tions with ourselves; yet in matters of contract between such persons, or between them and other foreigners, courts of justice have not thought themselves at liberty to act otherwise, than by the general rules applicable to all forensic business. The Jerusalem, 2 Gallis. 191–201. The case of the rescue of captured vessels and cargoes from the enemy, by the insurrection of the persons on board, is not provided for by our salvage act or the British statute. Nor is the case of rescue mentioned in the French and other Lanusse V. Barker. continental ordinances. Res- 1818. (COMMON LAW.) LANUSSE V. BARKER. B., a merchant in New-York, wrote to L., a merchant in New-Orleans, on the 9th of January, 1806, mentioning that a ship belonging to T. & Son, of Portland, was ordered to New-Orleans for freight, -and requesting L. to procure a freight for her, and purchase and put on board of her five hundred bales of cotton on the owners' account; "for the payment of all shipments on owners' account, thy bills on T. & Son, of Portland, or me, 60 days sight, shall meet due honour." On the 13th of February, B. again wrote to L. reiterating the former request, and enclosing a letter from T. & Son to L. containing their instructions to L. with whom they afterwards continued to correspond, adding, “thy bills on me for their account, 1818. Lanusse Barker. for cotton they order shipped by the Mac shall meet with due ho nour." On the 24th of July, 1806, B, again wrote L. on the same subject, saying, "the owners wish her loaded on their own account, for the payment of which, thy bills on me shall meet with due honour at 60 day's sight." L. proceeded to purchase and ship the cotton, and drew several bills on B. which were paid. He, afterwards, drew two bills on T, & Son, payable in New-York, which were protested for non-payment, they having, in the meantime, failed; and about two years afterwards, drew bills on B. for the balance due, including the two protested bills, damages, and interest. Held, that the letters of the 13th of February, and 24th of July, contained no revocation of the undertaking in the letter of the 9th of January; that although the bills on T. & Son were not drawn according to B.'s assumption, this could only affect the right of L. te recover the damages paid by him on the return of the bills, but that L. had still a right to recover on the original guaranty of the debt. It was also held that L. by making his election to draw upon T. & Son, in the first instance, did not, thereby, preclude himself from resorting to B., whose undertaking was, in effect, a promise to furnish the funds necessary to carry into execution the adventure. Also, held, that L. had a right to recover from B. the commissions, disbursements, and other charges of the transaction. Where a general authority is given to draw bills from a certain place, on account of advances there made, the undertaking is to replace the money at that place. In this case, therefore, the legal interest at New-Orleans was allowed. An agreement of the parties entered on the transcript, stating the amount of damages to be adjudged to one of the parties upon several alternatives, (the verdict stating no alternative,) not regarded by this court as a part of the record brought up by the writ of error; but a venire de novo awarded to have the damages assessed by a jury in the court below. ERROR to the circuit court for the district of NewYork. This was an action of assumpsit brought in the circuit court of New-York by the plaintiff in error, against the defendant, to recover the amount of 500 bales of cotton, shipped by the plaintiff from New Orleans, on account of John Taber & Son, of Portland, in the district of Maine, upon the alleged promise of the defendant to pay for the same, with the incidental disbursements and expenses. At the trial a verdict was taken, and judgment rendered thereon for the defendant, and the cause was brought up to this court by writ of error. On the 19th of December, 1805, the defendant, a merchant în New-York, wrote a letter to the plaintiff, a merchant in New-Orleans, containing, among other things, the following passage: "I am loading the ship Mac for Jamaica; she be longs to my friends, John Taber, & Son, Portland, who, I expect, will order her from thence to NewOrleans, to thy address for a freight, and in that case, if thee makes any shipments for my account to the port where she may be bound, give her the preference of the freight." This letter was received by the plaintiff on the 6th of February, 1806. On the 9th of January, 1806, the defendant wrote to the plaintiff the following letter: (Original per Mac.) New-York, 1st month, 9th, 1806. PAUL LANUSSE, ESQ. "Esteemed Friend, "This will be handed you by Captain Robert Swaine, of the Portland ship Mac, which vessel is bound from this to Jamaica, and from thence to NewOrleans in pursuit of freight; she will be to thy address; she is a good ship, between three and four 1818. Lanusse V. Barker. 1818. Lanusse V. Barker. years old, has an American register; is of an easy draft of water, although rather large; a freight for Liverpool will be preferred; if not to be had, for such other port as thee thinks proper, send her. If no freight offers for Europe, send her to this, or some neighbouring port, with all the freight that can be had, which I have not any doubt will be sufficient to load her; if thee can get three-fourths as much for this port as for Europe, I should prefer it; if not, I should prefer a freight to Europe. Immediately after her arrival, I wish thee to commence loading her on owners' account, who wish thee to ship five hundred bales on their account, but do not wish to limit the quantity, a few bales more or less according as freight offers; and for the payment of all shipments on owners' account, thy bills on them, John Taber & Son, Portland, or me, at 60 days sight, shall meet due honour; all shipments on owner's account, if the ship goes for Liverpool, address to Rathbone, Hughes, and Duncan; if for London, Thomas Mullet and Co.; if Bordeaux, to John Lewis Brown & Co.; if Nantz or Cherbourg, Preble, Spear & Co.; if Antwerp, J. Ridgway, Merting & Co; if Amsterdam, Daniel Cromelin & Sons. Captain Swaine will take a sufficiency of specie from Jamaica for ship's disbursements; please write me often, and keep me advised of the state of your market, &c. Of thy shipments by the Mac on owners' account, let as much go on deck as can be safely secured, and have her despatched from your port as soon as possible. Thy esteemed friend, JACOB BARKER." And on the 26th of January, 1806, the defendant 1818. wrote the plaintiff as follows: "Since writing thee under date of the 9th instant, I have engaged for the ship Mac the freight of eight hundred bales of cotton from New-Orleans to Liverpool, agreeably to the enclosed copy of charter party. I have, therefore, to request thy exertions in despatching her for Liverpool, filling her up either on freight, or owners' account, and particularly fill her deck and quarters on owner's account. Her owners wish large shipments of cotton made on their account, which, if bills can be negotiated on NewYork, I have informed them thee would make: I, however, am clearly of opinion, that it will be more for their interest to have her filled up on freight: on this subject I shall write thee again more fully. Capt. Swaine will take with him from Jamaica, eight thousand Spanish dollars, for my private account, which I wish invested in cotton." This letter was written on the same sheet of paper, and immediately following a duplicate of the preceding letter of the 9th of January, and was received by the plaintiff on the 18th of March, when he wrote an answer, saying, "On my part, nothing shall be wanting to satisfy the contracting parties, when the ship arrives, and your instructions shall be strictly observed, conforming myself to the latter you gave, and in case of necessity, I think, it will be easy to place bills." On the 13th February, 1806, the defendant wrote to the plaintiff as follows: "Enclosed, I hand thee a letter from the owners of ship Mac, to which I have only to add, that thy VOL. III. 15 Lanusse V. Barker |