T
HE cafe was this:—In the clofe of the year 1777, one Stephea Backhouʃe arrived at Philadelphia from Liverpool, the troops of the king of Great-Britain being at that time in poffeffion of the city, Backhouʃe brought with him a large and valuable cargo of falt, which he ftored in the warehoufe of one Pritchard, and after a fhort ftay in Philadelphia, he went to New-York, (then likewiʃe in the poffeffion of the Britiʃh troops) configning the falt to Meffrs. Jones, Backhouʃe and Foulk, of Philadelphia, with directions that they fhouldfelt it for him, at the beft price they could get, but not under a dollar per bufhel. Backhouʃe, one of the confignees, was no relation whatever of Backhouʃe the owner.–The confignees, accordingly, fold part of the falt to different perfons, and on the 17th of June 1778, they fold the remainder to Wilcox, the plaintiff. On the 18th of June 1778, (the day fucceeding the fale) the Britiʃh troops evacuated Philadelphia. In January 1779 it was feized for the commonwealth as the property of the enemy. And the queftion was, whether the falt was the property of Wilcox, the plaintiff ; or became forfeited to the State of Pennʃylvania, as being the property of a Britiʃh fubject ?It is to be obferved, that no money was paid by Wilcox to the confignees at the time of the fale, though the key of the ʃtore was delivered to him. The price of the falt was to be a dollar per bufhel ; and the agreement, at the fale, was, that if the falt fhould be in the city when the American army entered it, then the money fhould be paid for it within (I think) two or three months ; but that if the falt should be deftroyed or taken the Britiʃh troops, in that event, the contract fhould be null and void. Thefe conditions were annexed to the agreement from a general apprehenfion, that the
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Britiʃh on evacuating the city, would either deftroy fuch ftores as they did not want, or take with them thofe articles whitch they might ftand in need of.
Theʃe facts, likewife, appeared in evidence on the trial ; that the confignees had been applied to by one of the plaintiffs five or fix days before the evacuation, to purchafe the falt ; that for three or four weeks before the evacuation, the Citizens of Philadelphia fuppofed it was intended ; that the whole of the Britiʃh army did not finally leave the city till the morning of the 18th, though their fhipping, for a fortnight before, had been, from time to time, dripping down the river ; that the price of falt at that time was only three fhillings per bufhel ; and that the plaintiffs have fince, to wit, in Auguʃt 1778, paid the full value of the falt, at the rate of a dollar per bufhel, to Jones and Co.
On behalf of the State of Pennʃylvania three points were made : 1ft. That the contract between Wilcox and Jones and Co. was not a compleat one, in as much as no money was paid, nor any poffeffion delivered of the falt. If, therefore, it was not a compleat contract, the falt was the property of a Britiʃh fubject, and, confequently, forfeited to the ftate by the rules of war, and the law of nations.–2d. That admitting the contract to be compleat, yet it was made to defraud the ftate of the forfeiture, and in contemplation of the intended evacuation.–3d. That if it was incompleat, though to be made compleat by a fubfequent event (to wit, the entry of the American army into the city, and the falt ftill remaining) yet the right of the ftate to the attached, if not fooner, at leaft, as foon (to wit, when the American army entered) as the right of the plaintiffs; and that, therefore, by the rules of law, the right of the ftate muft be preferred to the private claim.
1ft. Point. To the firft point it was argued;–that all contracts fhould be mutual ; that each of the contracting parties fhould have an equal remedy againft the other for the performance of the contract, or for damages on the non-performance of it ; that, in this cafe, Backhouʃe being an alien enemy, was entitled to no action againft the plaintiffs, but depended entirely on their liberality and honor for payment of the money, in cafe the falt fhould not be deftroyed or taken away by the Britiʃh troops.
1ft. Reʃp: pro: (illegible text) :—At the end of the war Backhouʃe will be entitled to his action againft the plaintiffs for recovery of the money due on the contract ; becaufe, though all rights and credits belonging to the fubjects of any power at war with another, are during the war fufpended, as againft the fubjects of that power, with whom their fovereign is at war, ftill on the reftoration of peace, thofe rights and credits are revived, and the fubjects of each nation, are in the fame fituation with refpect to debts due to and from each other, as they were before the war.
2d.Point. This was argued on both fides, from the various circumftances which appeared in the caufe ; the counfel for the ftats contending, that the nature of the tranfaction was evidently to trick
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the ftate out of the forfeiture, and the advocates for the plaintiffs infiftng that it was a bona fide fale.
3d. Point. Many cafes were cited, on behalf of the ftate, to fhew the right of the ftate, ought to be preferred to that of an individual, when they both accrue at one and the fame time.
3.Reʃp.pro(illegible text) The contract was compleat, though liable to be defeated by a fubfequent event ; and the delivery of the falt was alfo compleat by the delivery of the key of the ftore in which it was (illegible text). The price to be paid, was, indeed, the object to be affected by the fubfequent event, and no the falt itfelf. The diftinction between a condition precedent, and a condition fubfequent was take to fhew, that the property being once vefted in the bargainee, could be taken out of him, by any condition to be performed afterwards, which was impoffible, repugnant, or illegal ; and it was urged, that although the right of the ftate would have attached firft, it the plaintiffs had not obtained a prior proffeffion by the actual delivery of the falt ; yet, that having a poffeffion before the American army entered, and even before the evacuation of the Britiʃh, no fuch right could poffibly attach.
The chief justice delivered a charge to the jury of the following purport.
M'KEAN, C.J. As the council or both fides have quoted many eafes, but have not appealed to the court for their opinion on the different points of law, the jury muft take the whole together, and form their own judgment upon the fubject.
When the Britiʃh army evacuated Philadelphia, there was a debate in Congrefs, whether all the property found in the city, and belonging to the king of Great Britain, or any of his fubjects, fhould appertain to the United States, or to the State of Pennʃylvania only. It was at length agreed, however, that all public property, fuch as cannon, artillery, &c. fhould belong to the United States, and the private property of individuals, fhould belong to the State of Pennʃylvania.
An alien enemy has no right of action whatever during the war ; but by the law of nations, confirmed by univerfal ufage, at the end of the war, all the rights and credits, which the fubjects of either power had againft the other, are revived ; for, during the war, they are not extinguifhed, but merely fufpended. If, alfo, a conquered country is ceded, the old poffeffors are entitled to their eftates ; and when any country is conquered, the poffeffors are not deprived of their eftates, but only change their mafters. This is clearly the cafe between two independent powers ; but how will the cafe be between this country and Great Britain at the clofe of the war? Why, had we been conquered, our lives and all our property would have been the forfeit ; but even as the bufinefs now ftands, the fubjects of Great Britain may, perhaps, claim revival of the debts due to them from the Citizens of America, whilft we, by their acts of parliament, are deburred of the like privilege. It is hard that the people of America fhould, during the war,
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receive continental money for fpecie, and, at the end of it, be deprived of the debts due to them from abroad, whilft they are obligated to pay the debts due from them to Britiʃh fubjects. Unlefs fome care is taken, this may be the cafe. I would hope, therefore, that the affemblies of the different ftates will think ferioufly of it, and, with a view it may be attended to, I have given this hint upon the prefent public occafion.
With refpect to the cafe before the occur, the CHIEF JUSTICE feemed ftrongly with the plaintiffs, and the jury found a verdict for them accordingly.
Lewis and Wilʃon for the plaintiffs—Bradford and Ingerʃol for the defendant.