author: Smith, Justice.

text:
    Commonwealth v. Lyon.

      Certiora/ri.

    A certiorari to remove an indictment from a court of quarter sessions to a circuit court will be granted, on an application by the defendant, supported by his affidavit in the usual form, unless something is shown in relation to his character or conduct, to induce the supposition, that public justice is likely to be impaired by the removal. Smith, J.
    The defendant having made an affidavit in the usual form, applied to Smith, Justice, for the allowance of a certiorari to remove this indictment from the quarter sessions of Northumberland county, into the circuit court.

      Cooper (acting for the attorney-general) stated the reasons which had induced him to decline consenting to' the removal; and the following authorities were mentioned. The removal of' an indictment, at the instance of the defendant, is discretionary with the court; but the discretion ought not to be exercised, without special cause. (2 Hawk. 407-8, § 27 ; 4 Burr. 2458.) The removal is not usually allowed in cases of perjury, forgery, &c., because such offences should be discouraged; and removals not only tend to delay justice, but to discountenance prosecutions. (Ibid. 408, § 28.) The act of assembly contemplates the same principle; for, if the attorney-general does not consent to the removal, writs of certiorari are only to be specially allowed, and certified in writing upon the writ, by the supreme court, or one of its judges, upon sufficient cause shown. (3 Dali Laws, 92.)
   Smith, Justice.

— It is not the practice to enter into an argument upon applications of this nature. The defendant has made the usual oath, as a ground for allowing the certiorari ; and I shall, of course, allow it, unless something is shown, in relation to his character and conduct, which will induce me to suppose, that public justice is likely to be impaired or defeated by the removal.

Cooper declaring that the defendant’s character was good, independent of its implication in the present charge : the judge immediately signed the allocatur.


source: Caselaw Access Project

license: Public Domain

text:
    *SEPTEMBER TERM, 1804.
    Commonwealth v. Matlack.

      Defalcation.

    In an action at the suit of the commonwealth, the defendant cannot have a certificate of a balance in his favor.

    The defendant had been clerk of the Senate ; and in that character received $900, as a fund to defray the contingent expenses of the house, during several sessions. The committee of accounts called upon him for a settlement; but he declined exhibiting his vouchers, unless they would allow him a certain retrospective compensation, to which he contended that he was entitled, under an act passed on the 22d of April 1794. The senate, thereupon directed the comptroller to institute the present suit. Upon the trial, the defendant proved, that he had expended considerably more money, than he had received, for the use of the house; and he claimed a verdict for the amount of his advances, as well as for the additional compensation allowed by the act of 1794.
    McKean, attorney-general, for the commonwealth. Dallas, for the defendant.

       Reeside v. Walker, 11 How. 272; United States v. Eckford, 6 Wall. 484.

   But after argument, The Court declared, that the defendant could not indirectly recover from the state, a substantive independent claim, by way of set-off, any more than he could directly recover a debt due from the state, by bringing a suit against her. That the present action was brought to compel an account for money received for the use of the senate; in which the defendant, if he proved that the money received was so applied, would be entitled to a verdict; but that even then, he could not be entitled to a verdict for the amount of his advances; which the senate alone was competent to allow.

Verdict, generally, for the defendant.


author: Shippen, Chief Justice. Smith, Justice.

text:
    *Rundle v. Murgatroyd’s assignees.

      Bctnkrwptey.

    Under the bankrupt law of 1800, a mortgage given by an insolvent, to secure a legacy bequeathed to his wife, which he had received and used in his business, is void, as against the assignee, though executed in pursuance of a previous agreement to secure the legacy, in case of insolvency.
    The point agito,ted upon the trial of this cause, turned on the validity of a mortgage given to the plaintiff by Murgatroyd, to secure to his wife, the amount of a legacy which had been bequeathed to her, by her grandmother. It appeared, that in the year 1784, Murgatroyd had entered into articles of agreement with trustees, by which he engaged to secure the legacy, in case he should become insolvent. He received the money, and mixed it with his other pecuniary funds ; but took no steps to secure the amount for his wife, until’the execution of the present mortgage, in March 1802, when he was insolvent, and was soon afterwards duly declared a bankrupt. The case was considered, as a case of marriage settlement, by the counsel on both sides.
    In support of the settlement, the following authorities were cited: 6 T. R. 154; 2 Bos. & Pul. 582; 6 T. R. 80; 2 Atk. 558; 1 Ibid. 192; 1 P. Wms. 459; 2 Dall. 199.
    In opposition to the settlement were cited: 1 Fonbl. 271, 272; 2 Atk. 480-1; 8 T. R. 82.
   Shippen, Chief Justice.

— The mortgage given by Murgatroyd is resisted on behalf of his creditors, upon the general ground, that it was given in contemplation of bankruptcy. There is but one exception to the rule, which declares a conveyance so given to be void ; namely, where a creditor obtains a preference, by urging his debtor for payment, and threatening him with legal process. The only question, therefore, is a matter of fact, whether Murgatroyd, at the execution of the mortgage, contemplated bankruptcy, and meant voluntarily to prefer the particular creditor ? If tho evidence proves the affirmative, the mortgage is void; but if otherwise, it is lawful and valid.

It has been urged, in favor of the plaintiff’s claim, that whatever may have been the situation of Murgatroyd, at the time of executing the mortgage, the act was done in pursuance of a previous agreement, entered into for a valuable consideration, when he was perfectly solvent. It would be grateful to our feelings, on the present occasion, could we express sentiments favorable to the maintenance and fortunes of a wife and children; but we cannot seek that gratification, through a sacrifice of the established principles of law. The agreement was executory ; and although it had relation to a possible insolvency, it might, perhaps, independent of the bankrupt law, have been carried into effect. But no antecedent contract can make the mortgage valid, upon the provisions and principles of the bankrupt law, if Murgatroyd *3051 *ac^1iaiiy gave it, when he was insolvent, upon the eve of a legal bank-J ruptcy. The general creditors had then acquired an interest in his estate; and it was too late to perform an engagement for giving preferent es and securities, at their expense, to any particular creditor.

The law respecting marriage settlements, is the same in England and in Pennsylvania. It requires a fair motive, as well as a valuable consideration ; and the interest must be actually declared and vested, at the time of a settlement, or it cannot prevail against the rights of honest creditors.

Rawle and-, for plaintiff ; Ingersoll and Tilghman, for defendant.

The present case by no means resembles the ease of General Stewart's settlement. There, Mr. McClenachan, on his daughter’s marriage, delivered to General Stewart a large sum, in certificates of public debt, expressly stipulating, that those certificates should be held and appropriated to the use of Mrs. Stewart and the children of the marriage. General Stewart always kept the fund represented by the certificates, distinct from his own immediate funds ; and although he subscribed them, first to the new loan of Pennsylvania, and afterwards, to the general loan of the United States, constituting the funding system, it was traced, and ascertained that the real estate specified in the deed of settlement (which, it is true, was made long after the marriage) had been, in fact, purchased with the actual proceeds of the original certificates, delivered by Mr. McClenachan uj>on the marriage. But here, the bequest of the legacy was made without stipulation, or condition ; the money being received by Murgatroyd, was blended with his other property, so that a separate existence or application could never be traced; and, under these circumstances, he acquired a credit, which would be false and delusive indeed, were the property now withdrawn, upon an obsolete and latent pretence, from the creditors who trusted to it.

Smith, Justice.

— I am likewise of opinion, that the mortgage must yield to the superior legal and equitable claims of the general creditors. It is a sound and uniform rule, that settlements made upon a wife and children, by persons who have not a sufficient estate to pay all their debts, are void against creditors. The decision upon General Stewart's settlement was not a departure from the rule ; but simply a recognition of the marriage portion of Mrs. Stewart, transformed and ascertained in a new shape. The late, as well as the present chief justice and myself, delivered our opinions at large in that case ; and united in the result, for the reasons that have been suggested; none of which can be assigned in favor of the present claim, under the mortgage.

The jury, according to the charge, found a verdict for the defendant.

         The validity of General Stewart’s settlement was tried in. December term 1799, in an amicablo ejectment brought by Blanchard’s Lessee v. Ingersoll. The facts proved upon the the trial may be reduced to the following case:
      * On the marriage of General Stewart with the daughter of Mr. McClenachan, in the .year 1781, he received, in real and personal estate, a portion of 40,000k Pennsylvania currency; of which loan-offioe certificates, for money loaned by Mr. Mc-Olenachan in 1777, constituted about a moiety, bearing interest at six per cent, per annum. In delivering the certificates, Mr. McClenachan told General Stewart, “ that he might use the interest, but that the principal of the certificates should be settled on his wife and children, and appropriated sacredly to their exclusive use and benefit and General Stewart promised expressly to make the stipulated settlement and appropriation. Soon afterwards, General Stewart entered into partnership with Jü'. A. Nesbit, and prosecuted an extensive scene of commerce, upon funds chiefly furnished by Mr. McClenachan. In the year 1785, General Stewart went to England, leaving the certificates in the hands of his partner (with whom they had been specifically deposited several years before), and taking a -written receipt and promise, to return them to him, or to his order, on demand. While in England, he made a will, dated the 7th of October 1787, which bequeathed the certificates to his wife and children, but did not refer to any previous agreement or promise to do so. He returned to America in 1787, and soon afterwards, assigned the certificates in trust to Mr. McClenachan and his partner, for the use of his wife and children, by a deed dated the 9th of June 1788 ; which was also silent as to any previous agreement upon the subject; but referred to the will of 1787, or any other last will which he might make, for the apportionment of the fund. The certificates were subscribed to the new loan of Pennsylvania; but were re-exchanged, and finally subscribed to the loan of the United States. The public stock having risen to its full nominal value, General Stewart proposed to Mr. McClenachan (Mr. Nesbit being dead), to sell it, and vest the proceeds in houses and city lots, as offering a better speculation; to which Mr. McClenachan assented, upon the original principle, that the investment should be for the use and benefit of General Stewart’s wife and children. The stock was, accordingly, sold and transferred, between June 1791 and April 1792; and the property in question was purchased, between March 1792 and February 1793, to the value of about $25,000. On the 20th of May 1793, General Stewart executed a deed, before two witnesses, conveying this property to Mr. McClenachan, and his son, George McClenachan, in trust; and after reciting the deed of trust of 1787, the subsequent sale of the certificates, the investment of the proceeds, and the intention that the real estate shall be held to the same uses as the certificates, according to the apportionment of the will of 1787, or such other last will, as General Stewart might make, it concluded with reserving a power of revocation, by consent of both parties, to sell the trust estate, and to invest the proceeds in other funds, but in the name of the same trustees, and for the same uses. The deed being executed, General Stewart delivered it to Mr. McClenachan, who deposited it for safe-keeping (as he resided in the country), with other valuable papers belonging to himself, in an iron chest, kept by General Stewart in his counting-house. General Stewart died on the 14th of June 1796, having, a few hours previously, made a will devising and bequeathing all his estate, real and personal, with a power to sell and convey, for the payment of his debts, and constituting Mrs. Stewart an executrix, and Messrs. McClenachan, W. Tilghmanand F. West, executors, without referring to the deed of settlement, or any previous agreement upon the subject. In May 1793, and at the time of his death, he was generally supposed to be in affluent circumstances; but about four months after his death, a contrary suspicion arose, which subsequent events confirmed. In taking the inventory of his effects, the deed of settlement was found; but the executors regarded it as incomplete and invalid. While, too, the executors thought the estate rich, Mr. Mc-Clenahan himself requested that the deed should be laid aside; and he and Mrs. Stewart joined the other executors in selling and conveying part of the trust property, for the payment of debts, under the power given in the will of 1796. The failure of Morris & Nicholson’s notes (in which General Stewart and Mr. McClenachan had speculated largely), and other disappointments, proved fatal to the estate ; and it was even ascertained that, on a fair estimate, the general balance of General Stewart’s account of property and debts was against him, at the time that he executed the deed of •* 1793: but on the other hand, he was clearly solvent *when he executed the deed of 1788. Under these circumstances, Mrs. Stewart consulted her counsel on the validity of the deed of 1793, representing all the previous facts (which had not been adverted to, while General Stewart’s estate was thought solvent), and was advised to prove and record it. This was done, on the 27th of February 1797, before any judgment had been obtained against General Stewart; and the trustees having surrendered and assigned the trust estate to Mr. Ingersoll, in June 1797, an amicable ejectment was instituted, for the purpose of settling the conflicting claims of the widow and the creditors.
      The counsel for Mrs. Stewart (W. Tilghman, Lewis, Ingersoll and Dallas) contended, that marriage was in itself a valuable consideration, to entitle the wife to a provision even out of her husband’s estate, independent of her own; that a voluntary settlement after marriage, by a husband, not indebted, is valid, with or without a consideration on the part of the wife, against all subsequent creditors ; that an agreement for a settlement, made in writing, before and in contemplation of marriage, will always be carried into effect; that a parol promise of a settlement, made before and in contemplation of marriage, is equally valid in Pennsylvania, although the law upon the subject has been altered in England, by an act of parliament; and that even where there is no previous agreement between the parties, a court of equity will never grant a wife’s personal property to her husband, until he has made an adequate settlement upon her. As to the facts of the present case, it was argued, 1st. That before the marriage, a contract was entered into between Mr. McOIenachan and General Stewart, bond fide, and upon a valuable consideration. 2d. That the settlement now controverted, was made in pursuance of that contract, from the proceeds of the certificates, specifically traced, which constituted the original consideration. 3d. That the performance of the contract was enforced by the principles of moral and social obligation; and was in strict conformity to the direction which a court of equity or of law would give to the appropriation of the fund thus ascertained. 4th. That it was not essential to the validity of the deed, that it should be proved and recorded, except as against purchasers and judgment-creditors, whose rights and interests are not in question. The following authorities were classed and cited by the counsel for Mrs. Stewart: 1 Atk. 15; 2 Ves. 18; 2 Eq. Abr. 51 h; 3 Cro. Jac. 454; 1 Ves. jr., 196; 1 Dall. 193, 430; 1 Atk. 168; 2 Ibid. 519, 520; Ambl. 121; 2 Atk. 448; Ambl. 586; 1 Eq. Abr. 19; Bunb. 187; 2 P. Wms. 316; 1 Vent. 194; Cro. Jac. 158; Cowp. 432; 2 Vern. 167; Prec. Ch. 208; 1 Fonbl. 88; 2 Atk. 419, 420; 1 P. Wms. 382; Prec. Ch. 548; Ibid. 22; 1 Dall. 414; 2 P. Wms. 414; Ambl. 409.
      The counsel for the general creditors (A. Tilghman and Levy) urged the great inconvenience and injustice of allowing a more verbal conversation, of eighteen years’ standing, to be the foundation of withdrawing from creditors, so great a mass of the debtor’s apparent property. The inception of the alleged contract, is without writing, and without any witness, but the father, who was a party to it. It is admitted, however, that even a parol agreement, if fairly proved, and legally carried into effect, must prevail in Pennsylvania. But transactions, honest between the parties themselves, often become fraudulent in relation to others ; and the purest executory bargains between individuals are liable to be defeated, upon general principles of public policy, unless they are executed with strict legal publicity and form. In the present instance, everything conspires to beget caution in the admission of the widow’s claim. The trust deed of 1788, makes no allusion to a subsisting contract between General Stewart and Mr. McOIenachan; nor does it make an apportionment of the fund among the widow and children. The subject of the trust was a paper medium, as negotiable by delivery as a bank-note; and shifting, as it did, from new loan to federal stock, from stock to money, on what rational ground (considering, particularly, that General Stewart held similar certificates and similar stock in his own right), can it be sustained, that the purchase of the real estate was made with the proceeds of the identical certificates delivered on the marriage? But the settlement being made of land, it is a voluntary settlement, within the principles and the provisions of the statutes; and it is not to be conceded, that a verbal agreement to settle certificates, constitutes a valuable consideration, Hot the settlement of lands, by the ostensible owner, having become actually indebted. *- The deed is not only void, as it contains a clause of revocation, and cannot be regarded as a legal settlement; but it is fraudulent, as it remained in the possession and power of the grantor. In the course of this argument, the following authorities were cited: 2 Bulst 226; 3 Co. 81; 1 Burr. 475; 2 Vern. 510; 1 Atk. 168; 2 Ibid 481; 1 Ibid. 15; 2 Ves. 10, 11; 2 Vern. 510; 3 Co. 82 2 Freem. 236.
      The Court (composed of McKean, Chief Justice, and Shippen and Smith, Justices) delivered their opinions, unanimously, in favor of the settlement; and the jury found a verdict accordingly.

       So long as trust property can be traced and distinguished, it is liable to the claim of the cestui que trust; but the right of reclamation is at an end, when the subject-matter has been concerted into money, and mixed with other binds. Thompson’s Appeal, 22 Penn. St. 16; s. p Reed’s Appeal, 84 Id 207; Robb’s Appeal, 41 Id. 45; Keener v. Cross, 65 Id. 303. See Kepler v. Kepler, 80 Id. 153. Equity will follow a trust fund through every transmutation, if the rights of a bona fide purchaser, without notice, do not intervene. Sadler’s Appeal, 87 Penn St. 154.


text:
    Duncanson v. McLure.

      Title to vessel. — Illegal conta/rct.

      An agreement for the sale of a ship, at a future day, the purchase-money being secured, is an immediate transfer of the title.
    Murgatroyd v. Crawford, 3 Dall. 491, overruled.
    One whose title to a vessel depends on a contract in fraud of the registry laws of the United States, cannot maintain trover for the same.
    This was an action of trover for the ship Mount Vernon, which the defendant had purchased, under a sentence of condemnation as prize, pronounced by the French Provisional Tribunal of Prizes, established in the city of St. Domingo. The material facts of the case were these:

    Mr. Duncanson, an English gentleman, came to the United States with a view to settle ; and in order to manifest his intention, took an oath of allegiance to the state of Pennsylvania, though he had not been long enough in the country to entitle himself to naturalization, under the act of congress. Contemplating a circuitous voyage from America to England, and thence to the East Indies, he applied to Messrs. Willings & Francis, to procure a ship for him ; and those gentlemen agreed absolutely with Mr. Thomas Murgatroyd, for the purchase of the ship Mount Vernon, owned by him ; the bill of sale being made out, and delivered to them, upon terms of payment precisely ascertained. It, then, however, occurred to Mr. Duncanson, that as he had not yet acquired the rights of American citizenship, he could not enjoy the advantages which he proposed to derive from his projected voyage. For the trade from England to the East Indies is, by the law of that kingdom, a monopoly ; no British subject can, individually, embark in it, without incurring a forfeiture of his vessel and cargo ; though it has recently been adjudged in England, that an American citizen is entitled to carry on the trade, by virtue of express stipulations in the treaty of amity *3091 an<^ commerce between the United States *and Great Britain,
       J Hence, it was deemed necessary to enter upon another operation. The bill of sale was sent back, and a new contract was formed between the parties, upon these principles: that Mr. Murgatroyd should remain the owner of the ship, and as such retain the register and make the insurance ; that she should, however, he delivered to Mr. Duncanson or his agents; that Messrs. Willings & Francis should procure a freight for her on Mr. Duncanson’s account ; that Mr. Murgatroyd should empower Mr. Skirrow (a gentleman who went as a passenger) to assign and transfer the ship to Mr. Duncanson, in England, on the 1st of September ■ ensuing, at which time Mr. Duncanson would be duly naturalized as an American citizen ; and that the consideration-money should be secured by the notes of Messrs. Willings & Francis, payable, at all events, in certain instalments.
    The Mount Vernon sailed from Philadelphia, on the 10th of June 1796, with the usual documents of an American vessel. As soon as she had cleared the capes of the Delaware, she was boarded and taken possession of by “ the Flying Fish,” a French privateer, and carried into the port of St. John, in the Spanish island of Porto Rico. While she remained there, the ship and cargo were libelled by the captors, in the Provisional Tribunal of Prizes, at the city of St. Domingo, in the island of St. Domingo ; a court establishes by the republic of France in that city, for the determination of questions of prize. And on the 30th of August 1796, after various proceedings, the following sentence was pronounced, by the eom-t:
    “ Thirteenth Fructidor, Fourth year.
    Condemnation of the English ship Mount Vernon.
    Extract from the books of the office of the provisional tribunal respecting prizes, established in St. Domingo.
    We, Francis Pons, judge of the provisional tribunal respecting prizes established in St. Domingo, having looked over our sentence of the seventh Thermidor last, where all the papers exhibited by citizen Nadal, captain of the privateer Flier, against the ship Mount Vernon, are duly noticed, through which we had submitted the decision of this prize to the civil commission of Guarico, which applies again to our tribunal for pronouncing sentence of this subject; having noticed also instructions which were officially given us by the citizen agent of the French Republic in this city, issued by the civil commission aforesaid, in whose archives they have been duly recorded, *from which it appears, first, that the papers having been thrown into the sea by the captain, in sight of the privateer which captured him, secondly, that the captain and supercargo having precipitately abandoned their ship, in spite of the good treatment received by them from the French captain, and the hints he gave them about remaining there, in order to plead their own cause, and thereby avoid her confiscation, thirdly, the behavior of the captured crew, fourthly, the captain being a Portuguese, without a certificate of his naturalization, fifthly, that the United States, in the last treaty which they concluded with England, having suffered to be added to the articles whicli • have been looked upon till at present as contraband of war, staves, tackles, sail-cloth, iron-hoops, and finally all which can be made use of for vessels, are sufficient motives to condemn said ship; after a serious examination we have judged and do judge that the ship Mount Vernon, captain George Dominico, Portuguese, with her cargo, has been duly and justly captured by the French privateer, commanded by citizen Nadal, to whom we adjudge her as property belonging to him, and of which he may dispose under the clauses and conditions made with his officers and crew, he being accountable for the duties of invalids and the costs of the tribunal, which he shall pay to the bearer of our notary’s order. Santo Domingo, Fructidor thirteenth (August thirtieth), fourth year of the French Republic, one and indivisible. Signed in the register, Pons, Judge, and Despujeaux, Notary-public.
    (Signed) Pons, Judge.
    Depujeaux, Notary.”
    Under this sentence of condemnation, the Mount Vernon and her cargo were delivered to the captors, by the Spanish governor of Porto Rico, with permission to sell them there. At the public sale, Rousseau, a naturalized American, purchased the ship; and afterwards sold her for $22,000 to McLure, the present defendant, an American citizen, who brought her to Philadelphia. A replevin was then issued for the ship, in the name of Murgatroyd, from the circuit court for the Pennsylvania district ; but it appearing on the trial, that Murgatroyd had received payment of all the notes, which Messrs. Willings & Francis gave for the purchase-money, the court declared, that he had no property in the ship, to maintain a replevin ; and directed a nonsuit. In consequence of that defeat, the present action of trover was brought in the name of Mr. Duncanson.

    The cause was argued, at great length, upon the following general points :

    *lst- Whether the ship Mount Vernon, at the time of her sailing and capture, was the bond fide property of Murgatroyd, a citizen of the United States ; or was only registered and held in his name, in trust for Duncanson, an alien.
    2d. Whether the capture of the Mount Vernon was a lawful, or a piratical act; considering the commission of the privateer, and the circumstances of the capture.

      3d. Whether the French court, established at St. Domingo, was a competent tribunal, to decide, in this case, the question of prize or no prize ; the city of St. Domingo then belonging to Spain, or not being surrendered to France ; the ship lying in a Spanish port, at another island, belonging to Spain ; and the United States being at peace both with France and Spain.
    In relation to these points, thq plaintiff’s counsel contended:
    1. That the property of the Mount Vernon continued in Murgatroyd, until the power was executed by Skirrow ; or, at least, until the last of the instalments of the purchase-money was actually paid; that the execution of the power, being prevented by superior force, capture and detention, ought not to affect the original rights and interests of the parties ; that the contract with Duneanson was merely executory (a species of contract recognized by the law), and until the specified event had actually occurred, to wit, an arrival in England, and a transfer by Skirrow, no property could vest; and that there was no fraud upon belligerent rights, no violation of neutral duties, in the formation or affirmance of such a contract. 2 How. on Contr. 79; 3 Dall. 491; Adm. Inst. 218; 2 Journ. Cong. 114; 3 Rob. 24, 31, 39; Treaty between the United States and France, 1778 (8 U. S. Stat. 6), art. 6, 15, 21, 23.
    2. That the capture of the Mount Vernon was piratical; for it is piracy, not only when a man robs without any commission at all, but when, having a commission, he despoils those whom he is not warranted to fight, or meddle with'; such as are in alliance *or friendship with that state which has ,2 given him his commission. (2 Woodes. 422.) That at the time of *• the capture, the United States and France were in alliance and friendship ; and therefore, it was piracy, even in a French commissioned vessel to seize, spoliate and sequester American property. And that, whenever the piratical taking is succinctly ascertained, it becomes a clear and indisputable consequence, that there is no transmutation of property; no right to the spoil vests in the piratical captors ; no right is derivable from them to any re-captors, in prejudice of the original owners. (Ibid. 429-9.)
    3. That capture, without condemnation, does not work a change of property. (2 Burr. 693 ; 2 Dall. 5.) That a condemnation, to be lawful, must be pronounced by a court of the captor, in the country of the captor, or of a co-belligerent. (1 Rob. 114; Sir Win. Scott and Mr. Nicholl’s letter to Mr. Jay.) That neither the island of Porto Rico, to which the ship was carried, nor the city of St. Domingo, where the condemnation was pronounced, belong to the country or jurisdiction of the captor; nor were France and Spain allies in the war, at the time of the capture. (5 vol. Debr. Col. Stat. Pap. 18-21.) That foreign judgments may be inquired into, wherever the court pronouncing them has not jurisdiction of the subject, on principles of the law of nations, as well as on principles of the common law. (2 Str. 1078; Doug. 1; Park 353 (4 edit.); 1 Rob. 114; 3 Dall. 15; 2 Rob. 174; 3 Ibid. 53; 3 Ibid. 82; Doug. 555; Park 363; 7 T. R. 523; 2 Show. 232; 1 Emerig. 232, 438.
    In relation to the general points of the cause, the defendants counsel contended:
    1. ■ That the case exhibits a manifest violation of the registering act; and militates against the duty of a neutral character, by masking the real property of a belligerent alien. That the act of congress not only prohibits all open avowed ownership of an alien, in a registered vessel of the United States ; but every species of secret or latent ownership in the ship, and her issues and profits, “ by way of trust, confidence or otherwise.” (1 U. S. Stat. 287, § 1, 2, 4, 7, 16; Ibid. 56, § 6.) 1 hat an ownership in trust, could never be more strongly characterized ; for the ship was bought for him, and the price was paid by him, through his agents ; she was insured at his charge ; she sailed at his risk ; and an agent named by him was possessed of an absolute power to transfer her to him. That the contract was not executory, in the sense contended for ; as the intention was to pass an immediate right of property, an absolute usufructuary enjoyment, keeping back the formal title only, for a specific unlawful purpose ; as there was no covenant to convey, depending on any event, but an absolute power and *1131 man(^a*e *° transfer; as there was no mutuality, the price being J payable, at all events, *and Murgatroyd was never again capable of sharing in the profit or loss of the ship. That the property was so changed, at the time of sailing, that the ship would have been liable, as Duncanson’s, tc execution and attachment, and to the statutory assignment of the insolvent or the bankrupt law. That if such a mask could secure impunity, in violating the registering act, aliens, and particularly belligerent aliens, would soon bo the owners of a great portion of the American tonnage. Maybin v. Coulon (ante, p.298), 5 T. R. 112; 3 Dall. 495; 3 Rob. 243, note a; 4 Ibid. 91, 93, 95. That, indeed, in every aspect of the cause, an American common-law court ought not to interpose ; not, if it is a breach of our navigation laws ; not, if it is a cover of belligerent property ; not, if Duncanson is an Englishman ; and not, if it is a question of prize, which is exclusively of admiralty cognisance. 2 Rob. 111, 114; Wesk. 359; 1 Mag. 437; 3 Rob. 269; 2 Dall. 165; 4 T. R. 382; 3 Dall. 6; 3 Ibid. 25, 32; 7 T. R. 696; 8 Ibid. 444; Park 71; 2 Dall. 4; 2 Burr. 693-4; 2 Dall. 270.
    2. That the capturing privateer had a lawful commission from the French republic ; captured the Mount Vernon as prize, on the high seas ; and sent her for adjudication to a court, established by the nation of the captor. Such a capture may be tortious, but it can never be piratical. In the present instance, however, the appearances, at the time, and the result of subsequent investigation, must equally justify the proceeding : for it is hoav notorious, that the Mount Vernon was an English OAvned ship, going to a belligerent port, and with false papers, describing a false destination. If, then, Duncanson was the owner of the ship, and was an enemy of France, who had not acquired the rights of neutral domicil, the capture was lawful; and the courts of this country could not interfere, before condemnation ; nor, dfortiori, can they interfere, after condemnation and sale. (Vatt. lib. 3, c. 14, § 208, p. 583.)
    3. That the city of St. Domingo was either to be considered as belonging to France, under the cession of the treaty between her and Spain ; oi as the country of Spain, an ally of France, on the eve of engaging ir the war against Great Britain. (Treaty of 22d July 1795, art. 9.) That the French constitution had regarded the cession as complete, and the legislature of France had actually divided the Spanish side of St. Domingo into departments. (Const, art. 3.) That Great Britain, in her manifesto, had also considered the cession from Spain to France as absolute. (New Annual Reg. p. 121, 1796.) That a recurrence to dates will satisfactorily show the relative situation of France, Spain and England, on the co-operation of the two former in hostilities against the last. Thus, the Mount Vernon was taken on the 9th of June, carried into Porto Rico on the 4th of July, condemned at St. Domingo on the 30th of August, sold on the 26th of October *1796, and kept under embargo until the 27th of May 1797. A treaty r*314 of alliance between France and Spain was signed on the 19th of Au- *- gust, and ratified on the 6th of September 1796, in which a joint war with England is contemplated; and accordingly, on the 5th of October 1796, Spam published a declaration of war. Thus, when the Mount Vernon was captured and condemned, France and Spain were in alliance, with a view to a war against England ; and the joint war was actually declared and waged, while the ship remained within the territory and power of the allies. That, independently of the question of alliance and hostility, neither the place of condemnation,- nor the place where the ship lay, can avail the plaintiff, if Spain permits and England does not complain. That the institution of courts for prize causes, in countries not belonging to the captors, nay, in neutral countries, has been practised, as well as recognised by England; and has been practised as well as recognised by America. 2 East 473; 2 Rob. 174; 4 Ibid. 34-5, 44; Carth. 474; 2 Danv. Abr. 269, pl. 8; 2 Brownl. 11, 29; Godb. 386; Park 353; 5 vol. Journ. Cong. 440 (30th Nov. 1779), Cochin, 708.

         This introductory statement of the facts is transcribed from the charge of the court, in the action brought upon a policy of insurance, on the Mount Vernon. 3 Dall 491. Upon more mature consideration, the opinion there delivered was overruled in the present cause, by the same court; and was virtually condemned in the circuit court of the United States, where an action of replevin had been first instituted in the name of Murgatroyd v. McLure. See post, p. 842. The name of Mr. Duncanson was now used without his knowledge or consent, for the benefit, it was suggested, of the underwriters, who had paid a total loss, under the former decision, and Messrs. Willings & Francis, who were in advance for the outfits of the ship. It was objected, that the names of the real parties should appear on the record; but the objection was not sustained by the court.

         See Wilson v. Maryatt, 8 T. R. 31.

       The premium of insurance, however, was paid by Mr. Duncanson; the ship actually sailed on the voyage insured at his risk; and the recovery against the underwriters (3 Dall. 491) was applied to the reimbursement of the purchase-money, paid by Messrs. Willings & Francis, on account of Mr. Duncanson.

       Post, p. 342.

       The trial of the cause first came on, in March term, 1804; but after all the evidence was heard, and part of the arguments of counsel, some of the jury stated to the court, that they felt themselves embarrassed from the declaration of three of their brethren, “ that consistently with their religious principles, and conscientious scruples, they could not, under any circumstances of proof, or any course of reasoning, find a verdict in favor of the party, who claimed the ship, under a condemnation as prize of war.” It was wished, on both sides, to reconcile the objecting jurors to the discharge of a public duty, in which their consciences ought to be governed by the law of the land, and not by personal considerations: but every effort being ineffectual for that purpose, the court observed, that they could not, on the one hand, exercise the oppression of coercing a juror to act in contradiction to his real religious and conscientious scruples ; nor on the other would they expose the defendant to the consequences of a trial, in which he might lose, but could not possibly obtain a verdict. Lamenting that so much time had been consumed before notice of the objection, the court directed a juror to be withdrawn.

   The Court delivered a long and elaborate charge to the jury, on the two principal points in the cause. 1st. They expressed considerable doubt, whether the condemnation of the Mount Vemon was pronounced by a competent court; inasmuch as the ship was not within the jurisdiction of the country of the captors ; as the evidence did not satisfactorily prove, that France had taken possession of St. Domingo, in pursuance of the treaty oí cession ; and as Spain and France did not appear to be actually allies in the war, at the time of the capture and 'condemnation. 2d. But they were clearly and decidedly of opinion, that the charge delivered in the case of Murgatroyd v. Crawford (3 Dall. 491), was erroneous and untenable. Acknowledging and retracting, therefore, with candor, the error which they had then committed, they declared, that the verdict must be in favor of the defendant; inasmuch as the plaintiff’s claim to the ship was founded upon a transaction, 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, by way of trust, confidence or otherwise.

Notwithstanding the explicit decision and direction of the court, one of the jurors refused, during four days, to concur in a general verdict for the defendant ; declaring, in open court, “ that although he stood alone, he would only lay down his opinion with his life : for he never could consent to cast the property of the ship upon the defendant, through the medium of such a capture and condemnation.” At length, the form of a special verdict was submitted to the jury, by each side ; and the jury adopted and returned the form prepared by the defendant’s counsel.

*When the special verdict was brought before the court, for argument, at December'term 1804, the defendant moved for a new trial, on the ground, that although the facts were sufficiently found, for a judgment, on the point of a breach of the acts of congress ; they were not sufficiently found, to enable this court, or the high court of errors and appeals, to decide upon the objections to the condemnation, because St. Domingo was Spanish territory, within which a French prize court was not competent to act; and because the ship was not within the jurisdiction of St. Domingo, but at Porto Rico, when she was condemned. Besides, in an action of trover, the jury are bound to give the actual value of the property, if they find for the plaintiff; and in this case, they have given only prime cost of $22,000 on the sale to the defendant; whereas, the value, according to the only evidence before the jury, was $40,000.

After repeated arguments, The Court determined that the facts were not sufficiently found, on the whole case; and although they adhered to their opinion, as delivered in the charge, in justice to the plaintiff, who had a right to a writ of error, as well as in consideration of the importance of the decision, it became necessary and proper to award—

A new trial.

       In Baring v. Clagett, 3 Bos. & Pul. 201, which was an action on a policy oí insurance, on this ship, warranted American, it was held, that the sentence of the French court, at St. Domingo, was conclusive evidence that the ship was not American.

         Yeates, Justice, thought that enough was found, upon the special verdict, to give judgment for the defendant, on the paramount and controlling question of a violation of the acts of congress. He was, therefore, opposed to a new trial, though the facts on the other questions were, he admitted, defectively found, and though he did not approve of the estimate of the damages, for which no evidence had been adduced at the trial. Smith and Brackenkidge, Justices, however, pronounced the decision of the court.


author: Shippen, Chief Justice. Yeates, Justice. *Smith, Justice. Brackenridge, Justice.

text:
    *DECEMBER TERM, 1804.
    Commonwealth v. Franklin et al.

      Certiorari.

    A certiorari issued to remove an indictment from a court of quarter sessions of &e., to the circuit court, was directed to the judges of the court of common pleas of &c., and returned by the associate judges of that court: Held, that the direction and return of the writ were fatally irregular.
    The general question, upon the constitutionality of the intrusion act (3 Dall. Laws, 703), having been decided at the last term, in the affirmative, this case came again before the court, upon the remaining exceptions in arrest of judgment, as they are stated ante, p. 257; but che counsel for the defendants abandoned the third and fourth, and the argument and decision turned entirely upon the sixth and seventh exceptions.
    For the defendants.

    — If the cause was never pending in the circuit court, as the sixth and seventh exceptions allege, all the proceedings there, are, of course, coram non juclice; and the judgment must be arrested. These exceptions will, therefore, be first considered. Then, 1st. The certiorari is directed to a wrong court. 2d. It is returned by unauthorized judges. 3d. It does not describe and identify the indictment, which is annexed to the return.
    1. The courts of quarter sessions, and of common pleas, are courts of distinct and independent jurisdiction; though the same judges officiate in both courts. Each has its own seal, its own record and its own clerk ; and the subjects of their cognisance are essentially different; the one relating to criminal prosecutions ; and the other to civil suits. Const. Art. V., § 1, 7; 4 T. R. 499; 1 Bac. Abr. 572, 573; 2 Hawk. P. C. c. 27, § 80, 81, 72.
    2. The return is made by the associate judges of the common pleas, to the judges of the supreme court, and not to the judges of the supreme court sitting as a circuit court. And *the authorities already cited, show pg, * that a writ wrongly directed, or wrongly returned, will remove ^ nothing.
    3. The indictment consists of two distinct counts, containing two distinct charges, of two distinct offences. Three of the defendants only are implicated in the charge of the first count: and yet the certiorari directs the removal of an indictment against the four defendants, for both offences. This is not such an indictment, and therefore, the proper record has never been removed. 2 Ld. Raym. 1199; 1 Ibid. 609; 2 Hawk. c. 27, § 82; 2 Ld. Raym. 1803.
    For the Commonwealth.

    — The praecipe for the removal of the indictment was written by the counsel of the defendant; the certiorari was worded conformable to the praecipe; the writ was specially allowed, and issued at the instance of the defendants: and yet the defendants endeavor now to defeat the jurisdiction of the circuit court, by the irregularity of their own process. It is a general rule in civil cases, that no man shall take advantage of his own wrong. In criminal cases, too, it is a rule, that errors in form shall be taken advantage of, as soon as is reasonable after they occur, or a waiver of the advantage shall be inferred; and an indictment may be removed, without certiorari, by delivery of the justices, per manu propria. Here, the defendants appeared gratis, and never objected to the imputed errors, for a year after their trial. Hawk. B. 2, c. 27, § 102; 2 Str. 843; 2 Hale 213; 2 Ld. Raym. 1518-9.
    But independent of this general course of reasoning and authority, the certiorari is well directed and returned. The true designation and official style of the judges must be “Judges of the Court of Common Pleas for their commissions are only in that character; and “ Judges of the Court of Quarter Sessions,” is a style of office unknown to the constitution and laws. The certiorari is directed “ to the judges of the court of common pleas for Luzerne county, and every of them, to remove the indictment depending before them, or some of them.” Now, the indictment must have been depending before them, or some of them, sitting as a court of quarter sessions. The only use of a description is, to ascertain the person required to do an act; and here the description does ascertain the persons, who composed the court of quarter sessions ; who are, therefore, the persons before whom the indictment was found ; who ought to transmit the record to the superior court; and who have sufficiently done so, by returning it to the judges of the supreme court, those judges being the constituent members of the circuit court, sitting in the county of Luzerne.
    Nor is the objection to the description of the indictment more valid than the objection to the description of the judges. The certiorari does not, in fact, call for the removal of an indictment against *four persons for two offences ; but it issued “ to remove an indictment for combining and conspiring for the purpose of conveying, possessing and settling on lands, &c. And also for combining and conspiring for the purpose of laying out townships, &c., wherein the commonwealth is plaintiff, and John Franklin, Elisha Satterlee, John Jenkins and Joseph Biles are dofendants that is to say, an indictment wherein the commonwealth is plaintiff, and those four persons are defendants, although it may contain a count, in which three only are charged ; and an indictment which does, indeed, charge two offences to have been committed, though three of the defendants committed the first, and all of them committed the second. Even, however, suppose, that the certiorari had described an indictment against four persons, when only three were, in fact, indicted ; yet, the record being transmitted, and the three persons indicted actually appearing, and being tried, there can be no injustice Or irregularity in the proceeding. 4 Vin. Abr. 337, B. 2, pl. 2; 1 Roll. Abr. 395; 4 Vin. Abr. 338, pl. 6, in note; Ibid. pl. 7; 2 Hale H. P. C. 214; 4 T. R. 499.
   Shippen, Chief Justice.

— The objection to the direction of the certiorari is fatal. The power and cognisance of the judges of the court of common pleas do not extend to criminal cases. Those judges are, indeed, ex officio, members of another court, which possesses a criminal jurisdiction ; but when sitting there, they are judges of the court of quarter sessions, not of the common pleas.

I am also inclined to think, that a certiorari, calling for the removal of an indictment against four, generally, will not remove an indictment, which charges only three persons, in one of its counts. It is true, that the circuit court may obtain the removal and cognisance of an indictment, as well upon the delivery of th.e record, by one of the judges of the court of quarter sessions, per propria mamu, as upon the return to a certiorari. The present case, however, rests upon the authority of the writ; and though it is not without doubt, I am disposed to hold, that not only the direction and the return are irregular ; but that the body of the writ is defective, in the description of the indictment to be removed.

Yeates, Justice.

— The authorities cited for the commonwealth are in point, to show that the certiorari for the removal of an indictment against four, is sufficiently descriptive, to remove an indictment against three only, under such circumstances, as appear upon the present occasion. My only difficulty, therefore, arises from the direction and the return of the writ; which, on a question of jurisdiction, in a criminal case, must, I think, be deemed fatally irregular’.

*Smith, Justice.

— I have hitherto declined taking any partin judicial proceedings against the defendants; because, I am personally interested in the lands, on which, it is charged, they have unlawfully intruded. But as my opinion is favorable to them, on the present point, I will not abstain from delivering it.

The last objection is fatal, I think, to the proceedings. The direction of the certiorari was to the judges of a wrong court; and the return of the writ is, also, made by the judges of a wrong court. The judges of the court of common pleas never had cognisance of the indictment; nor could they have any power over the record of the court of quarter sessions, to transmit it to the circuit court. The trial was, therefore, coram non judice. Judge Braekenridge and myself determined the same point, the same way, in Centre county, upon the removal of an indictment by the commonwealth.

Brackenridge, Justice.

— Having already decided the leading question, in the case referred to by Judge Smith, it is only necessary to add, that I have heard nothing, upon the present occasion, to induce me to change my opinion.

Judgment arrested.


author: By the Court.

text:
    *MARCH TERM, 1805.
    Welsh v. Murray.

      Relation of judgment.

    As between creditors, judgments do not relate to tbe preceding term, but they take priority according to the times of their entry.
    Case stated for the opinion of the court. On the 1st of August 1804, judgment was entered, by confession, at the suit of Ewing v. Murray, in the common pleas of Philadelphia county ; in which the declaration was entitled of June term preceding. On the 3d of August 1804, judgment was entered, by confession, in the supreme court, against the same defendant, at the suit of Welsh, the present plaintiff; and the declaration was entitled as of March term preceding.
    The question submitted was, which judgment was entitled to a priority of payment, from the proceeds of the sale of the defendant’s real estate ?

      Wallace, on behalf of Welsh, the present plaintiff,
    contended, that the supreme court judgment, though, in fact, last entered, had a legal relation to March term; and must be preferred to the common pleas judgment, which related only to June term. He cited authorities to show the relation at common law: 14 Vin. Abr. 616; 12 Mod. 519; 3 Bl. Com. 420; 6 Mod. 191; Yelv. 35; 3 Burr. 1596; 1 Wils. 39; 2 Saund. 9. And he argued, that neither the English statute of frauds, nor the Pennsylvania act of assembly, affected the legal relation of a judgment, except only in the case of bond fide purchasers ; not in the case of conflicting judgments. 3 P. Wms. 398; Salk. 401; 7 Mod. 39; Salk. 87; 2 Ld. Raym. 776; Str. 882; 7 Mod. 93; Str. 1081; 6 Mod. 191; Barnes 266-8, 270; Willes 427; Cro. Car. 102; 1 T.R. 116; 7 Ibid. 20; 1 Saund. 219; 1 Dall. 450; 2 Burr. 950, 967 ; 1 B1. Com. 69.

      * Ramie, in support of the common pleas judgment, remarked, that his opponent was not content to enjoy an equality, but insisted upon a preference; and therefore, there was no equity in his favor. He then contended, that there was an essential difference between the law of England, and the law of Pennsylvania, on the subject; that, although the question would often arise here, as lands were subject to execution and sale, it would seldom arise there ; that the practice had uniformly been to pay judgments, out of the sale of real estates, according to the actual date of entering them;  and that the point had already been adjudged in Hooton v. Will, 1 Dall. 187, 450.

       s. c. 4 Yeates 198; where the case is more fully reported.

         The following certificates were founded on the fact of practice:
      “ I certify, that while I held the office of sheriff for the city and county of Philadelphia, I uniformly settled the payment of judgments, in the case of sales of real estates, according to the actual dates of those judgments certified by the respective prothonotaries, without reference to the terms of which the said judgments were entered. Philadelphia, December 18th, 1804. James Ash.”
      “ I certify, that the above was also my practice, while I held the office of sheriff.
      Israel Israel.”
      “ I certify, that the above was also my practice, while I held the office of sheriff.
      John Baker.”

   By the Court.

— We are clearly of opinion, that the judgment first entered, is entitled to be first paid. The plaintiff in the common pleas must, therefore, enjoy his preference.

         A question of priority of judgments also arose in the common pleas of Philadelphia county, at June term 1806, in the case of Emerick b. Garwood.

      It was on a case stated between two creditors of the defendant, each of whom had entered judgment, by virtue of a bond and warrant, on the same day, at the distance of a few hours. It was held by the Court (Rush, President), that there should be no precedence between the judgments; but that the proceeds of the sales which arose from real estate, should be divided.
      The reason chiefly assigned by the President, was the inconvenience of a contrary rule, there being several courts, in which judgment might be entered on the same day; and the authority on which he chiefly relied was Lord Porohester’s case, as stated by Buller, in IT. R. 118.
      Milnor, for the second creditor. Rawle, contra.

       s. c. 1 Bro. 20; s. p. Steele v. Taggert, Id. 20 n.; Mitzler v. Kilgore, 3 P. & W. 245.


text:
    Dupont v. Pichon.

      Privilege of foreign Ttmdst&r.
    A charge d’affaires is entitled to privilege from arrest, until his return home, although he has been for some months superseded by a minister plenipotentiary; the detention of the former being occasioned by his official business: the court will discharge him from arrest, without requiring proof from the department of state, of his reception in his diplomatic character, by president.
    The plaintiff had issued a capias against the defendant, in an action upon the case, &c., and a citation was served upon him, in the following terms :
    * “Sir. — You are hereby cited to show your cause of action, and r*ann why the defendant, claiming privilege as charge d'affaires of the *• French republic, should not be discharged from the process issued against him, at the city-hall, in the city of Philadelphia, at 10 o’clock, to-morrow forenoon.
    Philadelphia, 1st of March 1805. Edward Shippen.”
    The citation was returned to the judges of the supreme court, then holding a court of Nisi Prius;

       and after argument by Du Ponceau and Dallas, for the defendant; and by Ingersoll and Wallace, for the plaintiff, the following order was made by the judges, who did not think, that individually, or sitting at nisi prius, they could quash the process :
    “ It is ordered, that the defendant be discharged on common bail; and that at the next supreme court, in bank, on the 4th day of this instant March, it may be considered by that court, whether the defendant should, or should not, be discharged from the process issued against him; or whether he should be held to bail, and the present order be discharged.”
    At the opening of the court, on the first day of the term (all the judges being present), Du Ponceau and Dallas moved, that the defendant be discharged absolutely from the process. They produced Mr. Pichon’s credentials, by which it appeared, that he had not only been appointed commissary-general of commercial relations, but also charge d 'affaires of the French republic ; his continuance in the latter character, however, being limited, until a minister plenipotentiary should arrive in the United States from France. It appeared by Mr. Pichon’s deposition, that the minister, General Toureau, had arrived in the United States, about the 12th of November 1804 ; that in compliance with Mr. Pichon’s instructions from his government, he had been anxiously making all the necessary arrangements for his return to France with his family ; that his detention in the United States, since the arrival of General Toureau, had solely and exclusively been owing to the business of closing his official transactions as charge d'affaires, and to the delay in receiving his public papers and documents, which were shipped in a vessel from Alexandria for Philadelphia, but were carried into New York, in consequence of the obstructed navigation of the Delaware : and to the impracticability of obtaining a passage for Europe, at the port of Philadelphia, for a considerable time past; that Mr. Pichón had never, in the slightest degree, abandoned or suspended his intention of returning to Prance ; *3231 on «Hrtrary, ’w’as determined to go thither, with all possible ' -* dispatch, as soon as the obstacles, which *he had stated, should be removed, and the condition of his family would permit. It was further stated in the deposition, that, during the time of Mr. Pichon’s executing the functions of charge d ’affaires, and before the arrival of General Toureau, it became his official duty to superintend and direct the equipment and supply of certain French frigates, lying in the harbor of New York; that he employed the plaintiff in that business, to make the necessary advances of money; and for his reimbursement gave him certain bills of exchange on France, drawn, however, on his private bankers; that the plaintiff well knew that Mr. Pichón acted in the premises, merely as public agent of the French republic, and is not indebted to the plaintiff on his private account; nor in any other manner, than as the drawer of the bills of exchange, which were delivered to the plaintiff, by the French consul at New York; and the fate of which Mr. Pichón had not definitively heard.

    Upon these facts, it was urged, that although no privilege was claimed for Mr. Pichón, as consul, he was entitled to privilege, as charge d'affaires, eundo, morando et redeundo. (1 U. S. Stat. 117-18, § 25-7; Vatt. lib. 4, c. 6, § 74-5, p. 675-6; Ib. c. 7,§ 83, p. 682; Ib. c. 9, § 125, p. 726; Ib. c. 8, § 111, p. 713; Mart. 206.) That he was not bound to produce any testimonials of his diplomatic character, the notoriety of his reception by the President, being all that the nature of the case or uniform usage required ; that a day’s delay, in recognising the privilege of a public minister, to obtain certificates from our own government, must either compel him to give bail, or to submit to actual imprisonment; and that the precedent established on this occasion would attract the serious attention of every foreign minister and government. It, therefore, became highly important to claim and obtain the discharge, on the single ground of diplomatic privilege, without adverting to the official origin of the debt, for which the suit was instituted ; and for which Mr. Pichón ought never to be deemed personally responsible.

      Ingersoll, Wallace and Binney disputed the extent of the privilege;
    and the sufficiency of the excuse for Mr. Pichon’s protracted residence in the United States, after General Toureau’s arrival. They insisted, that the appointment as charge de■ affaires was limited in its own terms; that his arrival and continuance in the United States were, principally, on account of *S24l oorisular commission; *and that, at least, proof should be pro- -* duced from the secretary of state, of his reception as a minister, before he was discharged from the capias, upon the claim of privilege.

         Shippen, Chief Justice, and Smith and Bbackenrige, Justices, composed the court.

         After Mr. Pichón was discharged from the process in this suit, the plaintiff issued another capias from the circuit court of the United States; but before the writ was served, information arrived, that the bills drawn in favor of the plaintiff had been paid by the French government; and the proceedings were suspended, aftor notice of a motion to quash the writ on the ground of privilege,

       See Jones v. Le Tombe, 3 Dall. 384

   The Court were decidedly of opinion, that Mr. Pichón would be entitled to privilege as charge de affaires, until his return to France ; but Chief Justice Shippkn seemed inclined to wait for information, from the department of state, as to his actual reception by the President in that character. On its being intimated, however, that the attorney of the district had become responsible to the sheriff for Mr. Pichon’s appearance, only until the sense of the court could be obtained ; and that Mr. Pichón must now, probably, submit to imprisonment under the capias, the judges concurred in discharging him absolutely from the process.


author: Iredell, Justice. Peters, Justice.

text:
    APRIL TERM, 1796.
    Present — Iredell, Justice, and Peters, District Judge.
    Searight v. Calbraith et al. Calbraith et al. v. Searight.

      Tender. — Foreign laws.

    A tender ia necessary, though the creditor require payment, exclusively, in a certain species of coin.
    The contracts of American citizens are affected by foreign laws, in two eases only: 1. When they reside and trade in a foreign country: 2. Where the contract, plainly referring to a foreign country for its execution, adopts and recognises the lex loci. Iredeil, J.
    Searight agreed, in February 1792, to sell to Calbraith & Co., a bill of exchange for 150,000 livres toumois, drawn upon Bourdieu, Chollet & Bourdieu, of London, payable in Paris, six months after sight; for which Calbraith & Co. agreed to pay at the rate of seventeen pence the livre (making in the whole, 10,625?. Pennsylvania currency), in their own notes, dated the 1st of May, and payable the 1st of July 1792. The bill was, accordingly, drawn and delivered to Calbraith & Co., who indorsed it to George Barclay & Co., of London, by whom it was presented for acceptance; and on the 27th of March 1792, Bourdieu, Chollet & Bourdieu accepted the bill, “payable at the domicil of Messrs. Cottin, Jonge & Girardot, at Paris.” George Barclay & Co. afterwards indorsed and forwarded the bill to G. Olivier, who, on the 6th of October 1792, presented it for payment to Messrs. Cottin, Jonge & Girardot; and those gentlemen tendered payment in assignats, which, by the then existing laws of France, were made a lawful tender, in payment of debts. Mr. Olivier refused to receive the assignats, by order of George Barclay & Co., declaring, at the same time, that he would receive no other money than French crowns ; and thereupon, each party protested against the act of the other. The bill being returned, under protest for non-payment, Searight, on the one hand, instituted a suit to recover the sum which Calbraith & Co. had originally stipulated to pay ; and on the other hand, Calbraith & Co. :l!instituted a suit to recover damages for the protest of the bill. And these suits were agreed to be tried together, by the same jury.
    On the trial of the cause, evidence was produced, on both sides, to ascertain and fix the precise terms of the original contract for the sale and purchase of the bill of exchange; particularly, as to the stipulation of a rate for estimating the liure; as to the purchase being made for cash, or on credit; and as to the knowledge and view of the parties, relative to the existence of assignats, or the law of France making them a legal tender in payment of debts. And the great question of fact for decision, was, whether the parties contracted for a payment in gold and silver ; or tacitly left the medium of payment to the laws of France, where the bill was payable ? The law arising from the fact, was discussed at large, according to the different positions of the parties in interest.
    For Searight, it was shown,
    by the decrees of the French government, that assignats were established as a circulating medium for the payment of debts, before and at the time of the contract for the bill of exchange (Decree of 16th and 17th April 1790, §3; King’s Proclamation of 19th April 1790) ; and this fact being known, it was contended, that the purchase of a bill, payable in France, must in itself import an agreement to receive in satisfaction, the lawful current medium of that country, unless the contract expressly provides against it, which, on the present occasion, was controverted and denied. In support and illustration of the general position, and its incidents, the following authorities were cited. 2 Burr. 1078-9, 1083; Davies 26-8; Dyer 82-3; 4 Com. Dig. 556, B. 7-8; 2 P. Wms. 88-9; 1 Ibid. 696; Prec. Ch. 128; 2 Vern. 395; 2 Atk. 582, 465; Skin. 272; 4 Com. Dig. 256, B. 8; 4 Vin. Abr. 258, O. 13; Holt 465; Davies 24; 10 Mod. 37; 2 Bro. Chan.; 1 Smith’s Wealth of Nations, 41; 1 Dall. 257; 1 Bro. Ch. 376; Esp. N. P. 48, 26; 3 Wils. 211; Esp. N. P. 140-1; Doug. 628; 3 T. R. 683, 554; 3 Bl. Com. 435; Salk. 130, 126; 12 Mod. 192; Kyd 63.
    For Calbraith & Co., it was contended,
    that an express contract had been proved, to pay the bill in specie; that the very terms of the bill import the same understanding of the parties; that however binding the law of France may be on cases between' French citizens, or between American and French citizens, it did not affect contracts between Americans ; that, in legal contemplation, there had been neither a payment, nor a tender of payment; and that Searight had sustained no damage, nor shown any right to recover. 1 Pow. on Contr. 8 ; 2 Ibid. 158 ; Cun. B. of Ex. 258; Skin, fcaovl 272; 3 Watson’s Philip III., 136; 1 Ld. Raym. 735 ; *1 Lev. Ill; 327J Esp. N. P. 169 ; Bull. N. P. 156 ; 6 Mod. 305 ; 3 Burr. 1353 ; 3 Black. Com. 435, 466 ; 6 Mod. 306 ; Davies 75-6.
   Iredell, Justice.

— The contract for the purchase of the bill of exchange is sufficiently proved, as it is laid in the declaration, by the entry made, at the time, in the books of Calbraith & Co. The sole question, therefore, in the cause is, whether the tender of assignats, in payment of the bill, was a compliance with that contract ? The notarial protest not only states the tender, but certifies that assignats where lawful money of France in payment of debts. A J.otary should, indeed, certify all the facts that occur, in relation to the protest (not merely the refusal to pay, according to -the demand), but it is doubtful, whether his assertion would be conclusive, as to the lawfulness of the -money tendered. Connected, however, with other evidence, it is proper for the consideration of the jury.

It has been objected, that as Olivier’s demand was, exclusively, for a payment in French crowns, no proof of a tender in any other mode, is necessary ; but I do not concur in this opinion. After such a demand, it was, perhaps, unnecessary for the party to exhibit the assignats to Olivier; but the form of the demand, on one side, cannot dispense with the obligation, on bhe other side, to make a tender of payment, agreeable to his own sense of the law and the contract. The jury must, therefore, be satisfied, that although the money was not produced and counted, it was actually in the possession of the party making the tender.

On the principal question, I thought, at first, that the risk, as to the mode of payment, must be run by the holder of the bill; but the case in Skinner 272, sanctioned by the high authority of Holt’s name, transcribed, without remark, into Comyn’s excellent digest, and uncontradicted by any other adjudication, must be respected in every court of law, and completely effaces the first impressions of my mind. Upon examination, too, the doctrine of that book appears to be founded in just and legal principles. Every man is bound to know the laws of his own country ; but no man is bound to know the laws of foreign countries. In two cases, indeed (and I believe, only in two cases), can foreign laws affect the contracts-of American citizens : 1st. Where they reside or trade in a foreign country ; and 2d. Where the contracts, plainly referring to a foreign country for their execution, adopt and recognise the lex loei. The present controversy, therefore,- turns upon the fact, whether the parties meant to abide by the law of France ? And this fact, the jury must decide.

As to the damages, if the verdict should be for Searight, though it is true, that in actions for a breach of contract, a jury should, in general, give the whole money contracted for and interest; yet, *in a case like the p „ present, they may modify the demand, and find such damages as they *- ^ think adequate to the injury actually sustained. But if the jury should, in the first action (Searight v. Calbraith & Co.), find, either wholly or partially for the defendant; in the second action (Calbraith & Co. v. Searight), they should find for the defendant, generally.

Peters, Justice.

— The decision depends entirely on the intention of the parties, of which the jury must judge. If a specie payment was meant, a tender in assignats was unavailing. But if the current money of France was in view, the tender in assignats was lawfully made, and is sufficiently proved.

When the jury were at the bar, ready to deliver verdicts, the plaintiff in each action, voluntarily suffered a nonsuit. It was afterwards declared, however, that in Searight v. Calbraith & Co., the verdict would have been, generally, for the defendants ; and that in Calbraith & Co. v. Searight, the verdict would have been for the plaintiffs, but with only six pence damages.

         Courtois v. Carpenter, 1 W. C. C. 377; Cambioso v. Maffet, 2 Id. 104; Willings v. Consequa, 1 Peters C. C. 317.


text:
    APRIL TERM, 1797.
    Present — Iredell, Justice, and Peters, District Judge.
    Smythe v. Banks.

      Privilege of witness.

    A witness is privileged from arrest, for a reasonable time, to prepare for his departure, and return to his home, as well as during his actual attendance upon the court.
    Capias. The defendant was a resident of Virginia, and had been subpoenaed as a witness in the case of Sims’s Lessee v. Irvine, which was marked for trial at the present term, but was continued on the 20th of April. He was arrested on the 26th of April; and the following day, Levy moved, that he should be discharged from the arrest and process, on account of the privilege of a witness, eundo, morando et redeundo. 4 Com. Dig. 475; 2 Str. 1094, 986; Vin. Abr., tit. Priv.
   By the Court.

— The witness is, undoubtedly, privileged from arrest for a reasonable time, to prepare for his departure, and return to his home, as well as during his actual attendance upon the court. But the privilege does not extend throughout the term at which the cause is marked for trial; nor will it protect him, while the witness is engaged in transacting his general private business, after he is discharged from the obligation of the subpoena.