James Lacaze, Michael Mallet and John Ross, all late of the city of Philadelphia in the said county, merchants, were summoned to answer the commonwealth of Pennsylvania in a plea, that they render to the said commonwealth for the use of Lewis Lanoix, the sum of six thousand six hundred and sixty-six pounds thirteen shillings and eight pence, which to the said commonwealth they owe and unjustly detain &c. And thereupon William Bradford Jun. Attorney General of the said commonwealth, on behalf of the said commonwealth, giveth the Court here to understand and be informed, that whereas on the twenty-fourth day of October, in the year of our Lord 1783, the said James Lacaze and Michael Mallet exhibited their bill to the honorable Francis Hopkinson Esq. Judge of the Court of Admiralty for the state of Pennsylvania, setting forth, that by the process of the same court five barrels of silvercoin, amounting to five thousand two hundred and eighty-five French crowns, and one thousand five hundred and eighty dollars, then lately before saved from the wreck of the brigantine Count Durant, whereof Anthony Fourne was commander (and upon whose suit or libel in the same court depending the said process had issued) had been taken into the custody of the marshall of the said court, and that the said silver coin was the property of and did belong to Lewis Lanoix, merchant residing in Bourdeaux, and that they, the said James Lacaze and Michael Mallet, then were the agents of the said Lewis and did transact the business of the said Lewis, and that the same coin ought to be delivered into the hands of them, the said James Lacaze and Michael Mallet, in order that the same might be forthwith remitted to the said Lewis Lanoix: And whereas upon the said bill of them, the said James Lacaze and Michael Mallet, the said judge did order and decree, that the said silver coin (after deducting therefrom all costs and charges for saving the same from the wreck aforesaid and prosecuting the several claims in the said court against it) should be delivered into the hands of the said James Lacaze, and Michael Mallet, for and on account of the said Lewis Lanoix, or the right owner thereof, in order that the same might be forthwith remitted to the said Lewis, agreeably to the tenor of the said bill, they the said James Lacaze and Michael Mallet, 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 this commonwealth: In consideration whereof, the said James Lacaze and Michael Mallet and John Ross afterwards, to wit. on the fourth day of November 1783, at the said county, appeared before the said Francis Hopkinson Esq. Judge of the Court of Admiralty as aforesaid, and then and there stipulated and acknowledged themselves to owe and be indebted to the said commonwealth, in the sum of L 4000 sterling money aforesaid (equal in value to the sum of L. 6666. 13. 8 aforesaid) to be paid to the said commonwealth, in case the said James Lacaze and Michael Mallet, did not well and faithfully perform the trust in them reposed, respecting the said silver coin, or should fail to indemnify the said Judge and the officers of the said court against all persons lawfully claiming the same, and against the claims of him the said Lewis Lanoix. And the said Attorney General further giveth the court here to understand and be informed, that the said Marshall afterwards, to wit. on the 6th day of November in the same year by virtue of the writ of the same court, (commanding him the said marshall, after deducting all costs and charges for the saving the said silver coin from the wreck aforesaid, and prosecuting the several claims against it in the said court, to pay over and deliver the remainder of the said five casks of silver coin to the said James Lacaze and Michael Mallet, to be by them remitted forthwith to the said Lewis Lanoix) did deliver and pay over to the said James Lacaze and Michael Mallet, one thousand five hundred and eighty dollars, and six thousand three hundred and thirty French crowns. And the said attorney general further faith, that the said James Lacaze and Michael Mallet, their duty in this behalf not regarding, did not well and faithfully perform the trust in them reposed, respecting the said silver coin, and did not, nor did either of them, remit the said silver coin to the said Lewis Lanoix, but the same to remit, pay, or deliver, to the said Lewis, hitherto have entirely neglected and refused. By reason whereof action hath accrued to the said commonwealth to demand and have of the said James Lacaze Michael Mallet and John Ross, the said sum of L 4000 sterling money, which, on the same 3rd day of November, were and still are of the value of L. 6666. 13. 8. Nevertheless the said James Lacaze Michael Mallet and John Ross, although often requested, to wit. on the 1st day of July, in the year of our lord 1786, at the county aforesaid, the said sum of L 4000 sterling money aforesaid, or the sum of L 6666. 13. 8. equal in value thereto, to the said commonwealth have not paid; but the same to pay hitherto have, and still do refuse to pay, to the damage of the said commonwealth L 500: And thereof the said Attorney General informs the Court here, and prays judgment against the said James Lacaze Michael Mallet and John Ross, for the cause aforesaid.
The defendants pleaded 1st Payment, 2nd Nil debent; and the issues were tried in September term last, when a verdict was found in favor of the plaintiff, for the sum of L 3,768. 9. 7. A motion was, thereupon, made in arrest of judgment, and for a new trial; which was argued in July term 1791, by Du Poneau, Coxe, Bradford, and Sergeant for the Plaintiff; and by Moylan, Miffin, Ingersoll, Randolph, and Lewis for the Defendants.
The Chief Justice now delivered the unamimous opinion of the Court.
The defendants have moved, that the judgment rendered on the verdict in this cause, should be stayed on seven grounds; and they have assigned one ground, upon which a new trial ought to be granted.
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 is good. 2 Salk. 647. Bull. N. P. 326. and 1 Burr. 334. This is also settled by the 32nd printed rules 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. I shall, therefore, in the first place, consider the reason offered for a new trial.
It has been said, that the verdict was against evidence, because the Jury allowed interest on the sum demanded, L 2663 5 2, for two years and nine months more than they ought to have allowed, to wit, from the 4th of November, 1783, the date of the writing on which the action is brought, until the 23rd of August, 1786, when the writ was served; alledging that Lewis Lanoix, for whose use the information is exhibited, had by his own orders suspended the remission of the money to him during that period.
This allegation is made on the deposition of John Sabloniere, who said, that Mr. James Lacaze arrived at Bourdeaux, in March, 1784, and in a conversation with Lewis Lanoix, on the 9th of April, he, Mr. Lanoix, agreed to keep the bills of exchange, drawn by Lacaze and Mallet, upon Lacaze & Sons, for the sum due, and desired Mr. James Lacaze to write to Mr. Mallet, his partner in Philadelphia, not to remit the silver; which was done; and it did not appear in evidence, that any further demand was made until the 23rd of August, 1786, the day on which the writ in this cause was served.
Upon this evidence, the Jury may have concluded, that Mr. Lanoix only excused the remittance of the silver during this time, merely as an indulgence to Lacaze and Mallet, and from an expectation that Lacaze & Sons would honor the bills; but being disappointed, 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 Lacaze, and to oblige him, and that Lanoix should not be a loser by it. The Jury, perhaps, should not have allowed interest for the time it would have reasonably taken to remit the silver from Philadelphia to Bourdeaux, for Mr. Lanoix. 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 cases, tho' legal interest is the usual measure of damages, for delaying payment, the Court cannot interfere. I am, therefore, of opinion, that a new trial ought not to be granted.
With respect to the reasons in arrest of judgment, I think they may be comprized within 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.
2nd. That if it was not, Anthony Fournie, 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.
3rd. That, if such a writing could be taken by the Common Law, yet an action of debt upon it could not be maintained.
1st. 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 Marshall, and nothing more, except that salvage was decreed to Anthony Fournie, for saving it.
Shipwreck is a matter of revenue. In a legal wreck, the goods must come on shore. Fetsam, flotsam and ligan, are not matters of revenue, and are cognizable in the Admiralty; but wreck is determinable by the Common Law. 1 Blackst. Comm. 290. 3 Ibid. 160. 5 Co. 106. 107. 6 Vin. 512 pl. 5.
It is not alledged, that the silver was Fetsam, flotsam or ligan, or that the cause arose upon the high seas, or within the Admiralty, or Maritime jurisdiction; but, if we travel out of the record, the contrary appeared from the evidence; that the master (Fournie) had signed a bill of lading for it; that it was never out of his custody; that he carried it on shore at Lewistown, in the Delaware state, and from thence to Philadelphia, by land. 1 Vent. 308. Carth. 423. Dallas Rep. 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 other matter, appearing in the information; and that this writing would not warrant a suit in that Court. But, as to this, it is not necessary to give a positive opinion.
2nd. I will then consider the second point, whether Fournie 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 (that Court not being a Court of record, nor the Judge, a Judge of record. 6 Vin. Abr. 500. letter I. pl. 1.) yet, it can take a caution or stipulation; which is usually for appearance, or to perform a decree, &c. and is in nature of a recognizance. It appears, that the proceedings in the Admiralty were without the participation or knowledge of Lewis Lanoix; that no coercion was used by the Court; that all was voluntary, and not only by consent, but on the application, of the defendants. There is no positive law for declaring such a writing void; it was not given for any thing against good morals, or illegal, but for a meritorious valuable consideration, to wit, a sum of money delivered in specie, and for an honest purpose. If the taking 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; just as it was determined in the case of Ascue versus 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 Strange, 1137, favors this opinion.
For these reasons, I 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.
3rd. The next and principal question is, whether the present information in debt upon this writing is maintainable?
It has not been doubted, but that a special assumpsit would lie in this case; but it has been denied, that an action of debt will 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. 153. Fitzh. N. B. 145. 1 Lill. Abr. 554. C. 2 Bac. Abr. 13. And it is held in 6 Mad. 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 money. 7 Vin. Abr. title 'debt' (K) pl. 26. for, by the delivery of the money, as it cannot be known again, the property is altered, and a duty arises.
1st. Judgments obtained in a Court of record on a suit.
2nd. Specialties acknowledged to be entered of record, as a recognizance, statutes merchant, or staple, or such like.
3rd. 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 Fournie, by the advice of the Court of Admiralty, to the defendants, they promise and engage to remit them to Lewis Lanoix, at Bourdeaux, or to pay to the Commonwealth L 4,000 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. Ross is only a surety (and I am sorry he is such) 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 I should have preferred an action of special assumpsit; yet, I conceive an action of debt is maintainable.
The Commonwealth must be considered as a trustee for Lewis Lanoix, on the authority of 1 Vern. 439. 1 Vezey. 453. 4 Burr. 2110.
The verdict has been taken in the manner long practised in Pennsylvania, though peculiar to it, and is in consequence of an act of Assembly.
Upon the whole, the Court unanimously agree, that the judgment be entered for the plaintiff.
The defendants brought a Writ of Error; but, on the 11th July, 1793, the Judges of the High Court of Errors and Appeals, unanimously affirmed the Judgment of the Supreme Court.