*YOUNG v. PRESTON.

If A. agree,

do certain

ERROR to the circuit court for the district of Columbia in an action of assumpsit, brought by Preston under seal, to against Young, upon a quantum meruit for work and la- work for B. bour.

and does part, but is pre

it

to contract;

maintain a

for the work

At the trial below, the defendant, Young, offered in vented by B. evidence a sealed agreement between the parties, and from finishing offered further evidence that the work and labour for according which this action was brought, were done in consequence A. cannot of that agreement; and prayed the court to instruct the quantum mejury that if, from the evidence, they should be of opinion ruit against B. that the said work and labour was done in consequence actually perof the sealed agreement, the action of assumpsit would formed, but not lie which instruction the court refused to give, evi- must sue upon dence having been offered to the jury that the plaintiff strument. was prevented from completing the work mentioned in the agreement by the defendant, who employed another person to finish it.

But the court instructed the jury that if, from the evidence, they should be of opinion that the plaintiff was prevented by the defendant from proceeding to complete the said work, according to the said agreement, in a reasonable time, then the plaintiff had a right to recover, in this form of action, from the defendant, as much money as the plaintiff deserved to have for the work done by him for the defendant, although the same was done in consequence of the said agreement, and although the whole work mentioned in the said agreement was not completed. To which refusal and instruction the defendant excepted; and the judgment below being against him, he brought his writ of error.

Upon the opening of the case, this court, without argument, reversed the judgment.

*On a subsequent day, C. Simms, one of the counsel for the defendant in error, not having been present at the

and who has been summoned and fails to attend as a witness in a civil cause.

But the court having intimated an the cause could not be assigned for other point.

VOL. IV.

opinion that the refusal to continue error, the counsel did not argue the

E e

the sealed in

* 240

Young

V.

Preston.

#241

opening of the case, was permitted by the court to cite authorities in support of the opinion of the court below, and cited the following: Towers v. Barrett, 1 T. R. 133. where it was decided that assumpsit for money had and received will lie to recover money paid on a contract which is put an end to, as where, either by the terms of the contract it is left in the plaintiff's power to rescind it by any act, and he does it; or where the defendant assents to its being rescinded. In that case, the counsel for the defendant admitted, that when the party has done any thing to preclude himself from going into the contract, then money had and received will lie. Buller, J. said, "The defendant left it in the power of the plaintiff to put an end to the contract. If the contract be open, the plaintiff's demand is not for the whole sum, but for damages arising out of that contract."

So in Giles v. Edwards, 7 T. R. 181. there was a special contract between the plaintiff and the defendant, which the defendant had prevented the plaintiff from completing. The court was clearly of opinion, that "as by the defendant's default the plaintiffs could not perform what they had undertaken to do, they had a right to put an end to the whole contract, and recover back the money they had paid under it." So here, Simms contended, that as the defendant had prevented the plaintiff from completing the contract, the plaintiff had a right to put an end to it. If he had paid money under the contract, he would have had a right to recover it back; but as instead of advancing money, he had done work and labour, which could not be recovered back in specie, he had a right to recover its value.

So in 1 Powell on Contracts, 417. "If he, who is benefited by another's fulfilling his contract or agreement, is the occasion why it is not carried into execution, the contract or agreement is thereby entirely dissolved, and the party bound discharged from his obligation."

But notwithstanding these authorities, the court adhered to their first impression, some of the judges saying, *that the plaintiff had a clear right of action upon the sealed instrument; he might aver in his declaration that he had, in part, performed the work, and was ready to do the rest, but was prevented by the defendant. And whenever a man may have an action on a sealed instrument, he is bound to resort to it.

Judgment reversed.

ROSE v. HIMELY.

set up under

THIS was an appeal from the sentence of the cir- If a claim be cuit court for the district of South Carolina, which re- the sentence versed that of the district judge, who awarded restitu- of condemnation, to Rose, the libellant, of certain goods, part of tion of a fo the cargo of the American schooner Sarah.

reign court, this court will

that court can

exercise the

which it has

ed; but of

risdiction, so

This vessel, after trading with the brigands, or rebels examine into the jurisdic of St. Domingo, at several of their ports, sailed from tion of such thence, with a cargo purchased there, for the United court; and if States; and had proceeded more than ten leagues from not, consistthe coast of St. Domingo, when she was arrested by ently with the a French privateer, on the 23d of February, 1804, carlaw of nations, ried into the Spanish port of Barracoa, in the island of jurisdiction Cuba; and there, with her cargo, sold by the captors, assumed, its on the 18th of March, 1804, before condemnation, but sentence is to under authority, as it was said, of a person who styled be disregardhimself agent of the government of St. Domingo, at St. their own juJago de Cuba. The greater part of the cargo was pur- fait dechased by Cott, the master of an American pends upon vessel called the Example, into which vessel the goods municipal were clandestinely transferred from the Sarah, in the courts of evenight time, and brought into the port of Charleston, in ry country are South Carolina, where they were followed by Rose, the judges. Evesupercargo of the Sarah, who filed a libel against them, ry sentence of in behalf of the former owners, complaining of the condemnation unlawful seizure on the high seas, and praying for re- tent court, storation of the goods: whereupon process was issued, having juris. and *the goods were arrested by the marshal, on the the subject 4th of May, 1804. No steps appear to have been ta- matter of its ken by the French captors, towards obtaining a con- conclusive as judgment, is demnation of the vessel, until time enough had elapsed to the title to for them to receive information of the proceedings claimed under the thing against the goods in this country. The forms of adju- it.

laws, the

the exclusive

by a compe

over

* 242 The prohibition, by France, of all trade with the revolted blacks of Santo Domingo, was an exercise of a municipal, not of a belligerent right; and seizures under that prohibition were only authorized within two leagues of the coasts of that island.

A seizure beyond the limits of the territorial jurisdiction, for breach of a municipal regulation, is not warranted by the law of nations; and such a seizure cannot give jurisdiction to the courts of the offended country; especially if the property seized be never carried within its territorial jurisdiction.

Quare, whether a French court can, consistently with the law of nations, and the treaty, condemn American property never carried into the dominions of France, and while lying in a port of the United States.

Rose

v.

Himely.

* 243

dication were begun in the tribunal of the first instance, at Santo Domingo, in July, 1804, and the condemnation was had before the middle of that month.

This condemnation purports to be made conformably to the first article of the arrete of the captain-general, (Ferrand,) of the 1st of March, 1804, which was issued six days subsequent to the seizure of the vessel.

This article was as follows: "The port of Santo Domingo is the only one of the colony of Santo Domingo, open to French and foreign commerce; consequently, every vessel anchored in the bays, coves and landing places of the coast occupied by the revolters, those destined for the ports in their possession, and coming out with or without cargoes; and, generally, every vessel sailing within the territorial extent of the island, (except between Cape Raphael, and the bay of Ocoa,) found at a less distance than two leagues from the coast, shall be arrested by the vessels of the state, and by privateers bearing our letters of marque, who shall conduct them, as much as possible, into the port of Santo Domingo, that the confiscation of the said vessels and cargoes may be pronounced."

On the 6th of September, 1806, no sentence of condemnation having been produced in evidence, the judge of the district court decreed restitution of the property to the libellant, from which sentence the other party appealed to the circuit court, and there produced the sentence of condemnation, by the tribunal of the first instance, at Santo Domingo. The circuit court reversed the sentence of the district court, and dismissed the libel.(a) *From this sentence, the libellant appealed to this court.

For the libellant, the case was argued by C. Lee, Harper, S. Chase, jun. Dallas, Rawvle, Ingersoll, and Drayton; and,

For the respondent, by Duponceau, E. Tilghman, and Martin.(b)

(a) The reasons of the circuit court are stated by Judge Johnson, in this sentence, see Appendix, note (C).

(b) This case was argued in connection with the case of Rose v. Groening, which was a libel for another part of the cargo of the Sarah, and with the case of La Font v. Bigelow, from Maryland, which was an action of replevin by the original owner of goods condemned by the tribunal

For the libellant, it was contended,

1. That this was not a seizure as prize of war, but as a forfeiture for violation of the municipal law of France; and,

2. That whether it were seized jure belli, or jure civili, it was not competent for the court, sitting at *Santo Domingo, to condemn the property, while it was in a neutral foreign port.

1st point.

This is not a case of prize of war, but of municipal forfeiture.

The tribunal of the first instance was a municipal court; and it is doubtful whether it had cognisance of

questions of prize of war. But if it had a general prize jurisdiction, it could not, consistently with our treaty with France, (Laws U. S. vol. 6. p. 34. art. 22.) condemn a prize not carried into a French port. The words of the article are, "it is further agreed that, in all cases, the established courts for prize causes, in the country to which the prizes may be conducted, shall alone take cognisance of them." Hence it is to be inferred, that as they could not consistently with the treaty, take cognisance of the case as prize of war, they themselves must have considered it as a mere seizure, for violation of a municipal regulation. It is characteristic of prize of war, that it is done with a

at Santo Domingo, under similar circumstances; and with the case of Hudson & Smith v. Guestier, also from Maryland, which was trover for the cargo of the Sea Flower, condemned upon similar grounds; and with the case of Palmer & Higgins v. Dutilgh, from Pennsylvania, which was replevin for the cargo of the brig Ceres, condemned under similar circumstances; and with the case of Pluyment v. The Brig Ceres, which was a libel in the district court of the United States at Philadelphia, for restoration of the vessel. These cases were all supposed to depend on the same questions, and by consent of counsel, with leave of the court, were argued as one cause. This accounts for the great number of the counsel employed, and for the great length of the argument, which consumed nine days.

Upon the opening of these cases, six judges being present, it appeared that three of the six judges had given opinions in the circuit court upon the principal points which were about to be argued, and that if each judge who had given an opinion, should withdraw from the bench, as had been customary heretofore, there would not remain a quorum to try the cause. It was thereupon agreed, by all the judges, that they would sit. Chase, Johnson, and Livingston, Justices, expressed themselves strongly against the practice of a judge's leaving the bench because he had decided the case in the court below. Washington, Justice, said he should not insist upon the practice, if it should be generally abandoned by the judges. The whole six judges (Todd, Justice, being absent) sat in the cause; so that the practice of retiring seems to be abandoned.

Rose

V.

Himely.

*244