CASES

ARGUED AND DETERMINED

IN THE

SUPREME JUDICIAL COURT,

IN THE

COUNTY OF SUFFOLK, MARCH TERM, 1815, AT

Debt lies on a recognizance to the Commonwealth, as well as scire facias.

THIS was an action of debt, brought upon a recognizance ac knowledged by the defendant before a justice of the peace, conditioned for his appearance in the Municipal Court for the town of Boston, as a witness for the Commonwealth.

The declaration alleges the return of the recognizance, the default of the defendant, and that the recognizance was duly removed and filed of record in the Court of Common Pleas, before the commencement of the action.

The defendant pleaded in abatement, to which the Commonwealth demurred generally, and the defendant joined in demurrer.

The only question in the cause was, whether the Commonwealth could prosecute an action of debt upon this forfeited recognizance, or whether the remedy was confined to a writ of scire facias.

VOL. XII.

9

COMMONWEALTH vs. GREEN.

[2] *J. T. Austin, for the Commonwealth.

Thurston, for the defendant.

JACKSON, J., delivered the opinion of the Court.

The plea in abatement has not been exhibited to the Court; and the only objection suggested by the counsel for the defendant arises from the form of the action. We have, therefore, considered the ase as if a general demurrer had been filed by the defendant

The question is, whether debt lies on such a recognizance; the defendant contending that the only remedy of the Commonwealth is by scire facias.

Before the statute of Westm. 2, if the party who had recovered judgment in a personal action, or the conusee in a recognizance, had failed to sue out execution thereon within the year, he had no remedy but by action of debt on the judgment or recognizance. By that statute [c. 45] a scire facias is given in such a case, in order to avoid the delays to which the plaintiff was exposed in a suit by original writ. This did not take away the remedy at common law; but the party might waive the benefit of the statute, and take his original action of debt. (1) There are, accordingly, numerous examples in the books, of debt on a recognizance brought and maintained by private individuals. It was, indeed, once held, that debt would not lie by the original plaintiff against bail on their recognizance; because, as it was supposed, it would deprive the bail of some advantages to which they were entitled; as, that of bringing in the principal before the return of the second scire facias, &c. (2) But this was afterwards overruled; and the Court said, that the bail should have the same time for the render of the principal as if he had been sued by scire facias. (3) †

The only question, then, is, whether there is any difference between a recognizance made to the sovereign and one made to a subject. At common law, the king may maintain any action adapted to his case, which a subject under like circumstances might maintain. (4)

This is the general rule; although in some cases he may [*3] by his prerogative have a different, and, perhaps, a better

remedy than is allowed to the subject. It seems this had once been doubted; and Theloal, who maintains the affirmative, cites many instances of different actions maintained by the king; and among them is the action of debt. (5)

In Rastell's Entries, title Debt, are several precedents of debt on recognizance; and one of them is by the king, on a recognizance to appear before a certain court, and in the mean time to keep the

WINTHROP vs. Carleton, JUN.

peace, &c., and a breach is alleged in an assault and battery comnitted by the conusor. (6)

We, therefore, see no objection to the Commonwealth's maintaining debt, instead of scire facias, upon a recognizance; and it may be often for the public interest to adopt this remedy, in preference to the other, for the reason mentioned by the counsel for the Commonwealth, in the argument of this cause; that the defendant, in an action of debt, may be holden to bail, or his property attached, neither of which can be done upon a scire facias.

The statute of 1810, c. 80, relating to defendants in actions of scire facias, is intended to grant relief to citizens who may be indebted to the Commonwealth in a recognizance like the one in question; and it cannot be supposed that the legislature intended that their benevolent designs should be frustrated by a change in the mere form of action. This case is clearly within the equity of that statute; and perhaps the Court would find no difficulty in deciding, as in the case before cited from Lord Raymond, that the defendant should not be deprived of any fair advantage to which he would have been entitled on a scire facias.

But this question is not now before us; and, even if the relief granted by the legislature in the statute were confined to actions of scire facias, that could not alter the law, which allows an action of debt to be brought on such a recognizance.

The entry must be, that the plea in abatement is bad and insufficient; and that the defendant answer over.

(6) Rast. Ent. 192.

[See Rev. Stat., Chap. 135, § 30. — ED.]

[*4]

*JOSEPH WINTHROP versus MOSES CARLETon, Jun.

Where the consignee of a ship paid certain charges on ac、 unt of the last sickness and funeral of the master, according to the custom o. the place where the ship was, the owner here was holden to reimburse those charges to the con signee.

Interest at the rate of seven per cent. was allowed to a merchant of South Carolina, for moneys advanced there for the defendant's account, that being the lawful and customary rate of interest in that State.

INDEBITATUS Assumpsit on an account annexed to the writ, with the usual money counts, to recover the balance due to the plaintiff for disbursements and expenses on the ship, belonging to the defendant, a merchant at Wiscasset, and which was addressed to the plaintiff, a merchant living in Charleston, South Carolina.

The cause was tried, November term, 1813, before the present

WINTHROP vs. Carleton, Jun.

Chief Justice, from whose report it appeared that the several items of the account were well proved; but certain charges on account of the sickness, death, and funeral of Whitmarsh, the master of the ship, were disputed as not properly made against the defendant.

Soon after the arrival of the ship at Charleston, Captain Whitmarsh was seized with the smallpox, of which he soon after died. When taken sick, he went to a boarding-house, and never returned to the ship, the care of which appeared to be in the plaintiff. He was attended during his sickness by two physicians; whose bills, as also the expenses of his board and funeral, the plaintiff paid; all the said charges being proved to be customary and reasonable. It was also proved by the testimony of a Mr. Crocker, a merchant of Charleston, that it was the practice of merchants there, to whom vessels were consigned, if the master fell sick, to supply him with every thing necessary, to pay the expenses incurred, with funeral expenses, and to charge them to the ship.

If the said expenses were a proper charge in this action, the ver dict, which was for the plaintiff, was to stand; unless the Court should be of opinion that the lawful interest of South Carolina, which is seven per cent., ought to have been allowed by the jury; in which case the verdict was to be altered so as to give that interest. But, if the Court should be of opinion that the charges attending the sickness and death of Captain Whitmarsh ought not to have been allowed, the verdict was to be altered, by deducting the amount [*5] *of those charges from the damages found, and judgment to be entered accordingly.

G. Sullivan, for the plaintiff.

Smith, for the defendant.

The opinion of the Court was delivered by

PARKER, C. J. The only objection to the verdict in this case on the part of the defendant is, that the jury have allowed the plaintiff money which he paid in Charleston on account of the sickness and funeral charges of the master of the defendant's ship, which was addressed to the plaintiff by the defendant or some agent of his abroad. The master was seized with the smallpox, left the vessel, and went to a boarding-house, where two physicians attended him : but he died in a short time. The plaintiff was called upon by the keeper of the Doarding-house, the physicians, and the managers of the funeral, with their several bills, all of which were proved to be reasonable, and he paid the whole.

It is hardly conceivable, that a ship-owner, under these circumstances, would refuse to reimburse an agent in a distant port, even if he were not compellable by law to do it. But we have no doubt that the defendant is liable in law. It is proved to be the custom in Charleston for consignees, to whom a ship is addressed by the own

SMITH US. WHITING.

ers, to pay charges of this kind; and that it would be dishonorable to refuse.

A merchant at home, sending his ship abroad, is presumed o know the customs and usages of the port to which he sends her; and when he sends his ship thither, he is liable for all customary charges and expenses. And, even if an action at law would not lie against his agent or consignee for any debt incurred by the ship, or in relation to the ship; yet, if an action would lie against the owner; or if the agent or consignee, being bound in honor to pay, according to the usage of the place, shall pay the debt, in confidence that what is customary among merchants will be allowed by his principal, he shall be reimbursed. For the owner is presumed to authorize every thing to be done by the consignee, which the custom of the place where the vessels shall require to be done.

* The verdict in this case is, therefore, right in substance. [*6] But the plaintiff claims interest, upon the sum advanced by him, according to the rate of interest allowed in South Carolina; and we think him entitled to it. For, otherwise, he will not be indemnified; and, even then, he will lose the interest of his money from the time of his advancing it to the commencement of his action; which, perhaps, he might have recovered, if it had been attended to in season. The defendant must be considered as indebted to the plaintiff in Charleston, the moment the money was advanced; and he ought to pay the same interest which he would have paid had he given his promissory note at the time; the interest of the country where the contract was made being always allowed. The verdict is to be altered to conform to this opinion, and judgment entered accordingly. †

77.

↑ Grimshaw vs. Bender, 6 Mass Rep. 157.- Baker vs Wheaton, 5 Mass. Rep. 509. - Vancleef vs. Therasson & al., 3 Pick. 12.- Pearsall & al. vs. Dwight & al., 2 Mass. Rep. 84. Greenwood vs. Curtis, 6 Mass Rep. 358. — Blanchard vs. Russell, 13 Mass. Rep. 1.- Prentiss vs Savage, 13 Mass Rep. 20 Powers vs. Lynch, 3 Mass. Rep. De Sobry vs Terrier, 2 Har. & Johns. 220. Smith vs. Mead, 3 Con. 253. Winthrop vs. Pipoon, 1 Bay, 460. Consequa vs. Willing, 1 Peters, 230. Andrews vs. Herriot, 4 Cowen, 508, & note. Thomson vs. Ketcham, 11 Johns. 235. — Smith vs. Smith, 2 Johns. 235.- Consequa vs. Fanning, 17 Johns. 511.- Emery vs Greenough, 3 Dall. 361.— Jaffrey vs Dennis, 2 Wash. C. C. R. 253. · Quince vs. Callendar 1 Dessaus. 160.- Hosford vs. Nichols, 1 Paige, 225.

ALBERT SMITH versus WILLIAM P. WHITING.

Notice given to the indorser of a promissory note payable at a bank was held sufficient, being given on the day it fell due, although it stated the note to have fallen due three days before, and although the name of the promissor was mistaken in the no ice; it being in evidence that the indorser was liable on ne other note payable at such bank.