Bingham v. Cabot,
3 U.S. 19 (1795)

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U.S. Supreme Court

Bingham v. Cabot, 3 U.S. 3 Dall. 19 19 (1795)

Bingham v. Cabot

3 U.S. (3 Dall.) 19


It is not necessary to state in the record of a case in the circuit court the absence of the district judge to show that the court was properly constituted, a judge of the Supreme Court holding the same in the absence of the district judge.

A certificate of the Governor of the Island of Martinique, acting within his legitimate authority in reference to a matter in the island, is proper evidence.

The letters of the agent of Congress resident abroad during the Revolutionary War, addressed to that body relative to the business of his trust, the resolutions of Congress on the subject, and certified copies of the same from the office of the Secretary of State, are evidence in a suit against the agent instituted by individuals claiming damages for acts done as a public agent.

Questions of prize are exclusively of admiralty jurisdiction.

If the record shows an inferior court had not jurisdiction of a case, the Supreme Court will not award a venire facias de novo.

This was a writ of error to remove the proceedings from the Circuit Court, for the District of Massachusetts, and on the return of the record, it appeared that the defendants in error, being joint owners of the armed ship called the Pilgrim, formerly commanded by Hugh Hill, had instituted an action on the case against the plaintiff in error in the Circuit Court for the District of Massachusetts of June Term, 1794, in which a declaration was filed containing the following counts:

1st Count. That the plaintiff in Error, at St. Pierre, on 8 May, 1779, was indebted to the defendants in error in the sum of $16,969.69, for goods sold and delivered, according to the account annexed, which account was in these words:

"William Bingham Esq. to the owners of the privateer ship Pilgrim, commanded in the late war by Hugh Hill on her first cruise,"


1779, 8th May

To 1,000 barrels of flour he received at Martinique,

or from on board the privateer Hope, Ole Heilm,

master, captured by the ship Pilgrim, and carried

into Martinique, previous to 8 May, 1779, at 140

livres currency per barrel, livres 140,000, which

sum in the currency of the United States, is . . . . $16,969.69

Interest to 9 January 1793 . . . . . . . . . . . . . . 13,915.84



2d Count. Quantum valebat for 1,000 barrels of flour, with an averment that they are worth $16,969.69.

3rd Count. Money had and received by the plaintiff in error, to the use of the defendant in error.

4th Count. That the plaintiff in error was bailiff of the same flour, to sell and account for it to the defendants in error, with an averment that the flour had been long sold but never accounted for.

5th Count. Quantum valebat for 500 barrels of the like flour, with an averment that it was worth $10,000.

6th Count. Quantum valebat for one undivided moiety of 1,000 barrels of flour, with an averment that it was worth $10,000. The plea of nonassumpsit was entered to this declaration, and thereupon issue was joined.

The material facts attached to the cause were of the following import: The Pilgrim, being on a cruise off the Rock

Page 3 U. S. 20

of Lisbon, on 19 November, 1778, captured a brig called the Hope, Ole Heilm commander, and put on board William Carlton, as a prize master, who carried the supposed prize on 15 January, 1779, into Martinique, where the plaintiff in error resided as a public agent of the United States. On examination it appeared that the prize was Danish property, and that her cargo belonged to Portuguese merchants, both those nations being at peace with France and America, but there being no courts of admiralty established at that time in Martinique, competent to decide on the validity of captures as prize, made by American vessels, and the neutral captain after a long detention, on account of repairs, being solicitous to depart, the Marquis de Bouille, governor of the island (to whom authority was delegated by the Constitution of the French government, to supply the deficient parts of the civil polity) made the following order, dated 2 October, 1779, which was registered in the Admiralty Office of the Borough of St. Pierre.

"Francis Claude Amour, Marquis de Bouille, Marshal de Camp, of the King's armies, Commander General of the French troops, militia, fortifications, and artillery of the French Windward Islands and Governor and Lieutenant General of the Islands of Martinique and Dominigue. We do certify that the American privateer, named the Pilgrim, having conducted into the Island of Martinique, a Danish brigantine, loaded on account of the subjects of His Most Faithful Majesty, as far as appeared to us, and not on account of the subjects of the King of England, we have ordered that the said cargo in litigation should be sold and the freight paid to the captain of the Danish brig out of the cargo under the care and direction of William Bingham, agent of Congress. And the net proceeds of said cargo, deduction made of all other charges, should remain in the hands of said Bingham to deliver it to whomsoever it may appertain, agreeable to the judgment and orders of Congress."


Before, however, the Marquis de Bouille's orders were issued, Mr. Bingham had taken the cargo of the Hope into his custody, and on 2 February, 1779, addressed a letter to the Commercial Committee of Congress in which, after mentioning the capture and arrival of the prize, he states,

"that upon receipt of the papers (of which he then transmitted copies) found on board, he laid them before the judge of the Court of Admiralty at Martinique, who was of opinion that neither the vessel nor cargo could with any propriety be molested on the high seas, by either American or French armed vessels. But [Mr. Bingham adds] that as this vessel is incapable of proceeding

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on a European voyage, without great repairs, which will naturally subject her to a considerable detention, and as her cargo consists of a perishable commodity, he shall dispose of it at Martinique, pay the captain his freight, what damages he may be entitled to, and shall give him permission to take his departure. Indeed the General insists that the cargo should be disposed of, as the island is in great want of flour, and as the sales will be more advantageous to the owners here, it may make the misfortune less heavy on the concerned. The proceeds, after paying the necessary expenses of the vessel, shall be placed [continues Mr. Bingham] to the credit of the Commercial Committee of Congress, to assist in paying the advances which he had made at Martinique on the public account; and he is the more inclined to convert it to this use as he is persuaded that Congress will not have to reimburse it until the claim of the real owner in Europe is made clear and manifest. It appeared by an account of sales, signed by Mr. Bingham on 8 May, 1779, that the flour had been sold, at different periods from 21 January to 8 May, 1779, and that the net proceeds, which he placed 'to the credit of the Owners of prize flour,' amounted to livres 107,621 14 6."

The owners of the Pilgrim being dissatisfied with the proceedings that had taken place in relation to the cargo of the Hope, instituted in the Common Pleas of Suffolk County, Massachusetts, an action of trover for the 1,000 barrels of flour, in the name of William Carlton, the prize master, against Mr. Bingham, and attached Mr. Bingham's property, in the hands of Mr. Thomas Russel, of Boston, to answer the judgment of the court. To this action (which was brought to October Term, 1779) the defendant pleaded not guilty, issue was thereupon joined, and judgment was rendered for the defendant. An appeal was brought to the Supreme Judicial Court of Massachusetts, at February Term, 1781, by William Carlton; it was tried on 17 February, 1784; a verdict was given for Mr. Bingham the defendant, and judgment was entered accordingly. When this action at law was commenced, Mr. Bingham by a letter dated at Martinique, 6 October, 1779, and addressed to the Commercial Committee of Congress, remonstrated against the proceeding, as he had acted bona fide, in his official character, and Congress passed the following resolutions upon the subject:

"November 30, 1779. Resolved, That Mr. Bingham's letter of 6 October last, with the papers enclosed therein, and marked No. 1, 2, 3, 4, together with a certified copy of his appointment to the place of Continental Agent, be transmitted by the President to the

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Legislature of the State of Massachusetts Bay, with the following letter: "


" I am directed by Congress to transmit to you the enclosed papers from Mr. Bingham. They contain an account of his proceedings relative to a vessel, said to be Danish property, captured by the sloop Pilgrim, and carried into Martinique, about which, as he says, a suit is now commenced against him in your superior court. Upon a full examination of the papers, you will judge of the measures which ought to be adopted to prevent, on the one hand, injustice to individuals, and on the other the embarrassment of agents who are obliged to conform to the will of the ruling powers at the place of their residence. As courts are now instituted at Martinique for the trial of such causes, Congress submit to you whether it would not be advisable to stop the suit already commenced, till judgment is obtained upon the principal question, after which it will be in Mr. Bingham's power to discharge himself, by delivering to the true owners the property placed in his hands for their use. If you should be of a contrary opinion, they request you to furnish Mr. Bingham's agent with the enclosed papers. I am, &c."

The Legislature of Massachusetts taking no order on this application, Congress again entered upon the subject, and on 20 June, 1780,

"Resolved that the General of Martinique, in ordering the cargo of the brig Hope to be sold, and the money to be deposited in the hands of Mr. W. Bingham till the legality of the capture could be proved (no courts being at that time instituted for the determining of such captures in that island) showed the strictest attention to the rights of the claimants and the highest respect to the opinion of Congress: "

"That Mr. W. Bingham, in receiving the same, only acted in obedience to the commands of the General of Martinique, and in conformity with his duty as agent for the United States."

"Resolved that Congress will defray all the expenses that Mr. William Bingham may be put to by reason of the suits now depending, or which may hereafter be brought against him in the State of Massachusetts Bay, on account of the brig Hope or her cargo claimed as prize by the owners, master, and mariners of the private ship of war called the Pilgrim."

"And whereas the goods of the said William Bingham to a very considerable amount are attached in the said suits now depending in the hands of the factors of the said W. Bingham to his great injury, "

Page 3 U. S. 23

"Resolved that the General court of the State of Massachusetts Bay, be requested to discharge the property of the said W. Bingham from the said attachment, Congress hereby pledging themselves to pay all such sums of money, with costs of suit, as may be recovered against the said W. Bingham in either or both the above actions."

"Resolved that the Navy Council at Boston be directed to give such security, in the name of the United States, as the court may require, and to direct the counsel now employed by Mr. Bingham in the defense of the said actions."

Such were the circumstances of the cause now under consideration when it came to trial in the circuit court before Justice Cushing an associate judge of the Supreme Court alone. Mr. Bingham's counsel offered to give the following documents in evidence to the jury: 1. Office copies certified under the hand and seal of the Secretary of State, of the papers found on board the Hope, of depositions relating to the capture, taken officially before Mr. Bingham as a public agent; of Mr. Bingham's letter of 2 February, 1779, and other subsequent correspondence and depositions in relation to the capture, addressed to the commercial committee of Congress; and of the Marquis de Bouille's order. These documents were stitched together and were included in one certificate from the Secretary of State. 2. The account Sales of the flour at Martinique, dated 8 May, 1779, and the account Sales of the property which had been attached in the action of Trover, brought by Carlton v. Bingham. 3. The record in the Inferior and Superior courts of Massachusetts, in the case of Carlton v. Bingham. 4. The Resolutions of Congress passed respectively on 3 Nov. 1779, and 20 June, 1780. But the court rejected all the evidence (though it would seem from the record that a part of it must have been admitted in the course of the plaintiff's proofs) and a bill of exceptions was tendered and allowed in the following words:

"And the said William Bingham being now here in court by James Sullivan and Christopher Gore, Esquires, his attorneys, the issue joined in the same case, and a jury on the same duly and legally empanelled, prays leave to file a bill of exceptions to the determination of the said court here had on the evidence, which by the said Bingham is offered in this case, and by which determination the said evidence is excluded, and the said Bingham is denied the advantage of giving the same to the jury in the same case, viz., the several copies attested by Thomas

Page 3 U. S. 24

Jefferson, and which are hereunto annexed, and numbered from one to eighteen inclusively, and also three other papers, numbered 23, 24, 25, all which papers had a tendency to prove that no interest ought to be allowed by the jury, on the sum for which the plaintiffs declare, in their third count, or damages, for the detention of the money therein mentioned and declared on, and by the exclusion whereof, the said Bingham does sustain manifest injury and wrong, as he conceives. And the said Bingham further files his exception to the determination of the same court, by which the papers numbered from 27 to 36, inclusively, were excluded; and which papers contain a complete record of the Supreme Judicial Court of the Commonwealth of Massachusetts, wherein William Carlton, who had been, as the said Bingham avers, and as appears by the evidence in the case, in possession of the same flour declared on in the said third count in the plaintiff's declaration, had sued in an action of trover for the same, and by which record it appears that such proceedings were had in the same court, as would fully show, as the said Bingham conceives, that the said plaintiffs had no legal right to change the same action, after the judgment in the same record specified, into an action of assumpsit, or as principals to implead the said Bingham again after the cause of action had been tried, adjudged, and determined, in an action of trover, wherein the special bailiffs of the plaintiffs, as the said Bingham avers, in this suit had so impleaded the said Bingham to verdict and judgment in the same cause, and for the same cause of action. And that the determination to reject the same papers is wrong because that if the same papers are admitted to be given to the jury, the evidence therein contained will have a legal tendency to lessen the damages, if not wholly defeat the action of the plaintiffs."

"And the said Bingham further files in this his bill of exceptions, that the court did reject and refuse to have read to the jury in the trial as evidence, a resolution of the Congress of the United States of America, of 13 November, 1779; also another resolution of the same Congress of 20 June, 1780, both which were concerning the subject matter of the suit."

"Wherefore, that justice, by due process of law, may be done, in this case, the said Bingham by the undersigned his counsel, prays the court here that this his bill of exceptions may be filed and certified as the law directs."



"June 16, 1794. Allowed to be filed per Wm. Cushing, judge of said circuit court. "

Page 3 U. S. 25

A verdict was then given for the defendant in error upon the third count for money had and received, damages $29,780.16, and for the plaintiff in error on all the other counts, and thereupon judgment was rendered for damages and costs. A motion was made on behalf of the plaintiff in error for a new trial, on two grounds: 1. excessive damages; and 2. a misdirection in the judge's charge to the jury, the judge having directed the jury

"that the law was such, that, on the evidence offered in the cause, the plaintiffs ought to recover; whereas the evidence given was such as clearly proved, that the flour mentioned in the third count, was the joint property of the plaintiffs below, as they were owners of the ship Pilgrim, and of the masters, mariners, and company on board the same ship, to-wit, of the plaintiffs below, and Hugh Hill and others, jointly; by which evidence, if any contract was proved in the case, it was a contract between the said Bingham with the plaintiffs and diverse other persons jointly, who are not plaintiffs, or mentioned in the writ, and who are now alive within the United States."

But a new trial was refused.

On the return of the record (to which were annexed several depositions and papers produced in the court below, as well as the papers referred to in the bill of exceptions) the following errors were assigned, the defendant in error pleaded in nullo est erratum, and issue was thereupon joined:

1. That judgment had been given for the plaintiff, instead of the defendant below, on the 3rd Count.

2. That the circuit court, proceeding as a court of common law, in an action on the case, for money had and received, etc., had no jurisdiction of the cause; the question, as it appears on the record, being a question of prize, or no prize, or wholly dependent thereon, and, as such, it was, exclusively of admiralty jurisdiction.

3. That the evidence referred to in the bill of exceptions ought not to have been rejected on the trial of the cause.

Page 3 U. S. 39

The judges, after some advisement, delivered their opinions seriatim.

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