Weightman v. Caldwell. Knight. Crockford, 1 Esp. 190; Saunderson v. Jackson, 2 Bos. & Pul. 238; Welford v.. Beazley, 8 Atk. 503; Stokes v. Moore, 1 P. Wms. 771, note; Lemayne v. Stanley, 3 Lev. 1; Coles v. Trecothick, 9 Ves. 289; Morison v. Turnour, 18 Ibid. 175; Clason v. Bailey, 14 Johns. 484. Making a mark is signing. Harrison v. Harrison, 8 Ves. 185; Addy v. Grix, Ibid. 504; Wright v. Wakeford, 17 Ibid. 454. And quære? whether, if a party be in the habit of printing, instead of writing his name, the insertion of his name in print, in a bill of parcels, is not, of itself, a signing within the statute? Saunderson v. Jackson, 2 Bos. & Pul. 238. But at all events, if in a bill of parcels, printed with the name of the vendor, he insert the name of the vendee, this is a sufficient signing and recognition of the printed signature, to bind the vendor. Schneider v. Norris, 2 Maule & Selw. 286. And quare, whether sealing, in the presence of a witness who attests it, is equivalent to a signing within the statute? Lemayne v. Stanley, 8 Lev. 1; 1 Roll, Abr. 245, § 25. Sealing, without signing, would certainly not be a good signature, within the statute of wills. Wright v. Wakeford, 17 Ves. 454; Ellis v. Smith, 1 Ves. jr. 11. [By the parties to be charged by the contract, &c.] The word party or parties to the contract, is not to be construed party, as to a deed, but person in general. Welford v. Beazley, 3 Atk. 503; s. c. 1 Ves. 6. Therefore, where a party, or principal, or person to be charged, signs as a witness, he shall be bound. This, however, is true, only where such person is conusant of the contents of the agreement, and it would be a fraud on the other party, not to be bound by it. Ibid.; Coles v. Trecothick, 9 Ves. 234. And if a person properly authorized as an agent to sign an agreement, sign it as a witness, it is sufficient to bind his principal, if it appear, that he knew the contents of the instrument *and signed it, recognising it as an agreement binding on his *96] principal, as if he say, "witness A. B., agent for the sellers;" and the paper be signed by the purchaser or his agent. Coles v. Trecothick, 9 Ves. 234. Lord ELDON, indeed, in this case, collects the doctrine to be, that where, either the party himself, or his agent, ascertains the agreement by a signature, not in the body of the instrument, but in the form of an addition to it, that signature, though not a signing as an agreement, yet sufficiently ascertains the agreement, and is sufficient within the statute of frauds. Ibid. [Or their agents thereunto lawfully authorized.] The agent who is authorized to sign, need not be constituted by writing. Rucker v.. Camayer, 1 Esp. 105; Coles v. Trecothick, 9 Ves. 250; Laurenson v. Butler, 1 Sch. & Lef. 13; Merritt v. Clason, 12 Johns. 102. As to who is an agent lawfully authorized, it has been held, that a broker employed by one person to sell goods, who agrees with another person for the sale of them, and makes out and signs a sale-note (containing the substance of the contract), and delivers one to each party, is a sufficient agent for both parties. Rucker v. Camayer, 1 Esp. 105. And where a broker had been employed by one party to sell, and by another, to buy goods, and had entered and signed the terms of the contract in his book, it was determined, that such entry and signature was a contract binding upon both parties; although one of them, upon having a bought-note sent to him, which was a copy of the contract, immediately objected to the terms, and returned the note. Hayman v. Neale, 2 Camp. 337. An auctioneer, who writes down the name of the purchaser at a public sale, has also been considered the agent of both parties. No doubt ever could be, whether he was the agent of the vendor, for that was quite clear; and the cases turn on the point, whether he is also the agent of the purchaser; and it is settled in the affirmative. Simon v. Motivos (or Metivier), 3 Burr. 1921; 1 W. Bl. 599; Bull. N. P. 280; Rondeau v. Wyatt, 2 H. Bl. 53; Hinde v. Whitehouse, 7 East 558. Independently of the circumstance of the auctioneer being considered as a sufficient agent of both parties, and his writing down the *name of the purchaser, as a sufficient *97]. memorandum and signature, it has been sometimes said, that sales at auction are not within the statute of frauds, on account of the peculiar solemnity of that mode of sale precluding the danger of perjury. Per Lord MANSFIELD and Mr. Justice WILMOT, in Simon v. Motivos, 1 W. Bl. 599. But this idea is repudiated by Lord ELLENBOROUGH, in Hinde v. Whitehouse (7 East 568), though he does not question the principle, that The Sybil. the auctioneer is to be considered as the agent of both parties, and his memorandum as a sufficient note in writing; but only denies that auctions, abstractedly considered, are note within the statute. (Ibid. 572.) There is some slight difference in the phraseology of the 4th and 17th sections of the statute, which has been made the ground of a supposed distinction, in this respect, between the sale of lands (which is included in the 4th section), and the sale of goods in the 17th. The nisi prius cases, of Symonds v. Ball (8 T. R. 151), and Walker v. Constable (1 Bos. & Pul. 306) seem to inculcate the doctrine, that the auctioneer writing down the name of the purchaser, is not sufficient to satisfy the statute in a sale of lands (Buckmaster v. Harrop, 7 Ves. 341); Lord ELDON, however, has questioned the authority of these cases in Coles v. Trecothick (9 Ves. 249); and in White v. Proctor (4 Taunt. 208), it was expressly held, that an auctioneer is, by implication, an agent duly authorized to sign a contract for lands, on behalf of the highest bidder. (s. P. Emmerson v. Heelis, 2 Taunt. 28.) And that his writing down his name in the auction book, is a sufficient signature to satisfy the statute of frauds. (Ibid 1 And whether the first-mentioned cases are to be considered as law, or not, in respect to a sale of lands, there can be no doubt, that in a sale of goods, the auctioneer writing down the name of the purchaser, is a signing by an authorized agent of the parties. But the agent must be some third person, and one of the contracting parties cannot be agent for the other. As, where the plaintiff made a note of the bargain, and the defendant overlooking him, while he was writing it, desired him to make an alteration in the price, which he accordingly did. It was contended, that the defendant, who was the party sought to be charged, had made the plaintiff his agent, for the *purpose of signing the memorandum. But Lord ELLENBOROUGH was of [*98* opinion that the agent must be some third person, and could not be either of the contracting parties; and therefore, nonsuited the plaintiff. (Wright v. Dannah, 2 Camp. 203. See also Bailey v. Ogden, 3 Johns. 399.) : The SYBIL DANGERFIELD et al., Claimants. in a case of civil salvage, where, under its.peculiar circumstances, the amount of salvage is discretionary, appeals should not be encouraged, upon the ground of minute distinctions of merit, nor will the court reverse the decision of an inferior court, unless it manifestly appears, that some important error has been committed. The demand of the ship owners for freight and general average, in such a case, is to be pursued against that portion of the proceeds of the cargo, which is adjudged to the owners of the goods, by a direct libel or petition; and not by a claim interposed in the salvage cause. APPEAL from the Circuit Court of South Carolina. This was a case of civil salvage, in which the district court decreed a moiety of the net proceeds, as salvage, to be distributed in certain proportions among the salvors; which was reversed by the circuit court, on appeal, and one-fourth decreed as salvage, to be divided among the respective salvors, in proportions somewhat different from those ordered by the district court. The cause was submitted to this court, without argument. February 15th, 1819. MARSHALL, Ch. J., delivered the opinion *of [*99 the court. This is a case, in which, under its peculiar circumstances, the amount of salvage is discretionary. In such cases, it is almost impossible, that different minds, contemplating the same subject, should not form different conclusions as to the amount of salvage to be decreed, and the mode of distribution. Appeals should not be encouraged, upon the ground of minute distinctions; nor would this court choose to reverse the decision of a circuit court, in this class of cases, unless it manifestly appeared, that The Caledonian. some important error had been committed. In this particular case, the court is well satisfied, both with the amount of salvage decreed by the circuit court, and with the mode of distribution; and the decree is, therefore, affirmed, with costs. Decree affirmed. A question afterwards arose, upon a claim of the ship-owners for freight, &c. February 26th. JOHNSON, Justice, delivered the opinion of the court.In this case, the attention of the court has been particularly called to the claim interposed by the ship-owners, for freight and average. This court, as at present advised, are very well satisfied, that no freight was earned, and that average may have been justly claimed. But in the case then depending, the circuit court could not have awarded either of those demands. The question is inter alios. There was no pretext for claiming either, as against the salvors; and the ship-owners ought to *have pur*100] sued their rights by libel, or petition by way of libel, against the portion of the proceeds of the cargo which was adjudged to the shippers. These parties were entitled to be heard upon such a claim, and could only be called upon to answer, in that mode. But the ship-owners are not yet too late to pursue their remedy. The proceeds are still in the possession of the law, and may be subjected to any maritime claim or lien in the court below. Claim rejected. The CALEDONIAN: DICKEY, Claimant." Seizure. A vessel and cargo, which is liable to capture as enemy's property, or for sailing under the pass or license of the enemy, or for trading with the enemy, may be seized, after her arrival in a port of the United States, and condemned as prize of war; the delictum is not purged by the termination of the voyage. Any citizen may seize any property forfeited to the use of the government, either by the munici pal law, or as prize of war, in order to enforce the forfeiture, and it depends upon the government, whether it will act upon the seizure; if it proceeds to enforce the forfeiture by legal process, this is a sufficient confirmation of the seizure. February 3d, 1819. APPEAL from the Circuit Court of Rhode Island. *101] This cause was argued by D. B. Ogden, for *the appellant and claimant, (a) and by the Attorney-General, for the United States.(b) February 16th STORY, Justice, delivered the opinion of the court.-This is the case of an American ship, which sailed from Charleston, South Carolina, with a cargo of rice, bound to Lisbon, about the 28th of May 1813, under the protection of a British license. In the course of the voyage, the ship was captured by a British frigate, and sent into Bermuda for adjudication. Upon trial, she was acquitted, and her cargo being prohibited from exportation, was afterwards sold by the agent of the claimant, at Bermuda, (a) He cited The Nelly, note to The Hoop, 1 Rob. 219; The Two Friends, Id. 283; The Thomas Gibbons, 8 Cranch 421, to show, that the vessel could not be seized as prize, after her arrival in port, nor by a non-commissioned seizer. (b) Citing The Ariadne, 2 Wheat. 143. The Caledonian. and the proceeds were remitted for his use. The ship sailed from Bermuda for the United States, in November 1813, and upon her arrival at Newport, `in Rhode Island, was seized by the collector of that port, as forfeited to the United States. The libel contains four articles propounding the causes of forfeiture; first, for the ship's having on board, and using a British license; secondly, for the ship's being engaged in trade with the enemy; and, thirdly and fourthly, for using a British license, contrary to the act of congress of the 2d of August 1813, ch. 56, prohibiting the use of British licenses. It is unnecessary to consider the last two articles, *which are [*102 founded upon statutable prohibitions, because it is clear, that the two preceding articles, founded on the general law of prize, are sufficient to justify a condemnation jure belli, the proof of the facts being most clearly established. The only questions which can arise in the case, are, whether the ship was liable to seizure for the asserted forfeiture, after her arrival in port; and, if so, whether the collector had authority to make the seizure. And we are clearly of opinion, in favor of the United States, on both points. It is not necessary, to enable the government to enforce condemnation in this case, that there should be a capture on the high seas. By the general law of war, every American ship, sailing under the pass or license of the enemy, or trading with the enemy, is deemed to be an enemy's ship, and forfeited as prize. If captured on the high seas, by a commissioned vessel, the property may be condemned to the captors, as enemy's property; if captured by an uncommissioned ship, the capture is still valid, and the property must be condemned to the United States. But the right of the government to the forfeiture, is not founded on the capture; it arises from its general authority to seize all enemies' property, coming into our ports, during war: and also from its authority to enforce a forfeiture against its own citizens, whenever the property comes within its reach. If, indeed, the mere arrival in port would purge away the forfeiture, it would afford the utmost impunity to persons engaged in illegal traffic, during war, for in most instances, the government *would have no means of ascertaining the offence, until after such arrival. [*103 In respect to the other point, it is a general rule, that any person may seize any property forfeited to the use of the government, either by the municipal law, or by the law of prize, for the purpose of enforcing the forfeiture. And it depends upon the government itself, whether it will act upon the seizure. If it adopts the acts of the party, and proceeds to enforce the forfeiture by legal process, this is a sufficient recognition and comfirmation of the seizure, and is of equal validity in law, with an original authority given to the party to make the seizure. The confirmation acts retroactively, and is equivalent to a command. Decree affirmed, with costs. 61 The LANGDON CHEVES: LAMB, Claimant. Seizure. A question of fact, upon a seizure in port, as a droit of admiralty, for trading with the enemy, and using his license. The circumstance of the vessel having been sent into an enemy's port, for adjudication, and afterwards permitted to resume, her voyage, held to raise a violent presumption, that she had a license, which the claimant not having repelled by explanatory evidence, condemnation was pronounced. *10.4] February 3d, 1819. APPEAL from the Circuit Court of Rhode Island. This cause was argued by Hunter and * Wheaton, for the appellant and claimant, (a) and by the Attorney-General, for the United States. February 16th. STORY, Justice, delivered the opinion of the court.This case differs in no essential respect, from that of the Caledonian. The brig sailed from the United States, on a voyage to Lisbon, with a cargo of provisions, in May 1813, and was captured by a British sloop of war, and sent into Bermuda, where she was either not proceeded against as prize, or was acquitted on trial; and after a detention of about six weeks, was permitted to resume her original voyage; and on the return-voyage from Lisbon, with a cargo of salt, was, on her arrival at Newport, on the 16th of December 1813, seized by the collector of that port, as forfeited to the United States jure belli, for using a British license, and trading with the enemy. There is no positive proof, that the brig had a British license on board; but we think, that under the circumstances, there arises a violent presumption that she had such a license, and that the burden of proof to repel this presumption rests on the claimant. He has not attempted this, in the slightest degree, there being a total absence of all evidence in his favor; and therefore, as the case remains with all its original imperfections, the decree of the circuit court is affirmed, with costs. *105] Decree affirmed, with costs.' *The FRIENDSCHAFT: MOREIRA, Claimant. Prize.-Domicil. The property of a house of trade, established in the enemy's country, is condemnable, as prize, whatever may be the personal domicil of the partners. APPEAL from the Circuit Court of North Carolina. The shipment in this case was made on the 31st of March 1814, at London, by the house of trade of Moreira, Vieira & Machado, of that city, on account and risk of the house, to Mr. Moreira, one of the partners, who was a native of, and domiciled at, Lisbon, in the kingdom of Portugal. The shares of the two partners, Messrs. Vieira and Machado, who were domiciled in London, were condemned as prize of war in the court below, without appeal. The share of Mr. Moreira, the partner domiciled at Lisbon, was condemned in the court below; but the claimant was allowed to make further proof to be offered to (a) They cited The Amina, 3 Rob. 167; The Lisette, 6 Id. 387; The Joseph, 8 Cranch 451, to show, that the delictum of contraband, of trading with the enemy, and navigating under his license, are all purged by the termination of the voyage. 1 For a further decision in this case, see 2 Mason 58. |