Frevall v. Bache, 39 U.S. 95 (1840)

39 U.S.
95
14 Pet. 95
10 L.Ed. 369
PETER E. FREVALL, APPELLANT,

v.
FRANKLIN BACHE, ADMINISTRATOR OF JOHN
DABADIE,
DECEASED, APPELLEE.
January Term, 1840
ON appeal from the Circuit Court of the United States for Washington
county, District of Columbia.
This case was argued by Mr. Coxe, for the appellant; and by Mr. Key, for
the appellee.
Mr. Chief Justice TANEY delivered the opinion of the Court.
This case comes before this Court upon an appeal from the Circuit Court for the
District of Columbia.
The controversy has arisen out of the shipment of a cargo of cotton, indigo, and
coffee, made in the fall of 1809, in the brig Spencer, from Philadelphia to St.
Sebastians, or Port Passage. The vessel duly arrived, and discharged her cargo.
She was afterwards seized, and the cargo sequestrated by the French
government. In the following year, the vessel was liberated, and returned to the
United States: but the cargo was never restored.
The cargo of the Spencer thus sequestrated, was entitled to share in the
indemnity provided by the treaty with France, of July 4, 1831. But a dispute
arose before the commissioners appointed under that treaty, as to the right to
five-sixteenths of the indemnity allowed for this cargo. The opposing claimants
were the present appellant, who claimed for the whole of the cargo, and the
appellee, who claimed for the said five-sixteenths. The commissioners awarded
in favour of the latter.
The appellant therefore filed his bill against the appellee, in the Circuit Court
for Washington county, in the District of Columbia; alleging, among other
things, that a certain Andrew Curcier, then a resident merchant in Philadelphia,
was the owner of the Spencer and her cargo on the voyage in question; that the
said seizure and sequestration gave him a valid claim against the French
government; which he afterwards, for a valuable consideration, transferred to
the claimant, who took it without notice of any other claim. And he charges
also, that if Dabadie, the appellee's intestate, ever had an interest in the cargo, it
had been relinquished to Curcier by a settlement which took place between
them in 1818, long before the assignment to the complainant. And he produces,
as an exhibit, the account which, as he alleges, contains this renunciation: and
he prays that the appellee may be enjoined from receiving the five-sixteenths
awarded to him by the commissioners; and that the Secretary of the Treasury,
and the Treasurer of the United States may be enjoined from paying it.
To this bill the appellee put in his plea and answer, pleading the award of the
commissioners in bar of the complainant's bill; and also insisting, by way of
answer, Dabadie owned the five-sixteenths of the cargo in question, and had a
valid claim, on that account, against the French government; that he had never
transferred or relinquished it to Curcier; and that his (Dabadie's) administrator
was entitled to receive it out of the indemnity provided by treaty: and he
exhibits as the evidence of his interest in this cargo, an account, signed by
Andrew Curcier, in behalf of himself and Stephen Curcier, and dated June 16,
1810.
A general replication was put in by the complainant: and the testimony of a

witness residing at Marseilles, in France, was taken by agreement of parties.
This witness, it appears, is a native of France, but resided in Philadelphia; and
was engaged in commerce there from the year 1796 until 1827, when he
returned to his own country, where he has ever since resided. He was intimate
with Curcier and Dabadie; and he states in his testimony, that in the year 1818,
at Philadelphia, he, as umpire and mutual friend, settled an account between
them, in which all differences were finally adjusted; that the voyage of the
Spencer to St. Sebastians, and the ownership of her cargo, were settled in that
account; and that by the terms of the settlement, the claim on the French
government for indemnity was afterwards to belong to Curcier. The witness
mentions circumstances which took place at the settlement, to show that his
memory is firm and accurate in relation to it. He states that it was reduced to
writing in the shape of an account current, as was customary; and that two
accounts were made, exactly the same in every particular, both original, and
one of them delivered to each of the parties. No account current, however, was
exhibited to the witness at the time of his examination, and none therefore has
been identified by him as the account current settled between the parties in
1818: and he states that he had not recently seen it, nor had any communication
from any one in relation to its contents.
7
Upon the hearing, the Circuit Court dissolved the injunction, and dismissed the
bill: and the case is brought before this Court by the appeal of the complainant.
Two questions have been presented for consideration here:1. Is the decision
of the commissioners appointed under the treaty with France, conclusive upon
the rights of the parties? 2. If the case is not concluded by the decision of the
commissioners, is the appellant, upon the testimony in the record, entitled to
relief?
Upon the first question, the Court have entertained no doubt. This case cannot,
we think, be distinguished from the cases of Comegys vs. Vasse, 1 Peters, 212,
and Sheppard and others vs. Taylor and others, 5 Peters, 710. It has been argued
on the part of the appellee, that these cases were decided under the treaty with
Spain; and that the language of that treaty, and of the act of Congress creating
the board of commissioners under it, differs materially from the treaty and act
of Congress under consideration, when defining the powers of the board. It is
true, that there is a difference in the words used; but in our judgment, they
mean the same thing. The rules by which the board is directed to govern itself
in deciding the cases that come before it, and the manner in which it was
constituted and organized, show the purposes for which it was created. It was
established for the purpose of deciding what claims were entitled to share in the
indemnity promised by the treaty; and they of course awarded the amount to
such person, as appeared from the papers before them, to be the rightful
claimant. But there is nothing in the frame of the law establishing this board, or
in the manner of constituting and organizing it, that would lead us to infer that
larger powers were intended to be given than those conferred upon the
commissioners under the Spanish treaty. The plea therefore put in by the
defendant in bar of the complainant's bill, cannot be sustained; and the case is
fully open before this Court upon its merits.
10
Upon the second point there has been much more difficulty. It is very clear that
Dabadie was the owner of five-sixteenths of the cargo of the Spencer, upon the
voyage in the fall of 1809, from Philadelphia, to St. Sebastians or Port Passage.
This is abundantly proved by the account stated and signed by Andrew Curcier,
for himself and Stephen Curcier, in June, 1810. For Dabadie, in this account, is
charged with thirteen thousand seven hundred dollars and thirteen cents, for his
five-sixteenths of the cargo, and with three thousand nine hundred and ninetythree dollars and ninety-five cents, for insurance upon it. He was therefore
entitled to indemnity to the extent of his interest in the cargo, and had a valid
and just claim for it against the French government.
11
Has this interest been transferred to Curcier? The witness above mentioned
deposed that it was relinquished to him, and the agreement reduced to writing
in an account current, settled in June, 1818. If such an account had been
produced by the plaintiff, it would decide the controversy in his favour. He
does indeed produce an account settled between the parties, with mutual
acquitances, in June, 1818. But it is not such an account as the witness
describes. Neither of the sums with which Dabadie was debited in the account
of 1810, for his share of the cargo, and for insurance, appear in any way in this
account of 1818. The acquittances therefore then executed do not apply to
them. They apply only to claims which the parties may have had against one
another; and not to claims which either of them had against the French
government, or any other third party.
12
There is an item in the account of 1818, which has been much relied on by the
complainant; in which Dabadie is credited with five-sixteenths of the proceeds
of the Spencer's cargo on this voyage, sold at six months' credit. But there is
nothing to show that any part of the outward cargo was sold in France. On the
contrary, the bill states that the whole cargo was sequestrated, and claims
indemnity for the whole: and the answer admits the seizure of the whole, and
claims indemnity for five-sixteenths of the entire cargo. We cannot therefore
suppose that this item refers to the proceeds of her outward cargo: for such an
inference would be contrary to the allegations of both the bill and the answer.
And if it refers to a homeward cargo, there is no evidence to show that such a
cargo was brought by the Spencer; nor, if brought, by what means or out of
what funds it was procured. There is certainly nothing in the record to connect
this item in any manner with the outward cargo, which was seized; nor to alter
the rights of property in it. It does not answer the description which the witness
gives of the account which he settled in 1818, as the umpire and mutual friend
of the parties; and it is highly probable that the transaction of which he speaks,
may, from the lapse of time, have been confounded with some subsequent
voyage of the same vessel, out of which disputes may have arisen between the
parties. He states that he has not seen the account, nor communicated with any
person about it; and after twenty years have passed, it ought not to be a matter
of surprise or reproach if some of the items of an account, and some of the
circumstances connected with the settlement of it, were not accurately
remembered. At all events, there is nothing in the account of 1818, or any
account in the case, that would justify us in saying that the claim of Dabadie to
the indemnity in question was transferred to Curcier, as charged in the bill.
13
14
The decree of the Circuit Court is therefore affirmed.

This cause came on to be heard on the transcript of the record from the Circuit
Court of the United States for the District of Columbia, holden in and for the
county of Washington, and was argued by counsel. On consideration whereof,
it is now here ordered and decreed by this Court, that the decree of the said
Circuit Court in this cause be, and the same is hereby, affirmed, with costs.

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39 U.S.

PETER E. FREVALL, APPELLANT,

A general replication was put in by the complainant: and the testimony of a

The decree of the Circuit Court is therefore affirmed.

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