2 U.S. 174

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U.S. Supreme Court

HENDERSON v. CLARKSON, 2 U.S. 174 (1792)

2 U.S. 174 (Dall.)


Supreme Court of Pennsylvania

April Term, 1792

Case for money had and received. Plea, non assumpsit. The action was brought to recover a sum of money, which the plaintiff claimed as agent for forty-three seamen, to whom it had been decreed in the Court of Admiralty, as their share of certain prizes taken by the privateer Holker. A writ had been issued from the Court of Admiralty, directed to the defendant, then the Marshall of that Court, commanding him to deliver the money to the plaintiff. The defendant made return, that the property in his hands consists of certain articles specified, which he has ready, &c. Afterwards the articles were sold.

The defendant's counsel moved for a non-suit, on two grounds. 1st. That the action was not maintainable, in the name of the agent. 2nd. That it is not of Common Law cognizance, being a question of prize, and to enforce the decree of the Admiralty.

They contended that his appointment under the act of Assembly, did not give him any power to sue in his own name: The very term agent implies that he has a mere authority. The act is silent on the subject of suits, and leaves him to the operation

Page 2 U.S. 174, 175

of Common Law principles. He has no right or interest vested in him, and the money was not received to his use. A factor may sue in his own name, for he makes the contract or has a special property.

On the second point they cited 1 Dall. Rep. 218. 3 Term. Rep. 323. 344. 329. 2 Strange. 761. They urged, that in the first of these cases it was held, that the consequences of a prize cause were not cognizable in a Common Law Court, although the question of prize or not, was determined and at rest. The Judges 'say, as this is a suit to carry into execution a decree of a Court of Admiralty, it is a thing which we have no authority to do.' This is an action of the same kind. The goods in possession of the Marshall, were in possession of the Law and of the Court; there is no contract express or implied between him and the party who may be interested. While the money is in the channel which the Maritime Law directs, no Common Law Courts can take cognizance of it. Will this Court interfere between the Marshall and the Court of Admiralty? 8 Term. Rep. 329. Shall a sheriff, receiving money by order of this Court, be sued for it in another? Or, would the Court permit an action to be brought against a Marshall by every sailor interested in the proceeds of a prize?

The counsel for the plaintiff urged, that the agent was an officer appointed by virtue of an act of Assembly of the 8th of Mar. 1780, and is known to the law. He is to receive the money, and the unclaimed shares are to be paid over to the Pennsylvania Hospital. The Marshall is directed to sell and pay over under a penalty, by an act of the 22nd September, 1780. sect. 10. and surely the penalty may be waived, and the plaintiff proceed for the sum due. Agents may sometimes sue either in their name, or that of their principals, as factors and consignees. Hen. Black. p. 514. Where an agent has an interest as well as an authority, he may bring an action in his own name. Besides, here is a promise in writing, or declaration that he has the money ready. The complaint here is, that the defendant has not forty-three suits brought against him instead of one. If the sailor had died, how should money be recovered for the Pennsylvania Hospital. The agent gives bond; and the plaintiff has been sued on that which he gave.

As to the second point. This has no relation to a question of prize; the money has already been appropriated, and who shall receive it, is the only question that remains. This Court is as competent to give relief as the Admiralty; and as that Court is now extinct, there is no remedy but a Common Law suit. He that pleads to a jurisdiction must state another jurisdiction competent to give relief. The case in 1 Dall. Rep. 218. does not go the length of this. That in 3 Term. Rep. directly involved a question respecting prize. In 1 Wils. 210. there is an instance [2 U.S. 174, 176]

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