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Page:United States Reports, Volume 2.djvu/58

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52 Casas ruled and ajdudgcd in the r7go voyage. He was lilrcwife the faétor of the plaintiffs, and had VVV difcretionary orders to trade tor them and to fell the vtllel as well as the cargo. In the courfe of the voyage he fold both veifel and cargo, and made fome remittances to his owners. While he was at St. Exylatiur, and when he was about to leave · it, he put his ailiiirs into the hands of lWlliam Smith, then a merchant there, with power to colleél: his outltanding debts, among which were four debts due upon note, or bond, pay- able to hbirchild ; but which Smith believes arofe from the fale of the cargo belonging to the plaintiffs. Thefe notes, together with fome other papers, were delivered to Smith, incloted in a cover, on which Ibirehild had made the following memo- randum: “ Van Bihher C? Hdrrgyirz, Thomas Wallacc, Archibald “ E9' fahn Blair and Thomas 1lI‘Farran’s obligations, are on M account of Meiirs. jacob Van Vw-hir, Ram Rapaye, and “ Peter Mercier, merchants of New-Tar}, together with out- “ {landing debts; this is in cafe any accident happens to me." After Fairchild: departure from St. Ea/latina, and in the years 1777 and r778, Smith collefited the outfianding debtsj; and, among others, thofe due on the four notes payable to I·bir- child. This money remained in Smith’.v hands till September 1779; when aforeign attachment was fued out by Benjamin Amory, the prefent Defendant, againlt the effects of Fairchild, in the hands of William Smith, for a private debt of Ihr- , child due to Amory. Smith appeared to the aétion, employed counfel to defend it, and on the hearing, the court there · confirmed the attachment, and condemned the garnifhee to pay to the plaintiff in the attachment the money due to him from Fairchild; which money was accordingly paid, and the prefent aétion is brought by Rapatje E9' Mercier, to recover back from Amory the money fo recovered and paid to him by Smith, as for money had and received to the p1aintiii`s’ ufe. The principles on which the a£tion is brought are, that the _ money ariling from the notes were really the property of the plaintiffs, and not of Fairchild; that Smith had no money of Fairchild in his hands, but what arofe from thofe notes ; and that it was therefore wrongfully and, againflconfcience, received by Amory as the property of Fairchild. On the trial of this caufe, the merits were not at all invelli· gated on the part of the defendant; who fulfereda verditt to ' pafs againft him without oppolition, relying on the point of law, that he was protc€ted by the judgment of the court at St. Eqpatiar. This point was therefore refcrved for thc conlidera- tion of the court. _ It is contended on the part of the Defendant, that his money, having been attached in thc hands of Smith, as the property of Fairchihl, and on the trial adjudged to be his property, that judgment