Schooner Paulina's Cargo v. The United States. 7 C. The section under consideration inflicts forfeiture on any ship or vessel which shall depart from any port of the United States without a clearance or permit. If by law this would produce a forfeiture of the cargo when on board The Paulina, it is to be inquired whether, under this libel, the fact of her having passed out of one port into another without a clearance or permit, is examinable. The libel charges the simple fact of transshipment, without alleging the only circumstance which could render such transshipment criminal. The question, then, of a departure from the port of Providence, into that of Newport, is not brought before the court. It does indeed appear in the evidence, that, in consequence of an opinion among the revenue officers, as well as others, a clearance in such a case was not requisite; The Mayflower carried a considerable part of her cargo to The Paulina without having obtained permits. But the court cannot notice this fact, unless the prosecution had, in some degree, been founded upon it. It is, then, the opinion of the majority of the court, that, as this case stands, the sentence cannot be sustained under the 3d section of the act of January, 1808. No opinion is given on the construction of that act, in a case of transshipment from a vessel which has actually passed from one district to another, without a clear ance. The libel also claims a forfeiture under the 50th section of the collection law, and under the 2d section of the act [ commonly called the Additional Act. * 67 ] It has been very truly observed, that the collection law is in itself totally inapplicable to the case, and can only be relied on for the purpose of explaining the 2d section of the Additional Act, which refers to the collection law. The operative words of the 2d section are, "No ship or vessel shall receive a clearance, unless the lading shall be made hereafter under the inspection of the proper revenue officers, subject to the same restrictions, regulations, penalties, and forfeitures, as are provided by law, for the inspection of goods, wares, and merchandise, imported into the United States, upon which duties are imposed." Had the sentence terminated with the word "officers," it is admitted that its only operation would have been to exclude from a right to a clearance a vessel laden in a different manner from that which the act prescribes. The doubt grows out of the residue of the sentence. This section does not, in terms, refer to the 50th section of the 39 VOL. II. Schooner Paulina's Cargo v. The United States. 7 C. collection law. Whether, in strict grammatical construction, the adjective "subject," agree with and refer to, the words "lading," "inspection," or "officers," still the "restrictions, regulations, penalties, and forfeitures," which are inflicted, are those which are provided by law for the inspection of goods, not those which are provided by law for unlading them. The word inspection is the governing word which explains the meaning of the sentence; and the provisions for the inspection of goods contain restrictions, regulations, penalties, and forfeitures; but they do not affect the cargo. It is difficult to read the sentence without being impressed with the opinion that the sole penalty intended by the legislature was the denial of the clearance. This will strike any person as the principal object of the clause. What follows is expressed with some confusion, and would not seem to constitute the most essential part of the sentence. It cannot be believed that the legislature [* 68] could intend to inflict so heavy a forfeiture under such cloudy and ambiguous terms. The natural as well as usual course would be to inflict the forfeiture in direct and substantive terms, not by way of loose uncertain reference. But if this section be construed as the libellants construe it, then if the value of $400 be put on board a vessel, not only the goods so put on board, but the vessel itself, shall be forfeited. For what purpose, then, direct that she shall not receive a clearance? The legis lature can scarcely be suspected of making a solemn regulation, which, in terms, forbids its officers to grant a clearance to a vessel, which vessel is, by the same sentence, confiscated. It is the decided opinion of the court, that no forfeiture is incurred under this section of the act. The majority of the court is of opinion, that the sentence of the circuit court, condemning the cargo of The Paulina, is erroneous, and ought to be reversed. The court certified that there was probable cause of seizure. The chief justice observed, that three of the judges who had heard the argument in the present case, and one who did not hear it, but who had heard the points argued in another case, concurred in this opinion, and that the other judges concurred in the result of the opinion. Johnson, J., observed, that he dissented from the opinion just delivered by the chief justice, upon one ground only. He was of opinion that the transshipment, if with intent to prosecute a foreign voyage, in violation of the embargo, subjected the goods to forfeiture. But as the evidence of that intent was doubtful, Russell v. Clark's Executors. 7 C. he was of opinion that the cargo should be acquitted; and two other judges concurred with him in opinion. Sentence reversed. NATHANIEL RUSSELL V. JOHN I. CLARK'S EXECUTORS, and [ others. 7 C. 69. 69 1 If a court of equity has jurisdiction to compel a discovery, it may go on and give relief, though the claim be legal; but it will not do so, if no material discovery is made by the answer. To subject one man to pay the debt of another, there must be a clear undertaking; if the intent is doubtful the obligation does not exist. If a representation concerning the credit of another is honestly made, its actual falsehood does not render the person making it liable to an action. Where a trust was created to pay to W. the amount that shall be recovered and paid from him to N. upon account of a letter of credit, and N. had recovered a judgment at law against W. which was unsatisfied. W., being insolvent, it was held that N. could not, by a bill against the trustee and W., reach the trust fund. But if the money is to be paid at all events, the person who is ultimately to receive it, under a trust, may sustain such a bill. Assignees in bankruptcy are indispensable parties to a bill against the bankrupt and certain persons to whom he conveyed property in trust before he was decreed a bankrupt. APPEAL from the circuit court of the United States for the district of Rhode Island. Nathaniel Russell filed his bill alleging that Jonathan Russell, in behalf of Robert Murray & Co., drew on them certain bills of exchange, which the complainant indorsed for their accommodation, and had been obliged to pay. That he made those indorsements on the faith of the following letters from Clark & Nightingale: "NATHANIEL RUSSELL, ESQ. Providence, 20th January, 1796. DEAR SIR. Our friends, Messrs. Robert Murray & Co., merchants in New York, having determined to enter largely into the purchase of rice, and other articles of your produce in Charleston, but being entire strangers there, they have applied to us for letters of introduction to our friend. In consequence of which, we do ourselves the pleasure of introducing them to your correspondence as a house on whose integrity and punctuality the utmost dependence may be placed; they will write you the nature of their intentions, and you may be assured of their complying fully with any contract or engage Russell v. Clark's Executors. 7 C. ments they may enter into with you. The friendship we have for these gentlemen, induces us to wish you will render them every service in your power; at the same time, we flatter ourselves the correspondence will prove a mutual benefit. We are, with sentiments of esteem, Dear sir, Your most obedient servants, [ ⚫ 70 ] CLARK & NIGHTINGALE." "Providence, 21st January, 1796. DEAR SIR. "NATHANIEL RUSSELL, ESQ. We wrote you yesterday, a letter of recommendation in favor of Messrs. Robert Murray & Co. We have now to request that you will render them every assistance in your power. Also that you will, immediately on the receipt of this, vest the whole of what funds you have of ours in your hands, in rice, on the best terms you can. If you are not in cash for the sales of the China and Nankins, perhaps you may be able to raise the money from the bank, until due; or purchase the rice upon a credit, till such time as you are to be in cash for them; the truth is, we expect rice will rise, and we want to improve the amount of what property we can muster in Charleston, vested in that article, at the current price; our Mr. Nightingale is now at Newport, where it is probable he will write you on the subject. We are, dear sir, Your most obedient servants, CLARK & NIGHTINGALE." That Nightingale is dead, and Clark is the surviving partner. That Robert Murray & Co. are bankrupts, and their assignees, residing in New York, cannot be made parties. Clark having died, after answering, his executors became parties. The other material facts, and the scope and substance of the bill and answers, appear in the opinion of the court. Dexter and P. B. Key, for the appellant. C. Lee and Jones, for the appellees. [ * 87 ] * MARSHALL, C. J., delivered the following opinion: This is a suit in chancery instituted for the purpose of obtaining from the defendants, payment of certain bills of exchange drawn by Jonathan Russell, an agent of Robert Murray & Co., and Russell v. Clark's Executors. 7 C. indorsed by Nathaniel Russell; which bills were protested for nonpayment, and have since been taken up by the indorser. The plaintiff contends that the house of Clark & Nightingale had rendered itself responsible for these bills by two letters addressed to him, one of the 20th and the other of the 21st of January, 1796, on the faith of which his indorsements, as he says, were made. The letters are in these words-(see the preceding statement of the case.) The bill alleges that these letters bind Clark & Nightingale to pay to Nathaniel Russell any sum for which he might credit Robert Murray & Co., either because, 1st. They do, in law, amount to a guaranty-or that, 2d. They were written with a fraudulent intent to be understood as a guaranty or that, 3d. They contain a misrepresentation of the solidity and character of the house of Robert Murray & Co. Soon after the protest of these bills for non-payment, Robert Murray & Co. failed and became bankrupts. Previous to [88] their bankruptcy they assigned a great proportion of their effects, including the cargoes for the purchase of which these bills were drawn, to John J. Clark and John B. Murray, in trust for Clark & Nightingale, and for sundry other creditors and purposes mentioned in several trust deeds which are recited in the bill, and which appear in the record. The plaintiff claims to be paid his debt out of this fund. The answer of John J. Clark was filed, and a certain William Russell, a partner of the house of Joseph and William Russell, who gave a letter of credit and guaranty to the drawer of the bills indorsed by the plaintiff, Nathaniel Russell, was made a party defendant. Against Joseph and William Russell a judgment had been obtained by Nathaniel Russell for the amount of the bills indorsed by him, but they had become insolvent, and no part of this judgment had been discharged. Many depositions having been taken and sundry exhibits filed, a decree of dismission, without argument, and pro formâ, was rendered in the circuit court for the district of Rhode Island, and the cause comes into this court by appeal from that decree. It is contended by the defendants, that the letters which have been recited create no liability on the part of Clark & Nightingale, but are to be considered merely as letters of introduction. Whatever may be the construction of the letters, they insist that the plaintiff, if entitled to recover, has complete remedy at law, and that a court of chancery can take no jurisdiction of the cause. It is believed to be unquestionable that a suit in chancery could |