author: Lewis, Ch. J.,

text:
    R. Lyle against Clason, and Clason against R. and J. Lyle.
    If cross suits be referred to the same referees, and they make up their report in each, under the idea tnat one shall be a set-off to the other, tlie court will set aside both, if the suiu be for demands which cannot legally be set off. An agent’s agreement tu give part of the profits arising from merchandise intrusted to him, in order to sell under the contract of another person, is obligatory on his principal.
    These were cross suits, brought under the following circumstances :
    On the first of September, 1793, Robert Lyle engaged with Clason to go to Europe as his agent, and transact his business at a salary of 1507 per annum, New York ^currency, besides his expenses. In consequence [*324] of this arrangment, Robert Lyle embarked on board a vessel of Olason’s called the Hare, destined to Hamburgh, with a cargo of sugar and coffee. In an account made out by Robert Lyle against Clason, he charges his salary for six months, at 427 3s. 4c7 ending in March, 1794. No evidence appeared that Clason, either then, or at any after time, discharged Lyle from his service ; and in an account rendered by him to Robert Lyle, he gives Lyle credit for one year’s salary, at the above rate.
    In March, 1794, at which time John Lyle was employed in the loan office of the United States, Robert was in Paris, and while there, entered into a contract with the French government, ostensibly in his own name, but in fact for the house, and through the influence, of Delard, Swan & Co. of Paris, for the delivery of from ten to fifteen hundred tons of pot and péarl ashes, in any port of France, at 537 sterling per ton, (payable as soon as delivered,) two fifths in bills on Hamburgh, and three fifths in louis d’ors, with a license of exportation for the specie.
    On the nineteenth of the same month, Robert Lyle wrote to Clason an account of the contract, urging him to embark in it, and enclosing a more particular letter from Swan, offering Clason an interest in the contract, by the terms of which the profits were to be thus divided': one third to Delard, Swan & Co. and two thirds to Clason, giving to Lyle for the use of his name, a fifth of the whole; one third of which was to be paid by Delard, Swan & Co. the remaining two thirds by Clason. Eoberfc Lyle, in his letter, cautions Clason against being too explicit in what he may ■ write, for fear of capture, and advises him to let the language he might use accord with the appearance the business might be obliged to assume.
    In consequence of this letter, and without any other in formation of the contract than what the letter of Eobert Lyle contained, Clason, in July, 1794, despatched to France, under the command of one Gideon Gardner, a vessel named the Joseph, laden with pot and pearl ashes, giving [*325] *to Gardner, at the same time, the following letter of instructions:
    New York, 26th July, 1794.
    Capt. Gideon Gardner,

    Dear Sir, — You will please to take charge of the ship Joseph, and proceed as fast as possible to France.. I shall not confine you to any one port, but by all means endeavor to get into any port, the first that you can make, which, if you are fortunate enough in arriving safe, you will immediately apply to one of our American consuls for instructions respecting the customs of the place, and there make sale of your cargo to the best advantage for my account ; perhaps you will be able to malee a sale of the whole to the Republic of France, at á good profit, by taking part in brandy; which, if so, and the brandy should appear to you of a good quality, and at such a price as you might judge would answer to bring here, you will do it j if not, you will endeavor to sell for cash, and if times should appear favorable. in England, yon will remit the greater part of your avails to Messrs. Bird, Savage & Bird, merchants, in London; and ii you don’t find freight from France, or any other article that will answer, you may run to any port in England, and either load there with salt, or get freight, whichsoever you may judge will be most to my interest. However, it is impossible for me to give you any positive instructions, from the precariousness of the times; much will depend on your good judgment on your arrival. I think likely you may see or hear from Bobert Lyle, if so, he will give you very essential assistance in your negotiating your business in that country.
    I am, sir, &o.
    (Signed) Isaac Clason.
    Gardner set sail with the Joseph, and, on the 4th September, 1794, arrived at Cherbourg. From thence he addressed himself to Delard, Swan & Co. and on the 9th of October, 1794, wrote them thus:
    • *Cherbourg, 9th October, 1794. [*326]
    Messrs. Delabd, Swan & Co,

      Gentlemen, — I received yours this morning of the 15th ■ Vendemaire. I wrote you yesterday and enclosed you a receipt from the garde magazin for my cargo. The cost of my cargo I sent you in my letter yours now mentions of receiving; but agreeable to your request, you have it here enclosed. The pot and pearl ashes, as per invoice, cost 12,012?. 3s. . £12,012 3 0
    One barrel ashes delivered more than the invoice, which I received as a barrel of beef¡ average 350 wt at 46s. 8 1
    Hew York currency, £12,020 4 0
    Charges here — paid charterage, 1,000
    do. weighing, 25
    -1,025
    I know of no other charges here; if any to be paid to the commission of commerce, you will please to charge them in the account. If you recollect, you took off the foots of the invoice, when I was at Paris, on the letter I left with you. The letter I wrote- you about my owner you mention of having found it, and say it was enclosed in yours I received this morning, but I expect you omitted it, as it has not come to hand. Please to forward it as soon as possible, as it may make some alteration in my affairs. You mention of the uncertainty of receiving cash or bills for any article from America. I would thank you, in your last to me, to mention whether WE may place full confidence in their paying me in good bills, or cash, agreeable to the contract FOR THE QUANTITY OF ASHES SPECIFIED, AS THAT WAS MY PARTICULAR orders from Mr. Clason. " You have once mentioned it, but your two last letters leave it dotibtful in my mind. • I would thank you to acquaint Mr. Lyle of my proceedings as soon as the bills are obtained. I am only waiting for the bills, and beg you to make all despatch in your power, and am yours.
    (Signed) Gideon Gardner.
    On the 7th of December following, Gardner addressed a letter to Lyle in these terms:

      Cherbourg, 7th December, 1794,
    Dear Sir: I received yours of 15th November. I arrived here 4th September, and proceeded to Paris and delivered the cargo ON THE contract OF 53; and as Mr. 0. was in advance for the whole, I arranged it for D. S. to have one-third, agreeable to the account annexed. They are to settle WITH YOU FOR ONE-THIRD OF WHAT YOU ARE ENTITLED to, and Mr. 0. to settle with you two-thirds, after delivering the cargo, and the receipt presented for payment. There was a suspension of all .payments in bills or money. I returned to Paris, and, after a long and tedious detention, I obtained bills on Hamburgh, though not at the rate agreed for. They are at 90 days, and the exchange 185 livres for 100-marcs banco; which bills I forwarded by post, to Lubert & Dumas, who, I understood, did your business there. I was fearful you were in England by what I had heard, or I would have sent them to you. My orders to them were, to negotiate the bills, and remit the money to B., S. & B., London, on Mr. C.’s account, except there should be an, appearance of war. In that case they are to consult you. (1 was cautioned by Mr. C. in respect to that) I presented "a petition for demurrage, &c., to the amount of 250Z. sterling, which has passed two or three offices, which I wish you to press hard for. I sent two bills by different posts, and wrote you. I have two-thirds of a cargo of prize salt on freight; about 400Z. sterl. freight. It is almost half on board, and am taking in the rest; shall sail in a few days for Mew York, and expect to return as fast as possible with the remainder of the contract. Swan is gone to America. Mr. C. shipped by Captain S. Armour about two hundred tons; Major Conolly is the supercargo. They have sold to individuals for specie. I have wrote B., S. & B. since I sent the bills, and also informed them of this other cargo.

    In the month of March, 1801, Robert Lyle arri ved in Mew York. Olason refusing to pay the two-thirds of the fifth of the emoluments arising from the contract with tho French Republic, Robert, in April, 1801, brought the pre sent action against him, shortly, after which, Clason arrested Robert and John Lyle in the cross suit, for a very consider able sum of money.
    In December, 1801, both causes were, by order of court, referred.
    On the 10th of March following, the attorney for Robert Lyle submitted the following proposition to the attorney of Clason.
    “ As the suit instituted by Mr. Clason against Mr. Lyle, does not include any claim for damages, arising from the misconduct of the latter, and more particularly for damages like those claimed on the business of the Hare, it would be proper (lest these should be made the subject of a future suit on the part of Mr. Clason, on the ground of an objection to the report on the part of Mr. Lyle) that all claims and controversies of this nature be included in the submission already made, which, in a legal point of view, extends only to the subject matter in difference, in the particular suits referred.
    (Signed) “ Thos. L. Ogden, for Lyles.”

    *To this the attorney of Clason subjoined the following memorandum:
    “It is understood that the demands for damages above mentioned, and all claims and demands on both sides, founded on contract, express or implied, are submitted.' To this addition the attorneys of both parties added their signatures, and the consents of the litigants themselves were given in these words: “We agree to the above, and that all the accounts, as already exhibited, shall be reported on by the referees in these causes.
    . (Signed) “I. Clason,
    “ Robt. Lyle.”
    On the 30th December, the deposition of Gardner was taken in behalf of Clason; in which, among other things, Gardner swore that his letter of instructions contained the
      only orders he had from Clason; that Delard & Co. informed him of their contract with the French government, and he contracted with them ; that they informed him the contract was in Lyle’s name, he being a neuter; that they informed him Lyle was to have a gratification; but what it was, he, Gardiner, never knew ; thinking, and being fully assured in his own mind, that it would apply to the benefit of Clason, Lyle being his salaried agent, which consideration induced him, Gardner, to consent to Clason’s being accountable to Lyle for two-thirds of the said gratification, which he expected would be paid by the salary at which Lyle was retained.
    On the 22d of June, the referees made their report in both causes, and in each reported in favor of the defendants.
    On the 20th of July, the report in the cross suit by Clason, was, on motion in court, duly confirmed. Immediately after which, on the 23d of the same month, Eobert Lyle, in order to set aside the report in favor of Clason, made an affidavit, which stated, that the suit instituted by him in April, 1801, was to recover money had and received by Clason to the deponent’s use; that it was referred, and at the meeting of the referees, the deponent, as the basis of his claim, did prove, and make ^appear, [*330] &c., (mentioning the contract and circumstances, and letters detailed in the beginning of the case,) that the net profits on the sales made by Gardner under the contract, were 4,8001 11s. 8d sterling; that the fifth, to which the deponent was entitled, in pursuance of the engagements made with him, was 9601. 2s. 4d. of which, by an original account of Delard, Swan & Co. produced to the referees, it was proved Delard, Swan & Co. had paid their one-third,' according to the agreement with Gardner; but no payment was shown, or pretended to have been made, of the other two-thirds of the fifth, nor was there before the referees any set-off, or counter claim, established against the defendant; that the deposition of Gardner (before shortly stated) was shown to the referees, and Gardner himself personally examined; that he then testified he was, previously to his depart turc from America, with the said cargo in the ship Joseph, made acquainted with the existence of the said contract, BY THE DEPENDANT, and with the terms or price therein stipulated; that he did not consider himself bound by the instructions of the defendant, to deliver his cargo under the contract, nor restricted from doing so, but at liberty to act according to his discretion; that his motives for inquiring from Delard & Co. respecting the reliance to be placed on punctual payment, and also for alleging this to be done at the desire of the defendant, was to hold out the idea of future shipments, and so insure the payment of what had béen delivered, but not settled for; that it was made to appear without any denial, that the defendant had only received his two-thirds of the profit on the contract aforesaid; that the report had, notwithstanding, been made in favor of the plaintiff, under an idea that Gardner had no authority to bind Clason to the payment of anything to the deponent; and that Clason had altered the deposition of Gardner, after it was made, and before presented to the referees, without communicating the alteration to them. On the 6th of October, 1802, Clason made an affidavit to vacate the report in favor of the Lyles, in which he set forth the instituting the two [*331] suits, their being referred; the reports *made in favor of the respective defendants, and that they were duly filed, on the first day of July term last past, so that judgment would, according to the usual course of the court, be absolute the then term; that the reports, according to his information and belief, were drawn up by agreement between the counsel in both suits, that each should draw the report in favor of his own client; that the deponent’s attorney was, on the 23d of July last, served with a copy of an affidavit, accompanied with a notice of moving upon it to set aside the report in favor of the deponent; that the- matters contained in the affidavit went to the merits of the case, respecting which, on account of sickness in the deponent’s family, and absence from [New York, the deponent could not make any explanations to his counsel; that he acquiesced in the report against himself, from a conviction that nothing could be obtained from Lyle, and, therefore, no report could operate more favorably to the interest of the defendant; that the known inability of Lyle to pay, was one reason why the referees were less particular in examining the deponent’s claims against him, than they otherwise would have been, deeming it unimportant; that the two reports were made, and intended by the referees, as set-offs the one against th$ other, and to this end, they instructed counsel to prepare them accordingly: that among other charges against Lyle, the deponent gave in evidence an account rendered by Lyle, in which he acknowledged having in his hands a balance of 244,246 livres in assignats, amounting, at the then rate of exchange, to 4,477 dollars, and that assignats were then never kept on hand, but always converted into property, to avoid depreciation; that since the account so rendered, the deponent never had any further money or mercantile transactions with the Lyles, and that Lyle neither accounted for, nor made any set-off against, the said assignats, but the same were totally unaccounted for ; that the deponent, as soon as the sickness of his family permitted, consulted respecting measures to be taken about opposing the motion, to set aside the report in Lyle’s favor, but there was not time enough left in the term to do it; that but for the application of Lyle to set aside the "’’"report in favor of the defendant, he [*332] should not have applied to set aside that in favor of Lyle, for the insolvency of Lyle made it of no consequence.
    The notice of motion with which this affidavit was accompanied, was repeated qn the. 7th of January, 1803.
    To oppose this Eobert Lyle made, on the 14th of January, 1803, an affidavit, stating, that he and his brother John, the other defendant, acted, in the year 1795, as agents for Clason, in which capacity they had received various large sums of money, the whole of which had been faithfully accounted for; that the suit against Clason was for money due individually to the defendant, on another concern, and for damages for libellous letters and slanders published against him by Clason; that he and his brother were arrested, as before mentioned, and the two causes referred ; that in the suit against the deponent and his brother, (the declaration on which was for goods sold with the usual money counts only,) Clason produced an account, with charges against the deponent and his brother, for breach of orders and neglect of dujfcy, to a very large amount; that on asking for some evidence, by which it might appear those charges were included in the submission, the agreement of the 10th March, 1802, was produced; that the same was intended merely to extend the powers of the referees to claims of the nature of those mentioned in, and warranted by, the declarations to which the deponent had confined himself; that his and his brother’s faithful agency, and due accounting for all sums of money, were fully proved; that in the cross suit against the deponent and his brother, the referees made their report on a conviction nothing was due to Clason, and not from any regard to the deponent’s insolvency or circumstances,- as he was, by the referees themselves, personally informed; that the deponent proved, to the satisfaction of the referees, that the value of the assignats mentioned in Clason’s affidavit, was at the time lie specified, only 2781. 2s. 9d., and not 4,477 dollars; that they were not then usually converted into property, but held by many persons in hopes of their rising, and that the said assignats were not only [*333] not made use of by the *deponent, or kept in his hands, but had, from the time of their first RECEPTION, BEEN PAID OVER BY. HIM TO THE CORRESPONDENTS OF Olason, Bubbert, Freres & Fils, OF Bordeaux, BY WHOM THEY WERE CONVERTED INTO SPECIE, FOR THE USE OF Olason, AND ACCOUNTED FOR WITH GARDNER, WHEN acting AS Clason’s AGENT; that so far from the acquiescence of Clason in the report against him, for the reasons he had assigned, he had, after it was made, purchased protested bills, on which the deponent’s name was as an endorser, and had commenced suits against, the deponent upon them, in order, as he believed, to create a set-off against the verdict the deponent might ultimately obtain.
    After some struggle by Hamilton, on the part of Lyle, to discriminate the two suits, the court was pleased to order the arguments to set aside the several reports to come on together.

      Hamilton,

    for Lyle, after stating the circumstances, and commenting on them, and the affidavits of Clason and Gardner, observed that it was very singular Gardner, without any knowledge of the contract of Delard, Swan & Co., with the French Eepublic, or of Lyle’s intent, should deliver exactly under that contract, and write a letter acknowledging the very interest Lyle claimed under it, and that' Clason should pay him what he was thus entitled to. Gardner, without knowing the contract, goes further; he asks Delard & Co. if the French government will be punctual in paying, and this, he adds, Clason desired him to inquire about. Clason, too, ratifies the engagement of Delard & Co., and Gardner, with Lyle, by adjusting the account with Delard & Co. and receiving under that account the two thirds, by the very express terms of it, charged with the payment of the two thirds of Lyle’s fifth. To argue on the assertions of Gardner would be really superfluous. The referees must have thought Gardner had no right to bind Clason. This idea is clearly repugnant to every principle of law. He that intrusts another with general powers, must abide the result of his agent’s conduct. Therefore, though the report *in favor of Lyle may, and ought to stand, [*334] that in favor of Clason ought to be set aside.

      Hopkins and Troup, contra.
    In making the reports i-n these causes, the referees were actuated by a wish to make the parties even, and leave them just as they were found. For this purpose, the report in our cause was intended as a set-off to the other, and to effect this object, counsel were desired to frame the reports in such a manner as might best obtain the desired end. The various facts appear in the affidavits before the court; but it is material to state, that the party who first made the application to disturb these reports, has not presented any original agreement on which his suit is founded. Delard, Swan & Co., made a contract with the French government, for a certain quantity of pot and pearl ashes: as these articles enter into the composition of gunpowder, it was necessary to have a neutral name in the business. It is difficult to say what ought to be the true relative compensation for the protection a neutral character would afford; but it is to be observed, that Delard & Co. were the real contractors; Lyle a mere nominis umbra: for this, however, he says he is to have one full fifth, one third of it to be paid by Delard, §wan & Co., the other two thirds by Clason. These terms, it is alleged, were stipulated by a formal contract, yet this contract, which Lyle must have had, is never produced; on the contrary, instead of relying upon it, he rests on a letter received from Gardner. In addition to.the inference to be drawn from this fact, it appears that at the very time when this pretended contract was made, Lyle was in Europe, under an annual allowance from Clason, and actually his salaried agent, receiving wages for every service performed. A doubt has been entertained, how far the court can, under the existing circumstances, with propriety set aside the report in favor of Clason; but, surely, whenever they clearly perceive that the referees have proceeded on a mistake, either of law or fact, this tribunal will always interfere. If the court will set aside an award, they will, on the same principles, vacate a report: and whatever argument [*335] will *induce them to do it in one of the now causes, will have equal force in the other; for if the referees have been mistaken in their endeavors to create mutual set-offs, both reports will be set aside; or, on the other hand, if they have acted properly, both will be confirmed, for the court will not, unnecessarily, do away what the referees have done. In making their determination, they considered that the power to sell, and the power to give away profits, were two things: to this latter, it cannot be contended that the authority of an agent or a factor can extend. There is no question about an agent’s right over the property passed to him, but he cannot enter into collateral engagements: he may sell and warrant a title; but not give away the property. If he may, in any degree, do this, he may go on indefinitely, and make away with the whole. He may go on making contracts ruinous to his employer, and contrary to the purposes of his delegation. 'Under a power to sell, if he should be allowed even to exchange, can he be authorized to pay a difference ? The boundary of his power to bind, must be connected with that of his, authority to sell; it must be confined to that, and will not warrant him to give away profits; to pay another sum of money on another account than that of the sale. The point turns on whether Gardner had a competent authority to bind Olason, to pay two thirds of a fifth of the profits. It was derived from the letter of instructions. That letter delegates only a general power. From the exercise of such a power, the claim cannot be supported. That a factor may sell by a broker, and give a commission, if customary, is not contested; but it is contested, that a factor or agent, having only a general authority to sell, can give away a substantive part of the merchandise when it is sold; that he can do so, there is not a dictum in the books. It would be, in fact, to enable him to dispose of a portion of the property he is intrusted to vend. It would give rise to the most serious consequences; a fraudulent collusion would completely destroy the interests of the principal, by-enabling to constitute a sale regular in its form, the precise mode *of which could not be easily [*336] foreseen. The intention of Clason’s agent must be taken' into consideration, and the motives on which he proceeded permitted to explain how he meant to bind liis principal. Gardner never knew what the gratification to be paid Lyle actually was. The inducement he had to consent to any was, that he deemed the amount immaterial; for.as Lyle was in the service of Clason, at a fixed salary, Gardner naturally concluded all Lyle’s labor would accrue to Clason. On the principles of natural justice, the demand cannot be substantiated. He lends his name to Delard, it being necessary to make use of a neuter. The douceur must certainly be according to the situation of the party. The letter to Clason, containing the terms of the contract, does not state the sum to be paid. It is obvious, therefore, that this was never intended. It was considered as too trifling to specify.
    Gardner knew, when he left America, that Lyle was a salaried agent. This is not a case of good faith between an agent and a person totally a stranger, and, therefore, the principal called on to pay ; but we are called upon, on the strength of a little memorandum touched into the foot of an account. It is not to be forgotten that the referees were merchants, and well knew the course of trade and business when the transactions took place, as well as the rights of an agent at a fixed annual allowance. The claim, too, goes by the express name of a gratification; and who ever heard of a partnership share (which this in fact is) ever being known by the appellation of. a gratification ? When was 6007 sterling ever considered as a gratification for a person at a salary of 1807 per annum, New York currency? The referees might, therefore, have justly rejected the claim. No inference can be drawn from Gardner’s letter, speaking of a contract: he might have sailed on one very different. But it was not the mere matter of the contract that was referred; subsequent matters were added, not included in the two causes: this was by agreement of the parties, and how can the court say the full claim on the contract [*337] has not been allowed, when it might *have been counterbalanced by damages and misconduct in the matter of the Hare? This, therefore, being an application to the equitable jurisdiction of the court, they will so mould and blend the two causes as will best answer the ends of justice; and if, in the suit by Lyle, the report be set aside, the court will do it on terms, and vacate the report in that against him.
    Glason declares he never heard what Lyle’s compensation was, till after the suit was brought. But can the court say this particular e]/iim ought not to be disallowed ? After the rules to refer, other matters were added and blended; all contracts, “ express or implied,” were submitted. It cannot be said there were not other claims to extinguish this demand of two thirds of the fifth. It might have been admitted and liquidated by a counter claim. Referees and arbitrators may so consider the subject matter before them, as will best answer the ends of justice: they may take into view matters both of law and of fact; perform the offices of judges and jurors, and are entitled to found their decision either on .law, or principles of general equity, lhe whole of this was delegated to them, and they have determined, on apview of all matters in controversy blended together in one mass, all the objects in these two causes, even in that against both the Lyles, as consolidated before them. Whether they have been perfectly accurate in thus beholding them is immaterial, provided they did so consider them, have acted under that idea, and have attained the real ends of justice, though perhaps by extraordinary means. It was evidently the wish of the parties to set all controversies between them fully at rest, and this has been accomplished. The court therefore, will never say that one report shall be confirmed, and the other set aside. The consideration of the report in the suit by Glason, might have influenced in the making up that in the action against him. That it did so is evident, because the reports were intended as mutual set-offs. Whether this could be supported on strict legal reasoning, has been doubted; but the spirit of [*388] *the case in 3 D. & E. might perhaps, fully warrant the conduct of the referees. It may be a question also, how far Gardner could give such an interest, as might, perhaps, create a partnership between Lyle and Clason.

      Harison and Hamilton, in reply'.
    If, in cases of full and fair investigation before juries, this court will interpose, when a verdict has been rendered on an evident mistake of the law, they certainly will do so in the case of a report made by referees, however appointed. That this reasoning applies to the suit of Lyle v. Clason, is manifest, and it will, therefore, be sent for further examination. With respect to the contract made between Lyle and Gardner, the agent of Clasqn, it is for the court to determine whether it be obligatory or not. The affidavits on the part of Clason do not state that he was ignorant of the contract with the French government, but of the'claim of Lyle. It appears from Lyle’s deposition, and is not controverted, that in March, 1794, letters were written by Lyle and Swan, informing Clason of the contract; of Lyle’s right, and that he (Clason) might share if he thought proper. The letters were produced, and that they were received Clason’s conscience would not let him negative. There was a stipulation to compensate, with a share of the actual profits, for the use of the neutral name of Lyle; when these profits were ascertained, the right of Lyle attached. There is, to be sure, no express recognition by Clason of the contract, but in the September following the date of Lyle’s letter, Gardner arrives in France with exactly such a cargo as the contract demanded. Are there not circumstances enough to think he went there for the purpose of acting under it ? But even allowing there are not, does not the letter of instructions substitute Gardner as owner of the property he carried, and invest him with all Clason’s power over it ? He is to exercise his judgment; do his best; sell for French brandy; sell to the French government, &c.; he had, .herefore, a right to make any contract under the words of the letter. He arrives in France with a power to dispose ; lie finds Delard possessed of a contract in the name of Lyle, under which the power to dispose may be ^exercised with great advantage. He does exercise [*339] it, receives the emolument, settles with Delard & Co., but refuses to do so with us. The inquiry then is, had Gardner a power, and has he exercised it ? That he had, and has, no doubt can be entertained; and as little that it was under our contract; for the affidavit subsequently made by Gardner does not deny, but admits the fact. He says, however, that he knew not what the gratification was. This is extraordinary ; he seems to have forgotten his own letter after a very few months; and though that does not specify the exact sum, the two thirds for which he mentions Clason is to settle, it affords an internal evidence that he did know it much stronger than his own assertion to the contrary. Gardner’s letter of the 7th December, 1794, particularizes two thirds, and gives an account of the sales. Allowing, however, Gardner not to be apprised of the exact sum, as Lyle’s right was ascertained and perfected under the contract to which Gardner consented, acceding to the payment of two thirds by Clason, it follows Clason must be bound. The rule is, that he who places confidence shall suffer by the abuse of that confidence; Clason, therefore, and not Lyle, is to be the loser by Gardner’s actions. It is extraordinary that Clason should have remained ignorant of the amount of Lyle’s claim, four years after Gardner’s return and rendering an account of his transactions. If Gardner, then, having an authority to bind Clason, did so, and Clason has received the benefit of that transaction, Lyle’s right is perfect. The assertion of his being a salaried agent does not affect the claim. His time of service expired in September. Beyond that, Clason himself allows no salary, and Gardner’s letter is dated in December. Gardner himself acknowledges Lyle’s right, by telling Delard to pay one third of it. Had it been otherwise, Gardner would have said “You are not to pay the third of the fifth to Lyle, but to Clason, for whose benefit Lyle is acting.’ There is a further proof in the letter to Lyle. Gardner there says, “ Mr. Olason is to settle with you for two thirds.’ Here, then; is a clear established right in Lyle to receive from Clason two thirds of .the fifth of the [*340] * whole profits. If so, the arbitrators have been guilty of a mistake in point of law, in considering Gardner unauthorized to bind Clason, and this the court will assuredly set right. There is also another ground on which they have clearly erred; for if they have blended the reports in the two causes, or made one enter into the composition of the other, they are manifestly wrong. There is no evidence of anything against Lyle’s right, but the demands in the cause against him and his brother. Though both- causes were referred, the referees have not any right to blend matter extraneous to the respective suits. Eobert Lyle’s action is for his own separate account. That of Clason against Eobert and John Lyle is against the partnership, and the one cannot be set off against the other, being in different rights. This is very wide from the case of a surviving partner, where the rights and duties centre in one person. The agreement does not alter this, for it was merely to allow of such matters as were admissible against the same parties, though not specifically proceeded for; to settle all disputes for which actions might be instituted against the respective defendants ; to allow of damages arising from breach of contracts, express or implied, by the Lyles, to be settled under the reference of the suit against them, in which counts were used not applicable to actions for damages, but never to permit one suit to be set off against the other, or make Eobert Lyle give up the benefit of bis claim against Clason. They did not even take it into consideration, as they considered it not due; the report therefore, in favor of Eobert and John Lyle may well be suffered to remain, and that in favor of Clason be set aside, for the amount of the profits claimed from him not being taken into consideration in the accounts by the referees, now remain unsettled. If, therefore, without including this demand, Clason has not any demand against Robert & John Lyle, the report doespiot prevent Robert from having a demand against Clason. Besides, it is evident the contract must have been known to Clason and Gardner, by the latter’s expressing an intention of returning with the residue. The not mentioning it in the letter *of [*34l] instructions was to avoid the risk of capture and condemnation: fates that were sure to attend a cargo of a contraband nature, going under an avowed contract with the French government. The receipt by Clason, of the proceeds of the cargo, is a ratification of every contract under which it was made, and no disavowal of Gardner’s authority can be permitted. Clason enjoys the benefit, and if any charges do accompany the agreement, it is to be taken cum onere. The allowance of the account by Delard, Swan & Co. is conclusive on the terms.

         Glaister v. Hewer and others, 8 D. and E. 69, is, it is presumed, the .case alluded to; but it seems hardly to bear out the inference.

   Lewis, Ch. J.,

delivered the judgment of the court. These actions were referred under rules of court to three referees, who have reported in each against the respective plaintiffs, declaring nothing due on either side. Motions are now made to set aside the several awards.

In the first cause, in which Lyle is plaintiff, the application is founded on a presumption that the referees have been mistaken in point of law. That *hey have either rejected a contract entered into by the defendant’s shipmaster and consignee, as not obligatory on his principal, or have set off the balances found for the plaintiffs, in the respective causes against each other.

To this the defendant answers, that he was not bound by the engagement of his shipmaster, who was also his consignee, and that if the referees have.made such offset, they were justified on principles of law, and by an agreement entered into between the respective attorneys.

*Oaptain Gardner’s powers being discretionary, he was perfectly justifiable in making the disjDOsition he did of the cargo intrusted to him, and even if he was not, it does not appear that Mr. Clason ever denied that transaction his sanction, but that, on the contrary, he has received, by remittances to Bird, Savage & Bird, of London, the proceeds of the cargo, including his proportion of the profits. Under these circumstances there can be no doubt that Captain Gardner, having turned in his cargo under the contract, bound Mr. Clason to the fulfilment of the terms of that contract; and the latter, having received the full two-thirds of the profits of the adventure, under the stipulation made by his agent, that he should account to Lyle for two-thirds of his douceur, or whatever else it may be called, (for names will not alter the essential quality of the thing,) he is bound to perform such stipulation.

If, therefore, the referees have not admitted this claim, they have erred as to the law, and the award ought to be set aside.

If, on the contrary, they have admitted it, then they must have allowed a balance found due to Clason in the' other suit, as a set-off against it. This also is incorrect; for the suits are not between the same parties and the [*843] *partnership funds should have been first appropriated to the discharge of the partnership debts. The agreement between the attorneys does not authorize such set-off. Its only object is the admission of certain demands which would not fall within any of the counts in the respective declarations, in order to avoid further litigation.

The report, therefore, in each suit, ought, in my opinion, to be set aside. The one against Clason, for the reason above mentioned, and the one in which he is plaintiff, because there is a probability that the referees found a balance there due to him, which he would otherwise lose the benefit of. The judgment of the court is, that both reports be set aside.

Both reports set aside.

       See Combs v. Wyckoff, ante, 147, and the notes.


source: Caselaw Access Project

license: Public Domain

text:
    Brett & Bunn against Hood.
    If a plaintiff gives notice of motion to set aside a judge’s certificate to stay-proceedings, and do not attend to argue, the defendant will bo allowed costs. In no case will the court hear an argument to set aside a judge’s certificate to stay proceedings on a case made, ut semb.

    The plaintiffs had, in the last term, recovered a verdict against the defendant, who, on making a case, had obtained the usual certificate to stay proceedings; to set aside which, the plaintiffs gave notice of a motion, but not attending to argue it,
    Caines,
    for the defendant, on the last day of term, applied for costs, which were ordered.
   N. B. It was, during this term, intimated by the bench, that they would not hear any argument to set aside a judge’s certificate to stay proceedings on a case made.

       But see Ryckman v. Parkins, 9 Wend. 470; Case v. Turner, 2 Wend. 627 ; Lyon v. Burtes, 4 Cow. 539.


author: Per Curiam.

text:
    Rathbone against Blackford.
    An affidavit of service on a person in an attorney’s office, must show that there is a relation between him and the person served.
    The service of a notice in this cause, was stated in the affidavit to have been on a person in the office of the attorney.
   Per Curiam.

It is not sufficient. There does not appear to be any relation between the party served and the attorney. The notice might have been given to a mere stranger. A connection ought, therefore, to have been stated, so that the court might be convinced of a privity between the party to whom the notice is delivered, and the attorney on whom it is meant to take effect. See ante, p. 73.

       See also Code of Procedure, sec. 409.


text:
    *Parkman against Sherman.
    When the notice and all the papers are titled versus instead of ad secfam, it is fatal.
   The Court, in this cause, determined that when both notice and affidavit are wrong titled by reversing the parties and putting the defendant in the place of the plaintiff, the error is fatal; and this case was distinguished from that of Ryers v. Hillyer, (ante, 112,) because there, though the parties were reversed in the title of the notice, yet in that of the affidavit they were rightly named; so that, independent of the object of the notice in that suit, there was a proper . title to rectify the mistake; but in this, where, in every paper the action was as if by the defendant against the plaintiff, there was not anything by which the mistake could be cleared up, and the notice might, therefore, be in a cross suit, where the parties actually were reversed.

       See 2 Cow. 581; 1 Wend. 22; 11 Wend. 178; 3 Caines, 140 4 Cow 60; Code of Procedure, see. 406.


text:
    Milward against Hallett.
    Amendments to a case made must be contained in the case served, or refet to the line and page in which it is proposed to amend. The party served cannot draw up a new case.
    The plaintiff had recovered a verdict against the defendant, on whose part a case had been made, and a copy served on the attorney of the plaintiff. Many inaccuracies being observed in it, a full statement was drawn up on the part of the plaintiff, and served on the defendant’s attorney, who, on receipt of it, objected to the informality of thus making a new case. The usual time for objecting to the amendments having elapsed, the attorney of the plaintiff gave notice of argument, set the cause down for hearing, and served copies of the cases he had drawn up.
    Caines,
    on an affidavit, to which was annexed a copy of the altered case, made on the part of the plaintiff, and also a copy of the service of notice, moved to bring on the argument, or that the plaintiff have leave to enter up his judgment.
    Benson, contra,
    resisted the application, contending that the case now before the court was a new, and not an amended case. (Hun and others v. Bowne, ante, 23.) That the rule allowing amendments to be proposed, did not authorize making an entire new case, like that on Avhich it was wished to proceed.
    * Caines,

    in reply, hoped the court would not [*345] hearken to a distinction which really did not seem to have any solidity. Every case differing from that first served, was in fact an altered or amended case. The objection resolved itself into this, that every amendment must be written on the same piece of paper which held the case served. If so, close lines, narrow margins, and great omissions, would render every case superior to amendment, and totally exclude all that the party who made it might please to reject. It was, however, conceived, every variation noticed, though on a separate piece of paper, was as much an amendment as if the diversity had been marked on the paper containing the case originally made.
   Per Curiam.

Every amendment must be on the case made or refer to the line and page in which it is proposed to be inserted. This, not because it is less an amendment when written on a separate piece of paper, but in order to inform the judge, before whom the cause was tried, where to direct his attention, in case the facts should be disputed, and not reduce him to the necessity of reading over and comparing two cases. The plaintiff can take nothing by his motion.

Motion denied.

       See Eagle v. Abner, 1 J. 0. 332. But see Graham’s Pr., 2d ed. 332.


text:
    Nichol and Thompson against The Columbian Insurance Company of New York.

    If a witness under a commission disclose a collateral fact to which the inquiry was not directed, a second commission mqy issue to examine as to that fact.
    Emott moved for a second commission in this cause, to re-examine the same witnesses to a particular fact disclosed, and from which, as the answers then stood, it might be supposed a deviation had been made, to which point the former investigation was not directed,

      Benson, contra.
    It is now too late; there was never an instance of a second commission to examine the same witnesses. The answer shows the defence that arises on the return, and this is an attempt to do it away.

      Emott, in reply.
    The application may be novel, but it is not unreasonable. Suppose the witness had been examined in court, and had testified to a certain fact which, taken without any explanation, would, have one effect, if explained, another; might not a question be asked to ^explain ? especially when it comes out colla- [*346] terally. Here the deviation was not the object of inquiry The question was simply, to and from what places were you bound ? There may be an apparent, though not real deviation; for there might be a custom to go that route.

         Livingston, v. Delafie, ante, 6, n. (a) Brain v. Rodelicks & Shivers, ante, 74.

   Per Curiam.

Take your commission. The answer being directed to another point, may be explained by an interrogatory to the one which it discloses; for it may assign very sufficient reasons for the iter adopted. The commission, however, must be at the peril of the party.

Rule granted.

       See Fisher v. Dale, 17 J. R. 343.


text:
    Ex Parte Caskaden.
    No interest allowed to run on a judgment against a prisoner in. execution, to impede his discharge under the insolvent law.
   Per Curiam.

A prisoner is entitled to relief under the insolvent law, if the amount with which he stands charged be under that limited by the act, though it would be above the sum specified, if the interest was added; for in the computation, interest on judgments against him is not to be computed.


author: Kent, J.

text:
    Hopkins against Beedle.
    An action is not maintainable for saying one is forsworn; aliter, that he is perjured. In an action for words, if those in some counts be actionable, and those in others not, and entire damages may be given, judgment will be arrested. But if the plaintiff apply, he may, on payment of costs, have a venire de nova.

    This was an action for words spoken of the plaintiff in the discharge of his duty as an overseer of highways in the county of Cayuga.
    In the 1st count, the charge was for saying,. “You have sworn to a lie, and I will prove it.”
    In the 2d, “ You have sworn to a lie.”
    In the 3d, “You have perjured yourself as one of the overseers of the town of Washington, and I can prove it.” The jury having found generally for the plaintiff, a motion was now made by the defendant, for an arrest of judgment, on the following grounds:

      1. That the words in the first and second counts were not in themselves actionable, and no special damage was alleged.
    *2. That it was not alleged in the first and second counts, that the lie, declared by the defendant • to have been sworn to by the plaintiff, had been sworn to, or any oath had been taken by the plaintiff, touching the same, in any court of justice, or before any person having competent authority to administer an oath or oaths by the laws of this state.
    3. That the charge of perjury, alleged in the third count to have been imputed by the defendant to the plaintiff, cannot, by the laws of this state, amount to a charge of perjury, the same necessarily being a charge of violating the promissory oath taken by the plaintiff as one of the overseers of highways of the town of Washington, in the county of Cayuga aforesaid.
    4. That the verdict was general, and that the first and second counts being obviously vitious, judgment could not be rendered for the said plaintiff, for which causes, and for others apparent on the declaration, the defendant insisted the judgment ought to be arrested.
    The case being submitted without argument, the opinion of the court was now delivered by •
   Kent, J.

This is a motion in arrest of judgment. The verdict was general. It is urged on the part of the defendant, that the words in the first and second counts are not actionable, and that it is not alleged that any oath was taken by the plaintiff before any person competent to administer it. It is farther urged, that the charge in [*349] the third count relates only to the promissory *oath of office, for which an indictment for perjury will not lie.

We are of opinion, that the objection to the first and second counts is well taken. Swearing to a lie does not necessarily imply that the party has, in judgment of law perjured himself. It may mean that he has sworn to a falsehood without being conscious, at the time, that it was a falsehood. Actionable words are those that convey the charge of perjury in a clear unequivocal manner, and which admit of no uncertainty. The charge is defective in not stating any court or competent officer, before whom the plaintiff swore. Com. Dig. tit. action on the Case for Defamation, F. 5, F. 18 ; 1 Eoll. Abr. 39, n. 40. It may mean extrajudicial swearing, and, therefore, it is held, that a charge that one is forsworn, is not actionable; because it shall not he intended in a case where perjury may he committed. On the other hand, a charge that one is perjured, is actionable; for that implies the direct legal crime.

With respect to the third count, we are of opinion, that it is sufficient to sustain an action; but as the verdict is general, the judgment must be arrested; the plaintiff, however, on application, might have been entitled to a venire de nova, on payment of costs.

Judgment arrested.

         Actions of slander are of two kinds; first, where the words are actionable in themselves; secondly, where they become so in consequence of some special damage which they have induced. On a review of the English authorities, it would seem that all those words fall within the first division, which impute to the plaintiff treason, (Charter v. Peter, Cro. Eliz. 602; How v. Prim, 2. Salk. 696,) felony, (Cooper v. Smith, 1 Roll. Abr. 77; Jones v. Herne, 2 Wils. 87, overruling 3 Leon. 231,) or a liability to personal or other punishment (1 Roll. Abr. 37,) for any offence of moral turpitude, whether by indictment or otherwise, by the common law, statute law, or custom, Mayne
        v. Digle, 1 Freem. 46.; Walden v. Mitchell, 2 Vent. 266; Hassell v. Cooper, 1 Roll. Abr. 36; Watson v. Clerke, Comb. 138. The words must, says Lord Chief Justice De Grey, “contain an express imputation of some crime liable to punishment, some capital offence, or other infamous crime or misdemeanor.” Onslow v. Horne, 3 Wils. 186. We have narrowed the rule by requiring the charge to be such as “ will subject the party to an indictment for a crime involving moral turpitude, or to an infamous punishment.” Brooker v. Coffin, 5 Johns. Rep. 188. Therefore, as perjury is an indictable offence, involving moral turpitude, and can be committed only by false swearing in a court, or before a magistrate having authority competent to the administration of an oath, to say that another “ is perjured!’ is actionable, (Green v. Long, 2 Caines' Rep. 91; Ward v. Clark, 2 Johns. Rep. 10,) aliter, that he was “forsworn," though it be added “in ’squire A.’s court,” unless it be shown that A. had authority to hold a court, (Stafford v. Green, 1 Johns. Rep. 505,) or that he was forsworn before Justice A. though it would have been otherwise had it been said “before a justice of peace.” Gurneth v. Derry, 3 Lev. 166. Words are also actionable in themselves when they convey a charge of having some contagious distemper then existing; (Carslake v. Mapledorom, 2 D. & E. 473;) aliter, that the plaintiff formerly had such a disease. Taylor v. Hall, 2 Str. 1189. So where they impute to a public officer anything which would disgrace him in his office, and render him unlit for its duties; (Dole v. Van Rensselaer, 1 Johns. Cases, 330; Lindsey v. Smith, 7 Johns. Rep. 359;) or a tradesman with want of honesty, as that he keeps false books; (Backus v. Richardson, 5 Johns. Rep. 476;) or to a professional man, whether in the law or other branch of science, total or general ignorance in his calling; aliter if only in a particular matter or cause. Foote v. Brown, 8 Johns. Rep. 64.
      It is necessary that the words by which the actionable charge is made should be plain and unequivocal; (Harrison v. Stratton, 4 Esp. Rep. 218;) they should allege, not merely an intention, but a fact perpetrated, though the imputation need not be in direct terms; it is sufficient if, in common acceptation, the words amount to a charge; as “I have reason to believe,” (Miller v. T. Miller, 8 Johns. Rep. 77,) the plaintiff “is under a charge for peijury, and the attorney-general has given directions to have him prosecuted for perjury.” Roberts v. Cambden, 9 East, 93. So to say to a witness whilst giving his evidence in court, “ that is false," (M’Laughry v. Wetmore, 6 Johns, Rep. 82,) or of any one that “he has sworn to a lie for which he stands indicted." Pelton v. Ward, 3 Caines’ Rep. 73. But words actionable in them selves cease to be so if spoken in confidence, or in answer to inquiries made for security; (King v. Waring et Ux., 5 Esp. Rep. 14; Weatherston v. Hawkins, 1 D. & E. 110; M’Dougall v. Claridge, 1 Campb. 267;) or if between members of the same church in their course of religious 'discipline; (Jarvis v. Hatheway, 3 Johns, Rep. 180;) or in preferring a complaint before a m* gistrate, or in giving in charge of a constable; (Johnson v. Evans, 3 Esp. Rep. 32; Leigh v. Webb, lb. 165;) or in stating a report of a law case, Curry v. Walter, 1 Esp. Rep. 456; Lake v. King, 1 Saund. 132,) whether the court has jurisdiction or not. Gwynne v. Pool, 2 lutw. 1571, edition by Nelson, 290. So where the words, though prima facie importing a felony, are used in a different sense, (Thompson v. Barnard, 1 Campb. 48,) or from the context show they cannot expose to indictment or criminal punishment, (Van Rensselaer v. Dole, 1 Johns. Cases, 279,) as, he is a felonious thiefi he has stolen my apples off my trees.
      It has been ruled that an action for words conveying a charge of murder cannot be maintained without averring the person alleged to have been killed to he actually dead; (Philips v. Kingston, 1 Vent. 117 ;) but the contrary has been since determined, (Talbot v. Case, Cro. Eliz. 823; Waterman v. Say, cited 1 And. 121; Rivers v. Lite, 2 Str. 1130,) for unless the contrary appear in the declaration, it will be intended; and as falsity and malice are the gist of the suit, the old oases on this point do not seem to be supportable according to the principles of the action; which, though the plaintiff has been acquitted of the murder, permit the defendant, under a plea of justification, to go into the truth of the charge. England v. Bourke, 3 Esp. Rep. 80.
      Where the words are not actionable in themselves, special damage must be alleged; therefore, charging another with adultery affords no cause of action without showing some immediately consequential injury sustained through, or by, the assertion; (Buys and Wife v. Gillespie, 2 Johns. Rep. 115;) which injury must be the legal result of the words; that is, the effect of something lawfully done in consequence of them, and not any tortious act; (Vicars v. Wilcox, 8 East, 1;) because, for such acts, the law gives specific redress. In slander of title the special damage sustained must be set forth; not merely that the plaintiff has lost the sale of his land. Lowe v. Harewood, W. Jones, 196. The evidence, in an action for words, need not be of the very words spoken; it is sufficient to prove their substance. Miller v. M. Miller, 8 Johns. Rep. 74. But if they be spoken of the plaintiff in his office as a magistrate, they must be so alleged; (Dole v. Van Rensselaer, 1 Johns. Cases, 330;) for it is not enough barely to state that the plaintiff was a magistrate. Where there are some good counts and some bad, upon which a general verdict is given, if the judge before whom the cause was tried, certify that the evidence applied only to the good counts, the plaintiff may, upon payment of costs, enter his judgment on them. Stafford v. Green, 1 Johns. Rep. 505 ; see Com. Dig., tit. Action on the case for Defamation; Bac. Abr., tit Slander; Gilbert v. Field, 3 Caines’ Rep. 329, and notes there.

       See also Fox v. Vanderberk, 5 Cow.. 513; Gilman v. Lowell, 8 Wand. 573; Niven v. Munn, 13 J. R. 48; Chapman v. Smith, 13 Id. 80.

        Anger v. Wilkins, Barnes, 478; Smith v. Haward, lb. 480, S. P. Sa per Buller, J., in Eddowes v. Hopkins, Doug. 377; see also Grant v. Astler, Doug. 722. See also, ante, p. 107, note [1].


author: Thompson, J.

text:
    Miller against Livingston.
    Where commissions are allowed to a captain on his sales and investments, this will not entitle to them on goods he carries, to deliver according to a contract antecedently made by his employer, and for which he does not receive payment. Copies of letters, &c., remaining in a foreign court of admiralty, and duly authenticated under the seal of the court, when returned to a commission issued from this court, may be read in evidence.
    This was an action of assumpsit, brought by the plaintiff as the factor of the defendant, for the amount of his commissions on selling a quantity of leather.
    The cause was tried before Mr. Justice Kent, at the New York circuit, in March, 1801, when the following facts were given in evidence.
    That in January, 1795, the plaintiff sailed, in the character of master and supercargo of the ship Somerset, belonging to the defendant, on a voyage from New York to Bordeaux, in France. The vessel was laden with a very valuable cargo, consisting of a variety of articles, besides a quantity of leather, which the defendant had, in an engage-[*350] ment entered into between him and the minister *of the French Republic in the United States, agreed to deliver to the French government. By the terms of the contract, the leather was to be paid for on delivery, and if not, the minister bound himself that it should be paid for at the treasury of the United' States, out of the debt due to the French Republic. In March following, the plaintiff arrived at Bordeaux, and after encountering some difficulties, delivered the leather, which not being then paid for, the plaintiff, according to his orders, made a regular protest against the French Republic, completed the sale of the residue of his cargo, and invested the proceeds in another, with which he set sail for New York; but in the course of his voyage was captured and carried into Bermuda, where vessel and cargo were condemned by the vice-admiralty court of that island. All the papers relating to the outward cargo being on board, were according to the custom of the admiralty in matters of prize, lodged in the registry of the court. To prove, therefore, his letters of instructions, and authorities under which be acted in.the disposal of the leather, the plaintiff offered in evidence the deposition of the registrar of the vice-admiralty court, annexing, under its seal, authenticated copies of all original letters and papers found on board the Somerset, together with a full copy of the proceedings against her and her cargo.
    To the reading of these, the defendant’s counsel made objections, which were overruled, and they were accordingly received.
    From these it appeared that the defendant, in his first letter of instructions, dated the 3d of January, 1795, says, “You have the invoice and other papers that respect the cargo now on board the ship Somerset, and which goes consigned to your address. The commissions upon the sales and investments will be 2 1-2 per cent.” He then proceeds to direct the conduct the plaintiff was to pursue in deliver-' ing the leather, and how he was to manage in order to obtain payment, but no authority whatsoever was given to sell..
    In a subsequent letter, dated the 3d of March, [*351] 1795, *the defendant says, “If you find that you cannot get your money for the leather, agreeable to contract, and you can sell at near the price, it will be best so to do.”
    In the transaction of the ship’s business at Bordeaux, the plaintiff employed under him the house of Barton, Oasson & Barton, at a commission of 2 1-2 per cent, out of the commission of 5 per cent, allowed him by the defendant; but they charged no commission on the leather. It appeared also in evidence, that the whole amount on which a commission was charged, was 59,415 dollars; that the captain’s wages were only 30 dollars per month, though masters for such voyages usually then received 50 dollars a month; and that the plaintiff had signed a receipt in full, at the foot of an account in which commissions for the leather had been charged, for the balance claimed by him from the defendant, after deducting the commissions now demanded; but the words “in full” were written, with a line drawn through them.
    Under these circumstances, the jury found for the plaintiff the amount of the commissions claimed by him, being 2 1-2 per cent, on the invoice cost of the leather delivered, subject to the'opinion of the court, whether he was entitled to any commissions, and at what rate ? according to which, the verdict was either to stand or be diminished; but if the court should determine that no commissions were due, then judgment to be entered for the defendant.
    Hamilton, for the plaintiff.
    The principal question is, whether the plaintiff is entitled to a commission on the leather ? There is another supplementary point, as to the admissibility of the evidence of the admiralty proceedings, from whence we derive the testimony of the defendant’s letter. The right to the commission will depend on the construction of the defendant’s letter. By that, the cargo is consigned to him. -There is a little apparent ambiguity relating to the two and a half per cent, whether to be taken on the sales and investments distributively or copulatively ? But on this there is no actual difference of opinion, for the counsel on the other side agreed to the *dis- [*352] tributive acceptation of the words, with this only exception of bills and money. The dispute now is as to the leather. On the latter there can be no doubt. The circumstances of the case show there cannot be a different construction. The plaintiff was consignee of the whole cargo. The mere being a consignee, according to mercantile law, entitles to commissions; for commission is incident to consignment. He was to have a commission on the sales. The leather was only contracted for here. That contract and the sale in consequence of it were both consum mated by the delivery which the plaintiff had to perform. All writers distinguish contracts from sales. The latter are perfected only by payment, or delivery; and this last the plantiff had to perform, under a load of discretionary power, which he had to exercise, in weighing or delivering, as circumstances might require: besides, he had an alternative power to sell, or deliver; he was, therefore, agent and consignee. The defendant, it is understood, relies on the contract and sale of the leather being here ; therefore, being the effect of his own labor and exertions, that the plaintiff, in this respect, was a mere captain, and cannot claim any commission. This has been already confuted ; the trouble the plaintiff was to have is stated in the letter of the defendant, and it is not presumable that he was to have it for nothing; especially as his situation charged him with a responsibility, which the court can never suppose to be gratuitously undertaken. As general consignee of the whole cargo, commission on all must be implied.
    On the admissibility of the proceedings, the court will observe, that papers often gain respect in consequence of the situation where found. Old papers with wills, &c. are not accredited merely from their antiquity. There can be no doubt that sentences in the admiralty, for the purpose of establishing any fact they contain, and all the proceed* ings incident; are prima facie evidence. The question now' is, whether proceedings relating to the subject of controversy shall be received, when that subject was not the matter before the court there: If decided against the [*353] plaintiff',' it will only turn *him round to a court of equily, which the court certainly will not do. The objection to the admission is the want of proof of the handwriting of the defendant. The court will remember there has been a notice to produce the original; that the letter m question has every circumstance to make it believed a fair and regular document; it was the guide of the plaintiff’s conduct, and has been forcibly taken from him; it was against his consent, and without his concurrence, that it was placed in the archives of the court of admiralty, where it is irrevocably fixed, from whence it can never be removed: it is adduced only as prima fac-ie evidence ; therefore, the defendant was at liberty to rebut its contents. In our own courts a copy thus authenticated would be good evidence, and the almost impossibility of sending a person to authenticate by inspection, is an argument, from the excessive inconvenience, why the evidence should be received. No one can disbelieve the fact. The only difficulty is the technical one, of establishing the hand-writing; but, in the present case, the document ought, abstracted from the rule of law, to have its weight.

      Hoffman and E. Eivingston, contra.
    First, as to the admissibility of the testimony. The court must depart from every rule before they can be inclined to admit it. Suppose the letter itself had come into court, and been produced, would that have been enough to have it read before a jury ? Must not the hand-writing, the execution, as it might be called, have been first established ? Waiving, therefore technical reasoning, shall a letter read in the court of admiralty, and made an exhibit' there, become; in this circuitous mode, evidence here, where" the letter itself, the very exhibit, would not be testimony ? Á. plaintiff cannot, by merely producing a paper, make it evidence Tor him. But the argument is, that if he will first exhibit it in a foreign court of admiralty, the copy shall be better than the original. The difficulties and inconveniences arise, as they ever will, in consequence of departing from established rules, and is not an admissible argument. The law points out a mode, a bill in equity. In the admiralty no proof is made *of the genuineness of the letter, nothing but a [*354] mere naked possession. But even admitting it, the case itself, when plainly stated, solves every difficulty. The leather was only to be delivered in France, not sold; that business was done here. The plaintiff filled two characters, and each consistent; he was to deliver the leather as master; in this capacity he was a mere carrier, the residue of the cargo he was to sell; and here he was consignee, to receive the commission of 2 1-2 per cent, on sales and investments, distributively. The question is, was the leather sold by him ? If so, he is to be paid a commission; if not so sold, he is not entitled to any. He must, according to the counsel’s own position, contract and deliver to make a sale. The plaintiff only delivered; then, on the principles relied on, he did not sell. If paid for in France, 2 1-2 per cent, commission was to be allowed. It is not now paid for, and the plaintiff cannot, on the leather, claim a commission. It can be put in no other shape. The delivery, therefore, was all the plaintiff performed, as to the leather; that was in the line of his duty as captain, and for that he has his wages. These very commissions were charged and relinquished. In the account which makes a part of the case, they were claimed, but on being objected to, were stricken out, and a receipt given for the balance without them.
    Commissions are claimed by the words of the letter of directions; if,- then, they are not plain, explicit, and bearing the fullest proof, they are not to be allowed. One must be ignorant of the English language if they ought; the words are “ the commissions upon the sales and investments.” Was there a sale? Was there a receipt of money or bills ? Was there an investment? In these three cases, commissions were to be allowed, not otherwise. But the qualification of consignee confers, it is said, wonderful rights; that the mere character implies a title to commissions. Consignment alone gives no commissions; it is complying with that consignment, and the conditions on which made. Commission is the child of sale ; the result of bene[*355] fit to the parties, not the mere placing in *the hands of another, when nothing is done; still less when what is done is contrary to orders. The instructions are, “ to be delivered, their paying you on delivery.” Eon-obedience of this positive order is an answer to the claim of commission. The contract being in the alternative, for payment here or in France, is nothing to the purpose. The defendant was to decide on the place, and he chose it to be at that of delivery, and on delivery only. That the wages were less than ordinarily given, was the natural and reasonable consequence of circumstances. The plaintiff was made consignee of the cargo, and had he obeyed his instructions, by receiving payment on delivery of the leather, and investing the proceeds for an India voyage, as was contemplated, his emoluments would have been excessive.. He has acted in contradiction to his orders, and, therefore, instead of commissions, is liable to responsibilities. As to the evidence, it may be procured in another way.
    Hamilton, in reply.
    It will be necessary to add only one or two observations to the reasons for admitting this testimony. It is not asked to be received as conclusive, but only as prima fade evidence, subject to be rebutted. It, therefore, is not put on the same footing as a letter with the hand-writing, or execution, as it has been termed, fully-established ; in this last case it would be final. The determination of the court is of immense importance; but they will recollect that the original letter was not voluntarily brought into a court to forward the interest of the party adducing it. The question is, whether an agent on the sea, in the prosecution of his business, in possession of all the papers and documents necessary to establish his agency, and claims, shall not, when despoiled of them, give a copy from a court of admiralty, where they are deposited, in testimony, as aprima facie evidence? for it is confined to that. The circumstances with which the proposition is qualified, the court will please to observe, take away all idea of fabricating papers to make use of them as testimony. Then will the court turn us round to a bill in equity ? We deny that the plaintiff was to deliver only; he was to ^exercise discretion, and that takes him out of the [*356] line of a mere carrier. The bill of lading is filled up to him as consignee; he had even a power to sell the leather on certain events, and his character of captain did not necessarily destroy or merge that of consignee. The prospects and hopes of a secondary voyage, wé contend, the court cannot infer as a consideration. It does not appear ; a mere chance cannot, by intendment of law, become a consideration for meritorious services, when there is a written contract. The captain could not be a mere carrier; for if he had been so, delivery to him would have been delivery to the French Eepublic, and he could have no power to withhold. On the receipt, it is necessary only to state that it was first written “in full:” so it stood when the balance was struck, including the commissions on the leather. When those were objected, to, and deducted, the words “ in full” were struck out, by drawing a pen through them. Why ? Because, as the commissions were not paid on the leather, the receipt was not in full, and those commissions are the object of the present suit.

       The rule of evidence as to copies, is laid down by Lord Holt, in Lynch v. Clerke, 3 Salk. 154, to be this: “Wherever the original is of a public nature, and would be evidence if produced, wn immediate sworn copy ig equally so; where the original is of a private nature, a copy is not evidence unless the original is lost, or burnt." See The Queen v. Sutton, 10 Mod. 14. This rule, as to originals of a public nature, is not confined to records; therefore, the copy of a Bank of England bill, remaining on file, is good evidence. Mann v. Carey, 3 Salk. 155. It would seem that journals of congress, corporation books, parish register, transfer books of companies, and other papers, which savor more of a private than a public nature, as not appertaining to the community at large, when deposited or kept in some particular place from whence it would be inconvenient to remove them, and under special custody, come within the principle which governs copies of originals of a public nature. The King v. Lord George Gordon, Doug. 593, note (3). A copy of a deposition sworn at a judge’s chambers, delivered out by his clerk, and attested by his signature is good evidence without proof of an examination with the original; (Duncan v. Scott, 1 Camb. 101; see also MNeil v. Perchara, 1 Esp. Rep. 263 ;) and an examined copy of an affidavit on file, in which perjury was committed, is evidence to prove it, without adducing the commissioner before whom.sworn, or proving his handwriting. The King v. James, Carth. 220. A court of vice admiralty is a court of acknowledge! jurisdiction by all countries, and all nations act, or assume to act, under the law by which it is constituted; for this reason, and arguments to be deduced from the vis major, as well as ah inconvenienti, the evidence offered in the text may well be supposed Omni exceptions major. To prove an examined copy of a record, it is sufficient for a witness to swear that he examined it while another read the record. Reid v. Margison, 1 Campb. 469; Giles v. Hill, lb. 471; Lynde v. Judd, 1 Esp. Rep. 264, by Day, note (1), S. P.

       A copy of anote of hand refused to be read, there being no proof that the original note was genuine. Goodier v. Lake, 1 Atk. 446. N. B. The rules of evidence are the same in equity as at law.

       Or purchase. Beawes, 45.

         In Westminster Hall a receipt is only prima fade evidence; and, if joint, it may be shown that the money was received by one only of the parties by whom it is signed. Stratton v. Rastall, 2 D. & E. 366. But where hr full of all demands, and given with a complete knowledge of all circumstau' ces, lord Kenyon held it to be a conclusive bar, and that a person should not be at liberty to rip up a transaction that he had so closed. Bristow v.
        Eastman, 1 Esp. Rep. 174, This distinction, however, is not recognized by us; for a receipt in full of all demands is not conclusive, but merely prima fade evidence, open not only to paroi explanation, but contradiction. Ensign v. Webster, 1 Johns. Cases, 145,; House v. Low, 2 Johns..Rep. 378; Tobey v. Barber, 5 Johns. Rep. 68; Putnam v. Lewis, 8 Johns. Rep. 389.

   Thompson, J.

delivered the opinion of the coart. The two questions presented for the opinion of the court in this case are,

1st. As to the admissibility of the evidence taken under the. commission.

2d. Whether the plaintiff was entitled to any commissions on the leather delivered to the French government ? and if to any, what rate was to be allowed ?

I shall pass over the first point, as to the admissibility of the proof, the other being the principal question, and going to the merits of the action. Admitting the letters to have been sufficiently proved, I think they will not warrant a construction that the plaintiff was to have commissions upon the leather. By the contract made between the defendant and the French minister, respecting the leather, as appears from the plaintiff’s, witness, no condition was annexed, or option left with the defendant to sell, in case payment was not made. The stipulation, on the [*357] ^defendant’s part, was absolute to deliver it; and in case payment was not made on delivery, the French minister bound himself to pay for it at the treasury of the United States, out of, the debt due to the French Republic. This being the. contract with respect to the ■leather, it is hardly presumable that it could be the intentian of the parties that the captain was to receive a commission of 2 1-2 per cent, for such delivery, especially as he was master of the ship, and received pay as such, though 20 dollars a month under the usual allowance. But he was always to receive commissions on a very valuable cargo, (amounting to 59,415 dollars, exclusive of the leather,) and this was probably the reason why his wages, as master, were reduced. These circumstances are mentioned as aiding, in some measure, the explanation of the letters, which may, perhaps, appear doubtful. In mercantile language, I be. lieve, it is well understood that commissions mean an allowance or compensation made upon the sale or purchase of goods; and in conformity to this understanding we find the defendant’s letter, which is made the foundation of this action. He says, “ the commissions upon the sales and investments vñll be 2 1-2 per cent." Has there been a sale or investment of this leather ? Certainly not; neither was there, by the first letter, any authority or direction given the plaintiff, on any event, to sell the leather; he was to deliver it to the agents of the French government. I confine myself now entirely to the first letter, because that is the only one that speaks of any commissions. We do not find the plaintiff, when the French government declined receiving the leather, offering it for sale, but he repeated his efforts to deliver it until he succeeded. This serves to show what his conceptions were with respect to his directions for disposing of this leather. We find also that Messrs. Barton Casson & Barton, joint agents with the plaintiff in the sale of the cargo, made no charge of commissions upon this part of the cargo. It is true, the defendant, by a letter dated the 3d March, 1795, two months after the vessel sailed, directed the plaintiff, if he could not get the money for the leather, agreeable *to contract, to sell it, if [*358] he could get nearly the same price. This letter, however, could not alter the plaintiff’s right to commissions under the former contract, which was consummated previous to the sailing of the vessel. * If this letter gave directions to ’ make a different disposition of the cargo than his former instructions would warrant, and he had accordingly done so, it might, perhaps, have afforded a ground for a claim of commissions, or an action on a quantum meruit for such services; or if he had received the money from the French government, and invested it according to his first instructions, he might have been entitled to his commissions on such investments. But all this is completely answered by showing that he made no sale or other disposition of the leather, but barely delivered it to the French government, pursuant to the first directions of the defendant. The opinion of the court, therefore, is, the plaintiff was only entitled to commissions on the sales and investments of the cargo; that here has been no sale or investment of the leather, but only a delivery of it to the French government, according to the defendant’s contract with their minister, and, of course, no commissions due him; and that judgment ought to be for the defendant.

Judgment for the defendant.

       Sec Jackson v. Shephard, 6 Cow. 444,