Hills et al. versus Ross

Hills et al. versus Ross. THIS caufe came again before the court (fee Ant.p. 1847 and after a difcuffion upon the merits, it became a quef-' feion, whether there had been a regular appearance of.the par-, ties to the fuit below ? The libel was filed by the Britijh Conful, on behalf of Walter Refs, againft Hills, May an-j Wood-hridge (who formed a partnership in Charhjlon, under that firm) and John Miller. The plea was headed, “the pica of Ebenezer Hills, one of the company of Hills, May, and Wood-bridge, in behalf ofhimfdf and his faid copartners, who are made Defendants in the libel of Walter Rofs and concluded with praying, “ on the behalf aforefaid, to be difmifiVd, as far as refpedls the faid Hills, May and Woodbridgc'I'he replication regarded the plea of Hill, as the plea of all the company; arid the rejoinder was.figned by “ Jof'ph Clay, junior, Prodtor for the Defendants.” The decree below was againft all the . Defendants, and the writ of error was ifilied out in all their names; but there was evidence on the record, that May had been- in Europe, during the whole of the proceeding, and no warrant of attorney, or other authority, to appear for him, was produced. . - Ingerfoll, contended, for the Plaintiffs in error, that, partners had not power to appear for each other to fuits; and that, in fait, nothing appeared on the record to ihew that they' had done fo; on the prefent occafion, Tilghinan, on the contrary, relied upon the rejoinder, whertj. the Proditor ftates himfelf tobe employed by all the Defendants; . and infilled,' that his authority could not be denied, or examined, particularly in this ftage of the caufe, and in this form of objedlion. On the nth of dugttjl, the Chief Justice delivered the opinion of the Court, that, in the prefent cafe, there was a fufficient legal appearance of all the Defendants. On the merits, it appeared, that the Plaintiffs in error, had dire ¿ted to be fold, certain prize cargoes, captured by Captains Talbot and Ballard, under the circumftances, ftated in the cafe tSf Janfen vcrftis Talbot-, ant. p. 133; and that, after notice of the claims filed by the owners of the prizes, they had received and paid over the proceeds to the. captors: but, in fo doing, they had a¿ted merely as commercial agents, without any ihare in the ownerfhip of the privateers, or any participation in the direction or'emoluments of their illicit cruizing. The principal queftions, therefore, were,’ ’ jft. Whether, in point of fa£t, the Plaintiffs had notice of the claims of the original owners of the prizes ? And ad. Whether, after paying over the proceeds of the cargoes, they were refponfible to the claimants for any thing, and for how much ? Iredell, JujHcc. ' The doubt is, whether in a cafe like the prefciM, ppe partner can authorife a proiitor to appear for the whole company ? Chasf, JiJicc. This cou'rt cannot affirm the decree, againft perfons who were not before the court that pronounced it; and the record mu ft ihew, .that they aftually did appear. A bare implication, the titling of the plea, or a-generai ftatehnem, that one of the partners arts on behalf of them all, is not fufficient; For, though partners, in a courfe of trade, may bind each ptlicr; they cannot compel each other to appear to fuits, nor undertake to reprefent each other in courts of-law. What,, however, is the' legal .effect'of an appearance by a Proctor, an officer of • thccourt, is another ground that merits coniiderauon, [MAJORITY — Bv the Court] Bv the Court : J.t appears, that the damages have been affeffed in the courts below, in relation to the value of the goods that were captured : but the Plaintiffs in error were not trefpaffers ab initio ; and, a£ting only as agents, they ihould be made anfwerable for no more than adlually came into their hands. ■ The accounts of fales are regularly colledted and annexed to the record. We are, therefore, at no lofs for a criterion : And we think that the decree ihould be fo modified, as to charge them with the amount of fales, after deducing the duties on the goods, if the duties were paid by them. The Decree was in the following words:—Ordered, That the decree of the Circuit Court for Georgia diftriét, pronounced on the 5th of May, 1795, be reverfed, fo far as the fame refpedls the faid Hills, May- and JVoodbridge ; and it is further ordered, that the faid Hills, May and Woodbridge, pay to the faid Walter Rofs, thirty-two thoufand and ninety dollars and fifty-eight cents,-the net amount of the fales of the cargo of the laid fliip, and five thoufand fix hundred and five dollars and twelve cents, intereft thereon, from the 6th day of June 1794, to the twelfth day of Augujl 1796, making together the fum of thirtv-feven thoufand fix hundred and ninety-five dollars and feventy cents, and that the faid Hills, May and Woodbridge, do .pay the cofts of fuit—and a fpecial mandate, &c.