text:
    *Mitchell, Plaintiff in error, v. Smith.

      Illegal contract

    A bond given in consideration of the purchase of land in Luzerne county, under the Connecticut title, is void.
    Error from the Court of Common Pleas of Luzerne county, where an action of debt had been brought by Smith, for the use of Cash, against Mitchell, upon a single bill, or scaled note, dated the 11th of March 1796, for $483.33, payable in three years, with interest. The defendant pleaded payment, with leave to give the special matter in evidence: and thereupon, issue was joined. On the evidence, it appeared, that the note was given for 1500 acres of land, lying in the township of Smithfield, in the county of Luzerne, out of the seventeen townships, which Smith conveyed to Mitchell, at the time of the sale ; that the land had been granted to Smith by the committee of the Susquehanna company ; that Mitchell had been in the actual and peaceable possession of the land from the time of the sale ; and that he had a full knowledge of the law of April 1795, against intrusions under the Connecticut title, as well as of the general dispute relative to lands in Luzerne county.
    On the trial, in April term 1802, the defendant below insisted upon three points : 1st. That the consideration of the contract was illegal; and therefore, the bill or note was void. 2d. That the transaction was against the policy of the law. 3d. That the consideration had failed.
    Rush, President, in his charge to the jury, delivered an opinion against the defendant, on all the points; and concluded with stating, that “ if the jury are of opinion that the defendant knew, and was acquainted with, every material circumstance, relative to the bargain, it is their duty to make him pay the money, with the interest thereon. But if they are of opinion, that he was, in any degree imposed upon, or purchased ignorantly ; in that case, they ought to find a verdict in his favor.”  To this charge, a bill of exceptions was ^tendered and allowed; and thereupon, the present writ of error was instituted.
    The argument for the plaintiff in error turned upon this single proposition
    : “that as the transaction, on which the debt arose, was prohibited by the law of Pennsylvania, the bill or note (being made the evidence of the debt) contravened the policy of the law, and was, in its nature, a nullity : so that no court of Pennsylvania would sustain an action upon it; though the statute did not expressly declare it to be void.” 3 Dall. Laws, 703; Cowp. 39, 729, 734; 3 Burr. 1568; 1 T. R. 55; 1 Ves. 276; 3 Burr. 2234; Yelv. 197; 2 Lev. 174; 1 P. Wins. 185; 5 T. R. 120; Doug. 671; 3 T. R. 456; 4 Ibid. 466; *5 Ibid. 599; Cowp. 341; Carth. 252; Cro. Eliz. 788; Hob. 165; Esp. 88; 2 Wils. 133; 32 Hen. VIII., c. 9; Moore 564. ^

      W. Tilghman, for the plaintiff in error. Rawle, for the defendant in error.
    For the defendant in error,
    his right to recover the debt was maintained on various grounds : 1st. Because the bill or note is good at common law. 2d. Because the maker of the note received a consideration for it. 3d. Because it was given without fraud or imposition, under a knowledge of all the circumstances. 4th. Because it would be good, even as a voluntary bond. 5th. Because it is not rendered void by any statute ; the acts of assembly subjecting an intruder to indictment and eviction, but never, in any instance, declaring a contract for the land, or a security for the price, to be unlawful and void. 6th. That it is not against the policy of the law (as in the cases cited upon smuggling) to allow a recovery of the debt. 3 Dall. Laws, 703; 4 Ibid. 198; 1 Burr. 545; Cro. Jac. 643; 1 Show. 398; Cowp. 524, 650; 2 Atk. 251; 2 Ves., jr,, 422; 1 Wils. 229; 4 Burr. 2069; 3 T. R. 418; 2 Burr. 1077; 3 T. R. 456; 6 Ibid. 61; 7 Ibid. 601; Doug. 670; 1 Bos. & Pul. 3; 1 Esp. 18.

       A contract in fraud of the positive laws and public policy of the United States, which exclude an alien from any degree of interest in an American registered vessel, is void. Maybin v. Coulon, 4 Dall. 298; s. c. 4 Yeates, 24; Duncanson v. McClure, 4 Dall. 303. The courts of the United States cannot lend their aid to establish a demand founded upon a violation of the laws of the United States. Though an individual is not bound, in all cases, to take notice of the revenue laws of a country to which he does not belong; yet, if he make a contract to be completed in a foreign country, and such contract is repugnant to the laws of that country, he is bound to take notice of them. Cambioso v. Maffet, 2 W. C. C. 98. A contract for the purchase of goods, the importation of which is prohibited by law, is void, and the price cannot be recovered in an action against the buyer. Condon v. Walker, 1 Yeates 483. A promise to give a bond for a certain sum of money, is void, if made on the sole consideration of stopping aprosecution for fornication and bastardy. Shenk v. Mingle, 13 S. & R. 25. A promissory note, given by an applicant for the benefit of the insolvent laws, to a creditor, to induce him to withdraw his opposition, is contrary to the policy of the law, and void. Baker v. Matlack, 1 Ash. 68. An action founded upon a transaction prohibited by a statute, cannot be maintained, although a penalty is imposed for violating, the law, and it is not expressly declared, that the contract is void. Seidenbender v. Charles, 4 S. & R. 157; Biddis v. James, 6 Binn. 329; Primer v. McConnell, cited, Id.; Barton v. Hughes, 2 Bro. 48. The test whether a demand connected with an illegal transaction, is capable of being enforced at law, is, whether the plaintiff requires the aid of the illegal transaction, to establish his case. If a plaintiff cannot open his case, without showing that he has broken the law, a court will not assist him, whatever his claims in justice may be upon the defendant. But if the illegality be malum prohibitum only, the plaintiff may recover, unless it be directly on the forbidden contract. Swan v. Scott, 11 S. & R. 164.

       The following was published, as a copy of Judge Rush’s charge:
      Rush, President. — With respect to the first point, that is, the illegality of the bond, this depends upon a sound construction of the intrusion law, and has already been decided by this Court. The act is penal, and made the offences described in it indictible. The offences being wholly new and created by the act, the parties can be punished in no other way. The law says not a word with respect to contract; but points its penalties only against the persons of the offenders. Laws similar to this have been enacted in England, against forestalling, regrating and selling pretended titles; all which inflict penalties on the persons of those who shall transgress them; but it has never been supposed, that they affected or impeached the validity of the contract between the parties, in the smallest degree. For these reasons, it is the opinion of the court, that the intrusion law has not destroyed or vitiated the contract between David Smith and Reuben Mitchell.
      The 2d reason assigned by the counsel for the defendant to set aside the contract, is, that it is against general or public policy. When the legislature pass a law upon a particular subject, it is the duty of the court to see it carried into execution in the manner described in the law, and in no other. Thus, when the English parliament enacted, that whoever shall buy any goods, wares, &c., on the way to market, &c., shall be liable to fine and imprisonment, the judges did not think proper to go a step beyond the law; though there cannot be the least doubt, that the crime of forestalling was repugnant to sound public policy, and against the policy of the law itself. The contract was admitted to be valid and binding between the parties, though they were punishable for their conduct.
      It is readily acknowledged, that every such contract and sale of land, with delivery of possession, is contrary to the interests of the commonwealth of Pennsylvania: and so is every forestalling contract or sale of a pretended title, repugnant to the interests of that country, where the laws forbid such contracts, and inflict penalties on those who enter into them. The law itself supposes the contract to be injurious to the interests of the country, and against the policy of the law which forbids the act to be done. But unless the law expressly destroys the contract, I do not conceive a court of justice is authorized to do it on the ground of its being against the good of the public.- I.f would be an assumption of legislative power.
      The 8d and last reason for setting aside this contract is, that the consideration has failed. When we speak of the consideration of a contract failing, it is understood, that the bargain turns out different from what was expected. The rule is, where the party is deceived, or imposed upon, he is not obliged to pay his money. For example, if A. sells a Susquehanna title to B., who is ignorant of the total defect of such title; there is no doubt B. may avoid the sale, on the ground of want of consideration, and imposition. But that is not the case now before the court. Here, it is admitted, that Mitchell knew of the intrusion law, and the circumstances of the dispute relative to titles in this county. Mitchell, therefore, bought with his eyes open, and now comes forward to be relieved from his contract. In such case, what is the language of a court of chancery ? If both parties meant what they did, and were acquainted with the whole circumstances of the bargain, and if neither was deceived, the agreement must stand. The maxim of law is true, that where two persons engage in an illegal transaction, the condition of the defendant shall be preferred; but as this maxim supposes the contract to be illegal, it cannot apply here.
      Upon the whole, gentlemen, if you are of opinion that the defendant knew and was acquainted with every material circumstance relative to the bargain, it is your duty to make him pay the money, with the interest thereon; but if you are of opinion, ho was in any degree imposed upon, or purchased ignorantly, in that case, you ought to find a verdict in his favor.
      The jury retired a few minutes, and returned with a verdict in favor of the plain tiff, for the amount of the sum mentioned in the note, with interest.

       Avery’s Executors v. Jenkins.

   After great consideration, the judges delivered their opinions at large, seriatim, pronouncing the contract, on which the bill or note was given, to be unlawful, immoral and against the public policy of the law. They, therefore, decided, that no court of justice in Pennsylvania could lend its aid to effectuate such a contract; and, consequently, reversed the judgment of the court of common pleas.

Judgment reversed.

         The same principle has been decided in Maybin v. Coulon, and in Duncanson v. McLure; both cases of contravening the act of congress, for registering vessels of the United States.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Passmore v. Pettit & Bayard.

      Awwrd by umpire.

    An umpire chosen under a rule of reference, by the referees, must not rely upon the information reported by them, but he must examine the case himself, in the presence of the parties.
    An award will be set aside, if the referees have refused a party sufficient time to procure necessary evidence.
    All the testimony should be heard, and all the documents seen by the parties, in the presence of the referees.
    This case came before the court, on exceptions to the report of referees, who had exercised the right of appointing an umpire, under tho rule of reference. After argument, by M. Levy, for the plaintiff, and by McKean and Dallas, for the defendants, the Chief Justice delivered the unanimous opinion of the court, for setting aside the report, on the following grounds :
   By the Court.

— 1st. When an umpire is chosen by referees, he stands in the same situation, precisely, as the referees themselves, both with respect to powers to be exercised, and duties to be ¡performed. He may examine, # _ and he ought to examine *the witnesses, and the documents, for him- ' -• self, in the presence of the parties, without relying solely upon the information or facts reported by the referees. This rule was settled in the case of Falconer v. Montgomery (ante, p. 232); and it is highly important to the administration of justice, that it should be observed. It has not been observed upon the present occasion; and therefore, the report cannot be confirmed.

2d. Again, it is essential to the fair and satisfactory investigation of facts, that an opportunity should be afforded to obtain and produce the necessary evidence, however distant the scene of the transaction may be. A court of justice will always allow time for the execution and return of a commission, when witnesses reside abroad. In the present case, the question turned upon the seaworthiness of a ship ; and time was asked by the defendants to produce testimony from Halifax, where she had undergone a survey and repairs. This was refused, without any reason to suppose, that the object in asking it was mere delay and vexation. The refusal has deprived the party of the means of defence before the referees ; and we cannot think it just, to place him out of the reach of all remedy, by confirming the report.

3d. On the subject of the reference, all the testimony should be heard, all the documents should be seen, by both the parties, in the presence of the referees. But it appears, that a paper, or ex parte affidavit, was produced before the referees and umpire, respecting the seaworthiness of the ship (the very gist of the controversy), which the defendants never had an opportunity of reading or examining. The referees and umpire are, undoubtedly, honest men; but they have erred in judgment ; and their errors cannot be sanctioned, by an affirmance of the report, which their errors alone may have produced.

The report was, accordingly, set aside, and the judgment entered upon it opened.


author: The Court,

text:
    Bell v. Beveridge.

      Marine insurance. — Abandonment.
    The plaintiff, a resident in Philadelphia, received notice, in August 1793, of the seizure by the French government, of goods which he had insured ; soon afterwards, he left home, in consequence of the appearance of the pestilence in Philadelphia, and did not return until about the 19th November next ensuing, and then went to South Carolina on business ; it was not, however, until the 21st January 1794, that he intimated to the underwriters an intention to abandon, when he stated in a letter to them, “ that he meant to abandonHeld, that by such a declaration, the plaintiff had made his election to abandon; and that there is no particular form of abandonment, though it must be made within a reasonable time after intelligence of the loss has been received: what is a reasonable time, is a question of fact.
    This was an action upon an open policy, dated the 10th of March 1798, in goods on board the Andrew, Captain Macken, bound from Charleston to Amsterdam. The ship sailing on the voyage insured, was captured, on the 11th of April 1793, by a French privateer, and carried into L’Orient, where, after a few days’ detention, she was acquitted and restored. On the 26th of April 1793, however, the French government seized the cargo for public use, promising to pay a liberal fixed price for it to the owners ; but after repeated solicitations, the consignee, in 1796, *abandoned the [*273 hope of seeing a performance of the promise, and returned to America. It appeared, on the trial of the cause, that the master’s protest, dated the 17th of May 1793, had been transmitted to the owners of the ship, in Philadelphia, under cover of a letter from Amsterdam, dated the 17th of -May 1793 ; and the notice of the capture was given by them to the plaintiff, at least as early as the month of August 1793. The yellow fever soon after-wards made its appearance in the city; and the plaintiff retired, with his family, into the country, on the 10th of September ; but in common with the rest of the citizens, he returned after the calamity had ceased, about the 19th of November ; and then went on a journey of business to South Carolina. It was not, however, until the 21st of January 1794, that he intimated to the underwriters an intention of abandonment; and even then, he did not directly abandon, but only stated, in a letter, “ that he meant to abandon.”
    The general question was, whether the abandonment, had been made in due season, to entitle the plaintiff, in this case, to recover for a total loss ?
    The defendant contended,
    that the words of the letter from the plaintiff, did not amount to an actual abandonment; but only imported an intention to abandon ; that by such equivocal language, he was enabled to take for himself all the chances of an advantageous settlement in France : while the defendant was not empowered to pursue the property on account of the underwriters ; that, independent of the ambiguity of the letter, intimating his intention to abandon, the abandonment was not made in a reasonable time, on the 21st of January 1794, notice of the loss having been received in August 1793 ; and that the excuse of the yellow fever, though it would apply to a personal interview, would not apply to a communication by writing. Park, 161 — 2; 2 Dall. 284; 1 Burr. 349; 2 Ibid. 697; 5 Ibid. 1241; 3 Atk. 195; 2 Burr. 683; 2 Ibid. 1198, 1214; Doug. 219; 1 T. R. 608; 1 Esp. 237; Park, 192; 2 Mag. 175, 416; Park, 92, 82, 81, 172.
    The plaintiff's counsel insisted,
    that under the peculiar circumstances of the case, the abandonment was made in due season; and that the terms of the abandonment were sufficiently positive.
   The Court,

in the charge to the jury, stated, that no particular form of words was necessary to constitute an abandonment; that by declaring he meant to abandon, the plaintiff had made his election, and could never afterwards retract. That an abandonment must be made within a reasonable time ; but that what constituted a reasonable time, was a question of fact, depending upon the relative situation of the parties, the time and the place, *after notice to the assured of the loss ; and that in the present case, there did not appear to have been any design to waive L the right of abandonment, though its exercise was suspended by a public calamity, and other fortuitous occurrences.

Upon the whole, the opinion of the Court was in favor of the plaintiff, and the jury gave a verdict accordingly.

         For a better report of the charge of the court, which was delivered by Shippen, C. J., see 1 Binn. 52, note.


text:
    Kingston v. Girard.

      InsuroMce. — Deviation.
    If a vessel, which has been captured, carried out of her course, and afterwards released, remain, for the purpose of trading, a longer time than is necessary to prepare for her voyage, at the port to which she has been taken by her captor, it will be a deviation.
    Case on a policy of insurance, to recover for a total loss by capture. On the trial of the cause, two points of defence were urged : 1st. That there had been a deviation ; inasmuch as the vessel traded at the port to which she was carried by the captor. Park, 311, 312, 313, 295. 2d. That the extra-expenses for wages, provisions, &c., during a capture and detention, were not a subject of general average ; but a charge on the freight. Park, 54-55 ; Abb. 285, 3; 1 East, 220; Jones v. Insurance Company of North America (ante, p. 246).
    It was admitted by the plaintiff’s counsel, that after the vessel was carried into the port of the captor, and before she was liberated, the extra-expenses were nob a subject of general average ; but they insisted, that the expenses, subsequent to the liberation, were general average. Park 54 ; 2 Marshall, 462, 1,4.
   By the Court.

— If the vessel, after her release, remained at Martinique, to which she was carried by the captor, longer than was necessary to prepare for her voyage, and for the purpose of trading, it was a deviation ; and the policy is void.

Whether the extraordinary expense incurred for seaman’s wages, provisions, &c., during the detention of the vessel, upon a capture as prize, is a subject of general average, forms an important question. In the case of Jones v. Insurance Company of North America, we decided, unanimously (and our opinion is strengthened by mature reflection), that such expenses, during an embargo in a foreign port, in the course of the voyage insured, are not general average, but a charge upon the freight, for which the underwriters upon the freight alone must furnish an indemnity. We think, that the same principle embraces the case of detention for the purposes of a quarantine. In the case of detention, by capture as prize, there is not, however, any direct authority to decide the responsibility ; and the principle of the other cases does not embrace it. Elementary writers, Beawes and Magens, differ in opinion. It is, upon the whole, a safe, and the best, rule, to consider, whether the expense is incurred for the general *2751 benefit of all the parties interested in *ship, cargo and freight. If -* it is, then all the parties should contribute to defray it. If it is not. (as in the cases of embargo and quarantine, where the delay and expense are submitted to, merely that the vessel may earn her freight), then, the party who alone enjoys the benefit, should alone sustain the loss.

Lewis and Hare, for the plaintiff. Ingersoll and Rawle, for the defendant.

       Jones v. Insurance Co., was reversed by the high court of errors and appeals, in 2 Binn. 547


text:
    McFadden v. Parker et al.

      Disoha/rge of indorser.

    If the indorsee of a note, after obtaining judgment against the maker, should discharge him from custody under a ca. sa. issued by virtue of the judgment, the debt will be extinguished and the indorser released.
    This was an action brought against Parker & Wharton, the indorsers of a promissory note, instituted at the same time that an action was brought against George Eddie, the maker of the note. There had been a trial, and verdict for the plaintiff, in December term 1801, subject to the opinion of the court upon a case stated, involving two questions : 1st. Whether a plea puis darrein continuance had not been entered too late by the defendants ? And 2d. Whether the new matter pleaded, was sufficient to bar the plaintiff’s recovery ? After some argument on the case, at December term 1802, the parties made the following arrangement:
    “That the judgment shall remain as a security, and an issue be formed and tried under this agreement. That the defendants be permitted to enter, at this time, a plea puis darrein continuance, with like effect, as if it had been entered at the day given for their next appearance, after the new matter occurred. That the plaintiff be allowed to give evidence of all facts and circumstances to show that the new matter pleaded ought not to operate as a discharge of the defendants. That the defendants be allowed to give evidence of all facts and circumstances to repel such evidence on the part of the plaintiff to show that such new matter ought to operate in their discharge ; and to establish that the plaintiff has received actual value, or security, for the debt, from the maker of the note. And that it be admitted, on the trial, that notice, in due form of law, was given to the defendants, by the plaintiff, of the non-payment of the note, on which the suit is founded.”
    Under this agreement, the defendants relinquished all former pleas, and entered puis darrein continuance, the plea of payment, with leave to give the special matter in evidence.
    On the trial of the cause, it appeared, that a testatum ca. sa. had issued into Northampton county, returnable to December term 1797, in the case of McFadden v. Eddie, upon which the defendant was arrested ; that, while he was in custody, he gave a bond and warrant of attorney to confess judgment to the plaintiff, *intending that the judgment should operate upon lands which he claimed in Northampton county, but which L eventually proved to be no security, though taken in execution and offered for sale, on a venditioni exponas ; and that, on the 29th of November 1797, the plaintiff wrote to the sheriff in the following terms : “ Sir, I request and desire that you discharge the defendant in the above writ mentioned; he having satisfied me of the debt, interest and costsand that the sheriff thereupon returned the writ, “ G. G.; afterwards discharged from execution, by order of the plaintiff.”
    The defence was placed on two grounds :
    1st. That the holder’s acceptance of a security from the maker, in satisfaction, was a release of all the parties to the note ; however inadequate the security accepted ; and however defective the title to the property might afterwards appear. 1 Str. 691; Noy 104; 3 Mod 86.; 2 Show. 481; Doug. 236-7, 250; 2 Ves. 540; 4 Ibid. 824, 832-3; Ambl. 79; 1 Dall. 254; 7 T. R. 421. 2d. That the release of one of two joint-debtors, is the release of both; and the discharge of a defendant from a ca. sa. is tantamount to a payment or extinguishment of the debt. 4 Burr. 2482; 3 Wils. 14; 1 T. R. 557; 6 Ibid, 525; 2 W. Bl. 1237;
       1 Bos. & Pul. 665; 2 Ibid. 61.
    For the plaintiff,

    it was premised, that there was no negligence imputable to him : that notice of the non-payment was regularly given, before any indulgence was shown to the maker of the note ; and that every arrangement with the maker was, in fact, for the benefit of the indorser. It was then contended : 1st. That considering the relative situation of the parties, before the discharge from the ca. sa., the holder’s acceptance of a security from the maker, was not a bar to his remedy against the indorser. And 2d. That whatever might be the operation of the discharge from the ca. sa., as to the maker, it did not extinguish the debt, as to the indorser.
    1st. The maker and indorser of a promissory note, are not joint-debtors ; but are indebted to the holder on separate and distinct contracts ; the former being bound to j>ay at all events ; the latter, only in case of the maker’s default, and of the holder’s giving due notice of it, and pursuing a recovery against the maker with reasonable diligence. Kyd, 22, 72-5, 110, 76. Upon notice of the maker’s default, the indorser becomes an absolute debtor, not a surety ; and it is a duty immediately to pay. If he delays payment, it is a wrong; and he shall not afterwards take advantage of it. The holder is not bound to *pursue the maker ; but after notice to the indorser, he may do everything he can, to get, or to secure, his money from the maker ; provided he does not thereby deprive the indorser of his remedy over. 1 Bos. & Pul. 655 ; Bull. N. P. 271.
    2d. As no misconduct is imputable to the plaintiff, neither can it be said, that he has received an actual payment or satisfaction for the debt. The bond and warrant of attorney were obviously taken as a collateral security ; and not with an intention to release the obligation of either of the parties to the note. Doug. 237. But even upon the strictest application of the rule of law, the arrest of one man upon a ca. sa., cannot be deemed a satisfaction for another man’s debt. The maker and the indorser cannot (like coobligors or partners) be sued in the same action ; and when judgments are obtained against them, in separate actions, a,/?, fa. may issue on one judgment, and a ca. sa. upon the other. All the authorities cited for the defendants, are in cases of a joint ca. sa. But the authorities for the plaintiff are express, that it must be an actual, not a constructive, payment by one debtor, to discharge another debtor, upon a distinct contract, though for the same sum. And the release of the debtor in execution, howevér it may-affect the right and the remedy of the plaintiff in the execution, cannot affect the right or the remedy of any other person. Tidd 412 ; Hob. 59, 00, 01 ; 1 Wils. 46 ; 2 W. Bl. 1235 ; 4T. E 825. Thus, McFadden, the holder of the note, may sue Parker & Wharton, the idorsers; and they, having paid the note, may sue Eddie, notwithstanding his discharge from the ca. sa.

    For the plaintiff, Ingersoll and Dallas. For the defendants, E. Tilghman and Eallowell.

    The Court, in the charge, left it to the jury to consider, whether the plaintiff had accepted the bond and warrant of attorney, in satisfaction of the debt, due upon the note ; and thereupon, intended to release both the indorsers and the maker.

    The jury, upon this charge, gave the plaintiff a verdict for the amount of the note, with interest. But on a motion for a new trial, the counsel of the defendants, urged, that the extinguishment of the debt, by the discharge of Eddie from the ca. sa., was a point of law clearly in their favor; on which they cited additional authorities, and reasoned more at large, than at the trial; that the agreement under which the issue was formed, did not waive the benefit of the strict rule of law; and that the court, instead of leaving the case to the jury, ought to have charged expressly in favor of the defendants. 3 Bl. Com. 390 ; 2T. R. 120.
    The counsel for the plaintiff answered, that the verdict was conformable to the real justice of the case ; that the agreement, under which the issue was formed, was meant to bring the case *before the jury upon its equitable circumstances ; that the court fairly left the decision to the *- jury, upon the genuine principles of the agreement (Doug. 248 (236) 250; 2 Salk. 575; 8 T. R. 168; 2 Ibid. 4; 4 Ibid. 468; 1 Salk. 116; 2 Ibid. 646); and that even on the strict point of law, the plaintiff was entitled to a verdict ; none of the opposite cases applying to separate debtors, on distinct contracts, who could not be sued as joint debtors.

         s. c. 3 Yeates 496.

       The case in 2 W. Bl. 1237, was cited by the defendant’s counsel, as the single authority in opposition to their doctrine; but condemned as a bad precedent, in the worst of Sir William Blackstone’s works,

       If the maker of an indorsed note give a mortgage, bearing the same date as the note, though not executed until some days afterwards, for securing the payment of the note; the debt due on the note is not merged, nor the indorser discharged. Ligget v. Bank of Pennsylvania, 7 S. & R., 218.

   By the Court.

— The case has been well argued at the bar; and the judges have enjoyed an opportunity to consider it, with more deliberation, than could be bestowed upon it, during the trial. We are now convinced, that the principal point of law should have been differently presented to the jury. It is clearly in favor of the defendants ; and ought to have been so stated in the charge.

The construction of the agreement, however, is a distinct subject for consideration. The counsel who drew the agreement, are essentially at variance upon its design and meaning; and the court have not formed (nor is it necessary, at this time, that we should form) a decided opinion upon the subject. The intention of the parties to the instrument, will be properly left to the jury, on the new trial; which, for the reason already assigned, it is our duty to award.

New trial awarded.


author:
By the Court.
     Brackenridge, Justice.

text:
    *SEPTEMBER TERM, 1803.
    Sharpless v. Welsh et al.

      Trust.

    Where a bill is remitted, with directions to appropriate the proceeds among certain creditors, in designated proportions, the party receiving it beeomes a trustee for the creditors, and the money is not liable to be attached on the property of the debtor.
    A. being indebted to several persons in Philadelphia, remitted a bill to B., in his favor, A. saying, at the same time, that in a few days, he would send directions about its disposition, which he accordingly did, and apportioned the proceeds of the bill among certain of his creditors ; subsequently, one of them laid a foreign attachment upon A.’s funds in the hands of the acceptor of the bill, and of B.: Held, that B. became a trustee for the creditors, from the time of receiving A.’s appropriation, and that the creditors thereupon acquired such an interest in the trust fund, as could not be divested or affected by the attachment.
    Scire Facias against John Welsh, Redman Byrne and the Bank of the United States, garnishees in a foreign attachment, issued by the plaintiff against M. Moore, of Charleston. The facts were these: Moore being indebted to several persons in Philadelphia, remitted to Redman Byrne, a bill of exchange, dated the 13th of November 1800, drawn by Joseph Byrne, in favor of Redman Byrne, on John Welsh, at sixty days’ sight, for $1700; saying, in the letter that inclosed the bill, “ I will send the duplicate, in a days, with directions what to do with it.” Accordingly, on the 22d of November, he wrote again to Byrne, ordering the following disposition of the bill:

      “ To Martin Bernard............................... 701.

    To Moore, surviving partner of Goldth waite......... 29 dollars.
    To Jesse Sharpless................................400 dollars.
    To M. Shields....................................300 dollars.
    To Robert Campbell..............................400
    The balance to be divided equally between Mr. Carr and McGoffin.”
    Soon after the receipt of his letter, Byrne showed it to the plaintiff, and also to John Shields; told each of them of the appropriations ; and promised to pay each the sum specified, when the cash should be received. And on the 26th of December 1800, he wrote to Moore, that the bill “ should be disposed of, as his last letter directed.” Subsequently to these communications, the plaintiff issued a foreign attachment, on which the present scire facias was grounded. Byrne informed Moore of the occurrence, and called for in-*280] structions, on the 8th of January *1801 ; and on the 6th of February. following, Moore answered, “I would rather, if by any means you could have it done, that Sharpless should be got to put up with 8 or 900 dollars ; and the rest to be paid to the other people mentioned, as far as it will go.” But Byrne, conceiving himself bound to pay, according to the first appropriation, did not mention this proposition to Sharpless. In the meantime, the bill of exchange, which had been accepted on the 28th of November, was regularly protested for non-payment — Welsh assigning the attachment, as the cause of his refusal to pay.
    On the trial of the cause, it was contended, for the plaintiff, that the property in the bill continued to be Moore’s, at the time of the attachment; and that the creditors had acquired no lien upon it. (4 Burr. 2174.) The letter of appropriation is nothing more than a private order, to pay the money, when it was received ; and Moore had a power to revoke or alter it (as, in fact, he did, in his letter of the 6th of February), at any time before actual payment to the creditors.
    But it was insisted, by the counsel for the defendants, that the letter of the 22d of November amounted to an irrevocable appropriation and transfer of the fund ; that Byrne became a trustee for the creditors named in the letter; and that the trust-fund was not liable to a foreign attachment. (Ambl. 297; 1 Atk. 124; 2 Ibid. 207; 1 Ves. 280; 1 Ves. jr. 331-2; 1 East 550; 5 T. R. 215, 494.
   By the Court.

— The plaintiff had a legal right to institute the attachment, which cannot he divested, by any irregular attempts to obtain a preference from the trustee himself. The only question is, whether the fund attached, can be regarded, under the circumstances of this case, as the property of Moore ?

The facts are few, but powerful. Moore remits the bill to Byrne, with express directions to apply the money to the payment of specific creditors in Philadelphia; and Byrne undertakes to do so. Independent of the communication to the plaintiff, Byrne mentioned the general appropriation to Shields, with a direct and positive promise to pay Shields his proportion of the money. Under these circumstances, it is clear, that there could be no revocation of the appropriation in favor of Shields ; to whom Byrne himself had become responsible ; but the doubt arises, as to the situation of those creditors who had received no intimation of the remittance. If, indeed, no notice had been given to any of the creditors, we do not think, p2gi that any of the creditors * would have acquired a vested interest in *- the fund, by the terms of the correspondence between Moore and Byrne. But it is a material fact for the consideration of the jury, that the plaintiff received information, not only of his own apportionment, but of the distributive shares of all the creditors ; and that he never objected to this appropriation of the fund, until he issued his attachment. If the jury shall think, from this fact, that the plaintiff ratified or acquiesced in the distributive appropriation; the law will not permit him, afterwards, to monopolize the fund, in the way that the present suit contemplates.

Brackenridge, Justice.

— The equity of the case is strongly in favor of the defendants ; but I find it difficult to surmount the strict rules of law, ae to those creditors, who, receiving no notice, acquired no right. The creditors who received notice, and assented to the appropriation, had clearly a vested interest. But I incline to think, the law in favor of the creditors stops there ; unless the fact is sufficiently ascertained, to satisfy the jury, that tne plaintiff, by his conduct, approved and assented to the whole appropriation, after he was fully apprised of it. That fact, the important one in the cause, if found affirmatively by the jury, must be decisive in favor of the defendants.

On the day succeeding that upon which the charge was delivered, the jury returned to the bar, and declared, that they could not agree upon a verdict ; proposing, at the same time, several legal questions, for the solution of the court. But —

Smith, Justice, observed, that it would, probably, extricate the jury from their embarrassment, as well as relieve his own mind, to inform them, that since the adjournment, he had entirely changed his opinion, upon the • principal legal point in the cause. He said, that he always thought it more honorable to retract an erroneous opinion, when the error was discovered, than to persist in it, upon the suggestions of a false and pernicious pride. He then declared, that on full reflection and research, during the recess, he had been convinced, that from the time of receiving Moore’s letter, ordering specific payments to the enumerated creditors, Byrne became a trustee for those creditors ; and that the creditors thereupon acquired such an interest in the trust-fund, as could not be divested, or affected by the plaintiff’s attachment.

The jury, having again retired, soon agreed upon a verdict, in favor of the plaintiff, for $400; being the sum to which he was entitled by the original appropriation of the bill of exchange.

         The cause was tried at Nisi Prias, Philadelphia, on the 16th of June 1803, before Smith and Brackenridge, Justices,

         Bbackenmdge, Justice, expressed no opinion upon this occasion; but seemed silently to assent to the statement now made by Judge Smith.


text:
    * Commonwealth v. Baynton et al.

      Sureties on official bond.

    Where an officer is elected annually, and gives a new bond, on a re-election, his sureties are only responsible for a deficit occurring during the year.

    Debt, on the official bond of Peter Baynton, as state treasurer, dated the 11th of January 1797, against him, and his sureties, David Lenox, William Hall and Joseph Bullock. It was admitted, that there was a considerable balance due from Baynton to the state ; but the defence taken for his sureties was on two distinct grounds: 1st. That the treasurer is elected annually ; he is required to give bond on every election ; and that his sureties in the present bond are only liable for any deficit actually incurred during the year, commencing in January 1797, and ending in January 1798. 2d. That by the conduct of the legislature, in frequent subsequent re-appointments of Boynton, as treasurer ; and by the conduct of the accounting officers, who had the legal examination and control of his accounts ; the sureties were virtually discharged. On the first point, were cited, Const. Penn. art. VI., § 5; 3 Dall. Laws, 221; 2 Ibid. 756; 2 Saund. 411; Styl. 18; Alcyn. 10; Park. 277; Leon. 240; Moore 126, 274; 2 Vern. 518. On the second point, there was a general reference to the acts of assembly, and to the public records, in relation to the state treasurer’s accounts, and to the repeated elections of Mr. Baynton ; and the following authorities were cited: Co. Litt. 206-7; 1 Roll. Abr. 457, 463; 2 Ves., jr., 540; 4 Ibid. 824; 2 P. Wms. 542; 1 T. R. 291; 2 Bos. & Pul. 62; 3 Bro. Ch. 1; 3 Dall. Laws, 132; Comb. 464; Vern. 24; 2 Brownl. 107; 12 Mod. 559.
    On the part of the Commonwealth, a strict scrutiny was made into the bank deposits and drafts of Baynton, to ascertain the period when the deficit arose, and its subsequent fluctuations. And it was contended: 1st. That from the nature and extent of the obligation, the sureties were bound to indemnify the state, unless they could show that there was an express release ; that the recovery was barred by lapse of time ; or that a settlement with the principal had extinguished the claim upon the sureties. 2d. That the indemnity of the bond extended to the general duty of the treasurer, as well as to his fidelity in pecuniary transactions : and as soon as he had ceased to make the Bank of Pennsylvania the depositary of the public money; or as soon as a false estimate of accounts was exhibited, the bond was forfeited. 3d. That from the very nature of the indemnity, its obligation is co-extensive with the continuance of the person in the office ; and the only questions are, whether the sureties could so engage, and whether they have so engaged ? That on the facts (even supposing the indemnity of the bond to be limited, by an implied connection with the annual tenure of the office), there was a deficit of inactive public money at the end of *the year 1798, not found in the bank, nor accounted for in any public deposit or application. On these several points the following authorities were cited: 3 Dall. Laws, 132; 4 Ibid. 301; 4 Ves., jr., 829; Sayer 115; 2 P. Wms. 287; 1 Bos. & Pul. 419, 422; 3 Dall. Laws, 222, § 9, 10; 2 Ibid. 753, § 6, 7; 6 State Laws, 590; 3 Dall. 500; 2 Saund. 411; 1 T. R. 295, 293; Bunb. 275, 337; Hardr. 424; 3 Leon. 240; Moore 126, 274; 2 Chan. Ca. 84; Show. 216.

      McKean, (attorney-general) and Dallas for the commonwealth.

      Rawle, for the defendants.

       Farrar v. United States, 5 Pet. 374; United States v. Boyd, 15 Id. 187; United States v. Linn, 1 How. 104; United States v. Irving, Id, 250; Harris v. Babbitt, 4 Dill. 185; Bissell Saxton, 66 N. Y. 55. The presumption however, is, tjiat a balance due from an officer at the time of his re-appointment, was then ii his hands, and his sureties are responsible for its due application; but they may relieve themselves, by showing that he was in fact a defaulter when they became his sureties. Bruce v. United States, 17 How. 437. See Wilson v. School Directors, 2 Am. L. Reg. 123.

   The Court,

in the charge directed the jury, in point of law, to confine the responsibility of the sureties, to a deficit occurring during the year ensuing the date of the bond. But if, from the evidence, they were satisfied that there was a deficit, during that year, they thought, that a verdict should be in favor of the commonwealth for the amount, verdict for the defendants.

       The condition of a bond, reciting that the defendants had agreed with the plaintiffs ,to collect their revenues “ from time to time, for twelve months,” and stipulating that “ at all times thereafter, during the continuance of such his employment, and for so long as he should continue to be employed” he would justly account and obey orders, &c., confines the obligation to the period of twelve months mentioned in the recital. Liverpool Water Works v. Atkinson, 6 East 507.

         It may be proper to observe, that Mr. Baynton did not appear, nor take defence, in this suit: the proceedings to recover from him having been instituted on the settlement of the comptroller.

       But see Walters’ Appeal, 10 W. H. C. 146.


text:
    Watson et al. v. Insurance Company of North America.

      Marine mswrcmee. — JPcvrUal loss.

    Where there has been a capture and condemnation, but no abandonment to the underwriters, the jury may estimate the spes recuperandi, deduct it from the whole amount insured, and find the remainder as a partial loss.
    In an action on a policy of insurance, in which the declaration was for a total loss, and it appeared, that the assured had demanded payment of a total loss, which was refused: but there was no actual abandonment, nor offer to abandon, and the proof was of a loss in its nature total; it was held, that the jury might find damages as for a partial loss.
    This was an action on a policy of insurance, in which the declaration ' was for a total loss. On the trial, it appeared, that the assured had demanded payment of a total loss, which the defendants refused to pay ; but there was no evidence of an actual abandonment, nor offer to abandon, to the underwriters, before the suit was instituted ; and the proof was of a loss in its nature total. The jury gave a verdict in favor of the plaintiff, finding damages, as for a partial loss; subject to the opinion of the court, upon a motion for a new trial, to consider two points reserved : 1st. Whether a previous abandonment, or offer to abandon, was indispensably necessary, to enable the plaintiff to recover in this suit ? And 2d. Whether, on a declaration for a total loss, and proof of a loss in its nature total, the jury can give damages for less than a total loss ?
    After argument, by M. Levy and Lewis, for the plaintiffs; and by Moylan, E. Tilghman and Ingersoll, for the defendants,
    The Court (consisting of Shippen, Chief Justice, and Yeates and Smith, Justices) were of opinion, that the jury might find damages for a partial loss ; although the declaration claimed for a total loss; and although there was no proof of an actual abandonment, or an offer to abandon, to the underwriters.

      c) s. c. 1 Binn. 47, which is better report of the case.

   *But Brackenridge, Justice, said, that he thought there was sufficient evidence at the trial, to induce the jury to find an abandonment;

and on that ground alone, he concurred, in refusing a new trial. For the general ground, on which the opinion of the rest of the court was founded, did not appear to him so conclusive, and so satisfactory, as it did to them.

Motion for anew trial refused : and judgment rendered on the verdict for the plaintiffs.

       In Brown v. Phoenix Ins. Co., 4 Binn. 464, Chief Justice Tilghman said, that he did not consider the law as settled by this decision, The court was not unanimous. “ It was not acquiesced in by the bar; and would have been carried to the court of errors and appeals, had the nature of the case admitted it. But being a determination on a case stated, it was supposed, that it could not be carried up by writ of error. There certainly are some weighty objections to the principle adopted by the court >n that case. It takes away the necessity of abandonment, in any case whatever, without affording sufficient protection to the rights of the underwriter; because, instead of paying for the whole loss, and receiving an assignment of the whole chance of recovery, he is compelled to relinquish that chance, and may have to pay the whole loss, deducting a trifling sum for the value of the chance. Besides, there seem- an impropriety in proving a total loss, and recovering for less than a total loss. There will be great difficulty, too, in reducing the rule to practice, for, by what standard are the jury to estimate the hope of recovery ? It depends not on any known principles of law or justice, but frequently on the character, the temper, the caprice of the prince, or on secret political motives.” He wished to be understood, however, as not having formed a decided opinion on the question. But Mr. Justice Yeates said, in the same case (p. 470), that he saw no reason for retracting the opinion which he formed in Jones v. The Insurance Co.


author: Shippen, Chief Justice.

text:
    Williams et al., Executors of Fisher, v. Paschall et al.

      Award.

    Equity will not relieve against an award, unless on a plain error in law or fact, specifically as such.
    ■In debt, in an arbitration bond, a plea charging mistake on the arbitrators, withont setting out the particulars, is bad, on demurrer.
    Debt, on an arbitration bond. Upon oyer of the bond and condition, it appeared, that the defendants, as heirs of Jonathan Pasohall, had entered into a bond, dated tbe 14th of September 1796, in the penal sum of 500i., conditioned for the performance of an award, by arbitrators mutually named by them and the plaintiffs, to be made “ of and concerning all matters in controversy between them respecting a certain bond given by the said Jonathan Pasehall to the said James Fisher (the testator), and respecting all accounts, which they the said heirs of Jonathan Pasehall may exhibit as payments in discharge of the said bond, and of and concerning all and all manner of actions, &c., respecting the said bonds and accounts, &c.” The award which was set forth on the record, after reciting the bond and submission, concluded that “ the arbitrators are of opinion, that the defendants are justly indebted to the plaintiffs in the sum of 310¿. 11s. 4|Y.” The defendants pleaded specially, “ that the plaintiffs ought not to have and maintain their action aforesaid against them, because they say, that the said arbitrators, in making the said award, at the time and place aforesaid, from a mere inadvertency, error, mistake and misapprehension of the law and right and justice of the case, calculated, allowed and added the full interest of six per cent, per annum, on the whole amount of the principal sum mentioned in the bond, submitted to their arbitrament, for a long time, that is to say, for twenty-six years and upwards ; although within the same time, many payments and advances had been made by these defendants, and on their account, to the said James Fisher, in his lifetime, and after his decease, to the said plaintiffs, on account of the said bond, to the full amount of the principal and interest due on the said bond; but on which payments and advances, from a mere mistake, error and misapprehension of the law and right and justice of the ease, no interest was calculated or allowed by the said arbitrators, in making and forming their said award ; nor were the said payments and advances deducted, as by law and right they ought to have been, from the moneys *due on the said bond, at the respective times, when such payments and advances were made, or at any time or times, before publishing the said award. And this the said defendants are ready to verify, &c.” To this plea, the plaintiffs demurred: and it was agreed, that the court should decide — 1st. Whether the award was, in itself, good. 2d. Whether, if the award was good, the plea could be sustained ?

      E. Tilghman, in support of the demurrer,
    contended, that the award was good in itself; and that the plea, which entered into the merits of the original controversy submitted to the arbitrators, was bad. 1 Ves. jr. 365.

      Lewis, for the defendant,
    admitted, that in a common-law court in England, the plea would be bad ; but he insisted, that any plea, which contained matter proper for a bill in equity there, would here be sustained in a court of common law, from the necessity produced by the want of a court of equity. If, therefore, the award is bad on the face of it, the form of the plea is immaterial. And it has been decided in Pennsylvania, that an award is not good, unless it determines the whole matter in dispute and submitted ; nor if it exceeds the subject submitted, unless the excess can be separated and rejected ; nor if it decides matters submitted on one side, without deciding the matters submitted on on the other side. (Huff v. Parker, Com. Pleas Phila.; removed into the supreme court by writ of error, April 1787.) If, in short, the arbitrators mistake in a plain point' of law, their award ought to be set aside. (3 P. Wms. 362; 3 Atk. 486, 494, 529.) And in the present instance, the allowance of interest on the one side, and the rejection of it upon the other, is a plain error in law and justice.

      Rawle, in reply,
    having cited 1 Burr. 277, was stopped by the court.

       Cited, 3 Yeates 567.

   Shippen, Chief Justice.

— We are, unanimously and clearly, of opinion, that the award is good in itself ; and that the plea is bad. As to the equitable power of the court, we are often, for the sake of right, obliged to introduce a chancery relief ; but it is only in cases where we can, by such an interference, do justice to both sides ; never to aid one man at the expense of another. If, too, relief is granted in the case of an award, it must be on a plain error in law or fact, specifically set forth; which is not the present case.

Judgment for the plaintiff.


author: *By the Court.

text:
    *DECEMBER TERM, 1803.
    Crawford et al. v. Willing et al.

      Interest. — Pa/rtners.
    Interest is due on the ascertained balance of an account, from the time of a demand of payment.
    In case of a war, the payment of interest on a debt due by a citizen of a belligerent country to one of a neutral state, will be enforced, unless a remittance cannot be made with safety.
    A partner is liable for the acts of his copartner, in relation to partnership business, whether they be known to the former or not.
    This was an action of account-render, brought by Crawford & Co., of Rotterdam, against Willing & Morris, of Philadelphia. There was a judgment quod computent, under which, the auditors reported, “that the sum of 16587. 11s. 8c7., Pennsylvania currency, is due from the defendants to the plaintiffs, but not being agreed, with respect to an allowance of interest, they submit that point to the court.” The plaintiffs thereupon filed a suggestion, “that the defendants ought to be charged 37707. 15s., for interest on the several sums of money by them accounted for, in their account, mentioned in the report of the auditors ; and that the plaintiffs are entitled to have and recover from the defendants the said sum of 3770?. 15s., as well as the principal.” To this suggestion, the defendants pleaded: 1st. “That they ought not to be charged with the said sum of 3770?. 15s. for interest, &c., and that the plaintiff's are not justly entitled to have and recover the same, &c,’ because they say, that the same, or any part thereof, is not justly due from the defendants to the plaintiffs : and this they pray- may be inquired, &c.” 2d. Payment of the principal sum. 3d. The bankruptcy and certificate of Morris, one of the defendants. Issue, was joined on the first plea ; and the second and third were confessed.
    On the evidence, it appeared, that the transactions on which the debt to the plaintiffs was founded, occurred before the year 1775 ; that during the years 1775 and 1776, and during several years after the war, the debt was repeatedly acknowledged, and a remittancé of the amount promised, in a correspondence between the plaintiffs and Morris, as the acting partner of the defendants ; *that the partnership commenced, by articles dated the 1st of January 1773, and continued for five years; that the partnership was renewed, taking Swanwick in as a partner, in the year 1783 ; that partial remittances were made by Moms, in the'year 1786, which reduced the balance of the principal sum to the amount reported by the auditors; and that Willing never knew of the plaintiffs’ demand, until the present suit was amicably instituted, by agreement with Morris alone, dated the 4th of August 1798.
    E. Tilghman and Ingersoll, for the plaintiffs,
    proposed to inquire, 1st. Whether, considered as a commercial ease, generally, it is not a case in which interest ought to be allowed ? 2d. Whether the special circumstances of the case exclude the claim of interest, with reference to the law of partnership ? 3d. Whether the case is affected by the existence and operation of the revolutionary war ?
    1. It is true, that, in the old books, the claim of interest upon simple-contract debts, is treated with great rigor, and allowed only in' the case of a note ; but the law, gradually accommodating itself to common sense and common honesty, is at length settled, that for money lent; for liquidated balances; nay, for goods sold and delivered, where the usual credit is expired ; for money detained, which ought to be paid over, and during the continuance, as well as before the commencement of a suit; the creditor shall be entitled to interest. 1 Dall. 349; 1 Ves. Sen. 63; Rep. temp. Hardw. (Ridgeway) 286; 1 Ves. 310; 3 Bro. Ch. 436; Doug. 361. And under circumstances of vexatious delay, interest may be recovered, even beyond the amount of the principal. Atk. 80 ; 2 Ves. jr., 300.

    2. The debt was contracted, the correspondence was carried on, during the existence of the partnership, between Willing and Morris. Each partner was, therefore, liable, not as a surety, but as a principal, for the lawful contracts and transactions of the other, in' relation to their joint business. 1 Wils. 682; 3 Ves. 277; Bankrupt Act of Congress, § 34; Doug. 629.
    3. The courts of Pennsylvania (differing in their view of the subject from the federal courts) have made an abatement of interest, during the continuance of the revolutionary war (a period computed at seven years and a half), iu suits brought by British creditors against American citizens, the immediate parties in the war; but there is neither law, justice nor precedent in any court, for applying the rule to suits brought by the citizens of a neutral or friendly nation : And as to the practicability, as well as the lawfulness, of a remittance, it is notorious, that the intercourse between the United States and Holland was never suspended, at any period of the contest.

      Lewis, for the defendants,
    stated his general position to be, that interest *2881 *s n0* ^ue> course, upon an account-current; or an unliquidated *debt. 1 Wils. 376; 3 Ibid. 205; 1 Dall. 349; Doug. 361; 1 Dall. 265; 3 Ibid. 313; 1 P. Wms. 376; 3 Ibid. 205; Doug. 361; Durdon v. Gaskill;

       and that the peculiar circumstances of the present case will not warrant a departure from the general rule. The cases cited for the plaintiffs are, indeed, inapplicable to the real point at issue. Thus, 1 Dali. 349, was the case of a single sum of money, received at one time, by the defendant, fi-om the plaintiff’s agent; not the case of an open running account. The cases in 1 Ves. 63, and Ridgw. 286, go no further than to show, that when a sum is ascertained to be due, by settlement, or liquidation of accounts, interest begins to run. The case in 1 Ves. 310, contains, indeed, the strong expression, that interest follows the principal, as a shadow does the substance ; but the expression must be applied to the subject before the court: which was a legacy for the education of a child, bearing interest, from the very nature of the bequest. And the case in 1 Wils. 682, arose upon a joint and several bond.
    To the general position, however, that interest is not payable, in cases of account-current, and other simple contract-debts, Lewis admitted there were various exceptions : 1st. Where there is an express contract to pay interest. 2d. Where the accounts have been settled, and a liquidated balance ascertained. 3d. Where a debt consists of a single sum of money, and no account-current has been raised between the creditor and debtor. 4th. Where there has been an unreasonable detention of money, after a demand of payment, or a refusal to come to a settlement. But he insisted, that there was no authority, in any case, to justify a verdict for interest, beyond the amount of the principal; not even upon a bond, if the creditor has neglected to demand payment for several years. 14 Vin. Abr. 460.
    But, adverting to the peculiar circumstances of the ease, Lewis contended: 1st. That there was a wide distinction between the responsibility of Morris and that of Willing : the correspondence being exclusively with the former, and no demand of payment, no notice of the claim, to the latter, until 1798, long after the dissolution of the partnership. The act or assumption of one partner, to bind the company, must take place during the continuance of the partnership; and here, the only promise made by Morris, during the partnership, was in the year 1775 ; before the money was received, and merely importing that the defendants would remit it, when it was collected ; which, surely, is no foundation for the charge of interest. 3 Bac. Abr. 517; 2 Ventr. 151. So far, therefore, as respects Willing, it is a stale demand, against which every presumption will be made. Cowp. 215; 1 Wils. 742 1 Atk. 493 ; Gilb. Eq. 224. 2d. That the operations of the war, and the high state of exchange, afford a justification for not remitting until the peace of 1783 ; and after that epoch, no demand was made upon Willing, until the suit was brought.

         1 Dall. 265, note; Id. 288, note; 2 Dall. 104, note.

       Reported 2 Yeatea 268.

   *By the Court.

— The auditors hare ascertained the principal p289 sum that is due from the defendants to the plaintiffs ; leaving to the *- court the question of interest. The only point now to be decided, therefore, is, whether any, and what interest, ought to be paid upon the debt so ascertained ?

The inquiry has been naturally and fairly pursued, under the considerations suggested at the bar : 1st. Whether, on general principles, it is a case in which interest can be allowed ? 2d. Whether any circumstances, pecu-

liar to the case, in relation to the parties, should prevent the allowance of interest here, in opposition to a general rule ? 3d. Whether the effect of the revolutionary war was such, as to suspend the right to interest, for any, and for what, period ?

1. Whatever may have been the doctrine in former times, we have traced, with pleasure, the progress of improvement upon the subject of interest, to the honest and rational rule, that, wherever one man retains the money of another, against his declared will, the legal compensation for the use of money, shall be charged and allowed. From the single case of a promissory note, the instances, in which interest is allowed, have been so multiplied, year after year, that few remain to be added to the legal catalogue. In Pennsylvania, the policy is older, and still, perhaps, more extensive, than it is in England. There, even at this day, an action must be brought upon a judgment, in order to recover interest upon it; but here, our act of assembly, so early as the year 1715, made the interest an inseparable incident of the judgment. For my own part, I am prepared to say, with the book cited, that interest ought to follow a debt, as the shadow does its substance. Even, in the case of goods sold and delivered, I would think it right to allow interest, as soon as the express or the implied term of credit had elapsed, and a demand of payment was made.

In the present action, there can be no doubt, that the balance had long been ascertained and acknowledged. In England, it is the practice of merchants to balance their accounts annually ; and by that means, the interest of each year becomes principal, in the new account of the succeeding year. Without adopting that practice, it is clearly our opinion, that the defendants are liable for the interest actually claimed, unless some special reason exempts them from the general obligation of merchants.

*2. The circumstances suggested, to distinguish the responsibility r*ogo of Mr. Willing from that of his partner, are not a sufiicient legal or ^ equitable answer to the demand of the plaintiffs. In Watson’s treatise on the Law of Partnership, the cases on this point are collected and arranged. The result of the whole is, that during the partnership, all the partners are answerable for the acts of each. It is no ground of discrimination in this respect, which partner actually received the funds ; which was intrusted to transact the business, or which was ignorant of the state of the debit and credit of the company hooks. If, indeed, a public notice is given by one partner of the dissolution of a partnership; and creditors, unreasonably neglecting it, will place funds in the hands of the other partner, they must take the consequence of their own imprudence. But the present case is free from every embarrassment of this kind. The debt was contracted during the partnership ; and all that was written about it, both before, and after, the termination of the partnership, was written by Mr. Morris alone, without any objection on the part of Mr. Willing ; whose conduct, on the contrary, gave reason to ¡presume consent and approbation.

3. Nor will the effect of the revolutionary war, furnish the defendants with a justification or excuse against the claim of interest. We all know the eminent services of Mr. Morris to his country; and the pre-eminent credit of the house of Willing & Morris, throughout the war. But these very advantages show, that the defendants, of all men, had it in their power to remit the funds, for the payment of their debts due in neutral countries.

This, then, is our general position : the defendants are liable for the payment of interest, from the time the money was in their hands, demanded, and neglected to be paid, until the war ; during the war, if remittances could safely he made ; and (if they could not he safely made during the war) then, from the peace of 1783, until the actual recovery of the principal.

Unless, upon the whole, the jury can discover some ground of excuse, which we have not been able to trace, tbe interest ought to be allowed, in justice to the plaintiffs : and we will add, in justice to the commercial character of our country.

The jury found a verdict for the plaintiff, for $4422.89.

         This cause was tried before Smith and Bkackeneidge, Justices; the Chief Justice declining to sit on account oí his relationship to Mr. Willing; and Yeates, Justice, being absent on account of indisposition. The charge was delivered by Judge Smith.

       In the course of the trial, Smith, Justice, declared, that the authority of 1 Dali. 265 (laying down the rule, that interest was not payable for goods sold and delivered), had been often overruled

       s. c. 1 Binn. 64, which is a much better report of the case.


text:
    *Cramond et al., executors of Cay, v. Bank of the United States.

      Set-off.

    A garnishee in foreign attachment, after the death of the attaching creditors, cannot set off against the claim attached, a responsibility of the attaching creditors to him, as indorser of a note, which matured after their decease.
    A. & B., partners in trade, issue a foreign attachment against the effects of 0., who is indebted to them, in the hands of D.; A. & B. were the indorsers of a note which was discounted by D., but before it became due, A. & B. died, and the note was protested, and the executors of B., who was the surviving partner, obtained judgment against C. and also against D., as garnishee: the debt due by A. & B. to D. cannot be set off against the debt due by D., as garnishee, to B.’s executors.
    The following case was stated for the opinion of the court: “ On the 19th day of August 1793, David Cay and Andrew Clow, who then carried on business under the firm of Andrew Clow & Co., indorsed a note made by Henry Darroch, bearing that date, for the sum of $852.82 ; which note was discounted by the President, Directors and Company of the Bank of the United States, defendants in this action, and the amount paid to the indorsers. Before the note became due, the maker, and both the indorsers, died of the yellow fever ; and notice of non-payment was duly given to the execu tors of the surviving partner, David Cay. On the 11th of April 1793, Andrew Clow and David Cay laid a foreign attachment on the property of a certain James Brown, in the hands of the defendants. Judgment was obtained in December term 1793, in the names of the present plaintiffs, as executors of David Cay, the surviving copartner. A writ of inquiry has been issued and the sum of 25,543i. 2s. 3cl. has been found due to the plaintiffs ; judgment was thereupon entered in the usual form. A scire facias issued against the defendants, as garnishees, in which, after the general proceedings stated on the record, there was a trial, on the 10th September 1801, when the jury found for the plaintiffs $3354; and on the same day, judgment nisi was entered.
    “The defendants as garnishees of James Brown are in possession of thirteen shares of bank-stock, and of the dividends thereon arising and accruing, since the first day of July 1801, which are subject to this attachment. And they have received payment of $284.27 ; being a dividend of the estate of Henry Darroch, the drawer of the said note. The question for the opinion of the court is whether the defendants in this action are entitled to set off against the demands of the plaintiffs in this action, the sum of $568.55, being the balance of the note unpaid ?”
    After argument, by E. Tighman and Ingersoll, for the plaintiffs; and by Lewis and Rawle, for the defendants.

         This s un, it is plain, was not equal to one-half the interest claimed (and the calculation cf interest was in a mode favorable to the defendants), but it was exactly equal to the principal sum reported by the auditors. It is presumed, therefore, that, the jury though: the interest ought not to be allowed beyond the principal.

   The Court (absent Shippen, C. J.) decided, that the set-off was inadmissible.


text:
    *McCulloch, administrator, &c., v. Young.

      Foreign executors.

    An action can be maintained in the courts of Pennsylvania, under the authority of letters of administration granted in another state.

    This was an action on the case, brought against the defendant, by John McCulloch, as administrator of Robert Parland, under letters of administration granted by the orphans’ court, and tested by “ the register of wills for Prince George county,” in the state of Maryland, on the 8th of October 1799, addressed to John McCulloch of “Alexandria, in the state of Virginia.”
    The only controverted question in the cause was submitted to the court, all the judges being present: to wit, whether an action could be maintained in the courts of Pennsylvania under the authority of letters of administration granted in another state ?
    And after argument, by M. Levy, for the plaintiff, and by Hopkinson, for the defendant (in the course of which 1 Dall. 456; 1 Dall. Laws, 30, were cited):

       s. c. 1 Binn. 63; where the case is more fully reported.

       This case has long ceased to be 1aw in Pennsylvania: Thompson, C. J., in Sayre v. Helme. 61 Penn St. 300.

   The Court,

adverting to the numerous instances, both since and before the revolution, in which such suits were maintained, unanimously pronounced—

Judgment for the plaintiff.


text:
    Commonwealth v. McKissick et al.

      Oity lots.

    The act of the 9th of March 1796, declared those Pennsylvania claimants who had complied with the terms of the confirming law (while the said law was in existence), entitled to the benefit of the same, and enacted, that the sums found due to them should be credited to them in taking out new warrants, in any part of the state where vacant land may be found: Held, that the act did not apply to warrants to be located on lots within the city of Philadelphia.

    On the 15th of March 1802, a rule was obtained upon the receiver-general, which was afterwards extended to the secretary of the land-office, to show cause why a mandamus should not issue, commanding them to receive a certain certificate, in payment for city lots, located by the late Thomas Billington.
    The application for the rule was founded upon an act of the general assembly, passed on the 9th of March 1796 (4 Dali. Laws, 16), which contains the following enacting clause :
    Sect. 1. “ That it shall and may be lawful for the board of property, and they are hereby enjoined and required, to proceed upon the reports of the commissioners appointed by the act passed the 28th day of March 1787, entitled e an act for ascertaining and confirming to certain persons, called Connecticut claimants, the lands by them claimed within the county of Luzerne,’ which have been filed in the office of the secretary, and ascertain, as nearly as they can, from the documents so placed in the secretary’s office, „. , and from such further evidence as they may deem necessary, and J *which shall be produced to them, what sum or sums ought, on the principles of the aforesaid law, to be allowed to the respective owners; and and the receivei'-general shall thereupon deliver a certificate of such sum or sums to the respective owners, and enter a credit in his books for the same, which may be transferred to any pex’son, and passed as credit, either in taking out new wai-i-ants, in any part of the state where vacant land may be found, or paying ax-rearages on former grants: Provided nevertheless, that the value of the land for which such certificates are so to be delivered to the aforesaid claimants, shall not be estimated othex-wise than if the same had been made by the board of property, immediately after the report of the aforesaid commissioners, in pursuance of the law hereinbefore mentioned : And provided further-, that the claimants, who are by this act intended to be compensated, shall, at the time of receiving the certificates aforesaid, release to the commonwealth their respective claims to the lands, for which they shall receive compensation.”
    Thomas Billington purchased several certificates, which had been issued under the authority of this act, and tendered them in payment for warrants to be located on certain lots in the city of Philadelphia, which he alleged to be “ vacant land.” The legislature having granted all the unappropriated city lots to the inspectors of the prison of Philadelphia, for public uses, the inspectors employed counsel, to oppose the rule for issuing a mandamus.

    Accordingly, Dallas, in showing cause against the rule, stated two points, for the consideration of the court: 1st. Whether, upon a just construction of the act of March 1796, and acts in pari materia, the right of location could apply to land within the boundaries of the city of Philadelphia. And 2d. Whether, in the strictest sense of interpretation, city lots could be regarded as vacant land.
    The act of March 1796 is engrafted upon the act of the 28th of March 1787, usually called “the confirming law” (P. L. 274), which, however, had been repealed by the act of the 1st of April 1790. (2 Dali. Laws, 786.) It was expressly intended to entitle those Pennsylvania claimants, who had complied with the terms of the confirming law, “while the said law was in existence, to the benefits of the same.” (Preamble, 4 Dali. Laws, 16.) What, then, were the benefits conferred on Pennsylvania claimants by the confirming law ? A right to an equivalent, for the land they surrendered, which might be taken “ either in the old, or new purchase, at the option of the claimant.” (P. L. 274, § 9.) And the act of March 1796 did not profess to enlarge, nor has it, in terms, enlarged the right thus conferred. Besides, the act *of March 1796, evidently restricts the location, under r*2Q4 the Wyoming certificates, to those lands, for which the land-officers L were previously authorized to grant warrants ; and no authority was ever given to the land-officers to sell city lots, until the act of the 5th of April 1797. (4 Dali. Laws, 165.)
    Here, Dallas was stopped by the Court, who declared, that they could not conjecture upon what ground the rule was tenable ; and desired to hear the opposite counsel. Digersoll and Dawle, however, acknowledged, that they saw the subject in a point of view different from that, in which it was presented, when they made the motion ; and declined any further argument.

       And see Freytag v. Powell, 1 Whart. 536; Barton v. Bovier, 1 Phila. 523.

   By the Court.

— Let the rule be discharged.


author: Yeates, Justice,

text:
    Crousillat v. Ball.

      Barratry.

    Barratry is an act committed by the master of a vessel, of a criminal nature, without the license or consent of the owner; there must be fraud in the transaction, and should the act be done solely to benefit the owner, it does not constitute barratry.

    If the master be the general agent and consignee of the owner, the acts of the master, as such, cannot, any more than those of the principal himself, be denominated barratry.
    Case, on a policy of insurance upon sliip and cargo, containing a warranty against seizure or detention for any illicit or prohibited trade,
       It appeared in evidence, that the vessel and cargo were owned by the plaintiff, and were insured on a voyage from Philadelphia to Cape Franjois ; thence to New Orleans ; thence back to the Cape; and from the Cape back to Philadelphia. When the vessel had arrived at the Cape, on the return voyage, war had broken out between Great Britain and France ; and the calamities of St. Domingo compelled a number of its inhabitants to seek an asylum in the United States. The master of the vessel (who was addressed to merchants at the Cape, and only in case of their absence, was intrusted with the disposition of the cargo), undertook to cover, as American property, a considerable quantity of coffee and cash, belonging to two of the fugitive Frenchmen ; under a bargain, that they should pay to the owner of the ship a certain sum for passage-money, and for the freight of the coffee ; and to the master, for his own separate emolument, 50 half-johannes in hand, for covering the cash, with a contingent of 200 half-johannes more, on its safe arrival in the United States ; and a sum equal to the freight; for covering the coffee. The vessel was captured and carried into Jamaica, and both vessel and cargo libelled as prize, in the court of vice-admiralty. The master filed a claim for the ship and the plaintiff’s part of the cargo, and for freight on the *2951 covere^ *Pai’t of the property; but in his answers to the standing J interrogatories, he had sworn that the whole cargo belonged to the plaintiff, and that there were no papers on board, except such as he had delivered. On searching the vessel, however, the bills of lading, letters and other papers relative to the covered property, were found concealed; the whole cargo, including the master’s own adventure, was condemned ; and though the vessel was acquitted, upon further proof of American ownership, sent by the plaintiff from Philadelphia, it was expressly without freight, on account of the master’s fraud. When notice of the capture was received, the plaintiff abandoned to the underwriters, stating that the voyage was defeated, “and the cargo taken out of the hands of my agent,” the master.
    On two former trials of this cause, the argument turned entirely upon the question, whether the underwriters were responsible for a loss thus occasioned by the misconduct of the master, who was the agent of the owner? And the court were clearly of opinion, that by taking on board the property of Frenchmen, and covering it as the property of the plaintiff, the risk had been increased ; that the perjury of the master had also involved the neutral property, in the jeopardy of the belligerent masked property; and that, in fact, his misconduct, from beginning to end, had produced and justified a condemnation. Considering him, therefore, as he must, in law, be considered, in the light of the plaintiff’s agent, the court thought, that the plaintiff was not entitled to recover.
    On the present trial, the plaintiff rested his right to recover,
    on the barratry of the master: and urged, 1st. That although fraud is essential to constitute barratry ; yet, if a master of a vessel is guilty of a fraudulent act, with intent to benefit his owner, who is ignorant of the act, and neither authorized nor assented to it, it is a case of barratry, within the indemnity of a policy of insurance, (l Str. 581; 2 Ld. Raym. 1349; Cowp. 154; 1 T. R. 259; 3 Ibid. 278; 4 Ibid. 36; 6 Ibid. 379; 2 Dall. 137.) 2d. That the master acted, on the present occasion, as master ; and was guilty of a fraud, with a view to his own separate interest and emolument; which clearly amounted to barratry, though the ordinary freight and passage-money were secured for his owner. And if barratry is committed, the insurers are answerable, although the loss is not the direct and necessary consequence of the barratrous act. 3d. That the master was not the general agent and consignee of the plaintiff ; and when he undertook to cover the property, he manifestly acted as master, for his own benefit, and not as agent, for the benefit of his principal, upon a commission to be paid by the principal. 4th. That a warranty against a seizure for illicit trade, means a seizure in the trade, in which the owner employs the ship ; not a *seizure in a barra- r*oq« trous trade carried on by the master, without the owner’s knowledge *■ or consent. (3 T. R. 278.)
    The defendant contended,
    1st. That the plaintiff was estopped from alleging barratry, after he had approved the conduct of the master (whom he expressly recognised as his agent, in the letter of abandonment), and endeavored, by further evidence sent from America, to maintain the claim in the court of vice-admiralty at Jamaica. 2d. That the master intended to benefit, and not to defraud, his owner, so no barratry was committed. 3d. That the master, being the consignee of ship and cargo, was not capable of committing barratry ; which furnishes a conclusive distinction between the present case, and the cases cited from the books. (1 Emerig. 370; 2 Marsh. 442; 2 Dall. 137-9; Park 91; 6 T. R. 379; 7 Ibid. 505.) And 4th. That the seizure, detention and condemnation of the cargo, was on account of an illicit and prohibited trade, by covering belligerent property in violation of the law of nations, and the good faith of neutrals ; as well as by a prohibited intercourse with a Spanish colony.

         s. c. 3 Yeates 375.

       This cause had been tried twice before, upon a declaration containing a single count, charging the loss to have happened by the capture, arrest and detention of a foreign prince. On the first trial, the jury could not agree; and on the second trial, a special verdict was found, but so imperfectly, that judgment could not be rendered upon it. A venire facias de novo was, therefore, awarded: and the plaintiff had leave to add a count to his declaration, averring the loss to have happened by the barratry of the master ; on which point, new evidence was now given.

       Walden v. New York Firemen Ins. Co., Id. 451; Sturm v. Atlantic Mutual Ins. Co., 63 12 Johns. 513. Grim v. Phoenix Ins. Co., 13 N. Y. 77.

   Yeates, Justice,

delivered the charge of the court, to the following effect. In this action, evidence .has now been given upon a ground distinct from any, that was taken on the former trials ; and the only question to be decided is, whether the cargo insured was lost by the barratry of the master ?

For the plaintiff, E. Tilghman, Du Ponceau, E. S. Burd and Dallas.

For the defendant, Ingersoll and Rawle.

Barratry is an act committed by tbe master of a vessel, of a criminal nature, without the license or consent of the owner. There must be fraud in the transaction ; a selfish and sinister design, for the master’s own interest ; for if the act is done solely to benefit the owner, it does not constitute barratry.

It is the province of the jury to decide upon the credit of the witnesses, and the amount of the evidence. The enormity of the doceur, the lapse of time, and other circumstances, are calculated to excite doubt and suspicion. If, however, the jury think, that the master meant to take the premium, for covering the property, to his own private benefit, in exclusion of his owner; and not, in the first instance, to pay it to the owner, expecting from him a gratuitous compensation or reward, the act of barratry is proved, and the plaintiff must recover; unless the evidence shall satisfy the jury, that the master was the general agent and consignee of the plaintiff, and acted as such. In that case, the law is equally clear, that the acts of a general agent cannot, any more than the acts of the principal himself, be denominated barratry.

The other objections that have been made by the defendant’s counsel, appear to be satisfactorily answered, in the course of the evidence and the argument. The proof of interest in the cargo is strong ; and most clearly, the case is not a case of illicit trading, within the meaning of the warranty. *2971 nature ^’indirect intercourse with New Orleans, a Spanish -1 colony, was well known to the underwriters ; and in truth, the trade would not be illicit, if it was fairly carried on. Even in that respect, therefore, the objection cannot be sustained; and as it respects the violation of neutral character, it is the very ground of the plaintiff’s right to recover if the violation was committed for the private purposes of the master of the vessel. For, here we repeat, the sole question to be decided, is, whether the master, in breach or evasion of his orders, did a fraudulent act, in the course of the voyage, tending to his own benefit, and to the prejudice of his owner ? If he did, the verdict must be for the plaintiff. If not, or if what he did was in the character of a general agent, the verdict must be for the defendant.

         Barratrous acts are of two kinds, and are merely fraudulent or criminal. As to the first class of cases, it is always important to ascertain, whether the conduct of the master promoted his own interest; for if it did in any considerable degree, and especially, if his interest was in exclusion of his owners, the presumption is violent, that his intent was fraudulent. But the test of self-interest will not be sufficient to decide the second class of cases, which arise from crime. The crime which constitutes barratry, is “a wilful breach of law, to the prejudice of the owners.” In this point of view, it is of no importance, whether the master acted with reference to his own interest or not. Wilcocks v. Union Insurance Company, 2 Binn. 580; Dederer v. Delaware Insurance Co., 2 W. C. C. 67. See also the opinion of Brackenridge, J., Calhoun v. Insurance Co., 1 Binn. 321. But see Hood’s Executors v. Nesbit, 2 Dall. 137; s. c. 1 Yeates 114.

       In this case, the jury not being able to agree, were consti tut »d referees, by corn sent of parties, and made a report in favor of the plaintiff.


text:
    *MARCH TERM, 1804.
    Maybin, surviving partner, &c., v. Coulon.  Coulon v. Maybin, surviving partner, &c.

      Illegal eontraet.

    An action cannot be maintained in our courts, founded on a contract between a citizen and an alien, by which the former undertook to purchase vessels and cargoes in his own name, for the latter, and in like manner, to import the return cargoes, in fraud of the registry and revenue laws of the United States.

    These actions having been referred, the referees reported that there was due, in the first, from the defendant to the plaintiff, as surviving partner of Joseph Anthony & Co., a sum of $30,708.16 ; and that in the second, there was no cause of action. To this report, Coulon filed a number of exceptions, of which it is only necessary to state the substance of the single exception, which was the ground of the decision of the Court: to wit, “ That the balance reported to be due to Maybin, arose from a series of unlawful transactions, in violation of the acts of congress, respecting the registering of vessels, and the duties on tonnage and impost; and consequently, no court of justice could lend its aid to enforce the recovery.”
    The facts were briefly these : Coulon, an alien, came to the United States in the year 1794, bringing with him a considerable quantity of merchandise, which he placed in the hands of Joseph Anthony & Co. He had also left a considerable property in the Isle of France; and he was not only desirous to have that property brought to America, but to enter into various commercial speculations, with these and other funds, in the European, as well as Indian, markets. He accordingly entered into engagements with Joseph Anthony & Co.; and in consideration of his making them the depositaries of his funds, with an allowance of ample commissions for services, and of interest for advances, they undertook to purchase vessels and cargoes for him, in their own names ; and in like manner, to import the return car-[*299 goes. Among the vessels purchased for Coulon (some carrying only a *sea-letter) was the America, which was registered in New York, as the property of Joseph Anthony & Co., American citizens ; and a cargo afterwards brought in the America, from the Isle of France, though entirely owned by Coulon, was entered at the custom-house of Philadelphia, as owned by them. From the accounts and correspondence produced in court, as well as before the referees, it clearly appeared, that the balance resulted from these illicit transactions ;.and that the sum reported to be due to Maybin, was about the amount of the commissions for services, and the interest for occasional advances ; the net price of the vessels and cargoes having been actually paid from the funds of Coulon.
    The counsel for Coulon insisted,
    that the referees had erred in point of taw, by giving a sanction to the violation of the acts of congress  ; and that their report could not, therefore, be sustained or affirmed by the court. In the course of the argument they cited, 1 Pow. on Cont. 183, 195, 201, 203; 1 Bos. & Pul. 340; 3 T. R. 454; 4 Ibid. 466; 1 Bos. & Pul. 296; Cowp. 341; 5 T. R. 599; 1 Bos. & Pul. 556; 4 Burr. 2069; 3 T. R. 421; 6 Ibid. 61, 405; 3 Vos. jr. 373.
    Ingersoll, E. Tilghman and Levy, for Maybin.

      Du Ponceau and Dallas, for Coulon.
    The counsel for Maybin argued,
    that advances were made, and services performed, to a great amount, independent of the vessels and cargoes, and were not involved in any illici t imputation ; that it did not appear that the sum reported arose out of an illicit consideration or contract; that it was too late, after a reference an I report, which liquidated the accounts, to object to the legality of the consideration and contract; and that, even if the general transaction were illicit, still the contract 'being executed between the vendor and the vendee of the property, the plaintiff, not being the actual vendor, had a right to recover the money paid by Joseph Anthony & Co. to the vendor, at the request, and for the use of the defendant. In support of this last position, the following authorities were cited: 1 Pow. on Cont. 200, 1; 4 Burr. 2069; 1 W. Bl. 633; Cowp. 343; 3 T. R. 418-9; 6 Ibid. 61; 7 Ibid. 14; 3 Ves. jr., 612-3; 8 T. R. 575, 577.
    The cause having been argued, on these general grounds, during several days in December term 1803, and March term 1804, the unanimous opinion of the judges was delivered, upon full consideration, by Shippen, Chief Justice, in substance, as follows :

         s. c. 4 Yeates 24; where the ease is more fully reported.

      5) See also Mitchell v. Smith, ante, p. 269, and the notes to that case.

       See the registering act, 1 U. S. Stat. 287; and the impost law, Ibid. 135.

   By the Court.

— There is a just debt due from the defendant Coulon, to the plaintiff, Maybin ; and therefore, so far as the court could lawfully act, *3001 tlley would be desirous to affirm the *report of the referees. Hence, •* we listened, with particular attention and favor, to the attempt of the plaintiff’s counsel to distinguish the origin of the sum reported, from the general mass of the illicit transaction. The attempt has not, however, been successful; so that we must decide the question on the principles of law, which are clearly established by the authorities that have been cited.

The positive provisions of the laws of the United States, respecting American registered vessels ; the national policy of our navigation system; good faith towards the belligerent powers; and the very foundations of morality ; have been violated in the course of the transaction, now exhibited to us. The act of the court is necessary to give effect to the report of the referees : but no court of justice of the United States can lend its aid, at any time, or in any degree, to recover a debt originating in a source so forbidden, so foul and so pernicious. The report cannot, therefore, be affirmed.

Report set aside.

         It appeared, that one of the referees, upon discovering the illicit nature of the transaction, declined proceeding; hut was persuaded to resume the business of the reference, in consequence of an urgent letter from Maybin, appea'ing particularly to the sympathy and benevolence of the referee. One of Ooulon’s exceptions to this report, was pointed at this ex parte communication; and the court, in delivering their opinion upon the general question, stated, in strong terms, their disapprobation of one of the parties addressing the referees, by way of confidence or solicitation, pending the reference, though the letter should not contain any remarks on the merits of the controversy.


author: Yeates, Justice.

text:
    Deshler v. Beery.

      Warner of dower.

    Testator, iidet alia, bequeathed to bis widow 10001, and appointed her and two others executors; before his death, he had sold and conveyed certain premises, taking bonds and a mortgage from the purchaser for the purchase-money; at the suit of the executors, judgment was obtained against the purchaser, and the same property sold, under an execution issued thereon; at the instance of the widow, one of the executors purchased it, for the use of the estate, who, with the consent and approbation of the widow, resold the premises; the widow, during these transactions, never suggested a claim of dower, and the testator’s debts far exceeded his assets: Held, that if her conduct was an intonation to the public, and particularly to the parties, that she meant to waive her right to dower, her claim was barred.
    This was an action of dower, by the widow of David Desbler, against the tenant of the premises, tried at Easton, Northampton county, the-27th of June 1804.
    In point of fact, it appeared, that Deshler died, leaving a will, dated the 2d of November 1796, in which he bequeathed to his wife a legacy of 1000Í., his household goods, and a house for life ; and appointed her executrix, and Neuhart and Schrudder, executors. Before his death, he had sold and conveyed the premises to George Eddy, taking bonds and a mortgage for the purchase-money ; but Eddy’s conveyance was not recorded. The executors instituted a suit, obtained judgment, and issued execution against Eddy ; in consequence of which, the same property was levied upon and advertised for sale. At the instance of the widow (the present plaintiff), Neuhart, one of the executors, became *the purchaser, for the use of the estate ; and r*g01 the sheriff executed a deed to him, on the 9th of June 1801. And L with the knowledge, consent and approbation of the widow, he resold and conveyed the property to Beery (the present defendant), on the 30th of July 1801. During these transactions, the widow never suggested a claim of dower ; but there were several judgments against Deshler’s estate, at the time of the sheriff’s sale ; and his debts, generally, far exceeded the assets for paying them.
    The plaintiff's counsel insisted,
    that there was no relinquishment of the right of dower, on the sale to Eddy ; that the sheriff’s sale on the judgment against Eddy, for the price of his purchase, could not extinguish the right of dower; and that the present tenant, if he had not direct notice of the widow’s claim, had notice by a legal and equitable presumption, as his title depended on deeds, that naturally led to the inquiry. (2 Bl. Com. 132; Co. Litt. 32-3; 1 Fonbl. Eq. 22; 2 Ibid. 147, 159; 9 Mod. 37; 2 Atk. 83; 3 Bro. Ch. 264.
    For the defendant,

    it was urged, that in Pennsylvania, there is no claim of dower in lands sold by legal process for the payment of debts ; that dower is barred, even in the case of a mortgage for a debt, though the wife does not join in the deed (2 Dall. 127);
       that the money recovered from Eddy has been applied to the payment of debts; that there is no difference, as to the claim of dower, between the case of a power by will, to sell for the payment of debts, and the case of the widow’s consent to make such a sale ; and that the widow’s silence, on the subject of this claim, throughout the transaction, operates as a bar and estoppel, to her enforcing it, against a bond fide purchaser, for a valuable consideration, without notice. (1 P. Wins. 393; 1 Fonbl. Eq. 151; 18 Vin. Abr. 112; Finch 103; Prec. Chan. 85; 1 Eq. Abr. 355, 356, ca. 8, 10; 9 Mod. 37; 2 Vern. 370, 580; Cowp. 201.)

         E. Tilghman, on the trial, reported Lacock’s case, referred to in 2 Dall. 127, to be a- decision, “ that dower was barred, where the husband alone mortgaged land; and his executors, under a power in the will, with the consent of the mortgagee, sold the and for the payment of debts.”

   Yeates, Justice.

— Mrs. Deshler is entitled to recover her dower in the premises, unless the peculiar circumstances of the case operate as a bar. The circumstances relied upon to produce that effect, are these : she made Neuhart her agent to buy the land at the sheriff’s sale ; and she approved of the purchase, after it was made. She also knew and approved of the resale to the defendant, at a full price, and uncharged with dower ; and until the de*3021 ^en^ant bad paid the price, she never set up the present *claim. J The motives of Mrs. Deshler, in observing this silence, cannot be positively ascertained ; but she might think that, if the land sold high, in consequence of appearing clear of every incumbrance, there would be the better prospect that her legacy of 1000Í. would be paid. Upon the whole, the jury will decide, whether Mrs. Deshler’s line of conduct held up to the public, and particularly to the parties, that she meant to waive the claim of dower. If it did, the verdict should be against her. If it did not, and the jury think, that she always meant to assert her right of dower; then the verdict must be in her favor.

Verdict for the defendant.