1782.
tiſh, on evacuating the city, would either deſtroy ſuch ſtores as they did not want, or take with them thoſe articles which they might ſtand in need of.
Theſe facts, likewiſe, appeared in evidence on the trial; that the conſignees had been applied to by one of the plaintiffs five or ſix days before the evacuation, to purchaſe the ſalt; that for three or four weeks before the evacuation, the Citizens of Philadelphia ſuppoſed it was intended; that the whole of the Britiſh army did not finally leave the city till the morning of the 18th, though their ſhipping, for a fortnight before, had been, from time to time, dropping down the river; that the price of ſalt at that time was only three ſhillings per buſhel; and that the plaintiffs have ſince, to wit, in Auguſt 1778, paid the full value of the ſalt, at the rate of a dollar per buſhel, to Jones and Co.
On behalf of the State of Pennſylvania three points were made: 1ſt. That the contract between Wilcox and Jones and Co. was not a compleat one, in as much as no money was paid, nor any poſſeſſion delivered of the ſalt. If, therefore, it was not a compleat contract, the ſalt was the property of a Britiſh ſubject, and, conſequently, forfeited to the ſtate by the rules of war, and the law of nations.—2d. That admitting the contract to be compleat, yet it was made to defraud the ſtate of the forfeiture, and in contemplation of the intended evacuation.—3d. That if it was incompleat, though to be made compleat by a ſubſequent event (to wit, the entry of the American army into the city, and the ſalt ſtill remaining) yet the right of the ſtate to the ſalt attached, if not ſooner, at leaſt, as ſoon (to wit, when the American army entered) as the right of the plaintiffs; and that, therefore, by the rules of law, the right of the ſtate muſt be preferred to the private claim.
1ſt. Point. To the firſt point it was argued;—that all contracts ſhould be mutual; that each of the contracting parties ſhould have an equal remedy againſt the other for the performance of the contract, or for damages on the non-performance of it; that, in this caſe, Backhouſe being an alien enemy, was entitled to no action againſt the plaintiffs, but depended entirely on their liberality and honor for payment of the money, in caſe the ſalt ſhould not be deſtroyed or taken away by the Britiſh troops.
1ſt. Reſp: pro: Quer:—At the end of the war Backhouſe will be entitled to his action againſt the plaintiffs for recovery of the money due on the contract; becauſe, though all rights and credits belonging to the ſubjects of any power at war with another, are during the war ſuſpended, as againſt the ſubjects of that power, with whom their ſovereign is at war, ſtill on the reſtoration of peace, thoſe rights and credits are revived, and the ſubjects of each nation, are in the ſame ſituation with reſpect to debts due to and from each other, as they were before the war.
2d. Point. This was argued on both ſides, from the various circumſtances which appeared in the cauſe; the counſel for the ſtate contending, that the nature of the tranſaction was evidently to trickthe
