off, no advantage could be taken of it at the trial. Why then was it allowed in that case? Because of the equitable nature of the plaintiff's action, and of the intimate connection between the claim and the defence, out of which arose the conclusion that the defendant might retain, or stop so much of the money, although it was in fact the plaintiff's money which he received, and although there was no precise contract that it should be stopped out of the money received. The right in that case to stop a reasonable compensation (which the parties had not defined) out of the whole sum which had come to the defendant's possession, was exactly such a right as we now insist upon. It stood, as ours does, upon the qualities of that sort of suit which the plaintiff had instituted, and upon the union of the claim and the defence. The defence, indeed, was less complicated in that case than it is in the present one: but so, too, was the plaintiff's demand. And, besides, a defence is not the less a good defence, or an examinable defence, because it does not depend upon a single fact, or does depend on many facts. A jury can deal with it, nevertheless, and does deal with such defences every day and there would be a defect of justice if they did not. The defence in this case rests, incontestibly, upon contract, as it did in that. The deduction claimed was in that, as in this, unliquidated in amount. The right to the deduction arose in that, out of the whole eircumstances of the case. It does so equally in this. The amount was, in that case, as well as in this, part of the case itself, as respected the demand of the plaintiff. Evidence was necessary on the 1821. Willinks V. Hollings worth. 1821. Willinks V. Hollingsworth. part of the defendant, to ascertain there the quantum of the deduction, as much as it is here. What case could the plaintiffs in this cause have shown upon any of the counts in their declaration without exposing, or letting in an exposition, of the whole matter on which the defendants rely? Of necessity, the entire transaction was before the jury, and it is upon that, as in Dale v. Sollet, that we contend for the admissibility of a defence which the entire transaction brings under the notice of the Court and jury. And it should seem to be monstrous, that when the whole is regularly and necessarily presented, and the result is that the defendants ought, in conscience and equity, to be permitted to retain an ascertainable part of the money received by them for their own use, they should be turned round to a cross action against persons who appear in their writ to be foreigners, and are not therefore amenable to our judicatures, or that (being probably remediless at law, if they are compelled to part with the whole of the money in their hands) they should be driven into Chancery for an injunction upon grounds of equity, equally available, as we are taught by the authorities, in an action for money had and received. The cross action, to which the other side refer us, must, in truth, try the present action over again ; and a verdict for the present defendants, in such an action, could scarcely be reconciled with a verdict in this cause for the whole amount of the plaintiffs' claim. A cross action, which is to unravel the action now sub judice, and which upon the same circumstances is to establish that the present plaintiffs ought not to have what it is now contended they ought to have, seems to be supererogation at least. When a cross action is unavoidable, the necessity must be submitted to; and it is unavoidable where the matters of inquiry are not combined in their nature. But, where so combined, an action for money had and received, opens the entire investigation, and can do ample justice without other assistance. Indeed, it cannot do justice at all on such occasions without exhausting the whole investigation. And to affect to administer equity by shutting out one half of the real case, (upon which the equity of the other half depends,) would be a mere mockery. Cross actions are always avoided when it is possible; and here it is not only possible, but absolutely required by the facts. 1821. Willinks V. Hollingsworth. Mr. Chief Justice MARSHALL delivered the opi- March 8th. nion of the Court, and after stating the facts, proceeded as follows: On the first branch of the question certified from the Circuit Court, no doubt can be entertained. The defendants having received the cargo of the Henry Clay, and sold it, are accountable for the proceeds, although the cargo should be considered as the property of the plaintiffs. Whether the defendants are liable for the moneys actually advanced in Amsterdam, or for the net amount of sales in Baltimore, considering the goods as the property of the plaintiffs, still they are liable for something; and, of consequence, the action is sustainable. 1821. Willinks v. Hollingsworth. In deciding on the second branch of the instructions which were required, it becomes material to examine the orders which were carried out by the Henry Clay on her voyage from Baltimore to Amsterdam, contained in the letters of the 25th of April, the one to the plaintiffs, the other to the master. It is admitted, that no freight to Batavia could be obtained, and that the vessel could not be sold at the limited price; consequently, the only deviation from orders alleged by the defendants is, the purchase of the Russian goods for the return cargo at Amsterdam, instead of sending the Henry Clay to St. Petersburg. That the orders of the defendants to send their ship to St. Petersburg, in the event which had occurred, were positive; and that no authority was given to purchase her return cargo at Amsterdam, under any circumstances, are too apparent for controversy. That this purchase, thus made without authority, whether with, or without, the consent and concurrence of the master, must have been made at the risk of the plaintiffs, is also too clear for argument. But the liability of the plaintiffs for any loss which the defendants may have sustained by the breaking up of the voyage to St. Petersburg, depends on the question, whether the control of that voyage was committed to them, or to the master. In considering this question, it is proper to take into view all the instructions which were given, and to compare the two letters written by the defendants with each other. In the commencement of the letter written by Mr. M'Kim, on the part of the defendants, he says, cargo which Whether this consignment was limited to the transactions in Amsterdam, or extended to any subsequent voyage in which the Henry Clay might be directed to engage, depends on other parts of the letter. Mr. M'Kim then proceeds to direct, that certain parts of the outward cargo should "remain as a fund for the purpose of loading the ship, if she should proceed to St. Petersburg." These orders are precise and explicit, with respect to the funds which are to remain in the hands of the plaintiffs for the purchase of the cargo in St. Petersburg, but are silent respecting any agency of the plaintiffs in making that purchase. After communicating the desire of the defendants, that a freight should be obtained for Batavia, the letter proceeds to say, "And secondly, if the ship can be sold for 8,000 pounds sterling, you will dispose of her rather than send her to St. Petersburg." This part of the letter may indicate, that in some other part of it, might be found an express order to send the Henry Clay to St. Petersburg, if the primary objects of the defendants should be unattainable, but does not in itself amount to such express order. The writer does not say, "we request you, if the vessel cannot be sold, to send her to St. Petersburg;" but," you will dispose of her, rather than send her to St. Petersburg;" as if there were some authority 1821. Willinks V. Hollingsworth. |