
    Bingham, Plaintiff in Err. versus Cabbot et al.
    
    THIS was a writ of error to remove the proceedings from the Circuit Court, for the district of Massachusetts; and on the return of the reccord, it appeared, that the defendants in error, being joint owners of the armed ship called the Pilgrim, formerly commanded by Hugh Hill, had instituted an action on the case against the Plaintiff in error, in the Circuit Court for the district of, Massachusetts, of June Term, 1794. in which a declaration was filed, containing the following counts:—1st Count. That the Plaintiff in, Error, at St. Pierre, on the 8th of May, 1779, was indebted to the Defendants in Error in the sum of 16,909 dollars and 69 cents, for goods sold and delivered, according to the account annexed; which account was in there words:—" William Bingham, Esq. to the owners of the privateer ship Pilgrim, commanded in the late war by Hugh Hill, on her first cruise, Dr.
    1779, 8th May.
    
    To 1000 barrels of flour he received at Martinique, or from on board the privateer Hope, Ole Heilm master, captured by the ship Pilgrim, and carried into Martinique, previous to 8th May, 1779, at 140 livres currency per barrel, - livres, 140,000 which sum in the currency of the United States, is - - - Interest to 9th January, 1793, -
    16,969 69 13,915 84
    Dolls. 30,885 53”
    2d Count. Quantum valebat for 1000 barrels of flour, with an averment that they are worth 16,969 dollars 69 cents. 3d Count. Money had and received by the plaintiff in error, to the use of the defendant in error. 4th Count. That the plaintiff in error was bailiff of the same flour, to sell and account for it to the defendants in error; with an averment that the flour had been long fold but never accounted for. 5th Count. Quantum valebat for 500 barrels of the like flour, with an averment that it was worth 10,000 dollars. 6th. Count. Quantum valebat for one undivided moiety of 1000 barrels of flour, with an averment that it was worth 10,000 dollars. The plea of non assumpsit was entered to this declaration; and thereupon issue was joined.
    The material facts attached to the cause were of the following import:—The Pilgrim, being on a cruise off the Rock of Lisbon, on the 19th of November, 1778, captured a brig called the Hope, Ole Heilm commander, and put on board William Carlton, as a prize-master, who carried the supposed prize, on the 15th January, 1779, into Martinique, where the plaintiff in error resided as a public agent of the United States. On examination it appeared that the prize was Danish property, and that her cargo belonged to Portuguese merchants; both those nations being at peace with France and America; but, there being no courts of admiralty established at that time in Martinique, competent to decide on the validity of captures as prize, made by American vessels, and the neutral captain after a long detention, on account of repairs, being solicitous to depart, the Marquis de Bouille, governor of the Island (to whom authority was delegated by the Constitution of the French government, to supply the deficient parts of the civil polity) made the following order, dated the 2d October, 1779, which was registered in the admiralty office of the borough of St. Pierre. “Francis Claude Amour, Marquis de Bouille, Marshal de Camp, of the King’s armies, commander general of the French troops, militia, fortifications, and artillery of the French Windward Islands; and governor and lieutenant general of the islands of Martinique and Dominique; We do certify, that the American privateer, named the Pilgrim, having conducted into the island of Martinique, a Danish brigantine, loaded on account of the subjects of His Most Faithful Majesty, as far as appeared to us, and not on account of the subjects of the King of England. We have ordered that the said cargo in litigation should be sold, and the freight paid to the captain of the Danish brig, out of the cargo under the care and direction of William Bingham, agent off Congress: And the nett proceeds, of said cargo, deduction made of all other charges, should remain in the hands of said Bingham, to deliver it to whomsoever it may appertain; agreeable to the judgment and orders of Congress.
    (Signed) BOUILLE, &c.”
    Before, however, the Marquis de Bouille’s orders were issued, Mr. Bingham had taken the cargo of the Hope into his custody; and on the 2d of February, 1779, addressed a letter to the Commercial Committee of Congress, in which, after mentioning the capture and arrival of the prize, he states, “that, upon receipt of the papers (of which he then transmitted copies) found on board, he laid them before the judge of the court of Admiralty at Martinique, who was, of opinion that neither the vessel nor cargo could with any propriety be molested on the high seas, by either American or French armed vessels. But (Mr. Bingham adds) that as this vessel is incapable of proceed ing on an European voyage, without great repairs, which will naturally subject her to a considerable detention; and asher cargo consists of a perishable commodity, he shall dispose of it at Martinique, pay the captain his freight, what damages he may be entitled to, and shall give him permission to take his departure. Indeed the General insists that the cargo should be disposed of, as the Island is in great want of flour; and as the sales will be more advantageous to the owners here, it may make the misfortune less heavy on the concerned. The proceeds, after paying the necessary expences of the vessel, shall be placed (continues Mr. Bingham) to the credit of the Commercial Committee of Congress, to assist in paying the advances which he had made at Martinique on the public account: and he is the more inclined to convert it to this use, as he is persuaded, that Congress will not have to reimburse it, until the claim of the real owner in Europe is made clear and manifest. It appeared by an account of sales, signed by Mr. Bingham on the 8th of May, 1779, that the flour had been sold, at different periods, from the 21st of January to the 8th of May, 1779, and that the nett proceeds, which he placed“ to the credit of the Owners of prize flour,” amounted to livres 107,621 14 6.
    The owners of the Pilgrim being dissatisfied with the proceedings that had taken place in relation to the cargo of the Hope, instituted in the Common Pleas of Suffolk county, Massachusetts, an action of Trover for the 1000 barrels of flour, in the name of William Carlton, the prize-master, against Mr. Bingham; and attached Mr. Bingham’s property, in the hands of Mr. Thomas Russel, of Boston, to answer the judgment of the court. To this action (which was brought to October Term, 1779) the defendant pleaded not guilty, issue was there upon joined, and judgment was rendered for the defendant. An appeal was brought to the Supreme Judicial Court of Massachusetts, at February Term, 1781, by William Carlton; it was tried on the 17th February, 1784; a verdict was given for Mr. Bingham, the defendant; and judgment was entered accordingly. When this action at law was commenced, Mr. Bingham, by a letter dated at Martinique, the 6th of October, 1779, and addressed to the Commercial Committee of Congress, remonstrated against the proceeding, as he had acted bona fide, in his official character; and Congress passed the following resolutions upon the subject:—“November 30, 1779. “Resolved, That Mr. Bingham’s letter of the 6th of October last, with the papers enclosed therein, and marked No. 1, 2, 3, 4, together with a certified copy of his appointment to the place of Continental Agent, be transmitted by the President to the legislature of the State of Massachusetts-Bay, with the following letter:
    “ Gentlemen,
    
    “ I am directed by Congress to transmit to you the enclosed papers from Mr. Bingham. They contain an account of his proceedings relative to a vessel, said to be Danish property, captured by the sloop Pilgrim, and carried into Martinique, about which, as he says, a suit is now commenced against him in your Superior Court. Upon a full examination of the papers, you will judge of the measures, which ought to be adopted to prevent, on the one hand, injustice to individuals, and on the other, the embarrassment of agents, who are obliged to conform to the will of the ruling powers at the place of their residence. As courts are now instituted at Martinique for the trial of such causes, Congress submit to you whether it would not be adviseable to stop the suit already commenced, till judgment is obtained upon the principal question; after which it will be in Mr. Bingham's power to discharge himself, by delivering to the true owners the property placed in his hands for their use. If you should be of a contrary opinion, they request you to furnish Mr. Bingham's agent with the enclosed papers. I am, &c.”
    -The Legislature of Massachucetts taking no order on this application, Congress again entered upon the subjeft, and on the 20 th June, 1780, “ Resolved, That the General of Martinique, in ordering the cargo of the brig Hope to be fold, and the money to be depofited in the hands of Mr. W. Bingham,. till the legality of the capture could be proved, (no courts being at that time instituted for the determining of such captures in that island,) shewed the strictest attention to the rights of the claimants, and the higheft respect to the opinion of Congress:
    “ That Mr. W. Bingham, in receiving the same, only acted in obedience to the commands of the General of Martinique, and in conformity with his duty as agent for the United States.
    
    “ Resolved, That Congress will desray all the expences that Mr. William Bingham may be put to by reason of the suits now depending, or which may hereafter be brought against him in the State of Massachusetts Bay, on account of the brig Hope, or her cargo, claimed as prize by the owners, master and mariners of the private ship of war called the Pilgrim.
    “ And whereas the goods of the said William Bingham, to a very considerable amount, are attached in the said suits now depending in the hands of the factors of the said W. Bingham, to his great injury:
    
      Resolved,
    
    
      “ Resolved, That the General Court of the State of Massachusetts Bay, be requested to discharge the property of the said W. Bingham from the said attachment: Congress hereby pledging themselves to pay all such sums of money, with costs of suit, as may be recovered against the said W. Bingham, in either or both the above actions.”
    “ Resolved, That the Navy Council at Boston, be directed to give such security, in the name of the United States, as the court may require, and to direct the counsel now employed by Mr. Bingham, in the defence of the said actions.
    Such were the circumstances of the cause now under confideration when it came to trial in the Circuit Court, before Justice CUSHING, an associate Judge of the Supreme Court alone. Mr. Bingham’s counsel offered to give the following documents in evidence to the jury: 1. Office copies certified under the hand and seal of the Secretary of State, of the papers found on board the Hope, of depositions relating to the capture, taken officially before Mr. Bingham, as a public agent; of Mr. Bingham’s letter of the 2d of February, 1779, and other subsequent correspondence and depositions in relation to the capture, addressed to the commercial committee of Congress; and of the Marquis de Bouille’s order. These documents were stitched together, and were included in one certificate from the Secretary of State. 2. The account Sales of the flour at Martinique, dated the 8th of May, 1779, and the account Sales of the property which had been attached in the action of Trover, brought by Carlton v. Bingham. 3. The record in the Inferior and Superior Courts of Massachusetts, in the case of Carlton v. Bingham. 4. The Resolutions of Congress, passed respectively on the 3d Nov. 1779, and the 20th June, 1780. But the Court rejected all the evidence; (though it would seem from the record, that a part of it must have been admitted in the course of the Plaintiff’s proofs) and a Bill of Exceptions was tendered and allowed, in the following words:
    “And the said William Bingham, being now here in Court, by James Sullivan and Christopher Gore, Efquires, his attornies, the issue joined in the same case, and,a jury on the same duly and legally impannelled, prays leave to file a Bill of Exceptions to the determination of the said Court here had on the evidence, which by the said Bingham is offered in this case, and by which determination the said evidence is excluded, and the said Bingham is denied the advantage of giving the same to the jury in the same case, viz. The several copies attested by Tho mas Jefferson, and which are hereunto annexed, and numbered from one to eighteen inclusively; and also three other papers, numbered 23, 24, 25 ; all which papers had a tendency to prove, that no interest ought to be allowed by the jury, on the sum for which the Plaintiffs declare, in their third count, or damages, for the detention of the money therein mentioned and declared on ; and by the exclusion whereof, the said Bingham does sustain manifest injury and wrong, as he conceives. And the said Bingham further files his exception to the determination of the same Court, by which the papers numbered from 27 to 36, inclusively, were excluded ; and which papers contain a complete record of the Supreme Judicial Court of the commonwealth of Massachusetts, wherein William Carlton, who had been, as the said Bingham avers, and as appears by the evidence in the case, in possession of the same flour declared on in the said third count in the plaintiff’s declaration, had sued in an action of trover for the same ; and by which record it appears that such proceedings were had in the same Court, as would fully shew, as the said Bingham conceives, that the said Plaintiffs had no legal right to change the same action, after the judgment in the same record specified, into an action of assumpsit, or as principals to implead the said Bingham, again after the cause of action had been tried, adjudged, and determined, in an action of Trover, wherein the special Bailiffs of the Plaintiffs, as the said Bingham avers, in this suit had so impleaded the said Bingham to verdict and judgment in the same cause, and for the same cause of action. And that the determination to reject the same papers, is wrong—because that if the same papers are admitted to be given to the jury, the evidence therein contained will have a legal tendency to lessen the damages, if not wholly defeat the action of the Plaintiffs.
    “ And the said Bingham further files in this his Bill of Exceptions, that the Court did reject and refuse to have read to the jury in the trial as evidence, a Resolution of the Congress of the United States of America, of the thirteenth of November, 1779; also another Resolution of the same Congress of the twentieth of June, 1780, both which were concerning the subject matter of the suit.
    “Wherefore, that justice,by due process of law, may be done, in this, case, the said Bingham, by the undersigned his Counsel, prays the Court here, that this his Bill of Exceptions may be filed and certified as the law directs.
    JA. SULLIVAN,
    C. GORE.
    " June 16, 1794. Allowed to be filed per
    Wm. CUSHING, Judge of said Circuit Court.”
    
      A verdict was then given for the Defendant in error, upon the third count, for money had and received, damages 29,780 dollars 16 cents, and for the Plaintiff in error on all the other counts: and, thereupon, judgment was rendered for damages and costs. A motion was made on behalf of the Plaintiff in error, for a new trial, on two grounds I. Excessive damages: and 2. A misdirection in the Judge's charge to the jury ; the Judge having directed the jury, “ that the law was such, that, on the evidence offered in the cause, the Plaintiffs ought to recover; whereas the evidence given was such as clearly proved, that the flour mentioned in the third count, was the joint property of the Plaintiffs below, as they were owners of the ship Pilgrim, and of the masters, mariners and company on board the same ship ; to wit. of the Plaintiffs below, and Hugh Hill, and others, jointly : by which evidence, if any contract was proved in the case, it was a contract between the said Bingham with the Plaintiffs and divers other persons jointly, who are not Plaintiffs, or mentioned in the writ, and who are now alive within the United States.” But a new trial was refused.
    On the return of the record, (to which were annexed several depositions and papers produced in the court below, as well as the papers referred to in the Bill of Exceptions) the following errors were assigned ; the Defendant in error pleaded in nullo est erratum ; and issue was thereupon joined :
    1. That judgment had been given for the Plaintiff, instead of the Defendant below, on the 3d Count.
    2. That the Circuit Court, proceeding as a Court of Common Law, in an action on the case, for money had and received, &c. had no jurisdiction of the cause; the question, as it appears on the record, being a question of prize, or no prize, or wholly dependent thereon ; and, as such, it was, exclusively of Admiralty jurisdiction.
    3. That the evidence referred to in the Bill of Exceptions, ought not to have been rejected on the trial of the cause.
    The argument which) commenced on the 15th of February, 1795) was conducted by Bradford (Attorney-General of the United States) and Lewis, for the Plaintiff in error ; and by Ingersoll, Dexter, and E. Tilghman, for the Defendant in error.
    THE COURT desiring the counsel, in the first instance, to discuss the question of jurisdiction, the case presents itself under the following general heads. I. Exceptions to the jurisdiction. II. Exceptions to the record.
    I. The Exceptions to the jurisdiction.
    For the Plaintiff in Error.
    
    Thefubjedt matter of the action is prize, or no prize; and it is, with all its confluences, exclufively of Admiralty jurifdidlion. The adli.on is not tref-pafs,. for a tort in-taking the goods; but it is an a<Sion of Af-fumpfit; and the plaintiffs below cannot make out a right to recover from the defendant, who is charged as ■ receiver and agent, unlefs they firft prove the veffel to be a prize. They ptuft ihew to wnom the property belonged; and if the court adjudge, that the proceeds of the fales was money had and received to the ufe of the plaintiff; it is, in effeft, .pronouncing a fentence, that the veffel (which has not even yet been, condemned) was a prize. Carth. 474. Doug. 596. (in not.) 3 T. Rep. 344. 4 T. Rep. 38a. 394. x Dali. Rep. 221. a Dali. Rep.
    
    For the Defendant in Error.
    
    It is true, as a general proposition, proposition, that all all prize causes, and their incidents, are Admiralty jurisdiction; but there are some limitations to the operation of the rule. In the present case, there is, in fact, no question of prize; but even in cases, where that question is naturally involved, the courts of common law have, incidentally, tried and decided it; as in cases upon policies of insurance and random. 3 Burr. 1734. Doug. 579. 580. 2 Lev. 25. 1 Vent. 173. 4 Inst. 138. 1 Raym. 271, 3 Woodes. 450. 1. 2. 3. 2 Saund. 259 2 Burr. 683. 693. 1 Wils. 229. Doug. 310. to 314. 4 T. Rep. 393. 1 H. Bl. 522. In a variety of cases, likewise, the subject may be traced to an original question of prize, and yet the Admiralty can take no cognizance of it. Suppose, for instance, a captor sells his prize; he may, surely, bring an action at common law for the purchase money : or, if a Taylor should detain a man’s coat, it will be no answer to an action of Trover, that the cloth was taken, in a prize. Indeed, it may be stated, generally, that whenever the question of prize is at rest, the admiralty jurisdiction ceases. 4 T. Rep. 432. 2 Dall. Rep. 174, 1 Wils. 211. 4 T. Rep. 393. Arg. 3 T. Rep. 342. 8. 1 Burr. 8. 526. Doug. 572 to 591. The exclusive jurisdiction of the Admiralty does not, then, depend on the property having been originally taken as prize; but on the nature of the controversy, arising on the high seas, affecting, usually, the rights and interests of different States; and, consequently, depending on principles, which ought to be decided by the law of nations, and not by the municipal law of either country. It is not contended, however, that in every cause which appears to be between citizen and citizen, the courts of common law are always to decide; for, if the general nature of the controversy may involve foreign subject, and foreign rights, the Admiralty is the regular and appropriate tribunal. The position extends no further, than to those cases, which commonly occur on land, between citizen and citizen (though originating in a capture at sea) and with respect to which the Admiralty has not any, much less an exclusive, jurisdiction. Such is the cause now litigated. It is a transaction on land between the captors of the vessel, and their agent. The original owners are not, and could not be parties to the suit; and their rights cannot be set up to justify the Plaintiff in error, who does not claim under them, nor act by their authority. Then, it is to be observed, that there is nothing upon the record to shew that the controversy grew out of a prize cause. Though the declaration states the Plaintiffs to be owners of the privateer, it does not state that the property in dispute was captured by her; and the verdict is only upon the third count in the declaration (the count for money had and received) and all the other counts, which refer to the capture, are put, by the finding of the jury, entirely out of the case. The third Count does not refer to the account annexed to the declaration ; and, therefore, that account cannot be taken into view, to shew that the question depends on a capture as prize. The depositions and papers arbitrarily connected with the record by the Clerk below (and which do not comprise all the evidence given on the trial) are not legally a part of the record ; they, cannot be resorted to, in order to ascertain the nature of the controversy; but must be rejected as surplusage: And this court cannot look at the statement in the bill of exceptions, to discover the complexion of the cause; for, the only point to be decided in that respect, is—whether the court below was, or was not, right, in rejecting the evidence that was offered. Bull. N. P. 315. 3 Burr. 1745 Besides, this court cannot reverse the judgment for error in fact; (1 Vol. Swift’s Edit. s. 22. p. 62.) and, therefore, they cannot, in the present case, any more than in the case of a special verdict, infer a fact, or take notice of any fact resulting from the depositions and papers annexed to the record, which the jury has not expressly found.* 3 Bl. Com. 407. The proof on the third count, may have been of money received to the plaintiff use, independent of the account annexed, or of any question relating to the prize; and, as the court will presume every thing, that they reasonably and lawfully, can, in support of a verdict and judgment, the sum given in damages will be taken to reach the justice of the case. 1 Wils. 1.255. 3 Burr. 1786. 1 Stra.. 608.9 Vin. Abr. 598. 10 Vin. Abr. 1.pl. 1. But, surely, it is now too late to make the exception to the jurisdiction. 4 Burr. 2037. The defendant below ought to have brought the question forward by way of plea ; or, at least, if it appeared on the, evidence, be should have required the opinion of the court in the charge to the jury; but whenever evidence is allowed to go to a jury, without exception, the verdict is conclusive ; and the evidence can never afterwards be exa
    mined on a writ of error. 2 Lutw. 1566. Holt. 301. So what is pleadable in abatment, is not assignable as error. 4 Burr. 2037. Taking, therefore, a full and candid view of the case, as it appears upon what may legally be denominated the record, it is not a case of prize, but a case of principal and factor. The plaintiff in error obtained possession of the flour under the authority, and as the agent, of the defendants in error: he cannot dispute that authority; the flour, in his possession, belonged to his principal; and when it was fold, the money was the money of his principal. This doctrine does not exclude the idea of an investigation of the lawfulness of the capture at a proper time, between proper parties, and before a proper tribunal. If a competent Court of Admiralty had been established at Martinique, an immediate proceeding there, would have obviated every difficulty ; and it ought not to be urged by the plaintiff in error, that the captors have never since proceeded to condemn the vessel, as it was by his act they were deprived of the ship’s papers and other means for doing so. But even an American Court of Admiralty may take cognizance of the question of prize; and, in the hands of the captors, the money would always be liable to the claims of the captured. To maintain the prevent action, however, a special property is sufficient; and the captors have a special property before the condemnation. There are, indeed, many instances of prizes being brought into port and fold, before they were condemned; upon the general principle, that the property is vested, in the captor, whenever the original owner has lost the fpes recuperandi. But when the plaintiff in error sold the prize goods without any adjudication, at a place where no Court of Admiralty existed, the defendants in error had no remedy against him, but at common law. It does not even appear on the record, that the plaintiff in error took possession of the goods, by order of the Marquis de Bouille; but, at all events, it is clear, that the Marquis had no right to examine the validity of the prize ; while, on the other hand, the prize master had a right, under the 17th article of the treaty with France, to bring the prize from Martinique to America.
    
    For the Plaintiff'in error, in reply.
    There is no magic in the word “ record,” to preclude the court from exercising their senses and judgment, upon the inspection and construction of an instrument, which the judge and clerk of the Circuit Court, have officially certified to be an exemplification of all the proceedings in the cause. With what justice can it be said, that the papers forming a part of this exemplification, have no relation to the controversy ? Are the commission of the privateer, the account sales of the prize goods, and the order of the Marquis de Bouille, entirely unconnected with the demand of the plaintiffs, and the answer of the defendant? The great, the only point in controversy, was—whether, under every circumstance of the case, Mr. Bingham was responsible to the owners of the privateer, for certain goods, which the privateer had captured as prize ? The declaration in every count claims the same sum that appears in the account sales, as the proceeds of the prize goods and the reasons urged on the motion for a new trial, shew that the object of the third count, on which the verdict had been given, was the same as the object of the other counts, to which alone, it has been said, the account sales apply. But, it is also contended, that the court can infer nothing from all these documents; since they "are to be considered, not as facts, but only as the evidence of facts, proper for a jury, exclusively, to decide upon.” The truth, however, is, that, it is the peculiar province of the court to construe deeds and papers; and to declare their legal operation. It is, surely, extravagant to assert, that the court are incompetent to determine the meaning and effect of the privateer’s commission, or the Marquis de Bouille’s order. If it satisfactorily appears, that all the proceedings and facts, which belong to the cause, have been returned, whether the return is according to the technical precision of Westminster Hall, or the informal practice of the courts of Massachusetts, being judicially here, it must be noticed in all its parts by the court. The only general question, therefore, upon the point of jurisdiction, is—whether from all the facts, spread throughout the proceedings of the Circuit Court, the cause of action sufficiently appears ? And a summary of the evidence on the record will demonstrate that it is a prize cause. 1. The Plaintiffs sue as owners of the privateer Pilgrim. This raises a legal presumption that their whole demand is in that character ; and that it must relate to some transaction of the privateer. 2. The account annexed to the declaration, corroborates and confirms that presumption. It states expressly, that the suit is brought to recover the proceeds of flour captured by the Pilgrim ; and whether it is usual, or not, to annex such an account to an action simply for money had and received, in the present instance it was manifestly intended to exhibit the whole of the Plaintiff’s claim. 3. The commission of this privateer, and the papers taken on board the prize, are the very exhibits to be produced on a libel for condemnation ; and prove, unequivocally, that the cause is of Admiralty jurisdiction. 4th. The order of the Marquis de Bouille, which was registered in the Admiralty of Martinique, shews the tenure by which Mr. Bingham held the property; that is, as a deposit of the proceeds of goods taken as prize, on the high seas. Hence, from the commencement to the close of the transaction, as it appears on the return to the writ of error, nothing is to be traced as the cause of action, but a capture as prize and its consquences. But, in order to escape from the pressure of this proof, the most extraordinary subtersuges are employed; and the principle, that the question of prize belongs exclusively to the Admiralty jurisdiction, is t to refined upon as to be rendered insenfible and illusory. Sometimes, it is urged, that the Plaintiff in error has tortiously possesed himself of the property of the Defendants ; sometimes, in direct contradiction to that idea, he is considered as their agent, or factor ; and, finally, pursuing a distinct course from either, it has been said, that there are neutrals concerned, who alone are entitled to dispute the validity of the prize, with the Defendants in error. The ground taken by the Plaintiff in error is, on the other hand, clear, consistent, and simple ;—it is merely this, that the Defendant below received the property from the Marq. de Bouille, as his agent, in the first instance, in trust, “ to be delivered to whomoever it may appertain, agreeably to the judgment of Congress.”. The trust, therefore, constituted Mr. Bingham the eventual agent of those persons only to whom the property really belonged of the Defendants in error, if they could shew it was lawful prize ; but if not, the legal promise resulted to the original owners. As far as the Marquis de Bouille could, he had determined the property to be neutral; and every thing that is now said by the Defendants in error, might be said with, at least equal force, by the neutral claimants, to render Mr. Bingham responsible to them. ’Till, therefore, the validity of the prize is established, the object of his trust cannot be ascertained ; and the validity of the prize can only be established in a Court of Admiralty. Thus, the fallacy of the opposite argument is exposed, the moment it is considered, that there was no express promise of the Plaintiff in error to account to the Defendants ; for, if such a promise had been made, the question of prize would be merged in the assumpsit; and it is conceded, that an action at common law might have been maintained (as in Henderson v. Clarkson, 2 Dall. Rep. p. 168,9,174.) unless a neutral claimant interposed, and forbade the payment. The case of Wemys versus Linzee, et al. Doug. 310, has been considerably shaken by the case of Home versus Camden, et al. 1 H. Bl. 476 ; where a court of Admiralty was finally considered as the proper jurisdiction for effectuating an Admiralty sentence; but even the former cafe, properly taken, affords no support to the opposite doctrine; for, it proceeded entirely upon a construction of the prize statute of England. 1 H. Bl. 522. The prize agent is created under that statute ; he is not compellable to make distribution till the prize has been condemned, (when there is a vested right in the captors 1 Wils. 211) and all the circumstances shew, that there had been a condemnation before the action was brought, though the fact is not mentioned in the Report. On a writ of error, in the case of Home versus Camden et al. 4 T. Rep. 382. the judgment was reversed; because the prize act did not necessarily take away the jurisdiction of the Admiralty, while it was the foundation of all the common law jurisdiction upon the subject. In arguing that writ of error, the counsel urged, that “ in no instance can any adverse action be maintained at law for the proceeds of prize, until the demand has been liquidated by the sentence of the proper court of jurisdiction : " 4 T. Rep. 385. And Judge SHIPPEN, in a late important decision (Ross et al. Exo’rs. vs. Rittenhouse, 2 Dall. Rep. p. 160.) reasons upon, and affirms, the same proposition. Nor is it material, whether neutrals and foreigners are concerned, or not; for, it is the nature of the question, a question of prize, and not the character of the parties to the controversy, that establishes the Admiralty jurisdiction. But even on this point, it is unfortunate, for the opposite position, that all the cases cited (Le Caux v. Eden, Lindo v. Rodney, Rous v. Hassard) are cases between subjects of the same sovereign. Doug. 587. But, it has been, likewise urged, that it is now too late to except, to the jurisdiction of the Circuit Court: to which, it is answered, that the question, could not be made, on the count for money had and received, till the nature and evidence of the demand were exhibited, nor was it necessary to require the opinion of the judge in his charge to the jury; since, a defect of jurisdiction must always be noticed, whenever it appears in the proceedings.
    On the 27th of February, the Court delivered their opinion to the following effect.
    Patterson, Justice.
    
    Considering, as I do, that all the papers transmitted from the Circuit Court, upon a return to the writ of error, form a part of the record in this cause, I am clearly of opinion, that the subject matter of the controversy, is fully and exclusively of Admiralty jurisdiction.
    Iredell, Justice.
    
    I find it difficult, to form an opinion on the question of jurisdiction, at this stage of the cause. I concur in thinking, however, that all the papers, which accompany the record, should be considered as a part of it; and, in relation to the original suit, it appears to me, that on the evidence exhibited by Mr. Bingham, to shew that he acted under the orders of the Marquis de Bouille, the Judge should have charged, and the jury should have found, that he was not responsible to the plaintiffs.
    But, still, I am not ready at this moment to decide, that the Circuit Court had no jurisdiction. Suppose the Plaintiffs below had expressly stated in their declaration, that their cause of action was a capture as prize ; the court would, probably, have directed a nonsuit ;and yet, if the Plaintiffs had persisted in answering when called, the jury must have given a verdict. Suppose, again, that the controversy had appeared from the Defendant’s evidence to turn entirely upon the question of prize, the court could not, I conceive (though I speak hire with great diffidence) direct the Plaintiffs to be nonsuited, merely on the Defendant’s evidence; and, unless a juror had been withdrawn by consent, a verdict must, also, have been given in this event. It will not be sufficient to remark, that the court might charge the jury io find for the Defendant; because, though the jury will generally, respect the sentiments of the court on points of law, they are not bound to deliver a verdict conformably to them. From there, and other considerations, I do not find myself at liberty to decide against the jurisdiction of the Circuit Court ; though, I repeat, that the jury ought to have been let in to give a verdict in favor of the Defendant.
    Wilson, Justice.
    From the proceedings laid before the Court, it appears clearly to my mind, that the question, on which the cause must be decided, is exclusively of Admiralty jurisdiction.
    Cushing, Justice.
    
    It does not appear to me, from any part of the record, that the Circuit Court had not jurisdiction on the third Count in the declaration. The papers and depositions that have been transmitted, were, no doubt, produced upon the trial; and, I agree, that they ought to be regarded as a part of the record. But we are not bound to receive for truth, every thing which they alledge; nor, indeed, can we give any of their statements the validity and force of a fact; since, they only amount to evidence; and it is the peculiar and exclusive province of the jury to infer facts from the evidence.
    That the court had not jurisdiction on those Counts, which seem to refer to a question of prize, is no reason for excluding a jurisdiction upon the Count, which has no such reference. The contract might be of a different nature; and the parol testimony (which does not appear, in any shape, on the record) might have supported it.
    The Court, being thus equally divided in their opinions, on the exception to the jurisdiction, directed the Counsel to proceed to the discussion of
    II. The Exceptions to the Record.
    For the Plaintiff in Error.
    
    The exceptions to the record may be classed in the manner:—1ft. That there was not a court competent to try the cause, and render judgment therein. It appears by the memorandum in the margin, of the record, that only one judge sat on the trial and decision, though the District Judge was actually present; whereas the act of Congress requires two judges to constitute a Circuit Court. I Vol. Swift’s Edit. s.4 p. 50. 2 Vol. s. 1. p. 225. 6. except in certain specific cases, where the latter act empowers one judge of the Supreme Court to hold the Circuit Court alone. But as the general constitution of the court requires two judges, and two judges were actually present, the reason for one only sitting on the cause, should appear on the record to be such as the law allows.-2d. That the action is brought for money had and received, &c; and if any such action would lie, all who are interested must join in bringing it; whereas there were several other joint owners of the privateer’s prizes (the captors) who are not parties to the suit.Journ. of Cong. 2 Vol. p. 107. In trespass this exception must be pleaded in abatement; but in assumpsit it may be taken advantage of at the trial. Bull. N. P. 34. 15a. 2 , Stra. 820. Gilb. L. E. 106. In the present case, the Plaintiffs waved all tort; and whatever promise the law raised, was a promise to all interested in the property, or its proceeds; which included the mariners, as well as the owners of the privateer. But even if the action could be maintained by the owners of the privateer only; yet, the third Count does not state the promise to be to all the owners. A person now dead, was a joint owner; but the promise is stated to be made to John Cablot, the surviving partner, and pot to J. & A. Cabbot, in the life time of A. &c.—3d. That a variety of papers and depositions offered in evidence by the Plaintiff in error (and some of which had actually been given in evidence in behalf of the Defendant in error) together with certain resolutions of Congress, and the exemplification of the record in the former suit of Carlton and Bingham, had been rejected; and if any one of them was improperly rejected, the judgment below must be reversed. The objection to admit those documents, must rest, either upon the form of authentication, or upon the nature of their contents. Those which had been officially deposited in the Secretary of State’s Office, were certified in the form prescribed by the act of Congress ; 1 Vol. p. 43,s. 5; the record of the action of Carlton and Bingham, was an exemplification under the seal of the proper court; the Resolutions of Congress were formally extracted and certified from the Journals.; and the whole evidently related to the subject in controversy. Mr. Bingham was a mere stakeholder ; and an indemnity, at least, should have been tendered, before the property was taken from him. But whenever the question of damages arose, it was material to shew that he had acted throughout the business with fidelity, as a public agent, with the approbation of Congress, and in conformity to the trust reposed in him by the Marquis de Bouille, which did not allow him to pay over the money, till a right to it was established by deciding the question of prize. He could only, therefore, defend himself by shewing all the correspondence and proceedings as they occurred. In all mercantile cases, indeed, the correspondence of an agent is admitted to shew the real complexion of the transaction ; and this is, certainly, the first instance, in which a court has refused to allow the acts, or ordinances, of Congress to be read in evidence. With respect to the record of Carlton versus Bingham, it might not, perhaps, be regular to give it in evidence as a bar to the subsequent a action, unless it was pleaded; but, on the present occasion, it was only offered to shew, that other persons had sued for the same thing ; that Mr. Bingham, was, in fact, a mere stakeholder; and that, therefore, he ought not to deliver the property to any one till the legal ownership was established, nor be compelled to pay damages, or interest, for the detention, whoever might be the owner. A verdict in another cause may be given in evidence, though the parties are not the same, if the defendant was bailiss, or agent, of the party now suing. Gilb. 35. So a common carrier may maintain trover for the Principal, or owner, of the goods ; and a verdict in that action may be given in evidence, as conclusive against the Principal, in an action brought by him against the carrier. 2 Espinasse, 335. Bull. N. P. 33.
    
    For the Defendants in Error.
    
    It must be premised, that the bill of exceptions, is not fairly drawn, that the bill of exceptions, is not fairly drawn, since it omits to state the evidence on behalf of the Plaintiffs below, and, therefore, does not bring the points in the cause fully before the court. On a writ of error, however, facts are not to be considered ; 3 Bl. Com. 407. and from the statement in a bill of exceptions the court will infer nothing. Bull. N. P. 316. a T. Rep. 55. 125. But to proceed to the exceptions in their order.
    
      1st. Exception. The court was constituted, agreeably to the provisions of the acts of Congress. It is stated on the record that the District Judge did not fit in the cause; whether he was interested, or not, is a fact; and, from his not fitting, the court will presume that he was interested. 1 Stra. 129.
    
      
       In the Caption, indeed, of the record, Justice Lowell, the District Judge, ie named as present; but it is contradicted by a special entry in the margin, in these words;—" N. D. Judge Lowell did not lit in this cause.
    
    
      
       Wilson, fuftice. The bill of exceptions ftdtes the evidence offered and rejeíted : and it forms a part of the record. Beiides, this is a queftion of jurifdiction": Jiind was not jurifdiction as much exerciied in relation to the counts, which were difpofed of in favor of the defendant below, as in relation to the count, which was difpofed of, in favor of the plaintiffs ? • •
      Patterson, jujiice. Is it contended, that the account annexed to the declaration does not fupport the .third count, on which the verdict is given ; and that we cannot take notice of it ?
      
        £>exter, fir tie Defendant in Error. The bill of exceptions does not include all the interpolated evidence, and refers to evidence not tranf-mitted: It does not Hate what was given in evidence, but only what was rejected. With refpect to the account annexed, it is only coniidered as making a part of the record, in relation to thofe counts of the declara* tion which refer to it ; and all thofe counts are put out of the cafe by the finding of the jury. The third count does not refer" o it ; and, indeed, jf there had only been afingle count for, money had and received, the account would not have been annexed, agreeably to the practice in the courts of MaJJdchufitts
      
      Patterson, Jujiice,r WJhat is to be regarded as the record, feems to be a preliminary point" material to be fettled; and‘we muff either adopt the peculiar practice of MaJJachnfitts, or purfue the general practice of the common'lawr.
      
        Dexter. It is the practice in yjaffadufitts, to accompany an exemplification with a}]-the’written evidence-and papers; but the doings of the parties, and of the court, are alone to be taken as conftituting the record. The-oral teftimony cannot he tranfmi-tted ; and yet that may be more effential to the iflue, than what appears in writing,
      Bradford, fir the Plaintiff in Error. The facts muft be coniidered as they appear upon the whole record ; and by the exhibit of the plaintiff's them- . felvés, annexed to the declaration, -it appears to be a queftion of prize.
      Cushino, Jujlire. There was other evidence’(fome oi'upafil) given on the trial, bejidps what now appears on the record. If, then, we fuppofe that contradictory evidence may be given to the jury, and that they have a right us believe .the teftimony of one witnefs, and to reject the tefti-mony of anothei,’ I ara at a- lofs to conceive, how the court could, under Inch circumltan'oes,. ftate what was proved on t’he trial. But with .-efpect to the record, the practice of Majjarhufelts is plain and obvious. The declaration and pleadings in every fuit, are entered in a book; and all the pape.’* and exhibits are filed in the Clerk’s, office. The book js alone deemed the record,; and the papers and exhibits are only referred to, fof the purtfpie' of afqertainiqg what writ iflued, or what depositions have been taken.
    
    
      
       PATTERSON, Justice. The court cannot infer a fact from a fact ; but, of the fact is on the recored, we may infer the law.
    
    
      
       P.a.tterson, JuJUee. Does it appear from any thing, bcildes the 'Marjuis de BowJWs order, that the cargo was converted into cafli ?
      
        Br-adford, The depoiiti on of Stephen Webb, ftates, that, on behalf oí the. Defendants in error, he made a demand on Mr. Bingham for the money, as the.proceeds of the flour captured by the Pilgrim ; to which that gen~-ileman anfwered, a that he had taken the property for the ufe of the government of the United Statej.”
    
    
      
       CUSHING, Justice. Could not a defect of jurisdiction be taken advantage of, on the general issue?
      
        Bradford. Yes: but should the party chuse to avoid taking ad vantage of it on the trial, the Court is bound to take notice of it, if, at any time, it appears on the record.
      PATTERSON, Justice. That is, certainly, the law, if the defect of jurisdiction is apparent on the record. We are now enquiring whether it does fo appear.
    
    
      
       The question might, perhaps, have been tried by a monition issuing to Mr. Bingham from the Admiralty of Martinique, on which a decree would be binding upon all the world. See the argument of Sir William Scott, in 3 T. Rep. 329 ; and Judge Buller's opinion, p. 346. Besides, it appears, that the Arret of the French government, authorising the French courts of Admiralty, to try and determine captures made by Americans, was promulged immediately after the prize had been consigned to Mr. Bingham's care. Journ. Cong. 5 Vol. p. 449. 450.
    
   [By the Court.

This exception need not be farther answered. We are perfectly clear in the opinion, that, although the District Judge was on the bench, yet, if he did not sit in the cause, he was absent in contemplation of law; and that the case otherwise comes within the provisions of the acts of Congress.]

_ ad, Exception. It cannot'be made a queftion on this record, that all the proper Plaintiffs were not joined in the a ilion ; fihce the jury have found the AJfumpfit as it was laid in the declaration. Befides, there is. nothing to fhew, that there were any other parties; the' owners and captors might have been the fam.e ; or the owners, by a contrail with their mariners (which could hot be affeitedby the prize refolutions of Oongrefs) might have entitled themielves to the whole of the prizes. The ilatement of the fail on the motion for a new trial, is merely the allegation of the interefted party, contradicted by the verdiit, and the rejeilion of the motion.

3d. Exception. The court below was right in rejecting the evidence offered by the Plaintiff in error. That the papers were offered en masse, was his fault; and even if some of them should be deemed good evidence, all must be admitted, or none. But Mr. Bingham's own letters to Congress, and the correspondence with his counsel, could not be evidence, for he was a party. The Marquis de Bouille's certificate, which has been called an order, is nothing more than a certificate that he had previously given the order to which it refers, and it had been given in evidence by the Plaintiffs. But there is no proof that even this certificate is the act of the Marquis de Bouille; for, the Secretary of State only certifies, that the original of the office copy is on his files; and there is no evidence that the original was signed by the Marquis. Being, however, merely the statement of a pre-existing fact, and not the exemplification of a record, certified by a regular officer, it should be proved, like évery other fact, in the course of a judicial enquiry, by the oath of a competent witness : the bare certificate of the Marquis de Bouille cannot be allowed as proof of a fact, any more than the certificate of any other respectable individual. Yet, admitting that the Marquis signed the certificate, and that the certificate is competent evidence of the fact, it was enough to justify the rejection, that it could have no legal effect to prevent the Plaintiffs below from recovering; for, the Marquis de Bouille’s order merely authorised a sale of the prize goods, which the Plaintiffs never impeached ; but, on the contrary, presuming the sale to be lawful, they brought, an action of assumpsit, instead of an action of trespass, or trover. Though he might order a sale, the Marquis could have no power to adjudge who should enjoy the benefit, nor to compel Mr. Bingham to retain thfe money from its real owners. Besides, it does not appear that the property came into Mr. Bingham’s hands, in consequence of the acts of the Marquis de Bouille, nor that the Marquis ever had possession of it. The Marquis directs the proceeds to be retained, liable to the order of Congress : but this could give no jurisdiction to Congress upon the subject ; and Congress had, of itself, no right to decide to whom payment should be made. The act of the Marquis is, therefore, merely void ; and leaves the question, as toMr. Bingham, precisely where it stood, before the order was written.

The resolutions of Congress were, also, an improper kind of evidence to be admitted on the issue between the parties; particularly after Congress had become interested by promising indemnification. They were not in the nature of a law, or rule of conduct, commanding any particular act to be done by Mr. Bingham; they were framed subsequent to his act; and tho’ they appeared, ex post facto, as to the sale of the prize goods, they neither commanded that sale, nor ordered, or approved, the detention of the proceeds, which alone constitutes the ground of the present demand. But even if Congress had undertaken to issue such orders, their authority to do so might reasonably he questioned. That body had power to controul the operations of war; and, as an incident of war, might lawfully decide, conformably to its appellate jurisdiction, the question of prize, or no prize. But here was no original suit, no process pending, no parties before Congress, in relation to that point; and in relation to the private controversy between the captors and their agent, Congress possessed no authority either to legislate, or adjudicate. Suppossing, however, for a moment, that they had authority to decide, they have not exercised it; they, have barely expressed an opinion ; and can the opinion of any man, or assemblage of men, be given in evidence ? The court had a right to judge, not only whether the evidence comes from a proper source, but, also, whether it applied to the fact in issue : for, even a deed is not evidence unless it has some relation to the matter in dispute. And if the resolutions of Congress were only offered in mitigation of damages, the objection remained. If not proper on the main question, they were not proper on any question, in the cause ; and, on the merits it may be remarked, that although no interest should be charged, where money is retained by a party, upon any legal compulsion, or with the consent of the claiments, there was no restraint imposed upon Mr. Bingham by the Marquis de Bouillie's order, nor is any consent pretended.

As to the record of the action of trover, Carlton v. Bingham, it was not pleaded: and, therefore, could not be a bar to the present suit. Neither could it be evidence; for, a verdict in trover, is not evidence in assumpsit. This appears from the very nature of the actions; the former depending on the proof of a wrongful act, and the latter upon a contract express, or implied. The action of trover failed, because the sale of the goods was not proved to be unlawful, or tortious. 4 Bac. Abr. 60. 1. 3 Mod. 166. Vin. Abr. tit. " Evidence," 68. 4 Vin. Abr. 23.pl. 31.

For the Plaintiff in Error, in reply. 1. It is objected, that the bill of exceptions does not state the evidence given on the trial for the Plaintiffs below. But it does not appear, that they gave any evidence more than what the record exhibits. The statute says, that the party aggrieved shall propose his exception;to the opinion of the court; but there is, surely, no occassion to insert any part of the evidence, which is not material to the point of exception, 2 Inst. 427.

[By the Court. It is exceedingly clear, that the bill of exceptions is conclusive upon this Court. We cannot presume, or suspect, that any material part of the evidence is omitted. On this objection, therefore, nothing now need be added.]

2. It is objected, that the papers from the office of the Secretary of State, were not proper evidence ; and that though some were good, they could not be received, as the whole were offered en masse. The Act of Congress however, (15th Sept. 1789) makes copies under the official seal of the Secretary as valid in proof as the originals ; and it is no reason for rejecting the papers, when offered by the Defendant, that they, or a part of them, had been previously given in evidence by the Plaintiffs. The Court, too, might have separated those that were evidence from the rest. As to the contents of the papers : The letters of Mr. Bingham were material to shew that he acted as the public Agent of Congress ; that, as such, he had taken depositions and transmitted the ship’s papers, and that, he had accounted to Congress for the property. The correspondence with his counsel, shews, that his effects had been attached on account of this demand ; and, under particular circumstances, the party’s own acts are, evidence in his favour. 12 Vin. Abr. 54. p. 34, 35. 2 Eq. Abr. 409. The Marquis de Bouille’s order, given in evidence by the Plaintiffs, was only a translation, while the French original, offered by the Defendant, was rejected. The certificate of a Chief Executive Magistrate, is good evidence without an oath. 3 Bl. Com. 333. The certificate would prove, that the cause was entirely of Admiralty jurisdiction ; and whether the certificate was ex posi facto, or not, the Jury ought to decide. The 17th article of the French Treaty relates to captures from Enemies ; but this was a capture from a Neutral; so the Governor had a right to interfere. The Resolutions of Congress are stated in the Bill of Exceptions to be concerning the subject matter of the cause ; and it must be presumed that the Resolutions were sufficiently proved. The Record of Carlton versus Bingham, (when Carlton sued as Bailiff to the owners) ought certainly to have been admitted in mitigation of damages, as it shews that Mr. Bingham could not have paid the money with safety to the present claimants, till the question of prize was determined. 4 Co. 94. b.

The Judges, after some advisement, delivered their opinions, seriatim.

Patterson, Justice.

I am clearly of opinion, that the certificate of the Marquis de Bouille, registered in the Admiralty of Martinique, ought to have been admitted as evidence upon the trial of this cause. He was Governor of the Island, possessing a high executive and superintending controul ; and we must presume, that he acted, on this occasion, with legitimate authority.

Those letters which were written to Congress by Mr. Bingham, at the time of the transaction, should, likewise, in my opinion, have been submitted to the Jury. On the arrival of the captured vessel, the Governor might have awarded absolute restitution: but, chusing to adopt a middle course, he directed the cargo to be sold, and the proceeds to remain in the hands of Mr. Bingham, as the Agent of Congress, till Congress should instruct him how to act. In the character of a public agent, therefore, Mr. Bingham received the property; and his cotemporaneous correspondence on the subject, in that character, with the American government, was, certainly, proper evidence, to shew the original nature, and complexion of the facts in controversy. I have more doubts on the admissibility of the other letters referred to in the Bill of Exceptions ; but, in relation to them, it is unnecessary to give a decided opinion.

With respect to the Resolutions of Congress, two questions may be proposed, in order to determine, whether they ought to have been admitted as evidence : I. Had Congress authority to pass such Resolutions ? and 2. Did the Resolutions relate to the subject of the controversy ? I have lately had occasion, in the case of Doane versus Penhallow, to express my sentiments at large on the authority of Congress (of which, in its application to the present object, I do not entertain the slightest doubt) And no man of common candour can hesitate, for a moment, to pronounce, that the Resolutions have an immediate and necessary connection with the merits of the cause. They ought, then, to have been admitted ; but what should be their force and operation, is another point, not, at present, before the Court.

I am, also, of opinion, that it was improper to reject the Depositions, which Mr. Bingham had taken, in his public, official, character, to ascertain the circumtances of the capture, and the property of the vessel and cargo, at the time the supposed prize was carried into Martinique.

IREDELL, Justice.

It appears satisfactorily to me, that many of the documents offered in evidence, have been improperly rejected. From an inspection of all the papers, which are attached to the Record, the nature of the dispute may be easily ascertained. The Plaintiffs alledge that Mr. Bingham received, on their account, as their agent, property which had been captured by them as prize ; and that, whether the capture was lawful, or not, he was bound to account to them, though they might be responsible to the original owners, if any wrong had been committed. To this charge, Mr. Binghatn answers, that he never was the Agent of the Plaintiffs, but a Public Agent ; and that he did not receive the property from them on their account ; but from the Marquis de Bouille, on account of the true owners. Admitting either of these positions, a direct and certain consequence will insue. If the Plaintiffs are right, the consequence is, that Mr. Bingham ought to surrender the prize property, or account for its proceeds, to them; and though they, as captors, may be sued by the neutral claimants, the existence of a neutral claim will not justify his refusal so to surrender, or account.. But, if the Defendant is right, the consequence is, that he ought not to deliver up the property to the Plaintiffs until it has been ascertained that the capture was lawful, which must be done through the medium of a Prize Court, not by a Judgment in a Court of common law. From this view of the controversy, therefore, it must be of great moment that Mr. Bingham should have an opportunity to shew, that he had acted, throughout the business, as the Public Agent of the United States; and that his communications to Congress were open, fair, and faithful. If, indeed, he had given parol testimony on these points, his opponents might have called for the records of the appointment and correspondence, as affording higher proof. I am, therefore, of opinion, that Mr. Bingham’s official letters, (some of which were written before any dispute existed, or could reasonably be anticipated) ought not to have been rejected.

The Resolutions of Congress, likewise, were proper evidence ;-not, indeed, to prove, that the Plaintiffs were not entitled to the money in question, but to prove that the Defendant was recognized in the transaction as the Agent of Congress. The Resolutions are not to be considered as the mere expression of a Congressionail opinion, but as an acknowledgment that Mr. Bingham was a public agent, and that the public, as his principal, was accountable for the money.

The certificate of the Marquis de Bouille, whether regarded as an original order, or as the evidence of a parol order, previously given, ought to have been laid before the jury. The Marquis acted officially, as Governor and Commander in Chief; and we must presume, that he exercised a lawful authority, in a lawful manner.

Under these circumstances it only remains to consider, what course should be "pursued by the Court, in order to give the Defendant the benefit of a trial, upon a full view of his legal proofs. I think, for that purpose, that a Venire Facias de novo ought to issue. For, although a Court of common law has no jurisdiction of the question of prize ; yet, whether it is necessary in the present case to determine that question, must depend upon the facts, which are established at the trial. On a Count for money had and received, &c. the Court below has, prima facie, jurisdiction; and if the jury shall think Mr. Bingham was merely the agent of the Plaintiffs, the validity of the capture, as prize, can form no ingredient in deciding the issue. If, on the contrary, the jury shall think Mr. Bingham acted as a public agent, their verdict must be in his favour; as he was bound to keep the property for the real owners ; and the captors can never shew that they are the real owners, until the vessel and cargo have been condemned as prize, by a competent tribunal. The captors may then proceed against Mr. Bingham in a Court of Admiralty, whose decree of condemnation, operating against all the world, would entitle the captors to receive the money, and justify Mr. Bingham, or Congress, in paying it.

Wilson, Justice.

In several instances, I concur in the sentiments, that have been delivered by the Judges, who have preceded me ; but, I think, it is unnecessary to specify the particulars or to amplify the reasons, since I continue clearly in my opinion on the point, which was separately argued, that this cause is exclusively of Admiralty jurisdiction. On that ground I chuse entirely to rest the judgment that I give : but it leads inevitably, also, to another conclusion, that, the Court not having jurisdiction, a Venire Facias de novo (which, in effect, directs the exercise of jurisdiction) ought not to issue. I am, therefore, for pronouncing, simply, a judgment of reversal.

Paterson, Justice.

I cannot agree to send a Venire Facias de novo to a Court, which, in my opinion, has no jurisdiction to try, or to decide, the cause.

Cushing, Justice.

I shall give no opinion upon the question of affirming, or reversing, the Judgment of the Court below. My brethren think there is error in the proceedings; and they are right to rectify it. On the question, however, of awarding a Venire Facias de novo, I agree with Judge Iredell : But, as the Court are equally divided, the Writ cannot, issue.

Judgment reversed ; but no writ of Venire Facias de novo was awarded. 
      
       jtatterson, JuJiice, Does not'the Aibfcquent approbation of Con-gr.efs amount to the lame-thing as if they had iifued a precedent order ? . Dexter. In fome cafes that principle operates. But Congrefs had not competent authority to protect Mr. Bingham in the prefent inftance, either by ifiulng a previous order, or by expreifing a iubfequent approbation. If an aft, originally wrong, gave a party the.right to recover damages., uo refolution of Congrefs could, retrbfpeftivclyy afí'eft that right.
     
      
       Cushing, Jrf'cs, did not feem to coincide in this opinion, but the other three Judges were decided.
     
      
       See the Cafe referred tó, po/l. I have not thought it material to preferve the'ordcr of time, in which the Cafes occurred, any'further than by deiignating the-refpeiftive Terms,
     