Joseph W. Alsop against Arthur Magill and Stephen Clay

Joseph W. Alsop against Arthur Magill and Stephen Clay. •\ sum of money being awarded, by the commis-sioneis^uodtr treaty, to A IOV H I and cargo, belonging to him, which turedandcon-demned as prize, and for the expenses genif in'Sen-deavouring to prevent a condemnation; A. for a valuable consideration, assigned his right in the award to C,; B. in an action for money had and received against C• claimed that C. was liable to refund the sum allowed in the award for JB.’e expenses, and offered A. as a witness to prove the whole case: Held, that A. was inadmissible, as a recovery by B. against C. would discharge A.’s liability to B. for his expenses; and that, if the case were otherwise proved, still Bt, could not recover against C. who was a dona jide purchaser, and entitled ex cequo et bono to retain the money. Where justice has been done, the court will not grant a new trial for a misdirection Co the jury. MOTION for a new trial. This was an action of indebitatus assumpsit for money J had and received to the plaintiff’s use. y¡le defendants pleaded the general issue ; and, at the (.rial, the following facts appeared : The brig Hiram, « laden with a valuable cargo, and owned in equal parts a by Isaac Rileyt Lemuel Storrs and Joseph W, Alsop, (whereof John Stocking was master, and said Alsop supercargo,) was, in the year 1794, seized by a British 1 o n 1 i ship, carried into Bermuda, and condemned as prize, In the year 1800, before any award had been made by the commissioners tinder the British treaty, Riley assigned his property in the brig dnd cargo to Storrs, and Siorrs afterwards assigned the same, with his original one third, for the consideration of 10,000 dollars, to Magill if Clay, the defendants. In the deed of assignment, Siorrs made over all his right to the brig and cargo, and to the moneys that might be recovered in compensation or payment from the captors and the British government. He likewise empowered Magill If Clay to receive “two third parts of the moneys that might be recovered, for or on account of the seizure and condemnation of said brig and cargo.” Posterior to this, the commissioners under the treaty made their award for the amount of the brig and cargo, and for the board and expenses of Alsofi, being 257 dollars and 16 cents, while he was at Bermuda, endeavouring to prevent the condemnation of the brig and cargo, two thirds thereof to be paid tp Magill if Clay, and one third to Alsofi. The money was received in pursuance of the award. June, 1809. It appeared, that Alsofi had presented his claim for board and expenses in Bermuda, to the commissioners, and that they had disallowed it, as his personal claim. Of this, however, Magill if Clay had no notice. This action was brought to recover 171 dollars and 44 cents, being two thirds of the whole sum allowed as above, as having been received by the defendants to the plaintiff’s use. Storrs was offered as a witness, by the* plaintiff, to prove the whole case. He was objected to, as being interested in the event of the suit; and the court excluded him. In the charge to the jury, the court instructed them, that the plaintiff, while prosecuting the claim of the owners in Bermuda, must be considered as their agent, and that he had a right to claim the moneys disbursed for his board and expenses of them,, and not of the defendants, who were bond fide purchasers and assignees of the allowance, which should be made to Riley and Storrs for two thirds of the vessel and cargo, and ex-, penses, at a risk, and without any notice of this claim of the plaintiff: And that the verdict ought to be in favour of the defendants, unless the jury should find, that the sum claimed had been particularly awarded to the plaintiff by the commissioners, and received by the defendants. The jury found a verdict for the defendants; and the plaintiff moved for a new trial, which motion was reserved for the consideration of the nine judges. Ingersoll and Dwight, in support of the motion. Daggett and Hosmer, contra, [MAJORITY — By the Court.] By the Court. Two questions arise in this case: First, whether Storrs was interested in the event of the suit; secondly, whether the charge of the court to the jury was correct in point of law. Alsoft, while at Bermuda, acted as agent for the owners, of whom Storrs was one. His claim for services and expenses there was against them, and not against the British government. The demand of the owners against the British government was not merely for vessel and cargo, but for all the expenses by them incurred' in their defence at Bermuda, and in the prosecution pf their claim for remuneration ; of which expenses, this bill of their agent constituted a part, as much as the fees of their proctor in Bermuda. And accordingly, the British government, in the result, awarded to the owners, as belonging to theip, the amountyof the plaintiff’s present demand. ./V ' Storrs had assigned to the defendants, not merely the tight to his ope third, and Riley’s one third, of such allowance as should be made for vessel and cargo, but to all moneys that might be recovered as compensation from'the British government for the capture and condemnation. The effect, therefore, of Storrs’s testimony, if any, would be to discharge his own liability, and fix it on the defendants. As Storrs was entitled to two thirds of Alsoji’s bill in his claim against the British government, and as he had sold to Magill O Clay all that he was entitled to, it follows that they can fairly and honestly retain it; and Al- , soft can have no claim against them for it. Whether the charge of the court was perfectly correct in point of law, it is unnecessary to determine. Justice is done ; and a new trial ought not to be granted. New trial not to be granted.