Thomas et al. v. Osborn.
And as this defence is not taken in the answer, it cannot be relied on here, even if there was evidence in the record which would justify it.
But there is not the slightest evidence to prove it. On the contrary, it appears by Leach’s testimony, that when he arrived at Valparaiso, with the cargo consigned to Loring & Co., he told them upon what terms he was sailing the vessel, and the deep interest he had in her earnings; and thinks it probable he mentioned the contingent right he had of purchasing one-eighth of the vessel, if he could raise the money to pay for it. The fact that he had been trusted with so much power over such a vessel as the Laura, and would even be received as a partner if he could raise the money, naturally induced Loring & Co. to think him worthy of confidence. And they appear to have aided him in procuring freights, while he confined himself to that business. They evidently had no knowledge of any dissatisfaction on the part of the owners, for Leach states positively that nobody but himself knew of it. And when, therefore, he proposed to purchase cargoes on his own account, which would give the Laura constant employment and full freights, they could have had no reason to suppose that his owners disapproved of it. And when these supplies were furnished, they had strong grounds for believing that his conduct in this respect was known to the owners, and met their approbation; for they had then seen him for nearly two years engaged in this business, during all that time in correspondence with his owners, and occasionally making remittances to them, and drawing bills on them, (as Leach himself states,) which appear to have been duly honored, and without the slightest token of disapproval, as far as Loring & Co. had an opportunity of seeing. There was nothing to create suspicion or put them on inquiry. The advances made to him were made in the regular course of their business, and at the usual rates for interest and commission in that quarter of the world; and they had every reason to believe that they were promoting the objects and advancing the interests of the owners, as the advances made to Leach enabled him to keep the Laura constantly employed with full cargoes, thereby earning large freights, of which the owners were entitled to the one-half. Loring & Co. had no knowledge of the state of his accounts with the owners; and no reason even for suspecting that he did not remit to them their share of the freights, or that he improperly used or withheld it.
The case then upon the points already examined may be summed up as follows:
1st. At the time these repairs were made and supplies fur-
