3 U.S. 331

3 Dall. 331

1 L.Ed. 623

Hills et al.
v.
Ross.

August Term 1796

3 U.S. 331

3 Dall. 331

1 L.Ed. 623

Hills et al.

v.

Ross.

August Term 1796

This cause came again before the court (see Ant. p. 184) and after a discussion upon the merits, it became a question, whether there had been a regular appearance of the parties to the suit below? The libel was filed by the British Consul, on behalf of Walter Ross, against Hills, May and Woodbridge (who formed a partnership in Charleston, under that firm) and John Miller. The plea was headed, ‘the plea of Ebenezer Hills, one of the company of Hills, May, and Woodbridge, in behalf of himself and his said copartners, who are made Defendants in the libel of Walter Ross;’ and concluded with praying, ‘on the behalf aforesaid, to be dismissed, as far as respects the said Hills, May and Woodbridge.’ The replication regarded the plea of Hill, as the plea of all the company; and the rejoinder was signed by ‘Joseph Clay, junior, Proctor for the Defendants.’ The decree below was against all the Defendants, and the writ of error was issued out in all their names; but there was evidence on the record, that May had been in Europe, during the whole of the proceeding, and no warrant of attorney, or other authority, to appear for him, was produced.

Ingersoll, contended, for the Plaintiffs in error, that partners had not power to appear for each other to suits; and that, in fact, nothing appeared on the record to show that they had done so, on the present occasion.

Tilghman, on the contrary, relied upon the rejoinder, where the Proctor states himself to be employed by all the Defendants; and insisted, that his authority could not be denied, or examined, particularly in this stage of the cause, and in this form of objection.*

On the 11th of August, the Chief Justice delivered the opinion of the Court, that, in the present case, there was a sufficient legal appearance of all the Defendants.

1

On the merits, it appeared, that the Plaintiffs in error, had directed to be sold, certain prize cargoes, captured by Captains Talbot and Ballard, under the circumstances, stated in the case of Jansen versus Talbot, ant. p. 133; and that, after notice of the claims filed by the owners of the prizes, they had received and paid over the proceeds to the captors: but, in so doing, they had acted merely as commercial agents, without any share in the ownership of the privateers, or any participation in the direction or emoluments of their illicit cruizing. The principal questions, therefore, were, 1st. Whether, in point of fact, the Plaintiffs had notice of the claims of the original owners of the prizes? And 2nd. Whether, after paying over the proceeds of the cargoes, they were responsible to the claimants for any thing, and for how much?

2

By the Court: It appears, that the damages have been assessed in the courts below, in relation to the value of the goods that were captured: but the Plaintiffs in error were not trespassers ab initio; and, acting only as agents, they should be made answerable for no more than actually came into their hands. The accounts of sales are regularly collected and annexed to the record. We are, therefore, at no loss for criterion: And we think that the decree should be so modified, as to charge them with the amount of sales, after deducting the duties on the goods, if the duties were paid by them.

3

The Decree was in the following words: Ordered, That the decree of the Circuit Court for Georgia district, pronounced on the 5th of May, 1795, be reversed, so far as the same respects the said Hills, May and Woodbridge; and it is further ordered, that the said Hills, May and Woodbridge, pay to the said Walter Ross, thirty-two thousand and ninety dollars and fifty-eight cents, the net amount of the sales of the cargo of the said ship, and five thousand six hundred and five dollars and twelve cents, interest thereon, from the 6th day of June 1794, to the twelfth day of August 1796, making together the sum of thirty-seven thousand six hundred and ninety-five dollars and seventy cents, and that the said Hills, May and Woodbridge, do pay the costs of suit-and a special mandate, etc.

*

Iredell, Justice. The doubt is, whether in a case like the present, one partner can authorise a proctor to appear for the whole company?

Chase, Justice. This court cannot affirm the decree, against persons who were not before the court that pronounced it; and the record must show, that they actually did appear. A bare implication, the titling of the plea, or a general statement, that one of the partners acts on behalf of them all, is not sufficient: For, though partners, in a course of trade, may bind each other; they cannot compel each other to appear to suits, nor undertake to represent each other in courts of law. What, however, is the legal effect of an appearance by a Proctor, an officer of the court, is another ground that merits consideration.