contract was made with him. That, in answer | be continued, subject to the rule for trial at the to the defendant's allegation, of the property's next term, or Non Pros: And, in the mean time, belonging to Loyer, it was to be remarked, that we direct, on our own authority, a rule to be 44*] after the assignment, *the property was for entered for taking the depositions of infirm witthe benefit of all Loyer's creditors; and that, al- nesses de bene esse; to be read in evidence upon though his factor might have a lien, the vendee of the trial, in case of death, or inability to attend. the factor certainly had none. That, in strictness, To that extent only, however, do we grant the perhaps, the assignees of Loyer had the right to rule; for, we think it would be going too far to the Atlas, or the price for which it sold; but add, that the depositions shall be read, in case that certainly at the time of the sale, it was not the witnesses depart from the State. the property of Loyer, and, if not vested in the assignees, it must have belonged to Boinod by virtue of some special lien: And that, upon the whole, the plaintiff was entitled to recover, INGLIS, for the use of REEDE, et al. versus though he was answerable over to the assignees. Verdict for the plaintiff. AUGUST SITTINGS, 1790. BOWEN versus DOUGLASS. Questionable, whether the Philadelphia Common Pleas can issue writs of attachment into another county. THE INGLIS'S Executors. The circumstances of the case were these: The testator died in the beginning of Sept. 1783, and George Inglis, being in an embarrassed situHE Plaintiff had taken out a subpana, re-ation, obtained a friendly loan from Mr. Coxe, turnable to December term last, for two witnesses, who lived in Montgomery County; but as they did not then appear, an attachment, directed to the Sheriff of Montgomery County, was issued, returnable to the succeeding March term; when, likewise, default was made in the appearance of the witnesses; and the cause was continued on a rule for trial at the next term or Non Pros. Another subpona had been taken out, returnable this day, on which the cause was marked for trial; but it proved as ineffectual as the preceding writs. Under these circumstances, Lery, for the Plaintiff, moved to postpone the trial. He stated (and it was not denied by the opposite counsel) | that an application on his part to take the depositions of the witnesses had been refused: And he read a letter from the Sheriff of Montgomery, to shew that an attempt had been made to serve the attachment upon the witnesses; a certificate from the doctors to prove that one of the witnesses was sick; and a certificate from disinterested and credible persons to prove that the other witness was out of the way. 1. Dall. Rep. 251. Schlosser v. Lesher. Ac of 100 dollars, and assigned his legacy under his brother's will to that gentleman on the 5th of April, 1784, in trust, that Mr. Core should reimburse himself, and pay over the balance to the legatee; who acknowledged, at the time of the transaction, that there was some difficulty in getting the money from the executors. cordingly, when Mr. Core applied a few days afterwards to one of the executors, in behalf of George Inglis, some doubts were expressed to him, whether the legacy would be paid at all; as G. Inglis was considerably indebted to the estate of the testator, and other persons lately concerned with him in trade; but upon Mr. Core's disclosing the nature of his bond, and of the assignment which he had taken to indemnify himself, the executor in terms of great caution and expressly for the family honor, promised to pay as much as would satisfy Mr. *Core's [*46 claim; which promise was punctually performed at the end of the year from the testator's death, allowed, either by the operation of the law, or prescribed according to the provisions of the will, for the payment of legacies. It appeared, likewise, that on the 26th of April, 1784, G. Inglis, having bargained for the purchase of certain goods from Reede & Forde, in payment of the value amounting to £.112 48. 6d. executed another assignment to them for the residue of the legacy in question; and, on the 4th of January, 1788, Mr. Core, by an instrument, reciting the debt originally due to him, the legacy beBut, BY THE COURT:-It is questionable, queathed to G. Inglis, the first mentioned aswhether the Act of Assembly empowers us to signment and the motives on which it was issue writs of attachment into another County; made, the receipt of £.37 108. from the execu and there are other modes of proceeding, equal- tors, and the residuary assignment last mentionly efficient, and clear of any doubt. It is un-ed, transferred the unsatisfied interest in the necessary, however, to enlarge at present on this legacy to Reede & Forde. Mr. Core had not topic; as the Plaintiff has evidently done all in however communicated to Reede & Forde the his power to procure the attendance of the wit- obstacles suggested by the executors, as to the nesses; and the refusal of his overture to take assignment of the legacy, before the execution their depositions, is a strong additional circum- of the residuary assignment to them; nor, instance in his favor. The cause must, therefore, deed, was there any evidence that they were M'Kean, for the Defendant, objected to the postponement; and insisted, that the rule for 45*] trial, or Non Pros. ought to be enforced, as the Plaintiff, having neglected to issue a second attachment, had not done every thing in his power to procure the attendance of the witnesses. apprised of that circumstance, 'till they applied | Notice is indeed essential to the validity and to Mr. Core to institute the present suit, when he mentioned it to Forde. effect of an assignment; for, being an equitable transfer, it must be taken subject to every But, in opposition to the claim of Reede & equitable circumstance. In the present case, Forde, under their assignment, it was shewn, however, there was no assignment in fact, or that G. Inglis, was previously indebted to the in law, but merely an offer to assign. It is true, house of Inglis & Long, in which the testator that an incomplete conveyance will, in some was concerned, and that he was also consider- instances, be carried into effect by a court of ably indebted in partnership to the house of equity; but the court will never exercise such a Willing & Morris, surviving partners of Samuel jurisdiction, in aid of a creditor, who did not Inglis. Being, however, at the same time enti- trust to the particular fund, against the claim tled by an article of agreement to a share in the of a creditor who did. In England, a judgment commission on the assignments of goods from creditor does not trust to the lands: and, thereJamaica to Samnel Inglis & Co. he applied to fore, articles made for a valuable consideration, them in September, 1783, for the amount due and the money paid, will in equity bind the to him out of that fund; but, at first they re- estate, and prevail against any judgment credifused to pay it to him, in any other way, than tor, mesne between the articles and the conveyby carrying it to the credit of his account; ance 1 P. Wms. 282. But there was not even though, afterwards, (in December, 1783) on a a sufficient consideration for the pretended asrepresentation of his distresses, as well in con- signment to Willing & Morris. The commisversation as in letters, they advanced him the sions on the Jamaica assignments had amounted money. In the letters which he wrote upon the to 6 or £.700, and the balance paid to G. Inglis occasion (dated the 20th of October and the 5th on 1st December, 1783 amounting to £.276, was of November, 1783) he mingled, with the lan- due to him in his own right; but the debt which guage of misfortune and complaint, an overture he had contracted with Willing & Morris was a of transferring his claim to the legacy in satis- partnership debt; and to compel him to surfaction of the debt, to Willing & Morris, as surrender his legacy, merely to obtain his own viving partners of Samuel Inglis & Co. provided money, was an unconscionable *act_of [*48 his share of the Jamaica commission was paid coercion, void of any legal foundation. The to him; saying in the first letter "that he would cheerfully assign the legacy;" and in the second letter that he would assign it;" but, neither before nor after the receipt of the commissions, entering into any formal instrument or assign ment. On these facts, the question to be tried was; whether Reede & Forde, or Willing & Morris, were entitled to the balance due on the legacy? and it was argued by Lery, for the former, 47*] *and by Fisher for the latter. There being two pleas; one affirmative and the other negative, a preliminary discussion arose between the counsel, as to the right of beginning; which THE PRESIDENT terminated by declaring it to have been long settled, that where there are two pleas, and the proof of one of them lies upon the plaintiff, he shall always open the cause. In support of the claim of Reede & Forde, it was argued, that the goods had been sold to G. Inglis on the credit of the legacy, and not upon his personal credit; that the assignment was of a date prior to the delivery of the goods, so cautiously had they conducted themselves in order to avoid a contrary construction; and that the year observed for this payment did not elapse till some time after the sale of the goods had been completed. It was remarked to have been the intention of the testator to afford a personal relief to his brother, and not to furnish a fund for the payment of his debts; from which it was concluded, that the construction necessary to the opposite claim, being so contrary to that particular intention, ought at least to be strongly supported by the general reason and justice of credit originally given by Willing & Morris had no possible relation to the legacy; nor can it fairly be presumed that the subsequent payment was made on account of that fund; for, it is incredible that a balance of £.276 should be advanced in consideration of a legacy amounting to no more than £.150. The question, therefore, may reasonably and justly rest on this ground, that Willing & Morris, sensible of the hardship that would be done by retaining the commissions due to G. Inglis, and affected by the distresses of the brother of their late partner, freely paid the money, without relying on any other agreements for the payment of their debt: while Reede & Forde, doubtful of the resources of G. Inglis, sold their goods to him on the credit of the legacy alone; and under these circumstances the claim of the latter must in law and equity be preferred. For Willing & Morris, who were the real defendants, it was contended, that the offer to assign the legacy, and the payment of the commissions in consequence of it (from which latter circumstance and acceptance of the offer was inferred) amounted to a complete contract. The reimbursement of Mr. Core was clearly no evasion of that contract; but merely an acknowledgment of family obligation, accompanied also with a declaration that nothing more should be paid on account of the legacy. Wherever possession goes according to an agreement, the bargain shall be considered to be executed, although no papers have passed between the parties. 1 Vern. 363. and indeed the general rule is, that whatever, for a valuable consideration, is covenanted to be done, shall, in equity, be looked upon__as But reason and justice co-operate with the done, 3. P. Wms. 215. 1. P. Wms, 277. But testator's intention. There was no notice either Willing & Morris, besides the conclusion from to Core, or to Reede & Forde, of the alledged these authorities, as the surviving partners of S. assignment, in favour of Willing & Morris; for, Inglis, might reasonably presume, that no foralthough it was intimated to Core, that there mal assignment was necessary, since the personwere claims subsisting against the legatee, he al estate of the testator was involved in the had no reason to expect, that an actual assign- joint stock of the company; and when they ment of the legacy would ever be pretended. | paid the commissions, they acquired, ipso facto, the case. a right to retain the legacy that had been offered as an inducement for that payment. Nor is there a want of that notice, which will satisfy the law upon this occasion. Mr. Core, the first assignee, was apprised in the very origin of the transaction, that there would be some difficulty in obtaining the legacy; and the executor, to whom he applied, declared, that no more than the amount of Mr. Core's debt would be paid. If notice, therefore, was necessary, it is decided, that notice to a first purchaser is binding upon all who follow him. 2 Atk. 242. But, it is certain, that whoever gets the verdict, an innocent person will suffer. The only 49*] question, therefore, is, whose right is the best? Where the parties are equal in equity, the priority of right furnishes a fair rule for decision; and the claim of Willing & Morris is not only founded on a greater value in point of confidence, but on a superior title in point of date. The excutors had early notice of it; they were justifiable in retaining the legacy to pay it; and the action now trying is sufficient evidence of their refusal (after being warned for that purpose) to recognize the adverse assignment. The PRESIDENT, having recapitulated the evidence as stated in the commencement of this report, proceeded in delivering the following charge to the jury. table right, and, without any further formality, vested the legacy in Willing & Morris. For, by making and accepting an offer, every bargain is consumated. Much has been said on the point of notice; and, it is true, that if the obligee of a bond assigns it, notice ought to be given *to the [*50 obligor, in order to prevent his paying the money to the person, who has thus parted with his interest. But there is no positive law that requires a first assignee to notify a subsequent one; and the case is not within the general principle of the rule that has been cited. The sole object of consideration, therefore, is, whether the money arising from the commissions, was advanced by Willing & Morris to G. Inglis, on the faith of his promise, and the credit of the legacy? That fact it is the province of the jury to ascertain and decide: If the affirmative prevails in their minds, the verdict ought to be for the defendants; but if they entertain a contrary opinion, the nominal plaintiffs are entitled to recover. Verdict for the Plaintiff.' INNIS versus MILLER A creditor not excluded as a witness; but if his missible as a witness. SHIPPEN, President-The action brought to recover the legacy in question, turns, in reality, upon a dispute between Reede & Forde (who payment depends on the recovery he is not adhave a right to re-use the legatee's name on the occasion) upon the one hand, and Willing & Morris, upon the other. The assignees of the nominal plaintiff have produced a regular trans REPLEVIN.-The Defendant offered Francis fer of the legacy; and are unquestionably entitled to a favourable verdict, unless their claim is satisfactorily repelled by any circumstance of law or equity, arising from the defence which has been made. Bailey, as a witness; who being sworn on his voir dire, said "that he was a judgment creditor of the defendant's; that he expected, if the defendant recovered, to be paid, at least a part of his debt; and that he did not know that the defendant had any other property than what was involved in the Replevin, to satisfy him; but, on the contrary, he believed that his payment depended on the defefendant's recovery." It appeared, likewise, that Bailey was the attorney in fact of the defendant, and in that character was active in prosecuting this, and other suits. The admission of the witness was opposed by Bradford, Todd, and Lery, who cited 1 Dall. p. 62, M' Veaugh v. Goods. And supported by Serjeant, who cited Abrams v. Bunner, It is objected to their claim, then, that Willing & Morris are entitled to the legacy, by virtue of a prior assignment; and although this assignment is not so regularly proved as the other; yet, the defendant's counsel has argued, that it is equally effectual in point of equity. The facts respecting the alledged assignment to Willing & Morris are briefly, that G. Inglis, being entitled to a sum of money for his share in the commissions, arising from the sale of goods consigned to S. Inglis & Co. applied for payment to Willing & Morris, the surviving partners; that they refused, at first, to make the payment, BY THE COURT:-The law on this subject has insisting that they would retain the amount in been fully settled in the modern cases, by an satisfaction of a debt due to them from G. accurate discrimination between the competency Inglis; but that eventually they complied, and the credibility of witnesses. The stream of being strongly solicited by G. Inglis, who in his justice should, however, be preserved clear and letters offered to serve them in any way, and uncontaminated; and although a creditor is not particularly to make over his legacy. Now, it excluded from giving testimony, as such; yet if is contended, that this compliance must be he acknowledges an expectation, that he shall taken to have been on the terms of the request; be bettered by the fate of the cause, (as in the and that the terms amount, at least, to a prom-case of M' Veaugh v. Goods, which was properly ise of an assignment. The case upon the facts disclosed is not, indeed, free from doubt, but if the jury shall, upon the whole, be of opinion, that the parties, in paying and receiving the commissions, contemplated and intended a transfer of the legacy as a consideration, then, the law stated by the defendants being well on the 26th of August, 1790 it was withdrawn, and founded, the promise to assign created an equi-judgment entered conformably to the verdict. ruled) he is sensible of a positive interest, that must give a biass to his mind. From the answers of the witness, therefore, we must reject his testimony. 1.-There was a motion made for a new trial; but THE Plaintiffs, in the course of a mercantile correspondence, offered to read in evidence a letter written by them to Capt. Lesson, who was commander of the vessel, about which the controversy had arisen. But it was opposed by the defendant's counsel; who urged, that it was a letter to a third person, not the agent of the defendant, nor connected with him; that the defendant had never heard of such a letter before, nor had he in any wise enjoyed the opportunity of contradicting its contents; that although it was true, that in the investigation of commercial business, a greater latitude of evidence was admitted than in other cases, yet that this was a transaction between merchants resident here, which was susceptible of the regular proof; and that if the rules of evidence were, under such circumstances, to be waved, it would in effect capacitate every one to make evidence for himself. The adverse counsel contended, however, that in mercantile transactions, the correspondence which has passed between the parties interested, or with persons who have had an agency in the business, has always been deemed good evidence; that the letter now offered was not written ex post facto, but is of an old date, antecedent to the existence of any controversy; that where no controversy is in contemplation, the declarations of a party, made at the time, are evidence; and that similar letters had already been introduced into the cause. SHIPPEN, President:-The Defendant has himself given in evidence a letter which he wrote to Capt. Lesson. Besides, it is certainly common in mercantile disputes, to lay before the jury the instructions, which are given to captains of vessels. The court think, therefore, that the objection to reading the letter must be over-ruled. RAPALJE et al. versus EMORY. Action for money had and received to plaintiff's use, will not lie where there is no privity between him and defendant, nor any express, or implied, contract. p. 54, 55. The true owner may recover specific property from any person found in possession, but to recover money there must be some privity, or bad faith, or unjust receipt, without consideration.-p. 54. THIS HIS cause having been argued at large, upon a motion for a new trial, the facts and arguments were recapitulated, and the opinion of the court delivered in the following terms. 66 was about to leave it, he put his affairs into the hands of William Smith, then a merchant there, with power to collect his outstanding debts, among which were four debts due upon note, or bond, payable to Fairchild; but which Smith believes arose from the sale of the cargo belonging to the plaintiffs. These notes, together with some other papers, were delivered to Smith, inclosed in a cover, on which Fairchild had made the following memorandum: "Van "Bibber & Harrison, Thomas Wallace, Archibald & John Blair and Thomas M'Farran's obligations, are on account of Messrs. Jacob Van Voorhis, Ram Rapalje, and Peter Mercier, merchants of New-York, together with 'outstanding debts; this is in case any accident 'happens to me.' After Fairchild's departure from St. Eustatius, and in the years 1777 and 1778, Smith collected the outstanding debts; and, among others, those due on the four notes payable to Fairchild. This money remained in Smith's hands till September 1779; when a foreign_attachment was sued out by Benjamin Amory, the present Defendant, against the effects of Fairchild, in the hands of William Smith, for a private debt of Fairchild due to Amory. Smith appeared to the action, employed counsel to defend it, and on the hearing, the court there confirmed the attachment, and condemned the garnishee to pay to the plaintiff in the attachment the money due to him from Fairchild; which money was accordingly paid, and the present action is brought by Rapalje & Mercier, to recover back from Amory the money so recovered and paid to him by Smith, as for money had and received to the plaintiffs' use. The principles on which the action is brought are, that the money arising from the notes were really the property of the plaintiffs, and not of Fairchild; that Smith had no money of Fairchild in his hands, but what arose from those notes; and that it was therefore wrongfully and against conscience, received by Amory as the property of Fairchild. On the trial of this cause, the merits were not at all investigated on the part of the defendant; who suffered a verdict to pass against him without opposition, relying on the point of the law, that he was protected by the judgment of the court at St. Eustatius. This point was therefore reserved for the consideration of the court. It is contended on the part of the Defendant, that his money, having been attached in the and on the trial adjudged to be his property, hands of Smith, as the property of Fairchild, that *judgment cannot be reversed here in [*53 a collateral action. That the judgments of foreign courts must necessarily bind ours, and be considered as conclusive, at least in those cases, where the aid of this court is not asked to carry their judgments into effect. And that if our courts were to reverse the judgments of foreign SHIPPEN, President.--The case was shortly this. courts, they might reverse ours; which would Reuben Fairchild, in the year 1775, sailed from introduce a kind of warfare between the judicaNor York, master of a vessel belonging to the tures of different countries, to the risk of the 52*] plaintiff and himself, on a circuitous *voy-public peace, as well as to the ruin of the conare. He was likewise the factor of the plaintiffs, and had discretionary orders to trade for them and to sell the vessel as well as the cargo. In the course of the voyage he sold both vessel and cargo, and made some remittances to his owners. While he was at St. Eustatius, and when he tending parties. To this it is answered by the Plaintiffs' counsel, that however definitive à sentence of a foreign court may be, as between the parties to the suit, it cannot bind third persons. That the present plaintiffs were no parties to that suit, and cannot therefore be bound by any judgment in it; they having had no opportunity of maintaining their right to the property in question. The discussion of this point on the argument, led to others not taken notice of on the trial; but which must necessarily be considered by the court on a motion for a new trial. Great reliance has been had on the part of the Plaintiffs, on the manifest equity which they alledge appears on their side of the question; and, it is contended, that the court ought not to set aside a verdict upon a point of summum jus, where it is not to attain the justice of the case. This has naturally led us to consider the equity, as well as the law, arising upon the case. Taking it up in a general view, there does not ap pear to us to be any great preponderancy of equity on either side; both Plaintiffs and Defend ants were fair and honest creditors of Fair child; the Plaintiffs entrusted him as their agent, the Defendant as his debtor. It was natural and fair for each side to take every legal measure to obtain payment of their demands; and whoever in such a case has got a legal advantage, this court cannot say he is not entitled to hold it. The notes in question were made payable to Fairchild himself; they were put into the hands of Smith for collection; the money when collected remained in Smith's hands above a year as the money of Fairchild; there was no assignment of these notes to the Plaintiffs, in any other way than by endorsing a memorandum on the paper which enclosed them, that in case of accident they were obligations on account of Rapalje & Mercier, merchants in New-York. Smith was the agent of Fairchild and not of Rapalje & Mercier. When he received the money on the notes he carried it to the credit of Fairchild, and not to the credit of the Plaintiffs. In the receipt which he gave Fairchild for the notes, he promises to re-deliver them to him or his assignees, and no mention whatever is made of the plaintiffs. In his account current with Fairchild, he charges him with the amount of divers invoices of goods shipt for him, and credits 54*] *him with the money received, as well from some other persons, as from those who gave the notes, and finally strikes a balance in favour of Fairchild. If all these matters appeared to the Court at St. Eustatius, as probably they did, it is not much to be wondered at, that they should determine that Smith, as garnishee in the attachment, had effects of Fairchild in his hands. from supporting an action of rover, if they In those cases, but in no other, the true owner by hands of the receiver, may support an action indentifying the money, and tracing it into the for money had and received, against an utter is considered in the nature of specific property. stranger; and under such circumstances, money This distinction is fully explained by Lord Mansfield in Cowper's Reports, p. 200. In this case there was no privity between the plaintiffs and the defendant; there was no contract, either express or implied, between them; the money was not received as the money of the plaintiffs; the defendant was a creditor of Fairchild who recovered and received his debt in a due course of law, by the judgment of a court having jurisdiction of the cause; there was no fraud or collusion, no mala fides, no want of consideration; an honest debt was due; and though a distinction has been made between a past consideration, as a debt, and a present consideration given, no such distinction can hold in a case of this sort; as the mala fides, which could alone make the defendant* answerable, would be[*55 alike wanting in either case. There seems no difference in point of fairness, between the defendant's receiving the money under a judgment of court, without fraud or collusion, and his receiving it from the hands of Fairchild himself. If Fairchild had received the money on these notes himself, and paid it voluntarily to Amory, it could not be pretended that the plaintiffs, although the money ought to have been paid to them, could have any recourse to Amory; for, if it might be the subject of controversy when a man receives a debt, whether the debtor pays it out of his own money or another's, who would be safe in receiving money? The nature of money, and the nature of commerce, forbid such an enquiry. The payment by Smith, the agent of Fairchild, was in effect a payment by Fairchild; and its being made in consequence of a judgment of court, could, at least, not weaken the defendant's right of re In point of law the court entertained a considerable doubt, whether under the circumstances of the case, an action for money had and received was at all supportable against the defendant. As the counsel for the plaintiffs appeared sanguine in the cause, we directed a ceiving it. new argument upon this point, and it has accordingly been argued ably and ingeniously; the present action is not supportable against For these reasons, we are of opinion, that but, on full consideration, we must retain our former sentiments, that it cannot be supported. If this had been the case of a specific article, the property in which had been the subject of dispute between Amory and Fairchild, any decision with regard to that property, would certainly not have prevented the plaintiffs, being third persons, not parties to the suit, 286 Amory, and consequently that the verdict was against law. The motion for a new trial is therefore granted'. 1.-In consequence of this decision, the cause was removed into the Supreme Court, where the prinalso recognized and established. See post. ciples contained in Judge SHIPPEN's opinion, were |