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LIST OF CASES REPORTED.
Askew v. Odenheimer. Trust. Rules of Equity in Odium Spoliatoris,
Bainbridge v. Wilcocks. Interest. Stated Accounts,
Bennett v. Boggs. Fisheries in the Delaware,
Blydenburgh and Burns v. Welsh. Sale of Goods,
Bonaparte v. The Camden and Amboy Railroad Company. Injunction,
Bullock v. Van Pelt. Plea of non est Factum,
Burr v. M'Ewen, Hale and Davidson. Trustee,
Castor v. Wood.
Amendment of Answer,
Cushman v. Waddell. Evidence. Assault and Battery,
Delauney v. Hermann. Equity Practice, .
Hall v. Perott and Cabot. Special Jury and Venire,
Johnson v. Tompkins and others. Fugitive Slave. Trespass,
Leland v. Wilkinson. Seal of a State,
Livingston, Lessee of v. Moore et al. John Nicholson's Estate,
LIST OF CASES REPORTED.
Merrill and Foster v. Rinker. Witness. Fraud. Trover,
Ogden and Co. v. Gillingham and Co. Bill of Exchange,
Pacific Insurance Company v. Conard. Trespass,
Thibault and Brothers v. P. De Basavilbaso. Insolvent Law, Thompson, Lessee of v. Phillips. Marshal's Sale. Lien of Judgment,
Tilghman v. Tilghman's Executors. Marriage Contract. Answer, 464
United States v. Benner. Foreign Minister. Indictment, .
United States v. Hinman. Forgery. Variance. Evidence,
Woodhull and Davis v. Wagner. Insolvent Laws of States,
United States v. Wilson and Porter. Mail Robbery. Evidence,
Westbrooke, Lessee of v. Romeyn. Deed. Limitations,
Wilson v. Fisher's Executors.
Circuit Court of the United States.
PENNSYLVANIA, OCTOBER TERM 1828.
HON. JOSEPH HOPKINSON, District Judge.
THIBAULT & BROTHERS v. P. DE BASAVILBASO.
The plaintiff sold to the defendant certain goods in Philadelphia, and at the same time delivered to him other goods to be disposed of at Havanna, on account of the plaintiff. The defendant took all the goods to Havanna and there pledged them as a security for money advanced to him; on his return to Philadelphia, this suit was commenced against him. This action was on the case, but no declaration was filed. So it stood when a judgment was entered generally; afterwards, by an agreement between the parties, the judgment was confessed on the record to be for a certain sum, and notes were taken for the amount, payable at distant periods, and execution stayed accordingly. After these arrangements were made, the defendant was duly discharged by the insolvent laws of Pennsylvania, and after his discharge, the plaintiff filed his declaration in the above suit in trover, and charged the defendant with a tortious conversion to his own use, of the goods in both invoices; the alleged tort was the pledging of the goods at Havanna. If on these facts the plaintiff had originally an election to bring his suit on the contracts or for a tort, yet as it clearly appears by the whole course of proceeding that he had proceeded upon the contracts, he cannot, by filing under these circumstances a declaration in trover, turn his suit into one for a tort. The contract and promises having been made in Philadelphia, by persons resident here, and to be executed here, the rule for the exoneretur was made absolute.
SUR rule to show cause why an exoneretur should not be entered on the bail piece; the defendant having been discharged by the insolvent laws of Pennsylvania.
[Thibault & Brothers v. Basavilbaso.]
The material facts of this case are:
On the 29th of March 1828, the plaintiffs sold to the defendant a quantity of jewellery amounting to 3172 dollars, and on the same day delivered to him other jewellery to the amount of 2160 dollars, which by an entry on the plaintiffs' books are declared to be "goods sent by Mr Basavilbaso to be sold for Thibault & Brothers, or to be returned, if they are not sold for the invoice prices; Mr Basavilbaso to pay all expenses, and run all risks, for the profits arising from the same, over and above the invoice price."
On the 1st of April following, the plaintiffs received from the defendant a draft and note amounting together to 3172 dollars, and in the receipt given for them they agree, that should any part of the jewellery, per invoice of the same date, be returned to them within six months, in like good order, to receive the same on account of the above mentioned draft and note; all the goods thus obtained from the plaintiff, that is the invoice of 2160 dollars as well as that of 3172 dollars were shipped to Havanna by Vezin and Von Longerke, merchants of this city, consigned to the defendant, by whom the insurance and all other expenses were paid; he probably went in the same vessel with the goods to Havanna, where he received the jewellery, and deposited both invoices into the hands of Messrs A. Morales & Co., merchants of Havanna, as security for 2000 dollars advanced to him on account of the said jewellery.
On the 7th of October 1828, the defendant having returned, this suit was brought against him, generally, in case, and bail demanded in the sum of 5000 dollars, but no declaration was filed. On the 22d of December 1828, an agreement was signed by the plaintiffs' attorney, and by the defendant confessing judgment for the sum of 1700 dollars to be paid by equal instalments, in one, two and three years, execution to be stayed accordingly, and the judgment was entered on the same day conformably to the agreement, no declaration being yet filed. This sum of 1700 dollars is the balance stated to be due from defendant to plaintiffs on an account which is dated on the same 22d of December; and on the same day the plaintiffs gave a receipt to the defendant, for three notes bearing date at Philadelphia, on the 20th day of December 1828, and payable severally in one, two and three years, and declared to be "for balance of 1700 dollars due them on account." As these notes bear a date two days antecedent to that of the account on which this balance is struck; they must either have been antedated, or the amount must have been settled by the par
[Thibault & Brothers v. Basavilbaso.]
ties before the account was actually stated in form. They are, however, expressly declared to be for the "balance due them on account," and however we may connect them with the judgment, whether the judgment was given to secure them, as the defendant asserts, or they were a means of obtaining satisfaction of the judgment, as the plaintiffs contend, still we cannot doubt that the sum or debt for which both the judgment and the notes were given, was the balance of 1700 dollars, settled by the parties in the account of 22d December 1828; the dates are the same; and where was this sum of 1700 dollars, mentioned in the judgment, in the notes and in the receipt given for the notes, found and ascertained to be the amount of the debt due to the plaintiff, unless in the account settled on the 22d of December 1828?
On 31st March 1829, three months after these arrangements were completed, the plaintiffs paid to Morales & Co. the money, with additional charges, amounting together to 2400 dollars, for which the jewellery had been been pledged by defendant; and by referring to the account of 22d of December, it will be seen that a credit is allowed to the defendant, of 4200 dollars, amount of jewellery at Havanna, and a charge is made against him for the money which had been advanced to him on the jewellery by Morales & Co., with the expenses; by which it is evident that on the settlement made on the 22d December, the plaintiffs assumed the debt due from defendant to Morales & Co., and that the whole goods deposited by defendant, as well those which were absolutely purchased of the plaintiffs as those which were sent to be sold under the agreement mentioned, were passed to the plaintiffs.
All matters having been thus arranged between the parties, the balance due to the plaintiff ascertained, notes given for the payment of it, and a judgment entered on the suit according to their agreement and in conformity with the notes; the formality of filing a declaration, which surely was incumbent upon the plaintiffs, and of course the neglect was theirs, had never been attended to. On 29th October, the defendant having complied with the requisitions of the law, was duly discharged as an insolvent debtor, by the court. of common pleas of Philadelphia county.
On November 13th, 1829, the plaintiffs' attorney filed his declaration, in which he charges the defendant, as his cause of action in this suit, with having converted and disposed of the jewellery contained in both invoices, to his own use; and the action which until this time,