FREE

him for his own use and benefit upon the conditions therein expressed: and he insists that upon a fair set- LAND tlement of the accounts between the Complainants and him agreeably to the custom of merchants in London, HERON & as stipulated by the said contract, he owes nothing.

It further appears that shipments of merchandize by Heron, Lenox and Company were made from time to time, during the first four years of the concern, amounting in the whole to more than 19,000 sterling, and that remittances were made by A. Freeland in bills of exchange and country produce during the same period to a large amount; and that in the year 1793 the partnership was dissolved by mutual consent. A. Freeland continued to settle and liquidate the accounts of the firm at Manchester; and in September, 1796, wrote a letter to Freeland and Gillin, of which the following is an extract: "Your claim will be among the first of my debts that is paid-for the indulgence I have met with, I have to thank you, and mean to exert myself in order to pay off the whole as early as possible."

During the pendency of this suit in the Circuit Court, a cross bill was filed by A. Freeland against Heron, Lenox and Company for discovery, which they answered by denying the allegations in the bill without disclosing the evidence sought for. No exception, however, was taken to the answer.

An order had passed directing an account to be stated by a commissioner appointed for the purpose, who reported that there was due from A. Freeland to Heron, Lenox and Company a balance of one thousand one hundred and sixty pounds seventeen shillings and ten pence sterling, to which report, various exceptions were taken by the Defendant.

On the 14th of December, 1809, the cause came on to be heard in the Circuit Court upon the bill, answer and exhibits and the report of the commissioner, when it was adjudged, ordered and decreed that the Defendant, A. Freeland, pay to the Plaintiffs, Heron, Lenox & Co. the sum reported to be due by the commissioner, at certain specified periods, with interest from the first day of June, 1798, and costs: and the cross bill was

v.

OTHERS.

FREE

LAND υ.

HERON &

dismissed with costs. From which decree the Defendant appealed.

The exceptions taken to the report of the commisOTHERS. sioner in the court below have been urged on the part of the Appellant in this court, and may be comprized under the following heads:

1. That he has not given the Defendant credit for all the bounties, drawbacks and duties which were allowed to the Complainants on the purchase and shipment of the goods in England, which he ought to have allowed agreeably to the contract of co-partnership.

2. That the commissioner adopted a mode of calculating interest contrary to the agreement of the parties in April, 1795, and prejudicial to the Defendant.

s. That he allowed the Complainants a commission on the sales of produce shipped directly to Cadiz, Lisbon and other places, where the property was consigned directly to persons residing in those several places; by them sold, and who charged the ordinary commission, and who remitted the proceeds to the Complainants, in London.

4. That he has not given credit to the Defendant for 25 hogsheads of tobacco.

There was another exception, but as it was abandoned in the argument by the counsel, it will not be noticed.

With respect to the first, third and fourth exceptions, the record does not furnish the evidence necessary to enable the court to form a correct decision from the facts. The positive assertions of the Appellant are denied by the Appellees; and in proof both are equally defective.

The Appellant claims a credit of 764 10 5 sterling on account of bounties, drawbacks and discounts: he has been allowed upwards of l 300 sterling, and the Appellees deny that he is entitled to more credit than is given, averring that more has not been received by

them. Each insists that the onus probandi ought to be FREEthrown on his adversary.

LAND ช.

It is proper to observe that it appears by the record HERON & that Heron, Lenox and Company furnished A. Free- онters. land with an account current annually for the four first years of their transactions, and that no objection was made to them. This circumstance, combined with the promise contained in A. Freeland's letter of September 1796 to pay the whole balance due, affords room for the application of a rule of the Chancery Court and of merchants to decide the controversy. It is this: When one merchant sends an account current to another residing in a different country, between whom there are mutual dealings, and he keeps it two years without making any objections, it shall be deemed a stated account, and his silence and acquiescence shall bind him, at least so far as to cast the onus probandi on him.

The same rule is applicable to the third exception. After an acquiescence of several years the account is considered as binding upon him, as he has failed to falsify the allegations of the Appellees that the shipments of produce to Cadiz, Lisbon and Bourdeaux were made pursuant to their orders and under their superintendance.

He has failed also to prove that he is entitled to the credit insisted on in his fourth exception. To be entitled to the credit it is incumbent on him to prove that the 25 hogsheads are exclusive of the 80 hogsheads of tobacco shipped in the Mercury. The record affords no testimony whatever.

With respect to the second exception, it is considered by this Court that the Circuit Court erred in sustaining the report of the commissioner as to the manner of stating the account between the parties. The commissioner adoped the mode established in Virginia, and which it is believed prevails generally throughout the United States: but by the written agreement of the parties in April, 1795, it is stipulated that the interest shall be charged agreeably to the custom and manner of settling accounts in London. In all other respects the opinion of the Circuit Court is affirmed.

FREE

LAND

v.

It is therefore the opinion of this Court that the decree of the Circuit Court with respect to the second exception be reversed, and that the cause be remanded to HERON & the Circuit Court, in order that an account may be OTHERS. taken pursuant to the written agreement of the particsagreeably to the custom and manner of settling accounts in London.

1812.

March

2.1.

WELCH v. MANDEVILLE.

The refusal

Present.....All the judges.

ERROR to the Circuit Court for the district of

of the Court Columbia, sitting at Alexandria.

below to re-instate a cause which has

'The nominal

has not an assignment of the cause of action.

An action of covenant was brought in that Court, in been legally the name of James Welsh, the Plaintiff, but really for dismissed, is no ground for the use and by the sole orders of Allen Prior, against a writ of error. Mandeville and Jameson, upon a contract for the sale Plaintiff may of land to them by Welch. At the second term after dismiss a suit an office judgment had been entered against Welch at brought in his name by a the rules, the Defendant, Mandeville, who alone had . creditor who been taken, produced to the clerk a release under the seal of Welch and an order from him to dismiss the the suit; whereupon the clerk made an entry on the minutes of the Court, that the action was dismissed by agreement of the parties. Afterwards, at the same term, the attorney who brought the suit in the name of Welch, moved the Court to re-instate it, and grounded his motion upon his own affidavit and the papers mentioned therein. The affidavit stated, that in the autumn of 1799, Prior, brought to the attorney 3 bills of exchange, drawn by Welch upon Mandeville and Jameson, for 2500 dollars each, and an account in the handwriting of Mandeville, acknowledging a balance due to Welch on the 31st of January, 1798, of 8707 dollars and 9 cents to be paid in the times and manner therein stated. Prior, at the same time, stated that Welch was indebted to him and that he had taken those bills in payment, which Mandeville and Jameson refused to accept, saying that Welch

had deceived them in the sale of the lands.

Prior left WELOR

the papers with his attorney, and requested him to take v. the best measures to obtain the money from Mandeville MANDEand Jameson; whereupon he brought two suits in the county Court of Fairfax, in Virginia, the one was a suit at law in the name of Welch against M. and J. founded upon their acknowledgment of the balance of account. The other was a chancery attachment, in the name of Prior against Welch, as an absent debtor, and charging M. and J. as Garnishees.

Upon the trial of the suit at law, the Defendants produced the original contract respecting the sale of land, whereupon the attorney for Welch suffered a non-suit, and having obtained an office copy of the contract brought the present suit thereon, for the use of Prior, in the name of Welch, but without his directions, which was known to Mandeville. There had been no decision in the chancery attachment. The attorney never had any communication with Welch upon the subject of this suit; but he had reason to believe that Welch knew of the suits in Fairfax county and did not interfere with them. The attorney corresponded solely with Prior on the subject of this suit, who had directed the application of the money when recovered. That the attorney did not know of the release and order to dismiss the suit until after the entry was made on the minutes, and that the suit had been dismissed without his consent or that of Prior, who had been at all the expense of the suit. That he had been informed that Welch was in the prison bounds, and that when Prior put the papers into his hands, he informed him that it was his only prospect of receiving payment of the debt due to him by Welch.

Whereupon the Defendant, Mandeville, produced the affidavit of Welch, stating that he drew the bills in favor of Prior, merely for him to get them accepted, and negotiate them for account of Welch and as his agent. That Prior never gave value for them, and instead of being the creditor of Welch, was his debtor; and that he, (Welch) never made a transfer or assignment of the contract with Mandeville and Jameson to Prior or any other person.

VOL. VII.

21