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Bingham v. Cabbot. 3 D.

“ William Bingham, Esq., to the owners of the ship Pilgrim, com. manded in the late war by Hugh Hill, on her first cruise, Dr. 1799, May 8. To 1000 bbls. of flour he received at Martinique, or from on board the privateer Hope, Ole Heilm, master, captured by the ship Pilgrim previous to May 8, 1779,&c., &c. The second count was quantum valebat for 1000 barrels of four. The third count was for money had and received. The fourth count averred that the defendant received and had sold 1000 barrels of flour as the bailiff of the plaintiffs. The fifth count was quantum valebat for 500 barrels of flour, and the sixth was quantum valebat for one undivided moiety of 1000 barrels of flour. The general issue was pleaded and joined.

It appeared by the record, that the Pilgrim, in November, 1778, captured the Hope and sent her into Martinique, where the plaintiff in error resided, as a public agent of the United States. On examination there, it appeared that the Hope was Danish property and her cargo belonged to subjects of Portugal, both those countries being at peace with the United States and France; but there being no court of admiralty at Martinique, competent to decide a question of prize by an American captor, and the captain of the Hope being solicitous to depart, the governor of the island, who had authority to supply the deficient parts of the civil polity, made an order, that the cargo should be sold and the freight paid to the master, under the direction of William Bingham, agent of congress, and that the net proceeds should remain in his hands, to be delivered to whom it might appertain, under the orders of congress. It further appeared, that before this order was made, Mr. Bingham had taken the cargo into his possession, and had made known to congress its situation and circumstances. After the order of the governor had been made, he sold the flour. An action of trover having been brought in the state court, resulted in a judgment in favor of Mr. Bingham. Congress had, by various resolves, approved of Mr. Bingham's conduct in reference to this property, and declared that he had acted as a public agent of the United States.

* Such were the circumstances of the cause now under [ * 231 consideration when it came to trial in the circuit court, before Justice Cushing, an associate judge of the supreme court alone. Mr. Bingham's counsel offered to give the following documents in evidence to the jury. 1. Office copies certified under the hand and seal of the secretary of state, of the papers found on board the Hope, of depositions relating to the capture, taken officially before Mr. Bingham, as a public agent; of Mr. Bingham's letter of the 20 February, 1779, and other subsequent correspondence and depositions in relation to the

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Bingham v. Cabbot. 3 D.

capture, addressed to the commercial committee of congress; and of the Marquis de Bouille's order. These documents were stitched together, and were included in one certificate from the secretary of state. 2. The account sales of the flour at Martinique, dated the 8th of May, 1779, and the account sales of the property which had been attached in the action of trover, brought by Carlton v. Bingham. 3. The record in the inferior and superior courts of Massachusetts in the case of Carlton v. Bingham. 4. The resolutions of congress passed respectively on the 3d November, 1779, and the 20th June, 1780. But the court rejected all the evidence; (though it would seem from the record, that a part of it must have been admitted in the course of the plaintiff's proofs,) and a bill of exceptions was tendered and allowed.

The court desiring the counsel, in the first instance, to discuss the question of jurisdiction, the case was argued on that

point. [* 32 * On the 27th February, the court delivered their opinion

to the following effect:

PATERSON, J. Considering, as I do, that all the papers transmitted from the circuit court, upon a return to the writ of error, form a part of the record in this cause, I am clearly of opinion that the subject-matter of the controversy is fully and exclusively of admiralty jurisdiction.

IREDELL, J. I find it difficult to form an opinion on the question of jurisdiction at this stage of the cause. I concur in thinking, however, that all the papers which accompany the record should be considered as a part of it; and in relation to the original suit, it appears to me that on the evidence exhibited by Mr. Bingham, to show that he acted under the orders of the Marquis de Bouille, the judge should have charged, and the jury should have found, that he was not responsible to the plaintiffs.

But, still, I am not ready at this moment to decide that [ * 33 ] * the circuit court had no jurisdiction. Suppose the plain

tiffs below had expressly stated in their declaration, that their cause of action was a capture as prize; the court would, probably, have directed a nonsuit; and yet, if the plaintiffs had persisted in answering when called, the jury must have given a verdict. Suppose, again, that the controversy had appeared from the defendant's evidence to turn entirely upon the question of prize, the court could not, I conceive, (though I speak here with great diffidence,) direct the plaintiffs to be nonsuited, merely on

Bingham v. Cabbot. 3 D. the defendant's evidence; and, unless a juror had been withdrawn by consent, a verdict must also have been given in this event. It will not be sufficient to remark, that the court might charge the jury to find for the defendant; because, though the jury will generally respect the sentiments of the court on points of law, they are not bound to deliver a verdict conformably to them. From these and other considerations, I do not find myself at liberty to decide against the jurisdiction of the circuit court; though I repeat, that the jury ought to have been let in to give a verdict in favor of the defendant.

Wilson, J. From the proceedings laid before the court, it appears clearly to my mind, that the question on which the cause must be decided is exclusively of admiralty jurisdiction.

CUSHING, J. It does not appear to me, from any part of the record, that the circuit court had not jurisdiction on the third count in the declaration. The papers and depositions that have been transmitted, were, no doubt, produced upon the trial; and I agree that they ought to be regarded as a part of the record. But we are not bound to receive for truth every thing which they allege; nor, indeed, can we give any of their statements the validity and force of a fact since they only amount to evidence; and it is the peculiar and exclusive province of the jury to infer facts from the evidence.

That the court had not jurisdiction on those counts, which seem to refer to a question of prize, is no reason for excluding a jurisdiction upon the count which has no such reference. The contract might be of a different nature; and the parol testimony, which does not appear in any shape on the record, might have supported it.

The court being thus equally divided in their opinions, on the exception to the jurisdiction, directed the counsel to proceed to the discussion of the exceptions to the record.

In the course of the argument it was held —

* By the Court. We are perfectly clear in the opinion, [ * 361 that although the district judge was on the bench, yet if he did not sit in the cause, he was absent in contemplation of law; and that the case otherwise comes within the provisions of the acts of congress.

* It is exceedingly clear, that the bill of exceptions is con- [ * 38 ] clusive upon this court. We cannot presume, or suspect,

Bingham v. Cabbot. 3 D. that any material part of the evidence is omitted. On this objection, therefore, nothing now need be added.'

[ * 39 ] The judges, after some advisement, delivered their

opinions, seriatim.

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

Those letters which were written to congress by Mr. Bingham, at the time of the transaction, should likewise, in my opinion, have been submitted to the jury. On the arrival of the captured vessel, the governor might have awarded absolute restitution; but, choosing to adopt a middle course, she directed the cargo to be sold, and the proceeds to remain in the hands of Mr. Bingham, as the agent of congress, till congress should instruct him how to act. In the character of a public agent, therefore, Mr. Bingham received the property; and his cotemporaneous correspondence on the subject, in that character, with the American government, was certainly proper evidence to show the original nature and complexion of the facts in controversy. I have more doubts on the admissibility of the other letters referred to in the bill of exceptions; but, in relation to them, it is unnecessary to give a decided opinion. With respect to the resolutions of congress, two questions may be

proposed, in order to determine whether they ought to have [ 40 ] been admitted as evidence; 1. Had congress authority *to

pass such resolutions ? and 2. Did the resolutions relate to the subject of the controversy? I have lately had occasion, in the case of Doane v. Penhallow,a to express my sentiments at large on the authority of congress, of which, in its application to the present object, I do not entertain the slightest doubt. And no man of common candor can hesitate, for a moment, to pronounce that the resolutions have an immediate and necessary connection with the merits of the cause. They ought then to have been admitted ; but what should be their force and operation, is another point not at present before the court.

* Cushing, J., did not seem to coincide in this opinion, but the other three judges were decided.

2 3 D. 54.

Bingham v. Cabbot. 3 D. I am also of opinion that it was improper to reject the depositions which Mr. Bingham had taken, in his public official character, to ascertain the circumstances of the capture, and the property of the vessel and cargo, at the time the supposed prize was carried into Martinique.

IREDELL, J. It appears satisfactorily to me, that many of the documents offered in evidence have been improperly rejected. From an inspection of all the papers, which are attached to the record, the nature of the dispute may be easily ascertained. The plaintiffs allege that Mr. Bingham received, on their account, as their agent, property which had been captured by them as prize; and that, whether the capture was lawful or not, he was bound to account to them, though they might be responsible to the original owners, if any wrong had been committed. To this charge, Mr. Bingham answers that he never was the agent of the plaintiffs, but a public agent, and that he did not receive the property from them on their account; but from the Marquis de Bouille, on account of the true owners. Admitting either of these positions, a direct and certain consequence will ensue. If the plaintiffs are right, the consequence is that Mr. Bingham ought to surrender the prize property, or account for its proceeds to them; and though they, as captors, may be sued by the neutral claimants, the existence of a neutral claim will not justify his refusal so to surrender or account. But if the defendant is right, the consequence is, that he ought not to deliver up the property to the plaintiffs until it has been ascertained that the capture was lawful, which must be done through the medium of a prize court, not by a judgment in a court of common law. From this view of the controversy, therefore, it must be of great moment that Mr. Bingham should have an opportunity to show that he had acted, throughout the business, as the public agent of the United * States; and that his communications to congress were [ *41 ] open, fair, and faithful. If indeed he had given parol testimony on these points, his opponents might have called for the records of the appointment and correspondence, as affording higher proof. I am therefore of opinion that Mr. Bingham's official letters, some of which were written before any dispute existed, or could reasonably be anticipated, ought not to have been rejected.

The resolutions of congress, likewise, were proper evidence, not indeed to prove that the plaintiffs were not entitled to the money in question, but to prove that the defendant was recognized in the transaction as the agent of congress. The resolutions are not to be consi. dered as the mere expression of a congressional opinion, but as an

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