1790. M'Clures V. Hammond. of law, that where any part of a cargo is delivered, freight is due for such part, and if an underwriter paid loss on a policy of insurance, he always kept the premium. From whence it was inferred, that as part of the cargo was delivered sound, and the rest paid for, which was equal to the delivery, freight for the whole was due, and ought to be paid. In reply, it was said by the defendants' counsel, that the jury in calculating their damages in the former action, had not given more than about one half of the value of the tobacco lost; which rendered it highly presumable that they had taken the freight into consideration, and deducted the amount from the damages the defendants suffered. At any rate, the loss in the former case was owing to the plaintiff's own negligence, and to recover freight on that part which he negligently lost, would be suffering him to take advantage of his own wrong. WATIES, J. As the damages found in the former action have been paid by the present plaintiff, it is the same as if the tobacco had been delivered, and he is entitled to a recovery of his freight. Had the jury, in the former case, given less damages than the defendants really suffered or proved, it might have been a ground for a new trial on their part; but so far from desiring a new trial, they opposed it. Verdict for plaintiff. June, 21, 1790. stranger sent HIMELY against WYATT and RICHARDSON. Goods of a THIS was an action of replevin, which came on upon a to a vendue demurrer. The facts set forth in the pleadings, were, that purpose of be- Jacob Cohen was a licensed vendue-master, and had rented ing sold at a store of the defendants, which he used as a vendue store. store for the public ven due, are not The plaintiff had sent to Cohen a quantity of goods, wares distrainable for rent. and merchandise. Before the sale, Cohen was taken on a capias ad satisfaciendum, and arranged his affairs for taking the benefit of the act for insolvent debtors. The defendants, his landlords, distrained for rent in arrear, on all goods in the store, and amongst the rest, were those of the plaintiff's, and insisting they were liable, refused to give them up. The plaintiff replevied in form, and the question was, whether these goods sent to a vendue store for the purpose of selling at public vendue, were, or were not, legally protected from distress. Ford, for the plaintiff, said, that the goods are the implements of the tenant's trade, the medium of his support; that about which his common occupation is constantly concerned. That the goods were in a vendue store, a common market, a public place, known and established in law. That public utility and convenience to the community require they should be protected, and vendues encouraged. Taylor replied, and insisted upon the common law right given to landlords, to distrain whatever could be found upon the tenant's premises, without regard to the claims of third persons. That though there were exceptions, there was not any which exempted goods in a vendue store, reported here or in England. WATIES, J. This is a new case, but I feel no difficulty in forming an opinion on it. There is no precedent which says the goods of a stranger are not distrainable for rent, but the exemption is reasonable on general principles. The law of distress would be greatly perverted, if it were made to operate on goods circumstanced as these. The reason why a stranger's goods are subject to distress, is, because infinite frauds would be otherwise practised on a landlord; and his summary remedy in this case, might at any time be defeated, by a collusion between his tenant and a stranger. All goods, therefore, found upon the premises, belonging to strangers or tenants, are generally distrainable. They are presumed to be the property of the 1790. Himely V. Wratt and Richardson. 1790. Himely Wratt and tenant, because in his possession. There is no instance in which possession is regarded, so much as the evidence of property as in this, to preserve the right of the landlord Richardson. from fraud and imposition. This appears to be the sole object of the law, and, therefore, admits of exceptions, when this mischief does not occur. For where the possession of the goods by the tenant holds out no fallacious security to the landlord, but are known to belong to a stranger, in that case they are privileged from distress : as in the case of a horse at an inn, or in a smith's shop to be shod; cloth at a taylor's, and sacks of corn in a market or mill, &c. These are privileged and protected for the benefit of trade, but in my mind, it is as good a reason, that the property (notwithstanding the immediate possession is in the tenant) is known by the landlord not to belong to the tenant, but to his customers. No presumption of property can arise from the possession; and, therefore, the landlord is not deprived of any security, he might have trusted to in them, for the payment of the rent. With respect to the present case, all the different reasons for an exemption, apply with great force. The defendants when they leased their house to the vendue master, could never have had in contemplation, any remedy they might have against the goods of various persons which might be lodged with him for sale. They must have known that these were not his property, and must have relied on other resources for the recovery of their rent. Considering then, the well known use of vendue stores, as the depositories of the goods of strangers only, and which are placed there as it were, by the authority of law, and considering also, the public convenience and utility of them, there appear to me the strongest grounds for extending to them the protection of the law. Judgment for the plaintiff. DAVIS against the Executors of RICHARDSON. a August 26, 1790. Where a con tract is enter ed into for delivery of indents, the va Ine of them at the time fixed is the sum the plaintiff is en for delivery, CASE to ascertain the value of an indent, tried before a special jury in Charleston. The action was brought on contract in writing, dated 17th February, 178 4, which stated, that the deceased Richardson had borrowed of the plaintiff an indent for 869/. 1s. 6d. which had been issued to him, for his services as an officer in the state troops, and in which Richardson promised to repay that sum, in general indents where no time with interest. At the time of the contract, general indents for delivery, were worth only 10l. for 100%. but in consequence of the proved,. the prospect of the adoption of the funding system by congress, commence was they had risen in value up to 6s. 8d. in the pound, which For the defendants, it was said, that if Richardson had purchased indents for cash in 1784, he could have procured them at the rate of ten for one; and that the plaintiff could not have got more than one-tenth of the nominal value, if he sold them. That this value must have been in contemplation of both parties, at the time the indent wa lent. To allow this value, therefore, with interest from the time of the loan, was as much as the plaintiff in conscience and justice had a right to demand. It was further urged, that if they had fallen lower in value, Richardson would have been bound to make good what it was worth, when he received it; and, upon the same principle, the plaintiff was not entitled to more than it was worth when he parted with it. For the plaintiff, in reply, this contract was compared to one for the sale or transfer of stock, where it is very clear, that if the tranfer is not made on the day stipulated for, the VOL. I. titled to. But is mentioned nor demard value at the ment of the suit, and interest on that sum, is the rule of mation. 1790. Davis Y. Executors of Prec. value of stock on that day, and not on the day the contract Per Curiam. This is not a case of difficulty in settling the principle, but it is of extensive importance to the community, that the principle should now be settled and ascertained with precision. A great number of contracts in every part of the state, depend upon the determination of this question and it is fortunate, that so respectacle a jury are convened for the purpose of fixing a standard for future decisions. The law is certainly in favour of the plaintiff, Wherever a contract is entered into for the delivery of a specific article, the value of that article, at the time fixed for delivery, is the sum a plaintiff ought to recover. As in this case, however, no time is mentioned for delivery or repayment, nor any demand proved, the commencement of the suit must be considered as the demand, and the value of the 1 |