
    The City Council of Charleston against William Boyd.
    Charleston,
    May, 1817.
    byTiiif cieX'Te1questing that a for®fe“ se5ma.n should be admitrinVhís°P¡tal (¡S? ?°effscshaag“'°jf Is SV!1ndathe default of the foleft the seaman,to pay the amount due to the instiJuiises
    This case was tried before Mr. Justice Grimké, at Charleston, in January Term, 1814.
    A foreign seaman by the name of Peters, belonging to the British schooner Intrepid, was, at the request of the defendant, through his clerk, A - , * received at the Charleston Marine Hospital, i i where he remained live hundred and ninety-tour # days, at the expiration of which time a hill charging the defendant at the rate of seventy-five cents per day, amounting to 445 dollars 50 cents, was presented to him for payment. He offered to pay the seaman’s expenses at that rate up to the time of the schooner’s clearing out from the port, hut refused to pay the balance, and this action was brought to recover the amount. It appeared in evidence, that previous to the year 1805 the hospital had been wholly under the direction of the government of the United States; but that since that time the City Council had taken upon themselves the exclusive management and control of it, and appointed directors to superintend it. That by a contract entered into with the government of the United States, American seamen were received there without any charge; but one of the rules of the institution forbade the reception of foreign seamen, unless a charge of 75 cents per day was. previously secured. The Jury on this evidence found a verdict for the plaintiff for 375 dollars, , and a motion is now made for a new trial.
    Regarding this institution as under the exclusive control of the City Council, and as one of a private nature, there can be no question that the defendant is liable; so that the case made by the defence appears to me to turn wholly upon the question, whether it is to be so considered, or as an institution belonging to, and exclusively under the control of the government of the United States. Although the care and protection of disabled seamen is, and ought to be, a sacred care with the general government, yet no law now exists, and I presume never will until charity can be made to produce a revenue forbidding private establishments of this nature. I take it then for granted, that the City Council had a right to establish such an institution; and finding them in the exercise of all the powers necessary to the management and control of it, I presume it to be one of that character until the contrary is shown. By a memorial of the City Council to the Legislature of this State, which is recited in the act of the Legislature of the 21st of December, 1804, it is said that a proposition, authorized by the President of the United States, had been made to the City Coum eil, to pay over to them 15000 dollars for building a Marine Hospital in the vicinity of Charleston, and to pay over to them all the Hospital moneys to be collected in the said port, on their taking upon themselves the direction of the said Hospital, and defraying all expenses attending the same. If this proves any thing, it appears to me that it is a direct abandonment, on the part of the government of the United States, of every control over the institution, and that the City Council have the right to make such rules and regulations as they may find necessary for its government. I will not take upon me to say, nor is it necessary, that Congress have not the power to control the measures of the City Council in relation to the institution; it is- sufficient for the present purpose, that they have not done so. It is said, however, that the act of Congress, (Vide Gray don's Dig. 387,) providing for the admission of foreign seamen into the Hospital's within the United States, extends to this and all other institutions of the same character, which makes the master liable for a charge of seventy-five cents per day; and admitting, therefore, the undertaking of the defendant, it was for the debt of the master, and is, therefore, within the statute of frauds. If this institution was under the direction and control of the United States, there would be some propriety in this argument; but I think I have already shown, that if we are to Judge from the evidence adduced in this case, that it is not; and it is, therefore, inapplicable. But even admitting that- the act of Congress might be considered as intended to control the government of this institution, anil that the remedy given by it is the only one which it has in relation to the subject of foreign seamen, and yet í think the liability of the defendant is equally obvious. The seaman in question, although a foreign seaman, was not received into the Hospital on the application of the master of the vessel, but of the defendant. The act only extends to cases, and gives a remedy when they have been received on the application of the master; to a demand, therefore, upon him for this charge, it would have been a good objection, that it was not at his request that he had been received in the Hospital.
    I am of opinion, therefore, that the motion for a new trial ought to he refused.
    
      Colcock and Cheves, J. concurred.
   Nott, J.

I have taken a different view of this case from a majority of the Court, and 1 will state the grounds of my opinion in a few words. I deem it quite immaterial whether this institution is to be considered as belonging to the United States or the City Council. The United States have jurisdiction of the subject matter of this suit. To provide for sick and disabled seamen, is the duty of the general government, and not of the individual States. Congress have passed several acts for that purpose, and have vested the President with a general superintending power over the subject. 1 Graydon's Digest, 384, 5, 6, 7. Twenty cents per month is retained of the wages of American seamen, which is to constitute a fund, to be used and employed by the President, as circumstances shall require, for their benefit and convenience. The President of the United States, by virtue of the power so vested in him, did authorize a contract to be made with the City Council to take -upon themselves the direction of the said hospital ; and also directed all the hospital moneys collected in the port of Charleston, to be paid over to them for that purpose. In addition to this, the Legislature, upon the application of the City Council, passed an act authorizing them to impose a duty of six cents per tori on all ships and vessels of the United States, in aid of the same object, anno 1804, whiclx’was sanctioned by Congress the 28th March, 1806. The City Council have therefore, by express contract, become the agents of the President, quo ad hoc, and have consented to be subject to, and governed by, the law's of the United States on this subject.

In addition to the provisions made for sick and disabled American seamen, it is further enacted, that each and every director of the marine hospitals within the United States shall, if it can with convenience be done, admit into the hospital sick foreign seamen, &c. Every seaman, so admitted,is made chargeable with seventy-five cents per ¿ay, during the time he remains there, which the captain is made liable to pay, and the collector is prohibited to grant a clearance to the vefiSe| un{il {be money shall be paid. This provision is imperative on the director, “ if it can conveniently be done;” and if it cannot with convenience be done, he has no right to admit them at all. Mr. Boyd, therefore, required of the City Council, what, in one event, they had no right to refuse — in another, what th«y were not authorized to grant. But when they did admit this man, they must have done it subject to the provisions, and upon the terms of the act. They had the security in their own hands, and it was their neglect if they did not make use of it. Although the act does say he shall be admitted, on “ application of the master or commander,” an application by the consignee, in his behalf, must be considered a compliance with the spirit and meaning of it. If a personal application was necessary, the defendant is not liable; for it was his clerk, and not himself, that applied.

An agent is never personally liable, where his agency is known, unless he make himself so expressly. The defendant had no personal interest in the transaction. It was undertaking to answer for the debt or default of another, and ought to have been in writing. The case would admit of, and perhaps deserves, a fuller consideration than I have given it. But as a majority of my brethren think the verdict ought to be supported, I have contented myself with giving this general view of the grounds on which my opinion has been formed.

Prioleau, for the motion.

Gadsden, contra.

Bay, J.

I concur with my brother Nott.  