he is therefore entitled, according to their contract, only to twelve and a half per cent. on $9,000. Should he recover the difference between $9,000 and 11,740, the first' bid from Mr. L. the plaintiff may then be entitled to twelve and a half per cent. on that difference; but assuredly the defendant ought not to pay five per cent. commissions on $9,000, because the plaintiff has procured for the property a purchaser who will not or cannot comply with the conditions. How has the defendant been benefitted by that sale? So far from deriving any benefit from it, he was very much delayed in the attainment of his object. It is true the vendue master was put to additional trouble, but this was not the fault of the defendant; when a specific sum is to be paid for the performance of a specified work, as building a house, or making a coat, the builder or tailor cannot say after the work be done, you must pay more, for it has cost me more labour than I expected. . So in this case, the plaintiff was to procure for the defendant, the value of the lots in money, or the price at which they would sell at vendue, for which he agreed to receive two and a half per cent. more the plaintiff is not entitled to, and the discount was properly allowed. The motion must therefore be dismissed. Justices Colcock, Gantt, Richardson and Johnson, concurred. Desaussure, for the motion. MANNING BELCHER and WIFE ads. THE COMMISSIONERS Where parties are left free to contract or not, and do contract, they are supposed to do so in reference to the existing laws in relation to the subject matter of the contract, and the law itself becomes a part of the contract: otherwise if the act be manifestly repugnant to the constitution. F A party can by express stipulation dispense with the trial by jury. Two justices under the act of 1740, after hearing a case between master and apprentice, may discharge the apprentice. ELIZA SMITH, an infant orphan, was bound apprentice to Mrs. Belcher, by the commissioners, in the mode prescribed by the act of assembly. Some time after, the commissioners conceiving that they had just cause of complaint, applied, as directed by the act of 1740, (see 1 Brevard, 27, sec. 7,) to two justices of the peace for Charleston district, who, after having heard the parties, directed and ordered that the said apprentice should be discharged from her apprenticeship. Mr. Belcher and his wife being dissatisfied with this order, made an application, as directed by the act, to one of the circuit Judges to have that order reversed, who, after having heard the case de novo, affirmed the order of the Justices; and a motion was now made to reverse this order, and to set aside the whole proceedings, on the ground that the mode of trial prescribed by the act, which was pursued in this case, is repugnant to the constitution of the state, and therefore void. Mr. Justice Johnson delivered the opinion of the court: The arguments in support of the motion are deduced from the 2d and 6th sections of the 9th article of the constitution, and assume the position that the appellants were entitled to the right of a trial by jury. I apprehend, however, that it is not necessary to the determination of the present question to enter into an exposition of them. It will not be denied, that when parties are left free to contract or not, and do contract, they are supposed to do so, in reference to the existing laws in relation to the subject matter of the contract, and the law itself becomes a part of the contract. Nor will it be denied that the parties can, by express stipulations, dispense with the deservedly much esteemed trial by jury, as for instance, by a reference to arbitration. Let us apply these rules to the present case. It is from the act of 1740, that the parties in this case derived their power to contract about the matter in dispute. It points out who may be bound apprentice, and who may bind, and who take one. It prescribes the form of the indenture, and creates the tribunal resorted to in this case, and invests it with full powers to determine all matters in dispute between them. Now, accord! ing to the rules laid down, the parties are supposed to assent to the terms which the act prescribes; and they are as much bound by it as if every article and clause had been incorporated in the indenture, and their assent expressed; and if the general rule be good, surely it applies with much greater force to cases where the parties, as in this case, derive their power to contract wholly from the law itself; and when any condition, inconsistent with, or repugnant to the law, would be wholly void. I am aware that this principle might be carried so far as to give effect to laws, contrary to, and subversive of, the constitution; but its application appears to me to be limited by marked distinctions. If, for instance, an act be manifestly repugnant to the constitution, the parties are not supposed to contract in reference to the act, but in reference to the constitution, as the paramount law. And so long as it is confined in its application to legitimate subjects of legislation, no mischief can result from it: and there can be no question that the act under consideration is of this character. Indeed, the counsel for the motion, has, with his usual candour, admitted that the motion is founded rather on the views and wishes of his client, than his own judgment.This mode of proceeding is consecrated by a usage of eighty years. The motion is refused. Justices Colcock, Nott, Richardson, Gantt and Huger, concurred. Clarke, for the motion. Hamilton and Petigru, contra. MCGRATH & JONES ads. A. ISAACS, survivor of B. H. LORTON & Co. A war puts an end to all executory contracts between the citizens of the belligerent nations. (a) When the law has been solemnly settled by the court, if it were possi bic that a thousand verdicts could be given against the decision they would still be wrong, and the court must either adhere to its opinion or suffer the juries of the country to become the expositors of the law. As a general rule, this court will not hear a question which has not been made in the court below, but many exceptions to it have been allowed; and where the jury found three verdicts against the opinion of this court, a nonsuit was granted, though not moved for below. TRIED before Mr. Justice Johnson, at Charleston, May Term, 1821. Mr. Justice Johnson delivered the opinion of the court: The court have already granted two new trials in this case, and the jury have found a third verdict against the defendants, which, according to the view taken by the court, is directly contrary to the known and established rules of law, and this is a third application to the court, in behalf of the defendants, to be relieved from this verdict. And the motion is in the first instance for a non suit, and in the event of that motion being refused, for a third new trial. So far as relates to the facts of the case, it will be sufficient to remark, that although there was some additional evidence, and perhaps stronger, adduced on this trial, as to the moral obligation of the parties, yet, so far as they concerned their legal rights, they are precisely the same as those reported in 1 Nott & McCord, 563. It will therefore only be necessary to give a brief summary of those on which the opinion of the court turns, and that too only with a view to state the question with precision.— The act of Congress prohibiting an intercourse between this country and England, usually called the non-inter course act, was passed on the 2d December, 1809, and the restrictions imposed by it were removed by the proclamation of the President, issued under the authority of the act on the 2d of November, 1810; and on the 10th of December following, the plaintiffs, residing in Charleston, gave an order to the defendants to ship certain wares for them from Liverpool, on which the defendants consented to act. On the 2d of February, 1811, and before the wares were shipped, the non-intercourse was revived and continued in operation until the declaration of war in June, 1812. The wares were not shipped until the 17th July following, and the Anna, in which they were shipped, was captured by a privateer and carried into Savannah for condemnation in August or September following; so that the shipment and capture were both during a state of war between the two countries. The act of 2d January, 1813, remitting all penalties and forfeitures between 3d June and 15th September, 1812, followed, and on the defendants interposing their claim, the wares were restored to them. They appropriated them to their own use, and made a great profit on the sale. It is acceded rather on the authority of the case, than on the general doctrine, that the contract entered into by the defendants was binding on them; but on reviewing that decision, it seems to me that the decision of the court on the question arising under the statute of frauds, was rather an effort to get it out of the way, and to come at the principal question in dispute; and with this accession, the only question now to be decided is, whether the war absolved the defendants from the obligation which this contract imposed? As authority on this point, it would be wanting respect to the court not to regard the two decisions which have been already made on this very question, and in this very case, as conclusive; and I think I may safely add that there is not a dictum opposed to it in all the books, and the question now is, whether the court will adhere to that opinion. Great respect is certainly due to the verdict of a jury, and they will always be supported, unless they are op |