We cannot see upon what grounds the count in tort in the declaration can be supported. There has been no condemnation of the plaintiffs’ vessel, and no judicial determinaron of her liability to seizure. The payment made to procure her release, if made without the authority of the defendant, was made under a denial of any responsibility incurred by him; and there is no mode in which it can now be authoritatively settled whether he had subjected her to the penalty. It is not even shown in a satisfactory manner that the person to whom the money was paid, and who signed the receipt, was authorized to receive the payment.
The question whether the statute of Virginia, which the *349defendant is charged with violating, was of any validity and force against a citizen of Massachusetts, or whether it is not so far in conflict with the Constitution of the United States as to be inoperative to create any liability in him, would certainly deserve our most serious consideration, if it became necessary to decide it.
Of the right to maintain the action upon the count in contract, upon the evidence reported, we entertain some doubt. But taking the conversation exactly as it is given, we have, on the whole, come to the opinion that the evidence should have been submitted to the jury. When the plaintiffs learned by the telegraph that the vessel had been seized, they went to the defendant, showed him the communication and requested him to take charge of the matter, and procure the release of the schooner; which he refused to do. They-then asked him what he wished them to do, and he told them to pay the amount of the fine and expenses, and procure the discharge of the schooner from farther detention; which they accordingly did. This is the plaintiffs’ evidence, and the defendant has had no chance to be heard upon it. But if every word of it were exactly true, and nothing else were shown, it might have some legal tendency to satisfy the jury that the payment was made by the plaintiffs at the request and on behalf of the defendant. They claimed that he was the responsible party. He refused, indeed, to take charge of the matter. But they then asked what he wished them to do. To this he did not reply that he had no wish about it; or that it was no affair of his; or that the best course for them would be to pay the fine ; but he told them to do it. A direction to do an act, given to a party claiming that the person giving it was the party in interest, and given in reply to a question as to his wishes, has some of the elements which characterize the employment of an agent. The denial of any obligation by the defendant would not be conclusive against this view, as he might have thought it the best way to avoid an expensive controversy.
The exceptions, so far as ihev relate to the count in contract, are therefore sustained.