[Ex parte Watkins.]

ant in jail." We may imagine some possible ground for lessening the pressure of these two instances; but certainly the case, as exhibited to us, furnishes no such ground.

I am opposed to the order now made.

Mr Justice M'LEAN dissented, on the ground that where a defendant had been committed by the marshal on a capias ad satisfaciendum, before the return day of the writ, it is not the practice either in this district or in the state of Maryland, as he understood it, to bring up the defendant, that he may be prayed in commitment: but that it is the practice, under the construction of the Maryland law, where a defendant has been arrested on a capias ad satisfaciendum, and permitted to go at large until the return day of the writ, to bring his body into court on such day, that it may be prayed in commitment.

On consideration of the petition filed in this case in behalf of the petitioner, and of the arguments of counsel as well for the United States as for the petitioner thereupon had, it is the opinion of this court that the writ of habeas corpus ought to issue as prayed for. Whereupon, it is considered, ordered and adjudged by this court, that a writ of habeas corpus be forthwith issued, directed to the marshal of the United States for the district of Columbia, commanding him to have the body of the said Tobias, with the day and cause of his caption and detention, immediately after the receipt of the writ, to do, receive and submit to all and singular those things which the court shall consider concerning him in this behalf, and to have then and there the said writ with his doings thereon.

To the writ of habeas corpus the marshal of the district of Columbia made the following return :

Henry Ashton, Esq. marshal of the United States for the district of Columbia, having read in open court and filed the following writ, together with his return thereon, viz. "United States of America, ss. The president of the United States, to the marshal of the United States for the district of Columbia, greeting: You are hereby commanded that you have the body of Tobias Watkins, detained under your custody, as it is

[Ex parte Watkins.]

said, under a safe and secure conduct, together with the day and cause of his caption and detention, by whatsoever name he shall be called in the same, before the supreme court of the United States, now sitting in the capitol of the United States in the city of Washington, being the present seat of the national government, immediately after the receipt of this writ, to do, receive and submit to all and singular those things which the said supreme court shall then and there consider concerning him in this behalf, and have then and there this writ with your doings thereon. Witness, &c.

Return of the marshal. "To the honourable the judges of the supreme court of the United States. The marshal of the district of Columbia, in obedience to the writ of habeas corpus issued by the authority of your honours, now produces into your honourable court the body of Tobias Watkins, who has been in his custody ever since he came into office, delivered over to him by his predecessor, Tench Ringgold, in jail; he stating that he had been held in his custody by virtue of three writs of capias ad satisfaciendum at the suit of the United States, and by virtue of a writ of capias ad respondendum, at the suit of one William Cox, upon which said last mentioned writ he the said Watkins had been prayed into commitment by the said Cox, and had been ordered into commitment by the honourable judges of the circuit court of the United States for the district of Columbia, sitting for Washington county, by whose authority all the said writs had been issued. That being satisfied of the correctness of the representations of his said predecessor, he continued to detain the said Watkins in custody without any complaint or allegation of any illegality or wrong in the said confinement until the rule was moved for in your honourable court, at its present term, at the instance of said Watkins, for cause to be shown by the attorney-general of the United States why a writ of habeas corpus should not be granted to bring the said Watkins before your honours, together with the cause of his detention. He further shows to your honours, that since the said rule was moved for, the writ of Cox, as aforesaid, has been dismissed; and from that time to the time of his receiving the said writ of habeas corpus, he held him in custody by virtue only of the three writs of capias ad satisfaciendum at the suit of the United States, considering it improper to discharge him

[Ex parte Watkins.]

pending the deliberations of your honours upon the legality or illegality of his detention under and by virtue of those writs last mentioned."

On consideration whereof, and after due deliberation thereupon had, it is now here considered, ordered and adjudged by this court, in this behalf, that the said prisoner, Tobias Watkins, be, and he is hereby discharged from confinement under the said several three writs of capias ad satisfaciendum at the suit of the United States, in the said return of the marshal mentioned.

After the discharge of Mr Watkins, by this order of the court, on the 19th day of February 1833, he was, on the same day, arrested and confined by the marshal of the district of Columbia, under three several writs of capias ad satisfaciendum issued on the same judgments, under which he had been previously detained in prison. These writs were dated on the 19th of February 1833, and were issued by order of the district attor ney of the United States for the district of Columbia; and were returnable at the next term of the circuit court of the district.

A petition for a writ of habeas corpus, setting forth this airest and his imprisonment under it, was presented by Mr Watkins; and a rule on the attorney-general was, on motion, granted, to show cause why the same should not issue.

After argument of this rule, by Mr Coxe and Mr Brent, for the relator; and by Mr Taney, the attorney-general of the United States, and Mr Key, the attorney of the United States for the district of Columbia; the rule was discharged: "the court being equally divided in opinion as to the question whether this court ought to award a writ of habeas corpus, as prayed in the case by the petitioner” (a).

(a) At the March term 1833 of the circuit court of the United States for the county of Washington in the district of Columbia, Mr Watkins was brought up on a writ of habeas corpus awarded by that court, and was discharged. The very learned opinion of the court, delivered by the chief justice of the circuit court, will be found in the appendix to this volume. YOL. VIL--3 Y

JOSHUA SCHOLEFIELD AND JOHN TAYLOR, PLAINTIFFS IN ERROR V. JESSE Eichelberger, suKVIVING PARTNER OF JOHN CLEMM, DEFENDANT IN ERROR.

Action of assumpsit to recover the balance of an account current for merchandize purchased in England by order of the defendants. The defence was, that the contract was made during the war, and therefore void. By the court: the doctrine is not to be questioned at this day, that during a state of hostility, the citizens of the hostile states are incapable of contracting with each other.

To say that this rule is without exception, would be assuming too great latitude. The question has never yet been examined whether a contract for necessaries, or even for money to enable the individual to get home, could not be enforced; and analogies familiar to the law, as well as the influence of the general rule, in international law, that the severities of war are to be diminished by all safe and practical means, might be appealed to in support of such an exception. But at present, it may be safely affirmed that there is no recognized exception, but permission of a state to its own citizens; which is also implied in any treaty stipulation to that effect, entered into with a belligerent.

There is no doubt that the liability of a deceased co-partner, as well as his interest in the profits of a concern, may, by contract, be extended beyond his death; but without such a stipulation, even in the case of a co-partnership for a term of years, it is clear that death dissolves the concern.

IN error to the circuit court of the United States for the district of Maryland.

In the circuit court, an action of assumpsit was brought by the plaintiffs in error for the recovery of one thousand and one pounds four shillings and eight pence sterling, with interest; asserted to be due to them by the defendants in error, for merchandize sold and delivered. The declaration was in the usual form.

On the trial of the cause, the plaintiffs, to mamtain the issue on their part, offered in evidence two accounts heade as follows: "Dr. Messrs Eichelberger and Clemm in account with Scholefield, Redtern and Co."

In these accounts, the first of which commences on the 20th of July 1813, the defendants are charged on that day, and at subsequent dates, with suns as due for goods, postages, expenses and interest; and are credited with several payments

[Scholefield v. Eichelberger.]

in 1814, 1815, 1816 and 1817: the balance stated to be due to the plaintiffs on this account, on the 1st of January 1818, appears to be two thousand five hundred and seventy-nine pounds, sixteen shillings. The second account commences January 1, 1818, and contains a credit of eight thousand dollars under date of February 14, 1819; leaving the balance of one thousand and one pounds four shillings and eight pence due on the 1st day of July 1819, the sum for which the action was instituted.

The plaintiffs proved that these accounts were delivered to the defendants for settlement some time in 1819, and that no objections were made to them, and the defendant acknowledged the balance of the accounts to be due, and promised payment of the same.

It was also in evidence, that the plaintiffs were British subjects and merchants, and had been such since the year 1807, and had always resided in England.

The defendant, to support the issue on his part, offered in evidence the correspondence of the late firm of Eichelberger and Clemm, and J. and W. Eichelberger with the plaintiffs, commencing on the 2d of February 1813, and terminating on the 20th of May 1816. The letter of 2d February 1813, from the defendants' late firm, received by the plaintiffs in error on the 17th June 1813, after stating to the plaintiff's that every thing indicated a determination on the part of the government. of the United States to continue the war then existing with England, proceeds to say:

"As such a conviction may reduce the prices of your manufactures considerably, we have prepared an order (which is hereto annexed) for some articles which are only to be purchased in the event of such a reduction. You will perceive that the investment of our money in this way is an uncertain speculation, whatever may be the reduction of prices, for we can form no opinion as to the time when they can be imported into this country; and you will therefore insure the goods, when bought, against fires. So soon as we are favoured with the invoice, we will transmit a bill of exchange for the amount. This you may calculate on with certainty."

The subsequent letters of the 13th April 1813, and of the 18th June 1814, contain further orders for the purchase of