Page:United States Reports, Volume 2.djvu/58

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voyage. He was likewise the factor of the plaintiffs, and had discretionary orders to trade for them and to sell the vessel as well as the cargo. In the course of the voyage he fold both vessel and cargo, and made some remittances to his owners. While he was at St. Eustatius, and when he was about to leave it, he put his affairs into the hands of William Smith, then a merchant there, with power to collect his outstanding debts, among which were four debts due upon note, or bond, payable to Fairchild; but which Smith believes arose from the sale of the cargo belonging to the plaintiffs. These notes, together with some other papers, were delivered to Smith, inclosed in a cover, on which Fairchild had made the following memorandum: “Van Bibber & Harrison, Thomas Wallace, Archibald & John Blair and Thomas MᶜFarran’s obligations, are on account of Messrs. Jacob Van Voorhis, Ram Rapalje, and Peter Mercier, merchants of New-York, together with outstanding debts; this is in case any accident happens to me.” After Fairchild’s departure from St. Eustatius, and in the years 1777 and 1778, Smith collected the outstanding debts; and, among others, those due on the four notes payable to Fairchild. This money remained in Smith’s hands till September 1779; when a foreign attachment was sued out by Benjamin Amory, the present Defendant, against the effects of Fairchild, in the hands of William Smith, for a private debt of Fairchild due to Amory. Smith appeared to the action, employed counsel to defend it, and on the hearing, the court there confirmed the attachment, and condemned the garnishee to pay to the plaintiff in the attachment the money due to him from Fairchild; which money was accordingly paid, and the present action is brought by Rapatje & Mercier, to recover back from Amory the money so recovered and paid to him by Smith, as for money had and received to the p1aintiffs’ use.

The principles on which the action is brought are, that the money arising from the notes were really the property of the plaintiffs, and not of Fairchild; that Smith had no money of Fairchild in his hands, but what arose from those notes; and that it was therefore wrongfully and, against conscience, received by Amory as the property of Fairchild.

On the trial of this cause, the merits were not at all investigated on the part of the defendant; who suffered a verdict to pass against him without opposition, relying on the point of law, that he was protected by the judgment of the court at St. Eustatius. This point was therefore reserved for the consideration of the court.

It is contended on the part of the Defendant, that his money, having been attached in the hands of Smith, as the property of Fairchild, and on the trial adjudged to be his property, that judgment