Barr v. Craig

• Decision Date: 01 March 1792
• Parties: Barr v. Craig *
• Court: U.S. Supreme Court

2 U.S. 151

2 Dall. 151

1 L.Ed. 327

Barr v. Craig^*

Supreme Court of Pennsylvania

March Term, 1792

The circumstances of this case were as follow: Henry Banks, of Virginia, wishing to remit a sum of money to James Barr, the plaintiff, requested the defendant (then in Virginia, and to whom Banks was also indebted, in partnership with Preeson Boudoin) to take a charge of an order for L 800 on Mease & Caldwell, of Philadelphia, upon the terms specified in the subjoined receipt, which the defendant gave upon the occasion.

'Received, Richmond, 21st January, 1783, of Henry Banks an order of Daniel Clarke, Esq. on Mease & Caldwell, for the sum of L 800 Virginia currency, on an insurance policy of the schooner General Wayne; which I promise to return him in ten weeks, or to account with Preeson Boudoin, for one half, and James Barr of Philadelphia, for the other.'

Signed, 'James Craig, Sen'r.'

By virtue of this order the defendant, on the 4th of June, 1784, received L 771 7 0: and the present action was brought

to recover one half of that sum, with interest, as money had and received to the use of the plaintiff. But, besides a general count for that purpose, the declaration contained a special count, setting forth the particulars of the case, the order, and the receipt of the money. It, likewise, appeared, that the plaintiff having sued Henry Banks, Standish Forde became his bail, and as a means of indemnifying Forde, Banks deposited with him a certificate for 8000 dollars. In relation to that action, an agreement was afterwards made, on the 24th of October, 1789, between Philip Barber, the attorney in fact of Henry Banks, (who had also an assignment) and the plaintiff, to this effect; 'that judgment should be entered in favor of the plaintiff for the whole amount of the debt; but that he should only receive L 500; that he should thereupon discharge Forde from his obligation as bail; and, as to the residue of his demand, he should wait the issue of a suit against the defendant, Craig, and divide whatever might be recovered from him, with P. Barber, Bank's attorney.' This agreement was made after Barr's attorney had discovered, that the cause of action was a joint debt due to James and Robert Barr, though the action was instituted in the name of James Barr only. But judgment was, accordingly, confessed in April Term, 1790, for the whole sum claimed by Barr, to wit, L 1358 17 8; a Ca. Sa. thereupon issued; and Forde, the special bail, having then sold the certificate deposited with him by Banks, paid the full amount of the judgment, with interest and costs, to the sheriff, reserving the balance to answer some other claim-against Banks; the sheriff on the 31st of July, 1792, paid it over to the plaintiff, Barr: But Barr, on the same day, after deducting L 500, paid the balance L 887 15 2 to P. Barber, in compliance with the terms of the agreement, on which the judgment had been confessed. It further appeared, that Banks & Boudoin were indebted to Craig, in a sum exceeding the amount received under the order upon Mease & Caldwell; and that in September Term, 1788, Craig had issued a foreign attachment against Banks & Boudoin, which was served upon Forde, as garnishee; and in which judgment had been obtained, but no Scire Facias had issued.

The cause was tried, on the general issue, at the Nisi Prius in March, 1792, before the Chief Justice, Shippen, and Bradford, Justices,; when Mr. Levy and Ingersoll argued for the plaintiff; Randolph and Lewis, for the defendant.

The defence rested on three propositions: 1st. That Henry Banks was to be considered as the person really entitled to receive the money: 2nd. That the defendant had a right to retain it in satisfaction of the judgment on the foreign attachment: And 3rd. That the action was not supported by the evidence in-as-much as the only proof of the plaintiff's interest is the receipt given by the defendant for the order on Mease & Caldwell, which is not actually set forth in the special count; and affording an action of a higher nature, is no evidence on the general count for money had and received. Bull. N. P. 145. 131. Nor could any person bring this action, who was not a party to the assumpsit. Esp. 105. Cro. E. 369.

The plaintiff's counsel, on the other hand, contended, 1st. That the money received by Craig, was the money of Barr's and the moment it was received, it was held in trust for Barr's use: to retain it, is contrary to Craig's own promise, and to the principles of equity; and a promise to account, is tantamount to a promise to pay. 1 Esp. 23. 1 Stra. 264. 626. 2nd. That a partnership debt cannot be set off against a separate debt; and, therefore, as Craig was the creditor of Banks and Boudoin, he could not discount his demand from the separate property of Banks; which was the present case. 3rd. That there was nothing collusive or fradulent between Banks and Barr, in relation to the judgment. The latter, finding that his action was erroneously instituted, was obliged to make use of some address even to secure...