that this deprived them by implication of another concurrent remedy.

The freight is the proper, it is the peculiar and appropriate fund out of which wages are to be paid, and the personal responsibility of the master is founded not so much on the contract, as on the fact that he is entitled to receive the freight for those to whom of right it belongs. If the seamen have not usually resorted to this fund, it is because the law supplies an easier and simpler remedy. But when a party has several remedies, it lies with him to elect that which he judges most advantageous for himself. On the whole, after the most deliberate examination I have been able to give the subject, I am brought to the conclusion that the seamen have a lien on the freight for their wages, which may be enforced by a libel in the admiralty. This applies to so much of the freight as is due on that part of the cargo which was shipped and consigned to Mr. Thayer.

With respect to the rest of the cargo it is contended that no freight is due except what is secured by the charter-party. By the terms of that instrument the charterers were to victual and man the ship and to pay all charges. It is argued that being owners for the voyage, they are their own carriers, and no freight is due. If this be correct, as the charterers are insolvent and have assigned their whole property, including this cargo, the effect will be that the owners of the vessel will not only lose the whole charter of the ship, but will, through the liability of the vessel, indirectly have thrown upon them the additional burthen of the seamen's wages. To my mind it. appears that this part of the case turns simply on the question whether the lien of the seamen extends to the merchandise, or is confined to the hire for transportation stipulated between the ship owners and the owners of the cargo. If the seamen can enforce their claim against the goods taken on freight, I see no reason in principle why they may not against the goods of the owner or charterer of the ship. The nature of their service is the same, and if it gives them a jus in re, if it creates a lien which adheres to the thing, it adheres to it, whoever may be the owner. Their own labor has been incorporated into the value of the merchandise in one case as it has in the other. The authorities go directly and fully to the point; the merchandise is declared to be hypothecated for wages as well as the freight, that is, as I understand the law, hypothecated to

the wages to the amount of freight due upon it, and the merchant is not entitled to receive his goods until the lien is discharged.

And this leads to an answer to another difficulty which was stated at the argument. The property has been attached by sundry creditors of the charterers, and the cases are now pending in the state courts. It is argued that as different creditors are each pursuing their own rights against this property in different courts, it is a proper rule to prevent collision of judicial authority to give precedence to those who first lay their hands on the fund. This priority might be decisive if both creditors stood in the same relation to this specific property. But the reason no longer holds when the claim of one of the parties is in its nature a privileged claim. The very essence of a privilege is to give to the creditor a preference over the general creditors of the debtor; and if such be the claim of the seamen, the attachment only created a lien on the property subject to such prior incumbrance. It can only extend to the whole right of the owner, and that was to hold the property after discharging the lien.

Another argument is that a bona fide alienation defeats a tacit hypothecation, and the purchaser takes the property discharged of the lien. Brown's Civil and Admiralty Law, 2 vol. 143, is relied upon as sustaining the principle. He says, it is true, that by the civil law things tacitly pledged might be freely alienated before they were arrested. The general rule of the civil law is certainly the reverse; the purchaser takes them cum onere. Brown refers, as authority for this dictum, to the Digest L. 20-2-9, and to Ayliffe's Civil Law. I have not seen Ayliffe, but the law cited in the Digest does not sustain the principle in the terms in which it is stated. The law is confined to a single case, the hypothecation which the landlord has in the movables of his tenant for rent, and merely gives to the tenant the power to manumit his slaves notwithstanding this tacit hypothecation, which he could not do if it was express. But when money is loaned for the repair of a house and the house is sold, it passes cum onere and the hypothecation follows it into the hands of the purchaser ; and such would be a case analogous to the present.

Another objection urged is the general inconvenience of admitting the principle that the cargo is liable to this process. The inconvenience is I think greatly overstated; and in cases

like the present it is far from inconvenient, for it enables the seamen to extract their wages from that specific property which actually owes the debt. But in any case, when goods are attached for security, they can readily be discharged by the owners' entering into a stipulation. It is the uniform practice of the admiralty to order goods which are so attached to be restored to the claimant on his filing a caution with sureties according to the form used by the court. Were it not for this practice the argument ab inconvenienti would be quite as strong against holding the vessel liable.

Upon the whole, my opinion is, that the freight, or that part of the cargo consigned to Mr. Thayer, is bound to the seamen for the payment of their wages to the amount stipulated in the bills of lading; and that they have a lien on that part of the cargo shipped and owned by the charterers for a charge in the nature of freight which overreaches the title gained by the assignees under the assignment, and that of the attaching creditors under the attachment. To the amount of a reasonable freight, at least, it appears to me that the seamen stand in the character of privileged creditors of this property, and are entitled to have their claim first satisfied.

ART. V.-CONSTRUCTION OF A POWER OF ATTORNEY, AND OF A DEED.

Opinion of DAVID HOFFMAN, Esq. of Baltimore, on a case depending in Georgia.

Ejectment in the Supreme Court of Gwinnett County,
Georgia.

Richard Roe, Reddin Blocker, Tenants in Possession. and Benjamin Ivy,

CASE.

THE plaintiff, to sustain the issue on his part in this cause, produced, 1st, The state's original grant to John Mullins, dated October, 1820, for lot No. 176, now in dispute, and which was drawn by said John Mullins in the Land Lottery of the state of Georgia: 2d. A deed of conveyance from the said John Mullins to Murrill Collier, the plaintiff, dated November 16, 1820, which is hereunto annexed, marked No. 2, for the

consideration of $500. And having established the locus in quo, he rested his cause on the said two deeds.

The defendant relied, 1st, On a power of attorney, or document executed by the same John Mullins, dated June 3, 1820, to E. Young and W. Blake, which is hereunto annexed, marked No. 1. 2d. On a deed of conveyance from the said E. Young and W. Blake, dated November 14, 1820, professing to act under and in virtue of said power of attorney or document, and to convey the said lot for $1000, to P. Blake and Jacob Buffington, under whom the defendant claims title. The said deed is also hereunto annexed, marked No. 3.(a)

The plaintiff contends, First, That the power of attorney, or document No. 1, gave no authority to convey. Secondly, That if it be a sufficient power for that purpose, the deed No. 3, which professes to be made under its auspices, was not legally made, and conveyed no interest or estate, as it was not in pursuance of the authority to convey, if given, since the conveyance is not in the name of the principal.

It is also stated to me that no decision has taken place in the state of Georgia, which can rescue any part of this case from the control of common law principles, and established English cases prior to the revolution; and further, that there is no statute of that state which can affect the case, if the following statute, enacted in 1785, be, as it is presumed to be, wholly inapplicable for that purpose. The statute provides 'That all sales, or conveyances of land, which shall be hereafter made, by virtue of any letters or powers of attorney, duly executed, which do, or shall expressly give power to sell all lands, &c. shall be good and effectual in law, as if made by the constituents.' Prince, 113.

Upon the foregoing statement of facts, my opinion is requested whether the plaintiff or defendant has the better title.

OPINION.

After a careful examination of the papers, and most, if not all, of the material British and American cases applicable to the points involved in the case, I am of opinion the law is decidedly with the plaintiff.

In assigning my reasons for this opinion, I shall endeavor studiously to regard all that may be fairly urged on behalf of

(a) These documents are now omitted, their substance being sufficiently set forth in the course of the argument.

the defendant, and shall examine the legal operation of the several instruments, in that order which may be necessary to arrive at a clear statement of the principles, and decisions relied on.

1st. As to the effect and legal operation of the power executed by John Mullins to E. Young and W. Blake, marked No. 1. This instrument must, we presume, operate in one or the other of the four following ways:

First. As a power of attorney authorizing Young and Blake to convey to any purchaser a good and sufficient title to any lot or lots which should be drawn by Mullins in the then ensuing Land Lottery.

Secondly, As a mere covenant, under a penalty, by Mullins to Young and Blake to convey such lot or lots, to any one who should agree with Young and Blake to become the purchasers. Thirdly, As a covenant, coupled with a power in Young and Blake to carry the same into effect.

Fourthly, As a GRANT to Young and Blake of any lot or lots which might be drawn, and a covenant to confirm the title to any purchaser under Young and Blake.

A few remarks on each of the foregoing views of this very inartificially worded instrument will, perhaps, be sufficient to show how inoperative it is in law, under either view, to be the source of title in the defendants.

FIRST. If we attend to the language of the instrument, there will be found no words which import a power in Young and Blake to convey lots, when drawn by Mullins, but just the reverse. It states that Mullins is held and firmly bound, under a penalty, to Young and Blake, to make a good and sufficient title to any lot he may draw. The title and the conveyance are to be made by Mullins. Whether the conveyance, when made, is to be to Young and Blake themselves, or to such persons as should agree with them to become the purchasers, non constat, nor is it now material to inquire. The instrument then proceeds to constitute Young and Blake his attorneys, for him, and in his name to do, and act as they see proper, according to law, in and about the said land. Thus far the instrument is far from being a source of title from Young and Blake to the defendants; for not a word is said of the attorney's power to convey. The instrument, however, proceeds Hereby ratifying and confirming all that my said attorneys may lawfully do in and about said land, any instru