Detinue. Where an Action of Assumpsit on the Case will lie. in these decisions of the district court of Louis- 230. An action of debt was instituted against one of the defendants, in a joint judgment against two defendants. The defendant sued in the action, demurred, and the demurrer was sustained. Gilman v. Rives, 10 Peters, 298. 231. The United States instituted a joint action on a joint and several bond, executed by a collector of taxes and his sureties. The defendant, the principal in the bond, confessed a judgment by cognovit actionem, and the United States issued an execution against his body, upon which he was imprisoned, and was afterwards discharged from confinement under the insolvent laws of the United States. The United States afterwards proceeded against the other defendants, and on the trial of the cause before a jary, the principal in the bond, he having been released by his co-obligors, was offered as a witness by the defendants, and admitted by the court, to prove that one of the co-obligors had executed the bond on condition that others would execute it, which they did not do. This evidence was properly admitted. The U. S. v. Leffler, 11 Peters, 86. 232. In an action of debt on a bond with a collateral condition, nothing can be received but what the obligor is entitled to upon a breach of the condition. Massey v. Schott, i Peters' C. C. R. 132. not be recovered. Pope et al. v. Barret, 1 Mason, 117. 236. An action on an open account which has been assigned to a third person, is properly brought in the name of the original creditor; but the debtor may off-set in such action all payments made to the assignor on account of such claim. Winchester v. Hackley, 2 Cranch, 342; 1 Cond. Rep. 415. 237. An endorser of a promissory note, payable to order, cannot in Virginia maintain an action at law upon the note against a remote prior endorser; but he may proceed in equity. Harris v. Johnston, 3 Cranch, 311; 1 Cond. Rep. 543. 238. When money of the United States has been received by one public agent from another public agent, whether it was received in an official or private capacity, there can be no doubt but that it was received to the use of the United States; and they may maintain an action of assumpsit against the receiver for the same. The U. S. V. Buford, 3 Peters, 28. 239. The ancient doctrine that a corporation can act in matters of contract under its seal only, has been departed from by modern decisions; and it is now considered that the agents of a corporation may, in many cases, bind it, and subject it to an action of assumpsit. Chesapeake and Ohio Canal Company v. Knapp and others, 9 Peters, 541. 240. When a special contract remains open, the plaintiff's remedy is on the contract; and he must set it forth specially in his declaration. But if the contract has been put an end to, an action for money had and received lies to recover any payment that has been made under it. Ibid. 241. It is a well settled principle, that where a special contract has been performed, a plaintiff may recover on the general counts. Ibid. 2. Where an Action of Assumpsit on the Case will lie. 242. Assumpsit will not lie on a policy of insurance under seal; and the defect is not cured by a verdict. Marine Ins. Co. of Alexandria v. Young, 1 Cranch, 332; 1 Cond. Rep. 326. 243. Upon a special contract, executed on the part of the plaintiff, indebitatus assumpsit will lie for the price. Bank of Columbia v. Patterson, 7 Cranch, 299; 2 Cond. Rep. 501. 244. The defendant having ordered the plaintiff to purchase salt for him, and to draw on him for the amount, and he having so purchased, and drawn, defendant is bound to accept and pay his bills; and if he do not, plaintiff may recover the amount of the bills and damages and costs of protest, (if he has paid them,) upon a count for money paid, laid out, and expended; and the bills of exchange may be given in evidence on that count. Riggs v. Lindsay, 7 Cranch, 500; 2 Cond. Rep. 585. 245. If after the protest of the bills, the plain tiff sell the salt without orders, it shall not prejudice his right of action, although he render no account of sales. Ibid. 246. Upon a sale of land at auction, if the Evidence in an Action of Assumpsit. terms be that the purchaser shall within thirty | received, will lie in favour of him to whom of days give his notes with two good endorsers; right the money belongs; and this, notwithand if he shall fail to comply within the thirty standing it may involve a trial of the title to an days, then the land to be resold on account of office, if the party has once been in possession. the first purchaser; the vendor cannot maintain Allen v. M'Keen, 1 Sumner's C. C. R. 276. an action against the vendee for a breach of the contract until a resale shall have ascertained the deficit, although the vendee should instruct an attorney to draw a deed and insert his name as purchaser. Webster et al. v. Hoban, 7 Cranch, | 399; 2 Cond. Rep. 546. 247. A promissory note given by one member of a commercial company to another member for the use of the company, will maintain an action at law by the promisee in his own name against the maker, notwithstanding both parties were partners in that company, and the money when received would belong to the company. Van Ness v. Forrest, 8 Cranch, 30; 3 Cond. Rep. 14. 248. Where a special agreement is open and subsisting between the parties at the time the cause of action arises, a general indebitatus as sumpsit will not lie. Perkins v. Hart, 11 Wheat. 237; 6 Cond. Rep. 287. 249. But where the special agreement has been executed or otherwise closed, a general indebitatus assumpsit may be maintained; but in such case it is competent for the defendant to give in evidence the special agreement, for the purpose of lessening the quantum of damages to which the plaintiff would be otherwise entitled. Ibid. 250. Nor will the plaintiff be precluded by the circumstance of there being an open and subsisting special agreement, from recovering, under the general counts, a compensation for services which are not within the scope of the agreement. Ibid. 251. If money be delivered by A to B, to be paid over to C, although no promise is made by B to C, yet C may recover the money from B by an action of assumpsit. Lawrason v. Mason, 3 Cranch, 492; 1 Cond. Rep. 605. 252. A certificate stating a debt to be due by the United States to one who had fraudulently claimed the same, was issued to him by the commissioners for settling continental claims; and this certificate was afterwards funded by him, and interest on the same was paid to him. The United States instituted a suit for the recovery of the amount of certificates and interest paid. Held, that the United States were entitled to recover in an action of assumpsit, they having affirmed the certificate. Fenemore, Plaintiff in Error, v. The U. S., 3 Dall. 357; í Cond. Rep. 162. 253. A letter from the defendant to M., saying he would be security for one hundred and thirty barrels of corn, payable in twelve months, will maintain an action of assumpsit against the writer of the letter, by any person who, on the faith of this letter, shall have given credit to M. for the corn. Lawrason v. Mason, 3 Cranch, 492; 1 Cond. Rep. 605. 254. Where one man receives money which ought to be paid to another, or belongs to another, an action of assumpsit for money had and 255. An action of assumpsit will not lie in the name of a principal, on a written contract made by his agent in his own name, although the defendant may have known the defendant's character. A demurrer to the declaration was in such a case sustained. U.S. v. Parmele, 1 Paine's C. C. R. 252. 256. Where the United States are entitled to a priority of payment, they may bring an action of assumpsit against the assignee for money had and received by him under the assignment. The U. S. v. Clarke, 1 Paine's C. C. R. 629. 257. The article omitted in the assignment was a debt from the assignee to the debtor of the United States, growing out of a previous partnership between them. After the making of the assignment, the assignee gave the debtor his bond for the debt. Held, that if the bond was given for moneys of the debtor in the assignee's hands at the making of the assignment, the amount might be recovered in assumpsit; but not if it grew out of unsettled partnership concerns. Ibid. 258. Where assumpsit is brought against an assignee, and he has funds which can be reached by the action, it seems that he is not entitled to a deduction for his expenses incurred in preserving the property, and the execution of his trust. Ibid. 3. Evidence in an Action of Assumpsit. 259. Upon the issue of non assumpsit, the defendant may give in evidence the record of a former judgment, between the same parties, on the same cause of action. Young et al. v. Bluck, 7 Cranch, 565; 2 Cond. Rep. 607. 260. Under non assumpsit, defendant may give in evidence any thing which shows that no debt was due at the time the action was commenced; whether it arise from an inherent defect in the original promise, or a subsequent discharge and satisfaction. Riggs v. Lindsay, 7 Cranch, 500; 2 Cond. Rep. 585. 261. In actions of assumpsit, the contract must be proved as laid; and if the undertaking be special, it must be so stated, or the variance will be fatal. Pope et al. v. Berret, 1 Mason, 117. 262. A bill of parcels delivered by J., stating the goods as bought of D. and J., is not conclusive evidence that the goods were the joint property of D. and J.; but the real circumstances may be explained by parol. Harris v. Johnston, 3 Cranch, 311; 1 Cond. Rep. 543. 263. In such case, if part of the goods were the sole property of D., and the residue the sole property of J., and J. had authority from D. to sell his part, J. may maintain an action for the whole in his own name. Ibid. 264. Upon the issue of non assumpsit, the defendant may give in evidence the record of a former judgment, between the same parties, on the same cause of action. Young et al. v. Black, 7 Cranch, 565; 2 Cond. Rep. 607. Action of Trespass.-Where Trespass will lie. 265. Under non assumpsit, defendant may give in evidence any thing which shows that no debt was due at the time the action was commenced, whether it arise from an inherent defect in the original promise, or a subsequent discharge and satisfaction. Ibid. be 266. Every thing which disaffirms the contract, every thing which shows it to be void, may given in evidence on the general issue in an action of assumpsit. Craig et al. v. The State of Missouri, 4 Peters, 410. 267. The act incorporating the bank of the commonwealth of Kentucky, contains a provision by which it is enacted that the bank shall receive money on deposit without being required to give an obligation under seal to repay it. This enactment must be construed with regard to the practice of banking, and the general understanding of mankind; and must create a liability to the depositor by the simple act of depositing, that is, an assumpsit in law, implied from an act in pais. The Bank of the Commonwealth of Kentucky v. Wister et al. 2 Peters, 324. 268. Upon the deposit being made in the Bank of the Commonwealth of Kentucky, the cashier gave under his hand a certificate that "there had been deposited to the credit of the plaintiffs below, $7730.81, which is subject to their order on presentation of this certificate." The deposit was made in the notes of the bank, and when the same were deposited, and when demand of payment was made, the notes were passing at one-half their nominal value. When the certificate was presented to the bank, the cashier offered to pay the amount in notes of the bank, but they refused to receive payment in any thing but gold or silver. By the Court: The language of the certificate is expressive of a general, not a specific deposit; and the act of incorporation is express, that the bank shall pay and redeem their bills in gold or silver. The transaction then was equivalent to receiving and depositing the gold or silver; if the bank did not so understand it, they might have refused to receive it; and the plaintiffs would certainly have recovered the gold and silver, to the amount upon the face of the bills. Ibid. 325. 269. In an action of assumpsit, where a part of the assigned property had been sold at auction, under the direction of the assignee, it was held enough, prima facie, to show that he had received the price for which it was sold. The United States v. Clarke, 1 Paine's C. C. Rep. 629. 272. Where a capture has actually taken place, with the assent, either express or implied, of the commander of a squadron, the prize master may be considered as bailee to the use of the whole squadron, who are to share in the prize money; and thus the commander may be made responsible: but not so as to mere trespasses, unattended with conversion to the use of the squadron. Ibid. 273. Owners of privateers are liable for the acts of the commanders; and the commander of a single ship is liable for the marine trespasses of his subalterns, when acting within the scope of his commands. Ibid. 274. To detain for examination is a right which a belligerent may exercise over every vessel, not a national vessel, that he meets with on the ocean; and the belligerent is not answerable for any injury that casually results from the reasonable exercise of this right. Ibid. 275. The assumption of the disguise of a friend or an enemy, is a lawful stratagem of war; and he who resorts to it is not liable for the loss of the vessel occasioned by the crew refusing to perform their duty, in consequence of the stratagem. Ibid. 276. In an action for a tort on personal property, possession, accompanied by an assertion of ownership, is prima facie evidence of property: documentary evidence is necessary only to meet other testimony. Bas et al. v. Steele, 3 Wash. C. C. R. 381. 277. An execution, after the expiration of the time within which it is made returnable, is of no force; and an arrest under it is a trespass. Stoyel v. Adams et al. 3 Day's Rep. 1. 278. A circuit court cannot take cognizance of an action of trespass quare clausum fregit, committed on lands within the United States, and out of the district in which the court is held. Livingston v. Jefferson, 4 Hall's Am. L. Journ. 78. 279. An action of trespass quare clausum fregit is a local action. Ibid. 280. To an action of trespass for an assault and battery, and false imprisonment, the defendant pleaded that a congress was held and sitting during the period of the trespasses complained of, that the house of representatives had resolved that tfie plaintiff had been guilty of a breach of the privileges of the house, and of a high contempt of the dignity and authority of the same, and had ordered that the speaker should issue his warrant to the serjeant at arms, commanding him to take the plaintiff into custody, wherever to be found, and to have him before the house to answer to the said charge; and that the speaker did accordingly issue such a warrant, reciting the said resolution and order, and commanding the serjeant at arms to take the plaintiff into custody, &c. and delivered the said warrant to the defendant the serjeant at arms. By virtue of which warrant the defendant arrested the plaintiff, and conveyed him to the bar of the house, where he was heard in his defence, touching the matter of the said charge; and the examination being adjourned from day to day, Where Trespass will lie.-Pleadings in the Action of Trespass. and the house having ordered the plaintiff into custody, he was accordingly detained by the defendant, until he was finally adjudged to be guilty, and convicted of the charge aforesaid, and ordered to be forthwith brought to the bar and reprimanded by the speaker, and then discharged from custody; and after being thus reprimanded, was actually discharged from the arrest and custody aforesaid: Held, that the matters set forth in the plea amounted to a legal justification. Anderson v. Dunn, 6 Wheat. 204; 5 Cond. Rep. 69. the court martial having no jurisdiction of such cases. Wise v. Withers, 3 Cranch, 331; 1 Cond. Rep. 552. 288. Where the captor transcends his powers and rights, he becomes guilty of a marine trespass, and is amenable in damages for the injury sustained. The Anna Maria, 2 Wheat. 327; 4 Cond. Rep. 139. 289. To enable a plaintiff to maintain trespass or trover for an injury to personal property, the plaintiff must have had, at the time the injury was done, either actual or constructive posses281. No action can be maintained, at common sion of the thing, as well as a general or conlaw, for an illegal capture; if the supposed tres-structive property in it. Corfield v. Coryell, 4 pass be a capture as prize, it cannot be sustained; Wash. C. C. R. 371. for if the decision of the question of prize or no prize be involved, it exclusively belongs to the admiralty. Sonnaire et al. v. Keating, 2 Gallis. 325. 282. Every marine capture is at the peril of the party. The captor must, therefore, show just grounds for the violence, or he is liable to an action of trespass for damages; and before he can have a condemnation of the vessel, he must prove the ship to be enemies' property. Miller et al. v. The Resolution, 2 Dall. Rep. 1. 283. An officer of a belligerent vessel of war cannot be arrested or sued in the neutral nation, at the suit of or at the instance of individuals for any capture made on the high seas, and carried for adjudication into a belligerent port. The United States v. Peters, 3 Dall. 129; 1 Cond. Rep. 60. 284. A vessel belonging to citizens of the United States, then neutral, being captured by a belligerent, and run on shore by the prize crew to avoid recapture by the other belligerent, and totally lost; another prize vessel and cargo, within the limits of the United States, being attached by the original American owner, an agreement was made between the parties that the attached property should be sold, and the proceeds paid into court, to abide the issue of a suit instituted against the captors for damages: Held, that the defendants being answerable for the property destroyed, whatever might have been the irregularity of attaching other property of the captors, it was completely obviated by the agreement. Del. Col. v. Arnold, 3 Dall. 333; 1 Cond. Rep. 150. 285. The owners of a privateer are responsible for the conduct of their agents, the officers and crew, to all the world; and the measure of such responsibility is the full value of the property injured or destroyed. Ibid. 286. The commander of a United States' ship of war, if he seizes a vessel on the high seas without probable cause, is liable to make restitution in value, with damages and costs, even although the vessel is taken out of his possession by a superior force: and the owner is not bound to look to the recaptor, but may abandon, and hold the original captor liable for the whole loss. Maley v. Shattuck, 3 Cranch, 458; 1 Cond. Rep. 597. 287. Trespass lies against a collector of militia fines, who distrains for a fine imposed by a court martial on a person not liable to militia duty; 290. Trespass lies against a collector of taxes for imprisoning a party who is taxed as an inhabitant of a town, if he is not an inhabitant; for the assessors have no right to tax a person not an inhabitant; and if they do, it is an excess of jurisdiction. Thruston v. Martin, 5 Mason's C. C. R. 497. 291. An action of trespass on lands is a local action, and the trespasser is not liable to an action unless he is found within the jurisdiction where the lands lie. Livingston v. Jefferson, 1 Brockenbrough's C. C. R. 203. 2. Pleadings in the Action of Trespass. 292. If a suit be brought against the seizing officer for the supposed trespass, while the suit for the forfeiture is depending, the fact of such pendency may be pleaded in abatement, or as a temporary bar to the action. If after a decree of condemnation, then that fact may be pleaded as a bar; if after an acquittal with a certificate of reasonable cause of seizure, then that may be pleaded as a bar; if after an acquittal, without such certificate, the officer is without any justification for the seizure, and it is definitively settled to be a tortious act. Gelston et al. v. Hoyt, 3 Wheat. 246; 4 Cond. Rep. 244. 293. If to an action of trespass in a state court for a seizure, the seizing officer plead the fact of forfeiture in his defence, without averring a lis pendens or a condemnation, or an acquittal with a certificate of reasonable cause of seizure, the plea is bad; for it attempts to put in issue the question of forfeiture in a state court. Ibid. 294. The statute of June 5, 1794, chap. 226, sect. 3d, prohibiting the fitting out any ship, &c. for the service of any foreign prince or state, to cruise against the subjects, &c. of any other foreign prince or state, does not apply to any new government, unless it has been acknowledged by the United States, or by the government of the country to which such new state belonged; and a plea which sets up a forfeiture under that act, in fitting out a ship to cruise against such new state, must aver such recognition, or it is bad. Ibid. 295. A plea justifying a seizure under this statute, need not state the particular prince or state by name against whom the ship was in tended to cruise. Ibid. 296. A plea justifying a seizure and detention by virtue of the 7th sect. of the act, under the express instructions of the president, must aver H Damages in an Action of Trespass. that the naval or military force of the United 306. The prime cost or value of the property States was employed for that purpose, and that lost, and, in case of injury, the diminution in the seizor belonged to the force so employed. value, by reason of the injury, with interest That section was not intended to apply, except thereon, affords the true rule for estimating to cases where a seizure or detention could not damages in such a case. Ibid. be enforced by the ordinary civil power, and there was a necessity in the opinion of the president to employ naval or military power for this purpose. Ibid. 297. A plea alleging a seizure for a forfeiture as a justification, should state not only the facts relied on to establish the forfeiture, but aver that thereby the property became, and was actually forfeited, and was seized as forfeited. Ibid. 298. To trespass for taking, detaining, and converting property, it is sufficient to plead a justification of the taking and detaining; and if the plaintiff rely on the conversion, he should reply to it by way of new assignment. Ibid. 299. In a plea of justification by the marshal, in an action of trespass for not levying an execution, setting forth a remission by the secretary of the treasury, of the forfeiture or penalty on which the judgment was obtained, it is not necessary to set forth the statement of facts upon which the remission was founded. The U. S. v. Morris, 10 Wheat. 246; 5 Cond. Rep. 90. 307. An item for the ransom of the vessel and cargo which had been subsequently seized by another belligerent, as alleged, for the want of papers of which the vessel had been deprived by the first captors, will not be admitted in estimating the damages. Ibid. 308. In cases of illegal capture, where the vessel and cargo have been entirely lost to the owner, the prime cost and interest is the measure of damages; in the case of gross illegality, damages have been confined to demurrage and interest on the principal of the captured property. The Lively, 1 Gallis. 315. 309. Where the property has been sold, and no account of sales has been rendered, the value is estimated at the prime cost, and ten per cent. profit; where an account of sales is rendered, that in general is made the measure of the decree. Ibid. 310. Freight is a proper item for allowance in estimating the damages arising from illegal capture, where the voyage has been lost, or the cargo been unliveried. Ibid. 311. But it is not to be allowed where the vessel has been restored with the cargo on board, and in a situation capable of performing the Ibid. 300. It would be useless and mere surplusage to set forth the statement of such facts in the plea as would not be traversable. The secretary of the treasury is by law made the exclusive judge of these facts; and it is not compe-voyage. tent for any tribunal, collaterally, to call in question the competency of the evidence, or its sufficiency to procure the remission. Ibid. 301. It is therefore sufficient that the plea, by setting out the warrant at large, contains a sufficient averment that the statement of facts had been transmitted to the secretary of the treasury, by the proper officer, as required by the act of congress, of March 3, 1797, chap. 361. Story's Laws U. S. Ibid. 302. The plea of non cepit, puts in issue the fact of an actual taking; and unless there has been a wrongful taking from the possession of another, it is not a taking within the issue; and a wrongful detainer after a lawful taking, is not equivalent to a wrongful original taking. Meany v. Head, 1 Mason, 319. 3. Damages in an Action of Trespass. 312. Supposed profits are not to form an item of damage in case of restitution. Ibid. 313. If captors wantonly injure the captured crew, the prize court will award damages for personal ill usage. Ibid. 314. The extraordinary expenses of vindicating the right of the plaintiff, such as counsel fees and expenses of witnesses, beyond the taxable costs, ought not to be considered in estimating damages in cases of tort. Whittemore v. Cutler, 1 Gallis. 429. 315. Where a capture has been made after the expiration of the time within which, by the treaty of peace, captures could lawfully be made, the owners are entitled to compensation for the loss of the goods which have been consumed or destroyed by the captors; but where the captors have acted with good faith, the damages are not to exceed the amount of the loss, and the onus 303. On an illegal seizure, the original wrong-probandi is on the claimants. The Ulpiano, doer may be made responsible for the loss actu- 1 Mason, 91. ally sustained in a case of gross and wanton outrage; but the owners of a privateer, who are only constructively liable, are not bound to the extent of vindictive damages. The Amiable Nancy, 3 Wheat. 546; 1 Paine, C. C. R. 111; 4 Cond. Rep. 322. 304. Damages are not recoverable in such case for a deterioration of the cargo, not occa. sioned by the improper conduct of the captors. Ibid. 305. The possible or probable profits of an unfinished voyage, afford no rule to estimate the damages, in a case of marine trespass. La Amistad de Rues, 5 Wheat. 385; 4 Cond. Rep. 697. 316. In an action against the owner of a vessel, for an injury done to the plaintiff's goods by the neglect of the master, the proper measure of damages is the difference between the prime cost and charges, and the amount of the sales, not the probable profits if the goods had gone safe. Dusar v. Murgatroyd, 1 Wash. C. Č. R. 13. 317. Where a vessel has been lost in consequence of an illegal capture, the value of the vessel, the prime cost of all the cargo, with all charges, and the premium of insurance, are to be allowed in ascertaining the damages in an action of trespass for such illegal taking. The Anna Maria, 2 Wheat. 327; 4 Cond. Rep. 139. |