Lacaze v. State

1 Add. 59

Opinion

Chew, President.

The counsel for the plaintiffs in error, in their arguments before us, have contended, that the judgment of the Supreme court is erroneous; and ought to be reversed for various reasons.

1 Bunb 17, 313. 1 Str. 187. Cowp. 423-4. 2 T. Rep.472,694 3 T. Rep. 5. 4 Burr.2035.

1. Because, the Admiralty being a court of inferior jurisdiction, the declaration does not aver (as by the rules of law, they say, it was essentially necessary) that the subject matter, of which the court of Admiralty took cognisance, was infra jurisdictionem of that court.

Much time was taken up, and many cases cited on the question whether the Admiralty is, or is not, a court of inferior jurisdiction ; and, although I incline to think, on considering this point, that it is to be classed among the inferior courts, it appears to me, circumstanced as this case is before us, to be totally immaterial for us to decide upon it, because it appears, on the face of the record, that the Admiralty had passed sentence, and that the security taken in that court, which is the ground of the present action, was for the performance and carrying into execution that sentence ; and I conceive, that, if the proceeding in the Admiralty was ever exceptionable, on account of the want of jurisdiction, the proper time to take advantage of it legally, was by application to the courts of Law for a prohibition to the court of Admiralty, while the cause was there depending and before sentence. But, as sentence in this case had passed in the Admiralty, we are, in my opinion, as a court of Law, precluded from calling in question the jurisdiction of the Admiralty ; but, on the contrary, must presume, and take it for granted. It is now too late to examine into it. I ground my opinion on this point, on numerous adjudged cases, ancient and modern, where motions have been made to the courts of Westminster for prohibitions to the Admiralty and Spiritual courts, on suggestions of their not having jurisdiction; and, in all the cases I have met with on the subject, the judges have universally held, that there is a great difference between an application made to them for a prohibition pending the suit and after sentence. In the first case, pending the suit, the court will examine the whole case, and see the ground of the proceeding in the Admiralty or Spiritual court; but that the rule is quite the reverse after sentence is passed; in such case they will not look out of the proceedings, for the party who applies for a prohibition must shew a nullity of jurisdiction clearly on the face of the procee dings; I could cite a great number of cases to shew this to be a settled and established rule.

1 Wils. 255. Carth, 304. Sr. T. Ray, 487.

But even if it is admitted, that the declaration was defective for not averring, that the cause was infra jurisdictionem of the Admiralty, it is clear to me, that the defect is cured by the verdict. The case of Bull v. Steward is in point. It was an action on the case against the defendant, bailiss of the Borough court of Southwark, for an escape of Alice Rawlins, on mesne process, and a verdict for the plaintiff. On motion in arrest of judgment, it was objected, that the declaration did not alledge in what manner Alice Rawlins was indebted to the plaintiff, but only, in general, that she was indebted. It might be on a judgment, or such a debt, as that court had no jurisdiction of, nor does it appear, that the cause of action arose within their jurisdiction. To this it was answered, and resolved by the court, that this being after verdict we will suppose every thing proved at the trial, which was necessary to be proved, and that the cause of action arose within the jurisdiction, unless the contrary could be made appear on the face of the record. Judgment was given for the plaintiff.

On error in the case of Alston v. Buscough, the case was thus. Debt was brought on the statute, 2 Ed. 6, of tythes, wherein the plaintiff demanded the treble value ; and on nil debet pleaded, the plaintiff had a verdict. The error assigned was that the declaration was ill, in not alledging, that the defendant had carried away the corn without making an agreement for the tythes ; for the statute gives the penalty only where the tythes are carried off without any agreement for so doing, therefore, if the defendant had agreed with the plaintiff for carrying off the corn without setting out the tythes, as it doth not appear but he might, then it had been no forfeiture. And the court was of that opinion, to wit, that the declaration was ill for the above reason, if it had been upon a demurrer ; but this was helped by the verdict, for if there had been any agreement proved at the trial, the plaintiff could not have obtained a verdict.

The case of Hutchins v. Stevens, was debt for rent against the lessee, brought by the grantee of the reversion. Nil debet was pleaded, and there was a verdict for the plaintiff. It was moved in arrest of judgment that the plaintiff had not alledged in his declaration, that the defendant did ever attorn to the plaintiff's grant of the reversion. Resolved good enough after verdict. For it is apparent, if the plaintiff had not given an attornment in evidence, he must have been nonsuited ; and wheresoever it may be presumed, that any thing must of necessity be given in evidence, the want of mentioning it in the record will not vitiate it after a verdict. And so judgment was given for the plaintiff.

Hob. 73.

In the case of St. John v. St. John, the plaintiff brought debt for 40l. against the defendant, bailiss of Stockbridge, on the stat. 21 Hen. 6, for not returning him burgess of the said town to the last parliament. The statute directs that the sheriff shall send his precept to the mayor, but, if there be no mayor, then to the bailiss. The plaintiff declared that the sheriff had made his precept to the bailiss, without averring that there was no mayor. And, after verdict for the plaintiff, this was moved in arrest of judgment. But the court was of opinion clearly, that it was good, for we shall not intend, that there is a mayor, unless it be shewed ; and, if there was one, it should come properly on the other side.

These cases, but more pointedly the last, apply to another objection, which was, that the declaration does not aver, that Lanoix was the owner of the silver coin, and prove, that, if he was not, it should have come properly from the other side.

2. The plaintiff’s counsel object, that it appears on the face of the record, in this case, that the subject matter before the court of Admiralty was wreck. That wreck is of common law, and not of Admiralty jurisdiction. Consequently, the whole proceedings of the Admiralty, in this case, were coram non judice, and, ipso facto void.

Admit the fact to be as stated by the counsel for the plaintiffs in error, that it is apparent upon the record, that the subject before the court of Admiralty was wreck, in the legal and technical sense of the term; and they are certainly right in their conclusion.

It may not be improper here to define the term wreck, and consider in what respects it differs from flotsam, jetsam, and ligan.

Wreck, in its legal signification is confined to such goods, as, after shipwreck at sea, are, by the sea cast upon the land.

Molloy 241. B. 2, c. 5. 5 Co. 106-7. 2 Inft. 167. 4 Inft. 134-5. 3 Comm.106.

Flotsam is when a ship is sunk or otherwise perishes, and the goods float upon the sea.

Jetsam is when a ship is in danger of being sunk, and, to lighten the vessel, the goods are cast into the sea.

Ligan is where the goods to cast into the sea are so heavy, that they sink, and the mariners tie a buoy or something to them, so that they may find them again.

No goods of the three last descriptions, that is flotsam, jetsam, and ligan, can be called or deemed wreck, so long, as they remain on the sea; but if they are cast on the land by the sea, they then, and not till then, become wreck, and are undoubtedly subject to the jurisdiction of the common law courts only. But if they are taken up at sea and brought on shore, I take it to be clear, that the court of Admiralty, and not the courts of Common Law, have the jurisdiction.

To support this objection then, it was incumbent on the plaintiff’s counsel to shew clearly on the face of the record, that the subject matter in the court of Admiralty was goods cast on the land by the sea, and I confess, on the most attentive consideration of the record, I can see nothing in it, to warrant the objection. The word wreck, it is true, is repeatedly to be found in it; but it is as often applied to the ship only out of which the silver coin therein mentioned was saved, never to the coin itself. But let the record speak for itself. The petition of Lacaze and Mallet to the judge, sets forth, that five barrels of silver coin, the property of Lewis Lanoix, merchant in Bourdeaux, for whom they say they were agents, had then lately been saved from the wreck of the Brigantine, Count Durant, whereof Anthony Fourne was master, and upon whose libel or suit, in the same court depending, the process had issued, had been taken into custody of the marshall of the said court; and the petition concludes with praying, that the said coin should be delivered to them, in order that the same might be remitted to the said Lanoix, agreeably to the tenor of the petition, they giving caution for the performance of the trust reposed in them, agreeably to the practice and usage of the said court, and the laws of the Commonwealth. And caution having been afterwards given agreeably to the decree, we find on the record, that the marshall returns, that by virtue of the writ of the same court, commanding him, after deducting all costs and charges for saving the said silver coin from the wreck aformed, &c. to pay over and deliver the same to Lacaze and Mallet, and that the did pay over and deliver the same accordingly.

3 T. Rep.336.

This being a state of the whole record before us, so far as respects the proceedings in the Admiralty, justifies the observation I before made, that the word “wreck,” mentioned in the record, is applied to the brigantine Count Durant, and not to the silver coin saved out of her. All that can fairly be collected then from the record is, that the vessel from which the silver was saved, had been wrecked, not that the silver saved out of her which the court held plea of, was “wreck,” in its technical meaning, that is, thrown by the sea on the land. But non constat, by the record, where the brigantine was Wrecked, that is, lost or perished. A vessel ship-wrecked at sea, may, in common parlance, with strict propriety be said to be wrecked, and, for any thing that appears to us on the record to the contrary, that might have been the case here. The fact however is not ascertained. To maintain the objection, the plaintiff’s counsel ought to shew beyond a doubt, from the record, that the coin was wreck of the sea. To infer it, because the brigantine, out of which it was saved, is only stated generally to have been wrecked, is by no means sufficient. This objection, therefore, is in my opinion unfounded.

3. It is objected, that, if the Admiralty had jurisdiction of the subject, and the caution or security there taken was right and proper, yet it belongs to that court exclusively to proceed upon it, and to enforce, their own sentence, consequently no action can be sustained, on the caution to taken, in a court of common law.

In support of this objection, the plaintiff’s counsel have cited and relied on several authorities, which I have looked into and considered, the principal of which I shall notice.

The case of Smart v. Wolf, was cited. But this was a case of prize, and I will observe once for all, that there can be no doubt, agreeably to the rule laid down in all our law books, but that the court of Admiralty, in all prize causes has the sole and exclusive jurisdiction, and the Common Law courts cannot interfere, or give relief in this particular case prize, enforce the judgement of the court. In prize causes, and every incident and consequent proceeding therein, the Admiralty has sole and exclusive jurisdiction.

Doug. 590. 4 T. Rep. 382. Cartb. 476. H. Bla. 164.

As the case of Brymer v. Atkins, seemed to be an authority on which the plaintiff’s counsel more particularly relied, I will give a short state of it. A vessel and cargo had been condemned as prize, in the court of Admiralty at Halifax. An appeal was made from that sentence to the lords commissioners of Appeals in England by the claimants, and security was taken in Halifax from the captors in the strict form of a recognisance, that if that sentence was reversed, the vessel and cargo, or their value should be restored to the appellants. The court of Appeals reversed the sentence of the court of Admiralty at Halifax, and were proceeding, on the security so taken, to enforce the performance of it. This case came before the judges of the Common Pleas, on a motion for a prohibition to the court of Appeals, and one of the principal grounds urged for the prohibition was, that the security was in the form of a recognisance, which the Admiralty, not being a court of record, had no right to take. But the judges refused to grant a prohibition, and construed the security, though irregularly taken in the form of a recognisance, to be a stipulation and undertaking to restore the vessel and cargo, if the court of Appeals reversed the sentence: and in the conclusion of their judgment on this point, they add, “The security, therefore, operating as a stipulation, execution of it belongs to that court and that jurisdiction, to which the parties have agreed to submit.”

The observation I make on this case is, that it was a prize cause, in which the judges were solicited to prohibit the court of Appeals, a prize court, from enforcing the sentence of the inferior prize court. The law being established, as I have shewn, that, in all cases of prize, the jurisdiction was solely and exclusively in the Admiralty, the judges were right, in determining, that the execution, in this case, belonged to the Admiralty or prize courts. The rule they lay down is not a general one. It settles the point respecting prize causes, but goes no further. The judges apply the ride to that particular case only ; no other was then in question before them. The case therefore fails in giving one satisfaction on this subject; and the questioned remains, whether the courts of common law, other cases, cannot hold plea of securities taken in a court of Admiralty. It is to be lamented, that no case decisive of this question is to be met with, and that we are left to gain what information we can from cases which seem to have some analogy to this. And I find a great variety, where such actions have been sustained on judgments and proceedings in inferior and other courts.

Robison's Entries, 183. 232 Hansard, 80 Vidian 123. Cro El. 356, 465, 544. Hansard 81. Vidian 127. Co. Ent. 118. Cro. El. 608. Lev. Ent. 62. Rastal. 144, 553. Vidian 112, 119, 132. 3 Lev. 206. Sir T. Ray. 68. Cro El. 581. Butter, 167. Esp. 238.-Clift's Ent. 244. 1 Wils. 316.

Thus debt was brought in the court of King’s Bench, on a judgment in the sheriff’s court of the county of York; so on a judgment in the sheriff’s court of the city of London. Debt lies on a statute staple; and on a recognizance in Chancery. Debt lies for an amercement or fine in a court Leet; and for a fine in admitting a tenant in the lord's manor court; and it lies on a judgement of nonsuit in an inferior court.

In most, if not all, of these cases, although the courts of Westminster could not take original cognizance, or hold plea, in the first instance, of the causes of action, which arose in the inferior courts, yet it is clear, that an action of debt may be brought there, to enforce and carry into execution their transactions; and, considering the Admiralty as an inferior court, I can see no reason, that carries full conviction to my mind, the case if prizes excepted, why the same might not be done as well on securities taken in the Admiralty court, as in the cases above referred to. But, supposing this on the whole to be a doubtful point, for my own part, I should not hold myself justifiable, in reversing the judgment of the court below, unless I could lay my hand on my heart, and say, I am fully satisfied, the court was wrong and mistook the law, which I cannot say with a good conscience upon the present question. It would not be sufficient to urge, that I have doubts upon it; I must be convinced, beyond all doubt, their judgment was erroneous, before I take upon me to pronounce it to be so.

3 Wils. 348. 2 Bla. Rep. 838. 1 Burr. 642.

The case of Morris v. Rees, was cited by the plaintiff’s counsel, in which it was adjudged, that a suit by the assignee of a bail bond must be brought in the same count where the original action was laid.

The fullest report of this case, the reason assigned by the judges is that the court where such action was brought is empowered to give general relief to the plaintiff and defendant in the original action, on equitable terms, which no court can properly do, but that in which the original action was brought. The reason here given is peculiar to the special case of a bail bond, and does not affect the case before us. And there is one case, and but one, that I have met with, where it was resolved, that a bail bond could be sued in another court. It is the case of Chesterton v. Middlehurst, where a bail bond given in the court Palatine of Chester, was sued in the King’s Bench. The defendant filed special bail below, then moved to set aside the proceedings.—The court held the bringing the action there to be unfair, unless there were special circumstances to warrant it, as the defendants being out of the jurisdiction, which was not pretended to be the case; and the court resolved, that the plaintiff ought to have proceeded in the court below, and accordingly set aside the proceedings in the King’s Bench.

But it is said, if this practice is admitted, it will make the lands of the security liable to the payment of the money forfeited by the non-performance of the stipulation ; which would not be the case if the stipulation was left to be enforced by the Admiralty, as that court could not legally touch the real estate of the parties ; that the stipulation bound them personally, but a judgment in a court, of common law would affect their lands.

It not having been proved, that the Admiralty, in the present case, had an exclusive jurisdiction, this objection can be considered only as argumentum ab inconvenienti.

But the same objection, if of weight, would lie in several cases that have been mentioned in answer to it.—Thus on a judgment in a foreign country which does not bind land by their laws, debt, or assumsit will lie in England, where the judgment upon it is a lien on the defendant’s real estate. On a judgment in England, only the moiety of the lands can be extended on an elegit, and retained by the plaintiff no longer than he is satisfied his debt and costs from the rents and profits ; yet debt will lie in this state on a judgment in England, and the lands which the defendant holds here be taken in execution, and the fee simple sold by the sheriff under our laws. So on a judgment in one of the American States, Virginia, for instance, on a contract made there, where lands are by law not liable, and consequently were never in the idea of the parties as subject to be executed and sold to satisfy the debt, an action of debt will lie here, and the judgment thereon will be a lien on the land of the defendant. To an amercement or fine in a court Leet, it has been determined, that a distress is incident, which can be made on the goods, but not the lands of the person amerced. No other remedy can be pursued in a court Leet. Yet debt for the amercement will lie in Westminster Hall, and lands extended on the judgment.

1 Roll. Ab. 665. Sir T. Ray, 68. Cro. El. 581.

These cases are to me full answers to this objection. In all of them a species of property is subject to the second judgment, which was exempted in the first.

Another objection is, that Mr. Ross was only collateral security, for Lacaze and Mallet, to the Commonwealth, and, if responsible at all, in a common law court, no action of debt will lie against him, but the proper and legal remedy was an indebitatus assumsit, on the special agreement.

But how is it made out, that Mr. Ross was only collateral security for Lacaze and Mallet in this case ? Take a summary view of the transaction. The court of Admiralty was in possession of a large sum of money, for which the judge was ultimately accountable to the right owner, whoever he might be, on his appearing and proving it to be his property. It was then his duty, as well as interest to take care that he did not part with it improperly. Lacaze and Mallet come into court as volunteers, and inform the judge that the money is the property of Louis Lanoix, a foreigner residing at Bourdeaux, for whom they say they were agents and transacted business, but from whom they do not pretend to have any power or authority to demand or receive this money, and pray the judge to put them in possession of it, in order that they might remit it to the said Lanoix. The judge prudently and cautiously, I think, refuses to deliver the money to Lacaze and Mallet, unless the will procure one or more persons to undertake with him for the money’s being remitted. Mr. Ross, on this, steps forward, and becomes bound to the Commonwealth in the penalty of 4000l. sterling, jointly with Lacaze and Mallet, that they should remit the money, and, on the joint credit of them all, the money was afterwards delivered accordingly by the judge’s order.-The case thus circumstanced, there is no legal ground on which Mr. Ross can be considered as collateral security in the engagement. It may with great propriety be said, that, in the relation which subsists between Mr. Ross, and Lacaze and Mallet, he was their security, but as between the Commonwealth and Lacaze, Mallet, and Ross, they, from the nature and terms of the contract and undertaking, are all three clearly in my opinion principals, and, as such, answerable to the Commonwealth for the non-performance of it ; and, it being an express contract, debt may be brought upon it agreeably to the settled rule of law, that an action of debt will lie, when the sum or duty is certain and fixed.

My opinion iis therefore that the judgment of the Supreme court be affirmed.

Biddle, J.

Delivered his opinion, also at length that the judgment of the Supreme court ought to be affirmed : because the stipulation was to be then presumed to have been taken judicially, in a subject within the jurisdiction of the court of Admiralty, and, as such, a good ground of an action of debt at common law. The death of that worthy man, sincerely regretted by all who knew him, has disappointed my hope of being able to lay his argument before the reader.

Rush, J.

On the trial of this cause below, there was no doubt upon the merits ; and accordingly the jury found a verdict for Lewis Lanoix, the plaintiff, upon which there was judgment. The record being removed into this court by writ of error, a number of reason have been urged for reversing the judgment.

If the stipulation be in every respect, and in every view of it, a void act, it will put an end to the controversy. It is proper therefore to begin with this objection.

2 Hale 51, 2 Hawk. 37. 3 Cro. 212-3. Folkes v. Docminique, 2 Str. 1137. Johnson v. Laferre, 2 Ld. Ray, 1459. H. Bla. 164.

The maxim, that consent cannot give jurisdiction, seems to be a principle of universal jurisprudence; and must naturally take place in every country, where tribunals are instituted with a gradation of powers. If the parties of their own choice, could leave behind them inferior courts, and, by mutual agreement, resort, in the first instance to the highest tribunal, it would effectually confound the limits prescribed to different jurisdictions, and frustrate the view of the legislator in drawing lines of division among them. This idea shows the reason and the extent of the rule. It cannot therefore apply, where any instrument is acknowledged before a court or magistrate by the voluntary consent of a single person. For in this case the act of an individual has not the least tendency to defeat that system of subordination and distribution of authority among the various courts, on which the judiciary establishment is founded.

Upon this principle it is, of a voluntary jurisdiction, by an individual, to use the expression of chief justice Hale, that a justice of the peace may take a voluntary recognisance or information, out of his proper county ; for though he has no jurisdiction there, and it may therefore be said to be coram non judice, it will bind the party, being a voluntary act. On the same ground, it has been held, that a voluntary bond, given in the Spiritual court, by mistake, which they had no right to take, and was void there, was binding at common law. And where executors have been led into a mistake, and gave bail upon a writ of error, which the law did not require, the court refused to discharge the recognisance, and held it good, at common law.

These are acts, to use again the expression of lord Hale, of voluntary jurisdiction in an individual, by which the authority of no court is injured or eluded ; and which, therefore, are considered as obligatory upon the principles Of the common law or common justice.

The case of Brymer v. Atkins does by no means contradict this position. It was an adversary suit in the Admiralty, in which the appellee, by mistake of the officer had entered into a recognisance, instead of a stipulation, to restore the full value of the vessel and cargo, in case the decree should be reverted. The court were clearly of opinion, though the security had been entered in the form of a recognisance, it should operate as a stipulation, and that the Admiralty alone could compel execution upon it. But why, I ask, could the Admiralty alone compel execution upon this stipulation? For this plain reason, that interlocutory securities, by way of stipulation, on points arising in the usual course of business, are incident to a court of Admiralty ; and the stipulation by the appellee was evidently of that nature. A prohibition was refused to a suit in the Admiralty, upon a stipulation made by order of the court, in a cause of which they had cognisance; though the stipulation was collateral and extrajudicial as to the main question ; because it was taken according to the usual course of the court. The idea is this : wherever the stipulation is taken agreeably to the usage and practice of the court, in any stage of a cause of which they have cognisance, it can only be sued in the Admiralty. But if entered into voluntarily, for some extrajudicial object having no connection with, or relation to any existing cause; such stipulation cannot be sued in the Admiralty; because the court had no right to take it agreeably to their own usages.

1 Keb 88. 2 Str. 1137.

Of this latter kind I consider the stipulation entered into by Messrs. Ross, Lacaze, and Mallet. I hold that the taking it was an act unauthorised by the usages of the Admiralty, and wholly unprecedented, having no connection with, or relation to the cause then before the court; and that the stipulation may so far be said to be void, and coram non judice, that the parties were never amenable thereon in a court of Admiralty. This brings us fairly to the question.

Is a voluntary security, taken by a court or judge, for an honest and lawful purpose, upon which no redress can be had in the same court for want of jurisdiction, so far a nullity that a suit cannot be maintained upon it in any other court? And I apprehend clearly it is not. The case of Folkes v. Docminique, cited before, seems to be in point. It is so briefly stated, according to the custom of the reporter, as to admit of explanation.

The statute 21, Hen. 8, c. 5, authorises the Spiritual courts to grant letters of administration, taking security however for the true administration thereof. After this, the statute 22 Charles, 2, c. 2, directed the Ordinary, upon granting letters of administration, to take bonds from the administrator with sureties for his faithful administration according to law. An administrator with the will annexed, during the minority of an executor, happened to give an administration bond in the Spiritual court, conditioned to return an inventory, to pay debts and legacies ; and it became a question afterwards, whether the administrator could be compelled at law to pay a legacy in a suit brought by a legatee upon the bond. The court lay down the position, that administrations of this kind, during the minority of an executor, are not within the statute of Hen. 8 ch. 5, and that the administrator was consequently not obliged to give bond for the due administration of the estate : nevertheless they gave judgment against him, and made him pay the legacy.

2 Com. Dig. 634. 1 Mod 29. Cro. E. 608. 1 Bur. 642, 3d Burr. 1923.

This administration bond was therefore to far coram non judice, that the party was not obliged to give it, and the court had no right to require it. Here then we see a voluntary security, given for an honest and lawful purpose, on which no suit could ever have been maintained in the court that took it (for the Spiritual court cannot hold plea of debt upon bond) nevertheless afterwards established against the party in a court of common law. In one circumstance, this case goes beyond that now in contemplation of this court. It might be said, the bond was given by mistake ; but the stipulation was notoriously given by the parties with their eyes open.

I conceive it to be the general rule of law, that common law securities, taken in one court, maybe sued in another. So we find several instances of recognisances taken in Chancery being sued at common law, and no objection ever made to it. And it is merely for the sake of convenience, not that the principles of law require it, that the courts of Westminster Hall have, of late years, adopted the resolution of not permitting bail bonds to be sued in any other court than that, out of which the original process issued.

In my view of this cause, the doctrine of wrecks has nothing to do with it. For, whether the Admiralty had jurisdiction or not upon the libel filed by the captain for salvage, is entirely out of the question. Let this point be as it may, the interest of Lewis Lanoix upon a collateral ground, cannot be affected by it. Nothing can be more unreasonable, than upon the present controversy, between Lanoix and the plaintiffs in error, to call upon Lanoix to shew, that the Admiralty had jurisdiction, on a suit brought by the captain against the property of Lanoix. The very idea is pregnant with injustice and oppression. Is Lanoix to be responsible for the consequences of the captain’s suit in the Admiralty, if they had jurisdiction? Is it right, is it just, that he should be stripped of his property to the amount of thousands, because a third person, without his orders or knowledge, may have gone into a court of Admiralty, and illegally filed a libel? Upon the supposition, that the court had no jurisdiction, it would be repugnant to every principle of law and justice, to suffer the plantiffs in error to avail themselves of it, and thereby avoid their own voluntary act, to the great injury of an innocent third person.— Messrs. Lacaze and Mallet were never cited in the Admiralty. They were not parties to the suit depending there ; they went voluntarily into court; and asked a favour, which was granted, on their engaging to do an act of justice viz. to remit the silver to the right owner, whom they stated to be Louis Lanoix. The jurisdiction of the Admiralty is not the foundation of the present suit; but their going voluntarily into court, and entering into the stipulation, which will bind them, independent of every consideration respecting jurisdiction. The plaintiffs in error could not have been compelled to enter into any stipulation with regard to the silver then in possession of the Admiralty; but having done it of choice, and at their own request, the common law preceeding on those principles of integrity and fairness, which ought to be the basis of all laws, demands a strict and faithful compliance with their contract.

With respect to the objection, that the declaration recites the proceedings in the Admiralty, and that, therefore, it should appear from them, that the court had jurisdiction, I think the recital is surplusage. There was no necessity for it. The declaration would have been good, if it had only stated the stipulation, and the reactions of giving it. The proceedings on the libel by the captain, form no part of Louis Lanoix’s title to the money: the stipulation is the foundation of the demand. It is not the case of setting forth a title defectively, but a recital of proceedings immaterial, unnecessary, and superfluous. The declaration might have stated the decree in the Admiralty, the actual delivery of the silver, and the stipulation, omitting the recital of the proceedings on the libel by the captain; and I think there can be no doubt, it would have been good. We find these things are, in fact, stated ; and they form the real title or ground of action set up by Lewis Lanoix. The case of Ruston v. Aspinal cited at the bar, was an action by an indorsee against an indorsor, of an accepted bill of exchange, and the declaration omitted to alledge two facts, viz. a demand upon the acceptor, and notice to the defendant of the acceptor’s refusing to pay. The court held, the verdict did not cure these objections. Because the declaration upon the face of it, contained no ground of action, and no proof at the trial could therefore make it good; and not being laid, it was not requisite they should be proved. But in the case now before the court, the declaration states every thing necessary, and goes further and states what is superfluous.

Doug. 654. Heylen versus Adamson. 2 Burr. 669, 632.

Suppose on a suit by an indorsee against an indorsor upon a bill of exchange not accepted, the plaintiff should set forth in his declaration a demand upon the drawer, and notice to the defendant of the drawer’s refusing to pay (which, it is settled, are not necessary in such case) can it be pretended, that inserting this unnecessary matter would destroy the right of the indorsee to recover from the indorsor?

It has been said, the declaration does not sufficiently state, that the silver was the property of Lanoix.

I do not see how it could have been otherwise set forth. It states that Lacaze and Mallet, in their memorial alledged it to be his property, that they were his agents, and as such apply to have it delivered to them, for the avowed purpose of remitting it to him. It then states the delivery of the silver, for the purpose aforesaid, and that the plaintiffs in error acknowledged themselves indebted to the Commonwealth in the sum of 66661. 13s. 8d. in case they did not perform the said trust reposed in them; and then it assigns the breach.

Besides, I do not conceive it to be material, in the present stage of the business who was the owner. The plaintiffs in error might have shewn on the trial of the cause below, that Lanoix was not the owner. The verdict has ascertained the parties to the contract, and established the fact, that the silver was never remitted. It is therefore too late to alledge, that the silver might have belonged to somebody else. If this had really been the case, perhaps it would have been ground to have nonsuited the plaintiff, but is certainly no reason for granting a new trial or reversing a judgment.

Lee v. Edwards, 1 Lev. 280.

It was further objected, that debt will not lie against the plaintiffs in error. I have already observed, that the stipulation should be considered in the light of a mere contract, and, as such, binding upon the parties, being a fair and honest engagement for the performance of an act in itself lawful and moral, and that it could be sued only at common law. The action is not brought upon an instrument of writing; nor is any instrument of writing declared on; but it is brought upon a contract to pay a fixed sum of money, and the agreement or stipulation before the judge of the Admiralty is the evidence of that contract. We cannot travel out of the record; and it does not appear from the record, that any written stipulation ever existed. We must, therefore, take it to be a parole contract; supported by parole evidence. It is a precise and positive contract by the three plaintiffs in error, and not by Mr. Ross alone, that the silver shall be committed to Lanoix. The question then is this:— Where three persons, say A. B. and C. own themselves indebted to D. in a specific and ascertained sum to be paid to the said D. in case A. and B. shall not perform a particular act, whether, if the act be not executed by A. and B. an action of debt will not lie against all three upon such contract.

This is exactly the state of the question before the court. Messrs. Ross, Lacaze, and Mallet, on the 4th of November, in the year 1783, acknowledged themselves to owe and to be indebted to the Commonwealth, in the sum of 4000l. sterling, equal in value to 6666l. 13s. 8d. currency, to be paid to the Commonwealth, in case the said Lacaze and Mallet did not faithfully perform the trust reposed in them respecting the said silver coin. They have not remitted the silver, and the question is, will an action of debt lie against them all three.

F.N.B. 120. Lilly. 103. 3 Bla. Com. 154. F. N. B. 120. 2 T. Rep. 366.

It is well known, an action of debt will lie, not only upon a bond, or bill, but on a note of hand, a special bargain, a parole lease, a parole contract, or a verbal bargain to pay a fixed price for a certain parcel of goods. In short, all the law requires to found an action of debt is, that the sum be fixed and determinate, for which the suit is brought. So where the contract is by parole, and depends upon a condition, it is equally clear, that debt will lie. As if a man promise to pay one 20l. if he will marry his daughter; an action of debt lies, without any specialty, if the marriage takes effect. It is brought to compel a specific performance of the contract: but an action of indebitatus assumsit is to recover damages for the breach of it.

The case of Stratton v. Rastal was strongly urged on the part of the plaintiffs in error, to prove, that an action will not lie against Mr. Ross considered in the light of a security. The case there was an action upon an implied assumsit, brought for money had and received to the use of the plaintiff, who, it appears, was the purchaser of an annuity, for the payment of which the defendant was bound as a security with the person who had granted the annuity. The bond, and other writings executed to secure the payment of the annuity, became void by the plaintiff’s neglect to register them; and the action was brought by him to compel the defendant, who was the security to refund the money. The court were divided in their opinion. Asburst thought the plaintiff ought to recover. Buller and Grove were of a different opinion, upon good grounds; and held that the defendant was security for the payment of the annuity, not the repayment of the consideration; and that the plaintiff’s own neglect to register the securities ought not to raise an implied assumsit, whereon to charge the defendant, who had never received a farthing, and was not security for its being repaid.

In this case the defendant was not liable, by the very terms of the contract, for the repayment of the money. But in the case before the court, Mr. Ross is not held as a security, but is equally bound with the other two for the safe delivery of the silver, and is therefore clearly liable, by the express terms of his own contract.

1 Salk. 23. Hardr. 486. 1 Mod. 285. Lev.1.Ventr. Keb. 1 Vents. 2 Com. Dig. 638. Hart v. Longsitt, 2 L.Ray 848. Dingwall v. Dunster, Doug. 249. Ellis v. Galindo, Doug. 250.

It has been objected, that debt will not lie, because Mr. Ross is only collaterally bound; and Hard’s case was cited and relied on; where it is said debt will not lie against the acceptor of a bill of exchange, being but a collateral engagement; but that it will lie against the drawer, because he is a debtor by the receipt of the money. There is no doubt, the law has been to determined by an express adjudication in the Exchecquer Chamber, in the 20th Char. 2. and that this decision has been recognized in the case of Brown v. London. It appears from this case, that in the case in the Exchecquer, L. C. Baron Hale, though he concurred in the opinion, that indebitatus assumsit would not lie against the acceptor of a bill of exchange, could not avoid saying, “ The law ought to be otherwise;” and in Brown v. London, justice Twisden doubted, and conceived that debt would lie against the acceptor of a bill of exchange. After this, I hope I may be excused for observing, that the reasons and principles of the determination would scarcely bear the liberal discussion of modern times. Where the acceptor of a bill appears to have funds in his hands belonging to the drawer, can it be doubted that an action of debt would lie on the ground of an acknowledgement, that the acceptor had received and held money to the use of the plaintiff? Debt will lie where a person has paid money to A. for the use of B. by the cestui que use B. And whether he had funds or not, why might not an action of debt be maintained on the foot of an express assumsit to pay a fixed and determinate sum, on behalf of a third person?

Nor is it true in fact, that the acceptance of a bill of exchange is a collateral engagement, to pay in default of the drawer. So far from it, that the acceptor is first liable, and must be first resorted to, and it is not necessary to shew notice to him of non-payment by any other person. And Asburst lays down the same position with Twisden, that the acceptor makes himself the debtor. In conformity to this idea, it has been adjudged, that, where the holder of a bill received interest thereon from the drawer, or even a part of the principal, and a written assumption for the balance, the acceptor was not discharged even in these cases. So little countenanced by modern decisions is the notion, that the acceptor of a bill is only collaterally bound for the payment of the money.

2 L.Ray 842.

Let the law, however, upon this point be as it may ; for it is not necessary now to determine it ; debt upon an accepted bill is not like the case before the court. For Mr. Ross is bound, in the same manner, in the same terms, and to all intents and purposes, as firmly as Lacaze and Mallet; and we are to suppose, after verdict, the contract to be proved as stated in the declaration. As well might a co-obligor security pretend, that debt would not lie against him, in conjunction with the principals, because he had not actually received the money, and was only security for the payment of it.

Upon this subject, I take the rule to be, that, wherever the defendant, by the express terms of the contract, is only a guarantee on behalf of another, there debt will not lie against him, being only collaterally bound, but a special action on the case. But where he absolutely engages, and says I will pay you, there debt lies against him. And no doubt two or three persons may so contract, or bind themselves, to pay a certain and fixed sum, though one only receive the consideration, that debt will lie against them all. This principle is every day recognized by experience, where the contract is in writing; and there is no reason why there should be a difference, where the contract is by parole, and to be void, in the event of two of them doing a particular act.

Can it be said, in this case, that Mr. Ross is only guarantee ? Does he engage that if Lacaze and Mallet do not remit the silver, he will do it for them, or be responsible for the consequences ? By no means. If this were the case, I admit he would be only collaterally bound, and that debt would not lie against him. But the contrary is apparent, as we are now to suppose the contract to he proved as laid in the declaration: from which it appears, they are all principals, all equally and jointly engaged, one as much as the other. And certainly, they are not the less principals, because the debt might have been avoided, by two of them complying with the contract.

It has been objected, that sustaining this suit in a court of common law will render lands liable ; whereas, in the Admiralty, the person only can be imprisoned.

2 Str. 933. 3 Burr. 1671.

This objection, it must be owned, is ingenious and refined. But surely the different modes of execution in the different courts can not destroy a subsisting right of action in either. Lanoix, like every other creditor, should have the utmost benefit of his suit in that court, in which the law enables him to maintain his action. But the objection proceeds, in fact, upon mistaken ground. For, as Mr. Ross was never answerable in any other, than a common law court, it is impossible, that bringing a suit against him, in that court in which alone he was liable to be sued, can ever be considered as changing the nature of the security or contract.

On the part of the plaintiffs in error, it was said, the action would not lie, as the consideration was past or executed, at the time of the promise.

There is no necessity to go into the nice and hairbreadth distinctions to be found in the law-books upon this point. It is sufficient to refer to the case of Hayes v. Warren, and what is said of it in the case of Pillans v. Van Mierop. There justice Wilmot lays it down as settled, “that where the act is done at the request of the person promising, it will be a sufficient foundation to graft the promise upon,” though the consideration be past. And as the request in the case before the court, was the sole motive and foundation for the delivery of the silver, there can be no presence for saying, the plaintiffs in error are not bound, though the consideration might have been executed, at the time of entering into the stipulation.

I think the judgment of the lower court should be affirmed.

Smith, J.

Under the assignment of general errors, five points are made in behalf of the plaintiff in error, viz.

1. It does not appear by the declaration, that the subject matter of the Admiralty suit was of Admiralty jurisdiction.

2. That the writing purporting to be a stipulation, was not a stipulation, nor such a writing, contract, or obligation, as the court of Admiralty had authority to take, and was therefore void.

3. If it was good as a contract, to bind the parties named in it, no action of debt would lie on it.

3 Bla. 68, 106. 5 Co. 107. 4 Bac. 249. Cartb 12. Burr. 2037. 4 Bac. 249. 3 T. Rep.654. 3 Bla. 30. ib. 71, 69.

4. It is not sufficiently stated, that the silver coin stated in the declaration was the property of Lewis Lanoix.

5. If the subject matter of the Admiralty suit was within the Admiralty jurisdiction, it belonged exclusively to the Admiralty to determine on the writing.

I shall consider the first two points together, because they have such a necessary connexion, that most of the reasons which apply to the first will affect the second point or objection.

The Admiralty court has jurisdiction and power to try all maritime cases. Of every thing done on the water below the low-water mark, the Admiralty court has the sole and absolute jurisdiction. Having therefore the natural jurisdiction of things belonging to the sea; but being restrained by statute (15 R. 2d as to wreck of the sea) the party must come for a prohibition before sentence: for after pleading, and admitting the jurisdiction of the court below, it would be hard and inconvenient to grant a prohibition.

Indeed if the want of jurisdiction appears on the face of the proceedings, a prohibition may be awarded after, as well as before sentence.

But the party who applies for a prohibition after sentence, must shew a nullity of jurisdiction on the face of the proceedings. Does the want of jurisdiction appear on the face of the Admiralty proceedings in this case? If a prohibition would not lie, can the plaintiffs in error have the judgment reversed, at this stage? It is very true, that nothing shall be presumed within the jurisdiction of an inferior court; but what is expressly averred or alledged to be so. But is the court of Admiralty an inferior court? Blackstone mentions it, as one of the four sorts of courts which are of public or general jurisdiction throughout the realm, and not one of the courts of special jurisdiction. It is said to be no court of record, in 3 Blackstone’s Commentaries, and in many other books. But as the Marshalsea is a court of record, and yet an inferior court, so it does not follow, nor is it any where laid down, that because the court of Admiralty is said not to be a court of record, it is therefore an inferior court. But it is laid down, that, wherever there is a jurisdiction erected with power to fine and imprison, that is a court of record; and that a court of Admiralty can fine and imprison for a contempt in face of the court. Though it is said that this court cannot assess a fine, because it proceeds according to the course of the civil law, and is, therefore, no court of record; yet it is observed, that it may amerce a defendant for his default in its discretion, and may issue execution for the same of his goods; and (if he has no goods) may arrest his body, within the body of the county. Therefore the court of Admiralty is in the nature of a court of record of an anomalous kind. And although it is said, that a strict recognisance, being an acknowledgment of a debt on record, cannot be taken in a court not of record; yet it operated as a stipulation by the parties to submit to the order of the court. The caution taken by the court of Admiralty, is called a recognisance or stipulation. And in the act of assembly it is called a recognisance, and it is enacted, that, if forfeited, it shall be recoverable in the Supreme court. The preamble mentions recognisances for the use of the Commonwealth,but the enacting clause says all recognisances moreover on a forfeited recognisance the Commonwealth is only a trustee for the prosecutor. So here the Commonwealth is a trustee for Lanoix. Upon the whole, the Admiralty court, if not strictly speaking a court of record, cannot be said to be an inferior court, and it sufficiently appears by the declaration, that the subject matter of the Admiralty suit was of the Admiralty jurisdiction, unless that jurisdiction was excluded, because it is said to be wreck, which is exclusively of common law jurisdiction; had there been no additional words in the description of the subject matter, it might have been intended legal wreck, but perhaps not necessarily even then; for it is held, that the word covenanted does not necessarily import, that it was a contract by deed. But here it sufficiently appears from the declaration, that the subject matter was not legal wreck, of the sea; because the goods were not cast on shore by the sea. A ship cannot be wreck, if the ship perishes; yet if any of the servants escape, the law faith, that they shall have the custody of the goods. In the present case, the captain escaped, and saved the silver from the wreck of the ship. If the ship be lost on the shore, and goods come to land (so as it be not legal wreck) they shall be delivered to the merchants, paying salvage. From whence it is evident, that the words “ saved from the wreck of the ship,” are no more to be understood as descriptive of legal wreck—wreck of the sea—goods cast on shore by the sea, than the words, “ a record of a court in Jamaica,” were descriptive of that sort of record, to which implicit faith is given in Westminster Hall.

Salk. 200. L. Ray. 467. B. Bla. 24-5. 8 Co 386. 60b. 1 Ventr. 1. 30 Bla. 109. 12 Co. 104. 13 Co. 53. H. Bla. 186. ib. 188. 3 T.Rep.270. 3 Bla. 108. L.Ray. 1285-6. 2 St.167. Burr. 2119. 1 Vez. 453. Burr. 2037. 2 Inst. 167. 5 Co. 106. ib. 107. 1 Bla. 293, 2 Inst. 167. Doug. 5. Vattel 2 B. 1 Cb, 3 & 4 sect. p.213-4. ib. prelim, sect. 11, p.6.

But then it is contended, that the silver, having been brought on shore by the captain and on his suit or libel in the court of Admiralty, process having issued from that court, by which the said silver had been taken into the custody of the marshall of that court, the court had exceeded its jurisdiction, and all its acts were coram non judice.

In answer. By the law of nations, one nation is bound to perform those duties and offices of humanity to another nation (and consequently to the individuals posing it) which the safety and advantage of that society require; These duties of humanity are to be performed by the state towards strangers. But if the law of nations antecedent to treaties should be supposed not expressly to inculcate this principle, nor require one nation to perform this duty to another, it is enforced by the 18th article of the treaty of amity and commerce between the United States and France.—"If any ship belonging to either of the parties, their people or subjects, shall within the dominions of the other, strike upon the sands, or be wrecked, or suffer any other damage, all friendly assistance and relief shall be given to the persons ship-wrecked, or in danger, thereof.” To similar stipulations in the 16th article of the treaty with the United Netherlands, and the 20th article of the treaty with Sweden, these words are added, viz. “ and the vessels and effects and merchandizes, or the part of them which shall have been saved, or the proceeds of them, if, being perishable, they shall have been sold, being claimed by the master or owners, or their agents, or attornies, shall be restored, paying only reasonable charges, and that which must be paid in the same case, by the proper subjects of the country.”—The article above recited in the treaty with France must be construed to be as extensive in this instance, as the enumerated articles in the treaties with the United Neverlands and Sweden. At least a narrower confirmation would have a very ungracious found in European ears, and would be, in fact, contrary to the law of nations, and to the spirit of that treaty made with us by our first and best friend, by whose friendship our national existence was preserved.

L.Ray 1286. H. Bla. 186. H. Bla. 194. Str. 1137. H. Bla. 186. 1 Atk. 630. 1 Bac. 624. Ventr. 173. 2 Lev. 25. Sid. 320. 1 Com Dig. 277. 1 Bac. 625.

The nation being then bound by the spirit of the treaty, and the law of nations to give this assistance and relief; how can it give them but through its courts, and what court to proper to take cognisance of this maritime transaction, as the court of Admiralty? Was not this court therefore bound, upon the demand of the captain, to take charge and cognisance of the silver to saved? If the Admiralty be the most proper court by which this office and duty of humanity, this article of the treaty can be performed, it necessarily follows, that this court can take stipulations from the parties to perform all legal and necessary orders and decrees, which it may make in the performance of this duty, the exercise of the jurisdiction with which it is for this purpose necessarily invested; and the common law courts have no right to prohibit it from enforcing its sentence. The condition of this stipulation was as legal and equitable, as was that of the bond in the case of Folkes v. Dominique. The stipulation can no more be intended to have been by coercion, than that bond. The parties came voluntarily into the court of Admiralty, and, on entering into the stipulation, obtained the silver, and surely they shall not be permitted to deny the effect of that engagement of which they have reaped the fruits.

In answer to the objection, that the Admiralty had no jurisdiction, because the silver was brought on shore by the captain, after being saved from the wreck of the ship. Where the original matter was done at sea, and other matters be done at land depending thereon, yet the trial be in the court of Admiralty.

Supposing, but not admitting, that the caution was not good as a stipulation, because the Admiralty had no jurisdiction of the subject matter; is not the transaction good as a contract at common law, and binding on the parties voluntarily entering into the writing for a valuable and sufficient consideration? A contract is defined to be “an agreement upon sufficient consideration to do or not to do a particular thing.” In this transaction are all the ingredients requisite to form a contract; parties, consent, an obligation constituted upon a sufficient consideration. The plaintiffs in error came voluntarily into the court of Admiralty, and before the judge of that court, offered to enter into this agreement, and did enter into it, upon a sufficient consideration, viz. having the silver delivered to them, which was delivered accordingly. As to them, it was perfectly immaterial, in what manner the Admiralty obtained possession of this money. They had no right to demand it. If F. Hopkinson, Esq. had not been judge of the Admiralty, had this money been in his possession as a private individual, and he had delivered it to the plaintiffs in error at their request, on their entering into this engagement, it would have been intended, that he had entered into it as agent for Lanoix, from whom it would have been presumed that he had sufficient authority, rather than that the agreement should be construed void, after the plaintiffs in error had reaped the advantage of it.

2 Bla.442. 1 PowelContr. 6. 1 PowelContr. 138.2 Brown, P. C. 249. & vid. Cowp. 290. 1 Powelcontr. 138. Str. 938. 1 Pow. contr. 38, 51. Burr.1671.2. Cro. E. 59. Cro. C. 409.

If his being judge of the Admiralty did not give additional validity to the contract, that circumstance could not make it less binding on the plaintiffs in error, especially as it had been compleatly executed on the other side. The assent of Lanoix must be presumed, the contrary not appearing. Can the plaintiffs in error be permitted to deny the authority of F. H. as presumed agent of Lanoix, at this stage of the business, (having denied that he had any authority in any other capacity) to enter into the contract.

Even supposing F. H. had no authority to make the contract, is it not binding on the plaintiffs in error, they having received the full benefit? Suppose a contract made between a person of full age and an infant, it is voidable at the election of the infant; but as to the person of full age, it absolutely binds: a much stronger case than the present.

As to the objection, that, as to John Ross, the consideration was executed or past, a full answer is given by justice Wilmot, in the case of Pillans and Ross v. Van Mierop and Hopkins. The law on this head has been melting down to common sense in late times.

F. N. B. 119. G. 120. K. 121.B. 1 Esp. 182. 3 Bla. 153-4. 2 Bac. 13. 4 Co. 92b. Rastal's Ent. 301. Cowp. 286. Dong. 6, 4-5. 1 Wils. 186. 2 Com. Dig. 640. Hardr. 485. Salk. 23. 1 Esp. 183. Cro. E. 355, 461,494,544. 1 Wils. 318. 2 Com. Dig. 634. Buller, Nisi Pri. 167. Cro. E. 644. 1 Roll. Ab. 593, C. Dig. 638.

3. But it is contended, that, if it was good as a contract to bind the parties named in it; action of debt would not lie on it.

A writ of debt properly lieth, where a man oweth another a certain sum of money by obligation or by bargain for a thing sold, or by contract, &c.

Before Slade’s case, debt was the usual remedy for money due on contract. Debt was brought against executors, by a legatee of the third part of the testator’s goods, where the quantum had been ascertained by the ordinary. Debt may be brought for a sum capable of being ascertained, though not ascertained at the time of the action brought, and it is not necessary, that the plantiff should recover the exact sum demanded. Debt lies on the judgment of a foreign court, although the judgment is not a specialty, and although given by a court proceeding by the rules of the civil law, and not considered as a court of record.

Debt will not lie by drawee against acceptor, of a bill of exchange, because it depends upon a particular custom, and is not founded in contract. It binds him by the custom of merchants, but does not raise a duty. But debt lies against the drawer.

Instrument intended as a statute staple, not being executed according to the act of parliament, was void as a statute staple; but debt was held to lie on it as an obligation at common law. Debt lies on a judgment of nonsuit in an inferior court, and plaintiff below cannot say that the inferior court had not jurisdiction, because he had chosen it, and the defendant below had been forced into it. So here, after the money had been lodged in the Admiralty, and would have remained there, if the plaintiffs in error had not applied to that court for it, and voluntarily entered into this stipulation or (if stipulation it is not to be called) contract, as a condition of having it delivered to them.

Debt lies upon every contract in deed or in law, express or implied. If A. gives B. money to buy any thing for him, and he doth not buy it. Debt lies by A. against B. for the money. If A. pays the debt of B. at his request to be paid upon request, debt lies by A. against B. So if A, delivers money to B. to be repaid by such a day, or to be safely kept; or to be paid to another, and he doth not pay it. If A. promises B. 20l. to marry his daughter, and he marries her, he shall have debt against A. Attorney shall have debt against his client, for money which he hath paid for his client, for costs of suit or to his council, &c. If money be delivered to A. to be paid to B. debt lies by B. If A. retains a tylor to make a garment for his own daughter, debt lies against A. So on a retainer to embroider a gown for his daughter’s servant. So, though the promise be for the advantage of a stranger; as if a man promises to pay so much for the education of the children of another. If A. promises 10l. to a surgeon for curing another, or to a carpenter to make a house for another, he will pay for it, an action of debt or assumsit will lie in such cases. Debt lies for every duty created by common law, or by custom.

F.N.B. 120. K. Ibid, 121. 2 Com. Dig. 638. Cro. E. 880. Ib. Allen, 6. Cro. J. 521. 2 Com. Dig. 638. Cro. C, 107, 194. L. Ray. 842. 1 Roll. Abr. 593. C. 45, 51. 1 PowelContr. 349—50. 1 Brown's P. C. 87. 2 T. Rep. 370.

But it was adjudged, that if A. retains an attorney to prosecute the suit of B. debt does not lie for the attorney against A. The reason of that, Holt says, was that the attorney had a remedy against the party for whom he acted, notwithstanding he was employed by the defendant; and indeed the authority of that case is here shaken, or rather its application is confined, so that it cannot weigh against the above cited, and many other cases, in which it has been adjudged, that debt will lie against A. on his contract in behalf of B. for service to be done to B. Besides, is there a single instance of an information for money due to the king, which is not in debt, though on simple contract? The reason probably is, that against the king the defendant cannot wage his law.

By these cases, and by the following cases and reasons, an answer is given to the objection, that, supposing debt would lie against Lacaze and Mallet, it would not lie against John Ross, who was only their surety, and his undertaking was only collateral. It cannot be said that in this contract his undertaking was collateral. It was simultaneous with that of Lacaze and Mallet, made at the same instant. It was a joint contract. It was one transaction by them all, before the money was delivered by the Admiralty.

In the case of Machen and Fortune v. Staynton, the effect of an agreement is carried further than the letter of it, even against a surety; which is contrary to the opinion of Fuller in Stratton v. Rastall.

F. N. B. 122. K. 2 T.Rep. 366. 3 T. Rep. 62. 1 Salk. 25. 1 Salk. 139. 12 Mod. 86. 5 Mod. 133.

It is laid down, that A. shall have debt against B. who becometh pledge for another, upon his promise to pay the money, without any writing made thereof.

Under this head it is contended, that no action would lie against John Ross the surety, who never in fact received any of the money; and the case of Stratton v. Rastall is cited in support of this position. But (admitting that case to be law) it is clearly distinguishable from the present. There the plaintiff, by his own act, lost the benefit of the express contract. By his neglect, it was relinquished, and became extinguished; and the surety, not having received any part of the money, was not liable upon the implied contract, which could be supported only upon equitable principles. There the defendant was only surety for the payment of the annuity; not for the repayment of the consideration money, for which the action was brought; but in the present instance, the express contract of the defendants was, that the money should be delivered to Lanoix or the right owner. No act was done by the other party to relinquish or nullify this express contract, for the nonperformance of which the present action was brought. On this point let me repeat the words of Ashurst, “I have so great a veneration for the law, as to suppose, that nothing can be law, which is not founded in common sense, or common honesty.”

4. It is alledged, that it is not sufficiently stated in the declaration, that the silver was the property of Louis Lanoix. That the trust of Lacaze and Mallet was for remitting the money to Lanoix, or the right owner, and the declaration does not state, that they did not deliver it to the right owner, which it ought to have done.—Thus, it is said, every word of the declaration may be true, and yet the trust performed.

Answer. This suit is in the name of the Commonwealth as trustee for L. Lanoix or the right owner. It was not necessary to state more particularly, that the silver was the property of L. Lanoix. If it had not been his property, and the defendants had delivered it to the right owner, they ought to have pleaded that.—In an action on a promissory note payable to A. or order, on a bond payable to A. or assigns, brought by or the payee, does he ever aver that the defendant did not pay the same to his order or assigns? If assigned, that must come on the other side.

L. Ray 1061. Str. 931. 3 Bla. 394. L. Ray 109. 12 Mod. 510. Cartb. 389. Hard. 117. Buller 2020. Buller 167. Cowp. 825. Doug. 658. H. Bla. 189.

Were such averment necessary, the want of it is cured by the verdict. Many inaccuracies and omissions which would be fatal, if early observed, are cured by a subsequent verdict. For if a declaration or plea omits to state some particular circumstance, without proving of which at the trial, it is impossible to support the action or defence, this omission shall be cured by verdict. In other words, the general rule is, that where a thing is to essentially necessary to be proved, that if it had not been given in evidence, the jury could not have given such a verdict, there, though it is not stated in the declaration, yet this defect shall be aided by the verdict. The authorities which support this principle, also substantially answer the first objection.

5. It is contended, that, if the subject matter of the Admiralty suit was within the Admiralty jurisdiction, it belonged to the Admiralty exclusively to determine on the writing,

I shall consider this objection, 1. Supposing the writing to be a stipulation which the Admiralty had authority to take; and, 2. Supposing it to be no stipulation because the Admiralty had no authority to take one, I will consider it as a contract at common law.

In Brymer v. Atkins, lord Loughborough says, that, “Operating as a stipulation, execution of it belongs to that jurisdiction to which the parties have agreed to submit.”

That all proceedings legally commenced in any court to which the parties have agreed to submit, may be more properly carried into execution by that court than by any other, and that no superior court ought to prohibit the inferior court from carrying such proceedings into execution, unless when authority is expressly given to the superior court for this purpose, seems not to admit of dispute, when the party intitled to the effect of those proceedings applies to the inferior court to have them carried into execution ; but does it follow, that, if the party intitled to such effect chooses to apply to a superior court of common law and general jurisdiction, the superior court is precluded from carrying into effect any of the acts of the inferior court ? Does this follow especially, where the party applying had been forced into the inferior court ? If the party who had chosen the Admiralty jurisdiction, in which to institute a suit, should be confined to that court to the conclusion of the transaction, does it follow, that the other party, who had been forced into it, should be thereby deprived of his election of applying to the courts of common law, and of trial by jury, to carry into effect a stipulation taken in the cause, by the Admiralty, and to deprived without the intervention of positive law or any solemnly adjudged case ? I think the affirmative cannot be supported. It is even admitted, that debt lies in the court of Common Pleas on judgment on scire facias on a recognisance in the court of King’s Bench.

2 Com. Dig. 634, Dy. 206a. in marg. Barnes 92. Bla. 877. Burr. 1923, 642, 3 Wils. 378. Burr, 642. Cro. E. 608, 817. 1 Leon, 284. 2 Com. Dig. 635. Dy. 219. 1 Wils. 316, Cro.E. 96. 1 Salk. 209, 2 Com. Dig. 634.

Bail bonds must be sued in the same court in which the bail was given, because the statute directing the assignment of them gives the court, after such bonds are put in equitable jurisdiction to stay proceedings, and to let the defendant in to try the merits of the original action upon reasonable terms ; which jurisdiction cannot be exercised unless the proceedings on the bail bond, and the original action were in the same court. But even in this case, upon special circumstances, as if the defendant lives out of the jurisdiction, the bail bond may be sued in another court.

Debt lies in the King’s Bench upon a recognisance taken in Chancery, although the plaintiff had before sued a scire facias in Chancery on it, obtained judgment there, and sued an elegit.

Debt lies in the court of Common Pleas, on a judgment in the Mayor’s court at Guildhall, on a recognisance taken before the mayor, &c. And lord Anderson said, admit the recognisance was not well taken, yet because that, on the scire facias upon it, the defendant did not take advantage of it, he shall be bound by his said admission.

Debt lies in the King’s Bench on a judgment of non-suit in an inferior court, and it is not necessary that the now plaintiff should aver, that the inferior court, into which he had been forced, had jurisdiction of the subject matter of the original action.

Debt lies in the Marshalsea, or any other court (of record as stated by Comyns) on a judgment in the court of Common Pleas or King’s Bench.

6 Mod. 132. 7 Ven. 349. 2Com. Dig 34. Dy. 306, in marg. 2 Com. Dig. 634, 1 Rol.abr. 600, l. 45. 1 Keb. 88. H. Bla. 174. ib. 189. 3 T. Rep.270 1 St. L. 33. Hob. 87. Holt 396.

Debt lies in the court of King’s Bench on a recognisance (of bail it was here) taken in the court of Common Pleas. And on judgment on scire facias on recognisance in the King’s Bench, debt lies in the court of Common Pleas.

Debt upon a judgment for debt or damages in a court of London, by special custom lies in the court of King’s Bench or Common Pleas, though the original action could not have been brought there.

Bond taken by the Admiralty to perform their orders, it should be sued at common law. It is true, the book in which this is stated, is not of much authority; but is there any adjudged case contrary, or is this case contradicted by any judge ? It is said arguendo, that a strict law recognisance, upon which a scire facias, or action of debt, or an extent might be brought, could not be taken by a court not of record. But the court only says, “that execution of it belongs to that court, and that jurisdiction, to which the parties have agreed to submit.” Besides this was in the case of prize, in which the Admiralty has the sole and exclusive jurisdiction.

In answer to the many instances of actions being brought in different courts on judgments of other courts, it is said, that is because all such suits may be removed thither before judgment. This answer is not sufficient. An action cannot be removed from the court of King’s Bench to the court of Common Pleas, nor from a foreign court to either, nor from either to the Marshalsea.

It is also said, that if the Admiralty had authority to take such a stipulation, it had also authority to enforce it; that there is no instance of any such action having ever been brought in the courts of common law, which is an argument that none will lie.

That every court has authority to enforce its own decrees and acts, is a position supported by reason, law, and practice ; but it does not follow that it has the exclusive authority. The contrary is evident from the cases cited on this head. Indeed as this stipulation was to indemnify the judge and officers of the Admiralty, it would have been judging in his own cause, had he enforced it in that court.

To say nothing of the prohibitory act of assembly, it is not too strong an expression to say, that even an act of the legislature giving this power to a judge, would be void.

Salk 397,607 Str. 1173. Hardr. 503. F.N.B. 7 B. 32E 4 Inst. 17 Plowd.244a. 4. Bac. abr. 203 Cowp. 276. L Ray., 957, 6 Mod. 56. 2 Wils, 146. See Hargr. Co, Lit. 81b. L.Ray. 957. 6 Mod. 56. L. Ray, 957.

Besides, the Commonwealth may sue in what court pleases. The king may bring a quare impedit in the King’s Bench.

No authority was cited in support of the position, that because no such action has ever been brought, therefore none will lie. Lit. sect. 108, Co. Lit. 81, and Black.309, are usually cited in support of this argument.

Lord C. J. Holt,

was sufficiently attached to form, and leaned enough to formal objections ; so far at least, as appeared necessary to establish certainty and precision in practice ; yet we find, that when it became his duty to apply general principles to new occasions, his great, comprehensive, acute, pervading and intuitive mind, was not settered by form, especially when an adherence to it tended to entangle justice in a net of law, and a departure from it did not weaken any of those fundamental principles, upon which the security of property depends, and which ought therefore to be holden sacred. He says “it is an argument, when founded on reason, but none when it is against reason.” He considers Littleton’s opinion, and says, “it has no great force. If it had, it would have been destructive of the many new actions, which are at this day held to be good law.” And he cites many instances of new actions grounded on the common reason, and the ancient justice of the law. And lord Camden says, “I wish never to hear this objection again.” And Littleton himself adds, “sed quœre de hoc.” Holt further says, “ We must not be frighted when a matter of property comes before us, by saying, it belongs to (another jurisdiction) the parliament, we must exert the queen’s (the Commonwealth’s) jurisdiction.”

If, therefore, we consider, that the law does not consist in particular instances or precedents, but on the reason of the law, we should not be warranted by the reason of the law, any more than we are by adjudged cases, in holding, that no action would lie, in the present instance, at common law ; or that an action of debt would not lie at the suit of the Commonwealth, supposing the writing to be a stipulation.

If it should not be considered as a stipulation, but a contract at common law, I think, there cannot be a doubt, for the reasons given under the third head, but that an action of debt is maintainable in a court of common law. We cannot reverse the judgment, unless we are clear, that such action would not lie.

Burr. 1243. H. Bla. 241. Burr. 2588.

Had I any doubts as to the form of this action, I would say with lord Mansfield, that judges ought to lean against objections, which have no relation to the real merits,much more when the plaintiff is clearly entitled to recover on the merits, and must recover in another action.

I am, for these reasons, of opinion, that judgment be affirmed.

Addison, J.

Though the state of Pennsylvania, by its officers of the Admiralty, had possession of this coin, yet, having prescribed forms and limits to the exercise of its sovereignty, its officers can execute only those portions of power, and in that manner, which the law prescribes to them. The court of Admiralty, therefore, though the agents of the state, may be supposed to have taken, exercised, and surrendered the possession of this coin, by authority, without authority, or against authority ; and may therefore be considered as acting judicially within their jurisdiction, or as innocent possessors, or as trespassers. Even trespassers may take a promise, from a third person, to restore to its true owner, the property, which is the subject of the trespass; and this promise may bind the person who makes it; for the restitution is a lawful act. Innocent purchasers may surely do so, and such promise, to them, will be free from all objection. But such promise made judicially, to a sovereign state, through its officers, acting judicially upon a subject within their jurisdiction, and made the condition of their parting with a possession, which they acquired, held, and surrendered, judicially, by authority, and due form of law, must be considered as binding with peculiar force.

As the principles of our government hardly warrant a disposition to indulge the prerogative of administering justice, in one form, to the sovereign, and in another, to the citizen; but seem to require the application of one rule to all; so neither, without some reason of policy or justice, should a promise made to a state, acting in its judicial capacity without authority, be held less binding, than if made to a citizen acting as a trespasser.

Vinn. Just. Inst. 553-4. ib. 571-4. ib. 564-5. ib. 594-9.

In my examination of the errors assigned on this record, and the arguments thereon, I have been led to arrange them in four points of view.

1. Is a stipulation taken regularly and judicially, by the court of Admiralty, acting on a subject within its jurisdiction, a sufficient ground of an action of debt, in a court of common law ?

2. Is the stipulation stated on this record to be considered here, as taken regularly and judicially, by the court of Admiralty, acting on a subject within its jurisdiction ?

3. Is this stipulation independent of all judicial circumstances, such a contract, as will maintain an action of debt, against Lacaze, Mallet and Ross?

4. Is a breach of this stipulation sufficiently set forth in the declaration ?

These questions seem to involve all the disputed points in this case.

1. Is a stipulation, taken regularly and judicially, by the court of Admiralty, acting on a subject within its jurisdiction, a sufficient ground of an action of debt in a court of common law ?

A stipulation, in the Roman law, is a promise, conceived in a set form of words, which binding without any writing or consideration, was frequently annexed to contracts, which without it, would not be binding, to render them so; or to contracts of themselves binding, to render them yet more solemn.

Footnotes

•

* Stipulations were either voluntary, when entered into from the mere consent of the parties, or necessary, when interposed by judicial authority, either in the course of a suit, to secure its effect, or without suit, to accomplish a summary remedy. When any thing was stipulated to be done, or not done, it was usual to annex a penalty, which, in case of a breach of the stipulation, might be the measure of the damages, and prevent any dispute, trial, or ascertainment. And, in all kinds of obligations, there might be fidejussors or sureties, whose obligation might also precede or follow that of the principal; but, by a regulation introduced by Justinian, they were not to be called on till after the principal, if he was solvent and to be found: yet this seems not to have extended to stipulations by judicial authority, nor perhaps to mercantile transactions ; and, in all transactions, to which it did extend, it became usual to insist, that the fidejussor should expressly renounce this benefit.

3 Comm. 108, 109, 291. H. Bla. 188. Ld.Ray.223, 235,1285.H. Bla.185,189.3 T.Rep.329, 343. Stat.13, R. 2, c.5,15, R. 2, c. 3. Case last cited 1 Bac.abr.627 Cartb. 26. Hardr. 473, denied 2 Str. 890.

Stipulations, so frequent in the civil law, were naturally adopted by a court, whose principles and proceedings were, in a great measure, regulated by that law. Analogous to recognisance of bail, at common law, stipulations were used, by the court of Admiralty, to enforce compliance with its process and decrees. When the Admiralty went farther than mere analogy, and allowing its stipulations the force of a recognisance in a court of record, endeavoured to proceed on them as such, the courts of common law prohibited them, and would not suffer this court of special jurisdiction, to assume to itself the authority of a court of record, and bind the estates of the subjects of the realm. At last however, from the necessity of allowing the Admiralty to support its jurisdiction, and enforce its authority, the courts of common law, though they held, that a strict recognisance, an acknowledgement of a debt on record cannot be taken in the Admiralty, a court not of record; yet a stipulation, though in the form of a recognisance, having none of its attributes, nor to be proceeded on as such, nor like it, in its consequences, might be taken there, and that, as the courts of common law will, in a summary manner, enforce compliance with any rule incidentally made in the course of their proceedings (a rule to stay waste, for instance, in the proceeding in ejectment) so a court of Admiralty, acting judicially, on a subject within its jurisdiction, may, as a proper and convenient mean of executing its authority, adopt and enforce a stipulation, which being an undertaking of the party, to submit himself to the authority of the court, execution on it belongs to that court, and that jurisdiction, to which he has expressly agreed to submit.

The motions for prohibitions, to the proceedings of the court of Admiralty, on stipulations, seem to have been made, on the ground, that they were proceeding on a contract made at land, and the prohibitions, when granted, seem to have been granted on that ground, as well as on their usurping the appearance and effect of a recognisance of record. But, notwithstanding the prohibitions, I have not been able to discover any suit at common law on a stipulation. Pollexfen, arguing, in the court of King’s Bench, against a prohibition, says, “It is not new, that things arising on land may be sued for in the Admiralty, for so it is in all cases of stipulations.” Dr. Lane, an eminent civilian, arguing, in the same court, against a motion for a prohibition to the proceedings of the Admiralty on a stipulation, by part owners, for the safe return of a ship,* states, that, “if such prohibition were granted, the court of Admiralty would signify nothing, because most of their proceedings are, by taking such stipulations, and there could be no remedy on them at common law.” This reasoning seems to have prevailed. The counsel arguing, in the court of Common Pleas, for the demurrer to a declaration in prohibition to proceedings in the Admiralty on a stipulation, seem to state it as established by the cases cited on the other side, that land cannot be affected, nor an action of debt be brought on a stipulation, like the one now in question, with a penalty to the king. In the same case, lord Loughborough says, that such a stipulation has none of the attributes of a recognisance, cannot be proceeded on as such, and is not like it, in its consequences. In argument, in the King’s Bench, against a prohibition, the counsel state, that in an action of law, by the owners of a ship taken as prize, against the captors (the court of Admiralty having decreed, that the ship was not a prize) lord Mansfield nonsuited the plaintiff; because the question arose out of a prize cause, and courts of Admiralty ought to enforce their own decrees. In the court of Common Pleas of Philadelphia, in a case of the same kind, president Shippen uses almost the same expressions, in giving the opinion of the court, that the action could not be sustained; because, to sustain it, would be to carry the decree of the court of Admiralty

3 Mod. 245. 2 Ld. Ray. 1285. H.Bla.185. 3T.Rep.333. Doug. 572, 597. Hardr. 473. 2 L. Ray, 1285. 2 Str. 890.

into execution, which (the Admiralty being the proper judicature to carry into effect its own decrees,) he declares, the court of Common Pleas had no authority to do. The principles of this decision are fully explained in the case of Le Caux v Eden. Such suit could not be supported because it arose out of the question, “prize or not prize,” which, with all its consequences, depending on the rights of war, part of the law of nations, belongs entirely and exclusively to the courts of Admiralty ; and as the courts of common law cannot, at all, enquire into it, they can receive no evidence of it, not even the evidence of the decree of the competent court. In this case of Le Caux v. Eden, the counsel for the plaintiff contended, with great earnestness and warmth, for the benefit of a common law redress. But no suit of this kind having ever been brought was a strong argument, that none could be supported, and as the Admiralty had full authority to remedy an unlawful capture, and all its consequences, the court thought, it would be extremely inconvenient to withdraw this question or any of its incidents, from a jurisdiction proceeding on a general law of all nations, and in a summary and equitable manner, and bring it before a jurisdiction governed by a limited municipal law, and proceeding with a formality and mode of proof ill suited to the nature of the subject. If captors were liable to a suit at common law, by every person affected by the capture, none would venture to take a prize. And if foreigners had no remedy, for injuries done to their property, under colour of prize, but from suits in our courts of municipal law, to the principles and effects of which they are strangers, mutual confidence between nations would be destroyed, and, in a war between any two nations, all others would protect themselves by force, and compel by arms that administration of justice, to which they are reciprocally entitled.

This collection of opinions and decisions, respecting the court of Admiralty, shews the extreme caution, with which courts of common law interfere with the jurisdiction of that court; and shews, that its jurisdiction, in cases of stipulation, though, at first interrupted and denied, was, at last acknowledged. The conclusion to be drawn from this is, that every argument, which supports its jurisdiction, bears against the jurisdiction of the courts of common law.

But it may be said, that the doctrine, respecting the prize court of Admiralty, is not conclusive, when applied to the Instance court, with which the courts of common law have, in many cases, a concurrent jurisdiction. It will, however, be observed, that, of the authorities cited, many are in the Instance court, and that there, the reasons of inconvenience, in all, have great influence. The sea, if I may to express it, is the territory of all nations; and as transactions are to be governed by the lex loci, things happening on it are to be governed by the law of nations, rather than any municipal law. Therefore courts of Admiralty are instituted in all states, and governed by the same code of laws.— But why institute them, if every incidental occurrence may be drawn into a court of municipal law ? Foreigners may frequently be affected by things happening on the sea, the highway of the world, and have like reasons to demand the maritime mode of investigation in other cases, as in the case of prize. Their situation may not admit delay. The mode of proof and trial, by the municipal law, framed for internal transactions, may, with respect to maritime affairs, be impracticable or inconvenient, and will generally be unknown. And it may seem hard, after commencing, supporting, and concluding a suit in the Admiralty, to be drawn into a court of municipal law, for the attainment of its object, or an enquiry whether it has been attained or not. If the court of Admiralty have jurisdiction over the principal matter, it will also have jurisdiction over the incidental, and may enforce compliance with the stipulation. If it had no jurisdiction over the principal matter, any incidental judicial act is void. In any case, the application to a court of common law seems to be, at least, unnecessary, and may be oppressive. It appears to be new, and, if its tendency be improper, it ought not to be countenanced.

But here it is urged, that application to a court of common law was necessary to obtain the advantage of this stipulation; for one of its conditions is to indemnify the judge and officers of the Admiralty, and unless the courts of common law will enforce this, he must judge in his own cause, which is impossible. Now, although the breach of this condition is not averred, and this cannot be a suit on it, yet the judge of Admiralty had an interest in this suit, if the delivery of the money to Lacaze and Mallet was not a judicial act : for, if it was not, he was answerable for it; and if he could oblige them to pay it over to Lanoix, he would lave himself.

2 St. L. 16.

It may also be said, that to remit the party for remedy on this stipulation, to the court in which it was taken, may be to deny all remedy ; for that court no longer exists, and its authority is vested in the courts of the United States.

Here then, it is alledged, is a reasonable, if not a necessary, ground for a suit at common law on this stipulation. And where there is a reasonable and necessary ground for a suit at common law, why should not an action of debt lie on a stipulation, as well as on a judgment in a foreign court ? There is no adjudged case to the contrary ; and the boundaries of actions are every day enlarging. Such an action of debt, it is true, will not lie on it, as on a recognisance or judgment in a court of record. It is not of such solemnity, as to be answered by the plea of nul tiel record; nor is it perhaps of such absolute verity, as to be conclusive at the time, and not to be denied or examined. Yet it may be said, that, though it be not an acknowledgment of a debt on record, it is an acknowledgment of a debt, which, is for an honest and good consideration, may be recovered at law. A recognisance of bail, in any action in any court, though an incidental transaction, may yet be the ground of another action in another court. And by an act of assembly, passed since this stipulation was taken, forfeited recognisances in the Admiralty, or Admiralty sessions, shall be sued for in the Supreme court.

But, supposing this reasoning to lead to a conclusion, that a stipulation regularly and judicially taken by the court of Admiralty, acting on a subject within its jurisdiction, may be a good ground of an action of debt at common law; we must, before we decide the case before us, discuss the second question.

1 Powel contr. 244. 4 Burr, 2035-9. 1 Burr. 271-3 5 T.Rep.720-1. Hamilton v. Davis. 1 Burr.2732. C vii.Hargr. Law Tracts 37.

2. Is the stipulation stated on this record to be considered here as taken regularly and judicially, by the court of Admiralty, acting on a subject within its jurisdiction.

It is said, that it is not; for the subject was wreck, of which the Admiralty had not jurisdiction.

Wreck, or wreck of the sea in the strict technical sense of wrecked goods, which the sea casts upon land, is excluded from Admiralty jurisdiction. But there is another more lax sense, in which it is used, for ship wreck, or wrecked goods in general: and, in this sense, it includes jetsam, flotsam, and ligan, which are subjects of Admiralty jurisdiction. The word covenant, though commonly, does not necessarily, import a contract by deed. The word legacy has been held to extend to land. So the word wreck, though properly meaning wrecked goods cast on land, has been used judicially and by lawyers, for wrecked goods at sea. In the judge’s report of a trial in trover, for part of the cargo of a ship foundered, and never heard of the ship and goods are mentioned as a wreck. Lord Hale, in a treatise De Jure Maris, says, “of wreck of the sea there are two kinds: 1, such as is called properly so, goods cast upon the land on shore ; 2. improper, for goods that are a kind of sea waits, or stray, flotson, jetson, and lagon.”

If on such occasions, and by such persons, the word wreck has been used in this general sense, shall we wonder, if Lacaze and Mallet, in their petition to have this money delivered to them, should use it in the same sense, and that it should have crept, by way of parenthesis, into the order for the delivery of the money to them? It is not shewn to us in the libel of the master, on which the court took jurisdiction, nor in any other part of this record. And, even where it is used, it is evident, that it is not used in the proper, but in the improper sense. It is wreck of the ship, and not wreck of the sea. I cannot therefore bring myself to say, that this record expressly excludes the jurisdiction of the Admiralty ; for it does not so manifestly appear. Is it then necessary, that it expressly and sufficiently state this jurisdiction?

It is said, that this is necessary ; for the court of Admiralty is not a court of record. And it is said, that this is not necessary ; for the court of Admiralty is not an inferior court, and, in superior courts, the jurisdiction is presumed.

2 L.Ray1285, 1452. 1 L.Ray,272 Hob. 212. Doug. 615. Mosloy. B. 2, C. 2, 816.

Many inferior courts are courts of record ; and though the court of Admiralty be not a court of record, it may not, therefore, be an inferior court.

The equity court of Chancery is not a court of record ; and surely, it is not an inferior court. In this respect, the court of Admiralty is not an inferior court, that its sentence, on subject within its jurisdiction, is not examinable in the superior courts of common law. But, in every respect, it is not touch a superior court, as, like the courts of Westminster Hall, its jurisdiction is general and presumed, without averment. As to subject and place it is limited: and every libel in the Admiralty must lay the cause of suit to be within the maritime jurisdiction, and so as it may appear to the courts of common law to be to indeed ; “for a man is not to sue in the Admiralty because it is a ship."

But it is contended, that the jurisdiction of the Admiralty does appear ; for this is a case of salvage. Together with the ship, the wages of the mariners were lost, and they contributed to the recovery and safety of the goods, as any other individuals, and upon the same terms. It is contended also, that it is the law of France, and for the mutual convenience of all nations, that, in all such cases, the property saved shall be deposited in the Admiralty, subject to its jurisdiction ; and that, the parties being citizens of France, it was expected on both sides, that this should be done, and that a decent respect for the laws of France, and regard for general convenience ought to sanction this jurisdiction. I feel no inclination to oppose this reasoning ; and I think this was a proper excrcise of Admiralty jurisdiction, warranted by the custom of France and other nations, advantageous to the parties concerned, and necessary in all maritime countries, for the protection of foreign property : and I think, therefore, that this jurisdiction ought not to be disputed with the Admiralty, and that it ought to be considered as acting judicially in the exercise of it.

If, together with jurisdiction, there must also be an averment of jurisdiction, I cannot think this sufficiently implied in the recital of the order of the Admiralty to deliver the coin to Lacaze and Mallet, on their giving caution, "agreeably to the practice and usage of that court, and the laws of this state;" these words referring to the manner of the caution, not the matter of the suit And, in some cases, averments, though false and not traversable as that a plaintiff in the Exchecquer is a king's farmer, must be made. So, to found an action at law, on a judicial proceeding in the Admiralty, an averment may be necessary, in the declaration as in the libel, that the subject was within the jurisdiction of the Admiralty. For though it be a rule, that, if a party, having an opportunity to object to the jurisdiction of the Admiralty, lies by till after sentence against him; the court of common law will not, in order to prohibit the Admiralty look out of the proceedings, to find irregularity, and and presume jurisdiction unless want of it appear on the proceedings ; yet this is in the case of motions for prohibition, where the other party has gone on in the Admiralty under an apparent jurisdiction, as on a contract laid in the libel to have been made at sea; and then the court of common law may refuse to interfere, in opposition to a jurisdiction, to which the party has submitted. But if this question come before a court of common law, not on a motion for prohibition, but on a suit instituted on some of the Admiralty proceedings, will the same reasons which induce a court of common law not to stop the proceedings of the Admiralty, induce it to enforce them? Because it permits, must it authorise them ? Courts, not favouring negligence, will perhaps overlook an objection, which appears not on their record, they would not overlook it in their record, when they were required to act on it, and make it a ground of their proceeding for not to correct an irregularity, differs from supporting it. In an action of debt on a judgment of nonsuit, in an inferior court, it would seem to be necessary, to aver, in the declaration, that the nonsuit was given at a court held within its jurisdiction and this is sufficient, though the proceedings of the plaintiff below have been illegal from beginning to end. But it might have been doubted perhaps, whether this averment would have been sufficient, if the plaintiff below proceeding illegally had obtained judgment, and brought an action of debt on it. Much may, in such case depend on the question, who urges the objection ? Did he occasion or could he have resisted the irregu larity in the inferior court, or was he affected by it there ? In an action against an officer of an inferior court, for an escape, the court of King’s Bench held, that, supposing the plaint below to be erroneous, the officer could justify the arrest, and shall not, in this collateral action say, that the plaintiff could not have had the effect of his suit below; nor shall he, after verdict, when every thing necessary is presumed proved at the trial, object, that the declaration alledges not, in what manner the defendant below was indebted, nor shews, that it was a debt of which the inferior court had jurisdiction.

9 Co. Rep 47a. 6 Co. Rep. 38b. System of Pleading 184. 12 Co. 77, 78. 4 Burr. 2035-9. 2T. Rep. 475,649, &c. 4 Burr. 2035. 3T.Rep.348. Bull v. Steward, 1 Wils. 355. 2 Wils. 5.

In what situation then were Lacaze and Mallet, in the court of Admiralty. They were neither plaintiffs nor defendants, they were neither the persons libelling, nor the persons libelled against. They were not the owners of the money, nor could they have been considered as the agents of the owner authorised to receive it. For if they had either been the owners or authorised agents, such a stipulation would not have been necessary. It was not necessary from an owner, for he has a right to his money, without giving caution. It was not necessary from an authorised agent; for caution was a matter that lay only between the agents and the owner, and no other than the owner had a right to require caution, which he did not choose to require, and thus bring sureties into danger.

But whatever they were, it will be said, shall they, trusted at their own request, dispute the authority under which they acted, when they are called to an account for misconduct, and the person injured joins in the demand ? And after the proceedings in the Admiralty, and defence and verdict at common law, shall enquiry be made, as to the Admiralty jurisdiction ? Who shall dispute the jurisdiction of the Admiralty over this money ? The owner. Were Lacaze and Mallet the agents of the owner ? They might then, instead of allowing the jurisdiction, in his name, have applied for a prohibition. They cannot, after stating themselves to be, now deny that they were, the agents of the owner ? If they admitted the jurisdiction to give this money, and take this stipulation, to permit them to deny it, when they are called to account, and the person injured applies to the stipulation for a remedy, would, it may be said, shock the plainest principles of honesty, and break the bands of mutual confidence.

There is weight in this reasoning, and surely the absurdity would be shocking, if no remedy existed on this stipulation. But the present question is, not whether any remedy exist on the stipulation, but whether the stipulation is now to be considered as regularly and judicially taken, on a subject within the jurisdiction of the court of Admiralty. If there were in the information an averment of jurisdiction, it might be improper, at this stage of the business, to suffer it to be denied. Eventhough there be no averment, it may be contended, that this would be improper, unless want of jurisdiction appear on the face of the proceedings. If this appear, it is never too late to object to it. My doubt is, that a want of jurisdiction does to appear.

I have already acquiesced in the jurisdiction of the Admiralty, in taking this money into its possession, for safe custody, and for examination and decision of all claims to it. So far I admit the acts of this court were judicial. But I doubt whether the duty of the court extended beyond the preservation of the money, and the dilivery of it to the owner or his agent. I think it extended not to the transmission of it to the owner’s place of abode, or into the owner’s hands, unless he came to that court, or its officer, to receive it. This stipulation was taken, that Lacaze and Mallet should remit the money to Lanoix, and indemnify the judge and officers against his, and every other claim. It was the duty of Lanoix to come to the judge of Admiralty, for the money ; it was not the duty of the judge of Admiralty to remit it to him. If Lacaze and Mallet were the authorised agents of the owner of the money, it was not the duty of the judge to take security for the performance of their agency. If they were neither agents nor owners, it was not the duty of the judge to deliver the money to them. Can a judge be considered as acting judicially, when he is doing what it is not his duty to do ? Can a judge need an indemnification for doing a judicial act ? Or can the stipulation taken in an act not judicial be a judicial act ? I doubt whether this be a judicial act. But it is a reasonable and fair way of serving the owner, by the earliest and easiest method of transmitting his money to him. And the only light in which I can consider Lacaze and Mallet, in this transaction, is as the voluntary agents of the judge of the Admiralty, intrusted by him, at their request with the custody and transmission of this money. For the performance of this trust, and for indemnifying himself, he takes this stipulation. Is he not then acting at his own risk, as a man, not regularly as a judge ? And would not a better, way have been, to have taken a bond ?

2 Str. 915. Bracton B.3, 10 Wheatly v. Low, Cro J. 667, Coggs v. Barnard, L. Ray 909, 920.

There being yet grounds of doubt, I proceed to the third question.

3. Is this stipulation, independent of all judicial circumstances, such a contract, as will maintain an action of debt against Lacaze, Mallet, and Ross ?

In considering whether this stipulation, stript of all judicial solemnity, and taken only as a contract en pais, be sufficient to maintain an action of debt against Lacaze, Mallet, and Ross, I lay aside all consideration of the manner, in which the court of Admiralty got possession of the money. Holding it a matter of indifference, whether the judge and officer of that court acted by authority, or as trespassers. I consider it as undisputed, that they might make such a contract, and I proceed to examine its legal operation on the plaintiffs in error.

Pennsylvania, whether by wright or wrong, it is immaterial, being in possession of this coin, gave it up to Lacaze and Mallet, to deliver to Lanoix ; and Lacaze, Mallet, and Ross, bound themselves to Pennsylvania, in the penalty of 4000l. sterling, that Lacaze and Mallet would deliver it to Lanoix. If Lacaze and Mallet had been the agents of Lanoix, Ross might have had the advantage of this, at the trial ; and, after this verdict, I will take it, that they were not, and that this was not an engagement, that a man entered into, as a necessary mean of obtaining his own money ; but an engagement entered into, whereby he obtained the money of another man, for the purpose of delivering it to him. It was a bailment, a fair contract, and the bailee, though acting gratis, is liable, on the implied undertaking, for gross negligence, and on an express undertaking, for the due execution. For he undertakes and is trusted, on those terms. This confidence of the bailor is a sufficient consideration for the undertaking of the bailee, and thus a contract is formed, which, without any valuable consideration, request, or writing, binds the bailee.

1 PowelContr. 364-5. 1 PowelContr. 331, 343. 2 Comm. 445-6. 3 Burr. 1663. 1 Comm. 445-6. 3 Bac. Abr 146. Cowp.290-4. 1 PowelContr. 331-4. Ld. Ray 909-19. Wheatly v. Low, Cro. J. 668. 1 Powel Contr. 365-6. Brown & ux v. Garborough Cro. El. 63. v. Storer Dyer, 272 b. pl. 32. in not.

By the law of nature and nations, and, therefore, by the law merchant, which is founded on that law, a fair and deliberate contract is, of itself, and without any consideration to induce it, a good ground of action. But, by the civil law, if some consideration, other than the contract itself, do not exist, this bare contract, unless ratified by certain solemnities, bound not the party making it. The law of England, borrowing this principle, seems to have adopted it in its full latitude, and, holding a consideration necessary, never presumes one, unless the contract be confirmed by the deliberate solemnity of writing, sealing, and delivery.

A consideration is sufficient to support a promise, if a benefit to the party promising, or a lots to him, to whom the promise is made, or if the party promising be under a legal, equitable, or moral obligation, to do what he promises: or if he, to whom the promise is made, trusting to it, foregoes an advantage, or suffers a consequential loss ; as if one, without any consideration, promise to keep my goods safely; or a carpenter promise to repair my house; though they do not, no action will lie on this promise, until I suffer some loss, through their default; but if, trusting to such promise, I deliver my goods to this bailee, and he spoil them, or lose them; or, waiting for the carpenter to repair my house, according to his promise, which he neglects to do, I suffer damage ; or if he does it unskilfully ; for my loss, through the non-performance or misperformance of these undertakings, I may support an action.

Plaintiff, being indebted to A. delivered a sum of money to defendant, to pay over to A. Defendant paid it not. A. sued plaintiff, who thereupon sued defendant, for a breach of his trust and promise, and had a verdict. Defendant moved in arrest of judgment, because there was no consideration. This objection was over-ruled, and the judgment given was affirmed on error. Before the intermarriage of the plaintiffs, the father of the husband had promised to the wife, that, if the marriage took he would assure them certain land. Defendant, his cousin, standing by, promised her, if the father did not, that he would give her 100l. The marriage took effect, and the promise of 100l. was held good ; not only because they were of kin, but because the woman trusted defendant, rather than the father of her husband.—The last is, of itself a sufficient, and, I think, the true reason. There was an agreement between plaintiff and A. that plaintiff should have a lease of A. with divers covenants. At the day of sealing, plaintiff refused, on account of the insertion of a new covenant, concerning repairs. Defendant, standing by, took on himself to make the repairs, if plaintiff would seal the lease. He did so, and, in assumsit, this was held a good consideration, though the sealing of the deed was of no consequence to the defendant.

Sec 1 Powel Contr. 345. Cro. J. 342 Hob. 4, 5. 1 PowelContr. 343, Stursy v. Albany, Cro. El. 6-, 150. Gilbert v. Rudderhead Dyer 272. b. pl. 32, in not. 1 PowelContr. 348-52. Hunt v. Bale Dy. 272, b pl. 31. Barker v. Halifax Cro. El 741 1 Com. Dig. 142. 2 Bulstr. 73. 1 PowelContr 379. Warcop v. Morse, Cro. El. 138 See also Cro. El. 42, 94, 138. Dy. 272, b. 3l. 3 Bulstr. 18l. 1 Rolle Rep. 381, Rolle abr 12.pl.10, 1 PowelContr. 372. Dyer 272. b. 32. Bosden v. Thinn, Cro. J. 18. Sidenham v. Worthington, Cro. El. 42. Cro. Car. 403. Salk. 96. Cowp. 294. Cro. El. 42. Dyer 272. b. 32 in not 1 PowelContr. 351.

Mutual promises are considerations for each other ; and a consideration very trifling will support a promise; as “ if you shew me a deed, whereby it appears, rent is due, I will pay you or “if you will come such a day, I will pay you:" in these cases, the shewing of the deed, or the going to the house, is a sufficient consideration. But no consideration that is executed, and intirely past, from which no legal, equitable, or moral duty remains, will support a promise : for the promise being subsequent could not have been the inducement, which caused the consideration, and is therefore altogether voluntary and gratuitous. In applying this rule, we must distinguish those cases, where the consideration is not intirely past, but consisting of several parts making, in the whole, one transaction, of which though some part of it be past, some part yet remains to be executed. As where one agreed to demise a shop to another, paying 40S. by the year; and for the perfecting thereof each gave the other one shilling. Afterwards, in consideration of the premises, lessee promised to give lessor 30l.; in consideration whereof, and in performance of the contract, lessor made a lease to lessee. It was held that the promise of 30l. was good. For the lease was after the promise. The agreement is in performance of all, not of part. It was lessor’s part to make the lease to the defendant, and his part to pay the rent and 30l. in consideration of his quiet enjoying. So, in assumsit, plaintiff declares, that, in consideration that he had, on 10th December, bought land of defendant, afterwards, on 19th December, defendant promised to make him a sufficient assurance thereof, by such a day. After verdict, it was urged, that the consideration was past. But it was adjudged for the plaintiff ; for the assurance was the substance of the sale and the transaction.

2 Bulstr. 73. Cro. El. 138.

And, though the consideration be intirely past, if it was done, at the request of the party promising, the law, giving the promise a relation back to the request, holds it sufficient. If A. request me to give my credit to B. for 50l. I give my bond, am sued, and have to pay 70l. and I shew this to A. who promises to pay me 70l. this promise is good. So, though the consideration be past, if there be a subsisting duty, at the time of the promise, it will bind; as a promise to pay a servant wages, for past service, or to pay a debt barred by the statute of limitations, or contrasted during infancy. So assumsit lies for the burial expences of the wife or child of another, without request.

On the principles which have governed these decisions, no doubt can remain, that the promise, made by these parties, to the state of Pennsylvania, acting by its agent, the judge of Admiralty, is sufficient to support an action. Here is an undertaking and a breach of trust, which, without any consideration, is sufficient. Or, supposing a consideration necessary, and the order of the Admiralty to be the consideration, it was not altogether past; it was but part of a transaction, the most material part of which, and the principal object in the view of all the parties, the delivery of the money, like the executon of the lease, and quiet enjoyment under it, in one of the cases cited, or the execution of the conveyance, in another of the cases, remained to be executed by Pennsylvania, after the promise was made, and was a consequence of the promise; though the order of the court in this case, and the agreement for the lease, and for the purchase in the other cases, be stated as the consideration, and be previous to the promise. But supposing the consideration past, it was preceded by a request of the party promising. The order was made, on the petition of Lacaze and Mallet. And the whole transaction may be considered as mutual promises; on the part of the court, to give the money ; and on the part of Lacaze, Mallet, and Ross that Lacaze and Mallet let shall remit it to Lanoix. And, in almost every view that you can take of it, the promise is sufficient.

Rastall v. Avarne, 2 T. Rep. 366. 1 PowelContr. 209-31. Shove v. Webb, 1 T. Rep. 732. 1 Salk. 23. 1 L. Ray 69. 2 Burr, 1009. Hardr, 485. Brown v. London, 1 Mod. 285. 1 Salk. 23, 12l. 2 L. Ray 1035. 2 Com. Dig. 64. 1 Ventr. 1 98 2 Com. Dig. 64l, 1 Salk. 23, 125. 3 Salk.14, 175 L. Ray, 69, 1034-5, 1 Salk 23. L. Ray, 849, 982, 224. 1 Esp 123. Dyer, 230, pl. 56 Sands v. Trevilion, Cro. Car, 107-193. 2 Com. Dig. 639, 1 Roll. 594, 35 Dyer 272. Hardr. 485. Shandow v. Simson, Co. El. 880.

But every promise, that is good in law, will not support every action : and there are promises, which, though they will support an action, will not support an action of debt.

Had all the plaintiffs in error been bailees, there would have been less difficulty in declaring the operation of such a contract, as this. But the difficulty arises from Ross, to whom the money was not delivered, being involved in the same contract with Lacaze and Mallet, to whom the money was delivered.

It is not a new thing, to consider parties to the same contract, as equally bound, for one purpose, but separate, for another. In an annuity contract, it was held, that the surety, though liable, on the express contract, for the payment of the annuity, was not liable, on the implied contract, on the annuity becoming void, to return the consideration money, which he had never received : but the principal was held liable, on this implied contract. I cite this case, not as parallel to the present case, for this is an express promise by all, but as shewing, that parties, equally bound for one purpose, may not be equally bound for every purpose of the same transaction. And here, it may be contended, that Ross, though liable on the special undertaking, to remit the money, is not liable in debt, for what he never received.

Indebitatus assumsit was brought on a bill of exchange accepted. There was a verdict for plaintiff, and a motion in arrest of judgment, because, though case lies on a bill of exchange accepted, on the custom of merchants (which requires no consideration) yet indebitatus assumsit (which lies only where debt lies) cannot be brought thereon. It was held, that a bill of exchange accepted, though a good ground of a special action on the case, on the custom of merchants, does not make a debt, because the acceptance is conditional on both sides, if the money be not received, it returns on the drawer, who remains liable still, and this is but collateral ; and because the word onerabilis does not imply debt; and because it is but evidence of a promise to pay, which is nudum pactum : but debt lies on it against the drawer himself, for he is really a debtor by the receipt of the money. Debt, or indebitatus assumsit, lies not for interest of money due on a loan; for money won at play, or on a wager ; nor on mutual promises ; for there must be a consideration, a pro quo, to support debt, or indebitatus assumsit : but assumsit lies in these cases. A declaration in indebitatus assumsit, against a father, for money lent to his son, at the request of the father, is bad; for lent is a technical word, and creates a debt in the son, to whom it is lent, and cannot be lent to two ; but it would have been good, if delivered to the son, at the request of the father : for then the loan had been to the father : but being now to the son, the father is only collaterally bound, and liable in a special assumsit. So, though for goods fold, or service done, to another, at the request of a third person, debt lies not against him who requested: for the contract is by the sale, and the service done, yet being to another, there is no quid pro quo, and request, without more makes not a debtor; yet on a contract, to retain one, to embroider the gown of a third person, he has election to have debt or assumsit. If one undertake, that if A. release his debt to B. he himself will be his debtor, debt lies not. B. retains R. to be miller to his aunt, at 10s. per week ; debt lies not on this, but an action on the case ; for, in debt it is requisite, that the benefit come to the party who promises ; and so, for the want of a quid pro quo, debt does not lie : but this will support an action on the case ; for though it be not beneficial to B. it is chargeable to R. Debt lies not on a collateral engagement, as for goods delivered by A. to B. at the request; of C. which C. promised to pay, if B. did not for in that case, a debt or duty does notarise between A. and C. but a collateral obligation only.

2 Com, Dig. 639, 9 H.5, 14. Eaxter v. Read. Dyer, 272, in not. Hardr. 486. Hob. 216. 1 Powel, Contr. 344.

Though changing the form of the action, change neither the justice of the demand, nor perhaps the amount of the recovery, these cases manifest a distinction between parties liable on the same contract, and in the forms, by which the same sum may be recovered. Perhaps the same distinction may be hinted in the following case.—Testator promised to pay the plaintiff 50l. if he would forbear to prosecute an attachment of privilege against him. On this promise, plaintiff brought an action on the case, against defendant, executor of the promiser. It was held, that the consideration was good, and that debt would have lien against the testator, for 50l. being a sum due on a contract, in which he received quid pro quo : for, forbearing the suit was as beneficial in saving, as other things in gaining.

1 P.Wms.194. Ayliff v. Archdale. Cro. El.920. Clerk v. Gov. & Co. of Taylors, in Exchequer on error,-and judgment of B.R. reversed, 3 Lev 241. March 77. 193, Moore Pl. 259 279. 2 Leon 210. Noy. 98. 1 PowelContr. 169. Mitche v. Reynolds. 1 P. Wms. 181, 197.

If from these cases, it should be collected, that the ground of an action of debt is the consideration or equivalent given by the debtee, to the debtor, without which, either proved or presumed, no debt can be raised ; and that damage, arising from the breach of a promise, is a ground only for a special assumsit; it may be contended, that, though debt lies against Lacaze and Mallet, who actually received the money, it lies not against Ross, who received none of it, and is not bound by a specialty, for its remission or repayment. Though the receipt of the money created a debt or duty, in Lacaze and Mallet ; the promise of Ross, without such receipt, created none in him ; and raised only a covenant or assumsit, for the breach of which, damages will be recovered.

But, it may also be contended, this action is not brought for the money intrusted to Lacaze and Mallet, but for a fixed penalty expressly submitted to by Lacaze, Mallet, and Ross, and acknowledged due by them to Pennsylvania, if Lacaze and Mallet did not perform their trust ; and, though it never was the duty of Ross, to transmit the money delivered to Lacaze and Mallet, it became his duty, as well as theirs, to pay the penalty, when they had failed to transmit the money delivered to them.

Actions for penalties are not favoured ; and the distinction between a contract for a real debt, and for a penalty, is not new in the law, even when the penalty is stipulated for, by the solemnity of a deed. A promise or single bill, by an infant, for a debt due for necessaries, is good ; but a bond with a penalty, for such debt, is void. A contract, upon good consideration, to restrain from trading in a particular place, is good ground of assumsit; but a bond or covenant, to pay a sum certain was held void, because it left not the matter open to a jury, to make the damages commensurate to the consideration and injury ; but, whatever might be the consideration or injury, made the whole penalty recoverable, in an action of debt. A later decision has, indeed, overruled this distinction.

1. Because the penalty is favourable to the obligor, as fixing the sum, for which, he may repurchase his trade.

Vinn. Just. Inst. 554. 1 Powel. Contr. 330. Preston v. Tooley, Cro. El. 74. Lady Shandois v. Simsom Cro. El. 880.

2. Because it is his own act.

3. Because he can suffer only by his own knavery ; and courts are not to protect that from paying too much.

4. Because restraints by custom of particular places may be enforced by penalties ; and

5. Because, whether the contract be good or not, on consideration of the circumstances, is matter of law, not fit for a jury. It is true, since the equitable powers of courts have permitted no more than the real debt or damages to be recovered, the action of debt seems to have but the same effect as Covenant; and the reason given, for the distinction above mentioned, loses its force. But it is also true, that the first reason, for over-ruling the distinction, is not applicable to the present case ; for it can never be favourable to the obligor, to pay double the sum due. So also the third reason applies not to Ross. And the fourth and fifth reasons have no operation on this case. To over rule the distinction in this case, there remains only the second reason. But this reason, whatever weight it may deserve, in support of a deed, must have less, when applied to a parole contract. For since words are frequently spoken inadvisedly, and without due deliberation, the same law, which requires a consideration to support such a contract, would perhaps hesitate, on a transaction of so little solemnity, to declare a penalty incurred.

A special assumsit seems to have been brought, on a case like the present. A. promised to B. that, if he would deliver to him a statute staple, which he had on C. for 1000l. to look at, he would keep it safely, and deliver it to B. or pay him 1000l. As, on the writ of enquiry, only 200l. damages were found, it seems reasonable to presume, that the 1000l. in the statute staple was a penalty, and the 1000l. in the promise, was therefore a penalty also ; and, though a precise sum was promised, and the action was against a principal only, assumsit, and not debt, was brought, on this promise. In the case before us, if assumsit had been brought, I have no doubt, it would have lien : and, for the reasons which I have stated, I am inclined to think assumsit the most proper form of action, on this engagement.

But, notwithstanding this opinion, and those reasons, which have given me very serious doubts, on this sub ject; as the boundary between debt and assumsit, in some of those cases, appears to be nice, if not to shift from side to side; as, in the cases of retaining one to do a service to another, it is sometimes held, that debt lies, sometimes, that it lies not, but assumsit only, and debt against the person, for whose use, the service is, and sometimes, that the person retained has his election of debt or assumsit against the person retaining ; as here is an express engagement, by all the plaintiffs in error, on a certain default, to pay a certain sum of money; as this is a promise, on a good consideration, and as a promise, on a good consideration, binds, without deed, and the use of a specialty is, that a consideration is implied ; and, as the only effect of giving way to my doubts would be, to change the form of the action, delay justice, and add to the loss and vexation of the injured party ; I will not, at this state of the proceeding, say, that this action shall not be maintained. As it is undecided, that no action lies on a stipulation, and doubtful whether this be a judicial proceeding ; yet, being a fair, deliberate, and solemn contrast, the strong principles of justice require, that a remedy should be administered; and this may be a proper remedy.

2 Roll. 77. 2 Com. Dig. 638, 193. Dyer 230, b. 56 Bradford v. Woodhouse Cro. J. 520. H. Bla. 241.

But, supposing a proper form of action to have been chosen, unless it have also been, properly prosecuted, the proceeding will be erroneous. The fourth question, therefore, remains to be considered.

4. Is a breach of this stipulation sufficiently set forth in the declaration ?

I am of opinion, that, after defence, verdict, and judgment, we ought to presume, that Lanoix was owner of this money, and, of course, that a breach is sufficiently fet forth, to support this record. It appears in the information, that Lacaze and Mallet themselves stated this in their petition; shall they now deny it? Unless Lanoix had been the owner of the money, would they not have controverted it? And is it not established by the verdict for his use? If he had not been the owner of the money, the defendants would have so pleaded or shewn it, in discharge of themselves from the present action. It is averred, in the words of the stipulation, that Lacaze and Mallet did not perform the trust reposed in them. And, even, if the money belonged not to Lanoix, it is better, that it be in the hands of the Commonwealth, as a trustee for the true owner, than in the hands of Lacaze and Mallet, who have no privity or connection with the owner, if he be not Lanoix; and who have not performed their trust.

I am, therefore, of opinion, that the judgment given in the Supreme court be affirmed; and I am pleased to find no sufficient reason, to obstruct its effect, and longer delay the payment, of a just debt.

Judgment affirmed.

In the Roman law, the stipulator was the person requiring the promise : with us, the person promising is usually called the stipulator. Wood's Inst. Civ. Laws, 220-4.

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This was the point before the court in Cartb. 26, and Hardr. 473. and though the Admiralty jurisdicton was there denied, it seems to have been allowed here, and more pointedly in 2 St. 890: so it finally prevailed.