by striking out the Canlon trip, which formed a part of it, when the compensation was fixed. Second, for that portion of the contemplated services of Captain Pawson, which were lost to the defendant by his death at Coquimbo: not specifying what those services wrere, but leaving it open to the defendant to insist, as lie is now doing, that those services reached down to the return of the cargo to Baltimore. At best, it is mere matter of inference on the other side, that the defendant’s counsel considered the services of Captain Pawson, as supercargo, to end with his investment of Donnell’s funds.
    
      2. Suppose the plaintiff's construction of this prayer of the defendant’s right: What then ? If the court had stopped with the simple rejection of a prayer, wrong in itself, there would have been no ground of complaint. But the court do not stop with a simple rejection of the prayer. They go on to superadd an instruction of their own,, different from the prayer; and the exception is not only to the rejection of the prayer, but also to the opinion and direction of the court. And surely, in the appellate court, it is perfectly competent to the appellant, on such an exception, to test the accuracy of that opinion and direction, by the rules of law. An error in his own prayer cannot deprive him of this right. For in this part of the subject, the question is not, whether the prayer was right, but whether the opinion and direction were right. However erroneously a party may pray when the court, after rejecting the prayer, proceed to give an original opinion and direction of their own, they undertake to pronounce the law of the case, for that is their function. And on an exception to such opinion and direction, the question is, “ have the court pronounced the law of the case ?” And not, “ have they given the appellant something more or better than he asked for ?” Have they given him all that he is entitled to ? Not, have they given him more than in a mistake of his rights he had asked.
    We hold the question, therefore, to be entirely open to us; and the court’s opinion and direction were wrong, for tire reasons which have been-assigned. •
    We have concluded the argument on DonnelVs appeal. But as the plaintiffs counsel in the cross appeal, are. about to reply on his points, we beg leave to throw together here, for consideration, the arguments which strike us as supporting the court’s opinion under the plaintiff’s first, second and third bills of exceptions, and as a full answer to those urged by the opening counsel on the other side.
    The attempt of the opposite argument is to throw on Donnell the loss of' the gold, which was confiscated at Guaseo. The question arises on the plaintiffs’ three exceptions, which fully exhibit all the grounds on which the plaintiffs claimed the appropriation of this gold, and the loss of it, to Donnell, and on which Donnell, by his counsel, resisted it.
    The question seems to be a very simple and easy one, when impartially and candidly considered, and the dates of the several transactions carefully noted.
    
      
      Pawson set out upon this voyage in the double character of master of the ship, and supercargo, for Donnell. The instructions addressed to him in the character of supercargo, are found in DonnelVs letters, which he bore and accepted as the guide of his actions. In DonnelVs letter of the 18th November, 1819, he says to Pawson, in this character of supercargo, “with the ship and the coin on hoard, you will proceed to the port of Coquimbo, in Chili, for the purpose, of loading entirely with copper, and with it proceed to Canton.” Again, “ if you have the means of completing the purchase, you must put on board at least 12,200 quintals.” Again, speaking of the probability of Dawson's receiving additional funds from Mr. JVPClure, be says, “ Should you see him, and he has any funds of mine, or that he has departed from thence, and you find he has placed any of my property in the hands of any person there, in either case, I authorise and empower you to receive and carry it with you, either in copper, or Spanish dollars of the old coin.” Tims anxiously repeating the instruction, that all his funds should be invested in copper, and guarding against the possibility of any other investment, more especially a metallic investment, except in Spanish dollars, and those, too, of the old coin. In the close of the same letter he says, “ To prevent misunderstanding, I deem it necessary to state your compensation to be $2000, payable on your return, with a privilege from Canton, not to exceed twenty-five tons; but it is understood that you are not to put any copper or heavy article on board at Chili, as my views are that you completely load her with copper, and that also f or my account.” The same solicitude of the owner to invest the whole of his funds in copper, is kept up in his letter of the 26th December, 1819, in which he changes the voyage by striking out the trip to Canton. That Pawson perfectly understood and acceded to DonnelVs views on this subject, as to the investment of all DonnelVs funds in copper, is clearly established by bis letters of the 15th August, 1820, and the 4th November, 1820, from Coquimbo. In these letters he states his progress in the investment of DonnelVs funds in copper. In the last letter he says, “there is now purchased for your account, 9,500 quintals, nearly 7000 of which is on board, and the remainder in Guaseo, whither I shall proceed, and take it in, as soon as I get my crew from Valparaiso,” &c. ■ And in a subsequent part of the same letter, he says—“ I shall, however, be guided by my judgment as the ship' comes down in the water, and if possible, bring the whole of your funds in copper.” And again in the same letter—11 If I find the ship too heavy laden with your copper, I shall curtail my privilege in that article, and bring my funds im silver.'” It will be observed, that he says in the last letter, he had already engaged for Donnell 9,500 quintals of copper, -7000 being already on. board, and the rest at Guaseo. But there were at Guaseo, as the result has shewn, 3,015 quintals, making an aggregate 10,015 quintals. We have seen Pawson’s determination, already expressed in his letter, to curtail his own privilege, in order to accomplish the primary object of placing all Donnell’s funds in copper. And as demonstration of the same purpose, in the discharge of his ^duty to his employer, he declares to his agents, Edwards 8f Stewart, that he would appropriate to himself only 150 quintals of the copper at Guaseo, if the ship would not take more than 10,000 quintals, and to carry home the rest of his funds in Chinchilla skins and silver.' See the letter of Edwards Stewart of January 19, 1821. These were his declarations, virtually his instructions, made to his agents, Edwards 8f Stewart, before his death. In pursuance of these instructions, they ship for Pawson his 150 quintals, (short only by 23 lbs.) leaving applicable to Donnell’s funds the whole residue of the copper brought home, which more than obsorbs all his funds.
    
    Thus, before Pawson’s death, and while he was yet the agent of Donnell, all Donnell’s funds had been invested in copper, in strict compliance with Donnell’s instructions, and Pawson’s engagements and avowed purpose. Pawson’s death, then, left none of Donnell’s funds at the disposal of Edwards &f Stewart. It left at their disposal only Pawson’s funds and Goddard’s. These had not been appropriated, except in the 150 quintals of copper for Pawson. And Edwards Stewart fearing to expend them in the manner which they declare to have been indicated by Pawson, (to wit, in silver bars,) expend them in silver, gold and CMnchilli skins. These were purchased with Paws on’s funds, because the previous investment, of all Donnell’s, according to his orders, left no other funds but those of Pawson &f Goddard at their disposal; and the attempt to throw the loss of the gold on Donnell, as if it had been his, is one of which the justice has not yet been shewn.
    On what ground is the attempt placed? The counsel say that Edwards fy Stewart bought the gold for Donnell; and what; is their proof? It is this;
    
      “ The gold is invoiced as Donnell’s; it is put on board, and a hill of lading taken for Dormell. The silver, on the contrary, is invoiced as Pawson’s, and pul on board as Pawson’s, as per bill of lading.”
    The distribution thus made by Edivards Stewart is treated as a judicial sentence by these gentlemen, on the rights of the parties.
    There would be a little more colour for this, if those gentlemen had professed to have acted with full information, and to have intended io decide on the rights of the parties. Even then, however, we might have objected to their authority to sel tie the rights of Donnell by their arbitrament, no such authority having ever been communicated to lliem.
    But there is no occasion to take this ground; for those gentlemen never did profess to act as agents for the respective parties; or to judge of their claims, or to malte a final distribution and adjustment of their respective rights.
    
    On the contrary, in their letter of 19th January, 1821, they expressly disclaim any purpose of deciding between Pawson and Donnell. They profess their want of sufficient information to guide them. They do not even dare to follow out what they believe to he Pawson’s intentions. If they had, they would have invested the whole of his funds, (after the I AO quintals of copper,) in silver liars and Chinchilli skins. But, even this, they do not venture to do. They prefer, they say, passing the whole of Pawson’s balance to Donnell; leaving it to him to settle with Pawson’s representatives in the mauner he, Donnell, might, think most just and equitable.
    
      Again in their letter of the 28th January, 1821, they apologize for the manner in which" they had shipped these articles— their words are “ we-have only to beg you to call to mind, in case that every thing is not exactly correct, the disadvantages we have been under from the sudden death of Captain Pawson?’
    
    Here, then, is a strange attempt to attach to the acts of these gentlemen, a consequence which they themselves never dreamed of attaching to them, and while they declare that they are acting by. conjecture, in the necessity thus thrown upon them'by the sudden death of Pawson, and while they alsó declare that their purpose is to refer every thing to ’ Donnell’s knowledge of the rights of the parties, because of his better knowledge of these rights, the court are called upon, in the teeth of this declaration, to consider these gentlemen as acting with full light and with full power, and as intending to malee a final and judicial disposition of this subject between Donnell and Pawson.
    
    Let us proceed a step farther. Let us impute to these gentlemen, a purpose which it is manifest they never entertained, to decide upon the rights of these parties. What was their power ; what their real situation ?
    
    These gentlemen had been appointed by Pawson, in his lifetime, to purchase the copper for the Chesapeake. (See his letter to them, of the 19th August, 1820.)
    In his letter of September 4th, 1820, to Donnell, he informs him he had so appointed them to purchase the Chesapeake’s cargo.
    
      Pawson,- then, was the agent of Donnell,• acting under written instructions to which he had assented. 'Edwards 8f Stewart were his sub-agents in executing the duties confided to him by Donnell. They were, then, employed by him in executing those duties, under this sub-delegation of power, and under his superintendance. Their whole power was derived from Pawson’s appointment; and, consequently, the limits of Pawson’s power, marked the limits of theirs with regard to Donnell. For Pawson could not delegate to them a power which he did not himself possess. But he, Pawson, had no power to buy gold for 
      
      Donnell; and therefore, he could delegate none such to Edwards dp Stewart.
    
    During Pawson’s life, they were acting under his superior and controlling authority. The acts done during Pawson’s life were conclusive, as between him and Donnell. The rights acquired by Donnell under these acts, during Pawson’s life, were vested rights, which could not be divested by Pawson’s successor and sub-delegate. The copper already purchased was Donmll’s, and at his risk. Edwards dp Stewart if they had so wished,, could not have altered this state of things. But it is clear that they never proposed it; never thought of such a change.
    
    Yet, without the power and without Hie intention to make any such change •, declining all interference themselves, and referring all to the decision of Donnell, their acts, avowedly with a different aspect, are supposed to have changed the title which ivas vested in Donnell, during the life of Pawson, and vested by Pawson’s own avowed intention and acts.
    One of the learned counsel has talked of Domicil’s specific doubloons having been invested in this purchase. What a notion is this of an ear-mark in money! Pawson held the whole of Donnell’s funds, and they were in the hands of Pawson, blended with his own. Whether in doubloons or bank notes, or government paper, they became one mass in the hands of Pawson. They were placed by him in the hands of Edwards dp Stewart to make all the purchases, Donnell’s and his own. Their deposite with Edwards dp Stewart made them their funds. They were Donnell’s no longer. They were the properly of Edwards dp Stewart, and they were responsible to Pawson for all the funds placed in their hands. The application of the whole mass of these funds was under the direction of Pawson, during his life ; and whenever he ordered a purchase it is perfectly immaterial to this question, whether Edwards dp Stewart used these doubloons, or any other portion of their own funds.
    It is, respectfully, submitted to the court, that the several opinions of the court below, on this point, were perfectly correct.
    
      
      Taney (attorney general) in reply.
    The only question in controversy in the appeal now under consideration, is the gold and silver shipped at Guaseo, and seized and confiscated by the Spmish authorities. Three of the bills of exceptions taken at the trial all relate to this subject.
    The ship arrived at Coquimbo, August 15, 1820, and sailed from that place for Guaseo, January 19, 1821. Pawson died at Coquimbo, December 4, 1820.
    It appears, thérefore, that the silver and gold in controversy was shipped after the death of Pawson, and at a port which he did not live to reach. It does not appear that any part of the silver was purchased in his lifetime •, and it is positively proved that the gold was purchased after his death.
    
      Pawson had under his separate control his own individual adventure, and also the funds belonging to Goddard, arising from the sale of the cordage. The appellants are willing to consider the silver to have been bought with the funds under the separate control of Pawson, and the gold on account of Donnell, and -propose that the loss shall be borne accordingly.
    But Donnell insists that neither the silver nor the gold belonged to him; and that no part of the loss of either can fall on him. The ownership of the gold, seized by the Spanish government, is therefore the point in dispute between the parties.
    The statement in the record shews that both Donnell and Pawson had funds' in Chili, in the hands of Edwards fy Stewart, at the time they purchased the gold. It moreover, appears, in proof that the funds of Donnell were in fact employed in this purchase, and not the funds of Pawson. But it is said on behalf of Donnell, that his funds could not rightfully be so employed; and that if they were so used, it was a violation of the instructions given to Pawson, which instructions bound the funds in the hands of Edwards fy Stewart.
    
    We do not mean to contend that the death of Pawson altered, in any respect, the rights of the parties. We admit that the funds of Pawson in the hands of Edwards 8f Stewart had no greater privileges, than they had in his own hands. The first question, therefore, to be decided is, what were the powers and duties of Pawson, under the authority and instructions received by him from Donnell? And this leads us to consider, in the first place, the question presented by the second exception.
    
    In this investigation we do not mean to consider the intentions, which Pawson is supposed to have entertained. They will be examined in a subsequent part of this argument. The object now is to ascertain the rights of the parties; and when this is done it will not be difficult to decide, how far the rights of Pawson can be affected by any designs which he formed in his life time, but which he did not live to carry into execution.
    In the second exception, the County Court have decided that it was the duty of Pawson to invest all DonnelVs funds in Chili in copper, if copper could be had; that Pawson could not, consistently with his duty, put on board any copper on his own account, while he had funds of Donnell under his control, which could be applied to that purpose; that if DonnelVs funds in Chili were sufficient to load the ship with copper, that no copper could be put on board for Pawson or any one else; that if copper enough was put onboard, sufficient to exhaust the funds of Donnell, no other part of the cargo would belong to him; and consequently that he could not be affected by the loss or seizure of the silver or gold. This is understood to be the opinion of the court, set forth in the second exception.
    
    This opinion of the court denies that Pawson had any license or permission from Donnell to bring copper from Chili to Baltimore, provided DonnelVs funds were sufficient to load the ship. It denies also that Pawson had any privilege from Chili to Baltimore.
    
    When we speak of the privilege of Pawson, wre mean that kind of privilege which is described by the testimony. A captain’s privilege in the sense, in which it is there spoken of, is not a mere permission, revocable at the will of the owner, but is an absolute and vested right to a certain portion of the ship, secured to him by his contract with the owner. This portion the captain may either use himself, or let out for hire to others, and the owner himself must pay for it if hé uses it. Such was the character of the privilege from Canton, as appears by the testimony in the record.
    It will be found, upon recurring to the exceptions and arguments in the other appeal between the same parties, that it was in that case strongly urged on behalf of Donnell, that Pawson had a certain privilege in copper from Chili to Baltimore ; and that this privilege had been substituted by the consent of parties for the one from Canton. The privilege from Chili, therefore, was supposed to be one of the same character with that from Canton, for which, it was insisted on the part of Donnelly the privilege from Canton had been exchanged.
    If the counsel for Donnell were right in the argument just stated, then the opinion of the County Court, given upon their prayer in the exception now under discussion, must necessarily be wrong. For if Pawson had a substituted privilege from Chili to Baltimore, he had a right to bring home copper, or any thing else, to the extent of that privilege, although Donnell’s funds were not exhausted. But in this-prayer they insist that he had no such privilege; that hé could use no portion of the ship for his own goods, until the whole of Donnell’s funds were invested in copper, and shipped on hoard this vessel; that he might then use any space which happened to he left, and if none was left he could ship nothing. The position taken in the other case is inconsistent with the one they now maintain. If they were right in that case, they must he wrong in this.
    It is not, however, contended on the part of Pawson’s representatives, that he had any privilege (in the sense in which that word is used in the record) from Chili to Baltimore. We insist now as we did in the other appeal, that the privilege from Canton was neither forfeited nor waived; that no privilege from Coquimbo or elsewhere was, by the consent of parties, substituted in its place. But that Pawson had permission from Donnell to bring home from Chili the whole of his funds in any thing he pleased, in copper as well as in any other article. We do not say that he was entitled to do this, without paying freight. If he used any part of the ship under this permission, he was unquestionably bound to pay freight. Because as this permission formed no part of the compensation of Pawson, there could be no reason for allowing him to exclude the goods of the ship-owner for his own benefit, without paying the usual compensation. Dawson’s recompense for his services depended upon the original agreement between the parties—that is—the shipping articles, and the letter of November 8, 1819. And the permission, for which we now contend, is neither the privilege secured by that contract, nor any other privilege substituted for it; but is a separate and distinct permission given afterwards,—and given not by way of bargain—but by way of voluntary license;—and which being once executed, cannot afterwards be revoked. This is the character of the permission for which we contend. And we proceed to enquire, whether he had a permission or license of this character, or whether, as the County Court have said, he had no right to bring home any part of his own funds in copper, unless there was space left in the ship, after DonnelVs funds had been exhausted in the purchase of that article.
    The argument upon this point is necessarily very brief. It depends upon the construction of DonnelVs letter of December 26,1819. This is a written instrument and must speak for itself, and its true meaning be declared by the court. It is this paper that broke up the original voyage, and directed the new one. And it prescribes what is to be done in the new one. In this letter, Donnell says,—“ as relates to the investment and disposal of your own funds, you must use your own discretion, by investing it in copper or any thing else, and bringing it with you in the ship;—the copper may (as I hope it will) be bought on terms that will, with my funds and yours, load the ship very deep, but if necessary you must load her very deep,” &c.
    Argument can scarcely assist the court in fixing the true construction of this letter. The permission to Pawson is express to invest his funds in copper or any thing else, and bring it with him in the ship. It is not a contingent permission, depending upon DonnelVs funds loading or not loading the ship. It is not a permission to bring a part of his funds in copper in the ship— nor to fill up any particular space. Donnell knew the amount of Pawson’s funds—for he had given him the bill on Horstman: (see letter from W. F. Reus,) and with this knowledge he gives to him the unqualified permission to bring home in the ship in copper, or any thing else, the whole amount of his funds.
    If, therefore, this permission be an absolute privilege, substituted for the Canton privilege by the consent of parlies, as has been on another occasion contended for by Donnell, then this opinion of the court, which makes it a mere contingent permission, cannot be supported. If it be an absolute and unconditional license, to be used by Pawson at his discretion, as we contend, and as the words of the letter seem necessarily to import, then it is equally clear that this opinion of the court cannot be maintained. In either view of the subject, therefore, the judgment must be reversed, unless there be something in the conduct or letters of Pawson, which may give to the case a new aspect
    We cannot imagine haw any thing contained in the letters of Pawson can be relied on to support this opinion of the County Court. The court have said, that he had no right to ship any copper on his own account, provided Donnell’s funds would buy copper enough to load the ship. We say, on the contrary, that he had permission from Donnell to bring home the whole of his funds in copper, if in his discretion he thought proper to do so. And we produce the letter of Donnell giving this permission in so many words. Now, whether Pawson had or had not this pei’mission, must depend upon the language used by Donnell, and not upon language used by Pawson. Donnell alone could give the permission; Pawson could not assume it.
    It is true that Pawson might, in his discretion, refuse to exercise the permission given. But if he had even done so in 'express words, it would not support the opinion contained in this exception. The point presented is—had Pawson the right, under the permission given by Donnell, to bring home his funds in copper, if he thought proper to do so. The court say he had not the right. And, in discussing this question, it can make no difference how far he exercised it, or how far he intended to exercise it. The question is, did he possess the right, if he thought proper to exercise it. He may, in his discretion, have determined not to use the permission to the full extent, nor even in a small degree. Yet that would not destroy his right to use it. The right would still exist, although Paw-son did not choose to avail himself of it. And, in order to support this opinion of the County Court, Donnell must shew, not how Pawson used his discretion, but that he had no discretion to exercise. And, whether he had or had not the power to ex ercise any discretion on the subject, must depend on the letters of Donnell, who alone could confer or withhold the power.
    We cannot, therefore, perceive how Pawson1 s letters, detailing what he had done or intended to do, can affect this question. It is not suggested that in any of his letters he has admitted that Donnell recalled the permission, given by his second letter. And, unless the letters of Pawson contained this admission, it is not easy to discover in what other way they could prove that the right, which had been vested in him by the license of Donnell, had afterwards been extinguished. Any declarations which may have been made by Pawson, as to the manner in which he intended to use the discretionary power confided to him by Donnell, would not be binding on him, nor limit the range of his power. Every intention entertained or expressed would be liable to alteration, as the business advanced, and at any time before he had acted. In stating this position, however, we shall not be understood to mean, that after Pawson had actually purchased copper on account of Donnell, he could convert it to his own use, and ship it on his own account. This we admit could not be done. When he had once purchased copper for Donnell, he had then exercised the discretion with which he was entrusted, and the copper would remain DonnelVs, and must be shipped as his property. But we insist that he had the right, instead of purchasing for Donnell, to purchase copper for himself to the amount of his own funds, and that this power remained until he acted, and by purchasing, either for himself or Donnell, exercised the discretion, and put an end to the power. When we speak here of Pawson’s funds, we must not be understood to include the proceeds of Goddard’s cordage.
    If, however, we look at the intentions of Pawson, as expressed in his letters, or disclosed in the letters of Edwards Stewart, nothing will be found to sanction the opinion which the court have expressed. He uses no .expression which indicates a belief on his part, that he was-obliged to exhaust Donnell’s funds in copper before he could ship a single pound for himself, as the County Court have decided. - On the contrary, if you resort to his own letters, or those of Edwards Stewart, he does not appear to have, doubted that he had a right to ship a large amount of copper. Plow much he supposed himself entitled to bring in this vessel does not appear. But it is abundantly evident that he considered it, in a great measure, as a matter resting in his discretion; and upon which he intended to decide, when he had more certainly ascertained how much could be brought. It seems never to have been supposed by him that his right to bring any was altogether contingent, and depended upon the ability of the ship to bear it, after all Donnell’s funds had been first so disposed of. On the contrary, he never seems to doubt his right—he doubts only to what extent he will use it. See his letter to Donnell, dated November 4, 1820—and the letter of Edwards 8f Stewart, dated January 19, 1821.
    It is very certain, if Pawson had lived, he would have used the permission given by Donnell very sparingly. He had the strongest inducements not to displease Donnell. He was in his employment. And Donnell was a man of vast wealth—extensively engaged in commerce—who, we admit, paid his agents liberally while they lived, and were useful to him; and with whom, therefore, Pawson would naturally wish to stand well, and be most careful not to offend. Besides, he acted under the influence of higher and better feelings. He was the trusted agent of Donnell, and as such seems upon all occasions to have preferred the interest of his principal to his own. This, was obviously the case in the purchase of gold in London; and it is. equally manifest from his own letters, and the letters of Edwards 
      41 Stewart, that he was prepared again to surrender what he believed to be his rights, in order to advance the interest of Donnell :—that he had determined, in his own language, to curtail his privilege in copper;—that is—to take less than.what he had a right to take, in order more effectually to serve Donnell. We admit most distinctly, that if he had lived, he would have waived his own rights in favor of his principal; and it was his intention to do so.
    But we are not now to inquire what rights Pawson intended to waive, or what he intended to insist on. It is our business to ascertain what were his rights; and whatever rights he had at the time of his death, it is the duty of his representatives to maintain, although we may even be satisfied that he himself intended to surrender them, if he had lived. If the right was not actually surrendered, it belongs to the representatives; for they can have none of those inducements to waive them, which might very properly have operated on the mind of Pawson.
    
    We have already endeavoured to show the character and extent of these rights, and hope we have established the following propositions:
    1st. That DownelVs letter of December 26, 1819, gave to Pawson permission to bring home his whole funds in copper, if he thought proper to do so.
    2d. That this privilege had never been recalled by Donnell, nor surrendered by Pawson.
    
    Assuming these two propositions, let us in the next place see what were the rights of the respective parties, when adjusted according to these principles.
    
      Pawson had the right, under the license given by Donnell, to invest his own funds in copper in preference to DonnelVs, and bring the copper home in the ship. It was also the duty of Pawson, under his instructions, to invest DonnelVs funds in that article, provided the ship would bring it, together with his own. But if the funds of both would overload the vessel, Paw-son was without orders in that contingency; and consequently was left to exercise a sound discretion, as to the manner in which the surplus funds of Donnell should be invested.
    
      In this state of things it must be conceded on all hands, that whenever Pawson bought copper for Donnell, and with Donnell’s funds, the copper became his property, and could not afterwards be appropriated by Pawson to his own use, if he had been so disposed. And whenever he bought copper for his own use, and with his own funds, the copper belonged to him, and could not become Donnell’s unless it was transferred to him by his own consent, as well as that of Pawson. For Paw-son had a right so to invest the funds of either party •, and when the investment was once made by him, he could not of himself recall it. And indeed any other rule would have been liable to great objections. Because, although copper was the favourite article, and preferred by both parties, yet as it was not all bought at once, but in different lots, the price was subject to variation, and he might have been obliged to give for some parcels more than he had given for others; and it becomes important, therefore, to fix at once for whom the purchase was made. Besides, although copper proved the most fortunate cargo, it might have happened otherwise; and if it had come to a losing market, and the gold and silver arrived safe, the latter articles might have proved the best investment. In every view, therefore, the purposes of justice required that when the discretion was exercised, and the purchase made by the funds of one of the parties, the article purchased should become at once the property of him for whose use it was bought, and should not afterwards be transferred to the other, without the consent of both parties.
    Assuming this to be the true principle, let us look at the state of the funds at the time of Pawson’s death, and what was done with them afterwards. And this brings up the question in the first exception.
    
    On the 4th of November, 1820, Pawson had bought for Donnell 9500 quintals, nearly 7000 of which was then on board at Coquimbo, and the remainder at Guaseo, to which place the Chesapeake afterwards intended to sail. (See Pawson’s letter.) So far we have an actual appropriation of Donnell’s funds. But we have no other appropriation during his life, and no evidence that any more copper was purchased by him. A large amount of copper was afterwards bought at Coquimbo. For it appears by the bill of lading, that instead of the “ nearly 7000 quintals” at Coquimbo, mentioned in Paws on’s letter of November 4,1820, as purchased and shipped there for Donnell, there was in fact, 8076 quintals and some pounds shipped from Coquimbo. And there is no evidence to show for whom the additional 1076 quintals were, bought; nor indeed any thing to show whether it was bought in Pawson’s life time, or after his death. The 9500 quintals, bought for Donnell, did not exhaust his funds; it left between six and seven thousand dollars of DonnelVs funds unappropriated •, and there is no evidence to show that the additional quantity of copper was bought for him, or with his funds;—nor that any further specific appropriation of the funds of Donnell were made by Pawson in his life time. But whether any further specific appropriations of DonnelVs funds were or were not made, it is in proof that they were not all appropriated. For it appears by the testimony, that some of DonnelVs doubloons brought from England had not been expended in the purchases made for him by Pawson; and that these specific funds of Donnell were applied after the death of Pawson, and by the advice of his successor, in the purchase of the very gold, which was afterwards seized by the Spanish government. Now, as the specific funds of Donnell were appropriated to the purchase of this gold, and it was bought, on his account, the purchased gold belonged to him, and the loss must be borne by him.
    We have already endeavoured to show, that if the Chesapeake would not bring all Pawson’s funds in copper, and all DonnelVs funds also, that as Pawson had no specific directions how to dispose of Donnell’s surplus funds, he had a right to exercise a sound and honest discretion on the subject, and might invest them in any article he deemed best. He died, leaving funds of his own and funds of Donnell, also unappropriated. The money of both of them came to the hands of persons who had no instructions, from either Pawson or Donnell, and no authority from either of them. Neither Lane, nor Edwards 
      
      Stewart, in' whose hands these funds remained, were appointed the agents of Donnell, or the agents of Pawson. In this state of things the money was in their hands in the same condition, and subject to the same rights, as when it remained in the hands of Pawson. Edwards'fy Stewart, who held the funds, became trustees for the respective parties, according to the amount of their respective funds, and according to their respective rights of investment and shipment. And when the funds of either party were invested jn a particular article, that article became the property of the party whose fund was used in the purchase. The thing purchased belonged to him, and could not be claimed by the other. And if it were lost or destroyed, he could not put 'that loss on the other party. If indeed the trustee had ^misbehaved himself in the purchase, and a loss had thereby happened, the party injured would have been entitled to demand compensation of the faithless trustee. But nobody, under such circumstances, could have acted more discreetly or honestly, than Edwards ^ Stewart. There is no pretence of complaint against them. But whether Donnell had, or had not cause of complaint against them would not have altered the case. The funds were in the hands of Edwards 8f Stewart, precisely as they had been in the hands of Pawson. The .funds of Pawson had an absolute right, derived from Donnell, to be invested in copper, and brought home in the ship. The funds of Donnell had a right to be invested in the same article, if the ship would bear it. . But if the ship would not bear it, the surplus might be invested in any manner that the sound discretion of the agent would justify. These were the rights of the parties while Pawson lived, and the funds were in his hands. Upon his death, the funds in the hands of Edwards Stewart were liable to the same appropriation, and subject to the same rights; and, by the hands of Edwards 8y Stewart, the surplus funds of Donnell have been specifically appropriated to the purchase of the gold. This appropriation would have been a lawful one by Pawson: it was equally so when made by Edwards fy Stewart. If the shipment had proved fortunate, Donnell would have had a right to hold it, in opposition to Pawson’s representatives; and as it has proved to be unfortunate, he cannot throw the loss upon them. It is unnecessary to cite many cases on this subject. Taylor vs. Plumer, 3 Maul. and Selw. 574, is in point. In page 575, it is said «the product of, or substitute for, the original thing still follows the nature of the thing itself, as long as it can be ascertained to be such.” The gold in question was “ the product of, or substitute for,” the doubloons of Donnell. He clearly had a right to follow the gold bought, and to claim it to the exclusion of Pawson; and it would be contrary to every notion of justice to give him the right to it, if it was found to be profitable, and enable him, if unfortunate, to throw the loss on Pawson. If he takes it all, he takes it for better or for worse. And if he has been wronged in the purchase, it was not by Pawson, for he died before the purchase. But in truth he has been wronged by nobody. The investment was judicious and discreet at the time, although it afterwards proved unfortunate. And as it was purchased with his money it belonged to him, and the court have therefore erred in the opinion contained in the first exception, as well as in that given in the second exception, which was first examined.
    So far we have argued the case according to the rights of the parties, at the time the gold in question was purchased, and without reference to any thing that happened afterwards. We proceed now to show, that if Edwards &f Stewart had not possessed the power to make this investment of the funds of Donnell, yet that Donnell, by his subsequent conduct, has adopted it and assented to it, and cannot now dispute it, even if he might have done so, when first informed of the transaction.
    This point arises under the second and third exceptions: It presupposes that Pawson in his lifetime, and Edwards Sf Stewart, after his death, had no right to invest any part of his funds in copper, and bring it home in the Chesapeake, until DonnelVs funds had been first exhausted in the purchase of that article, and had been found to be insufficient to load the ship. But, assuming this to be the law of the contract between Donnell Sf Pawson, we insist that if Paioson in his lifetimé, or Edwards Sf Stewart after his death, holding in their hands the funds of both parties, did specifically and separately appropriate them in any particular manner; and if Donnell and Pawson’s representatives, after notice of such appropriations, acquiesced therein, that such acquiescence will bind the parties, and neither of them could afterwards reject and disallow it, without the consent of the other party.
    We have certainly offered evidence of all the facts above stated. ' 1st. It is admitted by the statement, and in prayer of the appellee that, .upon the death of Pawson, a large proportion of the funds of both parties were in the hands of Edwards &f Stewart.
    
    
      - 2d. These funds were specifically appropriated. The gold in question was purchased with the money of Donnell, and shipped on his account. See where Edwards Stewart speak of it as Donnell’s gold. The Chinchilli skins, the one hundred and forty seven quintals and seventy-nine pounds of copper, and the silver mentioned in the same bill of lading, were separately shipped on account of- the funds under the immediate control of Pawson. See letters of Edwards fy Stewart. Also the bills of lading. When we speak here of the funds under the immediate control of Pawson, we mean his own and Goddard’s, as distinguished from Donnell’s. The balance of Pawson’s separate account was passed to the credit of Donnell, and invested for him, and shipped on his account. The 900 pigs of copper, and the thirty-six lumps of gold were shipped on Donnell’s sole account. And it is distinctly admitted in the argument, and the evidence and figures .shew it, that Donnell’s funds, independent of those transferred to him by Edwards Sf Stewart, would not purchase the 900 pigs of copper. These 900 pigs contained 113 quintals more than Donnell’s own funds would have purchased, after exhausting every dollar that Donnell had in the hands of Pawson.
    
    3d. Donnell and Pawson’s representatives had notice of these specific appropriations, and acquiesed in them.
    The acquiescence of Pawson’s representatives is not disputed. They claim, according to adjustment made by Edwards 8f 
      
      Stewart, and have always so claimed. They sue on that ground. See, also, Graham’s letter, May 15, 1822.
    
      Donnell, also, had notice and acquiesced. The Chesapeake arrived at Baltimore, on her return from this long voyage, October 1, 1821. Donnell then received the letters of Edwards Stewart, and their accounts, and the bills of lading, and invoices contained in the record, which gave him notice of every thing that had been done, as above stated. So far as to notice: Now, as to acquiescence. He received this notice, October 1, 1821. The 147 quintals, shipped on Pawson’s account, as before mentioned, were delivered to his representatives as his share, October 29,1821. All the rest, it seems, was retained as Donnell’s. Some months afterwards, and after a full investigation of all the accounts of the voyage, Donnell states an account with Pawson. We have said that this account was made out after a full investigation of the accounts of the voyage, because the paper itself upon the face of it, shows that this was the case; and we have said that it was made out some months afterwards, because the earliest evidence of its existence is to be found in Mr. Graham’s letter oí May 15,1822. In this account he states the 147 quintals and 79 pounds, as the whole of Pawson’s interest m the copper. See the item in the account, in which he charges him with his proportion of the expense of landing and reshipping the copper. Donnell had, at that moment, in his hands 113 quintals more than his own funds could have purchased. Yet he gives no account of this, and speaks of the 147 quintals and 79 pounds as the whole of Pawson’s interest. If Donnell acquiesced In the transfer to him of $7777 87 by Edwards 8f Stewart, then he was notbound to speak of this 113 quintals, because he would be debtor for the $7777 87, transferred to him, and he would be entitled to all the cargo purchased with it, and, consequently, to the 113 quintals above mentioned. If he does so acquiesce, then he adopts, also, the shipment of the gold, and, of course, gives up the matter in controversy. The gold was shipped on his sole account. And if he adopts and ratifies the acts of Edwards fy Stewart, as to the 113 quintals of copper bought with part of the sum transferred to him, it will hardly be said that he may reject the gold, because it was unprofitable or lost. In fine, he may in this aspect of the case accept the transfer of the §7777 87, or reject it altogether. He.cannot accept it in part, and reject it in part. He has accepted it as relates to the 113 quintals: If he has acquiesced as to that, he must acquiesce as to the gold also.
    It can hardly be supposed that Donnell did not acquiesce as to these 113 quintals. They were bought with part of the sum of $7777 87, transferred to him as aforesaid. He had no other funds to buy it. If he did not mean to assent, then these 113 quintals belonged to Pawson’s administrators. Yet Donnell, after a full view of the whole ground, accounts with them, without allowing them these 113 quintals. And after taking all the copper tti himself, and these 113 quintals with the rest, he makes himself debtor for §185 09 only. Whereas, if this copper belonged to Pawson’s administrators, it was pf itself worth in Baltimore more than $2000. Donnell, therefore, stands in this dilemma. If he did not mean to ratify what was done by Edwards fy Stewart, then he was bound to deliver over this copper to Pawson’s representatives, for which he himself had not paid, and had no funds to pay. If he did mean to ratify what wasj done by Edwards 8f Stewart, he had a right to retain it. In the first case, he could not rightfully withhold it. In the second, he might honestly do so. He did retain it, honestly and justly we say, because the funds were transferred to him, and it was shipped on his account. It will not, be said on his behalf, that he withheld it from the account from any unworthy motive. He, must therefpre have acquiesced in the arrangements made by-Edwards fy Stewart. His conduct in regard to these 113 quintals of copper can be justified on ho other ground.
    We do not ask the, court to say that this conduct was, in point of law, an acquiescence or consent on the part of Donnell, and irrevocably bound him. But we insist that it was evidence of his' acquiescence and consent, after notice of the manner in which the funds had been appropriated; and being evidence of such acquiescence and consent, it ought to have been left to the jury to say from the evidence, whether he did, or did not acquiesce in the disposition of the funds made by Edwards fy Stewart. If he did assent, it is quite clear that in point of law he cannot afterwards recall it. The case of Prince vs. Clark, 8 Serg. & Lowb. 54, is directly in point on this subject. In that case the agent applied the funds of the principal in a manner not authorised:—in this case, it is assumed for the sake of the argument, that the same thing was done. In that case the principal received notice of the manner in which his funds had been applied, May 29, 1822; and gave notice of his dissent, August 7, 1822; that is, in less than two and a half months afterwards. In this case Donnell must have received notice of the application of his funds, when the ship arrived, October 1, 1821 ; and he expresses no disapprobation of the transfer of Pmson’s funds to his account, until he rendered his account. And there is no evidence of the time of rendering that account, but the letter of Mr. Graham; which letter is dated May 15,1822, seven months and a half after the arrival of the ship. If in the case of Prince vs. Clark, the silence of the principal, or rather the absence of any evidence of dissent by him for the space of two and a half months, was evidence, from which the jury might properly find that he had acquiesced and assented to the act of the agent;—surely the silence of Donnell, for the far longer period above stated, was evidence, from which a jury might have inferred his assent and acquiescence in the acts of Edwards fy Stewart, in the transfer of Paw-son’s funds to him, and in the shipment of the copper and gold, on his “ sole account,” as stated in the letters and bill of lading. Indeed this case has this strong additional circumstance against the principal, that the legal representatives of Pawson were known to him, were living in the same town with him, and to whom he had delivered the property, shipped on account of Pawson, October 29, 1821. And in the case of Prince vs. Clark, it was not very clear that Leigh was the proper person to receive the notice; and if he was the proper person, it was not very clear that Prince knew it. We confidently, therefore, rely upon this case to prove that the court erred in the opinion contained in the third exception, in which they decide that the evidence above stated, is not a ratification of tbe acts of Edwards-fy Stewart. Whether Donnell did, or did not consent to them was a question of fact for the jury, and not of law, for the court. And if he did acquiesce in them after notice, and the jury had so found, then in point of law it ratified what Edwards Sf Stewart had done.
    So far we have considered tbe case as if Donnell in his account had dissented from the appropriation of the funds made by Edwards fy Stewart. But is this the meaning of the account in question ? Does he in this account dissent from what had been done ? ' It is very true that he says, in noticing this item, that the transfer of $7,777 87, was very improperly made to him. Rut he does not reject it. He does not refuse to accept it. On the contrary, he credits Pawson with the whole amount, rejects from it •Goddard’s funds, and then reduces the balance by charging freight, the cost of the gold, &c. &c. and, finally, leaves a balance against himself, on account of this transfer of $112 49; and this sum of $112 49 is a part of the balance of $185 09, which Donnell admits to be due from him to Pawson’s representatives. Is not this a direct acquiescence in the transfer? Is it not a positive adoption of it? True, he complains of it, and denies the right of Edwards fy Stewart to make it. Yet he accepts it; accounts, as he supposes, for all but $112 49; and admits that he owes that sum on account of this transfer. If he did not accept it,, he owed nothing on that account. He dbes,- therefore, in admitting this balance to be due, also admit, by necegsary implication, that he assented to the transfer.
    The account is in writing; and whether Donnell does, or does not by this account accept the transfer above mentiohed, must depend upon the language of the account which is to be taken all together; and being in writing, is to be expounded by the court. We have endeavoured to shew the-court, that by the true construction of the account, he has assented to and accepted- the transfer. If we .are right in this, then the court ought to have instructed' the jury that, u under the circumstan- ' ces of the case,” the account of Donnell was a ratification of the acts of Edwards 8f Stewart. For, if by the written language of the account, according to its true interpretation, Donnell had accepted the transfer, his assent was in point of law a ratification; and the other evidence need not have been left to the jury. If, however, we are wrong in our interpretation of this account, yet all must concede to us that the circumstances, herein before detailed and relied on, furnish evidence from which a jury might have inferred his consent, and that therefore the opinion of the court cannot be maintained.
    It has been said that this copper was retained by Donnell, in order to meet any claim that Goddard might make against him. Now the motive which induced him to retain was necessarily a question of fact for the jury, and not one of law for the court. Donnell contends that he retained it to meet any demand that Goddard might makewe insist that he retained it as his own property, shipped to him and on his own account by Edwards fy Stewart. In this state of the dispute the jury must decide the controversy. The court cannot decide what motive or intention influenced Donnell. It is a question of fact. The argument, therefore, on the motives which governed Donnell, does not tend to support the opinion given by the court. As the motive was controverted, it was not in the province of the court to decide the controversy. It may not, however, be improper to remark here, that Donnell]does not, in his account, suggest that he retained this copper for the reasons now assigned in the argument. He gives no account of it whatever, and Dawson’s representatives did not know any thing about it. It is quite evident that Goddard could have no claim against Donnell, or against the copper brought in the Chespeake. He never pretended to have a claim against either; and we shall be ready, at the proper time, to shew that he has no just demand against Dawson’s representatives. With that controversy, however, we have nothing to do at this time. It is sufficient for us, on this occasion, to show that it cannot be taken as an admitted fact, that Donnell retained this copper for Goddard. The opinion of the court, therefore, in the third exception, cannot be sustained on that ground.
    
      . There is another objection to the opinion contained in the third exception, which we must briefly notice. We understand the first branch of the direction to be this:—that if Pawson, in his lifetime, was willing to waive the privilege he had to bring home his whole funds in copper, but died before he had actually invested the funds in his hands, and before he had actually waived it, that, his declared intention, his willingness to curtail his rights would bind his representatives, and compel them to relinquish what Pawson had been willing to relinquish, and had intended to relinquish, but which intention he had not, in his lifetime, carried into execution. This, we‘presume, must be admitted to be the meaning of the first branch of this direction.
    Upon what principle can it be sustained ? Is there any case in which the intention to do an-act has been held to bind the party, or his representatives ? It is not pretended that he did, by any act of his own, surrender a part of his privilege; nor is it supposed that he contracted to surrender it, or any part of it. The direction stands on the hypothesis, that he was willing to accept less than he was entitled to. His willingness to do an act cannot be equivalent to the act itself. We are not to inquire what either party was willing tó do, but what they had done; and what were their rights at the time of Pawson’s death; for it is'aceording to these rights that the cause must now he decided. It is time, however, that this argument should be brought to a conclusion.
    We'have endeavoured to show,—1st, that Pawson had the permission of Donnell to bring home in copper the whole of .his own funds, -if in his discretion he thought proper to do so. Arid that this permission had never been recalled by Donnell, nor surrendered by Pawson. 2d. That upon the death of Pawson the funds remaining unexhausted came to'the hands of Edwards Stewart, clothed with the same.rights and privileges that belonged to them, in the hands of Paioson. 3d. That being so in • their hands, Edwards 8f Stewart were not bound to exhaust Donnell’s funds in copper, before they invested any part of Pawson’s. funds in that article; but, on the contrary, had a right to invest if they thought proper to do so, the whole of Pawson’s funds in that article, and send it in the ship. 4thly. That Edwards fy Stewart, holding thus the funds of both parties in their hands, and Pawson’s funds having a right to be preferred in the investment in copper; if Edwards Stewart in the exercise of an honest discretion, actually invested any part of Donnell’s funds in gold, that the gold became the property of Donnell; and, if a profitable investment, he was entitled to claim it; and if it proved to be a losing one, he could not throw the loss on Pawson’s representatives, ñthly. We have endeavoured to show that whatever might have been the rights of the parties, there is evidence to prove that all of them, after notice, acquiesced in what was done by Edwards Stewart; and if from that evidence the jury should find such acquiescence, Donnell, as well as Pawson’s representatives, are bound by it, and cannot recall it, no matter what might have been their rights before. And 6thly, we have endeavoured to show that by his account, Donnell has given a written assent to-the appropriations of the funds made by Edwards & Stewart; and that although he denies the propriety of the transfer to him, yet he adopts it, and states the account upon the principle, that he is to account for the money so transferred, and does not deliver or offer to deliver the property in which it was invested, but retained it as if it were his own. And, relying upon the soundness of these propositions, the case is submitted to the Court.
   Dorsey J.

at this term delivered the opinion of the Court. Of the refusal of the Court to grant the instruction prayed for, which forms the ground’ of appeal on the appellant’s first bill of exceptions, we entirely approve. Had the instruction been given, it would have been a palpable invasion of the unquestionable and exclusive right of the jury: that of deciding on facts, of which contradictory testimony is adduced. The appellees “had offered in evidence, that it was the usage among ship owners and masters, not to charge freight where the ship was in ballast, for any articles shipped by the captain on his own account.” The appellant then “offered in evidence that there was no usage as above stated, and that the captain was liable to freight to the owner, like any other person, if he chose to exact it.” In such a state of the proof, the court could not do otherwise than reject the prayer, calling on them to decide a fact thus controverted.

In the appellant’s second bill of exceptions are involved questions of great magnitude to the commercial world and of much intrinsic difficulty; and we regret that we are called to the decision of these questions, without proof of commercial usages upon the subject. In the argument it is conceded by both parties, that the .owner of the ship and cargo has the uncontroled power of breaking up or changing the voyage, but they differ most widely as to the consequences which would ensue, and the nature of the responsibilities, to which the owner would thereby be subjected. For the appellant it was contended that this well established prerogative of the ship owner, entered into the contemplation of .Donnell and Pawson, who contracted in reference to it.' That upon its exercise no new liabilities were created; the Canton privilege no longer formed any part of the contract; nor had Pawson any claim to indemnity for its loss. This is assuming much broader ground than was occupied by the prayer to the court below: which appears predicated on the admission of Pawson’s title to recover, but for his alleged voluntary relinquishment of his right. The appellees, on the other hand, insist, that upon the change of the voyage, Pawson was not only entitled to claim an indemnification for the injuries thereby sustained : but the full value of the Canton privilege, exempt from all the casualties to which it was naturally liable: and also the whole compensation, stipulated as an allowance to the supercargo, whether the services for which it was equivalent were ever rendered or not; all which on the part of the appellants, is strongly controverted. . The principles, contended for by each party, are perhaps-stretched further than reason or justice would sanction or public policy requires. And it may readily be imagined, how the counsel on both sides, if yielding to the impulse of their clients interest, would have changed hands in the argument, had, a new modification been given to the facts, in the case, which whilst it varied its aspect, would not in the slightest degree have removed it from the operation of the principles now attempted to be applied to it. Suppose, for example, 1lio voyage contracted for had been from Baltimore to London, and thence home with a cargo of dry goods, the stipulated compensation of Captain Pawson, in addition to his monthly wages, being three hundred dollars; but no privilege. After the sailing of the vessel, owing to a sudden depression in the price of dry goods, Donnell changes the voyage: directs that eight thousand doubloons he taken on board at London: be transported to Coquimbo: there converted into a full cargo of copper: which was to he sold at Canton, and the proceeds of sale there invested by Pawson in a suitable invoice were to be brought home by him, in the Chesapeake to Baltimore: under such circumstances would Pawson?s counsel, as they now do, insist on the compensation fixed in the original contract, when the emolument incident to the substituted voyage, by universal, usage of trade, were twenty times as great as those which belonged to the original? Impelled by the interests of their client, they surely would require, the accustomed reward for the services rendered. 'Whilst the counsel for the appellant, if influenced exclusively by bis interests, would insist on his discharge, upon payment of the sum specified in the agreement.-—Bui. suppose another ease slightly variant in circumstances, hut the same in principle—A. ship-owner in Baltimore, for a fixed compensation (say B900) employs a captain to uavigate his vessel to the Havana: there to sell his outward and purchase a return cargo. Before, she reaches the mouth of the Chesapeake, her destination is changed; she is ordered on a trading voyage that may last for years; she is to double Cape Horn and return by the Cape of Good Hope; would it he attempted to limit the reward for the captain’s services to the sum mentioned in the original agreement? But to present the question on facts more immediately before us, suppose, the Chesapeake on her originally destined voyage, before she had passed the waters of Maryland, had been ordered to .Worfolk, there to sell her cargo and return to Baltimore; could it he pro-tended that Pawson would in such circumstances have been entitled to the two thousand dollars, and the undiminished value of the Canton privilege!

If the rule contended for either by the appellants or the appellees be a good one, it must work both ways, as well to cases where the length of the voyage is increased, as where it is diminished. In its operation it would always work injustice to one party or the other; and in the latter case, it would, in effect, annihilate that acknowledged and invaluable right in ship owners, of controling the destination of their property; as its enjoyment would be visited by penalties more than equivalent to the losses apprehended from the original, or benefits anticipated from the substituted voyage. Reason, justice and public policy, are never to be lost sight of in the construction of commercial contracts; in unison with which, it would be difficult to reduce the rules insisted on by the parties to this controversy. The principles which should govern cases like the present, according to our views, (in the absence of all commercial usage on the subject,) are these. If by the exercise of this important privilege, a special injury is done to the captain or supercargo, the ship owner must bear the loss; he must make a reasonable indemnity. If on the contrary, by the change of voyage the captain or supercargo be necessarily discharged from the performance of all the duties, for which a remuneration has been stipulated, his claim to such remuneration is thereby extinguished. If a part of the duties have been executed, then such a proportion of the stipulated compensation should be allowed, as appears just, on comparing the services rendered, under the voyage originally contemplated, with those which remain unperformed. For the interpolated part of the voyage the usual compensation must be paid. The parties should be placed, as nearly as may be, in the same condition in which they would have stood, had a previous contract, for the voyage as changed, been entered into between them. To all the customary emoluments of a captain or supercargo, on such a voyage, are those officers respectively entitled.

The County Court, we therefore think erred, in the appellant’s second bill of exceptions, in refusing to instruct the Jury as prayed, that “ the plaintiff (below) is not entitled to any compensation, for the alleged loss of the privilege of bringing home the twenty-five tons from Cantonthat being a privilege, so inseparably connected with the vessel’s destination io Canton; that upon its ceasing, as it did, to be one of the termini of the voyage, the privilege of necessity expired with it.

With the opinion of the court below in the third hill of exceptions we concur. The alleged misconduct of the captain, having produced neither injury nor inconvenience to the appellant, forms no defence to the present action.

According to the views before expressed by us, the County Court were in error in their refusal to grant the prayer in the appellant’s fourth bill of exceptions; and also in the opinion and direction they thereon gave io the jury, and in conformity with the same views, we approve of their refusal of the opinion and direction prayed for in the appellant’s fifth bill of exceptions.

The decision made by this court on the second bill of exceptions, renders it unnecessary for them to examine the opinion of the County Court in the appellant’s sixth bill of exceptions: as by that decision the appellant’s prayer becomes wholly immaterial and irrelevant to the issues in the cause; and let the determination of the County Court be what it might, it would furnish no ground for reversing their judgment. The same may be said in relation to the appellant’s ninth bill of of exceptions.

Of the refusal of the Court below to grant the prayer in the appellant’s seventh bill of exceptions we in part approve and in part disapprove. They were wrong in refusing to instruct the jury that the plaintiffs below were not entitled to recover the said sum of two thousand dollars: but were right in refusing to instruct the jury that they were not entitled io recover “ any part thereof.”

We concur with the County Court in their refusal to grant the appellant’s prayer contained in his eighth bill of exceptions.

There being cross appeals in this case, it now becomes necessary to consider the exceptions on the pari: of the a ppellees. It has been attempted to sustain the opinion of the County Court in the appellee’s first bill of exceptions, on the ground that Edwards Sy Steioart were the agents not of Donnell, but of Pawson, and, that he only must be answerable for their acts. With this doctrine to the extent to which it is urged we cannot concur. It is in proof, that it was the known and necessary custom of trade at Chili and at Coquimbo in the business in which Pawson was engaged, to employ agents on shore, such as Edwards Sy Stewart. That the selection of such agents in this case, was not made bona fide, and with discretion, there is no insinuation. The consequences of the neglect, omissions, or misconduct of Edwards Sy Stewart, in their agency, not imputable to Pawson, must be borne by Donnell; in fact they are his agents, though appointed by, and under the immediate control of Pawson. For their acts therefore, after Pawson’s death, not flowing from any instructions previously given by him, in relation to DonnelVs funds, they only, and to him alone, are answerable. This doctrine is fully sustained by the opinion of this court in the case of Jackson vs. The Union Bank of Maryland, 6 Harr. & Johns. 150, and by the late decision of Judge Hallowell before a special jury in the district court of the city and county of Philadelphia. In refusing, therefore, to give the instruction prayed for,, we think the County Court erred.

The prayer in the appellee’s second bill of exceptions being in the alternative, the court below were right in instructing the jury, that if Pawson in his lifetime made the investment in gold, that he must bear the loss; but in the instruction given on the latter branch of the alternative, we conceive the court were wrong, upon the grounds assumed by us in the consideration of the appellee’s first bill of exceptions. It being a question, under all the proofs and circumstances of the case, fairly open for discussion before the jury; whether the purchase of the gold was made mujer any instruction or authority from captain Pawson. By their decision, they have determined that matter of fact in the affirmative, and consequently overleaped one of the barriers interposed between the court and the jury.

The first branch of the third exception of the appellee’s, is inaccurately drawn; and if construed according to its obvious import, might have been rejected by the court for irrelevancy to the matters in issue before them. It prays an instruction to the jury “that the plaintiff (below) is not entitled to recover of the defendant, the amount of any gold or silver, which the said Pawson, or his agents, the said Edwards &f Stewart, may have put on board the Chesapeake, of their own accord, and without the knowledge, consent or orders of the defendant (below) and which may have been afterwards seized by the government of Chili, and confiscated as having been attempted to be exported contrary to the laws of the land.” The plaintiff did not claim to recover the amount of any gold or silver; on the contrary, the gist of the controversy was his disclaimer of all interest in the gold or the funds with which it was purchased. The prayer was therefore inapplicable to the issue. But give to the exception that construction which has been ascribed to it in the argument; that-it presents the question whether the amount of this gold, could by the jury be discounted from any claim which Pawson might have upon Donnell, and the prayer is too wide to be gratified in extenso. If the investment in gold was made by Pawson in his lifetime, or in obedience to his-directions, then the discount contended for should have been sanctioned by the court; but if the investment were the act of Edwards fy Stewart without orders from Pawson, then the loss of the gold shipped must fall upon Donnell. The instruction of the County Court embraces both alternatives, and is therefore erroneous. In their opinion, on the latter part of this exception, regarding the ratification by Donnell, of the purchase- and shipment of the gold, we concur with the County Court.

Having assented to the decisions of the court below, contained in the appellant’s first, third, fifth and eighth bills of exceptions ; but dissented from those in the appellant’s second, fourth and seventh bills of exceptions; and having dissented from their opinions in the appellees three biffs of exceptions:

Their judgment is reversed and a procedendo awarded.  