of the partnership, between Willing and Morris. | claim, to the latter, till 1798, long after the disEach partner was, therefore, liable, not as a solution of the partnership. The act, or assurety, but as a principal, for the lawful consumption, of one partner, to bind the company, tracts and transactions of the other, in relation to their joint business. 1 Wils, 682. 3 F. Vez. 277. Bankrupt Act of Congress, s. 34. Doug. 6:29. 3d. The Courts of Pennsylvania (differing in their view of the subject from the federal Courts) have made an abatement of interest during the continuance of the revolutionary war (a period computed at seven years and a half) in suits brought by British creditors, against American citizens, the immediate parties to the war: but there is neither law, justice, nor precedent in any court, for applying the rule to suits brought by the citizens of a neutral, or friendly, nation: And as to the practicability, as well as the lawfulness, of a remittance, it is notorious, that the intercourse between the United States and Holland, was never suspended, at any period of the contest. Lewis, for the defendants, stated his general position to be, that interest is not due of course, 288*] upon an account current; or an unliquidated debt. 1 Wils. 376. 3 Wils. 205. 1 Dall. 349. Doug, 361. 1 Dall. 265. 3 Dall. 313. 1 P. Wms. 376. 3 P. Wms. 205. Doug. 361. Durden v. Gaskill; and that the peculiar circumstances of the present case, will not warrant a departure from the general rule. The cases cited for the plaintiffs are, indeed, inapplicable to the real point at issue. Thus, 1 Dall. Rep. 349. was the case of a single sum of money, received at one time, by the defendant from the plaintiff's agent; not the case of an open, running, account. The cases in 1 F. Vez. 63. and Ridgw. 286. go no farther than to show, that when a sum is ascertained to be due, by settlement, or liquidation of accounts, interest begins to run. The case in 1 Vez. 310. contains, indeed, the strong expression, that interest follows the principal, as a shadow does the substance; but the expression must be applied to the subject before the court; which was a legacy, for the education of a child, bearing interest from the very nature of the bequest. And the case in 1 Wils. 682. arose upon a joint and several bond. To the general position, however, that interest is not payable, in cases of account current, and other simple contract debts, Lewis admitted there were various exceptions: 1st. Where there is an express contract to pay interest. 2d. Where the accounts have been settled, and a liquidated balance ascertained. 3d. Where a debt consists of a single sum of money, and no account current has been raised between the creditor and debtor. 4th. Where there has been an unreasonable detention of money, after a demand of payment, or a refusal to come to a settlement. But, he insisted, that there was no authority, in any case, to justify a verdict for interest, beyond the amount of the principal; not even upon a bond, if the creditor has neglected to demand payment for several years. 14 Vin, Abr. 460, But, adverting to the peculiar circumstances of the case, Lewis contended, 1st. That there was a wide distinction between the responsibility of Morris, and that of Willing: the correspondence being exclusively with the former, and no demand of payment, no notice of the must take place during the continuance of the partnership; and here the only promise made by Morris, during the partnership was in the year 1775; before the money was received, and merely importing, that the defendants would remit it, when it was collected; which, surely, is no foundation for the charge of interest. 3 Bac. Abr. 517. 2. Ventr. 151. So far, therefore, as respects Willing, it is a stale demand, against which every presumption will be made. Cowp. 215. 1 Wils. 742. 1 Atk. 493. Gilb. Eq. 224. 2d. That the operations of the war, and the high state of exchange, afford a justification for not remitting till the peace of 1783; and after that epoch, no demand was made upon Willing, till the suit was brought. *BY THE COURT: The auditors [*289 have ascertained the principal sum, that is due from the defendants to the plaintiffs; leaving to the court the question of interest. The only point now to be decided, therefore, is whether any, and what interest, ought to be paid upon the debt so ascertained? The inquiry has been naturally, and fairly, pursued, under the considerations suggested at the bar: 1st. Whether, on general principles, it is a case, in which interest can be allowed? 2d. Whether any circumstances, peculiar to the case, in relation to the parties, should prevent the allowance of interest here, in opposition to a general rule? 3d. Whether the effect of the revolutionary war was such, as to suspend the right to interest, for any, and for what, period? 1st. Whatever may have been the doctrine in former times, we have traced, with pleasure, the progress of improvement, upon the subject of interest, to the honest and rational rule, that, wherever one man retains the money of another, against his declared will, the legal compensation, for the use of money, shall be charged and allowed. From the single case of a promissory note, the instances, in which interest is allowed, have been so multiplied, year after year, that few remain to be added to the legal catalogue. In Pennsylvania the policy is older, and still, perhaps, more extensive, than it is in England. There, even at this day, an action must be brought upon a judgment, in order to recover interest upon it; but here, our act of assembly, so early as the year 1715, made the interest an inseparable incident of the judgment. my own part, I am prepared to say, with the book cited, that interest ought to follow a debt, as the shadow does its substance. Even, in the case of goods sold and delivered, I would think it right to allow interest, as soon as the express, or the implied, term of credit had elapsed, and a demand of payment was made. For 1.-This cause was tried before Smith and Brackenridge, Justices; the Chief Justice declining to sit, on account of his relationship to Mr. Willing; and sition. The charge was delivered by Judge Smith. Yeates Justice, being absent on account of indispo 2. In the course of the trial, Smith, justice, declared, that the authority of 1 Dall. 265. (laying down the rule, that interest was not payable for goods sold and delivered) had been often overruled. STATES. The debt due by A & B, to D, cannot be set off against the debt due by D, as garnishee, to B's executors. THE following case was stated for the opinion of the court: On the nineteenth day of August, 1793, David Cay and Andrew Cline, who then carried on business under the firm of Andrew Clow and company, indorsed a note drawn by Henry Darroch, bearing that date, for the sum of eight hundred and fiftytwo dollars and eighty-two cents; which note was discounted by the president, directors and company of the bank of the United States, defendants in this action, and the amount paid to the indorsers. In the present action, there can be no doubt, | *CRAMMOND et al. Executors of [*291 that the balance had long been ascertained and CAY, v. the BANK of the UNITED acknowledged. In England, it is the practice of merchants to balance their accounts annually; A & B partners in trade issue a foreign attachand, by that means, the interest of each year ment against the effects of C, who is indebted to becomes principal, in the new account of the them, in the hands of D; A & B were the indorsers succeeding year. Without adopting that prac-became due, A & B died, and the note was protested: of a note which was discounted by D, but before it tice, it is clearly our opinion, that the defend- and the executors of B, who was the surviving partants are liable for the interest actually claimed, ner obtained judgment against C, and also against unless some special reason exempts them from Das garnishee. the general obligation of merchants. 290*] *2d. The circumstances suggested, to distinguish the responsibility of Mr. Willing, from that of his partner, are not a sufficient legal, or equitable, answer, to the demand of the plaintiffs. In Watson's treatise, on the law of partnership, the cases on this point are collected and arranged. The result of the whole is, that during the partnership, all the partners are answerable for the acts of each. It is no ground of discrimination in this respect, which partner actually receives the funds; which was entrusted to transact the business, or which was ignorant of the state of the debit and credit, of the company books. If, indeed, 'Before the note became due, the drawer, a public notice is given by one partner, of the and both the indorsers, died of the yellow fedissolution of a partnership; and creditors, un-ver; and notice of non-payment was duly giv reasonably neglecting it, will place funds in the hands of the other partner, they must take theen to the executors of the surviving partner, David Cay. consequence of their own imprudence. But the present case is free from every embarrassment of this kind. The debt was contracted during the partnership; and all that was written about it, both before, and after, the termination of the partnership, was written by Mr. Morris alone, without any objection, on the part of Mr. Willing; whose conduct, on the contrary, gave reason to presume consent and approbation. 3d. Nor will the effect of the revolutionary war, furnish the defendants with a justification, or excuse, against the claim of interest. We all know the eminent services of Mr. Morris to his country; and the pre-eminent credit of the house of Willing & Morris, throughout the war. But these very advantages show, that the defendants, of all men, had it in their power to remit the funds, for the payment of their debts, due in neutral countries. This, then, is our general position: the defendants are liable, for the payment of interest, from the time the money was in their hands, demanded and neglected to be paid, until the war; during the war, if remittances could safely be made; and (if they could not be safely made during the war) then from the peace of 1783, until the actual recovery of the principal. Unless, upon the whole, the jury can discover some ground of excuse, which we have not been able to trace, the interest ought to be allowed, in justice to the plaintiffs: and, we will add, in justice to the commercial character of our country. The jury found a verdict for the plaintiff, for 4422 dollars and 89 cents.' 1. This sum, it is plain, was not equal to one half On the eleventh of April, 1793, Andrew Clow and David Cay laid a foreign attachment on the property of a certain James Brown in the hands of the defendants. Judgment was obtained in December term, 1793, in the names of the present plaintiffs, as executors of David Cay, the surviving co-partner. "A writ of inquiry has been issued, and the sum of twenty-five thousand five hundred and forty-three pounds, two shillings and three pence has been found due to the plaintiffs; judgment was thereupon entered in the usual form. A scire facias issued against the defendants as garnishees, in which, after the general proceedings stated on the record, there was a trial, on the 10th September, 1801, when the jury found for the plaintiffs 3354 dollars; and on the same day, judgment nisi was entered. 46 The defendants as garnishees of James Brown are in possession of thirteen shares of bank stock, and of the dividends thereon aris ing and accruing, since the first day of July, 1801, which are subject to this attachment. And they have received payment of two hundred and eighty-four dollars, and twenty-seven cents, being a dividend of the estate of Henry Darroch, the drawer of the said note. "The question for the opinion of the court is whether the defendants in this action, are entitled to set off against the demands of the plaintiffs in this action, the sum of $568 55-100 being the balance of the note unpaid?” After argument, by E. Tilghman and Ingersoll, for the plaintiffs; and by Lewis and Parle for the defendants, The Court (absent Shippen, C. J.) decided that the set-off was inadmissible. the interest claimed (and the calculation of interest *M'CULLOCH, Administrator, &c. c. [*292 was in a mode favourable to the defendants) but it was exactly equal to the principal sum reported by the auditors. It is presumed, therefore, that the jury thought the interest ought not to be allowed beyond the principal. YOUNG. An action can be maintained in the courts of Pennsylvania, under the authority of letters of administration granted in another state. THI HIS was an action on the case, brought | owners and enter a credit in his books, for the against the defendant, by John M'Culloch, same, which may be transferred to any person, as administrator of Robert Parland, under let- and passed as credit, either in taking out new ters of administration granted by the Orphan's warrants in any part of the state where vacant Court, and tested by the register of wills for land may be found, or paying arrearages on Prince George county," in the state of Maryland, former grants: Provided nevertheless, That the on the 8th of October, 1799, addressed to John value of the land, for which such certificates are M'Culloch of Alexandria, in the state of so to be delivered to the aforesaid claimants, shall Virginia." not be estimated otherwise than if the same had been made by the Board of Property immediately after the report of the aforesaid Commissioners, in pursuance of the law herein before mentioned: And provided further, That the claimants, who are by this act intended to be compensated, shall, at the time of receiving the certificates aforesaid, release to the commonwealth their respective claims to the lands, for which they shall receive compensation." The only controverted question in the cause, was submitted to the court, all the judges being present: to wit; whether an action could be maintained in the courts of Pennsylvania, under the authority of letters of administration granted in another state? And after argument by M. Lery, for the plaintiff, and by Hopkinson for the defendant (in the course of which, 1 Dall. Rep. 456. 1 State Laws, 30. Dall. edit. were cited): The Court adverting to the numerous instances, both since and before the revolution, in which such suits were maintained, unanimously pronounced. Judgment for the plaintiff. COMMONWEALTH v. M'KISSICK et al. The act of the 9th of March, 1796, declared those Pennsylvania claimants, who had complied with the terms of the confirming law, (while the said law was in existence) entitled to the benefit of the same, and enacted, that the sums found due to them, should be credited to them in taking out new warrants, in any part of the state where vacant land may be found. Held: That the act did not apply to warrants to be located on lots within the city of Philadelphia. Thomas Billington purchased several certificates, which had been issued under the authority of this act, and tendered them in pay ment, for warrants to be located on certain lots in the city of Philadelphia, which he alleged to be "vacant land." The legislature having granted all the unappropriated city lots to the inspectors of the prison of Philadelphia, for public uses, the inspectors employed counsel to oppose the rule for issuing a mandamus. Accordingly, Dallas, in showing cause against the rule, stated two points, for the consideration of the court: 1st. Whether upon a just construction of the act of March, 1796, and acts in pari materia, the right of location could apply to land within the boundaries of the city of Philadelphia. And 2d. Whether, in the strictest sense of interpretation, city lots could be regarded as vacant land. The act of March, 1796, is ingrafted upon the act of the 28th of March, 1787, usually called the confirming law." 4 State Laws, 274. (old edit.) which, however, had been repealed ON the 15th of March, 1802, a rule was ob. by the act of the 1st of April, 1790. & State tained upon the Receiver-General, which was afterwards extended to the secretary of the land-offce, to show cause why a mandamus should not issue, commanding them to receive a certain certificate, in payment for city lots, located by the late Thomas Billington. The application for the rule was founded upon an act of the General Assembly, passed on the 9th March, 1796, (4 vol. p. 16. Dall. edit.) which contains the following enacting clause: Laws, 786. Dal!, edit. It was expressly intended to entitle those Pennsylvania claimants, who had complied with the terms of the confirming law, "while the said law was in existence, to the benefits of the same." Preamble, 4 State Laws, 16. Dall. edit. What, then, were the benefits conferred on Pennsylvania claimants by the confirming law? A right to an equivalent, for the land they surrendered, which might be taken either in the old, or new purchase, at the option of the claimant." 4 Vol. State Laws Sect. 1. "Be it enacted, &c. That it shall and 274, 8. 9. (old edit,) And the act of March, 1796 may be lawful for the Board of Property, and did not profess to enlarge, nor has it, in terms, they are hereby enjoined and required, to pro- enlarged the right thus conferred. Besides the ceed upon the reports of the Commissioners act of March, 1796, evidently restricts [*294 appointed by the act passed the twenty-eighth the location, under the Wyoming certificates, to day of March, one thousand seven hundred those lands, for which the land officers were and eighty-seven, entitled 'an act for ascertain- previously authorized to grant warrants; and ing and confirming to certain persons, called no authority was ever given to the land officers Connecticut Claimants, the lands by them to sell city lots, till the act of the 5th of April, claimed within the County of Luzerne,' which 1797. 4 vol. 165. Dall. edit. have been filed in the office of the Secretary, and ascertain, as nearly as they can, from the documents so placed in the Secretary's office, and from such further evidence as they may 293*] deem necessary, and *which shall be produced to them, what sum or sums ought, on the principles of the aforesaid law, to be allowed to the respective owners; and the Receiver-General shall thereupon deliver a certificate of such sum or sums to the respective | Here, Dallas was stopped by the Court, who declared that they could not conjecture upon what ground the rule was tenable; and desired to hear the opposite counsel. Ingersoll and Raile, however, acknowledged, that they saw the subject in a point of view different from that, in which it was presented, when they made the motion; and declined any further argument. BY THE COURT: Let the rule be discharged. CROUSILLAT v. BALL. Barratry is an act committed by the master of a vessel of a criminal nature, without the license or consent of the owner. There must be fraud in the transaction, and should the act be done solely to benefit the owner, it does not constitute barratry. If the master is the general agent and consignee of the owner, the acts of the master as such, cannot any more, than those of the principal himself be denominated barratry. CASE ASE on a policy of insurance upon ship and cargo, containing a warranty against seizure or detention, for any illicit or prohibited trade. It appeared, in evidence, that the vessel and cargo were owned by the plaintiff, and were insured on a voyage from Philadelphia to Cape Francois; thence to New Orleans; thence back to the Cape; and from the Cape back to Philadelphia. When the vessel had arrived at the Cape, on the return voyage, war had broken out between Great Britain and France; and the calamities of St. Domingo compelled a number of its inhabitants, to seek an asylum in the United States. The captain of the vessel (who was addressed to merchants at the Cape, and only in case of their absence was entrusted with the disposition of the cargo) undertook to cover, as American property, a considerable quantity of coffee and cash, belonging to two of the fugitive Frenchmen; under a bargain, that they should pay to the owner of the ship a certain sum for passage money, and for the freight of the coffee; and to the captain, for his own separate emolument, 50 half-johannes in hand for covering the cash, with a contingent of 200 half-johannes more, on its safe arrival in the United States; and a sum equal to the freight, for covering the coffee. The vessel was cap tured and carried into Jamaica, and both vessel and cargo libelled as prize, in the Court of ViceAdmiralty. The captain filed a claim, for the ship, and the plaintiff's part of the cargo, and 295*] for freight on the covered *part of the property; but in his answers to the standing interrogatories, he had sworn, that the whole cargo belonged to the plaintiff, and that there were no papers on board, except such as he had delivered. On searching the vessel, however, the bills of lading, letters, and other papers, relative to the covered property, were found concealed; the whole cargo, including the master's own adventure, was condemned; and though the vessel was acquitted, upon further proof of American ownership, sent by the plaintiff from Philadelphia, it was expressly without freight, on account of the master's fraud. When notice of the capture was received, the plaintiff abandoned to the underwriters, stating that the voyage was defeated, and the cargo taken out of the hands of my agent, the captain. On two former trials of this cause, the argu 1.-This cause had been tried twice before, upon a declaration, containing a single count, charging the loss to have happened by the capture, arrest, and detention of a foreign prince. On the first trial, the jury could not agree; and on the second trial a special verdict was found, but so imperfectly, that judgment could not be rendered upon it. A venire facias de novo was, therefore, awarded: and the plaintiff had leave to add a count to his declation, averring the loss to have happened by the barratry of the master; on which point new evidence was now given. ment turned entirely upon the question, whether the underwriters were responsible for a loss thus occasioned by the misconduct of the captain, who was the agent of the owner? And the Court were clearly of opinion, that by taking on board the property of Frenchmen, and covering it as the property of the plaintiff, the risk had been increased; that the perjury of the captain had, also, involved the neutral property, in the jeopardy of the belligerent masked property; and that, in fact, his misconduct, from beginning to end, had produced and justified a condemnation. Considering him, therefore, as he must, in law, be considered, in the light of the plaintiff's agent, the court thought, that the plaintiff was not entitled to recover. On the present trial, the plaintiff rested his 1349. Corp. 154. 1 T. Rep. 259. The defendant contended, 1st. That the plaintiff was estopped from alleging barratry, after he had approved the conduct of the captain (whom he expressly recognized as his agent, in the letter of abandonment, and endeavoured, by further evidence sent from America, to maintain the claim in the Court of Vice-Admiralty at Jamaica. 2d. That the captain intended to benefit, and not to defraud, his owner, so no barratry was committed. 3d That the captain, being the consignee of ship and cargo, was not capable of committing barratry; which furnishes a conclusive distinction between the present case, and the cases cited from the books. 1 Emerig. 370. 2 Marsh, 442 2 Dall. Rep. 137. 9. Park, 91, 6 T. Rep. 7 T. Rep. And 4th. That the seizure detention and condemnation of the cargo, was on account of an ilicit and prohibited trade, by covering belligerent property in violation of the law of nations, and the good faith of neutrals; as well as by a prohibited intercourse with a Spanish colony. YEATES, Justice, delivered the charge of the Court, to the following effect. In this action. evidence has now been given upon a ground distinct from any that was taken on the former trials; and the only question to be decided is, whether the cargo insured was lost by the barratry of the master? Barratry is an act committed by the master of a vessel, of a criminal nature, without the license, or consent of the owner. There must be fraud in the transaction; a selfish and sinister design, for the master's own interest; for, if the act is done solely to benefit the owner, it does not constitute barratry. alien, by which the former undertook to purchase vessels and cargoes in his own name for the latter, and in like manner to import the return cargoes in fraud of the registry and revenue laws of the United States. THE HESE actions having been referred, the referees reported that there was due, in the first, from the defendant to the plaintiff, as surviving partner of Joseph Anthony and Co. a sum of 30,708 16-100 dollars; and that in the second there was no cause of action. To this report, Coulon filed a number of exceptions, of It is the province of the jury to decide upon of the single exception, which was the ground which it is only necessary to state the substance the credit of the witnesses, and the amount of the evidence. The enormity of the doceur, the of the decision of the Court: to wit, "That the lapse of time, and other circumstances, are cal-balance reported to be due to Maybin, arose culated to excite doubt and suspicion. If, from a series of unlawful transactions, in viohowever, the jury think, that the captain meant to take the premium, for covering the property, to his own private benefit, in exclusion of his owner; and not, in the first instance, to pay it to the owner, expecting from him a gratuitous compensation, or reward; the act of barratry is proved, and the plaintiff must recover; unless the evidence shall satisfy the jury, that the captain was the general agent and consignee of the plaintiff, and acted as such. In that case, the law is equally clear, that the acts of a general agent, cannot, any more than the acts of the principal himself, be denominated barratry. The other objections that have been made by the defendant's counsel, appear to be satisfactorily answered, in the course of the evidence and the argument. The proof of interest in the cargo is strong; and most clearly, the case is not a case of illicit trading, within the meaning of the warranty. The nature of the 297*] *indirect intercourse with New Orleans, a Spanish colony, was well known to the underwriters; and, in truth, the trade would not be illicit, if it was fairly carried on. Even in that respect, therefore the objection cannot be sustained; and as it respects the violation of neutral character, it is the very ground of the plaintiff's right to recover, if the violation was committed, for the private purposes of the master of the vessel. For, here we repeat, the sole question to be decided, is, whether the master, in breach, or evasion, of his orders, did a fraudulent act, in the course of the voyage, tending to his own benefit, and to the prejudice of his owner? If he did, the verdict must be for the plaintiff. If not, or if what he did, was in the character of a general agent, the verdict must be for the defendant. For the plaintiff, E. Tilghman, Du Ponceau, E. S. Burd, and Dallas. For the defendant, Ingersoll and Raule. 298*] *MARCH TERM, 1804. MAYBIN, surviving partner, &c. COULON C. MAYBIN, surviving partner, &c. An action cannot be maintained in our courts founded on a contract, between a citizen and an lation of the acts of congress, respecting the registering of vessels, and the duties on tonnage and impost; and consequently, no Court of justice could lend its aid to enforce the recovery." The facts were briefly these: Coulon, an alien, came to the United States in the year 1794, bringing with him a considerable quantity of merchandize, which he placed in the hands of Joseph Anthony & Co. He had, also, left a considerable property in the Isle of France; and he was not only desirous to have that property brought to America, but to enter into and other funds, in the European, as well as various commercial speculations, with these Indian, markets. He accordingly entered into engagements with Joseph Anthony & Co.; and, in consideration of his making them the depositaries of his funds, with an allowance of ample commissions for services, and of interest for advances, they undertook to purchase vessels and cargoes for him, in their own names; and in like manner to import the return cargoes. Among the vessels purchased for Coulon (some carrying only a sea letter) [*299 was the America, which was registered in New York, as the property of Joseph Anthony and Co. American citizens; and a cargo afterwards brought in the America, from the Isle of France, though entirely owned by Coulon, was entered at the custom house of Philadelphia, as owned by them. From the accounts and corrrespondence produced in Court, as well as before the referees, it clearly appeared, that the balance resulted from these illicit transactions; and that the sum reported to be due to Maybin, was about the amount of the commissions for services, and the interest for occaand cargoes, having been actually paid from sional advances; the nett price of the vessels the fund of Coulon. The counsel for Coulon insisted, that the referees had errred, in point of law, by giving a sanction to the violation of the acts of congress and that their report could not, therefore, be sustained, or affirmed by the court. In the course of the argument they cited, 1 Pow. on Contr. 183. 195, 201, 203. 1 Bous, & Pull. 340. 3 T. Rep. 454. 4 T. Rep. 466. 1 Bous. & Pull. 296. Corp. 341. 5 T. Rep. 599. I Bous. & Pull. 556. 4. Burr. 2069. 3 T. Rep. 421. 6 T. Rep. 61. 405, 3 Vez, Jun. 373, The counsel for Maybin argued. That advances were made, and service performed, to a 1. See the Registering Act, 2 vol. 131; and the impost law, 4 vol. p. 279. |