Willinks v. Hollingsworth. 6 W.

it in, should those placed in their hands be insufficient; but he is entirely silent with respect to their having any other agency in the voyage.

It was impossible for these gentlemen to read this letter without, at least, doubting their power to interfere further, with respect to the voyage to St. Petersburg, than to advance the money which might be required for the cargo to be purchased at that place. The letter contains all the information and all the power which was necessary for this purpose, but contains neither information nor power for any other purpose.

It was natural for the Messrs. Willinks to require further information on this subject, and to seek it from the master. He could have no motive for withholding his letter of instructions from them, and

in that they would find that the management of the voy[*255] age was committed to him, and that the utmost confidence

was reposed in his intelligence and integrity. "I hope," says M'Kim," that every exertion will be made to proceed to St. Petersburg immediately, if you do not go to Batavia, and the ship cannot be sold." These exertions were to be made by the master; he was to proceed immediately to St. Petersburg; and as no reference is here made to the Messrs. Willinks, the fair inference seems to be that he was expected to proceed, not in consequence of any orders he should receive from them, but in consequence of the orders he had received from the owners. "The same industry," he is told, "must be used to get away from St. Petersburg." The letter then adds: "the owners must also depend on your attention at St. Petersburg, that the hemp is good that you receive."

But the part of the letter which seems to be conclusive on this point, is that which relates to the consignment of the ship. "The Messrs. Willinks," says the writer, "will, of course, endeavor to consign the ship to a friend of theirs at St. Petersburg, but we have great confidence in a house recommended by Mr. Cumberland D. Williams, Messrs. Meyer and Buxner, and we wish you to consign the ship to them."

The owners, then, did not suppose that they had empowered the plaintiffs to order the ship to St. Petersburg. They did not suppose that their original consignment of The Henry Clay to the Messrs. Willinks implied a control over her after the transactions at [*256] Amsterdam should be terminated. Had such a control ex

isted those gentlemen would not have consigned her to one of their friends. But these words show conclusively that the defendants themselves directed the consignment of the ship from Amsterdam to St. Petersburg, and in executing their orders the master is not

Willinks v. Hollingsworth. 6 W.

merely directed to proceed without consulting the Messrs. Willinks; he is directed to disregard their advice should it be offered.

The plaintiffs could not compare this letter with that addressed to themselves, without perceiving that, with respect to the voyage to St. Petersburg, every order was given directly to the master, without reference to them further than to show that their interference with respect to the consignment of the ship, was to be disregarded; and that their agency was confined to advancing the necessary funds for the purchase of the return cargo.

Both the master and the Messrs. Willinks appear to have acted on this construction of their respective powers. The correspondence between them contains no indication of an opinion in either, that the voyage to St. Petersburg depended on the orders of those gentlemen. The master does not require their orders, but asks their advice; they do not attempt to order, they only advise. This advice may have been dictated by their best judgment, or may have been dictated by a view to personal interest; still, it is mere advice, and was both given and received as advice.

The conduct of the parties, then, is full proof of the opinion each entertained of the authority of each; and the first letters written after they had met in * Amsterdam, show that free [* 257 ] communications had taken place between them. In a letter of the 19th of June, addressed to Captain Gantt, the Messrs. Willinks say: "We have not received yet the promised note of the Russian goods that would be wanted for The Henry Clay." And in the captain's letter from the Helder, of the 18th of June, he says: "Herewith I annex you a copy of the order for Russian produce, which the owners of The Henry Clay wish to constitute her return cargo."

These letters strengthen the probability that in the verbal communications, which were made at Amsterdam, the captain had stated his orders relative to the voyage to St. Petersburg; at any rate, they show that the note for the cargo, which had not been transmitted to the Messrs. Willinks, had been intrusted to him. There is an expression in the last letter of the plaintiffs to the defendants, which seems to have some bearing on the question, whether the captain had communicated to them his letter of instructions. They say: "You cannot expect, gentlemen, that we shall enter here into all the details of this business, which has been conducted by us, bonâ fide, with a view to your greatest benefit and advantage, faithfully relying on your promises, and considering the incomplete state of your instructions to us, that your captain was furnished with more particular orders."

There is a vagueness in these expressions, arising, probably, from

Willinks v. Hollingsworth. 6 W.

the unskilfulness of the translation, if they were not written [258] in our language, which leaves it, in some measure, uncertain whether the plaintiffs meant to assert that the captain was furnished with more particular orders, or that they inferred this fact from the incomplete state of the instructions to themselves. If the case depended entirely on the question, it might, perhaps, be proper to refer to the original; but we do not think that the right of the defendants to the deduction they claim from the demand depends entirely on the fact that their orders to their captain were shown to the plaintiffs. Their letter to the plaintiffs was, at best, equivocal; and any evidence showing that the construction which the plaintiffs put on that letter, conformed to the intention of the defendants, will justify the plaintiffs, although that evidence was not in their possession pending the transaction. The defendants cannot be permitted to say: "It is true, we did not intend to consign The Henry Clay to further than was necessary to your agency in Amsterdam. We did not intend to give you any control over her voyage to St. Petersburg. We had committed that whole subject to our captain, and had given him precise orders respecting it. We had even gone so far as to direct him to disregard your consignment of the vessel, should you endeavor to make one. But you did not see these orders, and we will, therefore, make you responsible for not having understood our letter to you, as creating a duty which we did not intend it should create." This, certainly, cannot be permitted. As little

you

can they be permitted to charge the Messrs. Willinks, in [*259] consequence of the advice they gave, with the profits which

might possibly have been made on the voyage to St. Petersburg. Although the orders were broken with their advice, still, they were broken by the master, to whom their execution was confided, not by the Messrs. Willinks, to whom their execution had not been confided.

Were it even possible that the Messrs. Willinks could be made responsible in any form of action which could be devised, for the possible loss resulting from the breaking up of the voyage to St. Petersburg, they cannot, we think, be made responsible in this. Hav ing loaded The Henry Clay at Amsterdam, clearly without authority, the cargo was shipped at their risk. The defendants might have refused it altogether. But they have sold it, and received the money. This creates an assumpsit to pay the money received. This action, then, so far as respects the count for money received by the defend ants to the plaintiffs' use, is founded on the transactions in Baltimore; and, were it even possible, which we are far from admitting, that the defendants could be allowed to make a deduction of this supposed

Green v. Watkins. 6 W.

loss from the sum to be recovered on the count for money laid out and expended to their use, provided that count could be supported, yet they cannot be allowed to make that deduction from the sum to be recovered on the count for money had and received to the use of the plaintiffs for goods sold as the goods of the plaintiffs.

GREEN v. WATKINS.

6 W. 260.

*By the rule of this court, if either party, in real or personal actions, die, pending [* 261 ] the writ of error, his representatives in the personalty or realty, may voluntarily become parties, or may be compelled to become parties, in the manner prescribed by the rule.

B. Hardin, for the defendant in error, moved to dismiss the writ of error in this case, which was a real action, upon a suggestion of the death of the demandant and plaintiff in error, pending the proceedings in this court.

STORY, J., delivered the opinion of the court.

The preliminary question which has been argued at the

bar, is, whether the writ of error in this case, which is a [* 262] writ of right, has abated by the death of the demandant, who is the plaintiff in error, pending the proceedings in this court. There is a material distinction between the death of parties before judgment and after judgment, and while a writ of error is depending. In the former case, all personal actions by the common law abate; and it required the aid of some statute, like that of the 31st section of the Judiciary Act of 1789,1 c. 20, to enable the action to be prosecuted by or against the personal representative of the deceased, when the cause of action survived. In real actions, the like principle prevails, for a still stronger reason, for, by the death of either party, the right descends to the heir, and a new cause of action springs up; and the plea is not, therefore, in the same condition as it was in the lifetime of the party.

But, in cases of writs of error upon judgments already rendered, a different rule prevails. In personal actions, if the plaintiff in error dies before assignment of error, it is said that by the course of proceedings at common law, the writ abates; but if after assignment of errors, it is otherwise. In this latter case, the defendant may join in error, and proceed to get the judgment affirmed, if not erroneous and he may then revive it against the representatives of the plaintiff

11 Stats. at Large, 90.

Cohens v. Virginia. 6 W.

But in no case does a writ of error in personal actions abate by the death of the defendant in error, whether it happen before or after errors assigned. If it happen before, and the plaintiff will not assign

errors, the representatives of the defendant may have a scire [* 263] facias quare executio non, in order to compel him; if it happen after, they must proceed as if the defendants were living, till judgment be affirmed, and then revive by scire facias. And the plaintiff, in order to compel the representatives of the defendant in error, to join in error, may sue out a scire facias ad audiendum errores, either generally, or naming them. Such is the doctrine of approved authorities. 2 Tidd's Pr. c. 43; Error, p. 1096. It is clear, therefore, that at common law, in these cases, a writ of error does not necessarily abate; and that the personal representatives may not only be admitted voluntarily to become parties, but a scire facias may issue to require them to become parties. And such has been the practice hitherto adopted in this court in all personal actions, whether there has been an assignment of errors or not; for, a specific assignment of errors has never been insisted on here, as a preliminary to the argument, or decision of the cause.

In respect to real actions, this is the first time the question has presented itself upon a writ of error, where the death of either party has occurred pendente lite. There is no doubt that the heir or privy in estate, who is injured by an erroneous judgment, may prosecute a writ of error to reverse it. And there seems no good reason why, in case of the death of his ancestor, pending proceedings, he may not be admitted to become a party, or be cited to become a party, to pursue or defend the writ, in the same manner as in personal actions.

The death of neither party produces any change in the con[* 264] dition of the cause, or in the rights of the parties. It would seem reasonable, therefore, that the suit should proceed, and not be dismissed or abated. In the absence of all authority which binds the court to a different course, we are disposed to adopt this doctrine, and shall promulgate a general rule on the subject. Rule accordingly.1

7 W. 530.

COHENS V. VIRGINIA.

6 W. 264.

The 25th section of the Judiciary Act, (1 Stats. at Large, 85,) is a constitutional law. It applies to and includes a case in which a State proceeds in its own court, by indictment, against one of its citizens, who attempts to defend under an act of congress; and this

' Vide Rule No. 28, February term, 1821.