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Wainwright et al. versus Crawford.

HIS was an action on the case, brought by foreign merchants, against the defendant, to recover the amount of money lent to the captain, to pay for disbursements in repairing, and supplying, his ship, in a foreign port. It was proved, by the evidence of the captain, that he had no funds belonging to his owner, or to himself; and that he borrowed the money from the plaintiffs, to make the necessary repairs of the ship, for the prosecution of her voyage.

Moylan, for the defendant, observed, that the power of the master of a ship, extended no farther, than to authorise him to hypothecate the ship herself, in a foreign port, for absolute necessaries: but, he contended, that the master could not, under any circumstances, personally bind the owners. Moll. c. 1. 6. 2. s. 10. s. 14. Beaurve's L. M. 95. 6. 1 T. Rep. 2 Dall. Rep. 195. 1 Salk. 35, 2 Ld. Raym. 984.

Ingersoll and Franklin, for the plaintiffs, insisted, that every person who supplied a ship had a triple security; to wit, the master, the owner, and the ship; that, by the maritime law, the master was the authorised agent of the owners, in foreign ports; and that, independent of his power to bind the ship herself, he might bind the owners personally, upon proof that the money, or supplies, went to their use. Cowp. 636. 1 Vez. 443. 1 T. Rep. 73. 2 Vern. 643. 14 Vin. Abr. 300. pl. 9.

SHIPPEN, Chief Justice. If the jury are satisfied (and the evidence is strong upon the point) that there was an actual necessity for borrowing the money, to repair the ship, the plaintiffs ought to recover. The lender is bound, it is true, to make due inquiry, whether the repairs are necessary; and whether the captain has effects in his hands, sufficient to defray the expense of repairing, without resorting to a loan: but he is not bound to know, nor to inquire, what is the state of the accounts, between the owner and the captain. If, therefore, the case of necessity existed; and the plaintiffs did not know (for, we fix on their knowledge as the test) that the captain had sufficient funds, in possession, to relieve the necessity; we think that the contract of the captain will bind his owners, personally.

Verdict, accordingly, for the plaintiffs.

OF

PENNSYLVANIA.

September Term 1801.

Austyn versus M'Lure.

CASE, on a special assumpsit. The declaration contained

three counts, of each of which the following is the sub

stance.

1st Count. After stating that a controversy subsisted between the plaintiff, and one Rowson (a British merchant for whom the defendant was agent) that they had agreed to enter an amicable action and reference, in the Federal Circuit Court, and that the referees met on the 12th of January 1798; the declaration proceeds, that at the said meeting "it was agreed between M'Lure "and Austyn, that in consideration that the said Austyn would "waive all objections to the referees proceeding to arbitrate be“tween the said Rowson and Austyn, and would submit the mat"ters in controversy between them to the said referees: as also " in consideration of the said Austyn's having promised, on de"mand thereof made, to give security to pay to the said M Lure "whatever sum the said referees might award to be paid to the "said Rowson, should the said referees decide the said contro"versy and dispute against the said Austyn, he the said M'Lure "undertook, &c. that he would well and truly pay the said Austyn whatever sum of money the said referees might award to "be due from the said Rowson to the said Austyn." And the declaration then avers, "that Austyn did waive all objections, &c. "and always was ready to give to the said M'Lure the said security above mentioned, when he should be required by the "said M'Lure. And that the referees awarded a balance of "1454 dollars to be due from Rowson to dustyn, &c."

66

2d Count. After stating the agreement to arbitrate between Rowson and Austyn, the declaration proceeds, that "in conside "ration that the said Austyn had at the request of the said " M Lure

1801. "M'Lure' promised and undertook, when he should be thereunto "required by the said M'Lure, to procure good and sufficient "security for the performance of the award, which should be given "by the said arbitrators, and for the payment of the sum which "might be awarded against the said Austyn, the said M'Lure "did on his part undertake, &c. to the said Austyn, to perform "the said award on the part of the said Rowson, if it should be "given against the said Rowson by the said arbitrators, and to แ pay to the said Austyn, when thereto lawfully required, "whatever sum of money might be awarded to be due from the "said Rowson to the said Austyn, &c." The declaration then makes an averment of the award as before; and "that the said "Austyn was always ready and prepared well, &c. to perform "his said promise and undertaking, and to give good and suffi"cient security, when he should be the eto required, by the "said MLure, &c."

3d Count. After stating the same agreement to arbitrate, the declaration proceeds, "that in consideration that the said Austyn "would not object to the said referees proceeding to hear and "determine the disputes and controversies aforesaid without de"lay, and in consideration that the said referees would so proceed "without delay, the said M'Lure promised, &c. that he would "perform the award of the referees, &c." The declaration. then avers, "that Austyn did not object, &c. that the arbitrators proceeded without delay, &c. and made their award, &c."

On the evidence, it appeared, that after the referees had met, more than once, Austyn (whose circumstances were considerably embarrassed) observed, "that he wished to understand, in what "situation he would be placed, if the award should be against "Rowson; for, if it went against him, he was present to answer "the demand; or, should he be thought insufficient, he was ready "to produce satisfactory security to answer it." M Lure replied,. "that he was Rowson's agent, and stood in Rowson's place, or "stead." The referees understood, that Austyn's offer of security was meant," if it should be required by M'Lure," who did not ask it, though he never waived it: and that M'Lure's declaration was meant, "that he would himself be answerable in case the "award was against Rowson." The referees proceeded to hear and decide upon the case; and nothing further past between the parties on the subject of security. Austyn, however, it appeared, had applied to Mr. Gallaudet to be his surety, at some time, in 1797, or 1798, (the witness could not recollect when, nor what passed upon the occasion) and Mr. Gallaudet, having then funds of Austyn's in his hands, said, " that he would have become the surety, if it had been then further request d."

On these facts, the plaintiff's counsel (Ingersoll, Hallowell, and Todd) contended, that the special assumption of the defendant

was

was proved; and that there was a good legal and equitable conside- 1801. ration to sustain it. In the course of the argument, they cited the following authorities. Cro. E. 543. 703. 1 Com. Dig. 199. 5 Mod: 411, 412. Cro. E.67. 70. 3 Rurr. 1666. 1 Com. Dig. 200. 1 Bac. Abr. 267. Com. Rep. 99. 12 Mod. 457. 1 Pow. Cont. 344.

The defendant's counsel (Dallas) contended, that whatever might be the impressions, or inferences, of the referees, the declaration of M'Lure did not, in itself, amount to an express assumpsit; that it was not a case, in which an implied assumpsit could be raised; that, at most, it was a mere gratuitous undertaking without any possible consideration, beneficial to M'Lure; a nudum pactum, on which no action could be maintained; and that the consideration was not proved by the evidence, as it was laid in the declaration. 2 Bl. Com. 445. 3 B. Com. 159. Bull. N. P. 147. Bulstr. 120. Dyer, 272, 2 Burr. 1666. Cro. E. 79. 2 Burr.. 1671.

The COURT delivered a charge to the jury, in which they stated, that the smallest spark of benefit, or accommodation, was sufficient to create a valid consideration for a promise; and intimated that their opinion was decidedly in favour of the plaintiff. (1)

Verdict, accordingly, for the plaintiff.

The Commonwealth versus Dallas, Attorney of the United
States, &c.

QUO Warranto. The President having honoured the defendant

with an appointment, as attorney of the United States, for the Eastern district of Pennsylvania; and the Governor having been pleased, also, to appoint him Recorder of the City of Philadelphia; it was thought, by some of the members of the Select and Common Councils, that the tenure of these offices, by the same person, at the same time, was constitutionally incompatible. And, in order to try the question, Mr. Hopkinson, the. solicitor of the corporation, was instructed to move the Supreme Court, for leave to file an information, (on the relation of the Select and Common Councils) (2) in nature of a writ of quo warranto, to in quire by what authority the defendant exercised the office of Re

(1) BRACKENRIDGE, Justice, seemed to dissent from the opinion on the Court, with this remark: "The English books say, that there must be a sp.k of consideration (though a single spark is enough) to maintain an action upon a promise: but, in this case, the Court have blown out the spark; and I cannot perceive, whence they get light sufficient to enable them to decide for the plaintiff."

(2) The Court declared, that upon a proceeding of this kind, it was necessary to name the relator, at whose instance it was instituted.

corder.

1801. corder. It was agreed, that the merits of the case should be discussed and decided upon this preliminary motion, in order to avoid any public inconvenience; as the defendant declared his determination not to act as Recorder, while a doubt rested upon his right.

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The case turned, principally, on the construction of the 8th section of the 2d article, of the constitution of Pennsylvania; which is expressed in these words: "No member of congress "from this state, nor any person holding, or exercising, any office of trust or profit under the United States, shall, at the same "time, hoid or exercise the office of judge, secretary, treasurer, "prothonotary, register of wills, recorder of deeds, sheriff, or any office in this state, to which a salary is by law annexed, or any other office which future legislatures shall declare incom"C patible with offices or appointments under the United States.”

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The argument was conducted, with great and equal ability and candour, by Messrs. Hopkinson, E. Tilghman, and Lewis, in support of the motion; and by Messrs. Ingersoll and M'Kean, against it.

In support of the motion, it was stated, as a foundation, that the Recorder of the city of Philadelphia is a Fudge; and, consequently, within the clause of the constitution, which excludes an officer of the United States, from holding, or exercising, the of fice of a judge, in this state. It was said, that the policy of the exclusion, originated in a jealousy, lest the federal government, should overshadow the state governments; and, if there was a doubt upon the subject, that policy required a decision, affirming the incompatibility of the offices in question. The commission, duties, and powers, of the Recorder were then analysed, with a view to prove that his office was of a judicial character; particularly when he acted as the organ of the mayor's court; and that it was not the name (as a recorder, a justice, &c.) but the duty, which constituted a Judge. 2 State Laws, 658. s. 14. Ibid. 660. s. 19, 20. Ibid. 662. s. 22. Const. Penn. art. 5. s. 1. 4 State Laws, 75. Nor, it was insisted, did he merely perform his judicial functions as a ministerial agent of the corporation; but he was, in fact and in law, a judge within the meaning of the constitution,, and the interpretation of the most authoritative writers. Con. Law Dict. "Judge." Johnson's Dict. "Real." Jac. L. Dict. " Judge." 1 Bl. Com. 269. 4 vol. 84. 125. 1 Bac. Abr. 3 Bl. Com. in App. 3. 38—40. 4 Inst. 73. 23. 6 Co. 20. 9 Co. 118. 1 H. Hist. P. C. 231. Cro. C. 146. 1 Bl. C. 269. 12 WV. 3. 1 Geo. 3. 1 Tidd. 426. Min. of Conv. 81. 85. 138, 139. 194. 198.

In opposition to the motion, it was premised, that further than the constitution has prescribed, a spirit of jealousy, between the federal and state governments, ought not to be encouraged: and

the

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