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United States v. John Willard et al.

warrant, must be charged to such appropriation in the books of the proper officer in the Treasury Department, and the officer who receives such money for disbursement, is required to render distinct accounts of the application of the money, according to the appropriation under which the same shall have been drawn.

By an act of the 12th of December, 1812, there was an appropriation of a million of dollars towards defraying the expenses incurred, or to be incurred, under certain laws therein mentioned, authorizing the calling out of the militia. This was therefore an appropriation on account of the militia, and all advances under it would be properly chargeable to the appropriation under that name.

The bond in question was given a few days afterwards, (23d December, 1812,) and recites, that money had been advanced to Baldwin to pay the militia of the state of New-York, in the service of the United States, in the county of St. LawThe amount advanced is left blank in the bond, but the Treasury account shows it was twenty thousand dollars: And the law required it to be charged to the appropriation on account of militia, which fully explains the reason why that advance stands so charged.

rence.

The other charge of advances to Baldwin is twenty-nine thousand seven hundred and thirty-two dollars forty-two cents, pay of the army. And the opinion of the witnesses was admitted to establish the fact, that this was to be expended on account of the regular army, excluding the militia. But the account per se warrants no such conclusion, as will be evident from the laws making the appropriation.

By the acts of the 20th of January, 1813, and of the 3d March of the same year, the appropriations are to defray the expenses of the military establishment of the United States

b 4 Vol. L. U. S. 487. 527.

United States v. John Willard et al.

for the year 1813, including volunteers and militia in the service of the United States-and there was no separate and distinct appropriation for the expenses of the militia. All advances under this appropriation would be properly chargeable to the appropriation for the army generally, including the militia; and expenditures would be properly made under it for account of the militia.

The appropriations for 1814 are in like manner for the military establishment generally. The appropriations for this year do not properly come under consideration in the present case, as the accounts apply only to expenditures in 1812 and 1813; but they serve to show, that after the first distinct appropriation for militia in 1812, there were no separate appropriations for the regular troops and the militia, but they were united under the denomination of the military establishment of the United States, the militia being particularly mentioned and included. And unless the expenses of the militia were to be paid out of these appropriations of 1813 and 1814, there was no appropriation to defray such expenses.

It does not therefore follow, that because the advances were made to the paymaster under the appropriation for the army, (in which I understand the militia to be included,) that he was to expend the money on account of the regular troops; so that if the testimony was admissible, the witnesses I think have drawn a conclusion not warranted from any thing appearing on the face of the accounts, in connexion with the laws of the United States making the appropriations.

The judgment must therefore be reversed, and a venire de novo awarded, returnable in this Court; and the doubt which at present seems to hang over the case may be easily explained by proper inquiry at the Treasury Department.

Baring v. Fanning.

BARING ET AL. v. FANNING AND COLES.

A judgment or decree of a Court can be used as evidence in another suit only as against parties and privies; and if in the second suit there are new parties, against whom the judgment could not have been used, had it been adverse, they cannot introduce it in their favour.

And it makes no difference that the new parties, as assignees of a chose in action, are endeavouring, together with the assignor, to enforce the same right that was established in the former suit in favour of the assignor.

And in such a case, where a Court of Chancery had ordered an account, and made a decree thereupon in favour of the assignor, it was held not to be a matter decided ex directo, by a Court of competent jurisdiction, so as to bring it within the exception to the general rule.

Ar the hearing of this cause, it was referred to a Master to take an account between the parties; and on the coming in of the report, exceptions were taken thereto by the defendants, and now argued.

The case made by the bill was as follows:

On the 20th December, 1809, Consequa, one of the complainants, a Hong merchant, residing at Canton, shipped at that place, on board the Chinese, a ship belonging to the defendants, a cargo of merchandise, the cost of which was 43,025 dollars 87 cents, consigned to the defendants, who were merchants of New-York, to be sold for the account of Consequa. The cargo having been received, on the 26th of September, 1810, Consequa assigned the cargo and its proceeds to the other complainants, William Baring, James Malony, and James T. Roberts, composing the firm of William Baring & Co., and on the 24th of December, 1810, advised the defendants of this assignment, by letter, and desired them, in case they had made any remittance to him on account of the shipment, or otherwise disposed of the funds arising from it, to make good to Baring & Co., or their agents,

Baring v. Fanning.

out of any other funds of his in their hands, the full nett proceeds of the shipment. Baring & Co. transmitted this letter to their agents, Willing & Francis, of Philadelphia, with an endorsement requesting the defendants to pay the contents to Willing & Francis. They communicated this letter to the defendants on the 27th of April, 1811, and on the 29th, the defendants replied, informing them that remittance had been made on the shipment, and that whatever balance should ultimately be found due to Consequa, would be paid to any one authorized to receive it. On the 24th of November, 1811, Consequa, by another letter, ordered the defendants to pay to the order of any one holding the before-mentioned assignment, any balance of any of his property, to an amount not exceeding 43,025 dollars 87 cents, which letter was in like manner delivered to Baring & Co., and by them endorsed, and transmitted through Willing & Francis to the defendants, and received by them on the 5th of August, 1811.

The bill prayed an account of the proceeds of the shipment, and of the payments and remittances on account of the same, and of the balance in hand; and that the defendants might admit funds in their hands belonging to Consequa, to the amount of 43,025 dollars 87 cents, or render an account of the effects of Consequa, in their hands, at the time they were notified of the assignment, and of the disposition thereof.

The cause was brought to a hearing on bill, answer, and proofs, and an order made, referring it to a master to take an account of the monies arising from the said shipment, and of the disposition thereof by the defendants; and of the amount due the complainants by virtue of the said assignment: And that if such monies should have been remitted to Consequa, or otherwise disposed of prior to the 5th of August, 1811, so that the same had not come to the hands of the complainants, that then an account should be taken between Consequa and

Baring v. Fanning.

the defendants to that time, so far as might be necessary to ascertain whether the balance, if any, due by the defendants to Consequa, for monies or merchandise, which might have come to their hands, was sufficient, with the remaining proceeds of said shipment, to make up the said sum of 43,0251 dollars 87 cents.

Upon the reference the complainants exhibited their charges, claiming the invoice cost of the shipment, with interest from the 5th of August, 1811; and in support of their charges, offered in evidence the decree and proceedings in the Court of Chancery of the state of New-York, in a cause between Consequa, the complainant, and the defendants, in which a balance was established against the latter of upwards of 100,000 dollars. This evidence was objected to by the defendants. In order to take the opinion of the Court, it was, however, arranged by the parties, that the Master should admit it, and report the whole amount of the complainant's charges.

Exceptions were taken to this report by the defendants, and now on the argument, it was agreed, that the decree and proceedings offered in evidence, were to be found in the report of the case, in 4 Johnson's Chancery Reports, 587, and 17 Johnson's Reports, 511.

R. EMMET for the defendants, insisted,

That as Consequa was the only one of the present complainants who was a party to the suit in Chancery, the proceedings and decree in that suit could not be given in evidence in this, because the other complainants were neither parties nor privies thereto, and if the decree had been against. Consequa instead of in his favour, they would not have been bound by it; and that if such had been the case, the defendants could not have availed themselves of it as evidence in this suit That therefore, as the decree could not have been

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