Lanusse v. Barker

¶1(common law).

¶2JL, a merchant in New-üork, 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 re-; questing L. to procure a freight for her, and fpurchase and put on board of her five hundred bales of cotton on the owners’ account; ,:forthe 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 forfner request, and enclosing a letter from T. & Son to L. containing their instructions to L. with whomfthay afterwards continued to correspond, adding,11 ¿Ay hills on we foe their account, for cotton they'order *102shipped by the Mae, shall meet'with due honour.” On the 24th of July, .1(106, 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'ore me shall meet with due honour at 60 day’s sight.’.’ L, proceeded to purchase and ship the cotton, and drew several bills bn B., which were paid. He, afterwards, drew two bills on T. &'Son, payable in New-York, which were protested for non-pay. ment, they having, in’the meantime, failed; and about twó years afterwards, drew bills on JB. for the balance due, including the two pro tested bills, damages, and interest.

¶3Held that the letters ofthe 13th ofFebruary, and 24th of July, contained no revocation of the undertaking in the letter of the 9lh of January;' that although the bills on T. & Son were not drawn according to B’s assumption, this could bnly affect the right of L. to 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 ofthe debt.

¶4It was also hel4 that L. by making his election to draw upon T. 4"Son, in the first instance, did not, thereby, preclude himself from resorting to B., who ie 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.

¶5Where a general authority is given to draw' bills from a certain place oh 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.

¶6An agreement ofthe parties entered on a transcript, stating the amount of damages to be adjudged to/)ne 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.

¶7Error to the circuit court for the district of New- . York.'

¶8íhis 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-*103Orleans,on account of John Taber & Son, of Port-, land, in the district of Maine, upon the alleged’ promiseof the defendant to pay for the same, .with t.he- incidental disbursements and expenses.

¶9At the trial a verdict was taken, and judgment rendered thereon for the defendant, and the cause whs brought up’to this court by writ of error.

¶10. On the 19th of December, 1805, the defendant, a merchant in New-York, wrote a letter to the plaintiff, a merchant in New-Orleans, containing," among other things, the following passage;.

¶11“I am loading the ship Mac for Jamaica; she belongs tb my friends, John Taber Son, Portland, who • I expect, will order her .from, thence to N. Orleans, 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.”

¶12This .letter was received by the plaintiff on the 6th of February, 1806.

¶13On the 9th o'f January, 1806, the defendant wrote to the plaintiff the following letter :

¶14(Original per Mac.)

¶15JYeio- York, 1st month,.9th, 1806.

¶16PAUL LANUSSE, ESQ.

¶17“Esteemed Friend,

¶18“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 New-Orleans in pursuit of freight; she will be to thy address ; she is a good ship, between three and four years old, has *104an American register ; is of an easy draft of water, all though 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, ■frith all-the freight that can be hady which- I have not any doubt will bé sufficient to load her; if thee can get three-fourths as much for this port as for Europe, I should prefer it; if not, 1 should prefer a freight to Europe* Immediately after her arrival, I wish thee to commence loading her on owner1 s' 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 accordipg as freight offers ; and for the payment of all shipments on owner’s account, thy bills on them, John Taber. & .Son, Portland, or me, at sixty days sight,'shall meet due honour; all shipments on own-, er’s -acco,unt, if the ship goes for Liverpool, address to Rathbone, Hughes, and Duncan; if for London, Thom, as 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 keepme advised of the state of your market. See. Of thy shipments by the Mac on.owner’s account, let as much go on deck as-can be safely secured, and have her despatched from, your port as soon as possible.

¶19Thy esteemed friend,

¶20JACOB BARKER.”'

¶21*105And on’the 26th of. -January, 1806, the defendant' Wrote the plaintiff as follows-:

¶22“Since -writing thee'under date of the- 9th instant, I have engaged for the ship Mac the freight of eight hundred bales qf cotton from New-Orleans to Liverpool, agreeably to the enclosed copy of charter party. I have therefore, to request thy exertions in dispatching her for Liverpool, filling her up either on freight, or owner’s account, and particularly fill her deck and quarters on owner’s account. Her owners wish large shipments of cotton made ón their account, .which, if bills can be negotiated on New-York, I haye 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. Swain.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 18’th of March, when he" wrote an answer, saying, £ion my.part, nothing shall be wanting to satisfy the- contracting parties, wpen thej ship arrives, 'and your instructions shall be strictly .'observed,conforming myself to the latter you gave, and in' .case of necessity, I think, ibwill be eaty to place bills.”'

¶23On the 13th February, 1806, the .defendant wrote to the plaintiff as follows/:-

¶24“Enclosed, I hand thee a letter from the owners of. ship IV^ac,. to which I have only to add, that thy bills *106on me for their account for the cotton they order, ship--' ped by the Mac, shall meet due honour.”

¶25On the 29th of August, 1806, the plaintiff wrote the defendant:

¶26“A few days ago I was favoured with a few lines from Messrs; John Taber & Son; importing that they wrote to-you, to Capt. Styaine, and pae, such directions as you might think properj but I have not as yet been favoured with any of yo.urs. The Mac remains precisely .in the same situation. 4250 dollars demurrage, have been, paid on her account, and I only wait for further information, from you;, to act, in case demurrage is ' refused.”

¶27On the 24th of July, 1806,'. the defendant wrote the plaintiff as .follows:

¶28“Relative to the unfortunate situation of the Mac, I have to observe, that if she remains at yoúr port idle, Fontaine Maury, or his agent there, must pay the- demurrage every day, or. the master must protest, and end the charter; as long, as the demurrage is paid, agreeable to charter -party, the ship mugt wait; as soon as that is not' done, the captain or owners’ agent can end the voyage by protesting, and entitle the owners to recover their full freight; so that thee had better take the eight hundred bales, on account of Fontaine Maury at a low rate, than to subject him to-such a heavy loss; thee will on receipt, of this be pleased to receive the demurrage daily, or end the charter, and despatch her for Liverpool on owners’ account, taking all the freight that offers, and fill her up with as much cotton as possible, [not less than five hundred bales,] log.vood and staves, as it will not answer to keep so valuable a ship there any longer, without earning some*107thing for her owners. Although I say fill her up with cotton, logwood, and staves, on owners’ account, thee ■will please understand,, that I should prefer her being despatched agreeable' to charter, party ; if that can be dope, I prefer lier taking freight for Liverpool, excepting about five hundred bales, the ownprs wish shipped on their account; yet rather than have her there idle, the owners wish her loaded on their own account; for the,payment of which, thy bills on me shall meet due. honour at 60 days sight, which I presume thee-can easily negotiate-.”

¶29On the '26th of September, 1806, the plaintiff wrote . the defendant;

¶30“Since my respectful last of 29th August, 1 am favoured with your . much1 esteemed of 24th July, the contents’of which I have duly noticed.”

¶31“I have to inform you of the- disaster which has befallen the Mac. On the night of the 16th and 17th inst. we experienced a most violent gale,' which has done great injury'to the shipping, and drove the Mac from her moorings to a considerable distance from the town,” &c.. “Nor can I flatter you of procuring either freight for her, or accomplishing your older before December,” &c.

¶32On the 6th of September, 1806, the defendant wrote the plaintiff as follows ;

¶33“Since I last had this pleasure, ordering a pro|est against the charterers of the Mac, and that vessel despatched on owners’ account for Liverpool, with staves, logwood, and cotton, I have not received any of thy acceptable communications. I now confirm that order, *108and request, if a full cargo- be not engaged for the Mac, on receipt of this, that you ,ship two hundred 'bales of cotton for-my account, .to the address- of Martin, Hope &. Thornley, and thy bills' on me, at 60 days sight, shall' meet due honour for the same. On receipt of this, lose no time in purchásing. the two hundred bales, and,what may be yet wanted for the ship on, owners’ account, as a very considerable, rise- has taken plape in that article at Liverpool; therefore, thee Will .npt lose any time' in making the purchase.”

¶34On the 10th of October, 1806, the' defendant wrote the plaintiff:

¶35“By thy letter of the 29th of August, to Jdhn Taber Son, .1 observe theehad an idea of sending the. Mae here, if a freight .did not soon offer,- which I think thee would not (on1 reflection) do, if a freight from this port did not offer, as-She bad much better ‘ remain at New-Orleans than be sent here in ballast: Therefore request 5 if she is.not despatched agreeable -to charter party, that she remain at your port until a freight Can be obtained for her, with what th.ee can ship on owner’s account-They wish at least five hundred bales of cotton. 1 hope thee did not ship logwood,,as -I-find - that article will not-pay any freight'therefore, if thee -has, npt .made a shipment of that article, please omit iL Thee must, of course, keep the ship as long as demurrage , is paid.” .

¶36On the 26th of-November, 1806, the defendant wrote the plaintiff.

¶37*109‘-‘I Wish the Mac got off as soon-as possible, and prepared for a voyage; when I wish five hundred, bales of cotton shipped, on account of her owners, for Liverpool, and the ship filled up with freight .goods, even at a,low rate: if freight should be scarce, and thee can purchase good flour at about -four _and a half dollars per barrel, thee will please to ship from five hundred to one thousand barrels, on account of the owners of. the Mac, and on thy making any purchase for those objects, inform Rathbone, Hughes & Duncan, Liverpool, by letter duplicate and triplicate, requesting them to have the full amount of thy shipment on-owners’ account insured, stating particularly when thee expects the ship to leave New-Orleans, &c, &c. If cotton falls to twenty cents, please ship- five hundred bales of cotton for my account, by the Mac, consigned to Martin, Hope £f Thornley, drawing on me at sixty days fur the same. I do not wish a. bale shipped at a higher price than twenty' cent?, and I hope thee will engage the freight as low as 1 1 -2d.. My only reason for ordering it in the Mac is to assist her owners; therefore, if' a full charter offers for her,, or if any thing should prevent her going, thee will ship five hundred- bales by-some other good vessel, or vessels.”

¶38On the 29th of December, 1806, the defendant wrote the plaintiff: . '

¶39“I am favoured with thy letter of the 7th, by which I am pleased to observe the Mac was off, and likely to be despatched for Liverpool. Her owners are desirous that she be despatched' for that-place without delay) as,I mentioned to thee in -my last letter on the subject *110of the Mac’s business. If thee has contracted for the cotton, or any part thereof, that I ordered, let all that has been contracted for be shipped according to my last request, but do not purchase a bale, for my account, after this letter reaches thee, above sixteen cents, as that article has become very dull at Liverpool, and likely to be low, in consequence of the success of the French army on the continent. If thee can purchase at or under sixteen, cents, before May, thee may purchase and ship such part of the five hundred bales, as has not been purchased before this letter reaches thee.”

¶40On the 22d of January, 1807, the- plaintiff wrote the defendant as follows:

¶41“I havb now commenced the purchase - of cotton for account of Messrs. John Taber if Son, and have paid hitherto twenty-two cents cash, , at which price seventy two bales were ready to be shipped, as I ex pect to find an opportunity of placing my bills upon you: I'shall complete the purchase of 500 bales, which will be necessary, in order to get a full freight,” 4rc. • “I. have now to inform you, that I have drawn on you, under date of the 15th of January, for 1,800 dollars. Say eighteen hundred dollars, payable sixty days after sight, to the order of Mr. A. Brasier, in Philadelphia, which draft goes' on account of the 72 bales of cotton already purchased,' and request you to honour the same.”

¶42And on the same day he wrote the defendant:

¶43“The present merely serves to inform you, that I have this day valued upon you.

¶44*111$1,370 Order'Joseph Thebaud.

¶45607 23 Deelaire & Count.

¶461100 SteDhen Zacharie.

¶47$3077 23 sixty days- after sight, and refer to my letter of this day.”

¶48On the 13th of February,,1807, he wrote the defendant:

¶49“I have engaged 150 bales for account of Messrs,, John Taber & Son, at Market price, which I expect in town in a few days, when I shall without delay- ship the same on board the Mac, making the 220 bales in all. This commencement, I hope will encourage shippers to give us some freight; at all events I shall keep you duly advised of my proceedings. Under date of the 6th inst.' I took the liberty of valuing ‘upon you 301 dollars 22 1-2 cents sixty days after sight, to the order of Jaco’b D. Stagg; on the 12th inst. $673 to the or,der of Samuel Lord, and shall continue drawing'as opportunity offers.

¶50On the 16th of the same month he wrote the defendant":

¶51“The present -merely serves to inform you, that I have this day valued upon you 600 dollar's. Say six hundred dollars to ‘ the order of Benjamin Labarte, sixty days after sight, and request you to honour the same, and place to account of J. T. & S.”

¶52On the 20th of-February, 1807, the defendant wrote, the plaintiff:

¶53*112“I am in daily expectation of hearing'of the Mac’s progressing for Liverpool. Before this reaches thee, I hope she will have sailed; if not, please lose no time in despatching her. That- thee may be fully acquainted with the wishes of her'owners, I annex a copy of the last letter I have received from them, and request thee to comply with their wishes in every particular.”

¶54The copy of the letter from John Taber fy Son, referred to in this letter, is as follows :

¶55“Portland 2d mo. 9, 1S07.

¶56“Jacob Barker,

¶57“By last mail we received thy favour of the 2d inst. ’ enclosing one from Captain Swaine to thee. We notice thy proposition for us to give liberty for the Mac to.take freight for any port in Europe, but as we have<got her and her freight insured in Liverpool, at and from New-Orleans to that port, we wish to have'her go there, even if -we load on owners’ accodnt. We are well satisfied that Lanusse hath not. yet loaded her, as we have no doubt cotton will- be much'lower in a short time. Andas we apprehend that shippers of cotton will now turn their attention to other parts of Europe, we think the probability is, that cotton will be in demand in Liverpool by the time the Mac will arrive there, we likewise think it will answer ‘ to ship good .-flour,- and probably some' good staves can be' purchased; vve had rather have her loaded on our own account with thoSe three articles, than to take freight for any other port, but we think there can be no doubt, but that when she begins to load on owners’ account, that .some consi*113derable freight can be obtained. We really wish thee to write Lánusse to despatch her,, with liberty to take two thousand barrels'of good fresh-flour, if freight ■does not offer sufficient with the five hundred bales of cóttón before . ordered, to load her without delay; as we have no doubt good flour will answer, and we cannot think of hei being longer detained at New-Orleans.

¶58We remain, thy assured friends.

¶59(Signed) JOHN TABER &SON.”

¶60And on the 3d óf March, 1S07, the plaintiff Wrote the defendant:

¶61“ The present merely serves to inform you, that I have this day valued upon you 10,000 dollars. Say ten thousand dollars, payable. sixty days after sight, to the order of Mr. Thomas Elmes, and 'request you to honour the same, and place to account of J. T. & S.”

¶62On the 6th of March, 1807, he again wrote the defendant:

¶63“ I refer to my respectful last of 13th, 16th 24th ult. and 3d inst. the contents of which I confirm. On the 16th 1 valued upon you for 600 dollars, and on the 3d inst. for 10,000 dollars, making in all the sum of 16,351 3 3-4 cents,’on account óf the shipment per Mac, for accoufit of Messrs., John Taber & Son. . I have already bought 72 bales at 22 cents, 107 do. at 20 3-4 cents, 175 do. at 20 1-2 cents, together 354 bales, jhnd 30m. staves, amounting to about 22.000 dollars. There remains 146 bales more to be purchased, which I hope to get; the total amount, with charges and com*114mission, will be about 34,000 dollars — for which sum I shall order Messrs. Rathbone, Hughes & Duncan, to . . get insurance, effected.' T shall continue to draw on you as occasion presents.”

¶64On-the 11th of March, 1807, he wrote the defendant, informing Him that he had drawn on the defendant to the order of Mr. F. -Depau, for 0,000 dollars, and to the order of Mr.' j. P. Ponton for 691 dollars and 50 cents. ■

¶65On the 15lh of April, 1807, the defendant wrote the plaintiffs

¶66“ I have this moment received the unpleasant information of the fail tiré of John Taber & Son, therefore beg the favour of thy taking, every precaution to secure my claim on them fo: the payment of the cotton thee has shipped for their account by the Mac. If that •ship has not got clear of'your river, take up the bills of lading and fill up new bills,, consigning the cotton to ‘my order, forwarding me several of the bills, and instruct Captain Swaine to hold the cotton until he hears from me; and if part of the old set have gone on, let them go, but take a new set, and make all the 'freight money payable to my .order, and if she has got clear of the'river, • make an-arrangement with the shippers of the cotton to pay thee the freight money, and give them a receipt for it, forwa; ding that receipt to Liverpool, but for the consignee to keep as a secret that the freight money has been paid, until they get all the freight goods.”

¶67And on. the ,16th of April, 1807,. the defendant again wrote the plaintiff:

¶68*115“I have taken the best counsel, and fiiid (he goods ' per ship Mac can be stopped for thy account in transitu, and have therefore taken .all the steps in my power to have that object eífecfed; and shall succeed so far as to keep the-property at thy disposal until thy power .reaches Martin, Hope & Thornley, which ' will enable them to hold the property for thy use ; therefore send the power by the packet,- and send duplicates and triplicates by other vessels, and several copies by mail and packet to me to be forwarded; also draw on Rothbone, Hughes & Duncan, for the whole amount of shipment, ordering Martin, Hope & Thornley, to pay them 1000 pounds of the amount drawn ror, if they accept the bills. Confirm what I have wiittén, copies of which I enclose for thy government. Thy bills on me will, all be protested for non-payment, that thee can say thee has not received pay for thé cotton, but shall endeavour to furnish money that will prevent disappointment to the holders. This, my counsel tells me, is indispensable, to enable thee.to benefit by transitu, which cannot be done by other person · Case Law">any other person, nor by thee after thee gets pay for the goods shipped.”

¶69And on the same day the defendant wrote to Martin» Hope and Thornley, of Liverpool, as follows :—

¶70“I enclose a letter written'as agent and. friend of Paul Lanussb to Ralhbone, Hughes and Duncan, which you will have the .goodness to hand them, and make a memorándum of, the delivery, and endeavour to make the contract for Lanusse as therein mentioned, and I will.indemnify you from.all loss in so doing; if you cannot make an absolute agree*116ment with R. H. and D. to receive all the property Lanusse has of may ship hy the MacJor account of Taber $r Spn, to be applied for the payment o,f the bills La? nusse lias or may draw' on them, excepting one thousand pounds, and the profits on the. adventure, which they may place to the credit of Taber & Son, if they are so much indebted to R., 'H. & D.; if not so much, then such sum>as may be due them; You will cause insurance on the cargo of ship Mac to the amount of nine thousand pounds sterling, and proceed as the agent of LanUsse to get hold of the property ; you .certainly can stop it in transitu.”

¶71On .the same day the defendant also wrote to Rathbone, Hughes & Duncan : ■

¶72“As the agent of my friend Paul Lanusse at New.Orle'ans, I have, in consequence of the failure of John •Taber &■ Son, to inform you, that the goods he is shipping on board the Mac, Captain Swaine, have not in .any. part been paid for, therefore they aré to be stopped in transitu, for the benefit of-my said friend Paul Lanusse, who is by me represented ; and as his agent^ 1 .charge.you, on your peril, not to accept, or in any manner commit yourselves for said Taber & Son, cm account .'of said shipment-, but if you are willing to receive said consignment, sell the same, and apply the. 'whole proceeds to the payment.of siich drafts as Lan.usse may draw oh you, which shall not exceed the amount .of invoice.”

¶73On the 30th of April, 18{)7, the defendant wrote the plaintiff:

¶74“ I arinex copy of my last respects; and have to request, in the most pointed manner, thy particular at*117tention tó my request therein. I have sent out many letters in hopes of meeting the Mac ; if any of them meet her in the Mississippi, Captain, Swaine will return to New-Orleans with all his papers for thee to alter the direction of the goqds shipped.by that vessel for account of Taber & Sop ; if not so 'successful as tp meet her, but'if any of them meet her after she leaves the' Mississippi, she will stop at this port, when I will nake the necessary alterations ; but' if none of my let-. ters meet her, my' only chance for securing,. myself is by. thy . stopping the -property in transitu. To have that done, thee must immediately send out powers to Liverpool, therefore I beg thefe to confirm alii have ' written to. Martin, Hope & Thórnley.”1

¶75On tbe 20th of May, 1807, the plaintiff wrote tó the defepd.ant:

¶76“Your esteemed favour of the 15th ultimo has ‘ just reached me, and with much regret do I learn the fail*, ure.of Méssrs. John Taber & Son. I hope that you-will not be a sufferer,.and that you.'have taken, timely precaution. Agreeably to your request', I have written'on to Liverpool, hut, am afraid my letters will e.pme too late, as the-Mac. sailed from-the Balize on the 23d of : Apiil, and as she is «good sailer, will ■ no doubt have-5 discharged her cargo before the receipt, of my letter. For your government ! enclose you invoipe and bill .of lading of the 500 bales cottdn shipped per Mac-; also, my .accoupt c'urrént-with; Messrs. John Taber & Son, according tó which, a balancé of $1251 281-2,_ for' which amount I shall'value upon you as occasion- offers. You will, I hope,'have taken tbe ' neceasajy measures to meet my drafts-dated March, 20th dráwn *118direct on Messrs. Taber &.Son, in Portland, payable in New-York, of which I advised' you. i am anxious to receive your further communications, and most sincerely hope that you have been able to cover your claim, and not be a loser by this unfortunate accident.”

¶77And on the 9th of June, 1807, he,wrote the defendant :

¶78“I have only time to inform you of the receipt of your favour of 16th and 30th April, and to assure you that I shall punctually follow your instructions, and lose no time in forwái'ding to you and to Liverpool all necessary papers, relying on your integrity and hon-our. I feel no uneasiness respecting my concern in this unfortunate business at the same time I most sincesely .regret that you should be á sufferer, but hope things may yet result favourable.”

¶79On the 28lh of August, 1807,- the plaintiff wrote the defendant:

¶80“The last mail brought me the non-acc.eptanCe, pro, test, &c. .of the two bills of exchange drawn by me on the house of John Taber & Son, under date of the 20th of March, 1807, in favour of Thomas Elmes, and endorsed by'him'to Messrs. Corp, Ellis -and Shaw, each for five thousand dollars, making.the sum often thousand dollars, and which I have been obliged'here to-pay to Mr. Elmes, .together with ten per cent, damages, amounting to the further sum of one thousand dollars, giving a total of eleven, thousand dollars. It is unnecessary for me to dwell upon the serious inconven fences which have resulted from this circumstance, or to repeat how prejudicial the whole of the transaction ■with the house of John Taber & Son has been to niy *119affairs. I, however, rely upon you for the payment of this money, as it was entirely upon your recommendation, upon the strength of your assurances and the respectability of your guaranty, that I was induced to émbar'k in this business, and to procure cotton for the cargo of the ship Mac; but this siibjéct has al ády bgen sufficiently, enlarged upon in my former letters to you, and-1 .sanguinely trust that you will not delay making’ the necessary arrangements for this reimbursement. No information has as yet been received by me from Liverpool, respecting the fate of-the 50t) bales ef cotton shipped'on board the. Mac. I feel anxious to -know the success of the steps which haye been taken in that quarter. I trust -that you' will communicate to me the earliest information that you may receive on this subject.”

¶81On the 30th of January, 1806, John Taber & Son wrote to the plaintiff-as follows: .

¶82<cWe wrote thee the 24th inst, since which wehave' received a letter from Jacob Barker, informing that he had engaged -eight hundred hales of cotton for the;Ma'c,, previous to her sailing from New-York, from your porjj to Liverpool; which has fixed her rout; as-she hath so-much freight engaged, we flatter ourselves that she. will be filled up immediately. It is our wish'to have two hundred bales of good cotton shipped on own-eys*account, and as much more as roay.be necessary to make despatch, as we are not willing to have her detained in your port f >r freight. Td reimburse thyself for the cotton purchased on owners’account, thou may draw bills at sixty days sight, either on Jacob Barker or- bn us* If thou can sell bills- on Rathbone, Hughes & *120Dfincan, merchants at Liverpool, at par, thou may ofl • them', faking care not to sénd the bi.lls before she sails, .and to write on timely to them to get- insurance made' the - amount . 0f property shipped on oUr account.”

¶83On the 27th oi--March,' 1800, the - plaintiff wrote J. Taber & Son:

¶84“Your much respectful favour of the-30tb .(¡C-Januar'yíast came duly to hand. Inobserve what you say respecting -the purchase of cotton for your account to -go by ship Mac, of which our friend Jacob Barker, likewise makes. mention ; this .ship has not yet made her appearance, but as soon as she doéú you may depend on my utmost exertions to follow' yoür order.s, and give ,the ship all dispatch that lays - in my power. ■ The-mode of reimbursements- for purchasers-made'here will be by drawing oh our . friend' -Barker, agreeable to his advice, as I thinkit will be less difficult for me to' place bills on New.-York! Cotton is rising, and fetches now 26 Cents.. Notwithstanding, I shall follow your orders with respect to'the Mac, unless any thing to the contrary should reach me before she arrives. As for drawing on Liverpool, it is altogether out 'of my power, for such bills are seldom asked.for here.' I shall advise . Messrs. Rathbone, Hughes & Duncan, in due time, to effect insurance on the property I may - ship on-your account* Awaiting the pleasure of announcing you the Mac?s arrival, I continue with respect,” &c.

¶85On the 5th o,f J une, 1806, the plaintiff wrote J.Taber '“Son.: . Cotton is pretty ■ steady at 22 centpr Should circumstances authorise my purchasing for *121your account, I shall, in, preference, value for the amount of Mr. Jaóob Barker,

¶86On the 29th of June, 1806, John Taber & Son wrote to the plaintiff:

¶87“We have not been favoured with any of thy communicationp since 4th, month, . 7th. We have, been daily expecting to héar of our ship Mac being laden and ready for sea as We had not the least idea but that the eight hundred bales that Jacob Barker contracted for would be ready at the time agreed on, and expected thou would have purchased a sufficiency to fill up on owners5' account,, provided freight did not offer in season. By last mail we received a letter. from Mr. Jacob Barker, informing that he feared the contractors would not'furnish the eight hundred bales, and that in consequence thereof the Mac would be detained until 'further orders from us. We, therofore, have this day wrote Barker to give thee and Captain Swaine such directions a$ he may think proper. But we hope she will be despatched for Liverpool before this reaches thee, as it is our wish to have her go there.55

¶88On the 15th of July, 1806, John Taber & Son wrote the plaintiff:

¶89‘‘Thy favour of the 5th ultimo by mail, was this day received, the contents noticed, we are very sorry to find that the Mac is so detained with you, we having flak tered ourselves that she would have been at Liverpool by this. We wrote th.ee 27th ultimo by mail, directing thee to follow Jacob Barker’s instructions respecting the Mac, which we now confirm, and say that we wish *122thee to follow his instructions at all times the same as from'us.”

¶90^ , ' On the 29th of August the plaintiff' wrote J. Taber &.Son:

¶91■ “Your esteeme.d favour of the 29th of June has duly come tó hand, but I have in vain expected further directions from Mr. Barker, for the want of which I hare experienced many difficulties^”

¶92. On the 25th of July,'1806, J. Taber & Son again wrote the plaintiff:

¶93Thy favour..of the 13th' ultimo was this day handed us by Captain Webb of the Phcenix. It had been broken open at sea by an English cruiser. We have not received a copy of thy protest; we should like to- see it. We are extremely sorry that we had not, in the first instance, given thee orders, to have laden our ship with staves, logwood, and cotton, on our account, with, what freight coul.d be obtained; we should certainly have done it, if we had the least idea that we should have been disappointed of the 8 hundred bales. We have this day received, letters from Jacob Barker, informing he bad given thee .direction to load immediately as above; hope thou can make it convenient to-put'a large share of cotton on board on our account, as we think that article will pay much more than staves; we trust thou will send to Jacob Barker such documents as.' will enable him to recover the freight and demur-, rage.”

¶94And on the 30th July, 1806, Taber.. & Son wrote the plaintiff.

¶95We hope that the Mac will sail for Liverpool before *123this reaches thee, with a cargo on o.wners account, and á large proportion of cotton.”

¶96On the 16th of September, 1806, the plaintiff wrote J. Taber & Son:

¶97“I am successively favoured with your much esteemed of 15th, 25th, and 30th July, and have taken due notice of their contents. Mr. Jacob Barker has likewise wrote me,, and shall follow his instructions as far as lays in my power.”

¶98On the 3d of October, 1816, .Taber & Son wrote the plaintiff:

¶99“We observe that thou had thoughts of send-, ing the Mac to New-York after "a few weeks, if thou did not receive further instructions': hut we trust that will not be the case, ‘as we presume that thou received Jacob Barker’s orders soon after, to load her on owners’ account for Liverpool, except the demurrage was continued' to be paid. If so, we are willing to let her lay until the charterers procure the 800 bales freight. When that is the case, we presume thou will not let her be detained for the remainder part of the cargo to the charterer’s damage. We renew our request for thee to continue, to follow Jacob Barker’s instructions from time to time, respecting the Mac, the same . as from us. We are well satisfied with thy proceedings.”

¶100On the 12th of December, 1806, the plaintiff wrote X. Taber & Son. acknowledging .the- receipt of their letter of the 3d of October, and saying, “ I have not, as yet, commenced the purchase of cotton, only small parcels have ás yet come to hand; as soon as I can *124succeed I shall value upon Jacob Barker for the amount,” §-c. , ' .

¶101On the 9th„ of November, 1806, J. Taber & Son wrote the plaintiff:

¶102“We do not pretend to give thee any positive order respecting the Mac, as we have heretofore directed thee to follow Jacob Barker’s directions; but we will give thee a sketch of our wishes, viz.. Tp have ;the.Mac despatched to Liverpool, as soon as possible, with about five hundred , bales of cotton on owner’s account, and the remainder of her cargo on freight,” ‘ &c.,

¶103■ On the 22d January, 1807, .the plaintiff wrote J, Taber and son:

¶104“I have written-this dáy to Mr., Barker, and keep him ad.vised of the state of affeairs here. Upon Ms remarks on the subject .of demurrage, I have unconditionally passed to your account, the total sum’paid in, and shall employ the funds for the expenses of the ■ship, and the surplus for the purchases of -cotton for your account. I ‘am happy to inform you, that I have already made a commencement, and purchased 72 bales at .22 cents, which are now ready to be shipped on board the Mac. I shall, ás opportunity offers; draw upon Mr. J. Barker f°r the afnOunt,. and- complete the 500 bales, to be shipped for your account whiph will, be absolutely necessary to procure a full freight.

¶105, I valued upon Mr. J. Barker, 1,800 dollars, which sura' is.passed to your eredit. í neéd riot recommend to you to take the necessary measures, in order to have my drafts duly honoured by'that gentleman.” *125On the 13th of February., the plaintiff wrote J. Taber. and Son, and after mentioning a farther purchase of . feotlon for their account, he states : “ I add you a note of my drafts, upon Mr. J. Barker, on account of this shipment, for your account, and shall. keep you con-, stantly advised of my proceedings.”

¶106On the 9th of February, 1807, Taber & Son wrote the plaintiff:

¶107“ We having' by last mail received account, that the Mac had not begun to take her cargó on New-Year’s day j we are well satisfied that thou .had not purchased cotton for us at the high price that we understood it was selling at, as we presume it will be much lower by the time this reaches thee. If the Mac hath not taken in any of her cargo before this reaches thee, we wish thee to commence loading her on owners’ account immediately ; as we have ever found that when our ship commenced loading on owners’ account, that freight soon- offered-. Jacob Barker informed us some time past, that he had given thee directions to ship five hundred bales of cotton on our account, and liberty to ship some flour, which we think may answer well» provided it is good. If freight cannot be obtained, to fill her up with the flour and cotton that Barker hath Ordered, we should like to have her filled up •with good slaves or timber, the growth of your country ; but no logwood or mahogany. We much wish to have the Mac depatched for Liverpool as soon as may be.”'

¶108On the 6th of March, 1807, the plaintiff wrote J, Taber & Son,

¶109“ On the 13th ultimo, I last bad the pleasure of *126addressing you/ I haTre since, procured a full freight for the Mac.at three cents per pound cotton, and sh.e will’be despatched in all this month for Liverpool. I shall ship on, hoard fo,r your accpunt, five hundred bales cotton and thirty- thousand, staves, of which you nov may get insurance effected, the amount per invoice will be about 3,400 dollars. I have, since my last, valued uppii Mr. J. Barker, for 600 "dollars and 10,000 dollars, on account, of these purchases, and :shall continue to draw as occasion offers. As soon as the entire purchase is completed, I shall hand you the invoice and' accpunt current, and shall acquaint Messrs.' Rathbone, Hughes, and Duncan, with my proceeding respecting the above order for insurance, and shall have early opportunities of giving them timely information. I have communicated to Mr. Jacob Barker the present state of affairs.”

¶110And on the 20th of March, 1807. the plaintiff wrote to J. Taber & Son :

¶111■ The present merely serves to inform you, that I have this day valued upon yoq, payable in New-York, the sum of 10,000 dollars, in'two bills of 5,000 dollars' each, say, ten thousand dollars, sixty.days after sight,' to the order of Thomas Elmes, Esq. which drafts go on account' of cotton purchased for' your account,, and shipped on hoard the ship Mac. It is upon the particular request of Mr. Elmes, that I have altered the mode of my drawing direct on Mr, Jacob Barker.”

¶112,Onthe 17th of April, 1807, the plaintiff again wrote J. Taber & Son :

¶113• -*‘1 have now the pleasure of informing you that *127the.Mac has sailed for Liverpool, having on board 500 bales of cotton for your own account, and 549 bales on freight. Enclosed, I hand you invoice and bill of lading of the former, amounting to 33,098 dollars' 31 cts. for which you will please credit my account.. I have engaged 30 m staves, but they were of inferior quality, and I preferred not shipping them: With my next I shall hand you account current, &c. Capt. Swaine has taken along with him all the necessary documents to recover from the underwriters on the ship Mac; the amount of expenses incurred sinee the gale until she was afloat, were 3,042 dollars 25 cts.

¶114On the 24th of April, 1807, the'plaintiff wrote- to JT.. Taber & Son :

¶115“I refer to my respectful last of the 17th instant and have now the pleasure of handingyou account cur. rent to this day, and other papers respecting our transactions, agreeable to which, there is yet a. balance due me, of 1,276 dollars 51 1-2 cents, for which amount I shall value upon you as occasion may offer.”

¶116Besides the above correspondence, the plaintiff pro duced in evidence an answer of the defendant.to a bill of' discovery, filed by the plaintiff in a suit formerly depending in the supreme court of the state of Nfew-York, which was commenced in April, 1810, and discontinued in October, 1813; of which answer the following is an extract:

¶117And this defendant, further answering, says, that previous to the month of May, 1807, he had large commercial dealings with the house or firm of John Taber & Son, of Portland, in the state of Massachu*128etts. And that the said firm or house of John Ta-^er ®on’ having failed prior to the said, month of May, 1807, and at the time of such failure largely indebted to the defendant; and this said defendant visited Portland for the purpose of securing• his de* mand against said firm or house of John Taber &■ Son ; and soon after his return, he, about the 1st of) May 1807, . in ‘ conversation with Gabriel S, Shaw, of the firm of Corp, -Ellis & Shaw,' Merchants, residing in this city, about the charter of a ship, mentioned to said Shaw, that he, Barker, had just returned from Portland, where he had been for the'púrp'ose of getting security from John Taber & Son, -when he> said Shaw, informed him that they had, a few days previously, sent bills drawn at New-Orleans on said Taber-and Son, under cover to the said Tabers, for acceptance, to the amount of ten-thousand dollars J. and" inquired if he, this defendant, supposed they would, in the deranged state of their business, return theni regularly protested, or accepted? . From this defendant's -knowledge of- said Taber's business he believed that those bills were draw.n in payment, for the ship Mac’s, cargo; this being the only information this defendant had of any- bills- being drawn at New-Orleans on said John Taber & Son, he was induced td accompany.the said Gabriel Shaw to his office, to ascertain the particulars ; who, at the instance of this defendant, exhibited to him either a letter or one of the same sets of-bills by which' this defendant learnt they were drawn by' Paul Lanusse,- at New-Orleans,. on John Taber and Son, Portland, in part payment for the cargo of the Mac. That this defendant, acting *129from the information so received, and from no other in formation- or advice whatever, and, also, from an ap„ prehension that the said complainant, when he should hear of the failure of the said house of John Taber & -Spn, would claim from this defendant the amount for which the said bill or bills were drawn, and thereby ex- , pose this defendant to an expensive course of litigation in resisting the said Jdaim, if any should be made, he, this defendant,- wrote to the said John Taber & Son a letter on the srbject of the said bill or bills, and which letter, he believes, is as follows,.to wit: .

¶118JVW- York, 5 mó.' 5th, 1807¿

¶119John Taber Sr Son,

¶120I am this day advised of Paul Lanusséss having drawn oiiyouto the amount of .ten thousand dollars* which bills were forwarded to you for acceptance: for the payment of those drafts I am not liable, as I- only promised to accept in case of his drawing on. me. Yoil undoubtedly, accepted those bills ; if not, and, you hávé them, be pleased at all events, to accept them, as if they are returned without acceptance, the charge will be, as<at first, for. the shipment for which LanusSe may possibly think me answerable, but if the bills are accepted,'he can only look to you. The debt, as to him, thereby becomes of another nature, but as to you it is the same thing, and cannot place you in any worse situation. Therefore, let thepi be accepted, and* if you have returned them without acceptance, authorise me to accept them as your agent to this business ; *130give immediate attention as I must not he made answerable for them ; although injured,'

¶121I;am yet your mend,

¶122JACOB BARKER,

¶123And that afterwards this defendant wrote another' letter to the said John Taber & Son, which he believes is as follows:

¶124Mw-York, 5mo. 15, 1807.

¶125John Taber,

¶126This day’s mail'brought me thy letter, by which I . am surprised to observe thee has, refused compliance with my request. I cannot account for the strange advice your merchants gave respecting protesting those bills. I, hdwever, admit that'in ordinary cases there would not be much impropriety in protesting them, though I could not possibly alter the state ,of your business, the debt being indisputable, their being accepted-only acknowledged the debt to be due ; but I must insist if thee has any regard to justice, that thee will, if not returned, accept them for account of John Taber & Son ; if returned, authorise rtfe to accept them for their account. I'consider the argument that I expected to secure the Mac and cargo, no excuse at all, particularly asno attachment can be made in this state-for partial benefit, all attachments must be made for the benefit of all the creditors.' "So that if I . have property in my hands, the' best possible step the credjtors could take would be for one of them to attach it ¡n my hands : therefore, must pointedly insist on thy accepting, or ordering me to accept those bills. As to *131advice from thy neighbours, it is one of those simple cases that do not require advice, and Isay expressly, when thee considers my situation, thee cannot honestly-refuse my request. If I was in thy situation, and all-the world advised me not to do it, I should not pay the least respect to such advice, but accept the bills without a moment’s hesitation. If thou thinks Paul Lanusse will be a more difficult creditor than, I shall be, thee will, under present circumstances, be mistaken, to where I am.thus forced into a monstrous loss, I shall be very difficult, although, in common cases, should be favourably disposed.

¶127Your friend,

¶128JACOB BARKER.

¶129The plaintiff further proved by Joseph Thebaud, of New-York, the plaintiff’s agent, that in the beginning of October, 1807, he received from the plaintiff the following account, dated 1st September, 1807, at New-' Orleans, which he showed to the defendant, and demanded payment of the same, which was refused by the defendant:

¶130*132Dr. Mr. Jacob Barker of New-York, for account of Messrs. John Taber and Son, of Portland, in acct: current with Paul Lanusse. . Cr.

¶1311807.

¶132April 13. To amount of 500 bales of cotton as per invoice; $33,098 31

¶13334. Disbursements of ship Mac, as per account 5943 69

¶134My commissions on freight procured for. the Mac, $597460 a 5 per cent. 298 73

¶135Do. on demurrage collected $5,150 a 2 1-2 per cent, 128 75

¶136My drafts of March 20 on John Taber & Son, favour of Tho. Elmes, $5000 00 do 5000 00 Damages paid, 1Ó per cent. 1000 00 -11000 00 $5046948

¶137To balance per cont. 12251 28

¶138Errors excepted. |

¶1391807.

¶140Jan. 23. By my draft fav.Brasier. - $1800 00 do Stephed Uttpharie, 1100 00 ■do Delarie & Canut, 607 25 do Jos. Thebaud, 1370 00

¶141Feb, 6.. do J. B. St egg, 301 00 12. do Samuel Lord, 573 00 15. do.R. Labarte, 600 00

¶142Mar. 3.' do ThomasEImes, 5000 00 do do 5000 00 10. do Francis Depau,6O0O 00> ’ do J. Paul Poutz. 691 60 20. do Thomas Elmes, 5000 OO do do 5000 OH ■ Demurrage ship Mac, commencing5th June, to the 16th Sept, being 103 days, at $50 per day. 515000

¶143May 2. 1 junk cable from ship Mac, 26 24-Balance due Paul La. nusse, 12251 28

¶144$50469. *18

¶145New-Orloans, 1st September, 1808. (Singed) PAUL LANUSSE.

¶146The plaintiff further proved, that in the suit first above mentioned, which had been depending, between him and the defendant in the supreme court of the state of New-York, the plaintiff suffered a nonsuit,, tm the nineteenth of December, 1808, after the judge had charged the jury in favour of the defendant. And the plaintiff further proved, that he dici, on the 30th of January, 1809, draw two new sets of bills upon the defendant, which were produced and read in evidence by the plaintiff’s counsel, and .ate in the words an'ci figures following:

¶147*133New-Orleans r 30th January, 1809.

¶148Exchange for. dolls. 10055 35 cents.

¶149Sixty days aftér sight of this-my second of exchange,(first and third of same tenor and date not paid) pay to -Mr. Jos. Theband, or order, ten thousand and fifty-five dollars,- thirty-five ;‘cents, value received, -which place to the account of

¶150PAUL. LANUSSE.

¶151To Mr.-Jacob Barker, Merchant, New-York.

¶152New-Orleans', 30th January, 1809.

¶153Exchange for dolls. 2195 93 -1-2 cents.

¶154Sixty days after sight of this my second of exchange, (first and-third' of same tenor and date not paid) pay to Mr, Jos. Thebaud, or order, two thousand one hundred and ninety-five dollars, ninety-three and a half cents, value received, which place to account of

¶155PAUL LANUSSE.

¶156To Mr. Jacob Barker, Merchant, New-York.

¶157That the said bills were protested- for non-acceptance on- the 11th of March, 1809, and for non-payment on the 13th May, 1809. The notary also (proved, that at the time of presenting the said bills, he oifered to the defendant the account and letters herein next stated, which the defendant refused to accept, and desired the notary to take them away, who refused, and threw them on ’ his, the defendant’s counter. The bills were accompanied with a letter of advice, mentioning that the first bill was for the ' balance due for the purchase of the 500 bales of cotton, and the other for- disbursements of the ship *134Mac, and! 1500 dollars damages paid on the two drafts of 5000 each on Taber & Son,' returned protested for non-payment.

¶158The plaintiff further proved, that all the bills of exchange drawn by plaintiff on the defendant, and contained in the above account, amounting to 23,042 dollars 96 cents had been paid by the defendant after the same had been protested for non-payment, excepting the last mentioned bills for 5,000 dollars each, drawn in favour of Thomas Elmes, and forwarded as aforesaid to Corp, Ellis & Shaw. It was also admitted., that the plaintiff had received no part of the freight of the Mac’s cargo, although it is mentioned in a letter of his, that' he had received the freight or1 a part -of it.

¶159The plaintiff then proved, that the ordinary interest of money in New-Orleans was f;eh per cent, per annum, and the. lawful interest in New-York was seven per cent.

¶160The plaintiff having made the proofs on his part, hepe rested his cause. Whereupon, the. defendant then produced in evidence the following account, forwarded to him by the plaintiff, in his letter of the 20th of May, 1307.

¶161*135t>r. Messrs. J. Taber & Son, in Portland, in account current with Paul Lanusse Cr.

¶1621807.

¶163April 13. To amount of 500 - bales of cotton as invoice, $33,098 31

¶16424. Disbursement of ship Mae, as per account, 5943 69 1-2,

¶165My commission on freight procured for ihe Mae, $5,974 S3 a 5 per cent 298 73

¶166Do. on ■ demurrage collected, $5,150 a 2 1-2 pdr cent. 128 75

¶16739,469 48 1-2

¶168April 24. To balance per contra due mci 1276 421-2 Errors and omissions 6xcepted.

¶1691807.

¶170Jan. 22 By my draft fav.

¶171Brasier, 1800 do'. Stepn.Zachario,1100 do. Delaire & Canut,607 25 do Joseph THebaitd,1370

¶172Feb. 6. do Jacob D. Stagg. 30121 12. do Samuel Lord, 573' 16. do Labarte, 600

¶173Mar, 3. do Thomas Elmes, 5000 do do . . 5000 do Francis Depau, 6000 do J. Paul Poutz, 691

¶17420 do Thomas Elmes, 5000 do . do 5000

¶175Demurrage of ship Mac, commencing 5th of • June to 16th Sept, be-103 a 5150

¶176April 24 Bal. due me, 1276 521-2

¶17739,469,48 1-2

¶178New-Orleans, April 24,1807.

¶179____(Signed) ' PAUL LANÚSSE.

¶180Dr. Messrs. J. Taber Sf Son, of Portland, in account with P. Lanusse. Cr

¶1811807.

¶182April 24. To balance per ■contra, $1276 521-2

¶1831276 52 1-2

¶1841807.

¶185May 20. To balance due mje. 1251 28 1-2

¶1861807.

¶187Mav 2. By 1 junk cable, 25 24 '20. balance, 1251281-

¶1881726,52 148

¶189E. & O.E. ‘

¶190New-Orleans, May.20th, 1807.

¶191(Signed) Por Paul Lanusse, P. & H. AMELUNG.

¶192The defendant then proved, by (Jabriel Shaw, of the house of Corp, Ellis & Shaw, of New-York, that the two bills of exchange drawn by Paul Lanusse on John Taber & Son, dated the 20th of March, 1807, were received by Corp, Ellis & Shaw, from Thomas Elmes of New-Orleans, in whose favour they -were drawn, about the 27th or 25th day of April in the same year, and were immediately forwarded by him to John *136Taber & Son, of Portland, for acceptance; that they were protested on the 30th of the same month at Port - land, for non-acceptance, and were received by the witness with the protests about the 5th or 6th of May, about which day, and after the receipt of the said bills, he either met the defendant in the street, or called .at his house, but which he cannot .recollect, and showed him, he believed, the said bills and .protest, having understood .the said defendant had, in some way,- some concern in the business. That the said hills at maturity were protested in New-York, for non-payment,.and were afterwards remitted, to the said Thomas Elmes at New-Orleans. From the. protest it appeared that the two bills of $5,000 each, were pro-tested for' non-payment on the 2d day of July,' 1807, in Ngw_York, and that the limited time mentioned in the said bills with the days'of grace, were then expired, since the bills ’rere protested for non-acceptance in Portland.'

¶193The defendant then rested his cause j upon which the plaintiff claimed a verdict for the sum of $17,908' 02, if the court and jury were of opinion that interest was allowable at the rate of ten per cent.; but if they were of opinion that interest at the rate of seven per cent, only was allowable,' tben'the plaintiff claimed a Verdict for the sum of- $15,910 94; and the. plaintiff exhibited' the following statement, showing the manner in which the said several sums were calculated, viz.

¶1941st. 1807.

¶195' April 13. To amount of 500 bales of cotton, as per invoice, $33,09831 24. To disbursementsforship, with com. at 5 per cent. 5,943 SO . To commissions on freight, $5974 '60, at 5 per cent. _ 298 73 To do on demurrage collected, $5150, at 21-2 per cent 128.75 ' 39,469 39

¶196*137Cr.

¶197fey bills paid, .... $23,042 96

¶198fey demurrage received, . .• . 5,150 00

¶199By one junk cable', . . . 25 24

¶20028,218 20

¶201$11,251 19

¶202To interest on $11,251 Í9, from 13th of May, 1809, (protest of nenr bilis,) to the 13th of April, 1815, (day of verdict,) at 10 per cent., 5 year's 11 months, 6656 83

¶20317908 02

¶204Sd. To ahiount of damages as above, 11,251 19

¶205To interest on the above aum of $11,25119, for the same period, at 7 per cent. 4,659 75

¶206$15910 94

¶207The plaintiff then prayed the judge of the' circuit Court to charge and deliver his opinion to the jury* that the plaintiff was entitled to the aforesaid sum of 17,908 dollars and 2 cents if the interest was to- be calculated at the rate of 10 per cent, or to the sum of 15,910 dollars and 94 cents, if the interest was to he calculated at the rate- of seven per’ cent. The defendant insisted .that the plaintiff was not entitled to any damages; and the judge so charged the jury,, fro forma. A verdict was thereupon taken for the defendant, and a hill of exceptions tendered. An agreement was entered feto by the counsel for both parties, that the cause should he carried to the supreme court by wrt of error, and that if the supreme eo’urt should be of opinion that the plaintiff was entitled to a judgment for the principal sum of 11,251 dollars and 19 cents with interest, at the rate of 10 per cent., then the judgment should be rendered for. the sum of 17,908 dollar's and 2 cents, with costs. Or if the court should be of opinion that he was entitled to interest at the .rate of seven per cent, only'that judgment should be rendered for the sum of *13815,910 dollars and 94 cents -with costs: or if the couri should be of opinion that any other, sum different from either of the above sums, is recoverable-by the plainJ tiff, that judgment should' be rendered' for such other sum as the court might'direct. But if it should be of opinion that the plaintiff is not entitled to recover any-damages, .then the judgment for the defendant should be affirmed.

¶208•Mr. Pendleton, for the plaintiff,

¶209argued,-that -the defendant was liable, both- for the bills drawn by the plaintiff on Taber & Son, and, also, for the bills drawn in January, 1809, on the defendant. That the original undertaking of the defendant'was a guaranty .that all bills drawn by the plaintiff, on account of the ship Mac, should be paid whether drawn on the defendant or Q.n Taber & Son. The learned Counsel entered into a critical analysis of the opinion of the supreme court of the state of New-York in this cause,a and contended that the rules for construing contracts extend to all parties alike, wheth.er sureties or principals: That they must be construed according' to the intention of the parties,not according to the mere literal meaning of the words. If these are ambiguous, the intention must be ascertained by the context, by contemporaneous declarations, writings, and transactions, and, above all, by the purposes and objects to be a-nsw’ered. This principle is applicable to the undertaking of a surety.b It is by no means a - w.ell established rule that the *139contract of a surety is to be construed more favourably than that of the principal.a The law knows no favourites. The obligation of the surety is the inducement for the creditor to trust the principal, with whose affairs and circumstances the surety.is presumed tobe best acquainted.- Formerly, nothing could discharge this liability at law, but performance, if the creditor had discharged the principal, or extended the time of payment by. a new contract with the principal, without the surety’s conserit, the surety had no remedy. In later times, the courts of law.have interposed to protect the surety; but there is much contrariety in the numerous cases that, have been decided, upon the question ufhat transactions between the creditor and the principal shall discharge the surety. There "is no doubt that an absolute discharge of the principal will discharge the .surety also. But it is contended that-no new contract or transaction between the' creditor and principal shall •discharge the surety, unless it deprive him of the right he always possesses of placing himself in the creditor’s situation by paying the debt according to the' original contract, and thus getting ' into his own hands the means of securing himself. This principle "is founded on the nature of the contract of suretyship, and is sup ported by the authorities, except one or two cases, which it will be difficult to reconcile-with principle.b All the cases decided in England in favóur of sureties have been where the creditor has taken away this right by discharging the principal, or bv giving him a pew *140extended credit.a Mere delay and want of notice have been uniformly held insufficient to discharge a surety.b But even if the law were otherwise, there has been no unnecessary delay or want of. notice in the present case.

¶210The ¿attorney General, and Mr. Jones, contra,

¶211contended, that the defendant was to be considered in the character of a surety merely; that this was evinced by every part of the correspondence; and that consequently he was bound only according to the literal terms of.his contract. That by the- well established doctrine of law and-equity, a different rule was to be applied, in the construction of the contract of the surety, from that which was applicable to the contract of the principal. In regard to the principal, a liberal interpretation is to be indulged, to peach the substance and equity of the contract; whilst the undertaking of the surety is to be limited.to its precise terms. The reasons of this •distinction are, that there is a valuable consideration moving from the.creditor, which ereates an equitable obligation,on-the part o'f the principal, independent of the express contract, whilst, in respect to the surety, there is nothing but his express promise, acceding to that of the *141■ptincipa'I debtoV. Another reason is one oflegal policy, to encourage suretyships for the benefit, of commerce,'and the extension of credit, and at the same time to protect. the sureties by every means consistent with morality, All the cases at law are consonant with ■ this distinction.a The aid of the courts of equity has been invoked in vain to effect a more enlarged construction of the undertaking of sureties.b Besidesr whatever was the undertaking of the defendant in the present case, the plaintiff considered the order contained in the letter of the 9th of January as completely abrogated by the letter of the. 13th of February, after which date the principals step in, and the plaintiff acts under their' orders, and corresponds with them only. By the last mentioned letter, the defendant .promises to answer bills drawn on himself only, which was a new- undertaking, on his part, under which he could not' be liable for bills drawn on Taber & Son. Nor did the plaintiff give the defendant any notice of those bills béing drawn, which omission would alone be sufficient to discharge him from his liability.

¶212Mr; D. B. Ogden, in reply-, insisted,

¶213that though the surety could not be made responsible beyond the tenor of his engagement, he could not be discharged by im*142plication, still less by studied ambiguity of language and artifice of conduct. That the great fundamental prin'ciple, in the interpretation of contracts, is to carry into effect the intention of the parties, and that this principle was peculiarly applicable to commercial contracts. That where there is a doubt -arising from' the ambiguity of expressions, the acts of the parties may be resorted to as supplementary evidence of their, intention. That even supposing their had .been <i revocation, or modification of the original contract, on the part of the defendant, he is still liable under his sub. sequent-undertaking. No casé can be found, where a mere attempt to recover of the principal will discharge the surety. All the authorities' are the other way. The drawing the bills on Taber & Son was not a waiv-' er of the defendant’s liability. Nor was any notice to the defendant necessary, any more than on a bill of ■exchange, where the want of funds in the drawee’s hands dispenses with the necessity of notice.' So, in this-case, the defendant having no funds in the hands of Taber & Son, notice to him would not have enabled him to get into his own hands- the means of securing himself.