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. John Doe ex dem. Į Ejectment in the Supreme Court of Gwinnett County, v. } Richard Roe, Reddin Blocker, } and Benjamin Ivy, Tenants in Possession. 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 ment of writing given by my said attorneys, shall be as binding on me, as if I were personally present.' These words do not import, in my opinion, a power in the attorneys to convey the good and sufficient title, for that was to be done by Mullins. I apprehend that nothing more was intended than that the agents should seek for purchasers, agree upon terms, &c. and that any instrument defining these terms, should be ratified. But if these words do import an authority to convey, it either professes to ratify what is lawfully done (which, if thus done, would then have vested a valid title in the defendant) or, it offers to ratify any instrument, however unknown to the common law, or to the statutes of Georgia, and particularly the abovementioned statute of 1785; which ratification, I presume, would be wholly inoperative, and could not prove a legitimate source of legal title; for, if the common law requires a particular mode of executing a conveyance, neither the covenant of Mullins, nor his ratification would render the title of the defendant valid, if it reposes on a deed which has been made in disregard of that requisition. And so also of all statutory requisitions. The act of 1766 of Maryland, for example, requires a deed to be acknowledged and recorded, in order to be valid even as between the grantor and grantee. Now, if a power of attorney should authorize and covenant that any deed, however informally made by the attorney, should be equally valid with a deed made in compliance with all the requisitions of law; and the deed is either not acknowledged, or not recorded, it could not be read in evidence as a source of title; and the power, the covenant, and the ratification would neither help it, nor estop the original owner from treating the deed as a nullity. We shall presently assign our reasons for believing the deed, 14th November, 1820, from Young and Blake, to be wholly inoperative as a conveyance on common law principles; and the statute 1785, so far from legalizing the conveyance, appears to me to have a contrary effect. All that this statute contemplated was, (for the removal of doubts) to enact that deeds made in virtue of powers of attorney should be valid to pass the estate. But it never intended to introduce as lawful any new mode of executing such deeds. Two things, therefore, are still requisite to such deeds since this statute, viz. first, that the power of attorney should itself expressly confer a power of sale to the attorney; and secondly, that the conveyance when made, should be executed according to the requisitions of law. The power of attorney, now under consideration, does not give even impliedly, a power to the attorneys to convey; and even were there an express power, we shall presently state our reasons for believing that the deed which professes to be made in virtue of it, has not been properly executed. On this first view, in relation to this instrument, I have no hesitation in stating that it does not confer on Young and Blake a power to convey the lot, either in their own name, or even in the name of Mullins, their principal. SECONDLY. If this instrument be a mere covenant by Mullins with Young and Blake, to convey a good title to any lot or lots when drawn (as I think it is) still it is subject to various difficulties; and even if clear of the doubts alluded to, it cannot, as a covenant, be the vehicle of title to the defendants in this cause. Whether we regard the res subjecta of this covenant as a mere naked possibility, or as a possibility coupled with an interest, or as a chose in action; or in whatever other light we may consider it, still it is but a covenant, and can operate only in personam, and be creative, as such, of a personal charge only against the covenanter. Various questions may be here presented, which I shall but briefly examine; for, whatever may be the sound law as to each and all of them, we consider the plaintiffs' title at law as free from all doubt, on distinct grounds, which will be hereafter examined. The questions to which we allude are briefly these : 1. What was the precise nature of John Mullins's right, prior to the drawing of the lottery. Was it a naked possibility, or a possibility coupled with an interest? 2. Was the right assignable at law, and if not, what would be the relief of the covenantees, and the purchasers under them, in equity? 3. If it was a naked possibility, not assignable at law, would a covenant, charging such a right, be in any manner regarded by a court of law? 4. Are possibilities, when coupled with an interest, assignable at law; and if not, would a covenant to assign them be enforced at law by the recovery of damages for not conveying, after the possibility has matured into a vested interest? In the course of the ensuing opinion I shall have occasion to advert to the foregoing questions. THIRDLY. Is this instrument a covenant, coupled with a power in Young and Blake to carry the same into effect? We |