in one of the banks here, and to take a certificate from the cashier of the bank that he is authorized to draw for that sum. Will it be said by a lawyer that a bill drawn in Philadelphia and negotiated upon the faith of this certificate would not be binding upon the bank which gave the certificate? And if the principle will apply to a public institution, can it be doubted that it will equally apply to an individual?

But it is said that this is not an engagement to accept a bill, but a promise only to hold the money subject to the order of Brown; and where is the difference? When you say you hold money subject to the order of another, do you not mean that you hold it subject to every species of order which that other can give, and, which will afford you a legal and competent authority to pay? Is not a bill of exchange an order? and an order too of the highest grade, affording a full and entire authority to pay? Does it not answer completely the description contained in the receipt, and upon the production of which you engage to pay? For no other meaning can be annexed to the words subject to the order of Brown," than that Smith and Steene will pay the money over when Brown directs them to do so; and an acceptance of a bill of exchange is nothing more than a promise to pay it.

It is said too that the money might have been drawn out of the hands of Smith and Steene by a verbal order or by a letter: this is certainly true; and if it was subject to these inferior species of orders why not to an order of the highest grade? If the receipt could be construed to be a promissory note, which I cannot admit, yet it ought not to receive such a construction in this case. When an instrument is susceptible of two different constructions, it shall receive that which the parties intended it should bear, provided it be a legal one; and it cannot be imagined that Smith and Steene, when they passed the receipt, or Brown's clerk when he took it, intended that it should be negotiable paper. Brown's clerk unquestionably meant that the money should be paid to Brown's order; and if Smith and Steene meant any thing else they were guilty of a fraud.

The defendants' counsel allege that no consideration was paid for the bill; and that Brown obtained no credit upon the receipt. A preexisting debt is a good consideration for every species of contract known to the law, where the person owing the debt engages to do or give something in lieu of it. It is a good consideration in a deed conveying land; and it is also a good consideration for a bond, bill, note or bill of exchange. To say that Brown obtained no credit upon the receipt is to make the receipt a mere trick to deceive; and M'Kim is to be the innocent victim. His clerk was at Chilicothe pressing Brown for money. He was offered an assignment of bonds and notes, and even landed security. Upon Brown's saying he had money in Baltimore which he could draw for, and exhibiting the receipt to prove the fact, the clerk relinquished the other means of security and took the draft accompanied by the receipt. Does not this then bring the case within the principle laid down by lord Mansfield in Cowper 573. and recognized in the later authorities? The receipt was exhibited to a third person who was induced to receive a bill drawn upon its credit, and to relinquish other means of securing a preexisting debt; and the receipt must be deemed in law an acceptance of the bill subsequently drawn upon it. It so far procured Brown a credit, that the notes and bonds which he offered to assign and the land proposed to be mortgaged might be afterwards disposed of by him for the benefit of his other creditors, or to any other use which Brown might think proper.

Smith and Steene have violated their engagement. They promised to hold the money subject to Brown's order, or in other words, to pay such orders as he might draw upon them for the amount; and they now insist on holding it subject to their own claim.

I am of opinion that the direction prayed by the plaintiff's counsel must be given to the jury.

CIVIL LAW.

A translation of the Ninth Title of the Fourth Book of the Digests, entitled Nautæ, Caupones, Stabularii, ut recepta restituunt.

We have a translation of the several titles and laws of JUSTI NIAN'S DIGEST and CODE, which relate to maritime affairs. Considering them of importance, as the foundation of the maritime and commercial law of Europe, we shall insert them successively in this Journal.

DIGEST, Book IV. Tit. IX.

Of the responsibility of Mariners, Inn and Stable Keepers.

AIT

LAW I.

Ulpian, lib. 14. ad Edictum.

IT prætor. The prætor says, if the mariners, Inn and stable keepers, do not restore what they have received for safe keeping, I will give judgment against them.

Maxima utilitas. § 1. This edict is extremely useful, as it is necessary to confide in the honesty of most of these people, and give them things to keep. And it must not be thought that this law is hard upon them; for they are at liberty to receive or not: and unless it was so ordered, an opportunity would be given to them to combine with thieves against their freighters and passengers, since, even now, they do not abstain from such frauds.

Qui sunt igitur. § 2. It is necessary, therefore, to inquire who are those that are so bound. The prætor says, mariners. By this name, (nauta) we must understand the person who

* For the convenience of reference, we have thought proper to preserve the commencing words of each section.

commands a vessel (qui navem exercet) although they are all called mariners who are on board of a vessel for the purpose of navigating her. But here the prætor means only the commander (exercitor); and, says Pomponius, he ought not to be bound by the act of the boatswain or oarmen (remigem), or of the midshipmen (mesonautam), but by his own or that of the mate; although, if he directed any thing to be committed to the charge of the crew he is to be answerable.

Et sint quidam. § 3. There are some on board of vessels who are specially appointed to guard them, as the vævpuλæzes, or, ship's guardians, (and dietarii, stewards or pursers). If any of these persons receive any thing, I think an action will be against the exercitor; because by appointing them to an office of this kind, he permits them to receive commissions; but even if it should not be so, the master is still bound de recepto.

De exercitoribus. § 4. Nothing is said as to hoymen or ferrymen, but Labeo says, the same law ought to obtain with regard to them; and so it is held with us.

Caupones autem. § 5. We also call tavern or stable keepers, the masters of inns or stables, or those who act for them. But they are not bound by the acts of their menial or most inferior

servants.

Ait prætor, quod. § 6. The prætor says, whatever they receive for safe keeping. That is to say, whatsoever thing or merchandise they receive. Hence, Vivianus says, that this law extends to things like merchandise, as clothing to be used on board the ship, and other things in daily use.

Item Pomponius. § 7. Also Pomponius, book 34, writes, it is no matter whether we trust our own goods or those of others, if it is our interest that they should be kept safe. They ought to be returned to us rather than to those to whom they belong. And, therefore, if I take goods in pawn and trust them to the master of a vessel, he is bound to deliver them to me in preference to the person who has pledged them.

Recepit autem. § 8. If the thing have been sent on board, he is considered ipso facto as having received them for safe

keeping, whether they have been sent to him personally or not; and I think that he is considered as having in his custody, every thing that is carried on board; and that he is to answer, not only for the mariners but for the passengers.

LAW II.

Gaius. lib. 5. Ad edict. provinc.

Sicut et caupo. The tavernkeeper is, in like manner, bound for the act of the travellers who are in his house.

LAW III.

Ulpian. lib. 14. Ad edict.

Et ita de facto. And thus Pomponius writes, lib. 34. on the subject of the water carriers (vectores). The same writer says, that although the things be not yet received on board of the vessel, but should perish ashore, it is at the risk of him who has once received them.

Ait prætor. § 1. The prætor says, unless they restore, I will give judgment against them. An action therefore lies upon this edict. But whether this action be necessary is a matter to be inquired into, because a civil action will also lie in this case. Why then is a special action instituted when there are civil actions existing? unless, perhaps, the prætor should have had in view to repress the dishonesty of that class of people; or because the action ex locato conducto is founded on neglect, and that ex deposito only in fraud. Every one, however, is bound by this edict, although the thing perished without his fault or the damage was suffered, unless it happened damno fatali. Hence Labeo writes, if any thing shall perish by shipwreck or by pirates, it will not be unjust to allow it as an exception. The same to be said if vis major shall happen in an inn or stable.

Eodem modo. § 2. Inn and stable keepers are held in the same manner for what they receive in the actual exercise of their business; otherwise if they receive it out of the usual course of their business, they shall not be so bound.

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