Sulger v. Dennis , 2 Binn. 428 ( 1810 )

Tilghman C. J.

after stating the facts, delivered his ppinion as follows:

It is contended by the counsel for the defendant, that the verdict was without legal evidence, (except as to the plaintiff’s wages as captain, which were not disputed) because the proper evidence was a receipt for the several sums paid. It is also contended, that the jury ought not to have allowed interest, because the plaintiff had been laid under a rule for trial or non pros, which shews that the trial had been delayed by him. The first of these objections would have great weight, if there was not something in this case to- distinguish it from cases in general. In foreign ports, the captain may be under the necessity of making frequent disbursements of •small sums for provisions &c., for which it would be hard to insist on his producing receipts, because they are not usually taken in such cases. But it would be dangerous to lay it down as a principle, that the captain’s bare word should be taken for considerable sums, such as every prudent man ought to take a receipt for. In this case however, the privateer took away the plaintiff’s papers, which is some apology for his not producing them. The defendant says, there .ought to be proof that there were receipts among these papers. But how is this to be proved? Who was privy to the taking of those receipts, except the plaintiff himself? Is it usual to call witnesses, when a man takes a receipt? The defendant objects also, that all the papers taken in the brig, were deposited in the French Court of Admiralty; where the plaintiff might have obtained his receipts, or copies of them. It is very true, that the papers ought to be deposited in the court of admiralty; but it is not quite certain that what ought to be done, always is done. It was given in charge however to the jury, that if they should be of opinion, that the plaintiff’s papers were taken by the privateer, and not deposited in some place wjiere he' could have access to them, they might make a reasonable allowance to the plaintiff for disbursements as to such objects as he had given evidence of, viz. provisions, port duties, advances to seamen, payment to carpenters &c. The jury made, what they conceived, a reasonable allowance in all these cases, and it does not appear clearly to me, that injustice has been done. The defendant has never said what he thought would be reasonable; nor did he offer any evidence that the plaintiff’s charges were unreasonable. He stood on no other ground, than the defect of the plaintiff’é testimony. Under these circumstances, I see no good reason for setting aside the verdict, on the first point.

I will now consider the objection as to interest. We cannot ascertain with any degree of certainty, how much was allowed for interest. It is probable however, that the jury struck out some articles of the plaintiff’s account, and gave interest from the commencement of the action for the residue. In this I cannot say that they were wrong. It is usual to give interest, unless the case has something particular in it. There is no weight in the objection, of the plaintiff’s being under a rule for trial or non pros. A' man may be forced to postpone his cause, on account of the absence of witnessess, without any fault of his own. One reason for allowing interest is, that the defendant may very probably have been making a profit on the money which was due to the plaintiff, and this profit would be made, even if the trial had been postponed by the fault of the plaintiff. If the defendant had brought into court the sum that he thought the plaintiff fairly entitled to, he would have stood on much stronger ground. But he denied the plaintiff’s demand in toto. Upon the whole, 1 do not think this a case, in which the court ought to interfere with the verdict. I am therefore against the defendant’s motion.

Yeates J. and Brackeníudge J. concurred.

Motion denied.