CLARK'S

The letter of 16th of March, 1801, did not bind EX'RS. Clark to pay any money to George Smith & Co. It was intended only to bind Clark to permit Carrington CARRING to have one sixth of the ship and cargo according to TON. the contract between him and Greene and Barker. The

v.

engagement of Clark was also upon a condition precedent, viz. that Carrington should return with the ship to Providence: which condition he never performed. It was very important to Clark to get possession of the ship, and he therefore annexed the condition to his promise, that the ship should be brought to his place of residence. There is no evidence that Clark knew of any other contract between Greene and Barker and Carrington than the agreement that he should have one sixth of the ship. The judge ought not to have left it to the jury to decide whether the conduct of Carrington, in not bringing the vessel to Providence, was satisfactory to Clark, as a compliance with the condition of his promise; but ought to have told the jury that the condition had not been performed, and therefore Clark was not bound by his promise.

The judge also erred in directing the jury that the letter of the 16th of March ought to be considered as a letter of guarranty, and binding Clark to pay five ninth parts of the judgment recovered by Smith & Co. v. Carrington. That judgment may include items for which Greene and Barker were not liable to reimburse Carrington. He erred also in directing the jury that the special counts were supported by the evidence, and that the Plaintiff might, upon the money counts recover less than the proportion of the judgment of Smith & Co.

Carrington had no equitable claim on Clark. Clark was not liable at all unless he was bound by the letter of 16th March. As to the premium of insurance upon the return voyage from Havanna to Hamburg, which constituted a great part of the claim of Smith & Co. against Carrington upon which their judgment was founded, it was an expense which arose solely from the neglect of Carrington to give due notice to Smith & Co. of his relinquishment of the return voyage, and therefore Carrington could not have recovered any part of it from Greene and Barker; and the judge ought to have instructed the jury accordingly.

TON.

Clark was a creditor of Greene and Barker, and had CLARK's as much equity as any other creditor. He took the bill EX'RS. of sale without notice of any prior equity. Clark, by 2. accepting the bill of sale, could not be considered as a CARRINGpartner, nor liable for any transactions prior to his interest in the ship and cargo. If Greene and Barker had never paid for the ship and had become insolvent, Clark could not have been held liable to the vendor. There was no lien on the vessel or cargo. An assignee is not a partner. There is no partnership without an agreement. 1 H. Bl. 37, 48. Watson on Part. 21, 67. 3 Bos. and Pul. 288, Parker v. Parker. 289, Chapman v. Cross.

STOCKTON, contra.

Upon every principle of law and justice this judg ment ought to be affirmed. The suit was by one joint owner to recover of another joint owner a proportion of a joint debt recovered against the Plaintiff. The verdict of the jury has settled all the questions of fact. There is no error in the form of the charge given by the judge to the jury.

1. As to the points of law arising in the case. The charge given by the judge to the jury regards two subjects: 1. That the letter of the 16th of March was, in connexion with the other evidence, a guarranty for five ninths of the debt due to Smith & Co. And, 2. That Clark, having received upon his five ninths of the ship and cargo, more than his proportion, ought to refund.

1. As to the letter of 16th of March. It clearly. binds Clark to do, in regard to that ship and cargo, and to the adventure, whatever Greene and Barker would have been bound to perform had they continued owners. There cannot be a doubt that Greene and Barker, as joint owners with Carrington, would have been bound to reimburse to Carrington five ninths of the debt due to Smith & Co. which Carrington had been compelled to pay. It is clear also that Clark understood his liability as going to that extent. This is to be inferred from his silence as to the letter of the 220 of April, 1801, which Carrington wrote to him in reply to his of the 16th of March; from the sanction which Clark gave to the subsequent voyage to London by his

CLARK's letter of 15th of May, 1802; from his having charged EX'RS. himself in account with five ninths of the out-fit for that voyage; from his having joined in another adventure CARRING- as to part of the cargo left at Guadalope; from his letTON. ter of the 9th of July, 1801; from his having conducted

the defence of the suit of Smith & Co. against Carrington; from his affidavit made to obtain a continuance of that suit; and finally, by agreeing to refer this cause to arbitrators to ascertain the amount for which the judgment should be rendered, thereby admitting a good cause of action against him.

If all the part owners are not named in a suit, and if those who are named do not plead that fact in abatement, and judgement be obtained against them, they may compel the others to contribute. Abbot, 71, § 13, first London edition. 2 Bos. and Pul. 268, 270. 1 East. 30.

No

But Clark was liable as a joint owner, independent of the express undertaking contained in his letter of the 16th of March. And even if he is to be considered as the mere assignee of Greene and Barker, he must stand in their place and take their interest cum onere. person claiming under a partner, or joint owner, can claim more than such partner or joint owner could have claimed, if he had not assigned his interest. Cowper, 449, Fox v. Hanbury.

2. The second opinion of the judge was, that if Clark had received the proceeds of five ninths of the ship and cargo, he was bound to refund five ninths of the debt which Carrington had paid to Smith & Co. and that Carrington had a right to recover the same in this suit upon the money counts. In this opinion also he was

correct.

If a person has received money, which by subsequent events he ought in equity and justice to refund, it is money had and received for the use of the Plaintiff. He might also in this case recover on the count for money paid, laid out and expended for the use of the Defendant. He paid the whole of the joint debt of which the Defendants ought to have paid five ninths.

The Plaintiff was also entitled to recover on the special count. The only question, on the point of plead

ing, is whether the contract in the letter be materially CLARK's variant from the count. The only variance alleged is EX'RS. in regard to the bringing of the ship to Providence; but

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TON.

the count is as general as the letter. The only question CARRINGthen is whether the return of the vessel to Providence was a condition precedent of the contract contained in the letter. The word "here" is satisfied if the vessel came into the United States. This was a question properly submitted to the jury. Could it mean that the

Plaintiff was bound at his peril and at all events, to bring the vessel into Providence? Shall nothing excuse him? Capture? nor tempest? nor the clear interest of the concern?

As a partner, and especially as husband of the ship, he had a discretion to act for the common benefit of all concerned. Abbot, 58, 59. The condition was substantially performed. If not, it was dispensed with by Clark. Time and place are not of the essence of the contract. If a horse be sold to be delivered at a certain place on a certain day, and the purchaser, before the day, receive the horse at another place, the contract is fulfilled. Clark made no objection to the delivery of the ship at Norfolk, but agreed to a new voyage from thence to London, and received the proceeds of that voyage without objection. He is bound by his acquiescence.

Then as to the admission of evidence.

1. It is objected that the record of the case of Smith and Co. v. Carrington, ought not to have been admitted in evidence, because it was res inter alios acta.

This objection admits of three answers.

1. It does not apply to this case because Clark, although not an ostensible party, was a party in interest. Where the parties are substantially the same, the record is evidence.-Gill. 35, Doug. 517, Kinnersly v. Small. 4. Dall. 120.

2. The 2d answer is that this is either a case of indemnity or warranty; and there is a privity between the person indemnified and the person indemnifying. The root of the principle is found in the common law doctrine of warranty. If the party were called to war

EX'RS.

TON.

CLARK's rant, the judgment was conclusive against him; and when the writ of warrantia charta yielded to covenant υ. the same principle applied.—4, Reeves, 167. Where a CARRING- person indemnified gives notice, to the person indemnifying, that a suit is brought against him, the judgment is conclusive against the latter in a suit by the former against him for indemnity.-3, I. R. 374, Duffield v. Scott. 1. Johnson, 517, Blandsdell v. Glasscock. So in an action of covenant on sale of land, the Plaintiff must show an eviction, which he can only do by the record of the suit against him.-6, Johnson, 158.

The principle of res inter alios acta never applies to a case of indemnity. Clark not only had notice, but actually defended the suit.

3. The 3d answer is that a judgment ascertaining a precise fact, character, or privilege is always evidence, whenever that fact, character or privilege comes in question between other parties.-2, Strange 1109.—5, Bur. 2601.-1, Bur. 146, 9, Mod. 66.

It is objected also that the letter from Clark to Smith and Co. of 30th of June, 1800, was irrelevant and therefore ought not to have been read in evidence. But it clearly refers to the subject-matter. It is also said that the letter from Greene & Barker to Smith & Co. was a letter between others, and ought not to have been admitted as evidence against Clark. But it was a letter from those under whom Clark claims, and by whose acts he is bound, so far as those acts relate to the property assigned to him. It was also evidence of the engagements of Greene and Barker, which Clark had undertaken to perform.

But it is said that Carrington ought not to recover, because the loss of the premium upon the insurance was owing to his negligence in not giving earlier notice of the alteration of the voyage. The answer is, that this was a matter left to the jury and properly in issue between the parties. There is no evidence of negligenee in the record.

HUNTER, on the same side.

The letter of the 16th of March was in itself a guar