Brown, V. R. Cuming. tee against one particular risk. His conduct being bona fide charged. damages were reducible to arithmetical certainty, without NEW-YORK, May, 1804. the aid of a jury, or rather, where the jury must have been governed by such a calculation. In trover against a carrier for delivering goods to a wrong person, the sum due for carriage becomes, on this principle a matter of set-off. But that reasoning cannot apply in this case. As to whether it could be set off under the bankrupt law, the only difference between that and our state act is, that in the former the words mutual credit it was held he are used. They mean either where a credit is given; as for should not be goods sold, and payment to be at a future day, debitum in presenti solvendum in futuro; or, where a person is entrusted with the property of another, and it turns out in the event that he is a debtor upon the sale of that property. Russell arguendo in Smith v. Hodson 4 D. & E. 211. Prescot's case, 1 Atk. 230. Ex parte De Seze, ibid 222. French v. Fenn, Montague on set off. Append. 19. In these the cre dit is given in the very transaction, the sums certain or reducible to certainty by calculation. Here it can be done only by jury intervention. Per Lord Kenyon in Hancock v. Entwistle, 3 D. & E. 435, it is a principle, that no debts can be set off under a commission, but such as are proveable; for they are controvertible expressions. Cullen's Bank. L.110. If proveable, it must have been such a one as could be found by the commissioners, on striking a balance. Ibid. 192. ad. 197. The defendant's demand could not have been a debt due before bankruptcy, and ascertainable afterwards; for, till his negligence or misconduct be found, he cannot be a debtor; because till the contrary appear, every man is believed to have acted right, and if Dawson acted bona fide, then there is nothing due from him. * In those cas ists; in those ence is contin Hamilton. In cases where a quantum valebat, or a quantum meruit will lie, there may be a set off, and the principal of those will equally apply.* How much es the debt exwere the goods worth, or how much did he deserve, like the present, would be the enquiries there; and in this it is how much the very existwas insured, and how much not. This is as plainly mat- gent. ter of arithmetic as the other. If not, the plaintiff may recover the whole amount of the contract; and yet the subject matter of the contract have been totally destroyed and lost by the ill conduct of the supercargo. This would be to make us pay wages for injury instead of service. There is no decision against the right we claim; it is not May, 1804. Brown, V. NEW-YORK, inequitable; in all cases of equitable interposition, the courts have gone step by step from the strict law, to favor and extend justice. The rule adopted in trover is one R. Cuming. instance; this will, it is hoped, be another, especially as it is confined to cases in which the set off claimed relates to the matter on which the plaintiff's action is grounded. It would be hard when we have lost our ship, to make us pay the full amount of a demand about that very ship, and then turn us in under a commission which pays only sixpence in the pound. Riggs. We say you cannot come under the commis, sion, but have your remedy against the person. Per curiam, delivered by Livingston, J. I have considered this case with great inclination in favour of the proposed sett-off, and with some solicitude to discover adjudged cases which would justify our going this length. It does not seem right that a supercargo who has violated his employer's instructions, and thereby subjected him to a heavy loss, should recover any monies expended during such agency, without permitting the latter to deduct or set off the sum which has been lost by his neglect and breach of orders; and when it is recollected that the plaintiff is a bankrupt, the defendant's case, if the set-off be refused, is still harder, as he will still have to pay the whole of the present recovery, and come in only for a dividend on his demand, against Dawson's estate, provided it were capable of being liqui dated at the time of his bankruptcy. But strong as my leaning is, I cannot find that courts have as yet gone thus far. Where transactions constitute an account between parties, composed of mutual receipts and payments, it is contrary to reason as well as the understanding of the parties themselves to consider any thing but the balance to be the real debt betwixt them. Yet the forms of law render it necessary for each party to sue the other in separate actions.This inconvenience, says a writer on this branch of law, for a long time remained a reproach to English jurisprudence ; several statutes were at length passed to remedy this mischief, the first of which applied to cases of bankruptcy. In this state also we have an act on the same subject: and the legislature of the United States in like manner have provi, ded for cases of this kind, Brown, V. * 1 vol. 437 Our State law declares, that "where there has been NEW-YORK, May, 1804. "mutual credit, or where mutual debts subsisted between "the insolvent and any other person, the assignee shall state << an account between them, and one debt may be set against R. Cuming. "the other; and what shall be due on the balance of such "account and on setting such debts against one another, and no more shall be claimed or paid on either side respectively." The bankrupt act of the United States provides for cases of mutual credit, and mutual debts, and declares, in like manner, that after stating an account between the bankrupt and the other person, one debt may be set against the other. Mutual credit, in common acceptation, is certainly confined to pecuniary demands; and as both acts speak of setting off one debt against the other, it can hardly be doubted that the Legislature intended to embrace no other kind of demand. How can an account be stated between these parties? or how can a claim made for breach of orders in technical or other language, be turned into a debt? The case in 1 Atkyns, 228, ex parte Deeze, cited by the defendant, was in chancery, and Lord Hardwicke determined nothing more than that a packer of goods should not be compelled to deliver them to the assignees of the owner who had become a bankrupt, without paying both the cost of packing and pressing, and also a debt due on another account: but even in this case, the chancellor considered the goods in the hands of Deeze, (as Lord Cowper had done on a former occasion) and the note given as forming an account current between the parties. He took notice also of Deeze being indebted to Nichols the bankrupt for wine about the same sum which the packing of the goods cost, and that those items also constituted an account between them. But here there is nothing which can form an account between the parties; on one side there is a demand for monies laid out in repairs and supplies for the defendant's ship; but on the other, no monies which he has received or with which he has been entrusted,or property which has been committed to his care, for which he has to account. The demand is also of a nature too uncertain and contingent to be set off. In Freeman v. Hyatt. 1 Black. 394. In an action for money due for a parcel of cloths, the court would not permit the defendant to shew by way of set-off, that a former parcel of cloths bought of the same plaintiff were burnt in pressing, which had greatly lowered their value; but put the party to his special action on the case. In Howlett v. Strickland. Cowp. 56. Lord Mansfield and the other judges would not permit unliquidated damages,occasioned by the breach of other covenants to be performed by the plaintiff, to be pleaded by way of set-off. "These damages," says his Lordship, "are no debts ;" and Mr. Justice Aston was clear that " an unliquidated demand or uncer"tain damages could not be set off." So in Weigall v. Waters. 6 D. & E. 488. To an action of covenant for rent, the defendant was not permitted to set off damages which he had sustained by reason of breaches of certain covenants on the part of the landlord. "The sum to be "recovered," says Lord Kenyon, "is uncertain; it must "be assessed by a jury, and there is no pretence to say that "those uncertain damages may be set off in the present ac❝tion." If goods sold In the present case the damages are still more uncertain, and the trial must be complicated to a great degree. Why the defendant did not insure? or whether he could have insured fully? and what damages have been sustained? would be questions which ought not to be tried in this collateral way. The two cases last cited furnish also an answer to one argument of the defendant's counsel, which is not without force, that as the set-off related to the same agency on which the plaintiff's claim is founded, it ought to be admit ted; and yet in the cases just referred to, we find the claim of the defendants arose out of the same instruments on which the actions were brought, but was rejected. The judge, therefore, who tried the cause, was right in over-ruling the testimony, and the plaintiff must have judgment, John Hunn and others, against Walter Bowne. THIS was an action of trover to recover the value of for a promisso twenty bales of cotton. The property in question, had on ry note at sixty the 29th of December, 1801, been sold by one Rodman, days, be left in to a Mr. John Foley, at a credit of 60 days, and for the the possession May, 1804. Hunn, V. Bowne. of the vendor, of the vendee, amount of the purchase, Foley gave his note, payable at that NEW-YORK, period. The goods however, were not delivered, but continued in the possession of Rodman. A few days afterwards Foley informed Hutchison a broker that he had some cotton for sale, which lay in Rodman's store ; in consequence of which, the broker called on Rodman, and without giving and he shew any intimation of his motives desired to see Mr. Foley's them as the goods of the cotton. On this, Rodman directed one of his clerks to shew vendee, a sale Hutchison the cotton, which then lay in a fire proof store, will be good, by the vendee and had a mark upon it. Hutchison, after an examination against one by of the quality of the article, on account of the plaintiff, made the vendor,notwithstanding a purchase of it from Foley, who, on then receiving the plain- the bankruptcy tiff's notes for the full value, which have since been duly paid, it appearing gave an order on Rodman for the delivery of the commodity. such sale by the This order, however, was not immediately presented, nor ter the knowwas the transaction communicated to Rodman, in whose ledge of his venpossession the cotton was suffered to remain. While so ruptcy. continuing, Foley became a bankrupt, and the day before the falling due of his note, which Rodman had placed, together with the cotton, in the hands of the defendant, as a security for money borrowed, Hutchison called on Rodman, and producing Foley's order for delivery, which bore a date long antecedent, demanded the goods-These Rodman refused to deliver, alleging as reasons, the bankruptcy of Foley, and non payment of his note, after the protesting of which, the cotton was bought by the defendant. Rodman himself had since become a bankrupt, obtained his certificate, and testified that he did not consider the goods as left with him for storage. The jury having found a verdict for the plaintiffs to the full amount of the value of the cotton, a case was made for the opinion of the court, whether they were entitled to recover. Boyd for the defendant. If Rodman has not by any act divested himself of the right to retain the goods against any purchaser from Foley, the innocent vendee of Rodman, will have the right he enjoyed. The property remained in Rodman's hands, and as it was a chattel interest, possession was evidence of property. Beside the second sale was two months after that attempted to be set up. It is settled that, wherever there is any vendor, was af dee's bank |