31 U.S. 262 (1832), Conard v. Pacific Ins Co Of N Y

Citation:31 U.S. 262, 8 L.Ed. 392
Party Name:JOHN CONARD, MARSHAL OF THE EASTERN DISTRICT OF PENNSYLVANIA--THE UNITED STATES, PLAINTIFFS IN ERROR v. THE PACIFIC INSURANCE COMPANY OF NEW YORK, DEFENDANTS.
Case Date:January 28, 1832
Court:United States Supreme Court
 
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Page 262

31 U.S. 262 (1832)

8 L.Ed. 392

JOHN CONARD, MARSHAL OF THE EASTERN DISTRICT OF PENNSYLVANIA--THE UNITED STATES, PLAINTIFFS IN ERROR

v.

THE PACIFIC INSURANCE COMPANY OF NEW YORK, DEFENDANTS.

United States Supreme Court.

January 28, 1832

OPINION

ERROR to the circuit court of the United States, for the eastern district of Pennsylvania.

This was an action of trespass de bonis asportatis, brought by the Pacific Insurance Company of New York, against John Conard, marshal of the eastern district of Pennsylvania.

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The plaintiffs declared in the common form of trespass, specifying the goods and chattels seized and taken by the defendant, to wit: sundry packages of teas of the value, altogether, of upwards of sixty thousand dollars, and laying the damages at one hundred and twenty thousand dollars.

To this declaration the defendant pleaded the general issue: and also pleaded specially, 1. That on the 1st of May 1828 the plaintiffs received forty thousand dollars, paid to him by the defendant, in full satisfaction of the trespasses and wrongs complained of. 2. That at the April sessions of the court 1826, the plaintiffs impleaded him in a plea of trespass to the plaintiffs, damages forty thousand dollars, and on the 30th of April 1828, by judgment of the court, recovered the same, which is the same trespass complained of in this declaration, which judgment remains in full force; and afterwards, on the 30th of April 1828, the said sum of forty thousand dollars was paid to him in satisfaction thereof. 3. That at April sessions 1826, the plaintiffs impleaded him in a certain plea of trespass to his damage forty thousand dollars, being the identical trespass complained of in this suit, and on the 30th of April 1828 the said plaintiffs recovered in the said plea by the judgment of the court against the defendant, with six cents damages, and costs which they had sustained by the same trespasses, which judgment remains in force; and that on the 30th day of April 1828, the sum of forty thousand dollars was paid in full satisfaction thereof. Upon the first plea issue was joined. To the special pleas the plaintiffs replied that they did not receive the sum of forty thousand dollars, in full satisfaction of the trespasses and damages complained of, and of the other wrongs in the declaration mentioned; and tendered an issue thereon. To the third and fourth pleas the plaintiffs replied that they ought not to be barred from maintaining their action by any thing alleged in the same, because on the 9th day of October 1826, a certain bond was executed by the said plaintiffs, and by them delivered to and accepted by the United States of America, in the following words:

'Know all men by these presents, that we, the Pacific Insurance Company of New York, are held, and firmly bound unto the United States of America, in the sum of sixty thousand

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dollars, lawful money of the United States of America, to be paid to the said, the United States of America, their certain attorney, successors, or assigns, to which payment well and truly to be made, and done, we do bind ourselves, and our successors, firmly by these presents. Sealed with our seal of incorporation, and dated this ninth day of October, in the year of our Lord one thousand eight hundred and twenty-six.

'Whereas the goods and merchandise deseribed in an invoice, a copy whereof is annexed, imported from Canton in the ship Addison, safely arrived at the port of Philadelphia, have been levied on by the marshal of the eastern district of Pennsylvania, by virtue of an execution, on a judgment in favour of the United States, against Edward Thomson, of Philadelphia, as the property of the said Edward Thomson; and, whereas, the Pacific Insurance Company of New York claim to be the owners in law or equity of the said goods, and actually hold the bill of lading and invoice thereof, under which the said goods have been duly entered at the customhouse, and the duties thereon secured to be paid according to law; and, whereas, it has been agreed by and between the secretary of the treasury in behalf of the United States, and the said Pacific Insurance Company, that a suit shall be instituted, by the said named company, against the said marshal, in which the sole question to be tried and decided shall be, whether the United States, or the said Pacific Insurance Company, are entitled to the said goods and the proceeds thereof; and, whereas, it has been further agreed that the said goods shall be delivered to the said Pacific Insurance Company, without prejudice to the rights of the United States under the said executions or otherwise, and that they shall sell and dispose of the same in the best manner and for the best price they can obtain therefor, and for cash, or upon credit, as they may judge expedient; and that the moneys arising from the sale thereof, deducting the duties and all customary charges and commissions on such sales, shall be deposited by the said Pacific Insurance Company, as soon as received from and after the sale, in the Bank of the United States, to the credit of the president of the said bank, in trust, to be invested in the stocks of the United States, in the name of the said president, in trust, so to

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remain until it shall be judicially and finally decided to whom the said goods, or the proceeds thereof, do of right, and according to law, belong; and, on the further trust, that whenever such decision shall be made the said president of the said bank shall deliver the said moneys, or transfer the said stocks, to the party in whose favour such decision shall be made. And, whereas, in pursuance of the said agreement, the said goods have this day been delivered to the said Pacific Insurance Company, for the purposes aforesaid, it being understood and agreed that such delivery of the goods shall not prejudice any existing right of the said company. Now, the condition of this obligation is such, that if the said Pacific Insurance Company shall comply with the said arrangements, and well and truly sell and dispose of the said goods, and cause the moneys arising from the sale thereof, after deducting therefrom the duties, charges and commissions, as aforesaid, to be deposited in the Bank of the United States, to the credit of the president of the said bank, in trust, according to the true intent and meaning of the above recited agreement, and for the purposes therein set forth, this obligation to be void, but otherwise, to be and remain in full force and virtue.'

Sealed and delivered by the Pacific Insurance Company of New York.

Invoice of merchandise shipped by Rodney Fisher, attorney for John R. Thomson, on board the American ship Addison, A. Hedelius, master, bound for Philadelphia, for account and risk of Edward Thomson, Esquire, a native citizen of the United States of America, residing there, and consigned to order.

The invoice amounted to twenty-nine thousand nine hundred and eighty-one dollars and twenty-one cents, and was deted Canton, November 22, 1825, and signed Rodney Fisher, attorney for John R. Thomson.

And that, heretofore, to wit, on the same day and year aforesaid, at the district aforesaid, a certain other bond was executed by the said plaintiffs, and by them delivered to, and accepted by the United States of America, in the following words:

This bond was in all respects similar to that last recited, saving that it applied to an invoice of merchandise amounting

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to thirty thousand one hundred and seven dollars eighty seven cents, shipped in the same manner on board the ship Superior from Ganton on the 2d of December 1825.

The plaintiffs further alleged, that when the bond was executed the defendant agreed that a suit should be instituted against him as marshal, aforesaid, in which the sole question to be tried and decided should be, whether the United States or the plaintiffs were entitled to the goods or the proceeds.

And do further say, that afterwards, to wit, at the April sessions of this court, in the year one thousand eight hundred and twenty-six, in conformity with the said bond, and with the said agreement, a suit was instituted by the said plaintiffs, in their name as plaintiffs, against the said John Conard, marshal of the eastern district of Pennsylvania, for the trial and decision of the said question only, and for no other purpose whatever, and in which suit the sole question tried and decided was, whether the United States or the said plaintiffs were entitled to said goods, and the proceeds thereof. And further, that all the pleadings and proceedings in the said suit were subject to the said agreement, and were governed and controlled thereby: and that, in fact and in truth, the said plaintiffs did not, on the trial of the said suit, claim to recover, and did not offer any evidence for the purpose of recovering any damages whatever from the said John Conard, marshal; and that no damages whatever were recovered in the said court, except six cents. And further, that in the said suit it was judicially and finally decided, that said goods and the proceeds thereof did, of right and according to law, belong to the said plaintiffs, and a verdict and judgment for nominal damages were rendered; and the plaintiffs did not receive or claim therein or thereby, any other or further damages, or any damages whatever, for the said trespass and other wrongs. And further that the suit here mentioned, and the plea in the defendant's plea mentioned and referred to, are the same plea or suit, and not other or different pleas or suits, than in the said plea mentioned.

Upon the first of these replications issue was joined. To the others, that is, the replications to the third and fourth pleas, there was a general demurrer, and joinder in demurrer.

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