1818.

Lanusse

V.

etts. And that the said firm or house of John Taber & Son, having failed prior to the said month of May, 1807, and at the time of such failure largely Barker. indebted to the defendant; and this said defendant visited Portland for the purpose of securing his demand against said firm of house of John Taber & Son; and soon after his return, he, about the 1st of May 1807, in conversation with Gabriel S. Shaw, of the firm of Corp, Ellis & Shaw, Merchants, residing in this city, about the charter of a ship, mentioned to said Shaw, that he, Barker, had just returned from Portland, where he had been for the purpose of getting security from John Taber & Son, when he, said Shaw, informed him that they had, a few days previously, sent bills drawn at New-Orleans on said Taber and Son, under cover to the said Tabers, for acceptance, to the amount of ten thousand dollars; and inquired if he, this defendant, supposed they would, in the deranged state of their business, return them regularly protested or accepted? From this defendant's knowledge of said Taber's business he believed that those bills were drawn in payment for the ship Mac's cargo; this being the only information this defendant had of any bills being drawn at New-Orleans on said John Taber & Son, he was induced to accompany the said Gabriel Shaw to his office, to ascertain the particulars; who, at the instance of this defendant, exhibited to him either a letter or one of the same sets of bills by which this defendant learnt they were drawn by Paul Lanusse, at New-Orleans, on John Taber and Son, Portland, in part payment for the cargo of the Mac. That this defendant, acting

from the information so received, and from no other in formation or advice whatever, and, also, from an ap. prehension that the said complainant, when he should hear of the failure of the said house of John Taber & Son, would claim from this defendant the amount for which the said bill or bills were drawn, and thereby expose this defendant to an expensive course of litigation in resisting the said plaim, if any should be made, he, this defendant, wrote to the said John Taber & Son a letter on the srbject of the said bill or bills, and which letter, he believes, is as follows, to wit:

John Taber & Son,

New-York, 5 mo. 5th, 1807.

I am this day advised of Paul Lanusse's having drawn on you to the amount of ten thousand dollars, which bills were forwarded to you for acceptance: for the payment of those drafts I am not liable, as I only promised to accept in case of his drawing on me. You undoubtedly, accepted those bills; if not, and you have them, be pleased at all events, to accept them,, as if they are returned without acceptance, the charge will be, as at first, for the shipment for which Lanusse may possibly think me answerable, but if the bills are accepted, he can only look to you. The debt, as to him, thereby becomes of another nature, but as to you it is the same thing, and cannot place you in any worse situation. Therefore, let them be accepted, and if you have returned them without acceptance, authorise me to accept them as your agent to this business; VOL. III. 18

1818.

Lanusse

give immediate attention as I must not he made answerable for them; although injured,

V.

Barker.

I am yet your friend,

JACOB BARKER,

And that afterwards this defendant wrote another letter to the said John Taber & Son, which he believes is as follows:

John Taber,

New-York, 5mo. 15, 1807.

This day's mail brought me thy letter, by which I am surprised to observe thee has refused compliance with my request. I cannot account for the strange advice your merchants gave respecting protesting those bills. I, however, admit that in ordinary cases there would not be much impropriety in protesting them, though I could not possibly alter the state of your business, the debt being indisputable, their being accepted only acknowledged the debt to be due; but I must insist if thee has any regard to justice, that thee will, if not returned, accept them for account of John Taber & Son; if returned, authorise me to accept the m for their account. I consider the argument that I expected to secure the Mac and cargo, no excuse at all, particularly as no attachment can be made in this state for partial benefit, all attachments must be made for the benefit of all the creditors. So that if I have property in my hands, the best possible step the creditors could take would be for one of them to attach it in my hands therefore, must pointedly insist on thy accepting, or ordering me to accept those bills.

As to

1818.

y. Barker

advice from thy neighbours, it is one of those simple cases that do not require advice, and I say expressly, Lanusse when thee considers my situation, thee cannot honestly refuse my request. If I was in thy situation, and all the world advised me not to do it, I should not pay the least respect to such advice, but accept the bills without a moment's hesitation. If thou thinks Paul Lanusse will be a more difficult creditor than I shall be, thee will, under present circumstances, be mistaken, to where I am thus forced into a monstrous loss, I shall be very difficult, although, in common cases, should be favourably disposed.

Your friend,

JACOB BARKER.

The plaintiff further proved by Joseph Thebaud, of New-York, the plaintiff's agent, that in the beginning of October, 1807, he received from the plaintiff the following account, dated 1st September, 1807, at NewOrleans, which he showed to the defendant, and demanded payment of the same, which was refused by the defendant:

1818

Lanusse

V.

Barker.

Dr. Mr. Jacob Barker of New-York, for account of Messrs. John Taber and Son, of Portland, in acct. current with Paul Lanusse. Cr.

The plaintiff further proved, that in the suit first above mentioned, which had been depending between him and the defendant in the supreme court of the state of New-York, the plaintiff suffered a nonsuit, on the nineteenth of December, 1808, after the judge had charged the jury in favour of the defendant. And the plaintiff further proved, that he did, on the 30th of January, 1809, draw two new sets of bills upon the defendant, which were produced and read in evidence by the plaintiff's counsel, and are in the words and figures following: