Orleans, on account of John Taber & Son, of Portland, in the district of Maine, upon the alleged promise of the defendant to pay for the same, with the incidental disbursements and expenses.

At the trial a verdict was taken, and judgment rendered thereon for the defendant, and the cause brought up to this court by writ of error.

On the 19th of December, 1805, the defendant, a merchant in New-York, wrote a letter to the plaintiff, a merchant in New-Orleans, containing, among other things, the following passage:

"I am loading the ship Mac for Jamaica; she belongs to my friends, John Taber & Son, Portland, who I expect, will order her from thence to N. Orleans, to thy address for a freight, and in that case, if thee makes any shipments for my account to the port where she may be bound, give her the preference of the freight."

This letter was received by the plaintiff on the 6th of February, 1806.

On the 9th of January, 1806, the defendant wrote to the plaintiff the following letter:

(Original per Mac.)

New-York, 1st month, 9th, 1806.

PAUL LANUSSE, ESQ.

"Esteemed Friend,

"This will be handed you by Captain Robert Swaine, of the Portland ship Mac, which vessel is bound from this to Jamaica, and from thence to New-Orleans in pursuit of freight; she will be to thy address; she is a good ship, between three and four years old, has

1818.

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V.

Barker.

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V.

If no freight offers for Eusome neighbouring port, with had, which I have not any load her; if thee can get this port as for Europe, I should prefer a freight to

an American register; is of an easy draft of water, all though rather large; a freight for Liverpool will be preferred; if not to be had, for such other port as thee Barker. thinks proper, send her. rope, send her to this, or all the freight that can be doubt will be sufficient to three-fourths as much for should prefer it; if not, I Europe. Immediately after her arrival, I wish thee to commence loading her on owner's account, who wish thee to ship five hundred bales on their account, but do not wish to limit the quantity, a few bales more or less according as freight offers; and for the payment of all shipments on owner's account, thy bills on them, John Taber & Son, Portland, or me, at sixty days sight, shall meet due honour; all shipments on own. er's account, if the ship goes for Liverpool, address to Rathbone, Hughes, and Duncan; if for London, Thom as Mullet and Co.; if Bordeaux, to John Lewis Brown & Co.; if Nantz or Cherbourg, Preble, Spear & Co.; if Antwerp, J. Ridgway, Merting & Co.; if Amsterdam, Daniel Cromelin & Sons., Captain Swaine will take a sufficiency of specie from Jamaica for ship's disbursements; please write me often, and keep me advised of the state of your market, &c. Of thy shipments by the Mac on owner's account, let as much go on deck as can be safely secured, and have her despatched from your port as soon as possible.

Thy esteemed friend,

JACOB BARKER."

And on the 26th of January, 1806, the defendant wrote the plaintiff as follows:

"Since writing thee under date of the 9th instant, I have engaged for the ship Mac the freight of eight hundred bales of cotton from New-Orleans to Liverpool, agreeably to the enclosed copy of charter party. I have therefore, to request thy exertions in dispatching her for Liverpool, filling her up either on freight, or owner's account, and particularly fill her deck and quarters on owner's account. Her owners wish large shipments of cotton made on their account, which, if bills can be negotiated on New-York, I have informed them thee would make; I, however, am clearly of opinion, that it will be more for their interest to have her filled up on freight; on this subject I shall write thee again more fully. Capt. Swain will take with him from Jamaica, eight thousand Spanish dollars, for my private account, which I wish invested in cotton." This letter. was written on the same sheet of paper, and immediately following a duplicate of the 'preceding letter of the 9th of January, and was received by the plaintiff on the 18th of March, when he wrote an answer, saying, "on my part, nothing shall be wanting to satisfy the contracting parties, when the ship arrives, and your instructions shall be strictly observed, conforming myself to the latter you gave, and in case of necessity, I think, it will be eaty to place bills."

On the 13th February, 1806, the defendant wrote to the plaintiff as follows:

"Enclosed, I hand thee a letter from the owners of ship Mac, to which I have only to add, that thy bills

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on me for their account for the cotton they order, shipped by the Mac, shall meet due honour."

On the 29th of August, 1806, the plaintiff wrote the

Barker. defendant:

"A few days ago I was favoured with a few lines from Messrs. John Taber & Son, importing that they wrote to you, to Capt. Swaine, and me, such directions as you might think proper, but I have not as yet been favoured with any of yours. The Mac remains precisely in the same situation. 4250 dollars demurrage, have been paid on her account, and I only wait for further information from you, to act, in case demurrage is refused."

On the 24th of July, 1806, the defendant wrote the plaintiff as follows:

"Relative to the unfortunate situation of the Mac, I have to observe, that if she remains at your port idle, Fontaine Maury, or his agent there, must pay the demurrage every day, or the master must protest, and end the charter; as long as the demurrage is paid, agreeable to charter party, the ship must wait; as soon as that is not done, the captain or owners' agent can end the voyage by protesting, and entitle the owners to recover their full freight; so that thee had better take the eight hundred bales, on account of Fontaine Maury at a low rate, than to subject him to such a heavy loss; thee will on receipt. of this be pleased to receive the demurrage daily, or end the charter, and despatch her for Liverpool on owners' account, taking all the freight that offers, and fill her up with as much cotton as possible, [not less than five hundred bales,] log wood and staves, as it will not answer to keep so valuable a ship there any longer, without earning some

thing for her owners. Although I say fill her up with cotton, logwood, and staves, on owners' account, thee will please understand, that I should prefer her being despatched agreeable to charter party; if that ean be done, I prefer her taking freight for Liverpool, excepting about five hundred bales, the owners wish shipped on their account; yet rather than have her there idle, the owners wish her loaded on their own account; for the payment of which, thy bills on me shall meet due honour at 60 days sight, which I presume thee can easily negotiate."

On the 26th of September, 1806, the plaintiff wrote the defendant:

"Since my respectful last of 29th August, 1 am favoured with your much esteemed of 24th July, the contents of which I have duly noticed."

"I have to inform you of the disaster which has befallen the Mac. On the night of the 16th and 17th inst. we experienced a most violent gale, which has done great injury to the shipping, and drove the Mac from her moorings to a considerable distance from the town," &c. "Nor can I flatter you of procuring either freight for her, or accomplishing your order before December," &c.

On the 6th of September, 1806, the defendant wrote the plaintiff as follows:

"Since I last had this pleasure, ordering a protest against the charterers of the Mac, and that vessel despatched on owners' account for Liverpool, with staves, logwood, and cotton, I have not received any of thy acceptable communications. I now confirm that order,

1818.

Lanusse

v. Barker.