THOMPSON, Circuit Justice.
The ground of the objection to the admission of the deposition of Benedict Dayton in evidence, is so imperfectly stated in the case, that it is difficult to discover upon what it is founded. It is to be presumed that the deposition was taken pursuant to the provisions of the 30th section of the judiciary act (24th September. 1789); but when, or before whom, is not stated. The objection would seem ic be that no proof was made upon the '.rial, that the officer before whom the deposition was taken, was such officer as he described himself to be in the certificate given by him of the taking of the deposition. If this be the extent of the objection, it was properly overruled. Prima facie, the officer is to be presumed, de facto, and de jure, such as he, by his official act, describes himself to be. This is according to universal practice, in taking depositions authorized by statute, unless the statute under which the deposition is taken requires, and points out the evidence that shall accompany the act, showing its authority. The act of congress requires no such authentication; and if, upon the face of the certificate, it appears that the person before whom the deposition was taken, was an officer authorized by the act of congress to take the same, it was all that could be required in the first instance.
This preliminary objection being disposed of, the real and only question in the case is, as to the liability of the defendant for the freight claimed of him in this cause. The difficulty in the case grows out of the circumstance that the vessel which was owned by the plaintiffs was under a charter party to Joseph T. Weyman: and it is contended, on the part of the defendant, that the plaintiff must look to his charter party for his freight, and has no lien upon the caigo for it It is not disputed that, by the general rules of law, growing out of the usage of trade, the cargo is liable for the freight, and that the master is not bound to part with the cargo until the freight is paid; but it is said this rule does not apply when the shipowner has chartered his vessel — that he thereby relinquishes his lien on the cargo, and must have recourse to his charter party. It was pressed upon me by the defendant’s counsel that I should decide this abstract question, and lay down [1315] some general rules as to the lien on the cargo for the freight, when the voyage is performed under a charter party. This I do not feel disposed to do, especially as it would, and ought to be considered as a mere obiter opinion, if not required by the facts in the case; and indeed it is impracticable to lay down any general rules to meet the great variety of cases that must necessarily arise in commercial transactions. Bach case must depend in a great measure upon its own circumstances. Parties are not bound to any fixed and precise stipulations to be embraced in a charter party. They can insert any covenants they please, to answer the end, and effect the object they have in view. There can be no doubt that a shipowner may, by express stipulations as to payment of freight, incompatible with a claim upon the cargo for the same, be deemed to have waived his lien, as if he should by charter party, or otherwise, agree to receive his freight at a time and place, having no reference to the delivery of the cargo, or at variance with such time and place. But, as by the general rules of law, the cargo is liable for the freight, it should be satisfactorily shown that the claim has been relinquished before the shipowner can be required to part with the cargo, without payment of the freight. And even upon the general question, I can discover nothing in this charter party warranting the conclusion, that the claim upon the cargo for the freight, was intended to be relinquished. The charter party is of the hold of the vessel only from Charleston in South Carolina, to Blakely in Alabama, and thence to New-York, for which round voyage the sum of thirteen hundred dollars was to be paid. No apportionment of the freight is stipulated on the voyage from Charleston to Blakely, or from thence to New-York, or any time fixed for the payment. The conclusion of law upon this charter party probably would be, that no part of the freight was payable until the termination of the voyage at New-York; but there is. certainly, no express, nor do I think, any implied relinquishment of the claim on the cargo for the freight A part of the vessel was retained for the benefit of the owner, or at least no part but the hold was embraced in the charter party. The management of the vessel continued under the master and crew appointed by the owner, and was sailed at his expense. He must, therefore, be considered as retaining the possession, command, and navigation of .the schooner; and the charter party is a mere contract to carry a cargo on freight for the voyage therein described.
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THOMPSON, Circuit Justice.
The ground of the objection to the admission of the deposition of Benedict Dayton in evidence, is so imperfectly stated in the case, that it is difficult to discover upon what it is founded. It is to be presumed that the deposition was taken pursuant to the provisions of the 30th section of the judiciary act (24th September. 1789); but when, or before whom, is not stated. The objection would seem ic be that no proof was made upon the '.rial, that the officer before whom the deposition was taken, was such officer as he described himself to be in the certificate given by him of the taking of the deposition. If this be the extent of the objection, it was properly overruled. Prima facie, the officer is to be presumed, de facto, and de jure, such as he, by his official act, describes himself to be. This is according to universal practice, in taking depositions authorized by statute, unless the statute under which the deposition is taken requires, and points out the evidence that shall accompany the act, showing its authority. The act of congress requires no such authentication; and if, upon the face of the certificate, it appears that the person before whom the deposition was taken, was an officer authorized by the act of congress to take the same, it was all that could be required in the first instance.
This preliminary objection being disposed of, the real and only question in the case is, as to the liability of the defendant for the freight claimed of him in this cause. The difficulty in the case grows out of the circumstance that the vessel which was owned by the plaintiffs was under a charter party to Joseph T. Weyman: and it is contended, on the part of the defendant, that the plaintiff must look to his charter party for his freight, and has no lien upon the caigo for it It is not disputed that, by the general rules of law, growing out of the usage of trade, the cargo is liable for the freight, and that the master is not bound to part with the cargo until the freight is paid; but it is said this rule does not apply when the shipowner has chartered his vessel — that he thereby relinquishes his lien on the cargo, and must have recourse to his charter party. It was pressed upon me by the defendant’s counsel that I should decide this abstract question, and lay down [1315] some general rules as to the lien on the cargo for the freight, when the voyage is performed under a charter party. This I do not feel disposed to do, especially as it would, and ought to be considered as a mere obiter opinion, if not required by the facts in the case; and indeed it is impracticable to lay down any general rules to meet the great variety of cases that must necessarily arise in commercial transactions. Bach case must depend in a great measure upon its own circumstances. Parties are not bound to any fixed and precise stipulations to be embraced in a charter party. They can insert any covenants they please, to answer the end, and effect the object they have in view. There can be no doubt that a shipowner may, by express stipulations as to payment of freight, incompatible with a claim upon the cargo for the same, be deemed to have waived his lien, as if he should by charter party, or otherwise, agree to receive his freight at a time and place, having no reference to the delivery of the cargo, or at variance with such time and place. But, as by the general rules of law, the cargo is liable for the freight, it should be satisfactorily shown that the claim has been relinquished before the shipowner can be required to part with the cargo, without payment of the freight. And even upon the general question, I can discover nothing in this charter party warranting the conclusion, that the claim upon the cargo for the freight, was intended to be relinquished. The charter party is of the hold of the vessel only from Charleston in South Carolina, to Blakely in Alabama, and thence to New-York, for which round voyage the sum of thirteen hundred dollars was to be paid. No apportionment of the freight is stipulated on the voyage from Charleston to Blakely, or from thence to New-York, or any time fixed for the payment. The conclusion of law upon this charter party probably would be, that no part of the freight was payable until the termination of the voyage at New-York; but there is. certainly, no express, nor do I think, any implied relinquishment of the claim on the cargo for the freight A part of the vessel was retained for the benefit of the owner, or at least no part but the hold was embraced in the charter party. The management of the vessel continued under the master and crew appointed by the owner, and was sailed at his expense. He must, therefore, be considered as retaining the possession, command, and navigation of .the schooner; and the charter party is a mere contract to carry a cargo on freight for the voyage therein described.
But, independent of this general view of the subject, the present case furnishes abundant evidence to show that the defendant is responsible to the extent of the finding by the jury. He was the consignee of a part of the cargo shipped at Blakely for New-York; and by the bill of lading it was expressly provided that such cargo was to be delivered to him, he paying freight for the same, as per charter party. Upon the trial it .was submitted to the jury, as a question of fact, whether the defendant had expressly promised to pay the freight; and the jury found that he did make such promise; and this finding was fully justified by the evidence in the cause. The captain swears, that on his arrival at New-York, he, at the request of the defendant, delivered to him the charter party and bill of lading, which he kept in his possession several days previous to the delivery of the cargo; and then promised to pay the charter party when the cargo was delivered. The quarantine regulations at New-York required that the cargo, (consisting of cotton,) should be delivered at Brooklyn, which was accordingly done, and the receipt for the same presented to the defendant, and the freight demanded. The defendant then required the receipt for another part of the cargo which had been consigned to John M. Ehrick, as he had to settle the freight for the same with him. This receipt was also delivered to defendant, and he reiterated his promise to pay the freight, and named some few hours thereafter for the purpose; but on the captain’s calling for payment, the defendant refused, unless the amount of the general average was deducted, which the captain declined doing, and no payment was made. Some attempt was made to throw a doubt upon this testimony, by an examination of a clerk of the defendant’s, who swore he was present at several conversations between the defendant and the captain on this subject, and he understood the defendant to promise to pay the freight if the general average was deducted. He however admitted, that there might have been conversations between the parties which he did not hear. His testimony was. therefore, at best, but of the negative kind, And the credibility of Captain Dayton was a question proper for the determination of the jury; and their finding establishes the promise, according to his testimony. It was argued, however, that admitting the promise to have been made, it was void for want of consideration. This objection is witnout foundation. The delivery to, and acceptance of the cargo by the defendant, being tue consignee in the bill of lading, was a consideration abundantly sufficient to support the promise. This promise of the defendant having extended to the full amount of the freight, according to the charter party, renders it unnecessary to inquire whether the shipowner would have a lien upon this part of the cargo for the whole freight, or only for its proportion. Whatever might be the rule of law upon that subject, in the absence of any stipulation in relation to it, it is very evident in this case, that it was the understanding of all parties that the defendant was to pay the whole freight. This was according to the terms of the consignment to [1316] him in the bill of lading; and no other rule is given in the bill of lading by which to calculate the amount of freight upon this part of the cargo. But by the bill of lading for the residue of the cargo consigned to J. M. Ehrick, two cents per pound for the cotton is stipulated as the freight, and to be paid to the defendant, which, was accordingly done as appears by the evidence in the case. All the circumstances, therefore, concur to show, that it was the understanding of the parties that the whole freight reserved in the charter party was to be paid by the defendant. And no injury whatever is done him, as he is amply indemnified by the part of the cargo consigned to him.
The only remaining question is, whether the amount paid for general average ought to be deducted from the verdict. This general average grew out of an injury received by the vessel on the voyage from Charleston to Blakely, by reason whereof the captain was obliged to put into Savannah, where a regular survey was held, tne repairs made, and the general average stated by a notary, at the request of the master. On the arrival of the vessel at Blakely, a Hr. Goodman, who was introduced to the captain as owner of the cargo, represented to him, that it was not convenient for him to pay the amount of the general average, and requested him to take a draft on the defendant for the same, which he accordingly did. No objection whatever appears to have been made to the correctness of the claim for general average. The captain, on his arrival at New-York, presented the draft to the defendant, and received for answer, that he had received orders not to pay it, but wished a short time to consider or get advice relative to the draft, to which the captain assented; and at the time appointed he called on the defendant, when he accepted and paid the draft. Under these circumstances, this can be viewed in no other light than as a voluntary payment, with full knowledge of all the facts. It is not pretended but that something was due on account of the general average, from the owners of the cargo on board, at the time the injury was received. The objection goes only to the amount; and whether even this is well founded, does not very satisfactorily appear from the case; at all events, it is too late as to the defendant to open the account. Nor- can he have any cause of complaint. He has only paid the draft of him who assumed to be responsible for the general average; and this payment made too, after time taken for consideration and advice on the subject. And it is perhaps fairly to be inferred from the ease, that in so doing he acted under the special instructions of the drawer of the bill. For when the bill was first presented to him, he said he had received orders not to pay it; but some few days after he accepted and paid the bill. The cause of this change of determination is not disclosed. But as the defendant professed to act under instructions from some quarter, it is reasonable to conclude they proceeded directly or indirectly from the drawer of the bill, so as to give to the payment his sanction. But whether this be so or not, the defendant is concluded by his voluntary payment, and is not entitled to any deduction from the verdict on this account. I am accordingly of opinion that the plaintiff is entitled to judgment upon the verdict as found by the jury.