
    Peter Messier surviving partner against Benjamin Amery.
    S. C. 2 Dall. 231.
    The counsel who moves for a new trial should begin and conclude the argument. If a factor takes a. note in his own name, for a debt due to his principal, the note belongs to the principal in case of the factors bankruptcy. The sentence of a foreign court having jurisdiction of the subject matter is conclusive. And where one has received money under such a sentence on a foreign attachment, however erroneous it may be, it cannot be recovered back as money received to the true owner’s use.
    This cause was tried at the sittings in Philadelphia, on the 29th March 1794, when a verdict was given for the plaintiff for 404I. 6s. 7d. principal, and 566I. is. 4d. interest, with six pence costs, reserving a liberty to move for a new trial. A rule to shew cause was accordingly entered at the following term, which came on to be argued, in April term last, by Mr. Lewis for the plaintiff, and by Messrs. Ingersoll and Wilcocks for the defendant.
    • * Previous to the argument, a question of order arose, r*c<>4 which of the counsel» should begin and conclude. *-
    The court ruled, that the counsel who moved for the new trial, should begin. It is proper that his reasons and the grounds of his motion should be first heard, and this practice tends to expedite business. The same thing was done in Campbells’s lessee v. Snodgrass, M’Causland’s lessee v. M’Causland, and in many other cases, where arguments respecting the granting of new trials have been had. The greater part of such arguments in Burrow? s Reports, are conducted on the same system.
    The facts which appeared on the trial, were as follow:
    Ram' Rapaljé and Jacob Vonhoreis, together with the plaintiff, were owners of the brig Jenny, whereof Reuben Fairchild was captain, and had general powers to act for the best interests of his employers. Rapaljé and Vonhoreis died since the commencement of the suit, and Messier survived. In May 1776, Fairchild who was a poor man, sailed from New York, on a trading voyage to Ferrol, Gibralter, St. Christopher’s and St. Eustatia, trafficking at those different ports, as the agent and supercargo of the plaintiff and company. He carried out a cargo of flour, &c. belonging to them, and had only a small adventure of his own on board. The register of the brig was in the names of the company, and the bills of lading were expressed to be on their own account. In July 1775, he remitted money from Ferrol, to his owners.
    With the proceeds of the flour which the captain sold at Gibralter, he purchased and took in 89 mules on their account, and afterwards sold them and the brig to Sir Patrick Blake, Abraham Vanbebber and others, and took their notes in his own name. Fairchild kept his book and accounts in the names of his owners.
    On the nth January 1777, captain Fairchild being about to sail from St. Eustatia to Edenton in North Carolina, gave a power of attorney to one William Smith, who resided in St. Eustatia, and delivered to him several notes, the greater part of which were traced on the trial to have been for outstanding monies belonging to Messier and Co., though drawn payable to himself, to be delivered over to his owners in case of his death. He indorsed the papers in which these notes were enclosed in his own hand writing, that they were the property of Messier and Co.; and on his arrival at Edenton, wrote to them that he had deposited these notes in Smith’s hands, as their property, to avoid the dangers of the voyage. Fairchild here received two hogsheads of rum, which had been consigned to him by the de*fendant, and which -I he sold for continental money, and died in North Carolina in the summer of 1777.
    On the 17th May 1779, Amery, the now defendant instituted a foreign attachment in the island of St. Eustatia against Fairchild, and levied it on the property in the hands . of Smith, but the suit was afterwards discontinued. On the 24th September following, he issued á new foreign attachment against him for 3614I. 15s. nd. North Carolina currency, which was also levied on the property in the hands of Smith, and after a hearing of Smith, the governor and council of the island gave their decree on the 9th February 1780, wherein they confirmed the attachment, and gave judgment for Amery for 3424I. 13s. nd. North Carolina currency, or in default thereof, one silver dollar for eight, amounting to 1471 dolls. 4 stivers and 2 sous, with n dollars costs. Hereupon, on the 13th April 1780, Smith paid the debt and costs to the marshal of the court, and obtained his receipt for the same, in silver dollars, at 8s. per dollar, and afterwards paid to the plaintiffs and co. the balance of the money the produce of the notes, agreeably to the account exhibited by him to the court of St. Eustatia. The now plaintiffs, afterwards discovering property of the defendant in Philadelphia, issued a foreign attachment against him, on which special bail was entered, and .the cause came on to be tried before Mr. President Ship-pen, in the Common Pleas of Philadelphia county, when the jury gave a verdict for the plaintiffs. A new trial was after-wards awarded by the court on a point reserved.
    On the trial at Nisi Prius, there was no argument respecting testimony, it being agreed that all the facts should be disclosed for the opinion of the court.
    The defendant’s counsel made two points. 1. That the proceedings in St. Eustatia, being in a foreign court of competent jurisdiction, cannot now be overhauled. 2. That the money paid by Smith to the marshal for the defendant’s use cannot be followed.
    This court cannot now examine the question, whether the notes belonged to Fairchild or his owners, nor if it appears ever so clearly that they were not Fairchild’s property, can they annul the decree of a foreign court. The defendant does not ask the assistance of this court to aid the decision of a sovereign,. independent authority. But the intermeddling with the sentence of a foreign court is deemed an attack on 'the sovereign. Vattel. Fib. 2, c. 7, § 84, 85. Until a judgment is set aside or reversed, it is conclusive as to the subject matter of it, to all intents and purposes. 2 Burr. .1009. We must note, that the decision there * was consistent with [*530 that of the court of conscience. If the now plaintiff L can go into an examination and revision of the decree, the defendant may do the same thing as to the judgment of this court, and he too may attach the goods of the plaintiff when he finds them in a foreign country, and so the race for jurisdiction may go on ad infinitum. As to the objection, that Eairchild was dead when the attachment was sued against him,.this court will not presume the fact to be so; they will at least suppose that the suit was conducted in conformity to the lex loci.
    
    Foreign judgments are'examinable, but are grounds of action every where. Doug. 6. (note 4.) But it must be considered, that all judgments out of Westminster Hall are deemed foreign, and the instances there put are of judgments given in courts within the king’s dominions. The case does not allude to the judgments of the courts of an independent nation. B. R. will give credit to the proceedings of the courts of other kingdoms; it will not examine them, but presume their judgments to be right, Carth. 32, 2 Show, 232. T. Raym. 473, even though the sentence be unjust. 2 Ed. Raym. 936. Where the question is prize or no prize, no prohibition goes to the admiralty. 1 Sid. 320. If the decree of the admiralty be definitive, B. R. will not interfere, ,1b. 418. By the law of nations, the justice of one nation shall be aiding to the justice of another nation, in executing the other’s judgments. Rol. Ab. 530, pi. 12. One having seized and condemned goods in another kingdom, according to their law, was prosecuted by several actions after he came to England, at the suit of the former owners of the goods, but a perpetual injunction was granted. Finch. Rep. 136. Where a final decision in a foreign court has taken place, it is conclusive on all parties. 1 Vern. 21. No equity can arise on a transaction finished in another court. 1 Bro. Cha. Rep. 376. Where the ground of a sentence of a court of admiralty is manifest, and it appears to have proceeded on the point in issue between the parties, or where the sentence is general, and no special ground is stated, there it shall be conclusive and binding; and the courts in England will not take upon themselves in a collateral way to review the proceedings of a forum having competent jurisdiction of the subject matter. Parke on Insur. 403, 407, 410, 412, 417.
    From the decree in the suit at St. Eustatia, it must necessarily be presumed that there were effects of Fairchild in the hands of Smith. He was certainly entitled to commissions for his superintendence; but was the fact otherwise, it is now too late to question it. Ed. Loughborough says, that though another country should determine against his opinion, he *537] should not think * himself at liberty to examine it. H. Bla." 693. It has been remarked of Eord Chief Justice Eee, that he used to call for adjudged cases or precedents, where counsel descanted on general principles. It is presumed by the defendant, that no resolution can be produced to warrant this court in correcting any supposed errors of the governor and council of St. Eustatia, in their decree on this attachment.
    As to the second point. Either Smith was fully heard. before the governor and council, or he was not. If he has received a patient hearing and made his defence, his principal is now precluded. But if otherwise, the payment must be considered as voluntary, and cannot be questioned. Had Smith stolen the money, and- paid it away on a good consideration, it could not be followed on account of its currency. 1 Burr. 457. 1 Bl. Rep. 485. So a factor placed here by a foreign house, and paying his private debts with the produce of his constituent’s effects, the monies so paid cannot be recovered back. A precedent debt is as valuable a consideration as money paid, or any other matter. A trader involved in his circumstances, may give a bond, note, or- bill of exchange to a creditor on being pressed for payment; and the same would be equally good as if cash or merchandize were delivered.
    The decree in St. Eustatia is at least prima facie evidence that the defendant received the money in consequence of a previous debt. In most cases it would be deemed conclusive. A third person cannot question the payment of money under the judgment of a court on a foreign attachment, unless in a few excepted cases, under the spirit of the British bankrupt acts.
    In Cowp. 200, the distinction is established, that if money or notes are paid bona fide, and upon a valuable consideration, they never shall be brought back by the true but where they came mala fide into a person’s hands, they are in the nature of specific property, and if their identity can be traced and ascertained the party has a right to recover. Consequently it must be granted on all hands, that the plaintiff must identically distinguish the money and notes in the hands of Smith; and that even if the specific pieces of eight, or other coin, which had been received by Smith on the notes lodged with him, had been proved to have been paid by him to the defendant’s use on the judgment, the present suit is uot maintainable.
    Eor the plaintiff it was insisted, that most of the authorities which had been cited were prize causes, to which all the world are or may be parties. There the prosecutions are in rem, but a foreign attachment cannot properly be so called. No moni-moo-1 *tions issue in such a cause. The case cited from J Douglass, is confined to the effect of a judgment between the parties themselves.
    
      Foreign judgments are not of more extensive efficacy than the judgments of our own courts, where they respect the interests of strangers. Unless the decree at St. Fustatia is a conclusive bar to the present action, the suit is maintainable. It was proved, that Smith received the plaintiff’s money, and not Fairchild’s. He was the attorney in fact of the latter, but not of the former.
    ‘ Suppose the brig Jenny had been attached in that island, the company would not have been concluded thereby. Or if a replevin had issued for her, and the property had been found in the party suing, though Fairchild had claimed her in his own name, the owners’ title would not be divested. It is fully settled, that a verdict can only be given in evidence against the parties themselves, or those claiming under them. So of recitals in a deed, and of depositions taken under an order in chancery. Wherever a stranger is prejudiced by a judgment, and cannot bring error, he may shew the error in evidence, on a proper plea, 2 Mod. 308. Cro. El. 199. 2 Bac. Ab. 189. 11 Co. 44, b. Godb. 377. 3 Danv. 2 pi. 10, n, 12. If the defendant had pleaded this decree in bar to the suit, Messier and Co. might have replied that it was not binding on them, as strangers thereto; and moreover, that it was absolutely null and void, the foreign attachment having been commenced two years after the death of Fairchild. The plaintiff and co. could not have brought error, or appealed from that decree, and are without remedy unless in the present mode of suit. The defendant has given the foreign decree in evidence, and has not pleaded it. It was competent therefore to the plaintiff, to shew in evidence, that it is fundamentally bad. There must necessarily be a plaintiff and defendant in every adverse suit. Fairchild being dead, it was a mere mockery of justice. A foreign attachment cannot charge any person but a debtor. 1 Ld. Ray. 56.
    It has been said, that however unjust the sentence was, the money shall not now be recovered back. But if A recovers a horse against B without title, the true owner may surely institute a suit against him. If the plaintiff recovers in this action, the evils apprehended, arising from a race of courts for jurisdiction cannot ensue. For Messier, as surviving partner of the company, and Amery, being parties hereto, must necessarily be concluded by the event. If the plaintiff succeeds, the defendant will not be injured. He has the same remedy as formerly against Fairchild’s, estate.
    * Identifying money, in the case quoted from Cowp. r*KgQ 200, does not mean the same numerical pieces of coin, *- but the same real debt or sum. It is sufficient, that the plaintiff has shewn in evidence, that certain specific sums, arising on notes clearly ascertained to be the property of his late house were paid into Smith’s hands, and improperly levied on under the foreign attachment. The reason why money cannot be followed is on account of its currency. It is quaintly said to have no ear-mark, i Burr. 457. If a marked guinea is dropped in the street by accident, and paid away by the finder for a valuable consideration, the former owner cannot recover it, though it has an ear-mark. But before the money is paid away, an action would lie against the finder. The payment by Smith to the defendants’ use, was not in a course of dealing, but under this void decree. Where money is paid by mistake to an agent, and by him placed to the account of his principal, but not paid over, it may be recovered from the agent by the person who paid it by mistake. But if there has been a new credit, an acceptation of new bills, fresh goods bought, or money advanced by such agent, the case would be otherwise. Cowp. 565, 569. The reason is obvious, the situation of the agent would be changed. Now here, there, is no bona fide valuable consideration, to vest the money in the defendant.
    A bank bill lost, trover will lie against the finder, but not against a stranger, who gets it from him for a valuable consideration. 1 Salk. 126, pi. 5. And in such case,the stranger must not only shew that he came by it bona fide, but also for a valuable consideration. 1 Bl. Rep. 485. If the finder had made a gift of the bank bill thus lost, it should not prevail against the true owner.
    These monies have been traced through all their different changes into Smith’s hands. By the payment of the notes of Blake, Vanbebber and others to him, the plaintiff’s debtors were only changed. Smith thereby became a sub-agent, indebted to the late house of Messier and Co. It is of no moment, in whose name the factor transacts his business.
    In the case of M’Carty, surviving partner of Cummins, against Nixon, administrator of Cummins, where Cummins had come from France to Virginia, to collect the debts of the company, for many of which he took notes merely in his own name, which were afterwards negotiated in the bank of North America, it was adjudged, that the money of the notes should go over to the surviving partner, for the purpose of paying the partnership debts, and not to the administrator of Cum-mins, who was his private creditor. There the shipment was *5401 Proved * to have been made for the company, and the -* notes taken, and the money paid in pursuance thereof; and it was ruled, that the plaintiff had identified his debt, though not the numerical pieces of coin. So in the case of a factor, in the event of his bankruptcy.
   [Per curiam.

If a factor takes a note in his own name for a debt due to his principal, the note clearly belongs to the principal, in case such factor afterwards becomes bankrupt.]

The mail was robbed of a bank note, and an innkeeper came to the possession of it for a fair and valuable consideration, he shall hold it. 1 Burr. 453.

The situation of the plaintiff and defendant is not equal in point of equity. Fairchild was the mere factor or agent of the plaintiff’s house. According to the case put by the other side, a factor settled in a store, with goods and money, by a foreign company dealing for them only and not for himself, would be considered as more than a creditor of such company. The goods and money would be deemed the property of the constituents. The factor’s private debts could not be paid out of the funds of his employers. The money in Smith’s hands as much belonged to the late house of Messier and Co. as the brig, flour, mules, &c. from the sales whereof it was produced. Their own ascertained property is merely claimed. The defendant claims to be paid his private debt due by Fairchild out of it, alleging it to be the property of the latter, whereas the fact has clearly been proved to be otherwise. The defendant, if he repays the money, which he has injuriously received, is only in statu quo.

Precedents of such suits as the present, have been called for. The plaintiff is not without them.

One received the note of a garnishee for 1200I. in satisfaction of a judgment obtained in the Mayor’s Court of London on a foreign attachment, and was afterwards on special circumstances, ordered to deliver up the note to be cancelled. H. Bla. 181, (note a.) In the case of British subjects and a bankruptcy, and one of the creditors sued an attachment against the bankrupt’s effects in the West Indies, and received his debt, an action by the assignees to recover back the money against the plaintiff in the attachment. H. Bla. 665. No objection was made, that such suit was not maintainable. And in Hunter, et al. v. Potts (4 Term. Rep. 183.) several cases of the same kind are stated. — In none of them, were the numerical monies identified, nor can * they be distinguished from the circumstances of the present L suit.

The plaintiff rests his case on another complete ground. Even if the goods and notes were Fairchild’s property, there was a complete appropriation of them to the use of Messier and company. The cause of Vance, Caldwell and Vance, meets this point fully. There this court left the intention of the owner of the effects to the jury, in derogation of the rights of the creditors under a foreign attachment, and a jury found an appropriation accordingly. These notes were left in Smith’s custody to go over to the partners in case of Fairchild’s death. When he died in North Carolina, the appropriation finally took place, and the notes vested fully in them, until they expressed their dissent.

Moreover, the verdict is consistent with the principles of substantial justice, and therefore a new trial will not be granted. 3 Salk. 644, 647, pi. 16. 648, pi. 18. 653 pi. 34, 35. 1 Burr. 397.

This term, the judges proceeded to give their opinions.

M’Kean, C. J.

fully stated the circumstances of the case, and then observed, the defendant avails himself of the decree of á foreign court on a full hearing and defence made. The monies in Smith’s hands were thereby adjudged to be Pair-child’s property, at least to the extent of the now defendant’s claim on him. The great question is, whether we' can reexamine this foreign judgment in the present suit? If we can do it, Amery in another country may bring our decision again in question, and the litigation may thus never be at rest.

We have no right by law to assume the power of annulling the sentence of the court of an independent kingdom. We are bound to pay every respect-to the decrees of such courts, for the common safety and happiness of mankind. We are unacquainted with the laws and customs of the island of St. Eustatia; but there most probably must have been some tribunal to which Messier and Co. or Smith in their behalf might have appealed. In that' forum, advantage ought to have been taken of Fairchild’s death, and the point re-examined whether the notes belonged to the owners or captain of the brig Jenny. But as to us, the decree given and un-reversed is conclusive, and we have no power over it. We cannot possibly say, that in this instance the defendant has received the money under the judgment to the plaintiff’s use, and therefore I am of opinion, that a new trial should be granted.

Shippen, J.

Having delivered my sentiments at large in this *5421 -1 *acti°n from another bench, I mean now only to take notice of two new cases cited at the last by the plaintiff’s counsel, to shew that actions for money had and received, had been brought and supported against plaintiffs, who had recovered upon foreign attachments, to oblige them to refund to third persons, the money so recovered. These are the cases of Hunter v. Potts in 4 Term Rep. 182, and Sill et al. v. Warswick in H. Bla. Rep. 665. In both cases, the ruling principles appear to be, that all the parties were subject to the bankrupt laws of England, where every man is supposed to be consenting to every act of parliament; that there was an actual vesting of the property of the bankrupt in the assignees for the benefit as well of the plaintiffs in the attachments, as of all the other creditors; that the plaintiffs being jointly interested with the other creditors, and having a full knowledge of the whole transactions, took indirect measures to apply the whole property to their own use, in direct violation of the bankrupt laws, and his virtual contract with his fellow citizens. It was therefore consistent with every principle of law and justice, to make those plaintiffs answerable to the assignees of the bankrupt, for the money they had so unfairly recovered by attachments in America, and which the assignees were entitled to as trustees, as well for the plaintiffs in the attachments themselves, as all the other creditors.

Lord Loughborough in delivering the opinion of the court in the latter case, is very careful to distinguish that case from the general case of a creditor, unconnected with the bankrupt laws, who recovers his debt in a competent court of justice in a foreign country. For although he is of opinion, that the operation of the proceedings under the bankrupt laws of England is such, as to vest the personal property of the bankrupt in every part of the world in the assignees, from the time of the assignment, yet he expressly declares, that a creditor in a foreign country not subject to the bankrupt laws of England, nor affected by them, obtaining payment of his debts by the judgment of a foreign court, and coming after-wards to England, could not be made liable to refund that debt. He goes further, and says, that if the claim of the assignees of bankruptcy had been communicated to the court, who decided the case abroad, and they had preferred the claim of the suing creditor to theirs, although he should think that determination wrong, yet it could not be revoked by another court of justice in England.

This principle fully reaches the case before us. Amery, a creditor of Fairchild, attaches his effects in a foreign country in the hands of Smith, the agent of Fairchild. Smith appears and makes defence, and no doubt communicated to the court the * circumstances, which lay the foundation of the r*KAo present plaintiff’s claim. The court adjudge, that the L money in the hands of Smith was the property of Fairchild, and compel him by their judgment to pay Amery his debt out of it.

Now if we should even be of opinion, that the money in the hands of Smith was the property of Messier and Co. and not of Fairchild, yet upon the principle of the case determined by Lord Loughborough, we have no power to revoke that judgment. The whole matter was before that court, and they determined the property to be Fairchild’s. The plaintiff in the attachment was wholly unconnected with the present plaintiff, and cannot upon any ground I know, be considered as receiving the money to his use. The more obvious recourse of the plaintiffs is to Fairchild’s estate, if he has left any; if not, it is more agreeable to law and justice, that the plaintiff should suffer by the default or failure of his own agent, than that a stranger recovering a fair debt in a regular course of justice, should refund the money to another stranger, with whom he had no manner of connection.

Yeates, J.

However hard the circumstances of this case may seem to bear on the present plaintiff, yet I am constrained to think, as well on general principles as the particular authorities cited, that he is not entitled to succeed in this suit,

The defendant has recovered his debt against Eairchiid, by due process of law in the court of a foreign country, having competent jurisdiction. That decree remains in full force and unreversed to this day. Whatever errors or irregularities may be pointed out in the decision of that tribunal, this court is not competent to re-examine, revise or revoke it. The sentence of the foreign court is conclusive and binding on us, as it had competent jurisdiction of the subject matter. Parke on Insur. 403, 417. A contrary doctrine would be attended with the most pernicious consequence to society.

The objection also, taken from Cowp. 200, that the money having been paid to the defendant, a stranger to the plaintiff, bona fide, and on a valuable consideration, cannot now be brought back by the true owner, seems to me to be an additional, insuperable bar to the plaintiff’s recovery. We are not warranted in saying, that the money paid, has been received to the use of the plaintiff; and, on the whole, I think, that a new trial should be granted.

Smith, J.

stated the case minutely; and observed that the question was, whether the present action can be maintained? Or in other words, whether money recovered by the judgment of a court having competent jurisdiction, can .be recovered back in another court by an original suit?

*<=¡441 *A variety of cases has been adduced by the defend-I ant’s counsel, shewing, that the merits of a judgment can never be overhauled by a different court in a new original suit; that the preremptory sentence of a foreign court is conclusive on all parties, and other courts will pay due respect to such decisions; that the intermeddling with such decisions is an attack on the sovereign; and that this doctrine is very particularly ascertained, as to cases determined in foreign courts of admiralty. »

It has been objected, that most of these are prize causes, to which all the world are, or might have been parties, being prosecutions in rem. But it is not in the power of a plaintiff in a foreign attachment .to make it in personam, or other than as a prosecution in rem. He carries it on as such; and so it is considered in Dall. 264. 4 Term. Rep. 191. This takes away the force of the objection arising from the death of Fairchild. Nor is this regard to foreign judgments confined to sentences in prize causes or in courts of admiralty. Vid. Stra. 733. 2 Eq. Ca. Abr. 524.

Did the party in whose favour the foreign judgment was given, apply to the court to give effect to it, it would be only prima facie evidence, and we would examine into the grounds of it; but as he makes no such application, that judgment is binding on us, and therefore we cannot take notice of the death of Eairchiid. Smith had an opportunity of pleading it, and it is to be presumed, would have so done, had he supposed, or been advised, that it would have availed him. . He contended that he had no effects of Fairchild’s in his hands, but it was adjudged by a competent court that he had.

H. Black. 665, and 4 Term Rep. 182, have been cited by the plaintiff to shew, that money of a bankrupt though recovered in a foreign attachment, has been recovered back in England by his assignees. But these cases do not apply to that before us. They arose on the bankrupt laws, and between British subjects residing in England, none of whom 'can gain a preference over bankrupt’s estates.

The ground of the decision in H. Black, was, that the plaintiff in the attachment, residing in England, had, contrary to the laws of England, founded that attachment, on an act done there by him, viz. an affidavit before the mayor of Lancaster. H. Black. 689, 694. And it is said, that a foreigner coming into England, after recovering such money on an attachment, could not be there sued. Ib. 693.

The foundation of the judgment in 4 Term Rep. was, that the party residing in England, knowing of the commission and assignment, transmitted an affidavit on which the attachment was * founded, to Rhode Island, to gain a prior- [-*545 ity. Therefore, as personal property is governed by the law, which governs the person of the owner, (H. Bla. 691, Vattel lib. 2, c. 7, § 85; c. 8, § 109, no, 4 Term Rep. 184,) these attachments instituted contrary to that law, were of no effect. But in the present instance, the now defendant was not restrained by any law from bringing the attachment. He did not bring it to attach the effects of Messier and co. but of Fairchild. A competent court has determined that the property attached was Fairchild’s, and we have no power to unravel, or overhaul its proceedings. Amery recovered the money bona fide for a just debt, and the now plaintiff cannot bring it back from him. Cowp. 200.

Admitting that the plaintiff has equal equity with the defendant, and that the decree of the foreign tribunal'was out of the question, where there is equal equity, possession fairly obtained, must prevail. Doug. 617.

The owners appointed Fairchild master of their vessel, and their agent. They are therefore to be affected by his misconduct, and that of his substitute, and not Amery, between whom and either of them, it is not alleged that there was any collusion.

There can scarcely be cited a stronger case, to prove that the decisions of foreign tribunals are conclusive, than those of Solomons v. Ross, H. Bl. 131, (note a,) and Jollet, et al. v. Deponthieu et al.; and Neale et al. v. Cottingham et al. Ib. 132, (note) upon duly attending to all the circumstances stated.

Several cases have been cited by the plaintiff’s counsel, (to which many more may be added, 2 Bl. Rep. 1221. 2 Wils. 307. 2 Burr. 665. 3 Salk. 361. 3 Bac. 26. 2 Bl. Rep. 1177. 2 Burr. 936. 1. Bl. Rep. 195. Lofft, 521. 4 Term. Rep. 468,) to prove, that where a verdict is substantially right, a new trial ought not to be granted. The law certainly is and ought to be so. But these cases do not apply to the motion before the court, because the verdict was entered with liberty 'to move for a new trial, and it was the understanding of both parties, that the point of law was to be argued before the court on this motion.

New trial awarded.

A new trial was afterwards had on the 22d March 1796, and a special verdict found at the instance of the plaintiff’s counsel. The court in the same term gave judgment for the defendant, without argument.  