1 U.S. 458 (1789)

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THOMPSON v. MUSSER, 1 U.S. 458 (1789)

1 U.S. 458 (Dall.)

Thompson Pls. in Err. v. Musser: Two Actions

Supreme Court of Pennsylvania September Term, 1789

These actions were removed by writs of Error from the Common Pleas of Lancaster County; and, on return of the respective records, the proceedings appeared to have been as follows: I. On the first, or larger, record, it appeared, that a Capias in an action of Debt in the Detinet, issued at the suit of John Musser against John Thompson, for 200,000 weight of tobacco; and the declaration set forth a penal bill, dated the 3rd of January, 1784, by which John Thompson binds himself in the penalty of 200,000 weight of net crop tobacco, of the inspection of Fredericksburgh, or Falmouth, on Rappahannock river, in Virginia, to pay 100,000 weight of tobacco, of the same inspection, to John Musser, or his assigns, as soon as it could be collected of those who are indebted to the said John Musser, and the Obligor; but the said John Thompson agrees, that, in case it cannot be collected, or obtained, he will be answerable for the same.' After Oyer of the bill, the defendant pleaded payment, the Plaintiff replied non solvit, and thereupon issue was joined. The cause was tried at Lancaster, on the 7th of December, 1786, when the Plaintiff below gave in evidence the penal bill stated in the declaration, upon which an indorsement was made and subscribed on the 25th of May, 1785, that 'it was agreed by the parties, that the within tobacco should be settled at the current price at Fredericksburgh, on the 1st of May, 1784; at which time the within bond is considered due, and is to carry interest from the date.' There was, likewise, a receipt on the back of the bill, signed by Musser's attorney in fact, on the 5th of July, 1785, acknowledging that he 'received the within bill in full.' On behalf of the Defendant below, two indentures were given in evidence, from which, it appeared, that the Plaintiff and Defendant had entered into a copartnership, for carrying on an inland trade during a limited period; and on the indenture last made between them, a memorandum was endorsed, dated the 3rd of January, 1784, setting forth the receipt of the two penal bills, on which the present actions were brought, and declaring that the same, when paid, were to go in discharge of what was due from Thompson to Musser. Several letters were read from the latter to the former, in which it was confessed, 'that Musser had no other claim, but upon these bonds, against Thompson, and that every payment

Page 1 U.S. 458, 459

which had been made since they were given, was on their account. The payment of a note for L. [Footnote 46] was then proved, and an agreement, which had been entered into by Musser, that 'on the payment of L450 specie, and the remainder that may appear due in warrants on the Treasurer of the State of Virginia, which are received there in taxes at par, or equal to gold and silver, allowing Musser at the rate of 12 1/2 per cent. on the whole amount of the said warrants, the same shall be a sufficient discharge of the bill.' To prove the payment of Virginia warrants, according to the terms of the foregoing agreement, a receipt was produced from Musser's Attorney, dated the 5th of July, 1786, to this effect: 'Received from John Thompson, L.1668.11. 6 1/2 Virginia currency in warrants on the Treasury of Virginia, which is settled in specie, at L1484.4.4. Virginia currency; being in full payment of his bond to John Musser, dated the 3rd of January, 1784, for 100,000 weight of net crop tobacco, of the inspection of Fredericksburgh, or Falmouth, in Virginia.' And, in order to show that the warrants thus paid, were receivable in taxes, at par, or equal to gold and silver, the Counsel for the Defendant below, offered to read an act of the Legislature of Virginia, (which contained a recital of a preceding act) on that subject, from a pamphlet, stitched in blue paper, with the following title page: 'Acts passed at a General Assembly of the Commonwealth of Virginia, begun and held at the public buildings in the city of Richmond, on Monday the 3rd day of May, in the year of our Lord 1784. Richmond: Printed by John Dunlap, and James Hayes, Printers to the Commonwealth.' But the reading this act being objected to, on the ground, that it was not legally authenticated, the Court over-ruled the evidence; and a Bill of Exceptions to their opinion was tendered and allowed.

The Jury gave a verdict for Musser, saying, that 'They find 114,236 weight of net crop tobacco, of the inspection of Fredericksburgh, or Falmouth, on Rappahannock river, to be due to the Plaintiff from the defendant, value L2000, with sixpence damages and sixpence costs.' Whereupon judgement was entered generally.

II. On the second, or smaller, record, it appeared, that an action of debt in the detinet, for 200,000 weight of net crop tobacco, of the inspection of Richmond, or Petersburgh, in Virginia, was brought on another penal bill of the same date, by which 'John Thompson binds himself in the penalty of 200,000 weight of tobacco, to pay to John Musser, 100, 000 weight of tobacco, of the last mentioned inspection, at or before the 1st of May next ensuing the date of the bill.' The pleadings were the same in this, as in the preceding case; but the declaration being erroneously for tobacco of the inspection of 'Fredericksburgh, or Falmouth, in Virginia, on Rappahannock river, the Plaintiff's counsel, after the Jury were sworn, moved to amend the declaration, agreeably to the tenor and purport [1 U.S. 458, 460]

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