[Veazie v. Wadleigh.]

tions ought to be allowed. If it were necessary to accomplish this object in the most formal way, we should order the case to stand continued until the next term of this Court; so that the plaintiff might, in the intermediate time, make an application to the circuit court in term, to enter a discontinuance thereof in that court.

The only point of difficulty is, whether the filing of the above paper in the circuit court, in vacation, constitutes, per se, a discontinuance of the original cause; without any action of the circuit court thereon, upon which this Court ought now to act. According to the practice of some of the courts in the Union, it is understood to be the right of the plaintiff to enter a discontinuance of the cause at any time, either in term or in vacation, upon the payment of costs, before a verdict is given, without any formal assent of, or application to, the court; and that thereupon the cause is deemed, in contemplation of law, to be discontinued. In Massachusetts and Maine, a different practice is understood to prevail; and the discontinuance can only be in term, and is generally upon application to the court. In many cases, however, in these states, it is a matter of right. In Haskell v. Whitney, 12 Mass. R. 49, 50, this doctrine was expressly recognised. The court, on that occasion, said: "The plaintiff or demandant may, in various modes, become nonsuit, or discontinue his cause at his pleasure. At the beginning of every term at which he is demandable, he may neglect or refuse to appear. If the pleadings are not closed, he may refuse to reply, or to join an issue tendered; or after issue joined, he may decline to open his cause to the jury. The court also may, upon sufficient cause shown, allow him to discontinue, even when it cannot be claimed as a right, or after the cause is opened and submitted to the jury." Before trial, then, the plaintiff may, in many cases, as a matter of right, discontinue his cause according to the practice of the state courts; at any time when he is demandable in court. After a trial or verdict, he can do so only by 'eave of the court, which it may grant or refuse, in its discretion. But, under ordinary circumstances, before verdict, it is almost a mater of course to grant it upon payment of costs, when it is not strictly demandable of right.

Under the circumstances of the present case, we have no doubt that the plaintiff is estopped, hereafter, to withdraw his assent to the discontinuance of his suit in the circuit court; and that that court possesses full authority to enter such discontinuance at its next term, upon the mere footing of the paper filed in the clerk's office, without

[Veazie v. Wadleigh.]

any further act of the plaintiff. We think, too, that it would be the duty of that court to allow the entry of such discontinuance, upon the application of the plaintiff; as he certainly has a righť, in that or some other form, to decline to proceed further in the suit, or to prosecute it further, subject to the payment of costs to the defendants. In substance, then, we think the original cause in the circuit court ought now to be treated by us as virtually at an end, for all the purposes of requiring our decision upon the certified questions; and that the motion to withdraw the record, and discontinue the case, ought to be granted.

In making this decision, we wish to be understood as not meaning to intimate that the party, upon whose motion any questions are certified to this Court under the statute, has a right, generally, to withdraw the record, or discontinue the case here; while the original cause is retained in the circuit court for ulterior proceedings. That is a point of a very different nature from that now before us, and may require very different principles to govern it. It will be sufficient to decide it, when it shall arise directly in judgment.

On consideration of the motion made in this cause, on a prior day of the present term of this Court, to wit: Thursday, the 12th inst. by Mr. Smith, of counsel for the plaintiff, to dismiss this cause, and of the arguments thereupon had, as well in support of as against the motion, it is now here considered by the Court, that said motion be, and the same is hereby granted. Whereupon it is now here ordered and adjudged by this Court, that this cause be, and the same is hereby dismissed.

CRAWFORD ALLEN, APPELLANT V. JOHN HAMMOND, APPELLEE.

The brig Ann, of Boston, on a voyage from New Orleans to Madeira, &c. was unlawfully captured by a part of the Portuguese squadron; and was, with her cargo, condemned. Upon the remonstrance of the government of the United States, the claim of the owner for compensation for this capture was, on the 19th of January, 1832, admitted by the government of Portugal, to an amount exceeding $33,000; one-fourth of which was soon after paid. On the 27th of January, 1832, the owner of the Ann and cargo, neither of the parties knowing of the admission of the claim by Portugal, made an agreement with the appellant, to allow him a sum, a little below one-third of the whole amount of the sum admitted, as commissions, on his agreeing to use his utmost efforts for the recovery thereof. At the time this agreement was made, which was under seal, H. the appellee, was indebted to the appellant A. $268 for services rendered to him in the course of a commercial agency for him. In the contract, it was agreed that this debt should be released. Under the contract, A. received the payment of one-fourth of the amount admitted to be due to H. by Portugal; and H. filed a bill to have the contract rescinded, and delivered up to him; the debt of $268 to be deducted fm the same, with interest, &c. The circuit court made a decree in favour of H., and on the payment of $268, with interest, the contract was ordered to be delivered up to be cancelled. The decree of the circuit court was affirmed; the court being of opinion, that the agreement had been entered into by both the parties to it, under a mistake, and under entire ignorance of the allowance of the claim of the owner of the Ann, and her cargo. It was without consideration services long and arduous were contemplated, but the object of those services had been attained.

If a life estate in land is sold, and at the time of the sale, the estate is terminated by the death of the person in whom the right vested, a court of equity would rescind the purchase. If a horse is sold, which both parties believed to be alive, the purchaser would not be compelled to pay the consideration.

The law on this subject, is clearly stated in the case of Hitchcock v. Giddings; Daniel's Exchequer Reports, 1, where it is said that a vendor is bound to know he actually has that which he professes to sell. And even though the subject of the contract be known to both parties to be liable to a contingency, which may destroy it immediately; yet if the contingency has already happened, it will be void.

APPEAL from the circuit court of the United States, for the district of Rhode Island.

In the circuit court of Rhode Island, the appellee, John Hammond, filed a bill praying that a certain instrument in writing, executed by him and the appellant, in January, 1832, by which he had stipulated to allow to the appellant a compensation for establishing a claim on the Portuguese government, for the illegal capture of a

[Allen v. Hammond.]

vessel belonging to him, should be cancelled; the consideration for the said stipulation having failed. The bill also prayed for other relief, and that the instrument should be delivered up to be cancelled.

The circuit court gave a decree in favour of the complainant; and the defendant appealed to this Court.

The facts of the case are fully stated in the arguments of counsel; and in the opinion of the Court.

The case was argued by Mr. Green, and Mr. Ogden, for the appellant; and by Mr. Webster for the appellee.

This was a case in equity, and came before the Court on an appeal from a decree of the circuit court of the United States for the district of Rhode Island.

John Hammond filed his bill against the appellant, praying, among other things, that a certain power of attorney, and a certain agreement between said Hammond and Allen, mentioned in the bill, might be decreed to be delivered up to the complainant to be cancelled. The power of attorney referred to is an irrevocable power from Hammond to Allen, to receive from the government of Portugal, or of the United States, and of and from all and every person and persons whomsoever, a certain claim or demand which said Hammond had for and on account of the capture and condemnation of the American brig Ann, of Boston, and her cargo, on a voyage from New Orleans to Goree, (intending to stop and trade at Fayal, Madeira, and Teneriffe,) by the Portuguese squadron cruising off the island of Terceira, and condemned by the tribunal sitting at Lisbon, under the authority of the Portuguese government, on the 22d of December, 1831. The agreement was made on the 27th day of January, 1832, between Hammond and Allen, by which Hammond agreed to pay Allen ten per cent. on all sums recovered until the amount should equal 8000 dollars, and on all sums, over that amount, thirtythree per cent.; and Allen agreed to use his utmost efforts to bring the claim to a favourable issue, and to receive the aforesaid commission. in full compensation for his services and expenses, already incurred, or thereafter to be incurred, in prosecuting the claims.

The bill, amongst other things, alleges that on the 19th of January, 1832, in consequence of measures taken by the representatives of the government of the United States, at Lisbon, the Portuguese gó

[Allen v. Hammond.]

vernment recognised and admitted the complainant's claim to the amount of 33,700 dollars, of which he alleges he was ignorant until the month of March, 1832. That the power of attorney was executed in consequence of certain representations made by Allen, that he could render important services in prosecuting the claim against the Portuguese government, without which services the claim would be lost; and that Allen proposed to Hammond to appoint him his agent; that he was then ignorant his claim had been recognised, and also that the agreement was executed while he remained ignorant of the fact.

The bill also charges, that the claim has not been liquidated or paid, in consequence of any interference or exertions of the defendant, or through any agency or influence on his part.

That both said instruments were executed without due consideration, and when the complainant was ignorant of the situation of his claim on the Portuguese government. That the contract of January 27th, 1832, "was entered into and executed without any adequate consideration or services to be by the said Crawford Allen paid or performed," under mistaken views and ignorance of the then situation of the complainant's claim; and is hard, unconscionable, and unequal, and ought, on that account, to be set aside, even if said claim had not been liquidated by the Portuguese government, at the time said contract was made and executed.

The answer gives the history of the acquaintance between the complainant and defendant; shows the measures to enforce this claim, which the defendant had taken as the agent of the complainant, prior to the execution of the power of attorney; that those measures were approved by the complainant; that the power was read to him; that three copies were executed; and that the complainant saw all the letters which the defendant had received. It alleges that the defendant relinquished all claims for commissions and services, amounting to 268 dollars, then due him; and that the consideration to the complainant for executing said instruments, was the defendant's relinquishment of the immediate payment of the money then in his own hands, of what was then justly due to him. for commissions and for services already rendered in regard to the reclamation of said vessel from the Portuguese government, and the agreement on the part of said defendant, to use his "utmost efforts to bring the aforesaid claim to a favourable issue," and to sustain all the expenses in prosecuting said claim.

VOL. XI.-I