Per Justice Shippen.
It has been said at the bar, that such clauses in stipulations are unusual; but I have known many stipulations taken in this manner, because the judges of the admiralty have in many cases been deemed responsible. It is not unusual.
Bond in the admiralty to perform its own decree must be sued in common law court. 1 Keb. 88.
A judgment obtained in London, in a cause which by the custom of the city could not be brought in the courts of Westminster, debt will lie on it in B. R. or C. B. i.Rol. Ab. 600, pi. 8. A recognizance in chancery may be sued in B. R. though the regular remedy is by scire facias in chancery. Cro. El. 608. Debt lies in C. B. on a judgment on a scire facias on a recognizance in B. R. 2 Com. Dig. 634. Cites Dy. 306. a. in marg. Debt lies in B. R. on a recognizance of bail in C. B. So of bail in B. R., it may be sued in C. B. 2 Com. Dig. 635. So of a judgment in the Marshalsea. Dyer 306.
The reasoning and cases cited on both sides under the second point, apply equally to the seventh reason in arrest of judgment.
Finally it was insisted by the defendants, that the verdict was contrary to evidence. The jury gave interest for six years and eleven months from the date of the stipulation until the day of giving in their verdict. To say the least of it, the verdict savors of the most extreme rigor. The condition of the stipulation was to remit the money to Lanoix, or the true owners. Now it appeared on the trial, that Lanoix, in the month of April 1784, suspended the payment of the money by his own act, and that no new demand was made, until the writ was sued out against the defendants. Upon every legal and equitable principle, there ought to have been an abatement pro tanto, as the engagement of the defendants to do a specific act had been dispensed with, at least for a time, by the party himself. Brown’s Rep. 239.
[67]*67*0/71 *To this it was answered, that the matter of damages was the peculiar province of the jury; that there could be no reason offered why Le Caze and Mallet, or their security, should not pay interest while they had the use and benefit of so large a sum of money in their hands; that the jury went upon the large principle on which fair engagements are founded, viz. fides est servanda, and that here there had been unreasonable delay and vexation. 3 Burr. 1663 to 1670. If, however, it should appear to the court that the jury had mistaken the damages, by giving interest for too long a period, they would, on the commonwealth’s offering to remit it and correct the mistake, accept the offer, and not grant a new trial, under the authority of 2 Term Rep. 214.
The court took time to advise hereupon, and now the Chief Justice, after fully stating the case, gave the opinion of the court, Mr. Justice Bradford declining to take any part in the decision, having argued the matter as attorney general pro república.
The defendants have moved that the judgment on the verdict should be stayed on seven grounds, and have assigned one reason for a new trial.
A motion for a new trial should not be made after a motion in arrest of judgment, unless in cases where the party had no knowledge of the fact at the time of moving in arrest of judgment; for by moving in arrest of judgment you tacitly admit the verdict to be good. 2 Salk. 647. Bull. 32’6. 1 Burr. 334. . This is settled by the 32d printed rule of this court, by which it is ordered that no motion for a new trial shall be made after a motion in arrest of judgment. The present case, therefore, must not be drawn into precedent.
We shall therefore, in the first place, consider the reason offered for a new trial.
It has been said, the verdict was against evidence, because the jury allowed interest on the sum demanded, 2663I. 5s. 2d., for two years, nine months, and nineteen days more than they ought to have allowed, to wit, from the 4th November 1783, the date of the writing on which the action is brought, until the 23d August 1786, when the'writ was served; alleging that Rewis Ranoix, for whose use the information is exhibited, had, by his own orders, suspended the remittance of the money to him, during that period. This allegation is made on the deposition of John Sablonier, who swore that Mr. James Re Caze arrived at Bordeaux in March 1784, and, in a conversation with Rewis Ranoix on the 9th April following, he, Mr. Raniox, agreed to keep the bills of exchange *po-i drawn by Re Caze and Mallet upon Re * Géze and Sons J for. the sum due, and desired James Re Caze to write to his partner, Mr. Mallet in Philadelphia, not to remit the [68]*68silver, which was done; and it did not appear in evidence that any further demand of it was made until the 23d August 1786, the day on which the writ in this cause was served.
Upon this evidence, the jury may have concluded, that Mr. Eanoix only excused the remittance of the silver during this time, merely as an indulgence to Ee Caze and Mallet, and from an expectation that Ee Caze and Sons would honour the bills; but being disappointed in this, he ought to have interest for the money, as if no such indulgence had been granted: — that the forbearance was at the instance of James Ee Caze, and merely to oblige him, and that Eanoix should not be a loser by it. The jury, perhaps, should not have allowed interest for the time it would have reasonably taken to have remitted the silver from Philadelphia to Bordeaux for Mr. Eanoix. Be this as it may, it was a fact properly within the province of the jury: — it was their duty to consider and determine it; and in such case, though the legal interest is usually the measure of damages for delaying payment of money, yet if something more is given, unless it be unreasonable and excessive, the court cannot interfere.
We are therefore of opinion, that a new trial ought not to be granted.
With respect to the reasons in arrest of judgment, they may be comprized under three heads:
1st. That it does not appear on the record, that the original cause concerning the five casks of silver, was within the jurisdiction of the court of admiralty.
2d. That if it was not, Anthony Forenay master of the brigantine Count Durant, had no right by the common law to take such a writing as the one now sued, from the defendants.
3d. That if such a writing could be taken by the common law, yet an action of debt upon it could not be maintained.
As to the first, it is recited in the information by the attorney general, that the libel in the court of admiralty was concerning five barrels of silver, saved from the “wreck” of the brigantine Count Durant, and put into the custody of the marshal, and nothing more, except that “salvage” was decreed to captain Forenay for saving it.
Shipwreck is a matter of revenue. In a “legal wreck,” the goods must come on shore. Jetsom, flotsam and ligan are not matters of revenue, and are cognizable in' the admiralty; but wreck is determinable by the common law. 1 Blackst. Com. 290. 3 Blackst. Com. 160. 5 Co. 106, 107. 6 Vin. 512. pi. 5.
It is not alleged that the silver was jetsom, flotsam or ligan, or that the cause arose within the admiralty or maritime juris* diction, or upon the high seas; but if we travel i-*™ out of the record, the contrary appeared from the evi- *- dence, that the master (Forenay) had signed a bill of lading for it, and that it was never out of his custody. He carried [69]
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Per Justice Shippen.
It has been said at the bar, that such clauses in stipulations are unusual; but I have known many stipulations taken in this manner, because the judges of the admiralty have in many cases been deemed responsible. It is not unusual.
Bond in the admiralty to perform its own decree must be sued in common law court. 1 Keb. 88.
A judgment obtained in London, in a cause which by the custom of the city could not be brought in the courts of Westminster, debt will lie on it in B. R. or C. B. i.Rol. Ab. 600, pi. 8. A recognizance in chancery may be sued in B. R. though the regular remedy is by scire facias in chancery. Cro. El. 608. Debt lies in C. B. on a judgment on a scire facias on a recognizance in B. R. 2 Com. Dig. 634. Cites Dy. 306. a. in marg. Debt lies in B. R. on a recognizance of bail in C. B. So of bail in B. R., it may be sued in C. B. 2 Com. Dig. 635. So of a judgment in the Marshalsea. Dyer 306.
The reasoning and cases cited on both sides under the second point, apply equally to the seventh reason in arrest of judgment.
Finally it was insisted by the defendants, that the verdict was contrary to evidence. The jury gave interest for six years and eleven months from the date of the stipulation until the day of giving in their verdict. To say the least of it, the verdict savors of the most extreme rigor. The condition of the stipulation was to remit the money to Lanoix, or the true owners. Now it appeared on the trial, that Lanoix, in the month of April 1784, suspended the payment of the money by his own act, and that no new demand was made, until the writ was sued out against the defendants. Upon every legal and equitable principle, there ought to have been an abatement pro tanto, as the engagement of the defendants to do a specific act had been dispensed with, at least for a time, by the party himself. Brown’s Rep. 239.
[67]*67*0/71 *To this it was answered, that the matter of damages was the peculiar province of the jury; that there could be no reason offered why Le Caze and Mallet, or their security, should not pay interest while they had the use and benefit of so large a sum of money in their hands; that the jury went upon the large principle on which fair engagements are founded, viz. fides est servanda, and that here there had been unreasonable delay and vexation. 3 Burr. 1663 to 1670. If, however, it should appear to the court that the jury had mistaken the damages, by giving interest for too long a period, they would, on the commonwealth’s offering to remit it and correct the mistake, accept the offer, and not grant a new trial, under the authority of 2 Term Rep. 214.
The court took time to advise hereupon, and now the Chief Justice, after fully stating the case, gave the opinion of the court, Mr. Justice Bradford declining to take any part in the decision, having argued the matter as attorney general pro república.
The defendants have moved that the judgment on the verdict should be stayed on seven grounds, and have assigned one reason for a new trial.
A motion for a new trial should not be made after a motion in arrest of judgment, unless in cases where the party had no knowledge of the fact at the time of moving in arrest of judgment; for by moving in arrest of judgment you tacitly admit the verdict to be good. 2 Salk. 647. Bull. 32’6. 1 Burr. 334. . This is settled by the 32d printed rule of this court, by which it is ordered that no motion for a new trial shall be made after a motion in arrest of judgment. The present case, therefore, must not be drawn into precedent.
We shall therefore, in the first place, consider the reason offered for a new trial.
It has been said, the verdict was against evidence, because the jury allowed interest on the sum demanded, 2663I. 5s. 2d., for two years, nine months, and nineteen days more than they ought to have allowed, to wit, from the 4th November 1783, the date of the writing on which the action is brought, until the 23d August 1786, when the'writ was served; alleging that Rewis Ranoix, for whose use the information is exhibited, had, by his own orders, suspended the remittance of the money to him, during that period. This allegation is made on the deposition of John Sablonier, who swore that Mr. James Re Caze arrived at Bordeaux in March 1784, and, in a conversation with Rewis Ranoix on the 9th April following, he, Mr. Raniox, agreed to keep the bills of exchange *po-i drawn by Re Caze and Mallet upon Re * Géze and Sons J for. the sum due, and desired James Re Caze to write to his partner, Mr. Mallet in Philadelphia, not to remit the [68]*68silver, which was done; and it did not appear in evidence that any further demand of it was made until the 23d August 1786, the day on which the writ in this cause was served.
Upon this evidence, the jury may have concluded, that Mr. Eanoix only excused the remittance of the silver during this time, merely as an indulgence to Ee Caze and Mallet, and from an expectation that Ee Caze and Sons would honour the bills; but being disappointed in this, he ought to have interest for the money, as if no such indulgence had been granted: — that the forbearance was at the instance of James Ee Caze, and merely to oblige him, and that Eanoix should not be a loser by it. The jury, perhaps, should not have allowed interest for the time it would have reasonably taken to have remitted the silver from Philadelphia to Bordeaux for Mr. Eanoix. Be this as it may, it was a fact properly within the province of the jury: — it was their duty to consider and determine it; and in such case, though the legal interest is usually the measure of damages for delaying payment of money, yet if something more is given, unless it be unreasonable and excessive, the court cannot interfere.
We are therefore of opinion, that a new trial ought not to be granted.
With respect to the reasons in arrest of judgment, they may be comprized under three heads:
1st. That it does not appear on the record, that the original cause concerning the five casks of silver, was within the jurisdiction of the court of admiralty.
2d. That if it was not, Anthony Forenay master of the brigantine Count Durant, had no right by the common law to take such a writing as the one now sued, from the defendants.
3d. That if such a writing could be taken by the common law, yet an action of debt upon it could not be maintained.
As to the first, it is recited in the information by the attorney general, that the libel in the court of admiralty was concerning five barrels of silver, saved from the “wreck” of the brigantine Count Durant, and put into the custody of the marshal, and nothing more, except that “salvage” was decreed to captain Forenay for saving it.
Shipwreck is a matter of revenue. In a “legal wreck,” the goods must come on shore. Jetsom, flotsam and ligan are not matters of revenue, and are cognizable in' the admiralty; but wreck is determinable by the common law. 1 Blackst. Com. 290. 3 Blackst. Com. 160. 5 Co. 106, 107. 6 Vin. 512. pi. 5.
It is not alleged that the silver was jetsom, flotsam or ligan, or that the cause arose within the admiralty or maritime juris* diction, or upon the high seas; but if we travel i-*™ out of the record, the contrary appeared from the evi- *- dence, that the master (Forenay) had signed a bill of lading for it, and that it was never out of his custody. He carried [69]*69it on shore at Uewistown in the Delaware state, and from thence to Philadelphia by land, i Vent. 308. Carth. 423. Dali. 50. All the proceedings of a court having no jurisdiction, are void; 1 Salk. 201; from which it rather seems, that the court of admiralty had no jurisdiction of the original cause, from any allegation, averment, or any other matter appearing in the information, and that this matter would not warrant a suit in that court. But as to this point, it is not necessary to give a positive opinion.
The second point is, whether Eorenay could take this writing .by the common law from the defendants? Although a court of admiralty cannot take a recognizance, which is a bond or obligation of record, from the defendants, not being a court of record, nor the judge, a judge of record, (6 Vin. Abr. 500. pi. 1.) yet it can take a caution or stipulation, which is usually for appearance or to perform a decree, &e. and is in nature of a recognizance. It appears that the proceedings in the admiralty were without the participation or knowledge of Lewis Uanoix, and that no coercion was used by the court. All was voluntary, and not only by consent, but on the application of the defendants.
There is no positive law declaring such a writing void. It was not given for any thing against good morals, or illegal, but for a meritorious valuable consideration, viz. a sum of money delivered in specie, and for an honest purpose. If the taking of this writing in the court- cannot give it any additional sanction, so on the other hand it cannot destroy or prejudice its legal operation. Though void as a stipulation, it is good as a contract, as it was determined in the case of Ascue v. Hollingsworth, Cro. El. 544; that an instrument which was void as a statute staple, was yet good as an obligation, and the case in 2 Stra. 1137, favors this opinion. See also Henry Blackstone’s Reports in C. B. 164, 189. 3 Term Rep. 270. ■
Eor these reasons, we think this transaction may be considered as done out of court, and that it is good and binding on the parties, by the common law.
The next and principal question is, whether the present information in debt upon this writing is maintainable? It has not been doubted but that special assumpsit would lie in this case, but it has been denied that an action of debt would lie.
A debt is a sum of money due by express agreement, either in writing or by parol, where the quantity is fixed, and does not * depend on future calculation; the non-payment -* or non-performance is an injury for which an action of debt may be brought. 3 Blackst. Com. 153. E. N. B. 145. 1 Uil. Abr. 554. C. 2 Bac. Abr. 13. And it is held in 6 Mod. 129, that a meritorious valuable consideration will raise-a debt. If A gives money to B to buy wares, or any other thing for him, and B does not buy them, debt will lie for the [70]*70money. 7 Vin. Debt. K. pi. 26. Cro. El. 644. For, by tie delivery of the money, as it could not be known again, the property is altered, and a duty arises. Where one delivers money to B to be repaid at such a day, debt lies. 1 Rol. Abr. 597, 1. 50. Or to be safely kept. Ib. 1. 51. Debt lies on any covenant where the sum is reducible to a certainty. Per Windham, J. cites F. N. B. which the court agreed. 2 Keb. 225, pi. 80.
Cited in 103 Pa., 571, S. C., 15 W. N. C., 76, in support of the decisión that a common law action may he maintained upon a bond filed in a foreign attachment suit and conditioned for the payment of the debt, interest and costs, although void as a statutory obligation for want of proper acknowledgment under the act.
Debts for which an action of debt may be brought at common law, may be classed under four general heads: 1st, Judgments obtained in a court of record on a suit. 2d, Specialties acknowledged to be entered of record, as a recognizance, statutes-merchant or staple, or such like. 3d, Specialties indented or not indented. 4th, Contracts without specialties, either express or implied.
The present action comes under the last head, and is founded on an express contract in writing, whereby, in consideration of five barrels of silver coin delivered by Anthony Forenay, by the advice of the court of admiralty, to the defendants, they promise and engage to remit them to Lewis Lanoix at Bordeaux, or to pay to the commonwealth 4000I. sterling for his use. The writing is in the form of a recognizance taken as a stipulation in the admiralty, but deriving no advantage or prejudice therefrom. It is a legal, fair and honest contract, grounded upon a meritorious and valuable consideration; and although Mr. John Ross is only a surety, yet, unless he had entered into the writing, the contract might not have been made. He has become a party in it, and is responsible for the performance equally with the other defendants. ■ The sum demanded is fixed and certain; there was a duty certain, which has not been performed, for which an action of debt lies; and although perhaps an action of special assumpsit might be preferred, yet we conceive debt is maintainable. The commonwealth must be considered as a trustee for Lewis Lanoix, under the authorities of 1 Vern. 439. 1 Vez. 453. 4 Burr. 2118. The verdict has been taken in the manner long practised in Pennsylvania, thóugh peculiar to it, and in consequence of an act of assembly.
Upon the whole, the court unanimously agree, that the judgment be entered for the commonwealth.
*A writ of error was brought hereupon in the High p». Court of Errors and Appeals, and afterwards in July L term 1793 the judgment was affirmed on argument.