
    *Louis Le Guen, Appellant, against Isaac Gouverneur and Peter Kemble, Respondents.
    
    The judgment or decree of á court possessing competent jurisdiction is not only final as to the subject matter thereby determined, but also as to every other matter which the parties might litigate in the cause, and which they might have, had decided.
    The only cases which form exceptions to this general rule,- are, the case of, mutual dealings, between the parties, where the defendant omits to set off his counter-demand, and may still recover it in a cross action; 'and- the ease of an ejectment in which the defendant neglecting to bring forward his title is not precluded by the recovery against him, from availing himself of it in a new suit. Per Kent, J.
    And this rule is equally applicable to the court of chancery as1 to any other court.
    Thus, where a party to a suit at law has knowledge of a fraud ór other matter of defence, in time to avail1 himself of it at the trial at law, and he neglects to do so,-he cannot afterwards, obtain relief iñ a court of equity against the judgment at law, on the ground of sttch fraud or matter of defence that he might have set up.at the trial,, but is forever concluded by the judgment. 1 ,
    This rule, however, does not apply to- cases where there, there aré -no laches or neglect. Tex Radcliff, J. 
      Courts of law and equity have concurrent jurisdiction on the question of fraud.
    In this case L., the appellant, having sued G. & K. his factors, the respondents, in the supreme court, for a refusal to elect to take the proceeds of a cargo of cotton and indigo, sold to R. for exportation, as they might have done, under a covenant between G. &. K. and R., made for the benefit of L., which refusal substituted them in the place of the vendee, and obtained judgment; the respondents being entitled to show the fraud in that action in defence, or in mitigation of damages:—It was held that they could not obtain relief against such judgment in chancery on the ground of such fraud.
    A bill of review should show, 1. That the new matter upon which such bill is sought, has come substantially and materially to the knowledge of the party or his agent, since the time of the decree in the former cause ; or, since such time as he could have used it to his benefit in the former cause. 2. That it is probable such new matter is relevant. Per Radcliff, J.
    On an appeal from an- interlocutory order of the court of chancery, directing an issue to be tried at law, this court will hear and decide upon the whole merits of the cause, (a)
    
    (a). S. P. Rush v, Livingston $ Townsend, 2 Caines’ Cas. in Err. 66, 85 86
    Power and practice of the House of Lords upon appeals, considered by Rad-cliff, J. and Kent, J.
    The chancellor, though he has power to award an issue to ascertain the truth of facts which appear doubtful to his mind, may, nevertheless, if he thinks proper, decide for himself on the facts, according to his discretion.
    Where a judgment, order, or decree of a court below is reversed, on an appeal to this court, the appellant is entitled only to his costs in the court below, up to the time of the order or judgment of that court, and cannot recover costs or damages on the appeal.
    On the 13th of April, 1795, the respondents, as factors of the appellant, sold to Isaac Lopez, M. Lopez, jun. and Abraham Rivera, merchants, under the firm of Gomez, Lopez & Rivera, about six hundred bales of cotton, at 371 cents per pound, and 12,000 weight of indigo, of the Isle of France, at two dollars per pound, amounting to 122,415 dollars and 36 cents; for which the purchasers gave their promissory notes, payable in one year, with interest after 60 days. A written contract, by direction of the appellant, was entered into between the respondents and the purchasers, and among other conditions of the contract, it was stipulated, that the proceeds of the articles in France or elsewhere, should be first applied towards the payment of the purchase money; and further, that the respondents 11 might have it in their option to receive the whole or a part of the amount of the said notes, at Havre de Grace, or at any other port, the ship carrying the property for the purchasers, might discharge at in Europe.”
    A few days after, the goods were shipped on board, and the vessel sailed for Havre de Grace, in France, where she arrived about the 1st July, 1795, from thence, by direction of Gomez, who was on board, she sailed to Hamburgh, and there landed the goods, which were afterwards, by order of Gomez, reshipped to London, and there sold.
    [*437] ' *The appellant made repeated applications to the respondents, or their ngents, to make election to receive the purchase, money out of the proceeds of the articles in Europe, and tó give an authority, by which the appellant might receive the surplus thereof, after the respondents had retained a sufficient sum to indemnify them for all their advances and responsibilities on account of the appellant. The respondents declining to follow this direction and to make the election, the appellant considered them as having thereby substituted themselves in the place of the purchasers, and become liable for the purchase money, and thereupon brought an action at law in the supreme court, and obtained a final judgment against the respondents for the amount.
    A writ of error was afterwards brought by the respondents to this court, to .reverse that judgment, when it was affirmed.
    
    
      *Before the trial at law, two of the purchasers, (the [*438] other refusing to join,) on the 11th October, 1796, filed a bill in chancery against the appellant, the respondents, [*439] *and Lopez, the other purchaser, praying relief, on' the ground of fraud in. the sale; alleging, that the -appellant had represented the cotton-as of the growth of the Isle of *France, whereas it was in truth of the growth [*440] of Surat; and the indigo as of two descriptions, Flo-tang and Violet Copper, when a small part only was of one .[*441]' of those descriptions, *and the remainder of different kinds, and that the appellant had produced samples agreeing with his representation ; that the articles proved to be of inferior quality to *those for which they were [*442] sold, and brought in London, 20,000 dollars- less than they would have done, had they been of the description and quality represented.
    
      [*443] *The appellant, in his answer to this bill, on the 23d February,-1797, fully and positively denied all the allegations of the complainants on which -the charge of fraud *was founded. On the 9th May, following, [*444] the respondents put in their answer to the bill, declaring that they did not know that the appellant had prac[*445] tised any fraud or Misrepresentation in the sale, and on the 20th June following, Lopez, the other purchaser, put in his answer, which agreed in substance-with that of the appellant, and *exculpated him from all [*446] the allegations of fraud or misrepresentation.
    A -few days after the-affirmance of the judgment in the [*447] 'supreme.court, to wit, on the 20th March, 1798, the respondents filed a. bill in the court of chancery against the appellant, stating the sale of the cotton and indigo, the *suit brought by Gomez &■ Rivera in chan- [*448], eery, and that they had obtained an injunction on the ground of fraud, on the part of the appellant, and that the [*449] suit remained ^undetermined ; and praying that the appellant might be enjoined from suing out execution on the judgment obtained by him against the respondents in the supreme court, *as it would be unjust to [*450] permit him to receive the money, until it was ascertained whether he had been guilty of the fraud alleged by [*451] the purchasers. The bill concluded with, *praying an injunction and relief. An injunction was accordingly issued.
    
      On the 7th Jane, 1798, the apppellant put in his answer *to the bill of the respondents, in which he [*452] set forth the bill filed by Gomez & Rivera, and his ■answer to that bill, in which he explicitly denied every allegation of fraud.
    
      [*453] *To prevent any risk or inconvenience tothe appellant, the chancellor ordered the respondents, to pay the amount of the judgment into the bank of New York ; and the plaintiff was permitted to draw *out, unconditionally, about 53,000 dollars; the re- [*454] sidue ivas received by him, on giving security to refund, in case it should become necessary, by the decree of the court.
    [*455] * After publication had passed, the chancellor, on the 1st March, 1799,. directed that an issue should be tried in the supreme court, to determine whether there had been *any fraud in the sale of the cotton and indigo, [*456] and ordered the trial to be before a special jury, at. the next circuit court in the county of Dutchess.
    [*457] *A previous question having been reserved by the counsel on both sides, to be determined as preliminary to the trial, namely, “ whether the respondents were precluded *by the antecedent circumstance, from [*458] insisting on the alleged fraud as a ground of relief,” the chancellor decided that they were not precluded, and [*459] confirmed the *order for the trial of the issue. From this order, the present appeal was entered to this court.
    The evidence given in the. court of] chancery on the part •of the respondents, was in substance as follows: [*460] That the appellant in his conversations with Gomez, Lopez, and Rivera represented the cotton as of the growth of the Isle *of France, and the indigo as of [*461 i two qualities, Flotang and Violet copper ; and that he produced samples agreeing with this representation; [*462] that the purchasers wished to delay *the conclusion ' of the bargain for a few days, in order that they might examine the articles, but the appellant objected, saying the delay was unnecessary, as he would warrant *the [*4b3] articles, and if allowed, the drawback would be lost, as the time for exportation with that privilege was nearly expired; that the purchasers were ignorant of the nature [*464] *of the articles, but relying on the promise of the appellant to execute a waranty, they concluded the bargain without further examination, and left the shipment of the *articles to the direction of the appellant; that the ap- [*465] • pellant and a person who was his broker, produced letters from France stating, that cotton like the sample exhibited *was worth there from a dollar to a dollar [*466] and a half, a pound, and indigo five dollars a pound ; • that it was discovered in London,, that the cotton was of the [*467] growth *of Surat, and the indigo of five different kinds, a small quantity only being of the qualities represented ; that in consequence of this discovery. Gomez, who was present, ^abandoned the articles to [*468] the agents of the respondents in London; that the cotton sold for seventeen pence sterling, and theindigo at four shil[*469] lings and six pence, and five Shillings a pound; but had they been of the qualities represented, the former would have sold for three shillings and three pence, [*470] and the latter for eleven shillings or eleven *shillings and six pence sterling, a pound ; that after the omission of the warranty in the contract of sale, application was made to the appellant to have it inserted, which *he [*471] declined, alleging as a reason, the controversy between him and the respondents, but said that it should be done soon; that all the partners were concerned in [*472] and privy to *the purchase; that the market price in New York, at the time,, for Surat cotton was 22 cents a pound, and for copper indigo, 94 cents a pound*
    
      *On the part of the appellant, his answer on oath, [*473] denying all the allegations of fraud, and that there were any representations of fraud as stated by the witnesses of the respondents, *was relied on. It [*474] also appeared to be confirmed by the evidence'of Moses Lopez, one of the purchasers, and Abraham Gomez, juh. [*475] *It appeared further, that the first application for the purchase; was made to Gouverneur, one of the respondents, in consequence of an advertisement in the gazette of *the 9th March, 1795, stating, “ 600 [*476] bales of cotton to he sold by the respondents, on favorable terms, which they offered as a good speculation for [*477] France that when the *bargain was concluded, no persons were present, except the purchasers and the appellant, and A. Gomez, jun;, that no means were [*478] used by the appellant to prevent a free *examitiation, of the articles; that Gouverneur, one of the respondents, told Lopez and Rivera, that the cotton was from the Isle of France, of the description of Aumude *cotton, [*479] producing a sample, and asking for it three shillings or three shillings and six pence a pound, with the advantage of the drawback ; that Rivera informed his partner,. [*480] *Gomez, of the result, and(sho wed him the sample; thatGouverneur told them, that there was a quantity of indigo which must go with the cotton, and showed samples, demanding *eighteen shillings a pound ; the indigo [*481] was stated to be of the Isle of France. Gomez said that he understood, that Amoude cotton was the same as [*482] Surat, but that he had *no personal knowledge of the article, and relied on the representation of Gouverneur, one of the, respondents, who assured him, that the indigo would probably sell in France *for three dollars, and [*483] the cotton for one dollar a. pound; that A. Gomez showed a price current from France, which stated the prices [*484] to be as- mentioned by Gouverneur : that *the cotton was deliveredfrom the store of the respondents, where it was weighed and might have been examined.
    
      Several witnesses testified, that Amende was the best *Surat cotton, and the difference between it and [*485] that of the Isle of France was too striking to be mistaken ; and that the external appearance of the bales showed [*486] it to be Surat *cotton, and that some of them were opened. There was various other evidence, in cor-' roboratióñ Of what is here stated, which it is unnecessary to detail.
    
      *Three questions were raised by the counsel for [*487] the appellant, for the consideration of the court.
    1. Whether, inasmuch as previous to the trial at law, *between the appellant and respondents, they [*488] had full notice of the pretended fraud, by the bill exhibited by Gomez and Rivera, they were not bound, if they [*489] meant to *avail themselves of that defence, to do it upon that trial, and, consequently, whether they Were not precluded from urging it. to impeach the judgment against them ?
    
      *2. If not precluded, whether, from the nature of ■ [*490]' the testimony in the cause, it was proper that there should be an issue to be tried by a jury 1
    
    
      [*491] 3.  Whether this court, being regularly in possession of the cause, with all thé evidence, will not decide the whole controversy between the parties ?
    
      Hamilton, Harison and Burr, for the appellant,
    
      B. Livingston, Troup and Gouverneur Morris, for 'the respondents.'
    
      
       The following report of the cause in the supreme court, may be found useful, and will throw some additional light upo.n the above case.
      
        Supreme Court:—January Term, 1797.
      Le Guen against Gouverneur & Kemble.
      In ordinary cases a factor is bound to comply with the instructions of his principal in the disposition of the subject entrusted to his care. The factor has a lien on it for all his advances, commissions, and responsibilities; and he is not compellable to part with the subject or its production, if not converted into cash, until’ those demands are completely satisfied.
      But where G. & K. trading in the city of New York, as factors for L., sold to R. and others, indigo and cotton Reexportation to Europe, amounting to $122,000, for which, the purchasers gave their promissory notes, payable in one year, with interest after 60 days, and by a written contract entered into between G. & K. and the purchasers, among other conditions it was stipulated that the said G. & K. “ might have it in their option to receive the whole, or a part of the amount of the said notes at Havre de Grace or at any other port, the ship carrying the property for the purchasers might discharge at in Europe,” together with a premium of 5 per cent thereon for receiving it in Europe, and a few days afterwards the goods were shipped, and the vessel sailed for Havre de Grace, and from thence to Hamburgh, and L. made repeated applications to G. & K. to make election, under the stipulation aforesaid, to receive the purchase money out of the proceeds of the articles in Europe, and to give an authority by which L. might receive the surplus thereof, after G. & K. had retained a sufficient sum to indemnify them for all their advances and responsibilities on account of the appellant L.
      It was held that the election reserved to G. & It. by the contract with R. must be considered for the benefit of L., G. & K. having been made fac- ) tors for the benefit of L., and this stipulation being incident to the trust confided to them, and that G. & K. could not avoid a compliance with the instruction of L. as to the exercise of the right of election, without violating their duty.
      Though G. & K. were not compellable to part with the subject confided to them as factors to be disposed of al New York, so as to permit its exportation, without being satisfied for the whole amount of their commissions, advances, and responsibilities; yet by assenting to the exportation they virtually stipulated to exercise the rights they had acquired as factors, at the port of discharge in Europe; by that means relinquishing the locality of their agency, and consenting to leave it at large, thus establishing the same relations between them and their principal at the port of discharge, as subsisted at New York previous to the arrangement contemplated by the contract ; and their refusal to authorize L. to receive the surplus of the proceeds of the subject, after satisfying the demands of the defendants at the port of discharge, was a violation of their trust, which amounted to a full evidence of an intent to convert the whole to their own use, regardless of the interests or instructions of their principal, and that for such violation they became liable to L.
      The proper rule of damages in such a case is the amount of the sales to R. deducting the amount of the demand of G. & It. against L.
      This was an action of assumpsit. The declaration contained two counts. The first count was on a special agreement as follows:
      Louis Le Guen complains of Isaac Gouverneur and Peter Kemble, in custody, &c., for that whereas the said Isaac Gouverneur and Peter Kemble, on the 13th April, 1795, were, and long before had been, und ever since have been, and now are, merchants and factors, to wit, at the city of New York, at the first ward of the said city, in the county of New York, and during all that time, have carried on there the business of factors under the firm of Gouverneur & Kemble, and as such factors have been used to receive from divers persons, goods, wares, and merchandize, to be sold and disposed of upon the account of such persons respectively, and the same goods, wares, and merchandize, to sell and dispose of upon such account, in consideration of certain rates of commission or factorage to them allowed upon the amounts of the sales by them made of such goods, wares, and merchandize, according to the usage and custom of the business of factors aforesaid, in the city aforesaid. And: whereas the said Louis, on the said 13th day of April, in the year aforesaid, at the city, ward, and county aforesaid, was possessed of 257,129 pounds of cotton wool, and 12,995 pounds of indigo, as of his own proper goods and chattels ; and he the said Louis being so thereof possessed, it was then and there agreed by and between the said'Louis and the said Isaac Gouverneur and Peter Kemble,- that the said Louis should deliver -the said cotton wool and indigo to the said Isaac Gouverneur and Peter Kemble, to be by them sold and disposed of upon his account, and that they the said Isaac Gouverneur and Peter Kemble, should sell and dispose of the same upon -his said account, and should advance and pay, or become bound as sureties, for the freight, duties, and all other lawful and reasonable charges and expenses of and concerning the said cotton wool and indigo, and for so doing should be allowed a commission of 2¿ per cent, upon the amount of the sales thereof, and such further commission as according to the course of their agency therein, and the usage of merchants and factors in the city aforesaid, in the -like cases, they- might be entitled to have, as a reward for their pains and trouble therein: And whereas the said Louis, in pursuance of that agreement, after-wards, that is to say, the same day and year aforesaid, at the city, ward, and in the county aforesaid, delivered the said cotton wool and indigo to the said Isaac Gouverneur and Peter Kemble, to be by them sold and disposed of as aforesaid ; and the said Isaac Gouverneur and Peter Kemble then and there received the said cotton wool and indigo, to sell and dispose of the same as aforesaid: And whereas the said Isaac Gouverneur and Peter Kemble, after the delivery to them of the said cotton wool and indigo, to wit, the same day and year aforesaid, at the city, ward, and in the county aforesaid, sold and disposed of the said cotton wool and indigo, by the description of “ upwards of 600 bales of cotton in the gross weight,” and “ about 12,000 weight of Isle of France indigo,” to Abraham R. Rivera, Isaac Gomez, jun. and Moses Lopez, of the city aforesaid, merchants, for the account of the said Louis Le Guen, upon the terms and conditions following, to wit, that they the said Abraham R. Rivera, Isaac Gomez, jun. and Moses Lopez should pay to them the said Isaac Gouverneur and Peter Kemble for the said cotton wool, by the description aforesaid, at and after the rate of three shillings current money of the state of,New York, for each pound thereof; and for the said indigo by
      
        the description aforesaid; at and after tlie-rate of sixteen shillings of like current money aforesaid for each pound thereof; and towards that payment should make and deliver to the said Isaac Gouverneur and Peter Kemble their joint notes in writing, commonly called promissory notes, thereby promising to pay to them the said Isaac Gouverneur and Peter Kemble, or their order, twelve months after date, the a-piount of the said cotton wool and indigo, at the rates and prices aforesaid, with interest thereon for the term of ten months, at and after the rate of six pounds for every hundred pounds for a year, and should cause the said cotton wool to be, on or before the 25th May, next ensuing, laden on board a certain ship called the White Fox, then being in the port of the said city of New York, to be carried in the said ship to Havre de Grace, in France, or Hamburgh, in Germany, in parts beyond the seas, one or both of the said places, to the intent to sell and dispose of the same there ; and should also cause the said cotton wool and indigo to be fully covered by insurance, and the policy or policies of such insurance should deposit with the said Isaac Gouverneur and Peter Kemble, by way of collateral security towards securing the payment of the said notes, in case of the loss of the said cotton wool and indigo in the voyage aforesaid ; and in case of, and after the landing of the said cotton wool and indigo in some foreign port, should cause the certificates, documents, and proofs required by the laws of the United States, to ascertain the said landing, in order to the obtaining of the drawback of the duties thereupon allowed by the said laws, to be forwarded and sent to the said Isaac Gouverneur and Peter Kemble to the end that they the said Isaac Gouverneur and Peter Kemble, might obtain the said drawback for their benefit; and also should cause to be applied, the proceeds of the sales of the said cotton wool and indigo in France, or elsewhere, as soon as the moneys arising therefrom could be remitted and received in the said city of New York, towards the payment of the notes aforesaid, to abate the growing interest thereon from the time or times of and in proportion to such payment, but that nevertheless the said Isaac Gouverneur and Peter Kemble, should have a right to elect to receive the whole or any part of the amount of the said notes, at Havre de Grace aforesaid, or any other port in Europe where the said ship might discharge the said cotton wool and indigo, to be paid by the said Abraham R. Rivera, Isaac Gomez, jun. and Moses Lopez, to them the said Isaac Gouverneur and Peter Kemble, or their agent, out of the proceeds of the sales of the cotton wool and indigo, together with a premium thereupon, at and after the rate of five pounds for every hundred pounds thereof, for receiving the same, in Europe, and to be paid in coin, th at is to say, in Spanish milled dollars, at and after the rate of 100, cents lawful money of the United States for each dollar, or in French crowns at and after the rate of 110 cents of like money aforesaid for each crown ; and that the said Isaac Gouverneur and Peter Kemble, when advised of such payment or payments, should make endorsements thereof upon the said notes, which said.sale and disposition, upon the terms and conditions aforesaid, are expressed in and appear by a certain agreement in writing, the date whereof is the aforesaid 13th April, in the year aforesaid, made by and between the said Abraham R. Rivera, Isaac: Gomez, jun. and Moses Lopez of the one part, and - the said Isaac Gouverneur and Peter Kemble of the other part, and now in the possession of the said Isaac Gouverneur and Peter Kemble, whereby also the said parties for the true performance thereof, bind themselves each unto the other in the penal sum of 20,000 dollars : and the said Louis doth aver, that the said sale ánd disposition were made, and the said agreement therefor entered into by the said Isaac Gouverneur and Peter Kemble, by the immediate direction, and with the immediate privity and consent of the said Louis, and that all and singular the matters and things in and by the said writing agreed to be performed to the said Isaac Gouverneur and Peter Kemble, and particularly that the right by them thereby reserved, to elect to receive the whole or_ any part of the amount of the.said notes, at Havre de Grace aforesaid,, or any other port in Europe, where the said ship should discharge the said cotton wool and indigo, together with the said premium of five per cent, were intended for the special benefit and advantage of the said Louis,, subject only to the lien and' right of the said Isaac Gouverneur and Peter Kemble, to have and receive the general balance of their account with the said Louis, and to be secured for and concerning such further and other claims and demands, as they might and should be entitled to and have, by reason of their agency and undertakings, for and on behalf of the said Louis, as his factors, to wit, at the city, ward, and in the county aforesaid: And the said Louis doth also aver, that afterwards; and before the aforesaid 25th day of May, in the year aforesaid, that is to say, on the 24th' day of May, in the year aforesaid, at the city, ward, and in the county aforesaid, the said cotton wo"ol and indigo, were by the said Abraham R. Rivera, Isaac Gomez, jan. and Moses Lopez, laden on board the ship aforesaid, then being in the port of the. said city of New York, and the said ship with the said cotton wool and indigo on board, forthwith thereafter set sail from the said port of the said city of New York, to proceed on her said vdyáge immediately to the port of Havre de Grace aforesaid ; by reason whereof, they the said Isaac Gouverneur and Peter Kemble were in duty bound to pursue the direction and request of the said, Louis; as touching the exercise of the right, so as aforesaid reserved, to receive the whole or any part of the amount of the notes aforesaid at Havre de' Grace aforesaid, or at ■any other port in Europe, where the ,said ship should discharge the said-cotton wool and indigo,, together with the said premium thereupon, that is to say,, within the limit and to the extent of the sum which would be due to the said Louis, upon the amount of the said notes, after reserving and deducting there-out so much as would be necessary and sufficient to satisfy the said Isaac Gouverneur and Peter Kemble for the general balance of their account aforesaid, and also to secure them for and concerning such further and other claims and demands, as they might and should be entitled to and have, by reason of their agency and undertakings for and on behalf of the said Louis, as his factors: and were also in duty bound, upon the request and direction of the said Louis, to give to the said Louis, power and authority to receive from the said Abraham R. Rivera, Isaac Gomez, Jun. and Moses Lopez, the residue, of the amount of the said notes, after such deduction and reservation as aforesaid, together with the said premium thereupon, at Havre de Grace aforesaid, or at any other port in Europe, where the said ship should discharge the said cotton wool and indigo, out of the said proceeds of the sales thereof: And in consideration thereof, they the said Isaac Gouverneur and Peter Kemble, afterwards, to wit, on the same 25th day of May, in the year aforesaid, at the city, ward, and in the county aforesaid, undertook, and then and there faithfully promised the said Louis, to exercise the right so as aforesaid reserved, within the limit and to the extent aforesaid, pursuant to his request and direction, and to give to him, if by him requested and directed, the power and authority aforesaid ; and the said Louis in fact saith, that afterwards, to wit, on the same 25th day of May, in the year aforesaid, and often afterwards, at the qity, ward, and in the county aforesaid, he requested and directed the said Isaac Gouverneur and Peter Kemble to elect to receive the amount of the said notes, or at their option, so much thereof as would be due to the said Louis, after deducting and reserving so much as would be necessary and sufficient to pay and satisfy the said Isaac Gouverneur and Peter Kemble, for the general balance of their account aforesaid, and also to secure them for and concerning such further and other claims and demands, as they might and should be entitled to, and have, by reason of their agency and undertakings, for and on behalf of the said Louis, as his factors, at Havre de Grace aforesaid, or at any other port in Europe, where the said ship should discharge the said cotton wool and indigo, out of the said proceeds of the sales thereof; and after such deduction and reservation made, to give to the said Louis power and authority, to receive from the said Abraham R. Rivera, Isaac Gomez, jun. and Moses Lopez, the residue of the amount of the said notes, together with the said premium thereupon, at Havre de Grace aforesaid, or at any other port in Europe, where the said ship should discharge the said cotton wool and indigo, out of the said proceeds of the sales thereof: And the said Louis further, in fact saith, that after such deduction and reservation as aforesaid made, there would remain due to him the said Louis, as for the residue of the amount of the said notes, a large sum of money, to wit, the sum of 70,000Z. current lawful money of the state of New York, of which the said Isaac Gouverneur and Peter Kemble then and there had notice : Nevertheless, the said Isaac Gouverneur and Peter Kemble, not regarding their said promise and undertaking, according to their duty as the factors of the said Louis, so as aforesaid - made, but contriving, and. fraudulently intending, craftily and subtilly to deceive and defraud the said Louis in this behalf, although often requested and directed thereunto as aforesaid, have not elected to. receive the said amount of the said notes or any part thereof, at Havre de Grace aforesaid, or -any other port in Europe, where the said ship should discharge the said cotton wool and indigo, nor have they given to him the said Louis, the power and authority so as aforesaid by him requested of them, as they ought to have done, but have wholly refused so to do, &e.
      The second count was for money had and received to the use of the plaintiff. The plaintiff concluded with demanding damages to 70,000Z. The defendants pleaded non-assumpsit.
      
      The cause was. first tried in March, 1797, at the circuit held in the city of New York, before Mr. Justice Lewis, when a verdict was found for the defendants, on the first count. In April term following, a motion was made on behalf of the plaintiff to set aside the verdict and for a new trial, which was elaborately argued by the counsel on both sides. A new trial was granted by Hobart, J., Lansing, J., and Benson, J., against Yates, Ch. J., and Lewis, J., who dissented.
      The new trial was at bar, when the jury found' a special verdict, and the following are the material facts which it contained:,
      On the 13th of April, 1795, Le Guen was the owner of sundry goods and merchandize, to wit, of 687 bales of cotton, and 24 casks and 38 cases of indigo, which before that time had been placed by him in the hands of Gouverneur & Kemble, as his factors and agents, to sell and dispose of the same for his best advantage, and upon the commission usually allowed to such factors and agents for the transaction of such business. By. the intervention and express consent and direction of Le Guen, Gouverneur & Kemble, as his factors or agents, on the 13th of April, 1795, sold the said goods and merchandizes to Isaac Gomez, jun. and Moses Lopez, copartners in trade, under the firm of Gomez & Lopez, and to one Abraham R. Rivera, upon the terms and conditions contained in a certain contract made between Gouverneur & Kemble, Gomez & Lopez, and Rivera, which was produced in evidence, and is as- follows :
      ‘‘ Whereas Gomez & Lopez, and Abraham R. Rivera, have agreed with Gouverneur & Kemble, to take upon themselves the charter of the Hamburgh ship White Fox, captain Haberstrok, on the same terms which were made with 'Mr, Dohrman, for her to proceed from the port of New York to Havre de Grace and Hamburgh, for the consideration of two thousand pounds sterling, payable in London, conditioned that there shall be fifty running days allowed to load and unload the said ship, and that every day over and above that time the ship may be detained, demurrage of five pounds sterling per day shall be allowed for such detention. And whereas they, the said Gomez & Lopez, and Abraham R. Rivera, do further agree to purchase (and load in the said vessel) from the said Gouverneur & Kemble, upwards of 600 bales of cotton in the gross weight, at three shillings New York currency per pound, and about 12,000 weight of Isle of France indigo, at sixteen shillings said currency, the nett proceeds payable in their joint notes of hand in this city, twelve months after date, with ten months interest thereon, at the rate of six per cent per annum, subject to the following conditions, viz. 1st. That the said Gomez & Lopez, and Abraham R. Rivera, will have the property all covered by insurance, and the policies for such insurance shall be lodged with Gouverneur & Kemble, as a collateral security for the payment of the notes. 2d. That whatever property may be first received from the sales of these goods in France or elsewhere, shall be applied to the payment of the notes, as soon as the money can be received and remitted here, to abate, the growing interest, any time within the twelve months. 3d. The purchasers obligate themselves to return the necessary depositions and certificates of the goods being landed in a foreign country, to enable the said Gouverneur & Kemble to recover the drawback of the duties for their benefit, which they the said Gomez & Lopez and Abraham R. Rivera relinquish any interest therein, and they engage the said cargo of cotton and indigo, shall be on board on or before the 25th of May proximo. 4th. That the said Gouverneur & Kemble may have it in their option to receive the whole or a part of the amount of the said notes at Havre de Grace, or at any port the ship may discharge at in Europe, which they the said Gomez & Lopez and Abraham R. Rivera engage to pay them the said Gouverneur & Kemble, or their agent, out of the proceeds of the sales of the cotton and indigo, together with a premium of five per cent thereon, for receiving it in Europe, which is to be complied with in specie, either in Spanish dollars valued at 100 cents, or in French crowns at 110 cents; and the said Gouverneur & Kemble, on their parts, will make endorsements on the notes, when advice shall be received of such payments being made. For the true performance of all which covenants hereunto subscribed to, the parties bind themselves each untó the other, in the penal sum of 20,000 dollars. Witness our hands in New York, this, 13th day of April, 1795, and seals.”
      The cotton and indigo were on the same day delivered by Gouverneur & Kemble to the purchasers, who, before the 30th of May, 1795, put them on board of the ship White Fox, having previously given their notes to Gouvetr neur & Kemble for 48,9661. 6s. payable in twelve months.
      The cotton and indigo were entered for exportation at the custom house, and Gouverneur & Kemble received a debenture for the sum of 4834Z. 15s. payable on the 15th day of August in the same year, and as agents and fan. 
        
        tors of the plaintiff, but in their otyn names, executed a bond to the United States of America, in the penalty of 12,086 dollars 87 cents, in the usual form, for the landing of the said cotton and indigo in some foreign country, and to produce the regular certificates of evidence thereof, within twelve months from the date thereof.
      On the 4th of May, 1795, GomeZ, Lopez, and Rivera chartered the ship White Fox, of the master, Diederick Kohne, from New York to Havre de ■Grace, and from there to Hamburgh. The charter party was set forth, in the special verdict, and was in substance as follows : Tliat the shippers were to pay 2000 pounds sterling for the entire freight, in good bills on London, and an additional freight for any goods that might be shipped at Havre de Grace for Hamburgh. Fifty days were allowed for loading' and unloading, &c., and five pounds sterling demurrage was to be paid for every day the vessel was longer detained.
      On the 4th of May, 1795, Gouvernetir & Kemble executed a bond to the owner of the vessel, in the penalty of 2’800 pounds sterling, guarantying the due performance of the charter party on the part of Gomez, Lopez, and Rivera ; and on the 28th of the same month, they executed a bond to one Dorhman, who had previously chartered the White Fox, in the penalty of 1800 pounds sterling, guarantying the performance of a certain agreement relative to the charter, between Dorhman, and Gomez, Lopez, and Rivera, on the part of the latter.
      After the sale' and delivery of the cotton and indigo, the plaintiff, on the 30th of May, 1795, wrote to the defendants a letter, in which he expresses his anxiety as to the steps taken by them to secure the payment of the cotr ton and indigo sold to Gomez, Lopez, and Rivera, and adds,' “ it is my wish and desire, 1st. That you insist on the conditions of the deed of sale, which relate to the insurance being performed, and require that the amount of the sale be entirely covered, as-Well as the premium', that in all cases the recovery of the insurance be sufficient for the payment of what is due to me. 2d. That you do not give any order for the disposal of the proceeds of this shipment,, without my knowledge and consent, that I may, if I think proper, avail myself of the 4th article of the contract, to receive the money in France or Hamburgh ; and that wfe may come to a determination on this subject, be so obliging as to point out, and let me know the hour and place at which we may meet.” " x
      An interview took place between the plaintiff and defendants,,on the same day, in which the plaintiff demanded of the defendants to suspend the departure of the White Fox, until the insurance upon her cargo was entirely completed, to furnish him with a copy of the contract or writing, respecting the sale of the cotton and indigo, with an authorization to receive in France the amount- of the engagements of the purchasers, and to give him an extract of the account of Gouverneur & Kemble, that he might pay it to their entire satisfaction and discharge ; to which demand they replied, that the sum wanting to complete the insurance, was not of sufficient consequence to delay the departure of the vessel, and that they would provide for the deficit, and turning to Gomez, observed, that it was his property, and that he had a right to depart with the vessel when he pleased, and that they would, on the next Monday, deliver to Le Guen his account current. Le Guen represented to Gouverneur & Kemble, that the proceeds of the cargo were specially liable for the payment of the money due from the purchasers; that he Could not be burdened with the amount of the freight and premium of insurance, and demanded that the purchasers should give security for the payment of these objects, independent of the proceeds of the cotton and indigo, and that Gouverneur thereupon repeated to Gomez, that the cargo was his property, and that he could dispose of it The ship sailed on her voyage the next day.
      .Gouverneur & Kemble caused insurance to be made upon the cotton and indigo, from the port of New York to two ports in Europe, at different premiums, and in their own names, and paid the premiums, amounting in the whole to 7367 dollars. In the policies was a note as follows:
      “ The vessel is neutral, and the property warranted American, proof of interest to be made here only, and not to be bound by the adjudication of any foreign court.”
      On the 6th of June, 1795, the plaintiff again wrote to the defendants, and, referring to their letter of the 29th of May, he says, “ I requested that my account with you might be prepared, in order to be adjusted, and that I might be enabled, by the possession of the notes, or some competent authorization, and an authenticated copy of the contract of sale, to receive the sum which was coming to me out of the proceeds of the cargo, and informed you that it was my intention, thus provided and enabled, t.o go in person to Europe, to attend the progress of the affair, and receive the payment to which I was entitled; that I had accordingly engaged a fast sailing vessel to carry me, and that the necessary arrangements being made, I should depart the 3d or 4th instant, to give my personal attention to the course of an affair of primary importance to me, and thereby, perhaps, prevent any disastrous consequences which might otherwise arise. These desires, intentions and expectations, were afterwards reiterated by me, but not being met as I could hope, I, on the 30th of May, wrote the letter of which a copy is herewith transmitted, and to which I received no answer. To my surprise, I learnt the next day that the vessel had sailed, and I am this moment ignorant that any adequate means have been attempted, to secure the application of the proceeds of the cargo, according to the wish which I communicated, and the right reserved to me by the contract, and I remain unfurnished with any documents or means by which I might take the measures that might appear to me advisaT ble. Even the precaution which I urged, of addressing the' house of Le Conteulx & Co. of Rouen, an authenticated copy of the contract of sale, to the end that they might take care of my interest, was at that time refused, and as. far as I know, has been omitted. To increase the inconvenience of my situation, I am left with the embarrassment of having on my hands the vessel I had hired to convey me to Europe, and may be exposed to loss from that source. In this situation, I am sorry to be obliged to think, that your house has failed in observing towards me a conduct corresponding with my rights and interest, and I conclude that it has made itself responsible for whatever losses may ensue. Desirous of obviating, however, as far as may still’ be possible, eventual misfortunes to any party, I offer myself to co-operate with you in concerting, without loss of time, such measures as may still be practicable, to give effect to the operation, according to the true intent, and the rights of each party.' To this end, we may avail ourselves of such legal or other advice, as the nature of the- case may render it useful. But this offer is made upon the express condition, that the proposed co-operation shall not derogate in the end, from any claim upon your responsibility for consequences which may at this time exist, and that I shall retain the same rights and remedies that I might have, if no such co-operation.had taken place.”
      . On the same day, Gouverneur & Iiemble wrote an answer, as follows :'
      ■ “ We enclose you herewith, an account of sales of the. goods that were placed in our hands, which render 54,196Z. lls. lOd. for their net proceeds. We also hand you a statement of our account current, and when we are in the receipt of all the money resulting from the sales of these goods, and the drawback of the duties, there will be coming to you a balance of 47,544Z. 15s. 6tZ. We further state, there will be Coming to us 6256Z. 2s. 6'iZ. to cover the present advances, &c. besides which, we are responsible for the charter of the ship White Fox, in 3733Z. 6s. 8d. on your account. Under these circumstances, we have grounded an objection to give you an authorization to receive the money in France for the sales of the goods, until we are first reimbursed and made secure. We have no objection to co-operate with you for the ultimate security of the property upon fair principles of justice and equity. In justice to'those gentlemen who have become the purchasers of the goods, we think proper to observe, that they are men of property and fair characters, and that we are disposed to treat them with a degree of delicacy throughout this unfortunate transaction, which will evidently end in a considerable loss, and prove a .gross deception, by their not having a competent knowledge in the article of cotton ; it would therefore be with reluctance that we should undertake any thing that might operate to their prejudice or injury. Still we are not unwilling to devote ourselves to your interest, nor do we see any reason for all the difficulties and anxieties your imagination is apparently troubled with, without sustaining any real cause of alarm.”
      
        The verdict then states, that on the 6th of June, 1795, Le Guen was indebted to Gouverneur & Kemble in the sum of 4795Z. 6s. 3<Z. and that the defendants held in their hands a custom-house debenture, the property of the plaintiff, payable in August, 1795, for 4834Z. 15s. out of which the defendants were entitled to a commission of 60Z. 8s. 10<Z. which would, after the receipt of the debenture, leave a balance due by the plaintiff to the defendants, of 21Z.- Os. 3d. upon the general balance of their account, as his factors and agents, and that he continued so indebted until and after the month of August, 1795 ; that Gouverneur & Kemble received the amount of the debenture when it became due, and the bonds which they had entered into to the United States customhouse, for and on account of Le Guen, were cancelled onthelst of April, 1796.
      That Gouverneur & Kemble charged the premiums of insurance to Gomez, Lopez, and Rivera, on the 10th of June, in 1795, and received their joint promissory note for the same, payable in six months from that time.
      Several letters passed between the parties, of which the following is extracted as the substance:
      On the 9th of June, 1795, Le Guen writes to Gouverneur & Kemble, “I observe with regret, that (though you have dropped one of the items which originally composed your claim, the premiums of insurance) you persist in the idea of retaining exclusively in your command and disposition, the whole of my property, on the ground of a lien upon it, arising from your agency, which, according to your own statement, amounts to little more than one-fifth of its value, and adhere to your objection, to givepne an authorization to receive any part of it. It was ever my intention, and, as I conceived, imported in my original propositions, to provide for your payment and security to the extent of your just claims, as the condition of the authorization I demanded of you to receive what was rightfully coming to me. This was equally the intention of the co-operation proposed by my letter of the 6th, and I continue disposed to enter into that co-operation upon this principle. It is true, there are several items in your account, about which we differ in opinion; yet I was and am ready to make suitable reservations and arrangements towards a right adjustment of them; but I cannot imagine that this ought to have prevented, or ought now to impede precautions and' measures tending to secure a due application of the proceeds of the cargo, and to put me in possession of the funds to which I am indisputably entitled, and according to the election which was reserved for my benefit in the terms of the contract. On this ground of putting me in a situation to possess, without delay, that to which I am indisputably entitled, and of leaving your just and legal claims upon the property, and otherwise, unimpaired, I am still willing to co-operate. But as I conceive there were pretensions and omissions in the first instance, which render you responsible for consequences, as it may now be too late to repair the deficiency, as every moment’s delay increases the risks, I still make the offer of co-operation, on condition of holding you in the same state of responsibility in which you were prior to that offer. ' At the same time it will be explicitly understood, that in acceding to the co-operation on this condition, you do not incur any new Or additional responsibility. With this explanation, I urge an immediate and positive answer, whether you will concur in an arrangment on this base. Moments are precious. That which might be useful now, may quickly become useless by procrastination. The nature of the co-operation will be an after consideration. The terms to be settled between us, according to our mutual opinions, and the advice we may mutually take.” .
      To this letter Gouveneur & Kemble replied, on the 10th of June, 1795.
      “It is not our wish to throw any embarrassments in your way,'but the magnitude of our claims, and our engagements in your behalf, render it proper that-we proceed with caution. To stop the ship until the insurance was completed was not in our power. Messrs. Gomez, Lopez, and Rivera, stipulated to make insurance, but this might be done as well after, as before the vessel sailed ; and if neglected altogether, it would amount to a breach of contract, only, for which the vessel could not be detained. With respect to the premium for insurance paid by us, although we omitted it in, our last account,, we do not assent to the force of your objection to the payment of it. The insurance being effected for your benefit and security, it is more reasonable that you should run the hazard of recovering back the premium than we, who act only as agents. To remove, however, every impediment to a settlement, and manifest a spirit of accommodation, this charge has been, for the present, dropped. We cannot forbear remarking, that notwithstanding your solicitude to obtain the authorization in question, you constantly uphold á claim upon us for certain consequences, without pointing out in what manner we may have rendered ourselves responsible. Although we are not conscious of any act which calí give you this claim, and are therefore easy on this head, yet you cannot but perceive the impropriety of -our admitting, that we have incurred this responsibility, which we should do, were we to come to a settlement upon the terms proposed by you. As to our lien on the notes and other documents relating to this transaction, we never had any doubt of our right to withhold them, and also to refuse you any authority to act, until the whole of our demand was satisfied, and we satisfactorily secured against contingent claims. Indeed, as the contract is in our name, and we are bound under a penalty of 20,000 dollars to endorse on the notes, which are also in our favor, the payments as they are made, we might insist (were we disposed, as you insinuate, to create difficulties) upon all the moneys passing through our hands, or those of an agent chosen by us, and for that purpose keep possession of every paper until the transaction was finally closed. But we are sincerely anxious to put an end to a controversy, which did not originate with us; for this purpose, we beg leave to refer you to our letter of the 6th instant, in which we were so explicit as to the terms upon which we were willing to give you the authority you desire, and to co-operate with you, that nothing remains to be added. To give you, however, a further proof of our wish for a speedy and amicable arrangement, We are willing, if these' terms are not agreeable to you, to submit the -Whole matter to arbitration.”
      On the 12th of June', 1795, Le Guen writes to Gouverneur & Kemble, “ Agreeable to the contents of my letter of yesterday, I have the honor to transmit you here enclosed, proposals which would set aside all altercations respecting our respective pretensions, until the time when the result of the' payments of Messrs. Gomez, Lopez, and1 Rivera shall be known, saving the' settlement of our accounts, which might take place immediately.- If your desire for an arrangement is as sincere as that which actuates me, I flatter' myself that you will acquiesce & those proposals; proposals agreeable to the fairest principles of justice. As moments are precious, I earnestly desire that you will favor me with an immediate answer.
      
        “ Exposition of the claims of Messrs. Gouverneur & Kemble, according to the-account current, and the' post scriptum that follows
      1st. 625GZ. 2s. 6d. Balance in their favor, exhibited by the . drawback, which will be paid them by the customs,, in the term of three months, £4834 15 O'
      Their commission of receiving and paying, charged in Messrs. Gouverneur & Kemble’s account on 53,597Z. 11s. 5<Z. at 24 per cent, which, according to the regulations of the chamber of commerce, appears due only on the returns from this state to any part of the United States, 1339 18 9-'
      A deficiency of about 7200ZÍ. of sugar, of Mr. Beares? parcel, and which ought to be made good to me, 370 0 O'-£6544 13 9
      which would present an overplus, exclusive of my other clai'ms upon sundry charges, the missing of two bales of cotton, &c.
      2d. 3733Z. 6s. 8<Z. Their guarantee for the amount of the freight, assenting to the freight being paid out of the first proceeds of the cargo, (saving my claim orr whoever it- may concern,) this guarantee becomes void, or nearly so.
      “ From this exposition, it appears, that all the claims of Messrs. Gouverneur & Kemble, ought to be confined to that arising from the Bond they have given at the customs, for the due return of the certificates of the landing of the said goods in a foreign port, amounting to 12,086 dollars 87 cents. Desirous of disposing of my property, and being determined to make use of the right which has been reserved to me, in the 2d and 4th articles of the contract of sale made to Messrs, Gomez, Lopez, and Riverai, enabling me to> receive part of their obligations, or the whole of their amount'in. France, I decide on making the following proposals to Messrs. Gouverneur & ICemble, which will convince them of my dispositions to come to an arrangement.
      “ 1st. To give me an authenticated copy of the contract of sale, and an authorization to receive 100,000 dollars, in part of the obligations of Messrs; Gomez, Lopez, and Rivera, out of the proceeds of the cargo, after the freight shall have been paid, and immediately after that payment only, enabling me fully to receive that sum.
      “ 2d. To keep at their disposal the balance of the above mentioned obligations, amounting to 22,415 dollars 37 cents, for their bond to the customs, saving to myself the disposal of this balance when the landing certificates are1 arrived, and after the final settlement of our account.
      •» 3d. To drop, for the present all altercations, respecting the responsibilty which I have a right to exercise against Messrs. Gouverneur & Kemble, if the delay of the necessary dispositions in France should be productive of some injury to me, in the recovery of the obligations of the purchasers of .my goods;”
      To this letter and the proposals, Gouverneur & Kemble, on the same day, replied as follows: “ Desirous as we are of coming to an accommodation with you, we cannot, consistent with a regard to our own security, accede to the propositions which accompanied your favor of this date. We deem ourselves entitled to a reimbursement out of the first proceeds of the cotton and indigo. If, therefore, we authorize you to receive 100,000 dollars, it may exhaust the whole of the proceeds, in which case our security will bo considerably diminished, as we could have recourse only to Messrs. Gomez, Lopez, and Rivera, on their notes,” &c.
      On the 15th June, Le Guen again writes: “ I had hoped that my propositions would have appeared to you entirely reasonable, or at least, that you would have made me such others in return of a specific nature, as you did yourselves approve. But instead of this, you merely refer me to your former propositions, of which I know not of any, except a reference to arbitration. I am obliged to conclude still more firmly than heretofore,'that it is yonr determination at all events, to retain.my whole property in your disposition; till the final winding up of the speculation of M essrs. Gomez, Lopez and Rivera, and the receipt by you in this country of the proceeds of my cargo. Thus depriving me of the election which was reserved by the terms of the contract, to receive the money coming to me, in Europe, and disappointing all the measures projected on that basis. I protest once more against, this mode of proceeding, and all the consequences, of it; and I demand, for the Ipst time,1 that you forthwith furnish me with an authenticated copy of the contract of sale, and with a competent authorization to receive at the port of discharge, whatever sum shall remain of the proceeds of the goods sold on my account, to Messrs. Gomez, Lopez and Rivera, after deducting and reserving at your disposal, such sum as shall be completely sufficient to cover you for the general balance of your account, and for all that you have made yourselves accountable for on Hay account, also for the commissions' you claim as well on the receipt as on the sale, and even for damages, in case' of protest of the bill of exchange to be drawn for the freight or charter money, and for insurance of the money .which you claim, to cover you for your advances and responsibilities to the United States. This, nevertheless, is not to be understood as a final admission of any .claims on your part, which may not be according to law, and the usage of trade ; but as a preliminary arrangement for your eventual security.”
      On the same day, Gouverneur & Kemble sent the following answer; “ Upon reviewing our late correspondence, we cannot but think that we have manifested every disposition to bring the controversy between us to a speedy and amicable determination. We have offered, and again repeat the proposal, that we will deliver into your hands, all the papers and notes which regard this transaction without delay, upon your giving us satisfactory security in this country, to pay us in a reasonable time our commission, and such sums as we may have disbursed, or made ourselves responsible for, on your account, and also sufficiently secure us against the payment of such sums as we may eventually be called upon by reason of our interference in this business. When it is considered that we have a right to insist upon an immediate payment of the balance of our account-,' as the condition of our delivering up these papers, you cannot deem this proposition unreasonable' We are certainly not obliged to receive payment in France, especially at a time when so many difficulties attend getting money from that country; and were we. to accede to the terms held out by your favor of this date, we should be obliged to wait the event of an application for the money, to Messrs. Gomez, Lopez, and Rivera, in France, before we could have recourse to you. Much more has already been said upon this subject than was necessary ; to conclude, we conceive ourselves entitled to keep all the securities wé have at present, and were we disposed to be litigious, we might, even now, apply to you in a judicial way for "the payment of our demand. This being our situation, we have no hesitation in rejecting your offers of this day as inadmissible. If you are so solicitous of having authenticated copies of the contract, and an authorization to receive the money, we are willing to give them upon the terms herein before mentioned, or upon any other terms which three indifferent gentlemen shall point out.”
      On the 16th June, 1795, Le Guen again writes, among other .things: “I confine myself to demanding of you without delay, an authenticated and' certified copy of the contract of sale made with Messrs. Gomez, ‘Lopez and Rivera, and to declaring to you, that inasmuch as you have, by the circumstances which preceded the departure of the cargo, and in addition thereto', by refusing to comply with all the propositions and demands I have made to you since,, entirely deranged my plans, and deprived me of the power of commanding my funds in France, and of all the advantage from the employment of them there, I hold you responsible, and shall insist upon your responsibility for all losses, damages and disadvantages which may ensue, including an indemnification for the derangement -of the measures I had adopted for proceeding in person to France, to possess myself of my property.”
      On the 17th October, Gouverneur & Item'hle, in a letter, observe; “ That unfortunate adventure of Mr. Gomez, as we were well aware of, is like to turn to a ruinous account. After wailing some time at Havre, he has been obliged to expose it to further risks and expenses, by proceeding to Hamburgh for a market.” .
      On the 7th December, .1795, Gouverneur & Kemble write : “ As á vessel will sail in a day or' two for Hamburgh, we take the liberty to inform you, that we are willing, if it will meet your approbation, to authorize the Ameri-, can consul residing .at that port, or any other gentleman we can mutually agree upon, to receive from Messrs. Gomez, Lopez and Rivera, payment on account of their notes, agreeable to the fourth article of their contract with us. If you deem any other authority necessary,, we will have no objection to. join in it, if the same shall be .consistent'with our safety and security. As. Mr. Gomez is at Hamburgh with the cargo, it is probable such authority will" find him there, and that he will be disposed to treat with our agent upon fair, and equitable terms, The money we propose to remain in the consults hands, subject to our draft, or subject to your own order"; provided you will either pay, or give us good security, for our demands against you. In case of any difficulty in adjusting our account, we will submit the same to the monthly committee of the chamber of commerce, or to any other indifferent persons,”
      To this Le Guen, on the 9th December, replied.; “ You are perfectly apprised on the ground on which I conceive myself to stand. I have made a, contract upon a definite price, and I have legal advice upon which I rely, that you are my guarantee in case ,of disastrous consequences ; looking to your responsibility, I feel tranquil for the event,-and cannot be expected to abandon or weaken so good aground. With'this saving, which I .make, once for ail, as to what I now add,, or .may hereafter say upon the subject, I - reply, to your first letter, that I think it would be. for the interest of ail concerned, that the" proceeds of the cargo in Hamburgh, should be paid into the hands of, and deposited with some p.erson or house of unquestionable responsibility. Not being acquainted with the mercantile standing of the American consul, I can say nothing, but I have entire confidence in either of the houses . of Messrs. Bernherd & Nootnagal, Lubbert & Dumas, and ,-Matthuson & Silem.
      On the 11 th December, Gouvemeur & Kemble again write; “ Under a conviction that it is your wish that we may assume a-discretion which may eventually render us liable, we think proper to inform you, that we shall not empower any house in Europe to receive any payment on the notes we hold, without an express authority from you in writing, for that purpose. Unless we receive explicit directions from you on that head, we shall think it our duty to wait until the money is remitted to this country, or until we receive advice that it is placed in Europe, so as to be commanded by us without any risk.”
      On the same day Le Guen writes; “ I entirely approve of the idea that if the deposit be made with either of-the houses I have indicated, or with any other we may agree upon, X will take the risks of it to the extent of the sum deposited, and it shall in no wise be deemed to implicate you in any new responsibilty. But I consent to this only, on the ground that 1 cannot obtain from you an authorization to receive the proceeds myself, which I should prefer, and if obtained, would immediately depart for Hamburgh. The sum I shall receive will be in deduction for the one I claim, preserving at the same time, all my right for the remaining balance, which I mean to maintain .ini either case.”
      To this, Gouvemeur & Kemble on the same day, answered ; “ We are ready to execute the necessary powers to either of the houses which you mention in your letter of the 9th inst. in such form as our counsel shal jointly agree upon, for the purpose of receiving the proceeds of the cargo sold to Messrs. Gomez, Lopez and Rivera, in this case it is understood, that you secure us for all our claims, and against all the contingent demands which may be made against us on account of our agency, which in case of any dispute, shall be immediately adjusted, if you agree, by the monthly committee of the chamber of commerce, or by any three merchants we can fix upon.”
      On the 26th December, Le Guen writes; “ I have been favored with your letter of the 23d inst. therewith enclosed a copy of the one of the 22d inst, which you wrote to Messrs. Lubbert & Dumas, in Hamburgh, I am sur* prised you do not notice mine of the 22d. I do accept the proposal con* cerning the deposit, as the only one left in my power and referring to my letter of the 19th instant, that as you are unwilling to agree with my proposal to divide the deposite between two houses, I consent that it be paid into the hands of Messrs. Lubbert & Dumas ; as the deposit is at ray risk, I expect that it will not be disposed of, in any case without my consent.”
      On the 2d January, 1796, Governeur & Kemble write ; “ That they are in possession of the information respecting the operations of Mr. Gomez in England, which makes it necessary that the power should go forward to Messrs. Smiths & Atkinson, of London, instead of Messrs. Lubbert & Dumas’ of Hamburgh, which is prepared ready for the purpose, and they will" take care to forward it; that it is probable, from their information, that the property will be removed from Hamburgh to London; that part of the cotton was actually on its way. They will, therefore, pursue’the necessary steps to touch as much of the money as can be done in Europe, hot doubting of :his approbation.”
      To which Le Guen, on the 6th January, answered ; “ Though I will not disapprove of any measures you may take to secure the proceeds of the- cargo for whomsoever it may concern ; yet it must .be understood, that I assume no special risk upon the subject, and that I look more and more to-your eventual responsibility. . The going.with the cargo from the port.of discharge at Hamburgh, to London, changes essentially the nature and effect of the contract.” , '
      On the 25th March, 1796, Gouverneur & Kemble write to Le Guen, that “ they transmit to him therewith, the copy of á letter they have just received from Mr. Gomez, relative to the cotton and indigo sold to Gomez, Lopez apd Rivera. An extract of a letter relative to it, from Messrs. Smiths & Atkinson, of London ; and that -after he has perused them" attentively, they would be glad to receive his directions respecting it, if he wishes anything to be done on their parts.”
      To which Le Guen on the 28th March, replies; “ I have received your note of the 25th inst. with copies of letters of the 5th and 6th of January last, from Mr. Gomez, and Messrs. Smiths & Atkinson, In answer, I refer you to mine to you, of the 6th January last; and have only to add, that situated as the affair is, I have no directions to give.”
      The verdict then states, that by the- custom of Normandy, in which province the port of Havre de Grace is situated, the vendor of a cargo of goods and merchandizes has a privilege or lien upon the cargo, for the price of it, until it is sold" by the purchaser, and actually delivered to -another person : And that in consequence of such lien or privilege, such vendor, if he thinks himself in danger of losing his security, may apply to the consular tribunals for redress, and" that such tribunals, proceeding upon principles of equity and .good -conscience, would interpose to prevent the removal of such cargo by the purchaser to another place; unless upon good security being given to tire vendor,- it appeared that it would thereby be subjected tó great danger or deterioration, and this, even if there was a clause in the contract of sale allowing the going-to another port.; but that in -the last case very strong proof would be required that, the purchaser was, in real danger of suffering by the removal; that Louis Le Guen always was, arid yet is; a citizen of France ; that Gouvernedr & Kemble did not, at any time previous to the 1st December, 1795, elect to receive the proceeds of the said cotton and indigo at the port" of discharge, nor to give to the said Louis Le Guen any authorization to receive the proceeds of the said cotton and indigo in Europe, or any part thereof, and did, on or about the 22d December, aforesaid, elect to receive the said proceeds at Hamburgh, and afterwards did, on the 2d January, 1796, elect to receive the said proceeds at London ; that in the month of June, 1795,- a demand was made by the plaintiff, of the defendants, for an authorization to receive from the said Gomez, Lopez aud Rivera, agreeably to the terms of the contract aforesaid, at the port in Europe, where the said ship White Fox should discharge her said cargo of cotton and indigo, such sum or sums of money as should be due to the plaintiff on account of the same, after deducting therefrom and leaving subject to the control of the defendants, a sum sufficient to re-imburse them for the balance due the defendants on the adjustment of their accounts, arid also a sufficient sum to indemnify the defendants against engagements .they had entered into on account of the plaintiff, in the course of their said agency, with which demand the defendants refused to comply ; that the defendants, when the said demand was made, offered, and proposed to resign all the papers, notes and other documents relating to the said agency into the hands of the plaintiff, and give him a competent authorization to conduct the said business, on the plaintiff’s paying to the defendants the balance Of their account, and on the plaintiff’s securing the defendants in this country against any engagements they might have entered into, pr responsibilities to which they bad exposed themselves, in consequence of their agency, with which offers and proposals the plaintiff neglected and refused to comply ; but whether by reason of the premises the said Isaac Gouverneur and Peter Kemble became liable to the said Louis Le Guen, as is stated in the first count of the declaration, the said jurors are ignorant, and they pray the advice of the court in the premises; And if the court shall he of opinion, that the said Isaac Gouverneur and Peter Kemble, by reason of the s.aid premises, have made themselves liable to pay the plaintiff the amount agreed on by the said contract as the price of the said cotton and indigo, then the said jurors do say, upon their said oath, that the said Isaac Gouverneur and Peter Kemble did undertake and promise, in manner and form as the said Louis Le Guen hath, in and by the first count of his said declaration , above alleged ; and they assess the damages of the said Louis Le Guen, by reason thereof, over and above his costs and charges by him about his suit in that behalf expended, to 119,302 dollars 66 cents, and for those costs and charges to six cents ; but if the said court shall be of opinion, that the said Isaac Gouverneur and Peter Kemble did not, by reason of the ¡premises, be-, come liable as aforesaid, then the said jurors find, that the said Isaac Gouverneur and Peter Kemble did not undertake and promise, in manner and form as the said Louis Le Guen hath, in and by the said first count of his said declaration above alleged.
      
        
        Burr, ilarison and Hamilton, for the plaintiff.
      
        Cozine, Pendleton and B. Livingston, for the defendants.
      Lansing,. J. This action was brought by the plaintiff, against the defendants, as his factors, substantially,
      1. For not electing, pursuant to his instructions, to receive the proceeds of ' certain parcels of cotton and indigo in Europe: And,
      2. For not giving to the plaintiff authority to receive, at the port of discharge, so much of the proceeds of the sales of such cotton and indigo as remained, after deducting a sum sufficient to cover the defendants for the general balance of their account, and other claims and responsibilities, in consequence of their agency.
      This action, in its consequences affecting private interests, of great magnitude, has been- strenuously' contended between the parties, in every stage of its progress which would admit of urging their adverse and totally irreconcilable pretensions. ■ '
      
      In the ardor of controversy, they have, however, conceded these points, which without their concession, would not admit of a doubt. That, in ordinary cases, a factor is bound to comply wi th the instructions of his principal, in the dispositiomof the subject entrusted to his care. That the factor has a lien oii it, for all his advances, commissions and responsibilities; and that he is not compellable to part with the subject.or its production, if not converted into cash, until those demands are completely satisfied; for if the subject is converted into cash, the reason for pledging the'whole, for the security of the factor, ceases ; as, by retaining the sum he is entitled to, or responsible for, he can incur ño further risk of failing in an ultimate satisfaction.
      No doubt could arise respecting the application of these principles to this case, while the subject remained to be disposed of in the ordinary mode of sale, at the place at which it appears both parties originally contemplated a disposition of the subject.
      But the parties having by a contract, to which they all assented, made an arrangement to convey the subject to Europe, their situation was by that means varied as to the local exercise of their respective rights ; and which, I take it by that contract, they reciprocally agreed to modify, so as to carry it into effect in all its parts, preserving their mutual relations and rights, as principals and factors.
      The- questions which arose on the contract were ;
      1st. Whether the defendants were bound to elect to receive the proceeds of the subject of factorage in Europe ?
      2dly. Whether the plaintiff had a right to exact payment of the surplus from the defendants in Europe, after satisfying the whqle amount of their commissions, advances and responsibilities ? and,
      
        3dly. If the defendants were bound to make such election,- and were subject to make such pavhient, what ought to be the measure of damages ?
      As to the first point, the subject of factorage was evidently entrusted to the defendants for the benefit of the plaintiff; his interest was the primary object to be attended to in the conduct of his factors, and every instruction given by him not incompatible with their rights, it was their duty to conform to and carry into effect. The election reserved to the defendants by the contract with Gomez, Lopez, and Rivera, must of necessity be considered, as for his benefit and emolument, and as inseparably incident to the trust confided to them; for every disposition of the subject, pursuant to the instructions of their principal, could only be for his advantage exclusively; unless some positive contract detracted from, or made a different modification ¡of his interests» From the most attentive examination of the contract given in evidence at the trial, I could discover no traits in it, to satisfy my mind that it Was the intent of the parties that this obvious principle should be departed from. The reservation of the rights of election to receive the proceeds of the cotton and indigo, either at New York or in Europe, and the premium to be received by the defendants, if they should elect to receive in Europe, were in my opinion, clearly intended, and ought to enure solely for the benefit of the plaintiff; if so, the defendants could not, after consenting to export the subject, avoid a compliance with the instruction of their principal as to the exercise of the right of election, without violating their duty.
      As to the second point, it appeared to me, that though the defendants Were not compellable to part with the subject confided to them as factors, to be disposed of at New York, so as to permit its exportation, without being satisfied for whole amount of their commissions, advances and responsibilities; yet, that by assenting to the exportation, they virtually stipulated to exercise the rights they had acquired, as factors, at the port of discharge in Europe; by that means relinquishing the locality of their agency, and consenting to leave it at large, and thus attaching their rights and duties to the subject, to be exerted and exercised at whatever place it might be transmitted to, in pursuance of the contract, to which they were parties, and thus placing themselves in the same situation, and preserving the same relations at the port of discharge, as they were placed in, and as subsisted between them at New York, previous to the arrangement contemplated by the contract.
      If this is a legal and consistent exposition of the contract, it would result, that though the defendants might retain the control of the property of their principal, either personally or by substitution of others, whom they supposed trust-worthy, and for whose conduct they were content to be responsible;■ until it was converted into money; yet the instant it was so converted in their hands, or in those of their agent, it was their duty, after retaining the amount of their commission, advances and responsibilities, to pay the surplus to the plaintiff, at such port of discharge, if he should require it; and that as their agency was indispensable to enable the plaintiff to avail himself of his rights, under the contract in question, by becoming parties to it, they expressed their readiness to do, and submitted to the obligation of doing every thing in their power, which could be reasonably expected from them as factors, to facilitate the arrangement they had acceded to, so as to produce consequences most advantageous to their principal, not impairing their own rights.
      , In this case the contract was made with, and in the names of the defendants ; the plaintiff must rely upon their ágency, ór on authority received from them, to enable him to exert any power in controlling the destination, or obtaining any part of the proceeds of the subject; if they refused their aid to effect both or either of these objects, they were unattainable by the plaintiff. I hold that he had a right to exact'from the defendants this; aid, so far as to enable him to receive the surplus of the proceeds of the subject,, after satisfying the demands of the defendants at the port of discharge-^that their refusal to authorize him to receive such surplus, was a violation of their trust, which amounted to full evidence of an intent to convert the whole to their own use; regardless of the interests or instructions of their principal; and' that for such violation they became liable, as in cases where the factor had, contrary to the instructions of his principal, credited, or credited for a longer period than that limited by such instructions. In both these cases it has been held, that the giving such credit is evidence of a disposition by the factor on his own account, and that he is answerable for the amount to his principal whatever may be the result of such sales.
      
      In giving this opinion, I lay out of the case, as totally inapplicable to its real merits, the various propositions reciprocally made and rejected by the parties ; as propositions made by one party, to which the other Was not obliged to accede, they could not influence a decision oh the questions which arose in the cause. The demand made by the plaintiff, in his letters of the 15th of June, is such a one, "as I think he had a right to exact a compliance with, and that the refusal on the part of the defendants to comply with it',was, in effect, a dereliction of the relation in which they had placed themselves as factors to the plaintiff, of which he might avail himself, to hold them' accountable for the whole subject, by substitution, instead of Gomez, Lopez,, and Rivera.
      As to the third point—
      All the facts respecting this transaction in Europe, were of a nature incapable of being developed in the course of legal investigation here, till several months after the vessel sailed from New York. The plaintiff’s right of action, however, accrued upon the refusal of the defendants to comply with his" demand. If we depart from the subject, and do not consider its value as settled by the contract to which the defendants were parties, I know of none, to which a resort could be had for the measure of damages ; and I have, since this cause was first presented for my determination, sought it with a considerable degree of solicitude, arising from the important consequences of that opinion, as affecting the plaintiffs. I could not, however, satisfy myself, that any other measure could be resorted to on this occasion ; and if the withdrawing the subject from the control of the principal, if assuming an absolute and uncontrolled disposition of it, amounted to a conversion of the property of the principal by the factors to their own usef the amount of the sales to Gomez, Lopez, and" Rivera, deducting the amount of the defendants’ demand, appears to me, to present not only a reasonable, but the only rule of damages in this case.
      I am, therefore, of opinion, that the plaintiff is entitled to judgment.
      Benson, J. The question in this cause is, whether the trust which the defendants took on themselves for the plaintiff was such, as that he had a right to demand from them what he did demand, in his letter of the 15th .Tune, 1795. The facts from which this right is to arise, are those only which preceded the 31st May, inclusive, being the day on which the ship sailed, with the cotton and indigo on board. None of the subsequent facts, or matters found by the verdict, have varied or in any manner affected the trust, as it then was, and are, therefore, no further material or useful to be considered, than as some of them may serve, in the nature of circumstantial proof, to give a more full and distinct knowledge of the preceding facts. Hence it will be perceived, that the question does not depend on the law of principal and factor, as to the rights of the latter to retain. The rules of law on this subject, generally, are acknowledged to be, that the factor has a right to retain the property of the principal until his legal demands against him are paid; that however small the amount of the demands, and however great the amount of properly may be, the factor is not bound to deliver up any parcel of the property, but may retain the whole ; that he’hath a right to retain, not only until he shall be reimbursed such sums as he may have paid, but also until there shall be deposited with him a- sum, competent to answer whatever he may have become liable to pay on account of his principal, as well contingently as absolutely ; and that he is not held to accept of a security of any kind instead of a deposit, nor á deposit of goods instead of a deposit of money ; but these rules being applicable to cases only where the principal demands the property to be delivered up to him, are inapplicable to the present case, in which the principal, so far from demanding to have the property, or any part of it, delivered up to him, demands only a mean to enable him to receive in another and distant place, where the same is payable by the vendees of the .property, “ the sum which may remain after the factors shall’ have deducted and reserved at their disposal, a sum completely sufficient to cover them for the general balance of their account, however claimed." According to this statement of the question, it will also be perceived, that, to seek for particular rules, or for adjudications precisely and throughout.apposite, to it, would be fruitless and unnecessary; and that for a decision on it, there must be a reliance wholly on judgment or discernment, in applying to the case, in its peculiar and appropriate circumstances, the universal maxim, that with the end the means also must be intended to be granted. In this view of the controversy, and of the grounds' on which it rests, it necessarily divides itself into the following inquiries : 1st. Ts- the stipulation in the 4th article of the contract, reserving an option to the vendors to receive the. whole, or any part of the consideration money for the goods, in Europe, in preference to leaving it, to be receivable in this country, to be adjudged to have been intended for the interest or benefit of the plaintiff, the principal, instead of being, fertile interest or benefit of the defendants, the factors or substitutes ; or in other words, is" the interest or benefit of the plaintiff so to be separated from, or paramount to, any.interest or benefit of the defendants, as to be deemed, the end; to- have been intended to be answered by that stipulation? If so, then—2dly. Was what the plaintiff demanded from the defendants, in his letter to them of the 15th June, 1.795, a fit and. reasonable mean to that end ?
      With respect to the first of these questions, it would appear to. me that a mere statement of jt precludes the necessity of proof, or demonstration of the truth of the affirmative ; if the stipulation specified in the question, is for the interest or benefit of the defendants, I do not see a reason for not supposing every other stipulation in the contract equally so. I cannot even imagine a rule or test by which the stipulations intended for the interest or Benefit of the party' principal are to he discriminated from those which were intended for the interest or benefit of the party factors; so that the reasoning, as I view it, to prove that the stipulation under consideration was for the interest or be.nefit of the defendants, must terminate in a conclusion, that the . whole, contract was intended, for their interest and benefit. The sale of the goods, the persons to whom, and the terms on which they were sold, were by the “ express direction” of. the plaintiff; the defendants accept of, and submit to the direction ; they are mere instruments, to effect what he had determined was for his own, not for their, interest and benefit." The sale was of the residue of the cargo of the ship Cleopatra, received by the- defendants', to be sold on account of the plaintiff; had the .defendants- a different or a greater interest or benefit in the last sale than they had in. the preceding sales?" In their accounts their commissions are the only interest or benefit they claim.' On a calculation of whose profit Or advantage is it to be,' to elect having the consideration money for the goods made payable in Europe, instead of leaving it to be payable in this country ? Was it to be on a calculation of profit or advantage to the defendants ? To whose use was the premium, or in effect, additional price, of five per cent on the goods to be, in the event of the option to receive the money in Europe, to the use of the defendants or to the use of the plaintiff. Most certainly to the use of the latter; and that consideration alone appears to me to furnish an argument decisive on the point. I will only add, that the truth of the proposition, that the sale in question, and every term and condition of it, is to be considered as intended for the interest or benefit of the plaintiff, primary to and exclusively of any interest or benefit to the defendants, except their commissions, is so evident, to my mind, that it is not without difficulty that I can persuade myself that I have rightly understood the defendants’ counsel, when I suppose they meant to contend for any thing different from or contrary to it.
      With respect to the second question also, I think the truth is not less obvious, and that it ought almost to suffice, merely to state, that to suppose the right to elect to have the money receivable in Europe, should be reserved for the interest or benefit of the plaintiff, and consequently, that the defendants were bound, in virtue of their trust, to exert this right for him, whenever he should require them, and that they should, at the same time, have a right to refuse to enable him to receive the balance there, but to withhold it from him, until, after having been received there by them, or their agent, it should be remitted to this country, is to suppose two rights in one and the same subject, claimed by opposite parties against each other, and which can never be made to consist together. Where was" the inconvenience or grievance of which the defendants could complain, If they were to be held to pay the plaintiff his balance in Europe ? The business of receiving the money from the vendees of the goods, of making out and settling the account with the plaintiff, and paying him the balance, could have been done by an agent; not so conveniently to the defendants, it may be admitted, as if done in this country; but Was the inconvenience of doing these aets by another instead of themselves, or abroad, at a sea port in Europe, instead of at home, such as the law must intend the hazard of it not to have been within the trust or agency? Surely the law must intend the reverse. Waiving, however, the general intendment of law, it might still be asked, what would be the particular intendment in . this case, from the express, and as it were, special provision in the contract^ that the money, if the option should be to receive it abroad, should be payable also to the agents of the defendants ? The objections to the demand of the plaintiff for an authorization to receive his balance in Europe, as declared by the defendants themselves in their letter, in answer to the demand, are, “ that they were not obliged to receive payment in France, especially at a time when so many difficulties attended getting money from that country, and that if they were to accede to the terms held out by the plaintiff, they would be' obliged to wait the event of an application for the money to the vendees of the goods, before they could have recourse to the plaintiff for the payment of their account.”
      I have already expressed my Opinion, that the plaintiff had a right to de - mand from the defendants to declare an option to receive the money in Europe ; and it is only requisite further to state, that this right of the plaintiff could never depend on a greater or less degree of difficulty,, if any, to the defendants, in getting their portion of the money, their commissions and disbursements, from that country; and further, that if the defendants had at any time brought.a suit against the plaintiff, or, as they have expressed it, “ had recourse to him, or applied to him in a judicial way,” for the payment ■of their demand, it is not possible that he could have availed himself of the authorization from them to receive his balance in Europe, to any possible purpose of defence whatever. Let the fact that the defendants had furnished him with the authorization, and. on the terms as contained in his.letter, be put ill the form of a plea, and it will instantly be discovered to be scarcely better than a nullity.
      The remaining question is, as to the rule by which the jury have assessed the damages, and which, from the record, appears to have been “ the amount agreed on by the contract, as the price of the cotton and indigo.” Damages, whether the assessment of them is by the court, as their immediate act, or by reference to "a jury, are to be according to definite rules; but where there can be no definite rule in- the case, as for instance, where exemplary or implied damages would be warranted, still the assessment is not to be wholly without rule ; it is to be according to legal discretion or arbitrament. The case of a returned protested bill, of exchange, is a case of a definite rule ; the damages are to be 20 per cent on the amount of the bill, with interest from the time of the notice of the protest, without any inquiry, and, consequently, without any addition or diminution, in consideration that the plaintiff has or has not sustained more or less, or any special, or, indeed, any actual damage whatever. Suits in trover and in trespass for carrying away goods, are also so far cases of definite rule, as that the damages are to be at least the value of the goods at the time of the conversion or trespass, or in other words, at the time when the right of action accrued, without regard to any subsequent deterioration, however casual. I state at least the value of the goods, for the damages maybe made to exceed that amount, where the withholding or taking the goods, was aggravatedly injurious. The case now before the court is within the reason, and therefore, within the rule, in the eases of trover and trespass. I have already mentioned such of the rights of the factor as can have any relation to the questions between the present parties. I now briefly state his duty generally to be, that he is to follow the orders of his principal, and for a breach of the orders he is to answer in damages to his principal; if the breach is merely partial, and as to certain, parcels, or particulars only, he shall not be held to answer further than as to such parcels or particulars ; but if the breach is such as to involve the whole of the property entrusted to him, he shall then be held to answer for the value of the whole of the property, and as such value was, at the time the breach of orders took place : and if the property consisted in credits, to answer to the amount of the credits, and the principal may from that moment abandon to him the whole of the property. Whenever the principal, in order to a suit against the factor, for not delivering up the property when ordered or required, tenders a sum for commissions and other demands, the principal tenders, and the factor refuses at their peril respectively ; for if it should appear that the sum tendered was sufficient, the principal will recover the value of the property at the time of the tender; and the rule was the same, whenever the factor refuses to do an act which the principal was entitled to demand, and which affects the whole of the principal. If such are the duties of the factor, and if such is the measure of the damages or retribution to the principal for his injury, where these duties have been violated or departed from, the conclusion, that the damages were duly assessed in the present suit, is obvious.
      I conclude with remarking, that the controversy between the parties may be satisfactorily resolved in this as its cause, that the defendants have accepted an agency, and bound themselves to execute it in a foreign country, if their principal should at any time elect it, as most for his benefit, without previously calculating and providing for their own profit and security, if it should then come in competition with his; and that afterwards, when too late, under apprehensions, either mistaken or founded, and as to the justness of the remark, it is immaterial which, of danger or disadvantage of some kind, they refuse to execute it, unless they can have every benefit both of profit or security, and even convenience, equally as if they were to execute tt at home.
      
      My opinion accordingly is, that the plaintiff is entitled to judgment.
      Hobart, J. declared himself to be of the same opinion.
      Yates, Gh. J. and Lewis, J. dissented.
      
      Judgment'for the plaintiff.
      Gn this judgment, the defendants brought a writ of error into the court for the correction of errors, and it was there contended, on the part of the defendants, that the judgment ought to be reversed, for the following reasons;
      
        1. Because, no good cause of action is stated in the plaintiff’s declaration, the principal averment of which is directly contrary to a written contract under seal, and most probably, contrary to the sense, and meaning of the parties to the suit. The averment alluded to is, that the' right to receive payment in Europe, out of the proceeds, was intended for the special benefit of the plaintiff. It is an established rule of law, that no averment shall be admitted, to contradict a deed under seal. .
      2. Because, the jury have not found that this right was for the special benefit of the plaintiff The court, therefore, cannot presume that this was the case, especially as it is opposed to another part of the verdict", which states, that the contract, as it appears by the record, was made By the intervention and express consent and direction of the. plaintiff; and being an averment essential to the plaintiff’s (recovery, it ought to have been proved as any other fact, and might have been proved as such, if it .had really been the case, by producing an agreement in writing for that purpose from the defendants.
      3. Because, it is, repugnant to every rule of construction, to admit any. interpretation of a written contract, directly opposed to the letter of it. To receive the money in' Europe, might, have been á principal inducement to the defendants’lending their ñames to this transaction.. Whether it" was so, or not, it is sufficient to say, that by the terms of the contract, they are to have the election, and they are to appoint an agent to receive the money.
      4. Because, no good consideration is stated for the promise alleged to be made by the defendants in' the first count of the declaration. It is said that it Was their “ duty to pursue the direction and request of the plaintiff, .touching the exercise of this right,” and that in consideration of this. duty, they agreed so to do. The consideration here stated, is subsequent to the sale, and precludes every idea of an antecedent agreement, on the part of the defendants, to pursue such direction and request; such agreement is not even pretended tO' exist. To determine that it was their duty so to do; the court must first get rid of the contract, which, so far from imposing it as a duty on them, left it at their option to make the election, or not, as they pleased, and left to them alone, and not to the plaintiff, the choice of .an agent. The words Of the contract are, they may, at their option, receive, &e.
      5„ Because, the declaration is altogether uncertain and contradictory. In one part it avers; .that the right to receive the proceeds in Europe, was for the advantage of the plaintiff, subject only to the lien and right of the defendants, to have and receive the general balance of their account, and to be secured for such other claims and demands as they might and should be entitled to and have, by reason of their agency for the plaintiff Thus admitting, without any qualification, and in its fullest latitude, the lien for, which the defendants contend. But by another averment it is stated, that the defendants were bound to give him an authority to receive these proceeds, after certain reservations and deductions, that is, as he explains it, after leaving in the hands of Gomez, Lopez and Rivera, a sum sufficient to satisfy the defendants for their general balance and claims. Which two averments are directly repugnant to each other, the one admitting, and the other destroying every idea of a lien.
      
      6. The declaration is uncertain in another respect, and, therefore, also bad. The plaintiff avers,'that he requested the defendants to elect to receive the proceeds of the property, or so much as would be due to him after certain reservations and deductions. But it does not appear what was the amount of those reservations and deductions ; on the contrary, it results from the verdict, that these very sums were matters in dispute between the parties. It became, therefore, impossible to give the authority in the way it was demanded.
      7. The declaration is defective in another respect; the action being brought for a refusal to give the plaintiff a power to receive the price of the cotton and indigo in Europe, after certain reservations, it was necessary to aver, as the very gist of the action, that the property was sold in’Europe. This averment’ is neither found in the declaration, nor is the want of it supplied by any part of the verdict: and tinless such sale took place, the power became nugatory, and no damage could ensue from a refusal to give it.
      8. The declaration is also bad, because all the inferences and deductions made by the plaintiff in the first count, are contrary to the known and established laws which govern relations between principals and factors.
      9. But if the plaintiff’s construction of the contract be just ;■ if the right to receive the proceeds in Europe was reserved for his special benefit, it does not at all weaken the defendants’ defence ; because, as factors, they had a valid lien, or a right to hold all the notes and securities of the plaintiff in their hands, and also to keep at their control and disposal the price of the goods, ' until actually received by them or their agent, not only as a security for the general balance due to them, but for all their incidental charges and advances, and also for their indemnification against all engagements and response-' bilities which they had come under on the plaintiff’s account. They had also in virtue of this lien, a right to refuse the plaintiff possession of any Of the papers, and every facility towards obtaining his money, until it was actually received by them, or their agent, in Europe, or until they were paid their advances, and satisfactorily indemnified against every claim, however contingent or remote.
      The doctrine of the court below was, that they had a right to insist on actual payment, not only for their balance, bnt for every eventual engagement whatsoever.
      
        The following is. a summary of the advances and responsibilites of Messrs. Governeur & ICemble, on the 15th June, 1795.
      1. Mr. Le Guen owed them a balance of - £4795 6" 3
      2. They had executed a bond to the United States, for the landing of the cotton and indigo abroad, in the penalty of .4834 15 0
      3. They had executed two bonds to guarantee the payment of the freight, the two penalties of which were, in our currency, 8141 0 0
      4. They were bound for the true performance of their covenants with Gomez, Lopez, and Rivera in the penalty of 8000 0 0
      5. They had paid for insurance • 2946 16 0
      Total, £28,717 17 3
      10. Because the defendants’ lien, if any they had, which is admitted by the declaration, extended to the whole subject, not to a portion or residue of it, as it is pretended ; and, therefore, they were not bound to listen to any proposal, however plausible, which in the smallest degree impaired their security. A lien is defined to be, “That hold or tie which a man has upon goods, or other things in his custody, or on the price of goods in the hands of buyers, and by which he has a right to retain them- until he is ;paid what is due to him, and also the sums for which he may have become surety for his principal.” This is the only true and natural definition of a lien; a lien in the qualified and restrictive sense of the plaintiff, was never beard of until this suit. If a single authority out of any booh whatever, can be produced in support of this novel and unheard of doctrine, the defendants will abandon this ground of their defence, as desperate and untenable.
      The supreme court in this causé, admitted that a factor may retain for his disbursements and responsibilities entered into on account of his principal ; and the plaintiff admits, that'by his proposal of the 15th June, it "was implied, that the defendants should be paid and indemnified, as a condition on which only he was to receive the authorization required.
      It is also contrary to the understanding of the plaintiff, as expressed in his letters.
      11. If the defendant had this lien, they say they were not bound to accede to any one of the offers of the plaintiff. These offers will be examined at large in the argument on their part, and it will be shown, that every one of them went to the total destruction of their lien as factors:
      12. But if the defendants’ lien was only of the partial kind admitted in one part of the plaintiff’s declaration, they contend that all his offers were inadmissible, as any one, if acceded to, would have put it in the plaintiff’s power to have defeated the operation of it altogether, even within the limits he admitted it to exist.
      13. The defendants maintain that there is nothing in this transaction which differs it from the common cases of principals and factors. If any clauses were inserted in this contract of sale for the benefit of the principal, is not this the case in every sale by a factor ?. Have not all such sales in view, as á primary object, the principal’s benefit ? But was'it ever before heard, that the particular terms of the sale, or -the mode or place of payment, controlled the lien of the factor who negotiated it 1 Suppose the plaintiff had wished' to receive his money in Lapland or Peru,- would it not be absurd to say that the defendants would also be bound to follow the purchasers to those countries? Would it not, on the contrary, be a strong reason for their insisting on payment here, before they gave their principal any authority to receive what was coming to him abroad. The truth- is, the terms of a contract between a faqtor and purchaser have nothing to do with the rights of the former as against the principal. Innumerable and various as such contracts must have been in this country and in Europe, such a proposition was never heard of before. Here again the. defendants require but one solitary legal authority in support of this doctrine, and they will give up the controversy. A lien is a right so attached to and inherent in a factor, as to be paramount to every claim of his principal. It is a right conferred on him by law, not depending on the will of the principal. No agreement is necessary to give it efficacy, no mode in which the principal may choose to vend his goods, no way in which he may fix the payment, no country to which the purchasers may be going, no nation of which the principal may be a citizen, no inconvenience :to which he may be exposed, no terms for his benefit which may be ingrafted into the contract of sale, can alter, diminish or destroy those rights to which his factor becomes entitled, according to the usage of trade, the moment he, steps forward in that capacity to assist in or lend his name to the sale. Doubts and perplexities; incessant and endless as the nature of contracts, would result from a contrary doctrine, in the place of that simple and uniform rule which now prevails. At present, every merchant knows- he has a lien -or hold on the goods of his employer, for the balance of his account and his collateral undertakings. It matters not whether -he is directed to take notes payable at Havre de Grace, or at the bank of New York ; his lien in either case is precisely the same. In the former case, indeed, the lien of an American factor should be more highly favored and protected, because hid risk, where payment is to made abroad, is considerably enhanced.
      14. But if the defendants were bound to receive payment in Europe, and to pursue the purchasers thither, they contend that their lien extended to the whole price of the goods in that country, and that they were not bound to give a power, to the plaintiff tó receive any part of these proceeds until they were actually received by an agent of their appointing, in whose hands they might make the reservations and deductions which the plaintiff allows they were entitled to.
      15. If the defendants had no lien whatever, they were not bound to give the plaintiff the authority he demanded, without an indemnity, which has never been offered.
      1st. Because the contract, being in the name of the defendants, and containing a heavy penalty, no suit could be brought upon it, but in their name ; if, then, they had given the plaintiff the authority he asked, and when he asked it, and he had abused it, they might have exposed themselves to the penalty of the contract, or at least to an action of covenant for damages. That he might have abused it, appears from what is stated to be the custom of Normandy.
      2dly. They were not bound to give the authority until a sale, because the property, being warranted American, and the plaintiff being a French citizen, such authority, in case of discovery, would have exposed the cargo to capturé and condemnation, and thus have vitiated the policies which in case of loss, were the defendants’ only security. If by such an act the defendants had exposed the'cargo, the purchasers also would have had a claim on them for damages.
      16. The plaintiff ought not to recover, because, if the defendants have been guilty of a neglect or breach of duty, the plaintiff sustained no injury, and, therefore, is not entitled to any damages. The jury refer it to the court to say, whether the defendants have made themselves liable to pa.y the amount agreed on by the contract, as the price of the property. This sufficiently shows, whatever arguments may be urged to the contrary, what rule the jury observed in assessing the damages, and precludes every idea of any special injury. From the whole verdict, it manifestly appears that none was proved or sustained.
      Every action on the case, ex contractu, is brought to recover a “ pecuniary satisfaction for the damage sustained.” It does not follow, that an injury is. the necessary consequence of every misconduct in a factor. Cases can and will be put, in the course of the argument, to illustrate this position, and even to show that a principal may sometimes be benefitted by a palpable breach of orders in the factor ; in which case, it would be absurd to say th'at the latter should make him any compensation. That in an action on the case, grounded on contract, the plaintiff is entitled to a compensation commensurate only with the damage actually sustained, is one of those self-evident legal axioms, which almost precludes the possibility of demonstration ; cases, however, numerous, and in point will be produced.
      The following are the words of Sir William Blackstone on this subject:
      
        “ A promise is in the nature of a verbal covenant, and wants nothing but the solemnity of writing and sealing to make if absolutely the same. If therefore it be to do any explicit act, it is an express contract as much as any covenant, and the "breach of it is an equal injury. The remedy indeed is not exactly the same, since, instead of an action of covenant, there only lies an action upon the case, for what is called the undertaking of the defendant ; the failure of performing which, is the wrong or injury done to the plaintiff, the damages Whereof a jury are to estimate and settle : As if a builder promises to build a house, and fails, the party has an action on the, case against the builder for this breach of his express promise, and shall recover a pecuniary satisfaction for the injury sustained by the delay.” (3d vol. p. 157.)
      
        “ Every one who undertakes any office, employment, trust or duty, contracts with those who employ or entrust him to perform it with integrity, diligence and skill, and if by his want ’ of either of those qualities, any injury accrues to individuals, they have, therefore, their remedy in damages, by a special action on the case. If an officer of the public is guilty of neglect of duty, or a palpable breach of it, as if the sheriff does not execute a writ, or willingly makes a false return, in both cases, the party aggrieved shall have an action on the case for damages to be assessed by a jury. If a sheriff suffers a prisoner, during the pendency of a suit, to escape, he is liable to an action on the case. An attorney who betrays the cause of his client, by which it miscarries, is liable to an action on the case for a reparation to his injured client.” (p. 263.)
      In actions of covenant, to which he has likened a special action on the case, the same author remarks, “ the proceedings set forth with precision, the covenant, the breach and the loss which has happened thereby, whereupon the jury will give damages in proportion to the injury sustained by the plaintiff,, and occasioned by such breach of the defendant’s contract.” (p. 156.)
      Professor Wooddeson also, in his view of the. law, declares that such actions are for the breach of a promise, “ to recover pecuniary satisfaction for the damage thereby sustained.”. If the court can bring themselves to believe, contrary to the whole tenor of the verdict, that the plaintiff has sustained damage by our negligence or default in not giving him a power to receive the proceeds of certain property in Europe, which certainly if they ever existed fell far short of the amount of the notes,—if, we say, the court can possibly bring themselves to believe that the defendants are hable, and that the plaintiff has actually suffered damage to the amount of the notes, then and then only can they affirm this judgment—their undertaking being, as stated on record and as implied by law, not to pay a certain specific sum, but the damages which may have accrued to their employer by their default, with which damages the amount of the notes has no connection.
      Even in actions on the case for a deceit, although ever so gross a fraud be practised, it is necessary that some injury be sustained, or no action will lie ; the rule in this case being, and it has been settled for centuries past, in England,, that “ fraud, without damage, gives no cause of action.” In such cases, says Wooddeson, “ it is necessary to remember that the ground of complaint be, that there he actual detriment injuriously sustained.” If this be the case, in actions where fraud has been practised, how much more strongly does the rule apply in actions on the case, Where misconduct or negligence only, and no fraud, is alleged ; where difference of opinion on a point of duty, but no wilful deception, has occasioned a controversy between the parties.
      17. Because the rule of damage contended for in the present case, is directly opposed to the plaintiff’s declaration. The action is brought for the defendants’ refusal to give an authority to the plaintiff to receive “ the proceeds” of certain property in Europe, after certain deductions. He then avers, and which averment was material, that after such deduction, there would remain due to him a large sum of money. But why make the averment, if the defendants became responsible to pay the whole amount of the notes, the moment they refused this authority, whether the property was ever sold in Europe or not ? For the decision of the supreme court warrants the strange principle, that the defendants would have been liable for this enormous sum, even if the property had been sunk or captured, the moment it left the wharf; in which case, it is evident that the plaintiff would have been injured by crossing the ocean in quest of a property which, as to him, no, longer existed.
      On a close examination of the special verdict, and the evidence stated in it, nothing appeared to enable the court to judge whether the property was sunk at sea, burnt in port, or sold at the best market in Europe ; they refused to admit evidence to enlighten them on this point. If the vessel had sunk the day after She left New York, which may have been the case, for aught that appears to the contrary, the plaintiff’s' security was in his policy of insurance, which it was agreed should be made for that express purpose ; but the decision of the court inverts this rule: their language is, that whether the property was sunk, burnt, or sold at a high price, in all events, the plaintiff is to be paid the whole amount by the defendants, and they are to look to the purchasers and underwriters for their reimbursement.
      18. Because, this being ah action on the case, for a misconduct in the defendants, as factors, it would be no bar to a new suit against them for money had and, received, when the price of this property is recovered, if ever that be the case, from the purchasers. The plaintiff’s counsel have taken care, therefore, to let it appear by the verdict, that no evidence was given in the present action on the count for money had and received ; thus, after paying 50,000 pounds to a man who has not been injured by their act a single cent j they may hereafter be compelled, in an action which is now pending against them by the plaintiff in the supreme court, to refund to him the sum which may be actually received by them from the purchasers. The sum recovered in this action must be as a compensation for the special damage sustained by the agent’s default, which cannot deprive the principal of his right to receive the real amount of sales of his property, or the whole sum, if they are able to pay, on the notes of the purchasers ; nay, nothing can prevent his compelling the agents to surrender him those notes for prosecution, either before or after the termination of this suit.
      Such strange inconsistencies will ever be the consequence of a departur e from plain and known rules.
      19. To place in a more striking view the illegality of the judgment, as it respects the damages, let us again recur to the nature of the action. It is brought for an injury the plaintiff is presumed to have received by the refusal to grant him a certain authority. Hence if he had been injured at all, he ought to have recovered something as damages, over and above, and independent of the price of the property, because the price he was always entitled to, when it came into the hands of the defendants, whether they had been guilty of a misconduct or not; so that, if this judgment is to conclude the parties, and Gomez, Lopez, and Rivera were solvent, the defendants pay no damages at all for their misconduct, and the plaintiff is compelled by their act to receive his money in this country, without even the five per cent, premium, Or any other equivalent for the disadvantage which is imposed upon him by the defendants. This shows both that the judgment is not conclusive between the parties, and that factors, by substituting themselves as pay-masters, can always compel the principal to receive his money where they reside, without any compensation for their misconduct, although it be expressly agreed that he shall receive it elsewhere.
      20. The only cases in which a factor can be liable for the whole price of the goods, are, where he has sold contrary to his instructions, or where he has received the whole property, or it has been lost by his default, such as releasing the debt to the purchasers, or neglecting to prosecute for it when due ; but even here, he would be permitted to go into circumstances, to induce the jury to give other and less damages. At any rate, the factor would be liable for the real value of the goods only, not for any nominal or ideal value at which they might have sold- on credit, or by deception. In the present case, it is not pretended that any part of the property or its price has been lost by our default, but only that the plaintiff has been injured by not receiving the proceeds of it, after certain reservations, in Europe. Suppose these proceeds, after the reservations mentioned, had only amounted to 100 dollars, and it will.be shown, presently, that they did not amount even to that sum, will this court say, that it is possible any man, by refusing to give another a power to receive 100 dolíais in Europe, pould injure the latter to the amount of 50,000 ' pounds, or substitute himself to the person who was to pay that sum 1 This would be . saying, in other words, that 40 pounds in Europe are worth 50,000 pounds in this country. This would be turning a special action on the case into a penal one ; it would be inflicting a fine by way of punishment on the' defendants, instead of compensating the plaintiff for the real injury which he might have received. ■ The truth is, it matters not in what country money is to be paid; the party failing, wherever he be sued, must pay the sum-only with interest. Bills of exchange alone form an exception.
      21., It was said on the trial, that the default of the defendants extended to.' the whole subject, and that', therefore, there could be no other criterion of damages than the whole property. This is not just, as an argument. In point of fact, it is untrue, and directly against the record. It is not correct reasoning, because a default may often take place as to the whole subject, and yet the factor not be liable for the whole sum. If an insurance broker is directed to make insurance on property for 100,000 dollars, and neglects so to. do, he is. certainly responsible, but for 'what .1 . If the vessel arrived safe, he would be liable for nothing ; if lost, he would be liable only for the actual value of the property. Other cases will be mentioned in the argument.
      But it is untrue in point of fact, that the default here, extended to the whole subject. The defendants are sued for not giving the plajnliff an authority to receive in Europe the proceeds of the cargo, after keeping at their disposal a sum sufficient to pay and guarantee them against certain claims. To these proceeds, then, after the reservation, and no farther, did the default extend.
      Admitting, however, for a moment, that the agents in this case became liable for the whole amount of the subject. By the'subject must be meant that precise object, to which the authorization related, What was that ? The authority demanded was, “ to receive whatever, sum shall remain of the goods sold,” after deducting.certain sums.. The defendants refuse this authority. What then, is the subject ? Certainly the proceeds in Europe, and not the amount of the notes. Nevertheless, the court did not require the plaintiff, and refused-to permit, the defendants, to prove what the amount of those-proceeds were. To show that this argument is correct, let us suppose that the authorization had been given; the defendant admils that in such case he could only have been entitled to receive by it in Europe the balance of the proceeds, after deducting certain sums. Withholding the authorization, was, therefore, in effect only withholding that balance, whatever it was. Hence it is clear, that to receive the balance of the proceeds in Europe, was the subject of the demand, and the refusal. This was the subject of the controversy, and the subject for which the defendants were liable, if for any thing. What the amount was, does not appear. It will be remembered, that the defendants offered, but were not permitted to show it; a tolerable estimate, however, may be formed.
      Gomez, when at Hamburgh, expected to Jose sixty per cent. All agree that the markets were bad, and the speculation ruinous. Deduct sixty per cent from 48,966Z. the price of the cotton and indigo, and there will remain, rejecting fractions, only 18,588Z. The defendants’ advances and liabilities on the 15th June, 1795, were 28,718Z. 17s. 3d. Thus, then, the proceeds, if any there were, fell short of what the plaintiff was willing to leave at our disposal, the sum of 10,131Z. 17s. 3<Z. Where, then, were the moneys which the plaintiff was to have received ? How is the defendants’ default as to the whole subject made out, when it applied, if at all, to an object which had no existence ?
      22. It was also contended on the trial, that the price of the property being fixed and ascertained, every other measure of damage was uncertain, and liable to difficulty. But are not damages uncertain in their very nature ? Why is a jury summoned but to render them certain ? Is not this the case in actions of covenant, trover, detinue, slander, assault and battery, and in every special action on the case ? If in all these, damages are uncertain, why should a certain measure, never before heard of, be applied to this case ? Even if the factors had sold of their own head, the price of the property would not form a certain measure of damage. It might not be worth as much as it sold for, and other circumstances of mitigation would be listened to. How comes it, that the plaintiff’s counsel have not stated in his declaration, that by reason of their default, the defendants “ became liable, and assumed to pay the plaintiff the amount of the notes ?” The truth is, that such an extravagant idea never occurred to them. With all their talents, they did not dare to hazard a declaration in such form ; and yet such a declaration would have been good, or this judgment must be bad.
      Notwithstanding all this pretended uncertainty, which is always more or less the case, never did an easier or more familiar measure for ascertaining damages present itself than in this case. The defendants refuse to give the plaintiff an order to receive the proceeds of certain property in Europe. Where then lies the difficulty of ascertaining their amount? They either do, or do not exist; if they do not, there can be no injury; if they did, their amount might easily bé khown ; the defendants Offered to'áscerlain it. This sum, with interest, after large deductions, should have been .the- utmost extent of the recovery.
      23. From the reasoning in the last article,.it also appears that the supreme court did wrong in rejecting the' testimony offered by the defendants, to-show that there was no special damage.- Inactions on the case, every circumstance which can assist the jury in forming an estimate of the extent and nature of .the injury, ought to be admitted.. The action is with propriety termed a special action on the case ; that is, the defendant is to recover according to all the circumstances of his case. If the wrong he complains of has been attended with any injury, he recovers accordingly ; if not, he. re-, ■covers nothing, or only nominal damages. Thus in. actions- on the case, for escapes, against sheriffs, and' for misconduct in attorneys, they are not bound, the sheriffs, to pay .the whole sum due to' the plaintiff in the original suit, nor. the attorney, the whole sum due to the client. This will be exemplified by several strong cases. The court, on such occasions, after the' default is established, permit the' defendant to prove every circumstance which may tend, to show either that the party has not been injured, or to ah inconsiderable degree. Yet all this was, denied to the defendants here: They are able, if permitted, and would have proved, if their evidence had not been overruled, most conclusively, that their refusal to give the poWer in question," had not only worked-no injury to the plaintiff, but had proved beneficial to him.
      24. Because, ;by rejecting the testimony, which is made the ground of the bill of exceptions, the court precluded .the defendants as fa'ctors, from every ■ defence, which the purchasers themselves might have availed themselves oh. A man is,not always.held to pay the price agreed upon : Thus the purchasers may,, and no doubt will,, in the action brought against, them on their notes, endeavor to prove, in' avoidance of .the contract altogether, ‘that they were, grossly deceived and imposed upon in the purchase of this cotton and indigo ; that they were warranted of qualities very different from the truth. If they make out this proof, nothing is clearer than that they will be relieved against the payment of these notes ; or that they Will have only to pay the-real value of the property.- How iniquitous, then,, may be the result ? Gomez, Lopez-and Rivera may have a verdict against the factors, on the-ground of fraud or deception, and yet the latter may be. compelled to pay the whole amount. ■ If in both cases there he special verdicts, it is to he hoped they will be published together: they will reflect singular credit oñ the judicial annals of this country, If any fraud was practised, as is contended' by ■ the. purchasers, it was by the plaintiff himself, who negotiated the- sale ; and yet, as the notes are in the names ot- the the defendants, the relief will - be against them: Thus may innocent factors be punished for the fraud of their principal.
      The case of a horse which was sold for a barley corn a nail, doubling every nail, is well known; the animal, at that rate, came to 500 quarters of barley; the jury, however, gave only eight pounds, which was his real value. Yet if the sale had been made by the intervention of a factor, and he committed a single mistake or default, he must pay the contract price, however exorbitant or unconscionable that may be. Thus, if the plaintiff had sold a single horse for as much as he was to have had for the cotton and indigo, no one can doubt but that the purchaser would have been relieved against so bad a bargain. Yet if the proceeds of the horse were to be paid in Europe, and his agent should refuse him an order to receive the proceeds, which in all probability would not exceed 100 guineas, nothing could exempt him, if this judgment be affirmed, from, paying to his principal the last farthing of the contract price. For aught that appears, the purchase of the cotton and indigo was almost as hard a bargain. To lose 30,000Z. as may fairly be inferred from the verdict, the purchasers did, was no trifle.
      25. There is no evidence, nor is the fact found, that “ after certain deductions and reservations, there would remain due to the plaintiff, for the residue of the amount of the said notes a large sum of money,” which is another material averment in his declaration, and ought to have been proved. It is true, that it is stated there would be due a residue on the amount of the notes; but this, like several allegations in the declaration, is inaccurate. The purchasers being only bound, as appears from the contract, to pay the notes as far as the proceeds extended, the plaintiff could not demand, nor the defendants give a power to receive any moneys beyond the amount of these proceeds. It should, therefore, have been stated, that “ there would remain due to the plaintiff, in Europe, for the residue of the proceeds of the said cotton and indigo, a large sum,” &c. of this, there was no proof.
      26. The consideration stated in every declaration, ought to be some certain net, matter or thing, by which the defendant may be benefltted, or the plaintiff incur some trouble or inconvenience, that is, either a damage to the plaintiff, or an advantage to the defendant. .The declaration ought also to aver, that the plaintiff has on his part fulfilled the terms on which the promise was made, or that he has offered to fulfil them, and shown that readiness and willingness to do it, which the law requires. To apply this law; the consideration stated in the present declaration, is, that the defendants were to be allowed “ a commission of 2J per cent, upon the amount of the sales, and such other commission as the course of their agency and the usage of trade might entitle them to.” But in no part of the defclaration is it averred, that this commission was paid or tendered to them, although it is evident from the declaration itself, that this payment was considered by the plaintiff, as a conditión precedent to his receiving the authority in question ; lior is there any proof to supply the want of this essential averment.
      27. Another very material and essential part of the plaintiff’s declaration is not only without proof, but the testimony and finding of the jury completely and entirely disprove it. The declaration states, that the plaintiff requested the defendants, “ to elect to receive the amount of the notes, or, at their option, so much as would be due to him, after deducting and reserving thereout certain sums at Havre de Grace, or at any other port in Europe, where the. ship should discharge, out of the proceeds of the property ; and after such deduction and reservation made, to give him power and authority to receive from-the purchasers, the residue of the said notes out of the proceeds.” It might be inferred from this, that no authority to receive the residue was required until after this election was made, and Gomez, Lopez and Rivera had actually paid to the defendants, or to their agent, the moneys which were to be thus deducted and reserved. The correspondence between the parties, all the proposals of the plaintiff, the finding of the jury, and the several times of making his demand of the authority in question, evidently show, that the reservation to be made was not out of the proceeds when actually paid to the agent of the defendants, but that this sum, which, by the bye, was never ascertained between the parties, was to be left in the hands of the purchasers, subject to the order of the defendants.
      The plaintiff’s first request is to “ have an authorization to receive in France, the amount of the engagements of the purchasers,” without any reservation whatever to the defendants. He next demands an authenticated copy of the contract, with an authority to receive, after payment of the freight, 100,000 dollars. It would have been fortunate for all parties, if the property had only produced half of this sum. He lastly demands an authenticated copy of the contract, with a complete authorization to receive whatever sqm shall remain of the proceeds of the goods (not of the amount of the notes, as artfully stated in the declaration, and from which the proofs so essentially vary,) sold to Gomez, Lopez, and Rivera, after deducting and reserving at the disposal of the defendants, certain sums for their indemnification ; nor is there any proof in the whole verdict, that he ever requested them to make the election which he stated in his declaration ; although it abundantly appears, that the election to ..receive the proceeds in Europe was made by the defendants, and, for any thing that is found to the contrary, without effect.
      Again—The time of making the request, explains the ideas of the plaintiff. The last demand was only fifteen days after the departure of the White Fox. How could the defendants' make the election in so short a time, before it was possible it could be known where the property would be sold ? Were they to send to every port of Europe ? It is plain, then, that instead of their making an election pursuant to the right reserved to them, the plaintiff wanted an authority and the contract, to pursue the purchasers and get the whole of the property from them. This appears further, from the pains hé has taken to establish on record, the customs of Normandy. It is difficult to see any connection between these customs and a power to receive the proceeds. It was the property he was in pursuit of, and not a balancé of the proceeds. There is a material variance, too, between his declaration and his letter of the 15th June. In the former he says,-he asked for an authority to receive immediately from Gomez, Lopez and Rivera; but in his letter, he artfully demands a power to receive at the port of discharge, without saying from whom ; this variance is deemed essential and fatal.. The court below were inconsistent in the admission of testimony. The plaintiff was permitted to prove the custom of Normandy, with a view., no doubt, of inducing the jury to believe that he had been injured by not receiving the authority demanded, and yet the defendants were not permitted to show any thing in mitigation. If the rule be just, that they, ipso facto, the Very instant the default, if any, took place, put themselves into the place of the purchasers, without the possibility of protecting themselves against such an enormous penalty, and that the price of the article was the only rule of damage, the court should have excluded this testimony altogether.
      The court rejected the testimony offered on the part of .the defendants that no damage had been sustained, on the ground, that the law in this case having fixed the amount of the. damages to a precise definite sum, it could be neither more nor less; it was, therefore, improper to receive evidence to show that a less, or any particular damage was sustained. They admitted ' this evidence on the part of the plaintiff, to show that he had sustained particular damage, and refused it to the defendants. The court have, therefore, certainly been in an error in admitiing one, or refusing the other.
      It is true that the custom of Normandy makes considerably in favor of the defendants, as it discovers the plaintiff’s true object, and the injury he contemplated doing to them, by taking the whole property under the pretence of a lien, into his own hands. The defendants have a right, however, to complain of its admission, as being directly contrary to the rule which the court enforced with respect to them. If circumstances of aggravation were admitted on one side, surely matters in mitigation ought to. have been received on the other.
      28. That the rule of damage was erroneous may be further illustrated from actions which are brought on contracts containing penalties. If it be an action of debt for the penalty, it might be said that the party has ascertained the sum he is to pay for the breach of his contract, and that every other rule is uncertain. Yet every one knows that the actual damage sustained is all that the plaintiff can eventually recover, and that this must be .ascertained by a jury. Let us admit as strong a case as can be put for the plaintiff Suppose the defendants immediatly after making the sale to Gomez, Lopez and Rivera, had covenanted under the penalty 50,0001. to give- the plaintiff in the course of a week, authority to receive the proceeds in Europe, and that they had no demand whatever against him. They,, however, refuse, without assigning, any reason whatever, to give such authority., In an action of debt for the penalty, or in an action of covenant, the penalty would be disregarded, and the rule of damage would be the injury actually sustained ; :that is, the amount of the proceeds, with interest'. Shall they, then, be in a worse situation, because they did not comply with an implied promise, and refused to give an authority in a case where, to say the least, it was doubtful whether the plaintiff was entitled to receive one, and where they assigned, at least, a plausible reason for their refusal, and could certainly not have' complied, without very imminent hazard to themselves?
      29. The finding of the jury, as it respects the damages, is illegal,, and, therefore, the judgment ought to be reversed. Instead of assessing them as is customary, they refer it to the court, whether the contract price shall be the rule. If the court be- of that opinion, then they find such a sunt. While attaints were in force, such a verdict would not have been permitted, as the party.must have been deprived of his remedy against them for excessive damages-; for no attaint would lie on a verdict, where' the quantum of damage, as well as the law, were referred to the court. It is a dangerous innovation on established precedents. Assessing of damages is emphatically the duty of jurors. Referring it in this way to the court, if not a violation of trust, is destroying those barriers between the provinces of courts and'juries, in. the preservation of which separate and distinct,, consists the great excellence of this inode of trial. This is at once surrendering their prerogatives, in which the party has an interest not to be defeated by pusillanimity, or a mistaken deference for the opinion of others. ¡They are to inquire what injury the party has sustained, not to leave the quantum to be determined by the court. If jurors are thus permitted to evade adjusting the very object for " which they are convened; their attendance may as well be dispensed with altogether, as a useless expense, and. questions of damages as well as of law be at once submitted to the court. If this honorable court shall think 4he plaintiff entitled to recover, but that the jury have neglected, from a diffidence in their own judgment; to exercise that discretion respecting the damages; with which they are peculiarly entrusted, they may, and no doubt will, order a venire facias de mow in order to admit further light, and to have the question of damage definitively settled by the proper tribunal. It is much, however, in favor of the defendants, that the jury have expressed no opinion against them, either as to their liability, or its extent. It would have' been impossible to induce a jury of merchants, to subscribe to so dangerous a doctrine. It is a matter of public notoriety, and ought to be mentioned, that the first jury, who were selected from the most respectable merchants in the community, determined that the defendants had incurred no responsibility whatever.
      
      Lastly.. The judgment ought to be reversed, because it is an attempt to punish the defendants for the insolvency of the purchasers, without a particle of proof that they have in any degree contributed to such insolvency. Although their failure is not stated on the record, it may be fairly inferred from the plaintiff’s conduct. Why look to the defendants for the contract price of the cotton and indigo, and that in so questionable a form of action, if the purchasers were able and liable to pay 1 An action on their notes would be more certain and expeditious. The buyers must then be either unable to pay, or have good reasons for resisting payment. If their bankruptcy cannot be attributed to the defendants, why should they become their substitutes ? If the buyers have a defence, the defendants ought in no event to be answerable for any part. The plaintiff’s motive to this suit also appears from the time of its being brought. If he really intended to recover dunnages for the actual injury sustained by our default, why not immediately abandon to the defendants the whole property, and commence the action without delay ? Instead of this, he waits more than a year to discover how the speculation would terminate. If the issue had been prosperous, and the buyers had stood their ground, no recourse would have been had to the defendants ; and yet their liability and its extent were precisely the same, whether the purchasers were able to pay or not. It was a liability for the “ disastrous consequences,” as the plaintiff well expresses it, occasioned by our default, not a liability to pay the amount of the notes. This preposterous notion never occurred to him. Let him point out a single disastrous consequence occasioned by the defendants, and they will compensate him a hundred fold.
      After all that will or can be said on the subject, into what narrow limits may its real merits be compressed ? It is a dispute between a principal and his factors. The former complains of not being furnished with a power to receive the proceeds of certain property in Europe, or in other words, certain moneys. The factors say: “We have a lien on all your papers, and on the price of your goods, for our advances and responsibilities. This lien the law gave us the moment the sale was made. As these advances are very considerable, we only ask you to secure us in this country, and you shall have every thing you want.” This lien is not a chimera of the factors’ own brain. The principal himself admits it, but insists, that as the property was to be paid for in Europe, as far as the proceeds extended, the factors were bound to take payment there also, and to look to a portion of these proceeds, in the hands of thé purchasers, for their1 indemnification. In support of this perfectly novel idea of á qualified lien, the court are apprised, that not a single authority from any book will be produced. The principal’s counsel will rely upon nice and subtle distinctions, which splended talents will readily suggest, and upon a train of reasoning so refinedj-as to require faculties equal to their own, to be able fully to comprehend. The factors, in opposition to such a limited lien, assert, “ That it is df no importance to them, upon what terms the principal sold his property, or where it Was to be paid for. That the rights of factors are clearly defined by IaW, that1 they never before heard, that some factors had one kind óf lien, and others a .different one, or that the liens of factors vary’according to the contract between them and the purchasers ; but granting, say they, that our lien was thus restricted, and that we were bound to go to Europe for payment, we insist that we had a right to keep the whole property under our control, until actual satisfaction in that country, and not to look only to a remnant of it, which might be wasted by the purchasers, or wrested from' them by the principal himself. If neither happened, and the buyers by misfortunes become insolvent, our security will be much impaired, as, in such case, our dividend on their estate would not pay our demand.”
      On the question of damages, the controversy is, if possible, yet more simple. " The principal brings his action for damages or a compensation for an actual injury, which he alleges he has sustained by a breach of duty in his factors. The factors say, “ if we have been guilty of a breach of duty, it has been attended with no loss or damage whatever to our employer, and that, therefore, he is hot entitled to any recompense or equivalent whatever.” The principal knowing that he had sustained no loss, and, of course, that he could not prove any, abandons the attempt, (for his counsel certainly had in view the necessity of proving special damage, when they drew the declaration) and insists upon the defendants paying the whole sum. which the purchasers had contracted to give. The factors, to this extravagant pretension, oppose this plain answer. “ If, say they,, we erred, in not giving you .an authority to receive these proceeds, surely their amount, with interest, can be all which you are entitled to from us. It matters not where your money was to be paid ; if we were-engaged by bond to pay you- a certain sum on the royal exchange of London,, and we fail,, you can only, if you sue us. in America, make us pay the same amount, with interest, here. Why then did .you not show- the amount of these proceeds? This Would have been easy. One of the. purchasers, and the very person Who sold the property in Europe, was" attending the trial. Nay, why did you- not permit us to show their amount ? What possible reason can be assigned for' your solicitude to keep out of view these proceeds, other than that they were so inconsiderable, that you wished the court and jury to be kept in ignorance of them ? For aught that appears on record, the property never was sold in Europe; if so, how are you injured ? Why should we take the place of the buyers ? Did we guarantee their responsibility ? Did you not sell the property to them yourself? If they have failed, who occasioned their bankruptcy ? Was it not brought upon them by the extravagant price they were to give for these articles ? If they have , been ruined by no agency on our part, why are we to make good their engagements ? Show us that any loss whatever has been occasioned by us, and you shall be compensated to the utmost farthing.”
      On the part of the plaintiff, it was contended, that the judgment of the supreme court, ought to be affirmed for the following reasons:
      1. That every contract made by a factor for the sale of goods, is for the benefit of his principal, and forms a contract between the principal and the purchaser; and that every contract made by a factor for his own benefit, with the property of the principal, is a violation of his duty, and a fraud against the principal.
      2. That every factor is bound generally to obey the orders of his principal, and particularly to use his endeavors to carry into effect any contract by him made for the benefit of his principal.
      3. That, therefore, if a contract should stipulate an advantage, to depend on an election to be made, that election being itself a privilege or benefit, is to be exercised for the principal, and is subject to his control and direction.
      4. That in the present case, the right of election to receive the purchase money in Eqrope, was a right which the defendants ought to have exercised for the benefit of their principal, according to his direction and request, especially as he Was thereby to receive a premium or advance of price of five per cent, equal to 6120 dollars and 31 cents.
      
      5. That this position and inference are the more obvious in the present case—Because, the factors could neither have stipulated for, nor exercised such a right without the consent of the principal. Because, the contract was made by the intervention and express direction of the plaintiff. Because, it was his avowed object to transfer his property to. France, of which country he was a native and a citizen. Because, at Havre de Grace, to which port the ship was bound, he would have had a lien on the property, which Would have enabled him to have taken precautions important to his security ; and, because it is absurd to suppose that all these advantages could be defeated, at the mere pleasure of the factors, and in defiance of the direction of the principal.
      That the acknowledged lien, which a factor has on the property entrusted to him, for his advances and responsibilities; can form no objection to the demand of the plaintiff in the present case. Because,
      
        That lien, like every other right, is liable to be modified or abolished* by the agreement of the parties, eithér express-or implied -
      That-it is not. in its nature local, but depends wholly on the place of payment.
      That the defendants, by becoming parties to a contract for the benefit of of the plaintiff, containing a right of election to receive in foreign parts the moneys to arise from the proceeds, virtually agreed to give effect to the right, and to exercise this lien at the place of payment;
      That if payment had been positively stipulated at Havre or Hamburgh, no doubt could have arisen but that, after reserving enough to cover their advances and responsibilities* they would have been obliged to pay the- overplus there to the plaintiff; and in such case, to have contended that they would have had a right to bring hack the whole amount of the sales to New- York, at his expense and risk, to cover themselves for a sum which might.not amount to one thousandth part of it, would be an absurdity too glaring to be endured .; that a right of election to receive in a foreign port, brings the matter to the same issue-; when- that election was made, the foreign port became the place of payment, and there only could the lien of the factors be exercised ;
      That -it is an invariable maxim in law, that he who agrees to an end agrees to the means. The defendants migly have refused to enter into the contract on such terms, but having assented, having executed the contract, they were bound not to impede the performance of it;
      • That the defendants could have given the authority required of them by the .plaintiff, in so '.special a form, and' with such co-operation of an agent named by themselves, as would have secured to them the full benefit of their lien ;
      
      And lastly, it will be demonstrated, that upon the construction contended for hy the defendants, they and their agents may -keep the whole property in their hands forever.
      
      With" respect to the measure and amount of damages* for the plaintiff, it will.be contended,
      1. That the rules of law prescribe the measure Of damages,, in all. cases in which they are not merely contingent. Thus, in promissory notes, and other liquidated demands, the legal interest on foreign bills is 20 per cent, and on inland bills 5 per cent; without any inquiry into the special damage which the party may have actually sustained.
      Thus, in actions of trover, however slight the damage* the party is compelled to pay the whole value of the subject of which he hath made’an improper use. Thus, finally, in every case of a factor or trustee,-the damages are invariably the whole valtie Of the property which -may have been, affected by his neglect or misconduct; as, in case of acknowledged authority, if a factor be instructed to sell at a credit of thirty days, and he sell at a credit of thirty-one, he is instantly Halle for the value of the whole, although the purchaser prove insolvent within the thirty days ; because a violation of his duty relating to the whole. If he had sold a part only, he would, in like manner, have been liable for that part. So if a trustee be directed to put out money on real property, and lends it on personal security, however competent, he is instantly answerable personally for the whole. No inquiry is made or would be allowed as to the actual or probable damage sustained; the factor and the trustee are deemed to have taken the responsibility upon themselves.
      2. That the application of this obvious principle is peculiarly necessary in the present case, because of the impossibility of ascertaining or calculating the events which may have affected the views and interests of the parties ; that if the plaintiff should prove on the one part that he could have made half a million of dollars by the receipt of his money in Havre, and by his presence in aiding the sales, could have also insured a profit to Gomez & Co., and the defendants, on the other part, should prove, that they had reason to believe that a better market could be had at Hamburgh, a court ought to pronounce, as has been done by the supreme court, that all such proof would be irrelevant, and could tend only, to introduce confusion and uncertainty; the only object of inquiry being, have the defendants neglected or disobeyed the orders of their principal 1 If so, does their neglect or misconduct relate to the whole or a part only of the property ; if to the whole, they are liable for the whole ; if to a part, for that part only. No other evidence was admissible to extinguish or mitigate the damages, but that the price in the sale was fraudulent; that the property had been lost before the default; that the principal had released the whole or part, or had been wholly or partially compensated ; neither of which points was in any sort attempted to le proved.
      
      3. That a default, which gives a right of action, necessarily carries with it the rule of compensation or damages, as an incident, and which cannot, therefore, in any degree depend on future events and contingencies.
      4. That as the default, in the present instance, related to the whole property, and defeated the essential part of the sale, the defendants thereby substituted themselves to the purchasers, and took upon themselves the risk of future contingencies : That the amount for which the property sold is the proper and only standard of value and of damages ; and that on any other principle there could be no rule of damage in the present case; the events which took place subsequently to the default offering only a field for vague and unlimited conjecture.
      
        5. That in the cases mentioned under the first head, and in many others, the law fixes the rule of damages, which will regulate and control the Verdict of a jury; that when the parties agree to the¡ value, this value -is the. rule; that where an agent, by his assumption or default, puts himself in the, place of another, with whom he has settled the -value, the value so settled shall govern as, against him. .
      6. That consequently, the amount for Which the goods were sold to Gomez, Lopez, and Rivera, together with five- per cent, for receiving, in- Europe,, is the principal sum for which the defendants became liable, for their default.
      On the 15th of March, 1798, the Court .of Errors delivered their opinions,, when it-appeared that a majority of,-the court* were for affirming the ‘judgment of the supreme court. •
      Judgment affirmed.
    
    
      
      There were 28 for affirming, and 5 for reversing.
    
   Radcliff, J.

The appellant in this cause formerly recovered a judgment in the supreme court against the respondents, which, on a writ of error, was here affirmed. Since that period, the respondents have filed a bill in chancery,, alleging a fraud in the contract for the sale of certain .parcels of cotton and indigo, for the amount or value of which they were held liable by that judgment, and they claim relief On the ground of this fraud. It is unnecessary to be. more particular in stating the. different proceedings on this much litigated controversy, as they are fully in the possession of the court. It will be sufficient to premise, that the present appeal is from an order of the chancellor, by which it was decreed, that the . recovery at law did not preclude the respondents from seeking relief in equity, against the fraud which is alleged ; and which order also confirmed a former-order made in the cause, directing atl issue at law "to try the matter of fraud,

*The first question, therefore, which presents it- [*492] self for our examination, is, whether the recovery at law precluded the relief sought in equity? If it did, the decision of this point will put an end' to the cause ; if not, there are other questions which will remain to be examined.

The general principle, that the judgment or decree of a court possessing competent jurisdiction, shall be final as to the subject matter thereby determined, is conceded on both sides, and can admit of no doubt. The principle, however, extends farther. It is not only final as to the matter actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have had decided. (Prec. in Cha. 221. 3 Atk. 224. 1 Yern. 176. 2 H. Black. 414. 7 Term Rep. 269. 2 Cas. iñ Cha. 95. Cha. Rep. 243. 2 Burr. 1009.) The reasons in favor of this extent of the rule, appear to me satisfactory ; they are founded in the expedience and propriety of silencing the contentions of parties, and of accomplishing the. ends of justice, by a single and speedy decision of all their rights. It is evidently proper to prescribe some period to controversies of this sort; and what period can be more fit and proper than that which affords a full and fair opportunity to examine and decide all their claims? This extent of the rule can impose no hardship. It requires no more than a reasonable degree of vigilence and attention; a different course might be dangerous, and often oppressive. It might tend to unsettle all the determinations of law, and open a door for infinite vexation.

This reasoning is founded in good sense, and supported by the weight of authority. It is equally applicable to the court of chancery as to any other court. It is true, some ancient precedents have been, and more of them may, perhaps, be.found to oppose this doctrine, but they appear to have originated at a period, when the limits of the respective courts of equity and of law, in England, were imperfectly ascertained, and when the extreme rigor of the latter drove suitors to seek redress from their judgments, in the more liberal conduct of the former. The court of chancery availed itself of this disposition in the courts of law, and assumed an [*493] unlimited power of revising their decisions. *This power was resisted, but without success, ■ till the courts of law relaxed their severity, and adopted more just and liberal principles on almost every subject, and particularly on the subject of granting new trials. Since that period, the boundaries of the different courts have become better established and understood; (1 Atk. 293 ;) and their decisions are mutually respected, as conclusive on the matters over which they exercise jurisdiction. These observations are intended rather to account for some of the ancient cases, (2 Tern. 146, 240, 378, and Countess of Gainsborough's case, at the rolls, Prec. in Cha. 233 ;) which have been produced by the counsel, than as immediately applicable to the question before us. I consider, therefore, the rule in the extent I have mentioned, as firmly established by the modern authorities, and founded in propriety.. If so, the only inquiry, is, "whether the respondents, under the circumstances of this case, would have been admitted to make a defence on the trial at law, on the ground of the fraud which they now allege1? .

It is not to be doubted, but that courts of law and equity have a concurrent jurisdiction on the question of fraud. (3 Black. Com. 431. 2 P. Wms. 156 ; 220. 1 Burr. 396; 480 ; 482. 2 Ves. jun. 295.) Considering the respondents, according to the former decision of this court as completely substituted with regard to the appellant in the place of the purchasers, they became responsible to him to the same extent in which Gomez, Lopez, and Rivera, were liable, by the original contract; it follows that they acquired all the rights of Gomez, Lopez, and Rivera, and, of course, could avail themselves of the same defence. (Park, 303.) We have seen the latter actually making the defence of fraud at law, on the trial of the notes. It was equally competent for the respondents to make that defence, on the trial against them. Whether that defence would apply to the whole action, or to the amount of the damages only, cannot be material, nor can it be considered as a point merely collateral to the issue between the parties. In every action of this sort, the amount of the damages .to be recovered, as well as the right of recovery, is a point immediately in litigation, with respect to which the parties are supposed to be *equal- [#494] ly prepared, and must be equally concluded. To consider the damages as distinct from the right of action, or collateral to it, and on this ground to review the judgment of another court, would destroy the effect of the rule. It often happens that the amount of damages constitutes ■ the principal question between the parties, and in every case, the whole merits of the cause must be re-examined to judge of their propriety; and, thus, in another form, the merits would again become the subject of legal investigation.

It is, however, admitted, that cases in which there are no laches or neglect, form exceptions to the rule. Thus, where a party has no notice of a defence to which he is entitled, orean make it appear, that material evidence has been subsequently discovered, which would probably support that defence, and alter the determination, he ought not to be concluded. But in -these cases, it is incumbent on him to show a reasonable ground to presume that he has not been guilty of negligence, as in the first instance that he was ignorant of his defence, or in case of the discovery of new evidence, that he had used due diligence, and could not obtain it. Without this restriction, it would be in vain to say, that he is ever precluded, for the pretence of new matter or new evidence, when a party is dissatisfied with á former determination, would always be made.

In the present instance, it cannot be pretended, that the respondents had no knowledge of the charge of fraud. If their own testimony is to be credited, their agents, Smith & Atkinson, in London, had notice of the fraud, if any existed, as early as October, 1795, for the property was at that time abandoned to them, on the very principle that there was a fraud in the contract, notice of which must have been conveyed to their principals. But independent of this,, both parties had express notice of the fraud, long before the trial at law. The bill filed by Gomez and Rivera, to which they were parties, together with Lopez, was founded [*495] wholly on this charge. it was,^therefore, complete^ ly within their own knowledge, and for aught that appears, the evidence of the fraud, if any existed, was as completely in their power. If it did exist, the legal presumption "is, that they had the proofs in their power, for a party is never presumed to be ignorant or incapable of evincing the truth of his 'case. If the fact be so, it is incumbent 'on him to show it, in order to excuse the apparent neglect, and support his claim to an exception in his favor. The manner in which it is to be shown must always depend on the particular circumstances of the case. In the present instance, there is no proof, nór any circumstance in my recollection, from which it can be reasonably inferred that the respondents could not, with proper diligence, have possessed themselves, on the trial at law, of the. same evidence they have since offered, and I beliéve it is not even alleged in their bill. Under these circumstances, I think it would- be unsafe and improper, in any court, to open a controversy already determined, on the loóse conjecture,-that they might not have had the evidence in their power.

It has also been urged, that the respondents were surprised by the recovery at law. If they were in -reality surprised, it was not by. a matter of evidence, or a question of fact, but by a-principle of la w which was determined against them.. It would be contrary to first principles, to,admit a mistake or ignorance of the law to excuse a neglect. If the respondents had been surprised by other means, as by artifice practiced by their'adversaries, or by testimony which they could not reasonably be prepared1 tó meet, the case would stand o.n different grounds. It is this kind of surprise only which I apprehend • is considered at law, as material on a motion for a new trial. Such was the case cited from Burrow, [Bright v. Eynou, 1 Burr. 396,) where, in assigning the reasons for a new trial, the court, among other things, say that the attention of the jury had been artfully drawn from the fraud (the principal, point in the cause) to the heinous charge of forgery alone. The verdict of the jury was there traced to the act and management of one *of the parties, and not to any neglect or default of [*496] the other. The fraud was actually in evidence, and the surprise related to the proof of a fact in controversy between the parties. It will also be recollected, -that the principal ground for granting a new trial in that case, was the want of an express direction from the court on the question of fraud. In the present case, there is no pretence of any such artifice, nor was there any allegation of fraud at the t-rial, and judging from the evidence alone, the silence of the respondents at law on the subject of fraud, if it did really exist, can only be imputed to their own inattention or neglect.

If we examine into the practice of the court of chancery, (1 Eq. Cas. Ab. 176; 1 Yez. 434; 2 Yez. 576; 3 Atk. 35 ; 2 Atk. 178;) we shall find it has adopted the same rules, with regard to its own determinations; and it is not pretended that the court will exercise a different control over the judgments of other courts, than over its own decrees. The cases of bills of review in that court, are analogous on this point; and the same principles have been adopted and established by repeated decisions. Thus Lord Hardwicke, with regard to bills of review, says, “there are always two points proper to be attended to on a petition for that purpose ; 1. To show that the new matter upon which such bill is sought, has come substantially and materially to the knowledge of the party or his agent, since the time of the decree in the former cause, or since such time as he could have used it to his benefit in the former cause ; 2. That it is probable such new matter is relevant. Again, it is held, that forgetfulness or negligence of parties under no incapacity, is no foundation for a bill of review: and matter already settled, or which might have been put in issue, and settled in the original cause, shall never be drawn into examination on a bill of review..”

In every light, therefore, in which this subject can be seen, whether we view it as considered by courts of law, with regard to their own 'determinations, or by courts' of equity, with regard to théir own decrees, of in relation to the interference of the latter with the judgments of the [*497] former, *the sanie rulés and the same principles ap-: ' pear to prevail. On the first question, I am, therefore, of opinion, that if any fraud existed, it was competent to give it in evidence, on the trial at law ; that it was-the duty of the respondents so to do, if they had notice of the fraud; that they had such notice, and for any thing that appears, had the evidence in their power as fully as at any subsequent period, and of course, that they are precluded by their neglect, and cannot, now, avail themselves of this defence.

This may, perhaps, be deemed a severe application of the rule, the summum jus between the parties; but I have sought with solicitude to- discover a principle on which I could with propriety depart from it; ■ and in every shape in which 1 have been able to turn the question, insuperable objections have .occurred. It still remained a question of principle-on the one hand, and of feeling on the other. The magnitude of the property in question, alone can furnish no guide. It may and ought to have weight,,in cases of doubt or difficulty, but when principles are plain, it cannot, of itself, be made a ground of relief. It is incapable of any certain criterion.; in its nature nothing can be more vague; and if adopted, instead of legal rules and legal discretion, we must be governed by the fluctuating and arbitrary notions of magnitude which may be applied to every particular case.

I have dwelt more minutely on the preliminary question, not only because it appears to me sufficient to decide the cause, but because it involves a principle which I think of the first importance to the safe and effectual administration of justice. Nothing would appear to me more dangérous in the conduct of our courts, and more productive of endless litigation, than to open with facility their solemn determinations. If, in the instance before us, we should be of opinion that there is no foundation for the charge of fraud, it would, in itself, furnish a strong example to show the danger of renewing a controversy *already decided, [*498] and the ease with which new plans of defence may ' be invented, and even-supported by witnesses.

But there are other points in the cause, which appear to me to render it capable of an easy determination. Admitting the fraud to be open for examination, the appeal is "also from that part of the order which directs an issue at law. Here it is proper to notice, that after the original order for an issue was made, the parties agreed to submit to the court of chancery the question, whether the respondents were precluded, by the trial at law, as preliminary to the order for an issue ? By this agreement, 1 consider the order for an issue as having been suspended, until the decision on the question thus previously made. The order was then confirmed and rendered complete, and the appeal from this confirmatory order being strictly in time, brings up the question directly as to the propriety of the issue. Independent of this, I think there can be no doubt, that by an appeal from any interlocutory or .final decree, all the proceedings in the cause anterior to the decree, are necessary to be presented to this court, and proper for its determination. It may frequently become indispensable to reverse, alter or modify the previous proceedings, in order to make1 them consistent with the-decree to be here pronounced. All antecedent matter is, therefore, necessarily, before the court, and subject to its control. I have also no doubt, that this court may proceed farther, if it appear that the merits are fully in its possession, and determine finally between the parties. That such is the power, and frequently the practice of the House of Lords, in England, is evident, from the cases which have been cited. (1 Bro. P. C. 57. 2 Bro. 405,415. 3 Bro. 180, 218. 4 Bro. 582. 5 Bro. 387, 454, 478. 6 Bro. 468. 7 Bro. 1, 208.) On similar appeals, they affirm, reverse, or alter the order for, an issue, and sometimes proceed to dismiss the bill, or otherwise decree on the merits. The power ' of this court is thé same, in this respect. I can see nothing .in our constitution or laws to restrain it. The constitution simply directs the court to be instituted, and the act [*499] of the legislature organizing the *court,‘ declares its powers in very ample terms. (Laws of N. Y. vol. 1, Nov. 23, 1784.) The words aré, that this court shall have power “ to reverse, affirm, or alter such sentence, judgment, decree or order, and to make such other order or decree thereon, as equity and justice shall require.” These terms are sufficiently comprehensive to authorize a final decree, nor shall we thereby assume original jurisdiction, An original jurisdiction is that which/takes cognizance. of -a suit ob origine. In this case, the'propriety of making a final decree arises out of the appeal itself, which brings before us the whole merits of the cause. The idea that we have not the constitutional lights of the chancellor’s reasons, with respect to the merits, is rather an objection of form. In fact, we have his opinion substantially on .the subject. He has told us that he has doubts on the question of fraud; that the evidence is not satisfactory; and that he wants further testimony to inform his conscience. At least, such is the language of the decree, for otherwise, it could have been of no use to order a trial at law. If, therefore, we are of opinion that the testimony in the cause is decisive, either for or against the fraud, and that it ought not to be sent to a jury, what essential lights can we expect to receive, by sending it back for the chancellor’s decision ? We may place him in a delicate situation, and oblige him to decree on the evidence, as it stands, but we cannot compel him to alter his opinion, or remove his doubts. We can, therefore, expect no real benefit from such a proceeding, and I cannot imagine that the constitution intended so idle a ceremony. Indeed, the position that this court has not the power to make a final decree, in cases like the present, suppose a defect of jurisdiction, which ought not to be admitted without evident necessity. The power appears to me essential to a court of appeal in the last resort, and I have no doubt that it is vested here.

The propriety of the order for an issue, and of this court proceeding to a final decree, are questions depending on the nature and force of the-testimony. It is true, *that in some specific cases, it is the common course [*500] of the court of chancery to direct an issue at law ; but even in those cases, it depends on the practice of the court merely, and the chancellor has still the power of decide ing for himself, without an issue. In general, the ordering of issues depends on the application of sound legal discretion to the circumstances of the case. (2 Yes. 42, 554. 2 Atk. 450, 295. 3 Atk. 516. 2 Yes. 56.) It is a power in its nature indefinite, and incapable of being reduced to fixed rules. The chancellor is, constitutionally, the judge both of law and fact. Whether the institution of such a court be expedient or wise, is not now the subject of inquiry. Its power is established, and the trial by jury is there unknown. However excellent that mode of trial may be, it is not the right of any party seeking his remedy in that court to demand it. It ought regularly to proceed from the chancellor himself, to inform his own conscience, where the evidence is insufficent for that purpose; and even with respect to him. it is not a power to-be exercised at pleasure, and depending on arbitrary discretion. In a government of laws, no such discretion can exist, and although no precise rules can be given, it is sufficiently certain, that if the evidence be doubtful, and from the nature of the question, or from the testimony already given, it appears that farther lights may be obtained, it would then be. proper to require farther proof ; and the chancellor may direct it to be taken, either in his own court, by new examinations, or send the qüestion for trial at law. But on the other hand, if the evidence be satisfactory or decisive in favor of .either party, the rights of such- party ought not again to be hazarded before another tribunal, and the chancellor ought to decide. Possessing the power, it would become his duty, for the power and duty of a court are concurrent,-and inseparable.

On the subject of the evidence, I shall not trouble the court with many remarks. It has been discussed for several days, and to examine it in all its parts, might occupy our attention as many more. Every member -must, I [*501] *think, have formed a decided opinion, without much difficulty. With respect to myself, I shall only say, that notwithstanding the contrariety of some of .the witnesses, relative to the fraud, the internal circumstances of the case, and the conduct of all the parties concerned, satisfactorily show, that the pretended fraud could not exist. The natural course of the transaction speaks^ invincibly, and car-, ries to my mind a full conviction. If this opinion on the evidence be right, the order for the issue was, of course, improper. The verdict of a jury cannot enlighten, but if contrary to the evidence,: may hereafter embarrass the cause. It cannot possibly be of Use, but must be injurious, -to send the parties through another course of litigation, and finally, perhaps, be obliged to decide between them under circumstances less favorable to truth and an equitable result. These reasons equally apply to induce us to pronounce a final decision in the cause. Possessing the power, I think it our duty to ..exercise it, apd put the controversy at rest. I am, therefore, of opinion, on the several grounds I have mentioned, that the order for an issue ought to be reversed, and the bill of the respondents be directed to be dismissed.

Kent, J.

This cause presents three questions for the consideration of the court.

1. Does the judgment at law in favor of the appellant, bar the respondents from maintaining their present suit ?

2. If not, yet was this a case proper for an issue at law?

3. If an issue at law ought not to have been directed, shall this court now finally decide between the parties, the merits being fully before us, and if so, how shall we decide?

After the opinion which has already been delivered, and in which I concur, it might, perhaps, be sufficient to refer generally to that opinion, as expressive of my own. But in a cause of so much expectation, and of so much magnitude 'to. the parties, it may not be altogether useless to go over the same ground, and briefly to declare my own view of the subject.

*1. Every person is bound to take care of his own [*502] rights, and to vindicate them in due season, and in proper order. This is.a sound and salutary principle of law. Accordingly, if a defendant having the means of defence in his power, neglects to use them, and suffers a recovery to be had against him by a competent tribunal, he is for ever precluded. [2 Burrow, 1009. 7 . Term Rep. 269. 2 Hen. Black. 414, 415.]

The only cases which I can recollect, as forming exceptions to this general rule, are :

1. The case of mutual dealings between the parties, where -the defendant omits to set off his counter demand, and may still recover it in a cross action ; and

2. The case of an ejectment, in which the defendant neglecting to bring forward his. title, is not precluded by the recovery against him, from availing himself of it in a new suit.

The general rule is intended to prevent litigation, and to preserve peace; and were it otherwise, men would never know when they might repose .in security on the decisions of courts of .justice; and judgments solemnly and deliberately given, might cease to be revered, as being no longer the end of controversy and the evidence of right,

The principle prevails both in Courts of law and of equity.. In bills of review which are brought before the same tribunal to review a former decree, it is a settled maxim of equity, that no evidence or matter in the knowledge of the party, and which he might have used. in the former suit, shall be the ground of a bill of review. [3 Bl. Com. 454. 1 Eq. Cas. Abr. 81, pi. 4. 299. 2 Cas.- Abr. 176. 2 Atk. 178. 3 Atk. 35. 1 Yes. 434. 3-P. Wms. 371.] ;

“Unless. this relief,” says Lord Ch. Talbot, (3 P. Wms; 371,) “ was confined to new matter proved to have been discovered since the trial, it might be made use of as a method for a vexatious person to be oppressive, and for the cause never to be at rest.” A notice of the matter, even [*503] to the party’s *counsel or agent,” observes Lord Hardwicke, (3 Atk. 35,) “ is notice to the party, and sufficient to repel the new suit, for otherwise, there would be no end of suits.” . .

I have mentioned the observations of these great men, because the reason of the rule is laid down by them in plain.. terms, and receives the more authority, as coming from- two of the most distinguished ' characters that have presided in the English courts of equity. . -

Not only, bills of, review are denied, but, in pursuance of the same principle, a court of chancery never relieves against a verdict at law, on the ground of its being contrary to equity, unless the defendant below was ignorant of the fact at the trial, or it could not have- been admitted as a defence. [3 Atk. 223. 1 id. 293. Free, in Cha. 221. 2 P. Wms. 426. 2 Washington’s Rep. 258, 270, 272, 275.]

This being the general doctrine in the books, and the reason of it, I do, not. regard any solitary case, [2 Yern. 147. Prec, in Cha. 233,] that may be. found to the contrary,--as having any force to shake it.

It remains to apply these principles to the present case.

The suit at law of the appellant against the respondents, was a special action on the case,- for a breach of their duty as factors, in refusing to elect to receive the amount of the notes in Europe, and to give the appellant the requisite authority for that purpose. In consequence of this default the respondents became, in respect to the extent of the remedy, substituted in the place of Gomez, Lopez and Rivera, and responsible for the amount of the property. The breach of duty reached to the whole property, and the principal had a right to abandon it to them, and to regard them as appropriating the whole to themselves. [Yelv. 202. 2 Mod. 100. 12 Mod. 515.] This was the amount of the decision in the suit at law.

*Placed in the situation of Gomez, Lopez and Ri- [*504] vera, and subject to their burthen, the respondents took, of course, their advantages, and succeeded to the same means of defence. This is an universal principle of law and justice.

The respondents were, accordingly, competent to set up as a defence in the suit at law, the fraud alleged in the present action,, and there was nothing in the form of the action which precluded them from doing it.

If a factor neglects to make insurance for his principal, he is responsible for his default, in a like action on the case. Both the actions are of the same kind, and arising ex delicto. In such a suit, the factor may set up fraud, deviation, or any other defence which the underwriter could have made, had insurance been effected. [ Wilkinson v. Coverdale, Park, 303.] This is a case sufficiently analogous to be a direct authority in the present instance. The respondents were sufficiently apprised of the allegation of fraud, and that it was contemplated by Gomez, Lopez and Rivera, as a defence against the notes. They were informed of this by the bill previously exhibited by Gomez and Rivera, in the court below,¡against the parties in the present suit, stating the charge of fraud in the sale of-the goods. This was sufficient .to put the respondents on inquiry; whereas nothing is shown, from which we .can conclude that they actually made any inquiry, or took a single step to possess themselves of the means of that defence. All the testimony now produced was, for any thing that appears to the contrary, equally within their power then, as now, and yet no effort was made to produce it. The respondents did not even ask Gomez, Lopez and .Rivera for their proofs, or call on them, as they had a right to do, for their own indemnity and safety, by a bill of interpleader, to -come forward and make good their allegation. [Mitford, 125,-] They were guilty of gross' and palpable neglect, in thus slumbering upon this ground of defence, and must now be precluded from setting it up as a cause of eqtiita[*505] ble relief, against the verdict. It is *crassa negligeniia, if a party does not seek after a thing of which he is apprised, and m law amounts to a notice. So whatever is sufficient to put a party on inquiry, is good notice in equity. [2 Fonb. 155}

If I am not mistaken in the principles which 1 have laid down, their- application to the case before us is direct and pointed, and they operate with irresistible and conclusive efficacy to produce this result.

The attention of the respondents upon the trial at law, was, no doubt, occupied in defending themselves on-another ground, and, probably, they concluded that the ground which they took was stable and competent. This, however, makes no difference in the case. The law imposes it on every man to know, at his peril, the strength of his claim, and the. soundness - and extent of his defence. ‘ It indulges him.even to make as 'many separate pleas or kinds Of defence as he; may deem material, provided it be done in due season. In the instance before us, there can be no just pretext for surprise. The respondents had sufficient knowledge of the charge of fraud, and had they made, as they were bound to do, due inquiry and ordinary efforts, they could have obtained the proofs. But they have chosen to abide by one species of defence, and to waive another, and like other litigants in in similar cases, they must be concluded by their election.

I am, accordingly, of opinion, on the first point, that the bill ought to have been dismissed, and, consequently, that the decree is wrong.

This opinion, if correct, puts an end to the cause. But as other members of the court may, perhaps, think differently on this point, I am willing briefly to examine the other questions, which have been raised and submitted for consideration.

2. The second point stated is this; supposing the respondents not precluded by the judgment at law, was it proper, in this case, to have ordered an issue to be tried by a jury 1

*The question on the order for an issue, I con- [*506] sider regularly before us, as the decree in the month of May, declaring that the respondents were not barred, and from which the appellant has appealed, repeated and confirmed the order for an issue, which had been previously, but conditionally given, and the chancellor in assigning his reasons,* and the counsel in their argument, have considered that order as open for examination in this court.

It is the undoubted jurisdiction of the court of chancery to decide both on the law and on the fact. This power it has always possessed and exercised. ' But in cases of doubt and difficulty, that court is .in the habit of calling for aid and information from abroad. If an important question of law arises in the course of the cause, before the court of chancery in England, it is the practice of that court to ask for assistance from the courts of law, either by associating one or more of the judges with the chancellor, in the hearing of the cause, or what is more usual, by stating a case and directing it to be argued in one of the courts of law, and to be returned with a certificate of the opinion of the court on the question submitted. This opinion when received is merely for information, and the chancellor may or may not follow it, as he, upon consideration, shall deem meet. [2 Tesey, jun. 528, 529.] It is in like manner the practice of that court, and of . our court of chancery also, to. apply for aid to the courts of common law .when the truth of the fact litigated is doubtful, and. attended with difficulties. This the court does, not by asking the opinion of the court of law, but by directing a feigned issue to be tried by a jury. And the verdict of a jury upon the fact, like the, opinion of the •judges .upon the law, is merely to inform, and not to control the judgment of the. court of equity upon the question before it., It will be easy, therefore, to perceive, that ordering an issue must always depend upon sound discretion, to be cautiously and diligently exercised, according to the circumstances of each particular case; Instances are common in which the court of chancery has decided for itself in [*507] the first instance, although *there was evidence of weight on both sides.. [2 Atk. 295. 2 Yez. 256. Bamad. Gh. Rep. 100. Colles’ Cases, 49.] And where an issue has been • ordered, the House of Lords, in equity, have frequently on appeal, reversed the order, because the truth of the fact was sufficiently ascertained without it, and sometimes, where one or more verdicts have been actually taken, it has decided the cause in opposition. to them. [1 Bro. P. C. 58.]

If the testimony be. so contradictory, as that the truth cán not be discovered with certainty, and it Becomes requisite to judge merely on the credibility of witnesses, such an instance presents a case very proper and necessary for an issue at law, But in the present Case, I perceive no difficulty, and of course think there was no necessity for a jury. We can decide upon the allegation of fraud with, great certainty ; and'indeed the testimony never could have authorized and supported a verdict in favor of the respondents. This cause, then, ought to have.been decided in the court below, without the useless delay and expense of a trial at law.

3. This brings me to consider the third question in the case, viz., that having the merits before us, shall we not decide finally between the parties ?

I cannot bring my mind to doubt of the authority of this court. It is the settled rule of the House of Lords, in England, upon appeals, always to give such a decree as the court below ought to have given. This is the great and leading maxim in their system of appellate jurisprudence, and instances are, accordingly, very frequent, in which the lords, on appeals from interlocutory orders in chancery, have reversed the order, and decided finally on the merits. (1 P. Wms. 673. 1 Woodd. 232, 240, 24J. 1 Bro. P. C. 58. 2 Bro. P. G. 408. 3 Bro. P. C. 183, 186. 4 Bro. P. O. 575, 582. 5 Bro. P. C. 454, 487. 6 Broi P. C. 469. 7 Bro. P. C. 222, 423.)

Their power on appeals is exercised with great latitude in dismissing the bill, or modelling the relief, or granting *it conditionally, as may best answer the ends of [*508] justice, and the exigencies of the case.

Our system of jurisprudence is borrowed from the English system, and in all its great outlines, as well as in its subordinate parts, is happily modelled after that admirable monument of the experience and wisdom of ages. Without some very explicit and peremptory limitation imposed by statute, I should have concluded, as a matter of course, that this court possessed appellate powers, corresponding with the jurisdiction of the House of Lords. I am persuaded that it was the intent of the act instituting this court, to give us the same ample and uncircumscribed authorities, for we are “authorized and required, on appeals from any decree or order of the court of chancery, finally to determine the same, and all matters concerning it; and to reverse, affirm, or alter the decree or order, and to make such other decree or order therein, as equity or justice shall require.”

The law, in the light in which 1 view it, appears to be a wise and salutary provision. No person doubts, but that an appeal will lie upon an interlocutory order of the court of chancery directing an issue. Upon such an appeal, the whole testimony, and the whole merits must come up. The cause must have been ripe for hearing, and the chancellor must have heard it, and have carefully examined the proofs, before he could have determined that the testimony raised such doubts in his mind, as to render it fit in him to waive his own undoubted right to. decide on the facts, and to send, the parties to another forum for trial. Upon the appeal this court must likewise review the whole merits ; it must, in fact, decide on the merits, before it can judge of the fitness or unfitness of the order for an issue; and if it should-be of opinion, that the cause was too clear to admit of a reasonable doubt, and yet was under the necessity of remanding , it, to receive the ceremony of a previous decision in the court below, it would .answer no other purpose, but to maintain for a year longer, an irritating litigation. It [*509] would bé sending, the *cause back upon a fruitless and oppressive errand, and when, it returns, at the end of the year, with the parties more angry and more exhausted, and with a large accumulation of expense and véxation, it must terminate, in the same result then, as it ought to now. I can hardly persuade myself that the construction of our law can be a reasonable one, which requires such a nugatory act, and which leads to consequences so mischievous.

Possessing the authority to decide finally,, I think we ought to exercise it in this instance.. 1 assume it as a fact, and One on which we are bound judicially to act, that all,. the proofs are before us; that no new or further proof is behind and since discovered : that the cause is as ripe here, as it was in the court below, for ultimate decision; and if we are persuaded in our own minds, that the facts before us, can never support the allegation of fraud, we ought to say so, and put an end to the contention.

I have thus carefully examined all the questions of law, which have arisen in the. course of the cause. I forbear to recapitulate the facts. They must be familiar to every member of this court, and every member of the court is as competent to judge of those facts as myself. I will only observe, that in viewing the written documents, arid examining the intrinsic circumstances and internal evidence of the transaction, the truth strikes my mind with great clearness and force. • The whole complicated charge of fraud appears to me to be absurd, inconsistent, and incredible ; and I should never be brought to yield my convictions to any verdict that might happen to establish it, with such slight materials, and on so frail a foundation.

My opinion, therefore is, on the merits, as well as on the first point of law, that the decree of the court of chancery ought to be reversed, and the bill dismissed.

Benson, J. was of the same opinion.

Lewis, J. was of opinion that the decree ought to be affirmed.

*Lansing, Ch. J.

The questions which have [*510] been raised in the argument of this cause are,

1. Whether the respondents are now precluded from insisting on the fraud, admitting that it had been practised?

2. Whether the preponderáney of proof, on either side, was such as to impose it on the chancellor to determine between the parties, without seeking to inform his conscience by awarding an issue?

3. Whether this court, being possessed of the cause, on an appeal from an interlocutory order, can decide finally ?

The general principle that a point determined by a court of competent jurisdiction, shall be conclusive against all parties who were in a situation to controvert it, is so well established, as to leave no doubt in my mind. The reasons which have already been given are such, as in my opinion, are sound, and clearly establish both the legality and the utility of the rule.

The respondents were sued for withholding the production of the sales of certain quantities of cotton and indigo from the appellant, who had entrusted them with the disposition of those commodities, as his factors, and a judgment was rendered against them for the amount of the value ascertained by the contract of sale. The cotton and indigo, now the subject of controversy, are the same which the respondents in the former action had withheld.

As fraud vitiates every contract, and as, if the fraud was actually committed, it was competent to the respondents to have shown it, in destruction of, or in mitigation of damages in that action, the strict rule of law would, as they neglected the opportunity, preclude them from alleging it now, as.a reason for opening the question; for if the respondents could have shown that they were precluded on account of the fraud, from recovering the whole or any part of the amount of the sales from Gómez, Lopez and Rivera, they [*511] would have *been permitted to avail themselves of that circumstance, at least to vary the measure of damages, and it is hot now contended that it ought to have a different effect. There are, however, points in this cause, which would incline my mind to consider this as an exception to the general rule. The object to which the attention of the parties was exclusively drawn in the former action was the substitution. It appears that though there was some notice that a fraud of this kind was attributed to the appellant, the charge was not matured. The facts on which the evidence of its existence rested, were discovered in Europe. The knowledge of that evidence, it appears, was, in a great measure confined to Gomez, Lopez, and Rivera, and their agents. The knowledge of the respondents, as acquired from their own observation, did not extend to it. The positive denial of the appellant that it' had existed, must have confirmed them in the opinion that the imputation was unfounded; and this defiial must, if fraud existed, have been unwarrantable artifice, calculated to confirm the respondents in. the impressions they had received from their, own observations; and though I cannot admit that a new principle was devised to govern the former case, the result of the trial, it was obvious, operated as a surprise on the respondents •, and if. a fraud had been committed, the appellant’s measures for concealment were persevered in, to the last moment. All these circumstances would have mingled in the consideration of the court, if an application had been made for a new trial. I think these considerations may well operate to constitute this case an exception to the general rule; but from my impressions as to the second question, a determination. of the first is not essential to a decision on the merits of this appeal.

Having examined the answers of the parties, the depositions, letters, and ether papers exhibited in the cause, I am fully persuaded, that the allegation of fraud is totally unsupported ; that it cannot consist with the relations of the witnesses produced to support it, and that in every stage of *the transaction, it carries its own refuta- [512] tion with it. 1 have, therefore, no hesitation in saying that I am perfectly convinced that no fraud existed. With this general declaration, I had intended to dismiss this part of the subject, as it is a question of fact, not involving any legal principles, and, therefore, not peculiarly my duty to enter into a discussion of it, and as every member of this court has had an opportunity of examining and determining for himself; but as a difference in opinion -exists, oil the nature of the evidence, and as some members of the court may consider it as of that doubtful complexion which may render it a fit subject for the determination of a jury, it is proper, as explanatory of the general conclusion I have drawn from the evidence, and from a respect to the opinion of those gentlemen with whom I differ, in a cursory manner, to state the impressions the several parts of the testimony have made on my mind. It may, however, not be amiss to premise, that whether the warranty was promised to be reduced to writing, whether it was actually so reduced, or whether it depended on a verbal allegation that the commodities sold, were of a particular description, would not materially vary the result. Fraud might be inferred by a less direct process, or less certain data, and the evidence of its existence might, from those circumstances, be susceptible of a different modification; but the fact being once established that the sale was fraudulent, it would, -in any of those cases, as effectually destroy the benefits acquired by the party guilty of the fraud, as if the warranty was reduced to writing. The evidence, therefore, respecting the warranty is no further material, than as it affords a mean to test the consistency of the witnesses in giving their testimony relative to it.

Hester Gomez and Mary Wright testify, that in several conversations, the ■ appellant asserted that the cotton was of the growth of the’Isle of France, and the indigo to be of two qualities, Flotang and Violet Copper.

Abraham Massias gives the same relation as to the- allegation of the appellant, and adds, that Gomez, Lopez [*513j and *Rivera wished to delay the conclusion, of the bargain for a few days, for the purpose of examining the articles; that the appellant objected to delay, -because the drawback would Be lost, and offered by Way of obviating the difficulty, to warrant the quality of the articles. With this relation the deposition of Samuel Lopez corresponds.

Without resorting to the testimony of the witnesses, with whom they have been particularly contrasted, I shall proceed to examine the other evidence in the cause.

• It appears that an advertisement was published by Gouverneur’ & Kemble, describing the cotton as Amoude, which is the best kind of Surat cóttón; that this was continued for a considerable timé; that after the intermission of a few weeks, another advertisement was published by them, offering the cotton for sale, and as affording a great Speculation for France.

Some time after the publication of the second advertisement, the respondents informed the appellant that an offer had been made for the cotton at three shillings a pound, by three persons.

William Dickson, a person conversant with cotton,- declares, that in February, 1795, he offered three shillings and six pence for the cotton, and eighteen shillings for the indigo, for a person who had freighted his ship, the Astrea, but that it was refused, because sufficient money could not be paid down, and because the appellant insisted on retaining the drawback; that he had..'before examined the cotton in bales, and saw some of the boxes of -indigo opened long before the offer to purchase.

Whether the offer alluded to in the respondent’s letter was that of Gomez, Lopez and Rivera, or of three other persons, is of little importance. The offer must either have been made from the inspection of the bales, or samples furnished, to representations made by the respondents, and if those samples or representations, or that inspection, dictated the offer of three shillings a pound, it is a strange argument that the representation of the respondents and of *the appellant must have been of the same import, [*5,14] or that the quality of the cotton corresponded with the description given of it by the appellant, or they could never have produced similar effects, for the price of Isle of France cotton, compared to that of Surat, we find, by the concurrent testimony of all the witnesses, to be in the proportion of nearly two to one, during the fluctuation of the prices of those articles.

Two or three witnesses swear, and respecting this there appears to be no controversy, that the mode of packing of the Surat cotton is essentially different from that of the Isle of France; that it is so striking to persons conversant in the trade in that commodity, as to enable them to determine of which of these two places it is the production, merely from the external appearance of the bales.

If Massias and Samuel Lopez are to be credited, the attention of Gomez, Lopez and Rivera, was early awakened to the quality of the articles they intended to purchase. They wished to delay the contract a few days, to enable them to have a particular examination made before they closed it, and one of them describes the particular object they had in view in requesting the delay ; the expectation that a person in whose skill they had confidence, would arrive from Philadelphia. The contract describes the articles sold, as upwards of 600 bales of cotton, and about 12,000 weight of indigo ; but from the accounts of sales rendered by the respondents, it appeared that the quantity of each was accurately ascertained, by weighing them before they were shipped, during which process, another opportunity was afforded for inspecting them, better than could possibly have been had, during the time they remained in store. If the fraud was really practised, as alleged, abundant means were presented for detection, especially as the indications of a different quality from1 the production of the Isle of France were" so discernable. . But to this it is answered, that Gomez, Lo-' pez and Rivera depended upon ■ the warranty with implicit confidence. Ma'ssias, however, testifies that the omis[*515] sion of it in the contract was discovered *several , days before the vessel sailed, and that application ' was made to the appellant to insert it; that he declined, alleging the difference which subsisted between him- and' the respondents, as a reason for not. correcting the omission. It does not appear that any application was made to the respon-’ dents on the subject, though it was well known that they had entered into the written contract, and retained it in their hands; and Massias states that very detention as a cir-' ctimstance that led to the discovery, as the respondents declined furnishing the appellant with a copy of the contract.

These circumstances are of a nature not easily to command a tolerable share of credit. That Gomez, Lopez, and Rivera should be disposed to delay .a contract" of such im- ■ mense importance to them, for the purpose of taking so common a precaution as to procure a skilful person to inspect the commodities they intended to purchase, has nothing extraordinary in it; but that they should be totally diverted from that object by the stipulation for a warranty by a stranger, and forget to exact the evidence of his having made it, is so repugnant to the ordinary mode of conducting business,;' as' to require a'more satisfactory account than the witnesses produced have given. "

All the witnesses who attest to the prices are persons, as far as we know, of ünimpeached characters, excepting so"" far as the matters they relate may detract from their credibility. .

. They state the prices of cotton of the production of the Isle of France, to be about double to that of Surat. Four witnesses swear that, during the year 1795, the prices of Isle/ of France cotton were from 5s. to 6s. a pound, and St. Do,mingo from 2s. 6d. to 3s. 3d.

Mr. Murray alone mentions the Isle of France cotton to" be, in the spring of 1795, at 3s.' and Surat at Is. lOd. a pound. This varies the proportion of the prices in some degree.

I can have no doubt, from this- view of the proof, that Surat cotton was worth, estimating it at the market price, *about 3s. a pound, in the month of April, as [*516] there is no proof of a reduction in the price of that article, before that time.

The indigo, in my apprehension, affords, from the course of the transaction, equally strong evidence that what was testified with respect to the warranty, and the circumstances attending the deception, alleged to be practised in its sale, is equally unfounded.

The indigo was put up at the Isle of France, at least before it was shipped at that place, on board of the Cleopatra. It is not pretended that the packages in which it was imported were changed; if they were, as it is clearly in proof that immediately upon its arrival, it was committed to the care of the respondents, it must have been done with their privity, or under their direction. This also is hot pretended j- but Isaac Gomez, whose correctness or integrity has not been questioned, and who does not appear to have any connection with the parties, or the matters in controversy, declares that he examined the indigo in 1794; that he discovered it, as far as he had examined, to consist of three qualities, which he valued at 8s. 10s. and 12s. a pound, and that the appellant interrupted his examination before he had gone through - the whole. Massias and Samuel Lopez declare, that upon the opening of the indigo, it was discovered that there was a layer of good indigo, corresponding with the samples, on the top of the boxes and casks, and that the remainder was of an inferior quality. If, however, the indigo was not repacked, the same surfaces must have been presented which were prepared in the Isle of France, and exhibited in New York, and hence the deception must at least have continued till the arrival of the indigo at London; but we find, though the selection of Samples was made with so little attention as not to have attracted the particular notice of Massias or- Samuel Lopez, that they were of four or five different qualities.

Massias says positively that- there were five.

[*517] *If these samples had been taken from the surface, the indigo, in the interior parts of the packages, must ay least have produced an additional kind, respecting which both those witnesses are silent. If they had gone below the surface, the persons engaged in the selection- of the samples musVhave discovered the deception, the instant they penetrated to that of an inferior quality.

If it had been so discovered, it is not possible that Gomez, so materially affected in his interest by the fraud, would have remained silent on the subject; but that he advised his partners of it from London, has <not even been suggested.

Isaac Gomez, jün. in his letters to Gomez &• Lopez, from Hamburgh, stated that the markets were low at that • place ; that though there were imaginary prices, there were no purchasers ; that London afforded the best market, but that at Hamburgh he must sustain a loss of sixty per cent, on the adventure. > ‘ -

In his letter of the 21st of September, from London, the amount of loss is not stated, but it is said, there is an appearance of great loss. If this observation applied tó the real quality of the cotton, Surat, his statement was correct, that a heavy loss was probable ; but if it applied to cotton of the production of the Isle of France, all the proof we have in the cause leads to the conclusion, that instead of a considerable loss, it must have yielded a handsome profit. The conclusion, in my mind, is irresistible, that Gomez knew the quality of the cotton, before the 21st day of September, the date" of his first letter from London. MaSsias and Samuel Lopez concur, that the discovery was first made on the production Of the samples to Smith-& Atkinson, at .London.

An argument made use of by one of the counsel om the part of the appellant, appeared to me to have great weight; and that was, that if the fraud was contemplated in India,

■ and the packages deliberately prepared for the express pur pose of deception, the warranty attributed to the appellant must unavoidably operate to defeat the purpose, and expose the appellant to inevitable detection, [*518] without a possibility of being benefited by it, and the consequences of a detection would more immediately attach to him, as it was not doubted, but he was sincere in his in tention to follow the cargo to its port of delivery. These could not well consist together, unless we suppose the appellant to be as ignorant, as the witnesses represent him to be artful and designing.

It appears that Isaac Gomez, jun. arrived in London some time in the month of September, 1795 ; that on the 21st of that month he wrote a letter to Moses Lopez, in which he expresses, in very strong terms, the concern he . felt on account of the ruinous consequences of the speculation ; proposes to devise expedients, by repeated investments, to replace the loss, but gives not the remotest intimation of a fraud, nor does the possibility of repelling the effects of the imposition appear to be contemplated as a resource to avert the ruin he seems so solicitous to avoid.

Tested by these circumstances, the relations given by the witnesses on the part of the respondents, have little weight with me; nor is it, in my opinion, necessary, in order to discredit them, to call in the aid of the testimony given on the part of the appellant. If no witnesses had been examined on his part, I should not have been able to resist the conviction which the mere circumstances I have cursorily mentioned impress on my mind.

There is another point of light in which this matter may be considered, and which would direct my mind to the same .conclusion, if those circumstances were less strong, and that-is the oath of Moses Lopez.

The association of several persons for commercial purposes, is derived to us from the law of merchants. It supposes a unity of persons and a unity of interests, represented by the name which they elect to designate their firm. It is evident,, that with a set of men so associated, the dictates of policy and justice must, of' necessity, require, that the act of [*519] every copartner of the firm, in *all matters relating to their common concerns, should be considered as the act of the whole. . If that were not the case, collusive separations, or artful appearances of enmity might be held out to serve their purposes, at the expense of those with whom they had, dealings. This unity of persons and of interests, and all the consequences derived from that doctrine, they are strictly and rigorously held to at law. I know of no instance where it has been held otherwise, and in a court of law,, it does not lie in the mouth of the firm to disavow the acts or declarations of the persons constituting it. In chancery, the rule is somewhat different ; it admits of the exception of a collusion between any of them and a stranger, to the prejudice of the firm ; but to separate their interests, the collusion is not to be collected from remote intendments, from an existing enmity, and, in my opinion, not even from an express avowal of either of the copartners, unless coupled with acts or declarations of the person with whom he is charged to collude.

I can discover nothing in the conduct of the appellant from which a collusion can be rationally inferred between him and Moses Lopez. If no such collusion exists, his declarations simply, (and here they were voluntarily made under the solemnity of an oath,) must be - considered as those of, one of the parties in interest, under the contract, and operate accordingly.

It is said that Moses Lopez, so early as the 28th of May, £.795, transferred his share in the cotton and indigo, to Isaac Gomez, jun. and hence it was inferred that his relation as to this transaction was changed ; but though he parted with his share, he remained liable on his. contract, for it was essentially necessary to have the approbation of the appellant, in order to dissolve the engagement subsisting on the contract.

In a case thus circumstanced, I cannot discover, what good consequence can possibly be obtained by referring it to á jury, to determine on .the fraud. If they should give a verdict in favor of the respondents on that ground, I *should think that it ought to be set aside as [*520] against evidence. Issues are always awarded in chancery, not at the instance of either of the parties, but from the volition of the chancellor. This, however, is to be exercised in sound discretion, and if circumstances occur which give a controling preponderance of testimony on either side, it is his duty to decide according to such preponderance. On this I had some doubt, but I am, upon reflection, convinced that it is his duty to do so, and that if he does not, but refers it to a jury, it will warrant an appeal. A reference to a jury may increase, but cannot remove embarrassments. It is not one of those cases which requires a jury to pass up on the matter to inform the conscience. The conscience has already taken a direction from which it cannot be diverted, and the trial' of an issue can have no other effect than to devolve the responsibility of the decision on the jury, if their opinion agrees with that of the chancellor. If it does not, he will, of course, by ordering a new trial, conform the verdict to his own opinion. This would, in its effect, be a nugatory process. It is such a one as, I think, ought not to receive the sanction of this court.

The third question appears to present a point of much importance to the jurisprudence of the state. I am satisfied that the doctrine which has been laid down, showing that the powers of this court extend to th.n final decision of this cause, on the present appeal, is such as will fully justify our pronouncing a final decision. It is not necessary to determine how far it would be proper for this court to exercise a jurisdiction, which might be considered as original, in contradistinction to appellate. The constitution of this court is not calculated, and its members are too numerous for the exercise of, the decretal powers of a court of chancery, in the first instance. The clashing of opinions, inseparable from numerous bodies, must, in many cases, produce a less harmonious result than that originating from the decision' of a single person, in matters of so multifarious a kind, as a .chancery *cause not unfrequently presents. This [*521] inconvenience is avoided, by confining the exercise of the powers of the court to matters- strictly appellate.

But though this reasoning appears to me .very cogent, it is, I think, -not: applicable to this case. The powers of this court, as exercised in dismissing the bill, arise from the subject. If this court decide against the order for the issue, it must be on the ground, that it is so clear as to render- it unnecessary for the information of the conscience of the court to send it to a jury. It amounts to a declaration that the respondents have hot sustained their- bill; if so, and it is remittted to the court of chancery, what other effect can it have, than merely to send it through its different stages in that court to a final decree, to produce the same effect which a dismission of the bill would have here? The conscience of the chancellor will not be better informed, when he becomes again possessed of the cause, than he was before the appeal; and if the opinion of this court is to be conclusive upon him, as it will be, if it is- expressed, he will formally pronounce a decree conformably to it. If he decides on the evidence, and decides in favor of -the respondent's, we shall have another appéal on that ground, and must ultimately pronounce the same decree which, I think, it is now incumbent on the court to do, that the respondents’ bill be dismissed.

I refrain from saying anything further on the subject of the trial between the respondents and Gomez, Lopez, and Rivera, than that,- as it was between parties with whom the the appellant had no connection, it cannot affect his interests.

The fact was, that the two parties adverse to each Other in the cause, were united in a common Opposition tb the appellant ; that their interests might be combined to conclude him. The appellant was not obliged to confide his interests • to them farther than he has done. His connection with the .respondents was dissolved. It -might, if he had [*522] united himself with the respondents, have indirectly-affected his interests. He was not bound to do it, and the manner of conducting the trial on the part of the respondents was not calculated to. give him any strong inducement to the measure.

I therefore repeat, that I think this does not vary the situation of the parties; and that the bill of the respondents ought to be dismissed.

A majority of the court were also of opinion, that the order of the chancellor complained of, should be reversed, and the bill of the respondents dismissed.

After the court had pronounced their decision,

Burr, for the appellant, moved for costs and damages to be assessed against the respondents. He contended, that as the charge of fraud had been found wholly groundless, the appellant ought to be indemnified for the interest of the debt, which had accrued, and for all his expenses over and above the taxable costs. He cited 2 Burr. 1086, 1087. 1 Bro. P. O. 464,578. 2 Bro. P.0.576. 3 Bro. C. P. 70, 81.

Hoffman, (Attorney General) for the respondents, on the other hand, insisted that costs and damages are never allowed on decrees of reversal, and for dismissing the bill. He cited 1 Bro. P. C. 181, 591. 2 Bro. P. O. 15, 286, 398, 404,456. 3 Bro. P. O. 366. 4 Bro. P, C. 152, 227. 5 Bro. P. 0. 466. 6 Bro. P. C. 27, 480,492. 7 Bro. P. 0. 59,110, 303, 373, 432. He said, that only one case could be found, of costs allowed on reversing a decree, which was that Of 2 Bro. P. 0. 165, and that only allowed the costs of the proceedings in the court below; that when the judgment of the supreme court was affirmed in error in 1798, the interest was allowed on the judgment down to *the [*523] time of affirmance and the whole money was paid into the bank in 30 days thereafter.

The court took time to consider of the application, and on the 28th February, Mr. Justice Benson delivered the unanimous opinion of the court, on the question, in substance as follows:

I have looked into all the cases, and I find this to be the rule on the subject of costs in error.

1. That if judgment be given in the court below against the plaintiff and he bring error, and the judgment in the court below be reversed, he recovers only the costs of the action below, because the court of errors gives such judgment as the court below ought to have given, and none other; and it would be unreasonable to compel a person in case of a reversal, to pay costs for the error of. the court be" low. The cases are express and decisive. [1 Strange, 617. 1 Anstruther, 180, 183. 1 Salk. 252.]

2. If the plaintiff below recover, and the defendant below bring error and reverse the judgment, he obtains. no costs unless it be the costs of the court below up to the judgment,

All the cases cited by the counsel for the appellant, apply to the costs of the action below. There is not a single instance where costs of the writ of error or appeal were given, on reversing the judgment or decree below, for that would be making the defendant in error pay for the wrong judgment or decree of the court below. The case in 1 Bro. P. 0. 578, has the appearance of an exception, but it is not one, for there, on the reversal, costs were given conditionally, that the responents on paying the costs of the appeal, might bring the cause again to a hearing in the court below. [*524] The case in 2 Bro. 165, which *the attorney general thought against him is not so ; for in that case, on reversing the decree and dismissing the respondent’s bill,- he was ordered to pay to the appellant the costs of the proceedings in the court below; and that was doing no more than giving such a decree, as the court below ought to have given.

In the present case, therefore, we are of opinion, that the respondents should pay to the appellant the costs only of the proceedings in the court below, up to the time that the order for as issue was made absolute. v

It was thereupon ordered, adjudged and decreed, that the order of his honor the chancellor be reversed ; and that the biil of the respondents be dismissed, with the costs in the court of chancery, and it was further ordered, that each party pay his own costs on the appeal.

Judgment of reversal. 
      
      
         The general principle here stated has become firmly fixed in the jurisprudence of the country. Interest reipublicce ut sit finis litium. Etheridge v. Osborn, 12 Wend. 399. Gardiner v. Buckbee, 3 Cowen, 120. Burt v. Sternburg, 4 id. 559. Rice v. King, 3 Johns. R. 20. Smith v. Whiting, 11 Mass. R. 445. Young v. Black, 7 Crunch, 567. Church v. Leavenworth, 4 Day, 274. Eastman v. Curtis, 4 Verm. R. 616. Sackett v. Gwathmey, Litt. Sel. Cas. 121. Wallace v. Usher, 4 Bibb, 508. Martin v. Hunter, 1 Wheat. 304. Smith v. Maryland, 6 Crunch, 286. Taylor v. McKnight, 1 Missouri R. 282. Hayden v. Booth, 2 A. K. Marsh. 353. Hibshaum v. Dulleban, 4 Watts, 183. Leavensworth v. Tomlinson, 1 Root, 436. Campbell v. Phelps, 1 Pick. 62. Marsh v. Piler, 4 Rawle, 273. Thus, a judgment rendered on a promissory note is a good bar to an action on such note, though blank spaces are left in such judgment for the amount of damages and costs. Wells v. Dench, 1 Mass. R. 232. And in an action on the case, in the nature of a conspiracy for obtaining goods by false representations, a judgment on the merits is conclusive, and a bar to any new form of action. Livermore v. Herschell, 3 Pick. 33. And a judgment in favor of the plaintiff, in an action of trespass to try title, is conclusive, between the parties, as to all titles which the defendant had at the time of the trial. Caston v. Perry, 1 Bailey, 533. “ And the principle applies in almost every instance, where a suit is sought to be sustained upon allegations which would have constituted proper ground of defence to a previous action between the parties. Thus, in Marriott v. Hampton, 7 Durn. & East, 265, H., the defendant, had formerly sued M., the plaintiff! for goods sold and delivered, for which M. had before paid H. and obtained his receipt; not being able, however, to find the receipt at the time, and having no further proof of the payment, he was obliged to pay the money again, and gave a cognovit for the costs ; afterwards he found the receipt, and prosecuted to recover back the sum so wrongfully enforced in payment; and it was held, on motion for a new action, that the action could not be sustained.Per Lord Kenyon, Ch. J.: 1 After a recovery by process of law, there must be an end of litigation, otherwise there would be no security to any person. I cannot therefore consent, even to grant a rule to show cause, lest it should imply a doubt.’ Lawrence, J. alluding to a case relied on by the plaintiff’s counsel, says, ‘ It goes the length of establishing this, that every species of evidence, which was omitted by accident to be brought forward at the trial, may still be of avail in a new action to overhale the former judgment; which is too preposterous to be stated.’ The other judges delivered opinions to the same import. See ICist v. Atkinson, 2 Campb. 63. Moody v. Thurston, 1 Strange, 481. Bateman v. Willoe, 1 Sch. & Lef. 201.
      “ Upon the same principle, a junior mortgagee, made a party to the bill of the elder and neglecting to defend, will be barred. Cooper v. Martin, 1 Dana’s R. 23, 27. So where B. sued G. for not doing work in a skilful and proper manner ; and it appeared that G. had before sued B. to obtain pay for the identical work, in which suit B.’s claim set up in the present action was urged by him, and erroneously rejected by the court, who gave judgment for G.’s work at the price stipulated between the parties ; yet held' that B. could not sustain his action, for the ground of it was matter of defence in the former suit, and he should have pursued his remedy directly there by certiorari to reverse that judgment, and could not overhale it in a collateral proceeding. Grant v. Button, 14 Johns. R. 377: S. P., Kist v. Atkinson, 2 Campb. 63. And where P., having given his promissory notes to L., paid the same without taking them up ; and -after such payment, and subsequent to the time of the notes coming due, L. transferred them to S. L., who sued G. thereon and had judgment for the amount; held, that as P. had neglected to avail himself of the payment by way of -defence to the suit of S. L., he could not maintain an action against L. -for the money thus recovered by S. L. Loomis v. Pulver, 9 Johns. R. 244. So also where A., being charged with -taking B.’s bridle, gave B. a note, the 'latter promising that if it should turn'out -that A. had not taken the bridle, he would give up the note; when the note became due, B. sued A. upon it and obtained judgment for the amount, -which -was accordingly paid ; and the court held, that such judgment, while -it -stood in full force, should prevent A. from recovering the money so paid on B.’s judgment, though A. offered to prove his entire innocence of the charge respecting the bridle. The ground of the second action, say the court, was proper matter of defence to the first suit, and if A. was not-in a situation at that time to make out that defence by proof, 'it -was his misfortune. White v. Ward, 9 Johns. R. 232. See S. P., Battey v. Button, 13 id. 187. Canfield v. Munger, 12 id. 247. The same rule-has been ad'opted in New Hampshire. Thus C. ■ and D. sold H. a patent right, for which H. gave them his notes; one of the notes was paid voluntarily, but the other was sued by C. and D., and a judgment obtained for the amount, which H. accordingly paid. -H. subsequently brought an action to recover back the consideration money, on the ground that the patentees were not the original inventors of the thing patented, and the court held him concluded by the previous recovery; for when sued for the consideration, he enjoyed an opportunity to defend himself by establishing this fact; and if such defence was not made, ‘ the omission arose from such accident as would entitle him to a new trial, or from such ignorance and neglect as are irremediable.’ Holden v. Curtiss el al., 2 N. Hamp. R. 61, 64. Tilton v. Corden, 1 id. 33. So also in Massachusetts. Thatches v. Gammon’s exr’s, 12 Mass. R. 268. Homer v. Fish, 1 Pick. 435. Holmes v. Avery, 12 Mass. R. 136. And in Pennsylvania. Shriver v. The Commonwealth, 2 Rawle, 206. So far indeed has this respect for former decisions been carried, that where an action was brought for malicious prosecution, the court held a record of conviction in the suit charged as malicious, conclusive evidence of probable cause. Whitney v. Peckkam, 15 Mass. R. 243. Williams v. Woodhouse, 3 Dev. R. 257, S. P. Mellor v. Baddeley, 6 Carr. & Paine, 374. The courts in New York, however, have repudiated this doctrine. Burt v. Place, 4 Wend. 591.’’ Cowen & Hill’s Notes to 1 Phill. Ev. 830, 831, 832.
      “ But although the second suit is predicated upon matter which might have been used as a defence in the first, yet if it involves no inquiry into the merits of the former judgment, and is sustainable on ground entirely independent of such judgment the rule does not apply. This exception was distinctly recognized by the court in Whitcomb v. Williams, 4 Pick. 228. There the plaintiffs had purchased goods of the defendants, and paid for them partly in cash and partly by their note ; they subsequently discovered that they had paid for more than they had received ; but nevertheless, suffered a judgment to go against them on the note, without objecting any want of consideration; and it was held, that an action lay to recover back the amount overpaid ; for the giving of the note, under the circumstances, being equivalent to payment in cash, a cause of action originated immediately thereupon which steered entirely clear of the judgment; and 1 although the. mistake might have been corrected in that action, the present plaintiffs were'under no .obligation,’ says Wilde, J. delivering the opinion, ‘ to avail themselves of that mode of seeking relief. A new remedy arising on a contingency will not deprive a party of a pre-existing right of action. The plaintiffs had the right of election, like a party entitled to the privilege of set-off.’ Id. 228, 231. And where A. sued B. before a justice, and prior to the return day of the summons, B. settled with A., and paid him $3, in full, A. promising to discontinue his suit; instead of doing so, however, he appeared on the return of the summons, and obtained judgment in B.’s absence of $25 ; B. then brought an action of assumpsit against A. before another justice for a breach of the promise to discontinue, and recovered the same amount which A. had recovered against him ; and the supreme court held the recovery correct; for the suit was not to overhale the first judgment, or to recover back the amount .of it, on the ground that it was not due, but to recover for a breach of the agreement, -and this breach would'have been the same, even if the former recovery had been for a just debt. Cobb v. Curtiss, 8 Johns. R. 470. So where money has-been paid.and a receipt taken, and afterwards the party to whom it was paid brings an action for the same money and recovers, no defence being made ; though the neglect of the defendant in not availing himself of the receipt in that suit, will forever preclude him from recovering the money thus paid, yet there being a moral obligation oh the part of the plaintiff to repay, the. defendant may recover on a subsequent promise of the plaintiff to that effect. Bentley v. Morse, 14 Johns. R. 468. And where A. extended an execution on B.’s real estates, and thereby became tenant in common with C. ; and then obtained judgment against C.-for a share of the'rents and profits accruing subsequent to the ex-tentbut after C.-had paid' A.’s judgment, the judgment against B., upon which A.’s execution issued, was reversed-; held,.that C. could recover against A. the money thus paid by him for rents and profits, though A.’s judgment, against him remaine'd in full force. The court say, that judgment was-right, ‘ nor does the present action impeach it; but the defendant has no right, from posterior circumstances, to retain the proceeds of it. And when one wrongfully detains money, although it was rightfully received, the action for money had and. received furnishes a just and appropriate remedy.’ Lazell v. Miller, 15 Mass. R. 207. So where A. recovered judgment by default against B.; upon an account annexed to his writ, in which account B. was credited for certain goods ; held, that such judgment was no bar- to an action by B. against A.,for the same goods; if they were not credited' at their-full value by A. in the first suit. For though-the valué of the goods credited by A. was a question which B. might lawfully have litigated there, yet he was not bound to do so at his own expense, when by commencing a new actionthe expense would fall on A. If A. intended to avoid this, he should .have credited the goods a-t their full value. Minor v. Walter, 17 Mass. R. 238. Andwhere an-attorney, received a partial payment from a debtor, oh a note left with him for collection, paid it over to the creditor without-endorsing it, and afterwards proceeded and took judgment for the whole amount apparently due ; he was held liable to the'debtor for-the amount of such payment in an action for money had'atid received. Fowler v. Shearer, 7 Mass. R. 14. The same principle was applied where the person receiving the partial payment was plaintiff in the first suit and defendant in the second, the substantial details of the case being in in other respécts like the preceding: and Parker, Ch. J. delivering the opinion,thus explains the ground upon which both decisions proceed: ! Here the creditor, by his own fault, recovered judgment for his whole- debt, when a part of it had been paid. It was his duty to have credited the sum paid on the note, and not having done it, he is to be considered as retaining the monéy for the use of his debtor. The debtor might well lie by, and suffer judgment by default, relying upon a deduction of the sum paid before judgment. ' The-ease of Fowler v. Shearer, cannot be distinguished from this; for in that, as well as this, the plaintiff might have given evidence of his payment; but he confided in the attorney, that the sum paid should be endorsed upon the note. In the case of Marriott v. Hampton, the plaintiff brought his action to recover money paid under legal process, which was thought dangerous. In the case before us there is no such technical difficulty. It is not attempted to disturb the judgment; it is not complained of; it is not alleged that too much has been recovered. The ground of the action is, that the defendant has received fifty dollars of the plaintiff which he is not entitled to retain. He might have retained it if he had chosen to endorse it on the note, or to deduct it from his damages ; but not having done either, he cannot conscientiously retain the money.’ Rowe v. Smith, 16 Mass. R. 306. The contrary, however, of this, has been expressly and deliberately held in New Hampshire ; thus, in Tilton v. Gordon, 1 N. Hamp. R. 33, wfiere a party made certain payments on a note, and afterward, on being sued, suffered judgment to pass against him by default for the whole amount, without any deductions, he was adjudged incapable of recovering for the moneys so paid in a subsequent action. And even in ¡Massachusetts, where Rowe v. Smith, and Fowler v. Shearer, supra, were decided, the principle has been restricted to those cases where a trust and confidence existed between the parties, which the defendant in the first suit acted upon, and such as was deemed sufficient under the circumstances, to excuse his neglect in not availing himself of the payments by way of defence in the former action. And therefore, where the plaintiff in the second suit appeared in the first and contested the point of damages, he was held not entitled to recover. Loring v. Mansfield, 17 Mass. R 394.” Cowen & Hill’s Notes to 1 Phill. Ev. 832, 833, 834. Consult further upon this subject, 2 Smith’s Leading Cases, Hare & Wallace’s ed. 473-479, where the principal American cases upon the doctrine of estoppel by record are collected and commented on. See also United States Digest, vol. 2, p. 644-647, pi. 155-159 inclusive, 161, 164, 166-168 inclusive, 170, 171, 173, 176-178 inclusive, 180,188, 190, 211, 22-1,191,198, 209,210.
     
      
      
        Le Neve v. Norris, 9 Bro. P. C. 67. Norris v. Le Neve, 3 Atk. 35; Ridgway, 399. Young v. Keightly, 16 Ves. 348, 350. Dexter v. Arnold, 5 Mason, 303. Tilman v. Tilman, 3 J. J. Marshl 118. Livingston v. Hubbs, 3 Johns. Ch. R. 194. Haskel v. Rooul, 1 McCord Chi R. 99; Hollingsworth v. McDonald, 9 Har. & Johns. 930. McCall v. Graham, 1 Hen. 6 Munf. 180. Winston v. Johnson, 9 Munf. 305. Huffacre v. Green, Hayw. 51. Triplett v. Wilson, 6 Gall, 47. That a bill of review does not lie upon discovery of evidence to matters which were'within the party’s knowledge, or which by due diligence he might have ascertained, see more particularly McCracken’s heirs v. Fihley, I Bibb, 455, Talbot v. Todd, 5 Dana,. 197. Bucknor v. Forker’s heirs, 7 id, 50. Harvey v. Murrell, Harper Eq. R. 957. Record evidence being discovered alter a decree, which would have probably changed the decision, a bill of review has been sustained though the same- matter was generally iñ *sue "in the suit. . Geanry’s adm’r v. Thornbérry, 3 Dana, 500.
     
      
      
         By Mr. Justice Radcliff.
     
      
      
         Equity only relieves after a verdict at law, when' effectual cognizance cannot be taken at law, as in complicated accounts, or where a verdict is obtained by fraud, &c., and not where the party omitted to avail himself of his legal defence. 1 Schoales & Lefroy., 205.
     
      
      
         Clinton, S. and Gold, S. were of the same opinion as the Chief Justice: Five of the Senators concurred with Lewis, J. in the opinion that the decree ought to be affirmed, and Spender, S. was for affirming, except as to the order for an issue, and that the cause should be remitted to chancery.
      The Reporter regrets that he has not been able to procure the opinions delivered by those who differed from the majority of the court; but they have got into other hands, or are now lost or mislaid.
     
      
       The reference to Brown’s Parliamentary Cases are to the first edition. In the second edition, published by Mr. Tomlins, there is a new arrangement of the cases, to which the references to the ■ first edition are not applicable. The difference will be seen in a table annexed to vol. 8 p. 333,
     