Executors of Clement v. Dickey.

the precaution he observed, by taking security on the cargo, shows that he did not place implicit reliance on the bills themselves.

The right of the plaintiffs, therefore, to recover upon these drafts, as bills of exchange, cannot, I think, be sustained. And this is conformable to the real justice of the case, as it will put at rest all claim for damages, by reason of the bills having been protested, which I should consider at least a hard case, if under any circumstances I felt myself bound to allow it.

But although the action cannot be sustained upon the bills of exchange, yet I think the defendant is answerable, as for goods sold and delivered, for the whole of the cargo purchased by captain Allyn of the plaintiff's testator. Believing, as I think I am fully warranted in doing, that captain Allyn acted in good faith, and with a view to promote the interest of his principal, his instructions ought to receive a liberal construction, where there is any latitude of discretion given. In a voyage so distant as the one in question, it is impossible to foresee and provide for every event, and some discretion must almost necessarily be left to the agent who is to have the management. In the present case we find in captain Allyn's instructions these clauses: "After leaving Antwerp, the care and management of the voyage will be reposed in you.' "_"Wherever you load, I wish it eventually to be a full cargo, and if the specie and credit you carry should fall short, you can take on freight, or extend your drawing, and, if needful, give security by bill of lading on so much of the shipment as your extra credit pays for." It is evident from these parts of the instructions, it was the wish and intention of the defendant that at all events the ship should return with a full cargo. And captain Allyn had authority to purchase it, and give the security he did by bill of lading. An account must therefore be stated between the parties, as for goods sold

Executors of Clement v. Dickey.

and delivered by the plaintiff's testator to defendant, to the full amount of the cargo; crediting the defendant with the monies paid at Batavia, and the proceeds of seven hundred piculs of coffee, deducting therefrom the sum paid for insurance, and rejecting all the other charges in the account of Samuel Williams.

Upon the trial, I thought the insurance ought not to be allowed; but, upon further reflection, I am inclined to allow it. Captain Allyn, by his instructions, was authorized to give security on the shipment paid for by his extra credit; and to make this security effectual and safe, insurance was necessary. It was actually paid on account of the plaintiff's testator. And the case fully warrants the conclusion, that no insurance was effected by the defendant that would have covered this part of the cargo.

The purchase of the cargo was entire, and laying the bills out of the question, as I have done, there is no rule or principle by which a distinction can be made as to price between that part paid for at Batavia and the other part of the cargo. The sale was undoubtedly a very advantageous one for captain Clement. Captain Allyn was averse to taking any more than he could pay for with the funds he had, but captain Clement insisted on his taking the whole. The bills being out of the question, we must look to what captain Allyn did, which was authorized by his instructions. He gave security on a part of the cargo, as he had a right to do, by assigning to the order of captain Clement seven hundred piculs of coffee, which went free of freight, and out of the proceeds of this coffee he had a right to pay himself for the balance; as this coffee was not charged with freight or insurance, there was every reason to conclude it would be amply sufficient to pay the balance due captain Clement.

Under these circumstances, I think it would not be just to charge the defendant with interest before the arrival of the vessel at Antwerp.

Executors of Clement v. Dickey.

The account must therefore be made up as upon an entire purchase, crediting what was paid at Batavia; the balance payable out of the proceeds of the seven hundred piculs of coffee, which came consigned to Clement's order. That not being sufficient, interest must be allowed on such balance from the time it was ascertained at 5 per cent.; balance payable in London, as the whole transaction, as appears evidently to have been the understanding, was to be wound up there.

The account must be stated on the principles above laid down, and judgment entered for the balance.

Griswold v. Hill.

DANIEL S. GRISWOLD v. SAMUEL HILL.

On exceptions to an answer for impertinence and scandal, Courts of Equity give the answer a liberal consideration, having regard to the nature of the case as made by the bill.

THOMPSON, J. THIS case comes before the Court on objections to the master's report, upon exceptions taken to the defendant's answer.

The general scope and object of the complainant's bill was to revive a partnership entered into between the parties, but which had been dissolved, and the articles cancelled, as is alleged in the bill, upon certain terms and conditions therein set forth. The bill alleges that the partnership had been formed at the particular desire and solicitation of the defendant, and with reference to certain exclusive privileges, which the complainant had applied for and expected to obtain from the Chilian and other South-American governments, and that the partnership would not have been entered into but upon the expectation that such exclusive privileges would have been obtained. That considerable delays and difficulties occurred to discourage and embarrass the complainant in his application: That the defendant wishing to leave Chili, and apprehending that the application would not succeed, became uneasy, and requested that the articles of partnership might be cancelled; and that the complainant, considering the prospect of obtaining the privilege nearly desperate, he at the urgent desire and solicitation of the defendant consented to treat the same as hopeless, and to cancel the articles upon cer-, tain terms and conditions, verbally agreed on; one of which was, that if the contemplated grant or exclusive privilege should be allowed by the Chilian government, so that the said partnership might go into effect as originally intended, the complainant might, at his election, have the partnership agree

Griswold v. Hill.

ment revived. And the complainant avers, that the articles of agreement were cancelled upon the express conditions stated in the bill, and not otherwise.

The first exception taken to the answer, and which was allowed by the master, related to the reasons for cancelling the articles of partnership. The defendant admits, as stated in the bill, that he considered the prospect of obtaining the contemplated privilege as nearly desperate, and that he believes the complainant so considered it; and that this was one reason why he became extremely desirous of cancelling the articles; but also states, that another and stronger reason operated on his mind, which was "that he had become entirely convinced that any connexion in business with the complainant would be in a high degree inexpedient and unsafe."

The exception is taken to the additional reason here assigned for cancelling the articles of partnership.

This exception was allowed by the master as both imper.tinent and scandalous. But the exception cannot in the opinion of the Court be sustained on either ground. The answer does not in this respect, go entirely out of the bill, and state what is altogether irrelevant to the case made by the bill. The complainant had alleged that the partnership had been entered into at the particular desire and solicitation of the defendant, and is fairly to be understood as asserting, that the only reason why it did not go into operation, was the failure in procuring from the Chilian government the exclusive privilege contemplated. The answer might not probably have been excepted to for insufficiency, if it had omitted to state the matter excepted to. But Courts of Equity on this point of matter irrelevant always give the answer a liberal consideration, having regard to the nature of the case as made by the bill; and if there was any other reason which operated with the defendant to wish a dissolution of the partnership, than that which is assigned in the bill, it was not altogether ir