Open main menu

Page:United States Reports, Volume 2.djvu/158

This page needs to be proofread.


I§2 Casts ruled and adjudged in the 1792. to recover one half of that fum, with interellc, as money had tru`; and received to the ufe of the plaizatifli But, belides a gene- ral count for that purpole, the declaration contained a fpecial count, fetting forth the particulars of the cafe, the order, and . the receipt of the money. lt, likewife, appeared, that the _ laintilf having fued Iabmy Banbr, Smudyb Forde became his

  • _ bail, and asa means of indemnifying Forde, Barth de lited

- -‘ with him a certificate for 8ooo dollars. In relation to thiit ac- tion, an agreement was afterwards made, on the 24th of Oflo- ` ber, 178Q, between Plvilqt Barber, the attomey infa&of Hen- ry Bembr, (who had alfo an allignment) and the plaintiff, to this elfeél;-“ that judgment fhould be entered in favor of the plaintiff for the whole amount of the debt; but that he lhould only receive {goo ; that he lhould thereupon dilcharge Forde from his obligation as bail ; and, as to the relidue of his de- mand, he lhould wait the ilfue of a {nit againlt the defendant, ` Craig, and divide whatever might be recovered from him, with P. Barber, Banl·.r’.r attorney." This agreement was made af- ter Barr’r attorney had difcovered, that the caufe of aftion was a joint debt due to fame.- and Robert Barr, though the aétion was inltituted inthe name ofn__7nme.r Barr only. But judg- ment was, accordingly, confe ed in April Term, 1790, for the whole fum claimed by Barr, to wit, £l358 r7 8; a Ca. Sn. thereupon ilfued; and Forde, the fpecial bail, having then . fold the certificate depolited with him by Bunlr, paid the full amount of the judgment, with intereli: and colis, to the {he- rilii refervin the balance to anfwer l`ome other claim againll: ` Banlr ; the gxeriff on the gilt of _7u{y, t792, paid it over to the plaintiff} Barr : But Burr, on the fame day, after deduét- ing {goo, paid the balance, {887 tg 2 to P. Barber, in compliance with the terms of the agreement, on which the judgment had been confefled. It further appeared, that Banb- U Boudoin were indebted to Craig, in afum exceeding the amount received under the order upon Meq/E E9' Caldwell g and that in 8ep!emberTerm, I788, Craig had ilfued a foreign attachment _ againli: Bank: E2! Boadoirr, which was ferved upon Forde, as gar- nilhee; and in which judgment had been obtained, but no Seire Resin had ilfued. The caufe was tried, on the encral illiie, at the NM Priur in Jllerreb, :792, before rim guns.: jusrtcs, S1-mann, and Batnroan, j'r_¢iee.r, ; when M. Levy and Iagmybll argued for the plaintilf ; R.-mdobob and Lewir, for the defendant. '1`hedefence relied on three propolitions: tli. That Henry Bank.: was to be conlidered as the perfon really entitled to receive the money: ad. That the defendant had a right to retain it in lhtisfatition of the judgment on the foreign attachment : And gd. That the aékion was not fupported by thc cvldenee; . ut