Page:United States Reports, Volume 1.djvu/81

 70  tih, on evacuating the city, would either detroy uch tores as they did not want, or take with them thoe articles which they might tand in need of.

Thee facts, likewie, appeared in evidence on the trial; that the conignees had been applied to by one of the plaintiffs five or ix days before the evacuation, to purchae the alt; that for three or four weeks before the evacuation, the Citizens of Philadelphia uppoed it was intended; that the whole of the Britih army did not finally leave the city till the morning of the 18th, though their hipping, for a fortnight before, had been, from time to time, dropping down the river; that the price of alt at that time was only three hillings per buhel; and that the plaintiffs have ince, to wit, in Augut 1778, paid the full value of the alt, at the rate of a dollar per buhel, to Jones and Co.

On behalf of the State of Pennylvania three points were made: 1t. That the contract between Wilcox and Jones and Co. was not a compleat one, in as much as no money was paid, nor any poeion delivered of the alt. If, therefore, it was not a compleat contract, the alt was the property of a Britih ubject, and, conequently, forfeited to the tate by the rules of war, and the law of nations.—2d. That admitting the contract to be compleat, yet it was made to defraud the tate of the forfeiture, and in contemplation of the intended evacuation.—3d. That if it was incompleat, though to be made compleat by a ubequent event (to wit, the entry of the American army into the city, and the alt till remaining) yet the right of the tate to the alt attached, if not ooner, at leat, as oon (to wit, when the American army entered) as the right of the plaintiffs; and that, therefore, by the rules of law, the right of the tate mut be preferred to the private claim.

1t. Point. To the firt point it was argued;—that all contracts hould be mutual; that each of the contracting parties hould have an equal remedy againt the other for the performance of the contract, or for damages on the non-performance of it; that, in this cae, Backhoue being an alien enemy, was entitled to no action againt the plaintiffs, but depended entirely on their liberality and honor for payment of the money, in cae the alt hould not be detroyed or taken away by the Britih troops.

1t. Rep: pro: Quer:—At the end of the war Backhoue will be entitled to his action againt the plaintiffs for recovery of the money due on the contract; becaue, though all rights and credits belonging to the ubjects of any power at war with another, are during the war upended, as againt the ubjects of that power, with whom their overeign is at war, till on the retoration of peace, thoe rights and credits are revived, and the ubjects of each nation, are in the ame ituation with repect to debts due to and from each other, as they were before the war.

2d. Point. This was argued on both ides, from the various circumtances which appeared in the caue; the counel for the tate contending, that the nature of the tranaction was evidently to trick the