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[Thibault & Brothers v. Basavilbaso.]

nearly eleven months after the judgment, had stood on the docket with the equivocal description of an action on the case, now assumes the character of an action of trover, for a tortious use or conversion of the property of the plaintiff at Havanna, in the island of Cuba.

All the contracts between these parties, in relation of these goods, were made at Philadelphia, some before the goods were shipped and some after return of defendant to this country; and, of course, if the judgment, which is now the debt of the defendant to the plaintiffs, is to be considered as a judgment rendered in an action of assumpsit, or on the contract and promises between the parties, the discharge by the insolvent laws of the state will operate upon it; but if the transactions at Havanna must be taken as the ground of the suit and its judgment, a different result would follow; and the discharge of the defendant will not avail him against it.

Whether by the peculiar agreement under which the jewellery contained in the invoice of 2160 dollars was delivered to the defendant, to be taken to Havanna entirely at his expense, and at his riskto be indeed at his risk after their arrival at Havanna, whether sold or not sold, with a full right to all the profits that might be made on them above the invoice price, whether such an agreement did not place these goods entirely at the disposal of the defendant, he being always accountable for the invoice price-or, at least, whether they were not placed so indefinitely in his power, that the use he made of them in common with his own, could not be considered to be a wrongful disposal of them, a tortious unauthorized conversion of them to his own use, and make him responsible in an action of trover, I do not find it necessary to decide. If on the whole transaction the plaintiffs had an election to proceed against the defendant on their contract, or on the tort, by assumpsit or in trover, and I am well satisfied, that, in point of fact, it clearly appears they made their election, that they did bring their suit and enter their judgment on the promises and not on the wrong; it cannot be permitted to them to undo what they have so solemnly done, on an unexpected turn of events, to give a new character to all their proceedings; to throw up as nugatory, the settlement deliberately made with the defendantthe notes received from him in payment of the amount agreed to be due, which have no possible reference to or connection with any wrong, but a clear and direct connection with the settled account, and to set up a claim for damages arising from a tort commited at Havanna-to allege that the judgment rendered, in an evident con

[Thibault & Brothers v. Basavilbaso.]

nection with the above mentioned account and notes, was in truth a judgment confessed for damages for the alleged wrong at Havanna.

The whole proceeding and documents show, beyond the reach of doubt, that the judgment was given for an amount found due on the whole dealings between the parties, comprehending not only the goods said to have been converted, but those also which were absolutely sold to the defendant and subject wholly to his disposition, and even other articles not found in either of the invoices now in controversy. I cannot raise a question that this judgment was taken on this settlement of all matters between the parties, and cannot be applied to the wrong said to have been committed by defendant with the goods which form but a part of the account settled; and if as to those goods the plaintiffs can have a right of action in trover, it was merged or surrendered on their subsequent dealings and agreements with the defendant. By those they consented to take back to themselves the property they allege had been illegally converted by defendant to his own use; and further, to charge themselves with the payment of the money he had taken up on them; they have assumed the debt due by the defendant to Morales & Co., and they have in consideration of this obtained a right to receive from Morales & Co., not only the goods which they say belong to them, but a larger amount of other goods to which they had no claim. They have adopted the whole transaction between the defendant and Morales & Co., and this arrangement was afterwards fully completed and carried into effect, by their paying the amount due to Morales & Co., and receiving from them all the goods deposited by the defendant. Their right of recovery in an action of trover was limited to the amount of the invoice of 2160 dollars; but they have received in consequence of their agreement or compromise with the defendant the sum of 4200 dollars, and still retain it; can they be permitted to have the whole benefit of this arrangement and afterwards to repudiate a part of it? May they now affirm the part which has been so beneficial to them, and reject the rest? Their debt or claim upon the defendant, under both invoices, was 5332 dollars. This they have fortunately reduced to 1700 dollars by the voluntary delivery to them by the defendant of goods to which they do not and cannot pretend a claim, and shall they now keep these goods and reject the agreement on the faith of which they obtained them? Was this the understanding of the parties, or any of them, when the arrangement was made and the judgment confessed? If this were intended to

[Thibault & Brothers v. Basavilbaso.]

be a judgment in an action of trover, for the wrongful conversion of goods of the value of 2160 dollars, how were the damages put at 1700 dollars; and who can say that this amount is due on the invoice of the goods actually sold, or on that of the goods sent to be sold for the plaintiffs? It is undoubted that the goods said to have been converted have actually been returned to the plaintiffs; and although they did pay upwards of 2000 dollars to obtain them, yet they also obtained other goods of a greater value than all they paid.

Being entirely satisfied that the judgment entered in this case, and against which the bail in the action seeks to be relieved by reason of the discharge of the defendaut under the insolvent laws of this state, is a judgment confessed and rendered on assumpsit, or contracts and promises made at Philadelphia, and not in a foreign state, I direct that the rule for an exoneretur be made absolute.

Circuit Court of the United States.

PENNSYLVANIA, OCTOBER TERM 1829.

BEFORE

HON. JOSEPH HOPKINSON, District Judge.

UNITED STATES V. HENRY KESSLER.

The defendant was indicted for robbery and piracy on the high seas, on board a brig called "L'Eclair," a foreign vessel, belonging exclusively to French owners, and sailing under the French flag: Held, that under the acts of congress of the United States, this court has no jurisdiction to try and punish the offence. Whether the offence was committed within or without a marine league of the coast of the United States, is of no importance to the question of jurisdiction. Testimony of an accomplice how to be regarded.

THE indictment contains four counts: The 1st charges, in substance, a robbery from the captain of the vessel called "L'Eclair;" 2d. Stealing the same property from and out of the vessel belonging to certain persons unknown; 3d. With piratically running away with the vessel and with the goods, &c. belonging to persons unknown. The 4th lays the running away with the vessel and stealing the goods to have been within a marine league of the coast of the United States.

Mr Dallas, for the United States.

Defendant is charged with a piracy; that is, a felony committed on the high seas. Piracy is of two kinds: 1st. General piracy by

[United States v. Kessler.]

the law of nations; 2d. Particular, created by the acts of congress. The defendant does not fall within the first description. He is indicted as a citizen of the United States, for violating the laws of the United States. 1. These laws are co-extensive with the national country of the United States, which extends a marine league from the coast; 2d. With the flag of the United States; 3d. Over the persons of the citizens of the United States, wherever they may be.

There are two acts of congress applicable to this case: that of 15th of March 1820, sect. 3, 3 Stor. Laws 1798; that of 30th of April 1790, sect. 8, 1 Story 84.

Mr Dallas gave a full account of the facts of the case which will be given in evidence.

He proceeded to the examination of the witnesses on the part of the United States. In the course of the examination of John Battiste, who was on board of the vessel, he was about to detail all the circumstances of the transaction, the manner in which the vessel was taken possession of by the crew, and what there was done by them in the prosecution of this design.

Mr Brewster, for the defendant, objects to any evidence in relation to the murders mentioned by the district attorney in opening the case. He said that there are three bills of indictment found against the defendant. 1. For murder, containing three counts; 2. For piracy, with four counts; 3. For a misdemeanour. The murder, if any was committed, constitutes a distinct and substantive charge, for which the defendant must answer on the trial of the indictment for that offence.

Mr Dallas replies, that he has a right to give in evidence all that took place on board of the vessel.

THE COURT. One of the charges now on trial is, that the defendant piratically and feloniously ran away with the vessel. To prove this the acts which accompanied it may be given in evidence; it must be shown, not only that he did run away with the brig, but that he did it piratically and feloniously; and this can be shown only by the circumstances attending the transaction. How did he run away with the vessel? For what purpose? How did he get possession of her? How take her from those who had the lawful

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