5 Rawle 18

Yard v. Cramond

Decided January 12, 1835

Supreme Court of Pennsylvania · decided 1835-01-12

Error to the District Court for the City and County of Philadelphia. ’ The defendant in error, William Cramond, who survived Godfrey Haga and Charles G. Paleske, who, together with hitnself, were assignees of Eric Lewis Bollman, bankrupts, brought this action against James Yard, the plaintiff in error, for money had and received by the defendant below, to the úse of the plaintiff below, under the following circumstances. Eric & Lewis Bollman, who were Hanoverians by birth, came to this country in the year 1796, and entered into business as merchants, in the spring of 1797. Eric Bollman married in Philadelphia, in which city and New York he was domiciled until the year 1814, when he went to Europe, and never afterwards returned to the United States. On the 11th of October, 1802, he was regularly naturalized as a citizen of the United States. Lewis Bollman married in Pittsburg, and was domiciled in the United States, until his death, which occurred a few years ago. He also was regularly naturalized as a citizen of the United States, on the 11th of October, 1802. On the 8th of March, 1803, they were both declared bankrupts, and received their'certificate of conformity on the 9th of June of the same year. On the 22d of February 1819, a treaty of amity, settlement and limits, was negotiated between the United States of America, and the King of Spain, which was finally ratified and promulgated on the 22d of February, 1821. 6th Laws of U. S. 620. By the second article of this treaty, his catholic majesty ceded to the United States East and West Florida, in consideration of the sum of five millions of dollars, to be applied in the manner directed by the eleventh article of the treaty. By the ninth article, the high contracting parties make to each other mutual renunciations. The renunciations of the United States extend, among other things, (in the fourth section) “ to all claims of citizens of the United States upon Spain, arising from unlawful captures or seizures at sea, and in the ports and territories of Spain or the Spanish Colonies.” In the fifth section they extend to all claims of citizens of the United States,’ upon the Spanish Government, statements of which soliciting the interposition of the government of the United States have been presented to the department of state, or to the minister of the United States in Spain, since the convention of 1802, and until the signature of that treaty. The eleventh article is as follows, viz: “ The United States, exonerating Spain from all demands in future, on account of the claims of their citizens, to which the renunciations herein contained extend, and considering them entirely cancelled, undertake to make satisfaction for the same, to an amount not exceeding five millions of, dollars. To ascertain the full amount and validity of these claims, a commission, to consist of three commissioners, citizens of the United States, shall be appointed by the President, by and with the advice and consent of the Senate, which commissioners shall meet at the city of Washington, and within the space of three years from the time of their first meeting, shall receive, examine and decide upon, the amount and validity of all the claims included within the descriptions above-mentioned. The said commissioners shall take an oath or affirmation, to be entered on the record of their proceedings, for the faithful and diligent discharge of their duties; and in case of the death, sickness, or necessary absence of any such commissioner, his place may be supplied by the appointment as aforesaid, or by the President of the United States, during the recess of the Senate, of another commissioner, in his stead. The said commissioners shall be authorised to hear and examine on oath every question relative to the said claims, and to receive all suitable authentic testimony concerning the same. And the Spanish government shall furnish all such documents and elucidations as may be in their possession, for the adjustment of the said claims, according to the principles of justice, the law of nations, and the stipulations of the treaty between the two parties of 27th October, 1795: the said documents to be specified, when demanded, at the instance of the said commissioners. “ The payment of such claims as may be admitted and adjusted by the said commissioners, or the major part of them, to an amount not exceeding five millions of dollars, shall be made by the United States, either immediately at their treasury, or by the creation of stock bearing an interest of six per cent, per annum, payable from the proceeds of the sales of public lands within the territories hereby ceded to the United States, or in such other manner as the Congress of the United States may prescribe by law. “The records of the proceedings of the said commissioners, together with the vouchers and documents produced before them, relative to the claims to be adjusted and decided upon by them, shall, after the close of their transactions, be deposited in the department of state of the United States; and copies of them, or any part of them, shall be furnished to the Spanish Government, if required, at the demand of the Spanish minister in the United States.” Under the provisions of the article above recited, commissioners were duly appointed to' carry it into effect. On the 28th February, 1822, Godfrey Haga and William Cramond, assignees of Eric and Lewis Bollman, together with several other persons, gave to Jamás Yard a power of attorney authorising him to appear before the commissioners and prosecute their claim as owners of the cargo of the brig Dolly, Thomas Webb, master, formerly belonging to the port of Philadelphia, For the capture and loss of said cargo, and generally to do whatever might be necessary to effect a recovery of their claim. On the 1st of March, 1822, Mr. Yard, in pursuance of this power of attorney, and a similar one from certain claimants on account of the capture of the ship Asia, presented to the board a memorial, in which among other things he set forth, that he was the agent of his own assignees and of all the other persons originally interested in the transaction thereinafter stated, or of those who represented or claimed under such persons, of all of whom a table was annexed shewing the place of their nativity, the time of their naturalization, when abroad, their residence at the time of the transaction aforesaid, and the character of the claim on the part of each, and whether such claim was original or derivative: That in the year 1799, Don J. Demas y. Valle, President or Governor of the Spanish Province of Guatemala, granted sundry licenses to a distinguished merchant of the city of Guatemala, Don Juan Bh. Yrissary, for the importation from foreign ports, especially from the United States, of all lawful merchandize; to render which licenses available he gave passports to jDon Alexander Ramirez and Don Juan Echevria, agents of Yrissary, to proceed to foreign ports. • They came to Philadelphia and addressed themselves to the memorialist, who together with certain persons who becameasso ciated with him, was induced to make the experiment of carrying one of the licenses into effect. The success of this enterprize induced the memorialist and his associates to enter more extensively into the business. The agents above mentioned stated that if vessels should proceed to ports of Guatemala in the Pacific, they might, on their outward voyages .touch and trade at the ports of Chili and Peru before they arrived at Guatemala, which was represented as a great advantage. Adopting this plan, the memorialist and his associates, sent two vessels, the ship Asia and brig Dolly,’ both the property of the memorialist, with cargoes to the Pacific. . Yrissary, sent an agent from Caxidé to Lima to act as consignee of any vessels which might touch at Peru. The cargoes of both these vessels were furnished by the' memorialist and several other merchants of Philadelphia who made him their sole agent, and who shipped their goods in his name. The Asia sailed from Philadelphia in October, 1800, for Sonsonati in the Province of Guatemala, with orders to touch at Lima. The Dolly sailed soon after with orders to touch at Valparaiso in Chili. The Asia, wiihout touching at any intermediate port arrived at Callao de Lima about the end of January, 1801, and the Dolly after touching at Valparaiso, also ar l rived at Callao in June, 1801. When they, arrived, the power of the President of Guatemala to grant licenses so broad as those under which they sailed, was denied by the Government of Peru. Both vessels were therefore arrested, their cargoes seized and sold under instructions from government, and the proceeds deposited in the Royal Treasury, but the vessels; after being allowed a small sum on account of freight, were .permitted to depart with cargoes, principally on. Spanish account, one for Cadiz, and the other for Philadelphia. Though the decrees of the Government required the proceeds of the cargoes to be deposited in the Royal Treasury, yet they were so modified as to admit of their passing through the hands of Yrissary’s agents, who were permitted to take possession of them on giving bond to place in the Treasury ■ the amount of their appraised value. In this state of things it was determined by the associates of the memorialist that he should go to Spain to petition the King for relief. In 1802 he proceeded to Madrid, and in his own name solicited from the throne, restoration of the property sequestered in Lima. Yrissary had an agent in Madrid at the same time, urging the delivery of the property to him. After a protracted period, a royal order for its restoration was granted, but it was so qualified as to give a preference to neither party, and yet to afford a show of justice to both. This royal order was dated August 29th, 1803, and was addressed to the President of Guatemala, apprising him of the removal of the sequestration and instructing him to pay to the memorialist and to Mr. Forbes, of Jamaica, the balance due to them from Yrissary, and to the latter such balance as might after-wards remain in the treasury. Although the royal order had the force of a law, yet great difficulties arose in ascertaining the amount to be received by the memorialist, and he returned to the United States in order to fix that amount. It was determined by those concerned that the memorialist should prosecute the business in the manner he thought best, and to him it appeared that there'was but one course to be pursued, which was to effect a settlement with Yrissary at Guatemala’, and to demana payment of the President of that province agreeably to the royal order. The difficulties attending this course were almost insurmountable. Strangers are generally ex-eluded from Spanish ports in time of peace, and even if admitted into the sea porls permission cannot be obtained on any terms to penetrate into the interior. The city of Guatemala, the capital of the province, is situated nearly midway between the Atlantic and Pacific oceans. Its port of entry on the Atlantic is Omoa in the Gulf of Honduras, one of the most pestiferous regions of the globe. To that place therefore no person could go from the United States. A vessel was sent to Omoa with a view to open a communication with Yrissary, but he detained her so long, that the officers and crew all perished, when he sold the vessel and appropriated the, proceeds to his own use. For these reasons, the business was prosecuted languidly and all active measures were suspended. Some time in the year 1807, a letter was received by the memorialist, dated Guatemala, September, 3d 1806, signed by the executor of Yrissary, informing him of the death of that gentleman on the 5th of May, 1805, and enclosing an account-current which exhibited a balance in favour of the memorialist of two hundred and thirty-nine thousand one hundred and ninety-nine dollars and one and a quarter rials; but it also advised that an attachment had been laid in Lima, on one hundred and eighty thousand dollars of the funds deposited there by three persons, who had freighted the Dolly, on the ground that she had gone to London instead of Cadiz. The letter also contained an offer to pay the memorialist the balance of fifty-nine thousand one hundred and ninety-seven dollars and one and a quarter rials, provided he would receive it in cocoa at a stipulated price, and would send a vessel to a small port adjacent to Omoa to receive it. A great number of proofs and documents were , prepared by the memorialist, as well in reference to the attachment in Lima as to the contested amount in Guatemala. The documents for Lima, together with a power of attorney to Don Juan B. Oyazzabal, were sent out which ultimately reached their destination. The documents for Guatemala, together with a power of attorney, were sent to the Marquis of Ayzinina, and re iched him in due time. A letter from Oya-zabil, dated Lima, November 20th, 1809, informed the memorialist of the removal of the attachment, and one from the Marquis of Ayzinina, dated August 10th, 1809, stated that the dispute with the executors oí Yri-sary had been referred to the Jueces Arbitrios. Another letter from the same person, dated December 18th‘, 1813, info med the memorialist that he had obtained judgment and was accompanied by a copy of the proceedings in the case. The estate of Yrissary was declared bankrupt and surrendered to his creditors. In December, 1814, the Marquis of Ayzinina died, and his affairs came into the hands of his brother Juan Fermín de Ayzinina, who wrote two letters to the memorialist, one dated the 18th of July, and the other the 3d of September, 1818. In the first, he announces the removal of all difficulty as to the receipt of the money in the Treasury at Lima, about two hundred and two thousand dollars, and offers, when in possession of it, to remit the amount in indigo. In the second, he advises of having a decree for the amount of the funds in the Treasury at Guatemala, which had been transferred from that of Lima by order of the President of Guatemala. Thus, in September, 1818, such progress had been made in the business, that it only remained to receive the official order of the President of Guatemala for the payment of the money. At this critical moment, notice of the invasion'of Florida and capture of St. Augustine, was received at Guatemala. The agent then suggested to the memorialist certain measures to be taken for the security of the property, which however, were rendered unnecessary by the treaty with Spain, under which the claim was made. The amount of the claims for the two vessels could not be exactly ascertained, but might be estimated at about three hundred thousand dollars. The memorial then stated that the cargo of the Asia was divided into twenty-two shares, and held in the following proportions, viz.: Joshua Sutcliffe, Samuel Gatcliffe, John Ashly, Martin Walker, Simon Walker, James Yard. 4 Shares. 4 1 “ 1 rj it 5 “ That the cargo of the Dolly was divided into one hundred and twenty shares, and held in the following proportions, viz.: Wm. Read Co. Samuel Mifflin, E. & L. Bollman, - James Yard. 40 Shares. 24 “ 15 “ 41 « 120 It then stated the facts connected with the national character, residence, &c. of the different parties interested in the cargoes of the two vessels, of which it is necessary to give the following only : “ Martin Walker came to the United States in 1795; his domicil was in Philadelphia until 1803, when he returned to England— was again in the United States in 1811, 1815 and 1819, and since the latter period has resided in Philadelphia. In 1802, he married a neice of Samuel Griffin, of Williamsburg, Virginia, and is now a citizen of the United States. “ Simon Walker came to the United States in 1794; was married in Philadelphia to Miss Ashly, now resident in Philadelphia with her children: made an assignment in 1802 to John Perot, James Taylor and John Ashly, for the benefit of his creditors: went to England in 1803, and has since resided there.” “ Eric Bollman is a native of Hanover in Germany: came to Philadelphia in 1796, and was domiciled there and in New York until the year 1814, when he went to Europe, and was lately in Sánta Fe de Bogota: married in Philadelphia the daughter of Mr. John Nixon: was naturalized in 1802.” “ Lewis Bollman, brother of Eric, came to the United States in 1796 : was naturalized in 1802: was married at Pittsburg, and died there a few years ago.” The memorial, of which the above is an abstract, was presented to the Board of Commissioners, andón the 15thof June, 1822, rejected. On the 21st of October, 1822, a supplemental memorial, to remedy the defects of that originally presented, was received by the Board. In this paper Mr. Yard met the objections toNis first memorial, in the following manner: In reference to the first objection, viz.: the illegality of the vessels going to Lima, he said, that' although he understood .the Board had waived this objection in relation to another Lima case, yet he would state, that in this respect, this case differed from all others. The documents for these vessels were prepared for the ports of Guatemala only; but they had a right to call at any Spanish port on their way. By the Spanish laws of Escala, however, they were not permitted to self their cargoes unless invited to do so by the local authorities. It was the intention of the shippers by both vessels to do so if permitted. The Dolly touched at Valparaiso and took in refreshments without interruption; but not being permitted to sell her cargo, proceeded to Lima, where she, as well as the Asia, was detained by the government, not for any irregularity in proceeding to that port, but on the ground of incompetency of the President of Guatemala, to grant the license under which the voyage was undertaken. In reference to the second objection, which was, that the original memorial did not clearly state that the funds were paid into the Royal Treasury, he averred, after recapitulating some of his former statements that the funds were actually paid into the Royal Treasury. The thii'd objection was, that the claim seemed to be against an individual and not against the Spanish government. This he answered by stating that the claim was upon the government and not upon Yrissary, who was only entitled to what remained after satisfying the claims of the memorialist, Mr. Forbes, and others. It was necessary, however, to settle the account with Yrissary, in order to ascertain the amount due to the memorialist. In relation to the fourth objection, viz: That if the funds had been placed in the Royal Treasury, the memorialist had not sought to obtain them from that source in due time, he stated the following reasons for the delay which took pla.ce: 1st. His absence from Spain at the time the Royal order was issued. 2d. His inability to appear either in person or otherwise, at Guatemala, as stated in his original memorial and other causes, and the consequent impracticability of his coming in contact with Yrissary. 3d. The determination of Yrissary and his executors to protract the final settlement of his account as stated in the original memorial. 4th. A royal order to suspend the payment of all deposited funds, in consequence of Miranda’s expedition, &c. 5th. The refusal of the King to permit the memorialist’s case to be arbitrated in the Havanna, as he prayed, so that he might have attended to it in person: and 6th. The necessity of engaging in a law suit in a foreign and insulated country to which he could have no access, and. which is proverbial for the interminable character of its law proceedings. The memorialist then went at length into facts and reasonings to show why the> claim was not and could not have been paid in indigo, as mentioned in the original 'memorial. He also stated, that in saying in his original memorial that in. September 1818, “ such progress had been made in the recovery of the amount adjudged to him, that it only remained to receive the official order of the President of Guatemala for the amount thereof,” he relied on the representations of his agent, Ayzinina, who was mistaken as to the ability of the Treasury of Lima to discharge the demand of two hundred and two thousand dollars, for which he.was to receive the order of the President of Guatemala. He stated a variety of circumstances to show tha't the offer to pay the admitted balance of fifty-nine thous- and dollars in cocoa, was fallacious and merely part of a scheme of fraud. The memorialist added, that he had an interest in these claims arising out of certain agreements between the parties in interest and himself.for services to be rendered by him, and concluded with the following averments, viz:— 1. That his. claim was presented to the Government, soliciting its interposition, before the signature of the treaty with Spain. 2. That the detention of the vessels, and the sequestration of the cargoes at Lima, were illegal. 3. That the funds proceeding from the sale of the cargoes, were deposited in the Royal Treasury at Lima. 4. That he was not bound to look to Yrissary for the payment of his demand, but to the Royal Treasury.' 5. That there was no want of diligence in taking the proper measures to enable him to make the demand on the Treasury. A commission having issued to the City of Washington for the purpose of taking testimony, several depositions and various documents were returned by the commissioners; among others, were the following extracts from the record of the proceedings of the commissioners under the Florida Treaty,-viz.— “No. 1631. Supt. to 1150. James Yard, for himself and others. “ Ship Asia and Brig Dolly.” “Tuesday 29th July, 1823.” “ Upon examination of the testimony filed in support of this claim, the Board are of opinion, that it be allowed as valid for their proportion of the nett proceeds of the cargoes of these vessels, deposited in the Royal Treasury at Lima; from which must be deducted' such sums as are claimed for those who are not citizens of the United States; and also any sum which is claimed under any person who was not such citizen at the time of the loss.” “ Monday, 16th February, 1824.” “ Ship Asia, Peterson. ) “ Brig Dolly. j “ The Board having heretofore received, examined and allowed this claim as valid, this day proceeded to ascertain the amount thereof, and do award to the claimants the sum of one hundred and thirty-six thousand and two hundred and sixty-five dollars, in full for the loss sustained in the arrest of these vessels at Callao, by order of the Spanish authorities, and the sale of their cargos in 1801, which sum is to be paid to James Yard for himself (No. 1631/) and others. $136,265 96.” On the 19th of June 1824, a draft on the Treasury of the United States issued in favour of James Yard for himself and others, for one hundred and twenty-two thousand and nine hundred sixty-five dollars, seventy-two cents, which contained the following statement : “ Amount of award, $124,910 46 Deduct as per statement, 1,944 74 122,965 72 On the draft was indorsed a receipt bearing the same date with that of the draft by James Yard, for its amount. On the 19th of July 1824, a second draft issued from the Treasury in favour of James Yard, for himself and others, for one thousand four hundred and eighty-six dollars, forty cents, which contained the following statement: “ Amount of award, • $124,910 46 Wt. No. 489. 19 June 1824, for $122,965 72 Wt. No. 1133. 19, July -“ 1,486 40 124,452 12 Suspended $458 34 A statement dated April 27th, 1826, and signed by James Yard, was given in evidence by the plaintiff below, to whom it was furnished by James Yard, showing the proportions to which the different owners of the cargo of the Brig Dolly were respectively entitled, of the amount awarded to them, on the supposition that E. dp L. Bollman were entitled to participate in the benefit of the award, subject to charges, &c. The proportion of E. SpL. Bollman was stated to be seven thousand three hundred and thirty-six dollars eleven, cents. Mr. Yard did not resist the claim of the plaintiff, except so far as his commissions were concerned; but defence was taken in his name by the other shippers on board the Dolly, (with the exception of those representing the claims of Messrs. Simon &p Marlin Walker, which were supposed to be obnoxious to the same objection as that of the plainfiff) on the ground that the Messrs. Bollman were not citizens of the United States within the meaning of the treaty, and were consequently excluded from the benefit of the award. On the trial of the cause the counsel of the plaintiff below, having offered in evidence the testimony taken under the commission to Washington, the counsel for the defendants objected to the report of Joseph Forrest, one of the documents returned, and the answer to the second interrogatory. On the objection being made, the evidence was withdrawn for the time by the counsel for the plaintiff. But after having examined several witnesses to prove the domicil and commercial residence,of the Messrs. Bollman, and several other matters, which it is unnecessary to state, and after having read in evidence a certificate of the clerk of the District Court of the United States for the Eastern District of Pennsylvania, showing that E. dp L. Bollman declared their intention to become citizens of the United States on the 13th July, 1798, and were naturalized on the 11th October, 1802; they again offered the evidence which they had 'before offered and withdrawn. It was objected to again by the defendants’ counsel, but his Honour admitted “ the written documents tending to show that the commissioners in the cases of the Lenox and Molly did adjudge J. E. Bollman & L. Bollman to have been within the meaning of the Florida Treaty, citizens of the United States before 'they were actually naturalized.” To this opinion of the Judge exception was taken by the counsel of the defendants below. The evidence admitted by1 the Court was extracted from the record of the proceedings of the commissioners under the treaty with Spain, and was as follows— “ Ship Lenox, Green, Master, I No. 616. Ins. of North America, > No. 870. Samuel Mifflin, agent for underwriters. ) Claimants. “ This vessel, the property of John Steinmoss, Jr. of Philadelphia, a citizen of the United States, laden with a cargo,’ the property of John Leamy ,of Philadelphia, Embeck Henchorff of Hamburg, and Eric 'Lewis Bollman of Philadelphia, sailed from the port of Philadelphia on the day of 1799, on a voyage, bound to Cadiz, St. Lucar or Gibraltar. In the prosecution of this voyage, she was captured by a British armed vessel and detained near Gibraltar on the 1st August, 1799. On the fourth day after, she was released by the captors, who put a Portuguese lad on board as passenger. The ship Lenox then proceeded for Cadiz, and while on her passage was, on 6th Aug. 1799, captured near Cape Spartel by the French privateer L’Eole, Armynat, mastej, carried into the port of St. Lucar in Spain, and condemned by a French consular court, &c. “ The vessel, freight and cargo were insured on this voyage by the Ins. Company of North America and sundry underwriters in the office of Shoemaker ¡Sp Bennett of Philadelphia, for whom Samuel Mifflin, the claimant, is agent, who paid the sums by them insured, to the assured, as an average loss on the cargo and total on the vessel.”. , * “ Report of case by Joseph Forrest, clerk.” “ Proceedings of the Board, “ Saturday, 5th April, 1823, (Lenox, Green.) “616. Ins. Co. of North America.” “Upon examination of the testimony in support of this claim, the Board are of opinion, that it be allowed as valid for the sums insured, and paid upon the vessel, upon the freight and upon Leamy’s shipment of goods, and also for the proportion "of expenses which fell due upon the vessel, upon the freight and upon the said shipment; from which must be deducted the proper. proportion of the sum received of the widow of Maurice Roberts 8p Co.” “ 870, Samuel Mifflin, as agent, (same vessel.) “ Allowed as a valid claim for the sums insured and paid by the underwriters, Provided, the Board should hereafter be of opinion that ,the Bollmans were citizens of the United States within the meaning of the treaty, at the time of the loss of this vessel and cargo.” “ Thursday, Feb’y 12th, 1824,” “ Proceedings of the Board.” “ Ship Lenox, Green.” “ The Board having heretofore received, examined and allowed this claim as valid, this day proceeded to ascertain the amoun thereof, and do award to the claimants the sum of seventeen thousand and ninety-five dollars, sixty-six cents, in full for the lóss sustained in the capture of this vessel by the French privateer, L’Eole, Armynat, master, carrying her into the port of St. Lucar, and having her and her cargo condemned by a French consul in 1799, which sum is to be divided as follows, viz.” No. 616. To Ins. Co. of N. Am., $9,245 66 870. Samuel Mifflin, as agent, 7,850 00 17,095 66 Estimated by the Board:— Value of the vessel, - $8,000 Freight,.....4,000 Leamy’s cargo, ■ - - - 1,500 Bollmans’ cargo, ... 7,850 21,350 00 Deduct sum received, - 4,556 18 -16,793 82 Expenses, 301 84 $ 17,095 66 In the case of the ship Molly, Flinn, master, it appeared from the evidence, taken under the commission to Washington, that on the 26th February, 1823, the Board allowed the claims for losses in this case; but their record declared, that from this allowance was to be deducted “ the value of that part of the cargo owned by the Bollmans, should the Board be finally of opinion that they were not citizens of the United States within the meaning of the treaty.” On the 6 th of February, 1824, the Board proceeded as follows: “ Molly, Flinn:— “ The Board having heretofore examined ánd allowed this claim as valid, this day proceeded to ascertain the amount thereof, and do award -to the claimants the sum of $194,872 26, (less $765 30 unclaimed), in full for the loss sustained in the capture of this-vessel by several Spanish gun boats, &c., in 1801, which is to be divided as follows, viz.” Then followed a statement of the division of the amount awarded, which included the following: “ Unclaimed of Bollmans’ interest, $765 30.” “ There was ño claim put in by the Bollmans, or any body for them, for their uninsured interest.” “ J. F.” After the above evidence-had been given, the counsel of those persons who took defence in the name of the defendant, offered in evidence a paper signed, “ T. Watkins, Secretary to the late Commissioners,” purporting to be a certificate by him, that upon the examination of the books of the commissioners, then in his possession, he found certain matters touching the opinion of the Board as to the citizenship of M. L. Bollman. The evidence offered, was objected to by the plaintiff’s counsel, and overruled by the judge, who at the request of the counsel offering it, noted an exception to his opinion. Much evidence was given on the trial in the District Court, touching the. amount of compensation claimed by Mr. Yard, for his services in recovering the fund in dispute, but as no question arising out of it came before this court, it is deemed unnecessary to state it. The judge was requested to instruct the jury 1. That the Bollmans’ interest is clearly and conclusively rejected by the decision of the commissioners, on the face of their awards. 2. That the term ‘ citizen’ as used in the treaty, is to be construed to mean, either the native or naturalized citizen; and that the plaintiff is not entitled to recover on the ground, that the Bollmans are, by reason of commercial residence, to be considered as citizens, within the treaty. 3. That if the Bollmans are entitled by construction, to be considered as citizens, so are the Walkers. 4. That if the plaintiff is entitled to recover, it is only the amount of Bollmans’ interest, after deducting the' amount of the insurance. In reference to'the first point submitted to him, his Honour, after having commented upon the proceedings and decrees of the Board of commissioners, in the case of the Asia and Dolly, and upon the other ■ evidence admitted by him, explanatory of those decrees, particularly the decrees in the cases of the Lenox and Molly, and giving his reasons for having admitted such evidence, instructed the jury that, “ neither on the face of the decrees, nor by any other evidence shown, was' he satisfied that the Board of commissioners had decided the point against Justus Eric Bollman and Lewis Bollman, but rather the reverse. The plaintiff, the surviving assignee, was therefore entitled to recover w.hat was justly due to them, and what must be taken to have been recovered and received on'their behalf.” Upon the second point he declared to the jury, that “ on full reflection and after a careful review of áut'horities, he was of opinion. that Justus Eric Bollman and Lewis Bollman, though certainly not within the letter, were within the purview, within the spirit and meaning of this treaty.” In relation to the third point he informed the jury that he could not instruct them as he had been requested, that “ if the Bollmans are entitled, by construction, to be considered as citizens, so are the Walkers’’ the case of the Walkers not being then before the court. He recommended however to the counsel to enter into an agreement (which was done) by which the interest of the Walkers in the fund in the hands of Mr. Yard, should, not be affected .by the verdict to be rendered in this case, in the event of the suits brought by them or their representatives being successful. As to the last point his Honour directed the jury to ascertain how much had been received from underwriters on account of this loss, but to find a verdict without deducting it, and the court would lessen the verdict by so much if the underwriters were not entitled to it — if they were, the court would hold the plaintiff a trustee pro tanto, and lay hands upon the fund for the benefit of the underwriters. The opinion delivered by the court to the jury was excepted to by the counsel of those who opposed the claim of the plaintiff below, and on the return of a writ of error to this court, the following errors were assigned. ' 1. The Court below charged the jury that under the Florida treaty persons were entitled to participate in the fund provided who were commercial residents, although not citizens of the United States by birth or naturalization. 2. The Court charge,d the jury that they had nothing to do with the claim of the Walkers — although the admission of their claims would greatly reduce the amount to be received by the respective claimants,- each of whose share would depend upon the number who should be entitled to participate in the fund. 3. The Court charged that all commercial residents were entitled to participate in the fund provided by the Florida treaty, and yet authorised the exclusion of certain persons thus circumstanced, whereby the defendant is made liable to pay a siyn of money to the plaintiff which he may be liable to pay over again to other persons. 4. The Court below admitted in evidence the return of a commission to Washington with the depositions and documents therein contained. 5. The Court rejected the certificate of Tobias Watkins after admitting the documents annexed to the plaintiff’s commission to Washington. 6. The judgment of the Court below is erroneous, and the plaintiff in error assigns general errors. The cause was argued at December Term, 1833, by J. R. Ingersoll and Chauncey, for those who resisted the claim of the plaintiff below, the real plaintiffs in error, and by Scott and Rawle, -jun. for the defendant in error, T. and J. Sergeant who were of counsel with the nominal plaintiff in error, taking no part in the argument. It was again argued by the same counsel at December Term, 1834, T. Sergeant, who had been previously appointed one of thé Justices of . this court, took no part in the decision of the cause, and J. Sergeant, the counsel of Mr. Yard, did not participate in the argument.

Decided 1835-01-12

¶1The opinion of the Court was delivered by

Rogers, J.

¶2This is an action of assumpsit, for money had and received, brought by Cramond, the surviving assignee of Eric and Lewis Bollman, to recover their proportion of the sum of 136,265 dollars, awarded by the Commissioners under the Florida treaty, to James Yard, and others. The following extract, from the record, contains all that properly belongs to the case.

¶3“ Proceedings, in the case of James Yard, claimant on account of the cargoes of the ship Asia and the brig Dolly, before the *39Commissioners under the treaty between the United States and Spain.

¶4“The memorial No. 1150, was filed the 20th February, 1822. This memorial was examined by the Board, on the 15th June, 1822, and rejected.

¶5On the 21st October, 1822, a supplemental memorial was filed, No. 1631, and with the original memorial, received on that day by the Board.

¶6On, Tuesday 29th July, 1823, the following proceedings, among others, took place.

¶7No. 1631. James'Yard, for himself and others — ship Asia and brig Dolly.

¶8Upon examination of the testimony filed in support of this claim, the board are of opinion, that it be allowed as valid, for their pro-, portion of the nett proceeds of the cargoes of these vessels deposited in the royal treasury at Lima, from which must be deducted, such' sums as are claimed for those who are not- citizens of the United States, and,also any sum which is claimed under any person who was not such citizen at the time of the loss.

¶9On Monday, 16th February, 1824, the board proceeded as follows :— . '

¶10Ship Asia, 'Peterson.

¶11Brig Dolly.

¶12The board having heretofore received, examined, and allowed the claim, as valid, this day proceeded to ascertain the amount thereof, and do award to the claimants, the sum of one hundred and thirty-six . thousand two hundred and sixty-five' dollars, in. full, for the loss sustained in arrest of these vessels at Callao, by order of the Spanish. authorities, and the sale of their cargoes in 1801, which sum is to be paid to James Yard, for himself and others, $136,265,96.

¶13It is conceded by the defendant in error, and but faintly denied by the plaintiff, that the decree of the commissioners is conclusive, and of course not open to review, either directly or collaterally by suit. Independent of the authorities cited, on the conclusive nature of such decrees, the treaty itself furnishes evidence that such was the intention of the contracting parties. The United States exonorating Spain from all demands in future, on account of claims of citizens, &c. and considering them entirely cancelled, undertook to make satisfaction for the same, to .an amount not exceeding five millions of dollars. To ascertain, the full amount and validity of these claims, a commission to consist of three commissioners, citizens of the United States, were to be appointed by the President, &c. which commissioners were to meet at the city of Washington, and within the space of three years from the time of their first meeting, to receive, examine, and decide, upon the amount and validity of all the claims included within the descriptions mentioned in the *40treaty. The commissioners were required to take an oath or affirmation, to be entered on the record of their proceedings, for the faithful and diligent discharge of their duties, &c. They are authorized to hear and examine on oath, every question relative to said claims, and to receive all suitable authentic testimony concerning the same. It is required that the payment of such claims as may be admitted and adjusted by the commissioners, to an amount not exceeding five millions, shall be made by the United States, either immediately, &c. or by creation of. a stock bearing interest, &c. The record of the proceedings of the commissioners, together with the vouphers and documents produced before them, relative to the claims to-be adjusted'and decided upon by them, shall after the close of the transactions be deposited in the department of state, of the United States; and copies of them or any part of them, shall be furnished to the Spanish Government, if required, at the demand of the Spanish Minister, in the United States.

¶14By this summary of powers and duties of the board, it will be seen that the commissioners are invested with full and plenary authority to decide every question, as well the amount as the validity of the claims included in the treaty, whether the matter in dispute arises from objections as to the fact, or the law. The commissioners are ordered to keep a record of their proceedings, which together with the documents are ordered to be filed in the office of the Secretary of State, as well for the use and inspection of the Spanish Government, as of our own.' There is nothing in the treaty which countenances the idea,, that either party can resort to the tirdinary 'tribunals of the country, to alter or control the decisions of the commissioners. It would then be an assumption of authority on the part of this court, tb attempt to review the decision of this tribunal created by the contracting parties, for the speedy and final adjustment of all claims preferred under the treaty. It is then plain, that the principal, if not the only point, is to ascertain from the lights we have, what was the decision of the commissioners, for whether right or wrong, in law, or in fact, is immaterial, as we have no power to examine and correct the mistake, if any exists. Notwithstanding this, however, the plaintiff’s and- defendant’s counsel invoke the aid supposed to be derived from the interpretation of the treaty of the 22d February, 1819. They both claim the benefit of the presumption, that the commissioners have decided as they ought to have decided. For explanation of the decree, they have gone into an extended and able examination of tlje meaning of the term, “ citizens” of the United States, used in the treaty as descriptive of the class of persons entitled to the benefit of the fund. It is contended on the one hand, that the interpretation of the word citizen, is to be settled, not by its definition, in a merely municipal sense, but as it has been, and-ought to be interpreted by the law of nations, and the decisions of the courts of prize. That it was the intention of the contracting *41parties to include all cases of American property traversing the ocean, in an American vessel, under the protection of the American flag, engaged in a lawful commerce, and owned by merchants residing and carrying on trade in any of the ports of the United States, under the sanction of the laws of the United States, whether citizens in the strict sense of the word, by birth or naturalization, or its extended sense, domiciliated for commercial and other purposes, and assuming the character of the country in which they reside.

¶15On the other hand, it is insisted, that by the term citizen, must be understood citizen, in the strict sense of the word, as known to the constitution and laws of the United Stales. That the provisions of the treaty, are for citizens of the United States, and the subjects of Spain, and that we must resort to the laws of each country, to know what they respectively meant, by citizens and subjects. That a citizen of the United States, must be either native or naturalized, and that subjects of Spain, are those who owe her full and not temporary allegiance. That a commercial resident, is not embraced, either within the words, or the spirit of the treaty. The point is of great importance, and not without difficulty, but as a decision of the question is not absolutely required, I am instructed to say, that the court do not wish to be considered as having formed any opinion upon it. It is deemed most prudent to decide the question when it directly arises, and not, as in this case, for the benefit of a presumption, which, whatever might be our sentiments in regard to it, would not alter the judgment in this cause.

¶16The principal question, arises from the answer of the court to the defendant’s first point, “ that the Bolivians’ interest is clearly and conclusively rejected, by the decision of the Commissioners, on the face of their awards.” To this point, I shall now direct my attention, and shall proceed to examine the nature and extent of the sentence, or decree of the Commissioners on the claims represented by Mr. Yard, arising out of the seizure of the cargoes of the ship Asia, and brig Dolly. Did the Commissioners include the claim of indemnity, made on account of the Bolivians and the Walkers ? If the claims were disallowed, with or without reason, there is no pretence to say, the plaintiff can recover in this suit, for the award is the foundation of their action. And however we may regret the situation in which the error of the Commissioners may have placed the parties, we cannot afford the necessary redress. In the interpretation of these decrees which are, it must be admitted, wanting in precision, we must refer to the matter which was before the board ; and this appears from the memorial, and the documentary evidence filed in pursuance of the directions of the treaty, and which form part of the proceedings. The claim for the whole interest in the Asia and the Dolly, was made by Mr. Yard, in virtue of a letter of attorney, from the persons interested in the cargoes. The memorial stated the different interests of the parties concerned, together with the *42-national character of the individuals, whom he represented. That the Bollmans were aliens born, and had been naturalized in 1802, a time subsequent to the loss. That the Walkers were also aliens born; that one of them had never become a citizen, but that the other had; and that all the other claimants were either natural born, or had .been naturalized previously, to the loss. The memorial of Mr. Yard also showed, that the claim was divided into two parts. One for the money, which was deposited in the royal treasury at Lima, amounting to upwards of 202,000 dollars, the other, for a sum due from a Mr. Yrissary, which he had received out of the proceeds of the sale of the cargoes of the Asia and the Dolly. The first memorial was rejected, but' the second, which contains a full and able examination of the whole case was received; but still it is apparent, that two objections remained, the one to the claim on account of the money due from Yrissary, the other an objection to the national character of the Bollmans and the Walkers. Of this, we cannot entertain a doubt, for they alone came within the discription of commercial residents; the others, without exception, were either native born, or naturalized citizens. With these representations, the proof accompanying them, and the question of national character for decision, the commissioners decreed, “ that the claim is valid, for their proportion of the nett proceeds of the cargoes of these vessels, (Asia and Dolly,) deposited imthe royal treasury at'Lima, from which must be deducted such sums as are claimed by those, who are not citizens of the United States; and also, ¿ny sum which.is claimed under any person, who was not such citizen at the time of the loss.”

¶17The commissioners decree, that the claim, viz. Mr. Yard’s claim, is valid, (it must be recollected, the whole claim was at first rejected,) but iheyconfin'e'the award to the sum deposited in the royal treasury at Lima, excluding that part of the claim, made by Mr. Yard, on account of the, money received by Yrissary.. If the decree had stopped here, who could have doubted the intention of the commissioners, to include the Messrs. Bollmans and Walkers ? But unfortunately for them, the decree contains an exception, which is senseless, unless it is construed to embrace their case. For it proceeds to say, “ from which must be deducted such sums, as are claimed by those who are not citizens of the United States; and also, any sum which is claimed under any person, who was not such citizen at the time of the loss.”

¶18The question has been asked, to which no satisfactory reply has been given; why except from- the benefit of the fund, those who are not citizens of the United States, unless it was intended to exclude those who were not citizens, in the strict municipal sense of the term. Why introduce any exception into the decree, at all, unless it was designed to exclude the claim of the Bollmans and the Walkers, whose claims alone are included within the exception, and to whose demand after the presentation of the second memorial, alone objec*43tions were made. A sum was claimed by and for the Walkers, one of whom was not then a citizen, and the other was not at the time of the loss, and a sum was claimed by the assignees, of the Bollmans, who were not citizens at the time of the loss. The sentence of the commissioners has a direct and special reference to these claims, and to none other; and to give the decree any other construction, we must suppose that the commissioners used language without meaning, and inapplicable to the case before them.

¶19The decree, it must remarked, is in its nature interlocutory, and not final. It was necessary for the commissioners, in addition to an order, as regards the right of the different class of claimants, to .settle the amount to which Mr. Yard, as the representative of the persons whose claims were allowed, was entitled. In pursuance of this further duty, on the 16th February, 1824,-the commissioners made a final award, as follows:

“ The board having heretofore received, examined, and allowed the claim as valid, this day proceeded to ascertain the amount thereof, and do award to the claimants, the sum of one hundred and thirty-six thousand two hundred and sixty-five dollars, in full, for the loss sustained in the arrest of these vessels at Callao, by order of the Spanish authorities, and the sale of their cargoes in 1801; which sum is to be paid to James Yard, for himself and others.”

¶20If the interpretation of the interlocutory decree be correct, there is nothing in the final decree, which does, or purports to interfere with that interpretation. It is in no part intimated, that a re-examination and change of opinion on the part of the commissioners, had taken place, but on the contrary, the former decision is made the basis of the final award. The commissioners refer to and incorporate their first order in the final decree, in language which cannot be mistaken. It is inconceivable, that in an affair of such magnitude, if the minds of the commissioners had undergone a change on the legal point, whether a commercial resident was embraced by the treaty, something should not appear on the record of their proceedings, indicative of such change of opinion. The former order is expressly referred to, and confirmed,so as to constitute but one decree, and these decrees are in the most perfect harmony with each other. Nor does the use of the word “Claimants,” invalidate this construction. That word, if we give language its ordinary import, has reference to those, who before had been decided to be lawful claimants, and citizens of the United States, in a municipal sense. The conclusion to which the court has come, is strengthened by the fact, that the amount claimed by Mr. Yard, deposited in the Royal treasury at Lima, is upwards of 202,000 dollars. It does not appear, that any reason was alleged for the reduction of that amount, except the disallowance of these claims, and yet we find, that the board allowed only 136,265 dollars, which is about the sum Mr. Yard would be *44entitled to receive, after deducting the amount claimed, on account of the Messrs. Bollmans and the Walkers.

¶21It is in vain then, to allege that it is ungenerous to refuse them a participation in the fund. It would be a manifest wrong; that they should be paid at the expense of the other shippers. If the Bollmans have been injured, it is not by the other claimants, but by the sentence of the tribunal, whose duty it was to receive, examine, and settle all conflicting claims, and to whom full power was committed, to decide all questions of law and fact.

¶22This opinion of the courts disposes of the whole case, and thus dispenses with the necessity of a minute examination of the principles of evidence, ruled at the trial.- The evidence was admitted for purposes of explanation, but as the proceedings do not need the aid of extrinsic evidence, it was clearly inadmissible on that ground. But in addition to this, there is no principle better settled, than that a judgment or decree of a court is evidence, in another suit only,' as against parties and privies. But it is said, that this was a proceeding in rem, and as such binding on all parties. And in one sense this is true, but this cannot make the proceedings in another case, between other parties, and under different circumstances, evidence, to control the plain import of the decree itself.

¶23Judgment reversed.