Jennings v. The Brig Perseverance. 3 D.

The court concurring in the representation made by Judge Paterson, they proceeded, without further argument on the principal question, to affirm the decree.

E. Tilghman suggested, however, that the damages were very high, and that, in fact, an allowance for counsel fees was included, though it did not appear on the record.

Du Ponceau urged, that the court could not travel out of the record to ascertain a fact. In the case where an allowance for counsel's fees had been struck out, that charge and all the items on which damages had been awarded, were stated in an account annexed to the record.1

CHASE, J. An account of items, as a foundation to award damages, was exhibited in the court below; but it is a sufficient answer here, that the allowance does not appear on the record.

The court concurred in this opinion; and Du Ponceau prayed an increase of damages for the delay occasioned by bringing this writ

of error, contending, that under the 23d section of the [* 338 ] * judicial act, damages for delay were peremptorily prescribed, and that the discretion of the court only went to the award of single or double costs. But,

BY THE COURT. The prize was sold by the agreement of the parties, the captor and the French consul; but the money was afterwards stopped in the hands of the marshal, upon a monition issued by a third person (the original owner of the prize) who was not a party to the agreement. The decree must be affirmed without an increase of damages; and the interest to the present day must run upon the debt only, and not on the damages.

Du Ponceau next prayed an allowance of twelve dollars and fifty cents, the cost of a printed state of the case for the use of the judges. But the court observed, that however convenient it might be, there was no rule authorizing the charge; and, therefore, it could not be allowed.

3 D. 302, 321; 1 C. 318; 7 H. 833.

1 Arcambell v. Wiseman, 3 D. 306.

Clerke v. Harwood. 3 D.

HUGER et al. v. SOUTH CAROLINA.

[ *339 ]

3 D. 339.

Leaving a copy of a subpoena, in a suit against a State, at the house of the governor, is a sufficient service on him.

BILL in equity. A subpoena had been issued in this cause, agreeably to the rule; and an affidavit of the service was now read, in which it was set forth that a copy had been delivered to the attorney-general; and that a copy had been left at the [*340 ] governor's house, where the original had, likewise, been shown to the secretary of the state.

*

*IREDELL and CHASE, JJ., expressed some doubt, whether [*341] showing the original to the secretary of state, would have [342] been a service of the process, conformably to the rule, with

out leaving a copy at the governor's house; but they agreed with the rest of the court, in deeming the service, under the present circumstances, to be sufficient in strictness of construction, as well as upon principle.

The service of the subpoena being thus proved, the complainant was entitled to proceed ex parte; and, accordingly, moved for and obtained commissions to take the examination of witnesses in several of the States.

5 P. 284.

CLERKE, Plaintiff in Error, v. HARWOOD.

3 D. 342.

The judgment of the high court of appeals of Maryland being reversed, and that of the general court affirmed, the mandate for execution goes to the general court, and costs in both the Maryland courts are allowed.

THIS was a writ of error to the high court of appeals of the State of Maryland. The point involved having been settled in Ware v. Hylton, et al. (3 D. 199,) it became a question to which of the state courts a mandate should be sent, and what costs should be allowed. 22

VOL. I.

Brown v. Van Braam. 3 D.

The questions were argued by E. & W. Tilghman, for the [*343] plaintiff in error, and by Dallas, for the defendant.

* But,

BY THE COURT. The judgment of the superior court of Maryland being reversed, it has become a mere nullity; and costs must follow the right as decided here.

Let the judgment of the general court be affirmed; let the costs in the courts of Maryland, and in this court, be allowed to the plaintiff in error; and let the mandate for execution issue to the general court.

[ *344]

*BROWN v. VAN BRAAM.

3 D. 344.

Under the practice of the courts of Rhode Island, as adopted by the judiciary act, (1 U. S. Stats. at Large, 73,) the entry of a default, after a plea of the general issue, no similiter being on the record, does not operate a discontinuance, and a judgment on the default is valid.

Under the same practice the court may assess the damages in an action of assumpsit on a foreign bill payable in pounds sterling.

Interest on affirmance is to be calculated on the aggregate sum of principal and interest in the judgment below, to the time of affirmance, but no further.

ERROR to the circuit court of the district of Rhode Island. An action of assumpsit was brought in that court by the defendant in error against Brown & Francis, as drawers of certain foreign bills of exchange, which were duly protested for non-acceptance, and also for non-payment, but not until about ten days after the bills were payable. Brown & Francis had notice of both protests, though the bills and protests were not returned to this country for some months after the last protests were made.

The declaration contained a special count on each bill, for the non-payment, and also the general count for money had and received.

On the return of the record it appeared that Francis had died subsequent to the service of the original writ; that Brown came into court, and, after suggesting the death of Francis, pleaded the general issue; and that the plaintiff having, likewise, suggested the death of Francis "prayed judgment against John Brown, the surviving de

*

fendant." There was no joinder in issue, continuance, or [*345] other pleading; but immediately after the above prayer for judgment, the record proceeds in this form: "And the said

Brown v. Van Braam. 3 D.

John Brown made default: Whereupon, this cause being submitted to the court, and the court having fully heard the parties by their counsel, and mature deliberation being thereon had, it is considered by the court now here, that the said Andreal E. Van Braam Houchgeest, do recover against the said John Brown, the surviving partner as aforesaid, the sum of thirty-four thousand four hundred and fifty-five dollars and twenty-seven cents damages, and costs of suit taxed at sixteen dollars and fifty-two cents." To the record of this judgment, the following memorandum was annexed: "Nota Bene. The above sum, as ordered by the court, includes the principal and interest from the 15th January, 1795, to the 19th November, 1796, and ten per cent. damages, and twenty-nine dollars and twenty-two cents, charges of protest."

Upon this record the following errors were assigned, and argued by Howell and Robbins of Rhode Island, and Dexter of Massachusetts, for the plaintiff in error, and by Barnes of Rhode Island, and Mifflin of Pennsylvania, for the defendant in error.

1st. That after plea pleaded, there was a discontinuance of the cause in the court below, and therefore no judgment could be rendered.

2d. That 10 per cent. damages, and 6 per cent. interest, are included in the judgment, where no damages at all ought to have been given.

3d. That the court assessed the damages, when they ought to have been assessed by a jury.

*On the 13th of February, 1797, Wilson, J., delivered the [356] opinion of the court.

BY THE COURT. We are unanimously of opinion, that under the laws, and the practical construction of the courts of Rhode Island, the judgment of the circuit court ought to be affirmed.1

With respect to the entry of this affirmance, interest is to be calculated to the present time, upon the aggregate sum of principal and interest in the judgment below; but no further. We cannot extend the calculation to June term next, when the mandate will operate in the circuit court, as the party has a right to pay the money immediately.

The judgment affirmed, with single costs.2

1 Chase, J., observed, that he concurred in the opinion of the court; but that it was on common law principles, and not in compliance with the laws and practice of the State.

2 It does not appear on what ground the second assignment of error was overruled. Two grounds were taken by the counsel for the defendant. 1st. That the nota bene

Fenemore v. The United States. 3 D.

[ * 357 ]

*AUGUST TERM, 1797.

FENEMORE, Plaintiff in Error, v. THE UNITED STATES.

3 D. 357.

If a party make a false representation that he is a creditor of the government, and thereby obtains from the commissioner a certificate of stock in the public funds, the United States may affirm the transaction, and in an action on the case for the fraud, recover as damages the value of the certificate.

If interest has been received, it may be recovered back under a count for money had and received, and by consent this last count may be joined with counts for the fraud.

WRIT of error to the circuit court for the district of New Jersey. On the return of the record, it appeared that a declaration in case had been filed in this action, containing three counts; the first and second of which were special counts for a fraud and deceit, and the third was a general count for money had and received by the defendant to the use of the plaintiff. The first count charged the defendant with an express assumpsit, that in consideration that the commissioner for settling continental accounts, would issue a certificate for $4,273 49-90, he promised his account against the United States was just for that sum, and exhibited certain vouchers to support it; that the account ought to be allowed, and that the vouchers were true and lawful. It averred, that confiding in the said promises, the United States by their said commissioner, did issue the said certificate. And it assigned as a breach of the said promises, that the defendant did not regard the same, but craftily deceived the United States in this, that the said certificate ought not to have been issued and delivered, that the account was not, nor was any part of it, for a just debt, but was deceitful, and that the account and vouchers were not true and lawful; whereby the United States had been greatly deceived. The second count stated, that whereas the United States had before that time issued and delivered to the defendant the said certificate, and had accepted and received from him as lawful

vouchers for the issuing and delivery thereof, the account [* 358] aforesaid, together with certain paper writings in *the decla

was no part of the record of the judgment. 2d. That by the law of Rhode Island, originally enacted in the year 1743, and included in the revised code of 1776, damages were recoverable.