RUSSELL their course of business, their punctuality and their 0. general credit. CLARK'S This principle appears to have been fully considered in the case of Haycraft v. Creasey, reported in 2 East, in which case all the authorities were reviewed. It does not appear that a single decision has been ever made, asserting the liability of the writer of such a letter. The case of Haycraft v. Creasey denies his liability; and that case appears to this Court to have been decided in conformity with all previous adjudications. It is therefore the opinion of the Court, that Clark & Nightingale, having believed, and had reason to believe, so far as is shown by the evidence in this cause, that the representation they made to the Plaintiff, of the character and circumstances of Robert Murray and Go. was true, are not liable to the Plaintiff, in consequence of that representation, for the credit he gave to that company. A claim is also set up to the funds in the hands of Clark and Nightingale, founded on the circumstance that they consist, in part, of the rice purchased with the bills indorsed by the Plaintiff. But as no specific lien is alleged to have existed, and as the particular fraud, alleged to have been committed to acquire those funds, is not proved, this claim is unsustainable. The Plaintiff, then, cannot be considered as a trust creditor in consequence of any claim, he can assert against Clark and Nightingale. The second deed which is dated on the 24th day of March, 1798, is also in trust "to pay to Joseph and William Russell, the amount that shall be recovered and paid from them to Nathaniel Russell," &c. "upon account of a letter of credit," &c. and for which the said Nathaniel Russell hath recovered a judgment against the said Joseph and William Russell." No part of this judgment has ever been paid, and Joseph and William Russell are insolvent. The state of things, then, has perhaps not yet occurred in which Joseph and William Russell could demand the execution of the trust: and the Court, though with some hesita- RUSSELL tion, feels constrained to decide that, under the terms of υ. this trust, Nathaniel Russell claiming through Joseph CLARK'S and William Russell, cannot demand its execution di- EX'RS. rectly to himself. It also appears that, in September, 1796, Robert Murray and Co. assigned to Loomis and Tillinghast, certain personalties in trust. This assignment was surrendered to Clark and Nightingale in consideration of notes to a large amount, in which Loomis and Tillinghast were bound for Robert Murray aud Co. It appears that Clark and Nightingale are otherwise secured with respect to these notes: at least, there is reason to believe that they are secure, Clark and Nightingale, having taken this assignment with notice of the trust, take it clothed with the trust. They are trustees for the same uses and to the same extent with Loomis and Tillinghast. A paper appears in the cause, which purports to be the assignment to Loomis and Tillinghast. The assignment is in trust, first, to repay themselves any sums which they may pay on account of certain undertakings made by them for Robert Murray and Co. and, secondly, in trust to pay to Joseph and William Russell all such monies as they shall be liable to pay, as guaranty as aforesaid, to Nathaniel Russell upon bills," &c. reciting the bills for which this suit is instituted. It is settled in this Court, that the person for whose benefit a trust is created, who is to be the ultimate receiver of money, may sustain a suit in equity, to have it paid directly to himself. This trust being to pay Joseph & William Russell, a sum they are liable to pay to Nathaniel Russell, and being created in such terms, that the money is certainly payable to them, the purposes of equity will be best effected by decreeing it, in a case like the present, to be paid directly to Nathaniel Russell. Indeed, a Court ought not to decree a payment to Joseph & William Rus sell, without security, that the debt to Nathaniel Russell should be satisfied. RUSSELL But it is not shown, by any legal evidence, that this v. paper is the assignment which was made in trust to CLARK'S Loomis & Tillinghast, and transferred by them to Clark EX'RS. & Nightingale. Its verity is not admitted by the Defendants, nor proved by the Plaintiff. Nor are the circumstances under which the transfer was made, nor the present circumstances of the trust, sufficiently before the Court, to enable it to decide with certainty, whether the prior trust to Loomis & Tillinghast is satisfied, or otherwise so secured, that the trust fund may now be applied to the debt of Joseph & William Russell. Could these defects be supplied, the Court would still be unable to decree in favor of the Plaintiff, for want of proper parties. The incapacity imposed on the Circuit Courts to proceed against any person residing within the United States, but not within the District, for which the Court may be holden, would certainly justify them in dispensing with parties merely formal. Perhaps in cases where the real merits of the cause may be determined without essentially affecting the interest of absent persons, it may be the duty of the Court to decree, as between the parties before them. But in this case, the assignees of Robert Murray, & Co. are so essential to the merits of the question, and may be so much affected by the decree, that the Court cannot proceed to a final decision of the cause till they are parties. They may contest the validity of all the deeds under which, both parties claim, and assert in themselves, for the benefit of the creditors generally, a right to the whole fund. Certainly this Court ought not, on light grounds, and without due precaution, to change the hands in which this fund is placed, until any claim of the assignees to it may be decided. Should this difficulty be obviated by suspending the effect of the decree, till the validity of the trust deeds should be decided, or by directing security to be given, another presents itself, which cannot be removed. The assignees have a right to contest the claim of Nathaniel Russell, and may, either deny its original validity, or υ. EX'RS: show that it has been paid. They are, then, essential RUSSELL parties, and the Court ought not to decree in favor of the Plaintiff, without them. It is possible, that they CLARK'S may consent to make themselves parties in this cause, and, as a Court may, instead of dismissing a bill brougnt to a hearing without proper parties, give leave to make new parties, the Court will, in this case, set aside the decree of the Circuit Court, dismissing this bill, and remand the cause to the Circuit Court, with leave to make new parties. SCHOONER CATHERINE v. THE U. STATES. 1812. Feb. 13th. Absent....Washington, justice. If the counsel for the Appel THIS case was dismissed because the counsel for lant neglect to the Appellant had not furnished the Court with a state- furnish the ment of the points of the case, agreeably to the general rule on that subject. It was afterwards reinstated by consent of parties. Court with a statement of the points of the case, the appeal will be dismissed, BINGHAM & OTHERS v MORRIS & OTHERS. Feb. 1812. 18th. MEREDITH, moved the court to dismiss this The rule to appeal, because the transcript of the record was not filed of error for dismiss a writ within the first six days of the term, agreeably to the not filing the general rule (ante vol. 3. p. 239.) The transcript was the record filed on the 18th day of the term and before the motion within the first to dismiss. six days of the term, does not apply to case transcript shall The COURT, (WASHINGTON, justice, absent) said that where the they did not consider the rule as applying to any case have been filed where the transcript shall have been filed before the mo- before the mo tion for dismissal. Motion overruled. tion to dismiss THIS was an appeal from the sentence of the The departure Circuit Court of the District of Connecticut which afof a vessel firmed that of the District Court condemning the sloop from the Active and Cargo. wharf of a port, and proceeding a mile and an half therefrom go to sea, is The libel stated that the sloop Active was an American vessel duly enrolled and licensed for the cod-fishery with intent to on the 5th of July, 1808, and had given the bond renot a depar- quired to be given by such vessels under the several ture from the acts of Congress laying and enforcing the embargo; the meaning of and had a permit to depart and be employed in the cod the 3d section fishery. port, within A licensed fishing vessel of the supplementary embargo act of That in the night between the 4th and 5th of July, January 9th, 1808, at the port of New London, there was secretly 1808, if the vessel had not and unlawfully laden on board her, a cargo consisting actually gone of barrels of beef, fish, butter, &c., without the knowout of the port before seizure. ledge and not under the inspection of a revenue officer, with intent unlawfully to proceed with the vessel and is liable to for- Cargo to some place without the port, barbor and disfeiture [under trict of New London. That the vessel so laden, left the 32d section her place at the wharf in the port of New London, in the 18th of Fe- the night, without the knowledge of any custom house bruary, 1793, officer, without a license or permit, and without any for enrolling & licensing vescustom house papers, and departed therefrom and out sels] for sailing, of the said port, and proceeded on her said intended unlawful voyage goods with into some place to the custom-house offitent to carry cers unknown. That the cargo was worth more than them to and 600 dollars. That the vessel was unlawfully employed ther place, without a li- in trade other than that for which she was licensed. of the act of laden with cense therefor, although the goods are The facts of the case appeared to be as stated in the wholly of do- libel, except that the vessel was seized in the act of mestic growth leaving the port, but before she had gone out of the ture and not port; and that Gates, the owner of the greater part of liable to any the cargo, was neither master, owner nor mariner of duty. But such cargo is the vessel. |