Dunnell v. Mason.

attachment of the property of a foreign corporation, and that of a private person, so far as the process of the Admiralty is concerned. The exceptive plea or allegation to the jurisdiction of the Court must, therefore, be overruled, and the corporation be assigned to appear and answer over to the merits of the cause; otherwise proceedings will be had upon their default against the property, as in other like cases.

JACOB DUNNELL v. ROBERT M. MASON.

Where a consignee, with a del credere commission, sells goods for his principal at a certain price, and afterwards, upon a suspension of specie payments in the State, receives payment in bank notes of the State banks at a depreciated value, he is not entitled to deduct the amount of the depreciation from the debt, but must account for the full price, at the specie, or par value, to his principal.

THIS was an action of the case to recover a balance of account claimed by the plaintiff, under the following circumstances. The plaintiff was a calico printer, at Providence; the defendant, a commission merchant, of the firm of Otis & Mason, at New York. In the year of 1838, the plaintiff contracted with the firm of Otis & Mason to print for them a large quantity of cotton cloth, at a rate fixed by the contract, and to receive payment for the said printing in the cloth, furnished by the plaintiff, at a price ascertained by the contract. The entire parcels of these prints were to be consigned to Otis & Mason, they to charge the plaintiff, on his proportion of them, the ordinary commission and guaranty, and the usual small charges. Instead of a division of the prints into parcels, one for the plaintiff, and one for the house of Otis & Mason, it was

Dunnell v. Mason.

agreed, in order to secure fairness in the sales, that the plaintiff should be entitled to that proportion of the proceeds of the whole of the sales, deducting commission, guaranty, and the usual small charges, which his (the plaintiff's) proportion of the prints bore to the entire parcels. Sales of these prints were effected at Baltimore and Philadelphia by Otis & Mason, before and after the suspension of specie payments by the banks of those cities, in October, 1839. In making up the account with the plaintiff, the defendant's firm, in addition to charges of commission, guaranty, &c., charged against the plaintiff the difference of exchange between the cities of Philadelphia, Baltimore, and New York, at rates varying from 6 to 10 per cent. To this charge for the difference of exchange on sales, effected before the suspension of the banks, the plaintiff objected. The objection was urged on the ground, that this was, in effect, the result of a composition by the defendant's firm with the purchasers of the prints, inasmuch as Otis & Mason appeared to have preferred taking the depreciated currency of the banks of the cities of Philadelphia and Baltimore in payment, rather than take the risk of the delay of payment, which would have been the consequence of exacting specie or its equivalent. This, however, was no matter of concern to the plaintiff, who was protected by the guaranty of Otis & Mason, as well from a partial, as a total loss.

The plaintiff allowed in his statement of the account for the difference of exchange on sales made after the suspension. This he allowed to be fair, as the price of the goods was probably enhanced by the price being fixed under a depreciated currency, out of which enhancement he could afford to allow the difference of exchange. But, as to the charge for difference of exchange on sales before the suspension, he insisted, that the guaranty protected him from that in fairness and in justice, as well as at law. If the firm of Otis & Mason

Dunnell v. Mason.

had preferred taking payment for the sales made in Baltimore and Philadelphia under a specie basis, after the suspension in a depreciated currency, rather than risk delay, or incur the expenses of a suit, or hazard some other loss, that was their concern, not the concern of the plaintiff, who was protected from all these accidents by Otis & Mason's guaranty.

For the defendant, it was contended, that this was a partnership in joint adventure. This difference of exchange was a loss not contemplated by the parties to the contract at the time it was formed, and it ought therefore to be borne equally between the parties. As the difference of exchange was a loss, which did not originally enter into the contemplation of the parties, it could not have been embraced within the objects of the guaranty.

Ames, for the plaintiff.

Whipple and Rivers, for the defendant.

STORY J., in delivering the opinion of the Court, said; If the plaintiff and defendants were originally partners in the goods, it would make no difference. The defendant acted under a del credere commission, and is therefore bound to account to the plaintiff, as his principal, for the full price, for which the goods were sold, the sale having been at the specie or par price. The plaintiff has nothing to do with the mode, in which the defendant collected the debt. If the purchaser had been totally insolvent, the defendant must have paid the full specie value to the plaintiff under his guaranty; and, receiving the amount in a depreciated currency is a pro tanto loss, for which the defendant is accountable to the plaintiff.

Comstock v. Seagraves.

SILAS COMSTOCK V. JACOB P. SEAGRAVES.

Where a cause is removed from a State Court to the Circuit Court of the United States under the Judiciary Act of 1789, ch. 20, § 12, and special bail is given; if the bail afterwards seek to surrender the principal, it should be in open Court, and not by a commitment to gaol according to the local law of the State. But, if the party is so committed, the Circuit Court will, upon the petition of the bail, grant a writ of habeas corpus to bring the party into Court, to be surrendered in discharge of his bail.

THIS was the case of a scire facias against the defendant as special bail for Willard Holbrook. The suit was commenced against the original defendant in the State Court of Common Pleas. Upon the removal of the cause into this Court, the bail on the original writ became discharged, and Seagraves became special bail for the defendant, in conformity with the provisions of the act of Congress in relation to such cases. Since the taking out of this scire facias, the present defendant had committed his principal to the Providence county jail, and now moved the Court, that he be discharged upon payment of costs on the scire facias. The motion being objected to, the Court decided, that the commitment of the principal did not in this case discharge the bail. Cases of special bail entered for the defendant upon a removal of his cause from a State Court into this Court, are not governed by the Rhode Island statute, but by the common law and the acts of Congress. This bail, therefore, could only be discharged by surrendering his principal into Court to be taken in execution, as at common law. The defendant then took leave to answer the cause, and prayed a writ of habeas corpus, in order to bring the principal into Court.

Upon a subsequent day in the term, the defendant was brought into Court upon the writ of habeas corpus, and surrendered in discharge of his bail, and thereupon was committed to

Tompkins v. Tompkins.

the custody of the marshal for twenty days, in order that he might be charged in execution upon an alias execution.

STORY J., on this occasion, said, The case does not fall within the provisions of the statute of Rhode Island respecting the commitment of the principal to gaol by his bail; but it must be governed by the Judiciary Act of 1789, ch. 20, § 12, and the doctrine of the common law applicable to bail. We shall, therefore, order the party into the custody of the marshal, to remain in gaol under his custody for thirty days, that the plaintiff may sue out an alias writ of execution, and charge him thereon, if he shall be so advised.

Pratt and Atwell, for the plaintiff.

Robinson and R. W. Greene, for the defendant.

SILAS TOMPKINS v. THOMAS G. TOMPKINS.

In England, the probate of a will by the proper ecclesiastical Court is conclusive as to personalty, but it is not even evidence as to the real estate, inasmuch as the Court has no jurisdiction except over wills of personal estate. The validity of wills of real estate is solely cognizable by Courts of Common Law, and the verdict and judgment thereon are conclusive only as between the parties to the suit and their privies.

The Courts of Probate in Massachusetts have complete jurisdiction over the probate of wills of both real and personal estate, and its decrees are conclusive upon all parties, and not reëxaminable in any other Court. Held, in the present case, that the probate of a will by the Supreme Court of the State of Rhode Island, is, under the State laws, final and conclusive upon the validity of the will, to pass the real estate in controversy.

ACTION of trespass and ejectment. The parties agreed to the following statement of facts : - Gideon Tompkins, on the 31st day of December, A. D. 1836, made and executed his last will and testament, thereby disposing of all his estate,