Blaine

if voidable, the proper means of destroying their efficacy Ship Charles have not been pursued.

V.

Carter.

The decree of the circuit court is affirmed, and the money ordered to be paid over to the execution creditors.

B. in Phi- THE UNITED STATES v. GURNEY AND OTHERS.

Jadelphia,

a

greed to pay

to A.'s agent

ders in Am

THIS case was certified from the circuit court for the 170,000 guil- district of Pennsylvania, the judges of that court being sterdam divided in opinion upon the question, whether, upon the 1st of state of the pleadings, the judgment ought to be renhe should fail dered for the plaintiffs?

the

on

March; and if

to repay to A.

ex

delphia at the

made toge

so to do, then It was an action brought by the United States against the value of Gurney and others, upon a bond conditioned to comply the said guil with a certain written agreement between them and the ders at the rate of secretary of the treasury of the United States, of the change eur- same date, "to pay the sum of 500,000 guilders at Amrent in Phila- sterdam," ," "in the manner and form, and on or before time demand the particular days and times in the said agreement menof payment is tioned; or in case the said sums shall not be paid as ther with da- aforesaid, at either of the said places, then to repay to mages at 20 the United States the value of the said 500,000 guilders, the same man- at the rate of exchange current in Philadelphia at the time ner as if bills demand of payment is made, together with damages at 20 of exchange per cent. in the same manner as if bills of exchange had drawn for the been drawn for the said sum, and they had been returned *334 protested for non-payment, and lawful interest for any said sum, and delay of payment which may take place after the de they had been mand."

per cent. in

had

been

returned pro

tested for non- After oyer of the bond and condition, the defendants payment, and set forth the written agreement, by which, in considerafor any delay tion of 205,000 dollars, to be immediately advanced to of payment

Jawful interest

which may take place after the demand. B. paid the 170,000 guilders in Amsterdam, to the agent of A. on the 13th of May instead of the 1st of March. A is not entitled to the 20 per cent. damages, but may, in a suit upon the bond given to perform the contract, recover interest on the 170,000 guilders, from the 1st of March to the 13th of May. It is not a good plea for the defendants to say that they paid the 170,000 guilders to A.'s agent, for the use of A. at Amsterdam, on the 13th of May, without averring it to be the whole sum then due.

pay

V.

Gurney.

them by the United States, the defendants agree to United States to the bankers of the United States at Amsterdam 500,000 guilders, in manner following, viz. 230,000 guilders on or before the first of February; 170,000 guilders on or before the first of March; and 100,000 guilders on or before the first of June, 1803; and in case the said payment shall not be made at the times and in the manner aforesaid, they will pay to the United States "20 per cent. damages for their non-compliance with this agreement, for the whole of the sum so agreed to be paid, or such parts thereof as they shall not actually pay at the times, place and manner aforesaid, together with interest from the day of demand of repayment on behalf of the United States,' """in the same manner as for bills of exchange returned with protest for non-payment."

The defendants then pleaded, that on the 1st of February, 1803, they paid at Amsterdam to Willink & Van Staphorst, bankers of the United States, to and for the use of the United States, the said 230,000 guilders; and on the 13th of May the said 170,000 guilders; and on the 16th of May the said 100,000 guilders, in the said articles of agreement mentioned; "and this they are ready to verify," &c.

To this plea the United States replied, that although the defendants, on the 1st February, 1803, paid to the said Willink & Van Staphorst, bankers of the United States, for the use of the. United States, the said sum of 230,000 guilders, in the said articles of agreement mentioned; and although the defendants, on the said 13th of May, at Amsterdam, paid to the said Willink & Van Staphorst, bankers of the said United States, to and for the use of the said United States, the sum of 170,000 guilders; and although the defendants, at Amsterdam, on the said 16th of May, paid to the said Willink & Van Staphorst, bankers of the said United States, to and for the use of the said United States, the further sum of *100,000 guilders, in the said articles of agreement mentioned; yet the said United States deny that the said lastmentioned sum of 170,000 guilders, so as aforesaid paid by the defendants to the said Willink & Van Staphorst, bankers of the United States at Amsterdam, on the said 13th of May, was, by the United States, accepted, received and allowed in payment and satisfaction of the said sum of 170,000 guilders, which, by the said agreement, the

* 335

V.

Gurney.

United States defendants were bound to pay on or before the 1st of March, 1803, and this the said United States pray may be inquired of by the country. And the said United States in fact say, that the defendants did not pay, or cause to be paid, to the said Willink & Van Staphorst, bankers of the United States at Amsterdam, to and for the use of the said United States, the said sum of 170,000 guilders, in the said articles of agreement mentioned, on or before the said 1st day of March, 1803, being the time prescribed by the said articles of agreement for payment of

* 336

the same..

Nor have the defendants at any time since the 1st of March, 1803, paid to the United States 20 per cent. damages for their non-compliance with the said agreement for the payment of the said sum of 170,000 guilders, part of the said sum of 500,000 guilders in the said agreement mentioned, to the said Willink & Van Staphorst, bankers of the said United States at Amsterdam, to and for the use of the said United States, on the 1st of March, 1803, together with interest from the day of demand of repayment on behalf of the United States, in the same manner as for bills of exchange returned with protest for non-payment, although afterwards, viz. on the 14th of June, 1803, at Philadelphia, demand of repayment of the said sum of 170,000 guilders, together with the said 20 per cent. damages, was made on behalf of the said United States, by Albert Gallatin, secretary of the treasury of the United States, from the defendants, but to pay the aforesaid sum of 170,000 guilders, together with 20 per cent. damages, and interest on any part or parcel thereof, to the said United States, the defendants have hitherto refused, and still refuse, contrary to the form and effect of the said condition of the said writing obligatory, and the agreement therein referred to, and in the plea set forth, and this the said United States are ready to verify, wherefore they pray judgment, &c.

To this replication the defendants demurred specially. 1st. For duplicity.

2d. Because they could not take issue on the replication without a departure from their plea; and,

3d. Because the United States have, by their replication, endeavoured to put in issue matters foreign and irrelative to said plea.

This demurrer was joined on the part of the United United States States.

E. Tilghman, for the defendants, and in support of the demurrer.

The replication is clearly double; it first denies that the 170,000 guilders, paid on the 13th of May, were received by the United States in satisfaction of the 170,000 guilders due on the 1st of March, and then, after concluding to the country, goes on with a new averment that the defendants did not pay the 170,000 guilders on the 1st of March; and again further avers, that the defendants did not pay the United States the 20 per cent. damages for failing to comply with the agreement; and again, that the defendants did not repay to the United States the 170,000 guilders, with 20 per cent. damages, &c.

A plaintiff cannot reply two separate matters. 5 Bac. Abr. 457. Gwillim's edition.

The replication confesses the payment, but does not avoid it.

Even if the plea were bad in form, which is not admitted, yet as payment is acknowledged by the replication at a time when no more was due than was paid, the United States cannot recover.

*If the defendant pleads a bad plea, and the plaintiff shows in his replication that he has no cause of action, the judgment must be for the defendant. 2 Ld. Raym. 1080. Hob. 128. 8 Co. 120. b. 133. b.

If, then, we show that on the 17th of May the United States were not entitled under the contract to more than 170,000 guilders, they cannot recover in this action.

The object of the United States was to have the money paid in Amsterdam. The 20 per cent. was the stipulated damages for not paying the money in that place. By referring to the law respecting bills of exchange, the parties meant to be governed by that law; and by stipulating for interest in a certain event only, they are to be understood as not claiming it in any other case. By the law of Pennsylvania respecting foreign bills of exchange drawn in that state, and returned under protest, the principal sum is to be repaid in Pennsylvania, with 20 per cent. advance thereon. If

v.

Gurney,

* 337

V.

United States the principal sum cannot be claimed, the advance thereGurney. on cannot be claimed. It is an incident to the principal, and cannot be demanded without the principal. If a bill be protested for non-payment, but the acceptor afterwards pay it, and the holder receives the money in the place where it ought to be paid, he cannot afterwards come upon the drawer for damages, re-exchange, &c. By receiving the money he waives the objection to the time of payment. The 20 per cent. damages are the price of the risk, trouble and expense of transportation of the money. If the defendants have actually transported the money, and the plaintiffs have received it at the place appointed, they are not entitled to be repaid the expense of the transportation; and to charge the defendants with that expense now, would be to charge them twice.

*338

The meaning of the agreement is, that if the United States are obliged to receive their money in this country, they shall receive the twenty per cent. advance thereon; if, therefore, they have no right to demand repayment of the money in this country, they have no right to the 20 per cent. After having received the principal sum in Amsterdam, they clearly have no right to demand payment of it here. By the non-payment at the day, the United States had only an inchoate right to the 20 per cent. They might have refused to receive the 170,000 guilders afterwards in Holland, and insisted on their right to repayment of the money in America. But they did not, and actually received the money in Holland, before any demand on the defendants in America. The liquidated damages can be recovered only in the case specified by the parties in their contract; and this is upon demand of payment in America, of the value of the sum remaining unpaid in Europe at the time of the demand. The condition of the bond is "to repay to the United States the value of the said 500,000 guilders, at the rate of exchange current in Philadelphia at the time demand of payment is made, together with damages at the rate of 20 per cent.," &c. The damages could only be demanded, and were only to be paid, "together with" the principal. If the plaintiffs had no right to demand payment of the principal, they had no right to demand payment of the damages. By the terms of the contract, interest