Volume 1 — District of Columbia Reports

<p>Assumpsit for goods sold and delivered. Non assumpsit, and issue.</p>

<p>Same point as in the preceding case.</p>

<p>A deposition taken in chief under a commission may he read in evidence, unless the other party can prove that the witness is within reach of the process of the Court.</p>

<p>Assumpsit lies by the apprentice against his master*who takes the apprentice under an order of the Court to bind him out, although no indentures are executed.</p>

On the first day of this term, the President and Directors of the Marine Insurance Company obtained a rule on the President and Directors of the Bank of Alexandria, to show cause on the sixth day of this term why a mandamus should not issue commanding the President and Directors of the Bank of Alexandria to admit the President and Directors of the Insurance Company to sub- • scribe for twentyrfive of the unsubscribed shares of the augmented capital stock of the Bank. showed…

Action on the case for slander. The plaintiff, being clerk of the court, had sued out an attachment of privilege, and now moved for a rule upon the defendant to plead on some day during the present term.

<p>Indictment, under the Act of Congress, for stealing the goods of Luke O’Dea.</p>

John Hammond was, at the last term, indicted at common law,- and convicted of stealing the goods of Margaret Lefferty, on the 26th of February, 1801. A motion iii arrest of judgment was made and continued to this term. The grounds of the motion were these: — 1.

<p>Information, for keeping a slaughter-house in the town of Alexandria, contrary to a by-law of the corporation.</p>

<p>Information for keeping a slaughter-house in Alexandria contrary to a by-law of this corporation.</p> <p>moved for leave to amend the information, by stating the penalty to accrue to the town of Alexandria, instead of the Commonwealth. He stated it to be every day’s practice, and cited 2 Hawk. 348. The King v. Wilkes, 4 Burr. 2527, 2566.</p> <p>agreed that informations might, at common law, be amended in the same manner as declarations, but contended that the amendment now proposed was such an one as could not be made in a declaration at common law. The amendment intended was matter of substance. 1 Bac. Ab. 102; Cope v. Marshall, Sayer, 234.</p> <p>An amendment, alleging a new right of action, was refused. 1 Cromp. Prac. 105. A declaration against executor in debel and delinet shall not be amended. 1 Bac. Ab. 97, 98. An amendment ought not to be made after the term next after the filing of the declaration. 1 Wilson, 149; 1 Cromp." Prac. 105. After plea no new count can be added. Sayer, 97,151,172; 1 Cromp. Prac. 106. In the case of The King v. Wilkes, Lord Mansfield said no amendment in matter of substance ought to be made. The reason why he permitted an amendment in that case was, that the defence ivas not altered, nor the charge varied. If the amendment would make any difference in the judgment, it ought not to be admitted. The proposed amendment changes the parties.</p> <p>The practice has been relaxed since the time of the authorities read by Mr. Lee. The proceedings in civil suits may be amended at any time before trial.. The question, to whom the penalty is to accrue, has nothing- to do with the offence, nor does it alter the plea. 2 Hawk. 397. The conclusion from the case in Hawkins is, that when a man is convicted of the offence, and the forfeiture incurred, if the judgment state the forfeiture as accruing to a wrong person, the judgment may be corrected. In the cases of King- .v. King, and King v. Charlesworih, in Burrow’s Reports, the amendments were of substance. The King v.- Holland, 4 T. R. 457, 458.</p>

<p>In order to charge an indorser in Virginia, it is necessary for the plaintiff to show that he instituted his suit against the maker in due time, and prosecuted it diligently to an ineffectual execution.</p>

Assumpsit by an indorsee against a remote indorser of a promissory note. James Cavan made a promissory note by which he promised to pay to Silver et al., or order, sixty days after date, six hundred dollars for value received, negotiable at the Bank of Alexandria.

<p>Action of assault and battery to try the plaintiff’s right to freedom.</p> <p>She was brought into Virginia in the year 1792, and she claimed to be free because her owner had not taken the oath prescribed by the Act of Virginia of 17th December, 1792, section 4, Revised Code, p. 196, (Ed. 1803, p. 187.)</p> <p>The defendant produced a certificate, by T. Hooe, a justice of the peace, of an oath taken by the owner on the 28th of December, 1792, but varying in some respects from the oath prescribed.</p> <p>The plaintiff objected to the paper being read to the jury, to prove that the owner took the oath prescribed by law, on account of the variance; and prayed the Court to instruct the j ury that the paper, in itself, is not evidence of that fact. •</p>

Assumpsit for the labor of two negro boys, Bill and Hanson. Bowling, the owner of the boys, had by indenture bound them as apprentices to the plaintiff. Bill was to serve until September, 1798, and Hanson until September, 1799. Talbott hired the boys to Hartley, the defendant, who refused to pay him for their labor, alleging that Bowling claimed it. Upon this, Talbott and Bowling submitted the matter to arbitrators.

<p>Assault and Battery, to try the right of the plaintiff to her freedom.</p>

<p>Trespass for breaking and entering the plaintiff’s house.</p>

<p>Debt by indorsee against the acceptor of an inland bill of exchange.</p>

Assault and Battery. The defendant pleads that the assault was a joint assault committed by her and Hannah Dyson, and that the plaintiff recovered judgment at this term against Joseph Dyson, and the said Hannah, his wife, for the same assault.

<p>Bail will not be required to be given by the defendant in an action by his immediate indorsee, while another action is depending against him by a moré remote indorsee; especially if the name of the plaintiff has been stricken from the note by the subsequent indorsee.</p>

This was a motion for judgment against Charles Turner, late town sergeant of Alexandria, for not paying over to the plaintiff money made on a fi. fa. of Fendall v. Towers. The motion was grounded on the Act of Assembly of Virginia respecting executions. Rev. Co. p. 317, § 51. (See this case in the Supreme Court of the United States, 1 Cranch, Rep. 117.) The cases cited in this Court were, Esp.

<p>This Court has not jurisdiction of an attachment for a sum less than twenty dollars.</p>

<p>A Constable suspended from office before rule to show cause.</p>

<p>it is no cause for arresting judgment, that the jury have found the damages in pounds, when the damages in the declaration are laid in dollars.</p>

Case, for a malicious prosecution. To set aside an office judgment at the third term after it was rendered, the defendant pleaded a special justification which went to show probable cause for the prosecution. The counsel for the plaintiff objected to the receiving the plea, and cited, Buller, N. P. 14; Sutton v. Johnstone, 1 T. R. 493; Coze v. Wirrall, Cro. Jac. 193; Doiunman v. Downman, 1 Wash. 29 ; Farmer v. Darling, 4 Burr. 1971.

<p>A servant selling spirituous liquors for his master without license is not liable to the penalty.</p>

On the motion of Mr. Mason, Attorney for the United States, the Coukt instructed the jury that the day is immaterial if proved to be within twelve months before filing the information; being of opinion that every act of selling before the filing of the information is part of the same general offence of selling. Special verdict.' Venire facias de novo awarded.

Slander. Office judgment at the rules before last term. moved to set aside the office judgment on filing special pleas of justification to the first and third counts, and a demurrer to second count. The special justification was, that, at the time the defendant spoke the words, he stated that he had received his information from his slave. cited the following cases in support of the plea.

Information for keeping a slaughter-house within the limits of the town of Alexandria, contrary to the by-law of 1784. In the trial of John Smith, yesterday, for the like offence, the Court decided that this by-law was in force in the addition to the town made by the act of 1797. after informing the jury that they were constitutional judges of the law as well as of the fact in criminal cases, was proceeding to argue the same point of law before the jury, when

Information for retailing liquors, &c. The witness, Michael Stieber, testified that he bought liquor of the defendant about three weeks before he gave evidence to the grand jury who found the presentment upon which this information was filed; and that he never gave evidence before them against the defendant but once. offered to prove the time of his being sworn to the grand jury by the record of the presentment, which states it to “be made on the information of Michael…

<p>Indictment, under the Act of Congress of 1790, [1 Stat. at Large, 112,] for stealing.</p> <p>contended that he had a right to a peremptory challenge. He contended that the prisoner was charged with felony ; and by the law of Virginia, Rev. Code, 110, “ no person charged with murder or felony shall be admitted to a peremptory challenge of more than twenty,” which implies the right peremptorily to challenge that number. A felony is such an offence as by the common law worked a forfeiture of goods or chattels, or both. If a statute changes the punishment and takes away the forfeiture, the offence does not thereby cease to be a felony.</p> <p>cited 2 Hawk. p. 580, 581.</p>

<p>Indictment for gaming contrary to the Act of Virginia, Rev. Code, p. 184, $ 5, Motion to quash the indictment, because the statute points out the mode of prosecution, namely, by conviction before a justice of the peace.</p> <p>For the traverser it was contended that where another mode of recovering the penalty is provided than by indictment, there indictment cannot be supported; nor can an indictment be maintained unless there be a prohibitory clause. 2 Hale, 171; Rexv. Robinson, 2 Burr. 803; and Rex v. Royall, 2 Burr. 32.</p> <p>The Act of Assembly says, “ that if any person shall play, &c., every such person, upon conviction thereof before any justice of peace in any county in this Commonwealth, by the oath of one or more credible witness or witnesses, &c., shall forfeit and pay twenty dollars, to be levied by distress and sale of the offender’s goods, by warrant under the hand of the justice before whom such .conviction shall be, and for the use of the poor of the parish wherein such offence shall be committed. And, moreover, every person so convicted shall be committed to the county jail, there to remain until he give sufficient security for his good behavior for twelve months.”</p> <p>The 5th section of the Act concerning Jurors, Rev. Code, 107, does not extend to the District Courts, nor does it necessarily imply that indictment is in all cases a proper mode of recovering a penalty. A presentment is a mere informal accusation. It only denounces the fact in order that it may be punished in legal form.</p> <p>The transfer of jurisdiction has not altered the laws of Virginia in this part of the district. But by the first section of the Act concerning the District of Columbia, 27th February, 1801, [2 Stat. at Large, 103,] those laws are expressly declared to remain in force. And although, by the 5th section, this Court has cognizance of all offences, yet, by the 11th section, the justices of the peace here are to have the same cognizance as justices of the peace in Virginia.</p> <p>By the letter of the Act of Assembly the penalty does not accrue until a conviction before a justice of the peace has taken place. By the third section of the supplemental Act of Congress of 3d March, 1801, [2 Stat. at Large, 115,] this Court is to exercise the same power and jurisdiction as the District Courts of Virginia. But those courts have no jurisdiction of this offence. The 2d section of that act did not mean to limit the mode of prosecution, but to alter the style.</p> <p>Besides, the fact is stated in the indictment to have been committed before the 3d of March, 1801, and therefore the act of that date cannot alter the mode of prosecution then existing. The penalty was to accrue to the poor' of the parish, and upon the commission of the offence the right to the penalty vested in the parish. The subsequent Act of Congress could not take away this vested right.</p> <p>If the remedy by indictment is cumulative, it • ought not to be countenanced by the Court. 2 Hawk. 301, c. 25, § 4 ; 7 Co. 36, (a); Castle’s Case, Cro. Jac. 643, 644.</p> <p>The powers of this Court are not limited by those of the District Courts of Virginia. The words of the 5th section of the Act of Congress concerning the District of Columbia are peremptory. This Court shall have cognizance of all offences, &c. But the District Courts of Virginia had cognizance of this offence by the Act of 1797, c. 2. No penalty can be recovered but by indictment, presentment, or action of debt. Act of Congress of 3d March, 1801, <§, 2, [2 Stat. at Large, 115.] The case cited from 2 Burrow, only shows that the remedy by indictmen is not the best mode.</p> <p>By the Constitution of the United States the trial of all criminal cases must be by jury. If the Act of Virginia giving cognizance to a justice of peace is repugnant to the Constitution, the latter must prevail. The Act of 3d of March is not ex post facto, it only directs the mode of prosecution.</p> <p>The Court refused to quash the indictment, relying on the 2d section of the Act of 3d of March, 1801. The jury found a verdict against the traverser, stating the fact to have been committed before the first Monday in December, 1800, the day appointed by the Act of Congress of 1790 for the removal of the seat of government of the United States to the District of Columbia.</p> <p>Mr. Mason moved for judgment on the verdict, and contended that there never had been a time when the laws .of Virginia were not in force in this part of the district.</p> <p>contended that this was an offence against the Commonwealth of Virginia, and not against the United States, and that the penalty accrued to the Commonwealth, who might maintain an action of debt for it.</p>

Indictment for gaming, contrary to the Act of Virginia. A capias had issued upon the indictment, as the first process. moved to quash it, as being illegal and oppressive.

Information .for selling spirituous liquors, permitted to be amended, by inserting the date of' the offence, and also the words “ sold and to be drank at the circus, instead of at his own house.” On the trial, the defendant attempted to prove that he acted as servant or agent of another person.

offered a demurrer to the evidence, stating the testimony only as delivered by the witnesses for the plaintiff. objected to join in demurrer, because it did not state the facts which might be inferred from the testimony. Cocksedge v. Fanshaio, Doug. 131; Hoyle v. Young, 1 Wash. 151; Buller, N. P. 313, and Thweat v. Finch, 1 Wash. 220.

<p>A plea of justification in slander, must tie substantially proved.</p> <p>A breach of trust accompanied by falsehood does not amount to swindling, unless also accompanied by an intent to defraud.</p> <p>The Court is not bound, at the request of either party, to instruct the jury after they have retired to consider of their verdict, unless the jurors themselves request such instruction.</p> <p>It is actionable to say of a director of a bank, that he is a swindler.</p> <p>In slander a verdict for one cent damages carries full costs.</p> <p>The statute of Glocester is, but the statute 21 Jac. c. 16, respecting costs, is not, in force in Maryland.</p>

Ejectment for Lot No. 10, in the Square No. 78, in the city of Washington. The plaintiff proved that in the year 1784, and from that time to the 20th of June, 1791, Benjamin Stoddert and James M. Lingan were and continued in peaceable and undisturbed possession of the land comprehended in the Square, No. 78, in their own right and claiming to be proprietors thereof in fee-simple.

Indictment, for the murder of his wife, by beating her, while pregnant with twins, so as to produce a miscarriage and consequent death.

Slander. The words laid in the declaration were, “ you stuck a pitchfork into a man in Ireland, and murdered him and fled.”' The plaintiff’s witness proved that the defendant said that he had heard one Tweedy say that Burke told him that the plaintiff had killed a man in Ireland, with a pitchfork, and had fled for it. in cross-examining the plaintiff’s witness, asked him whether Burke was a responsible man; whether he lived in the city-at that time, &c. objected to the…

Assumpsit. 1st count, money had and received. 2d, a special promise to pay for planks and timber sold by the plaintiffs to Bryan, in consideration that the plaintiffs would forbear to sue him. 3d, indebitatus assumpsit for planks, &c., sold to the defendant himself. The case, in evidence, was, that Bryan had contracted with Mr. Law to build stables, and furnish materials.

<p>Leave to defendant to amend on payment of costs of the term or a continuance at the plaintiff’s option.</p>

Debt against the maker of a promissory note — pleas nil debet, and a discharge under the insolvent Act of Virginia. The Court, refused to admit the record of the discharge to be given in evidence because it was not authenticated by a certificate of the presiding magistrate, according to the Act of Congress. [1 Stat. at Large, 122.] contended that the act of limitations might be given in evidence on nil debet. Esp.

<p>It is no bar to execution upon a supersedeas in Washington county, that the plaintiff has recovered another judgment in Alexandria county upon the same cause of action, if it be not satisfied.</p>

Indictment for retailing spirituous liquors. The first process was a summons to show cause why an information or an indictment should not be filed. Upon this summons the defendant did not appear, and his default was recorded. The indictment was found at July term, 1801, and a capias issued returnable to October term, 1801. contended that a capias was not the legal process.

Assumpsit for money had and received. The defendant was indorser of Robert Alexander’s note. Suit had been brought against Alexander in the Dumfries District Court in Virginia, and execution returned nulla bona. and that the original note was by him filed in that cause in the District Court at Dumfries.

Replevin. Cognizance, as bailiff, for rent arrear. Plea, “ no rent arrear,” and issue. moved for leave to withdraw the plea of “ no rent arrear,” and file a new plea setting forth that Patten had drawn an order on the plaintiff, for three quarters’ rent, which the plaintiff had accepted to pay; and that., as to the fourth quarter’s rent, he tendered it before the distress was made.

Debt on bond, payment, non-payment, and issue. The defendant offered an account in set-off. The plaintiff produced the defendant’s receipt, to which George Rhodes was a subscribing witness. The defendant objected to its being admitted in evidence unless proved by the subscribing witness, George Rhodes.

Debt, on two promissory notes; one for twelve dollars, and the other for twenty dollars. objected that neither of the notes was large enough to support the jurisdiction of the Court.

<p>An office judgment may be set aside on the' plea of “ never executrix.”</p>

<p>When the terms of submission to arbitration are uncertain, parol evidence may be given of the controversies submitted.</p>

Debt on an accepted order. Nil debet and issue. prayed the Court to instruct dhe jury that the acceptance of the order not being dated, and the order being dated September 24th, 1794, and no proof being given of the date of the acceptance, they ought to presume that the acceptance was on the day of the date of the order, and therefore barred by the act of limitations; the writ not being issued qnlil the 5th of September, 1801.

<p>The marshal’s commission of five per cent, may be included in a replevin bond for rent.</p>

Indictment for stealing a horse, the property of Col. Thomas Lee. It was objected, on the trial, that the property was not in Thomas Lee, but belonged to the estate of Calvin Washington, deceased. But it being proved that Thomas Lee had the possession and management of that estate,

<p>An action for money had and received, can he maintained in Virginia, by an indorsee against a remote indorser of a'negotiable promissory note.</p> <p>A sale of an indorsed negotiable note, for flour, and a sale of the flour for an amount, in cash, less than the value of the note after deducting the discount for the time it had to run, is not usurious.</p>

<p>Note in sterling money, dated in Ireland. The declaration is for sterling money.</p>

A justice of the peace for Alexandria county issued a ft. fa. on the 30th of September, 1801, in the case of Riddle v. Kell, for $19.44, and 58 cents costs, which was delivered to Abercrombie, a constable, on the 11th of March, 1802.

<p>Trespass for ordering an execution to be served on the plaintiff’s goods, at the suit of the defendant, against James and Robert Hamilton. The goods had been taken in the possession of Robert, and the defendant alleged that the deed of conveyance under which the plaintiff claims, was fraudulent as to the creditors.</p> <p>The plaintiff offered Robert Hamilton as a witness. The defendant objected that he was interested, because, if the plaintiff recovered, Robert would still remain in the possession and use of the goods by permission of his brother, (the plaintiff,) as he had done 'heretofore.</p>

<p>Action on the case for filling up the street so as to shut up the windows and doors of the plaintiffs’ warehouses.</p> <p>moved the Court to instruct the jury, “ that if it shall be their opinion that Faw was street commissioner for the corporation of Alexandria at the time when the injury was done, and was then in the actual employment of the corporation, then the corporation are liable for his conduct while in their actual employment as aforesaid, although in the execution of the said employment he should go beyond their express orders,”, and that if, in raising the street, any damage accrued to the plaintiffs, they were entitled to recover in this action. Leader v. Moxton, 3 Wils. 461; Meredith’s case. 4 T. R.. 794.</p> <p>The Act of Assembly has copied the English statutes, and the decisions in Virginia have been similar to those in England, and have confined the meaning of the Act to actions of trespass, quare clausum fregit, although the words of the statutes, and of the Act, are, “ and all other actions personal.”</p> <p>The CouRT allowed full costs.</p>

Debt on a promissory note. Mr. Jones, for the plaintiff, produced a note having a subscribing witness who was not present in court, and offered to prove that the defendant acknowledged the note to be his. objected, and cited Esp. N. P. 256, 781.

<p>Tranldin stores fixed, in the usual manner with bricks and mortar, pass to the vendee of the house.</p>

Attachment to secure rent not due, was levied 6n goods not upon the demised premises. moved to quash the attachment, contending that the law only meant to give the same remedy before as after the rent became due, and that nothing could be attached unless on the premises.

<p>Trover for two hogsheads of sugar. The defendant moved for the continuance of the cause to the next term on account of the absence of a witness. The affidavit stated that the witness would prove a conversation between himself and Gilpin, a witness who it was supposed would be produced on the part of the plaintiff.</p>

<p>Scire Facias. The bail offered to surrender the principal.</p> <p>Thornton and Stickney jointly and severally recognized as bail for Blodget. The writ against Thornton was returned’ “ scire feci." That against Stickney, “nihil."</p>

Indictment for beeping a gaming-table, to game with dice, at a booth, on the race-field, contrary to an Act of Assembly of Maryland.

Assumpsit, for stone and sand sold and delivered. The defendant produced Owen McGlue as a witness to prove a partnership between the witness and the plaintiff, and that this was a joint contract. objected that the witness was interested'.

<p>The execution of a deed of land need not be proved by the witnesses if it be acknowledged and recorded.</p> <p>Possession alone will maintain trespass quare clausum fregit against one who has no title.</p>

<p>Indictment for stealing. The prisoner pleaded ore tenus that he is a slave of S. B. Balch, and concluded to the jurisdiction of this Court. 2 Hawk. 227. The United States joined issue upon that plea.</p>

Indictment for stealing a check on the Office of Discount and Deposit, Washington, from a seaman. objected that the United States ought not to be suffered to give the testimony of the officer of the bank respecting the prisoner’s going to the bank with the cheek, unless they produced the check itself, and proved the handwriting of the drawer. The CouRT overruled the objection, unless the prisoner can show that the check is in the possession or power of the United States.

<p>The Rev. A. T. McCormick, an Episcopal clergyman, was indicted for marrying Mary Ann Densley to Matthew Lawler, without the consent of her parents, (she being under the age of sixteen) against the Act of Maryland, February, 1777, c. 12, £> 9, which is in these words: — “ And be it enacted, that if any minister shall join in marriage any male under the age of twenty-one years, or any female under the. age of sixteen years, and not before married, without the consent of the parent or guardian of every such person, personally given, or signified under the hand and seal of the said parent or guardian, and attested by two witnesses, he shall forfeit and pay five hundred pounds current money.” The indictment was as follows:</p> <p> United States, District of Columbia and County of Washington, to wit: </p> <p>The jurors for the United States for the District of Columbia ■and county of Washington, upon their oath, present that Andrew Thomas McCormick, late of the county of Washington, clerk, upon the twenty-third day of July, in the year of our Lord Christ .one thousand eight hundred and two, with force and arms, at the county of Washington aforesaid, did unlawfully, knowingly, and wilfully solemnize matrimony between Henry Lawler, late of the county of Washington aforesaid, then a bachelor, and one Mary Ann Densley, then a single woman, daughter of one Hugh Dens-ley, late of the county of Washington, without the consent of the said Hugh Densley, and without the consent of Mary Ann Dens-ley, wife of the said Hugh Densley and mother to the said Mary Ann Densley first named, personally given or signified under the hand and seal of the said Hugh Densley, or the said Mary Ann his wife, and attested by two witnesses, the said Mary Ann Dens-ley daughter to the said Hugh Densley, and Mary Ann his wife, then and there being under the age of sixteen years, and not before married ; in contempt of the laws of the land, to the evil example of all others in like eases offending, against the form of the statute in that case made and provided, and against the peace and government of the United States.</p> <p>At the trial, Mr. Key, for the traverser, objected to Hugh Dens-ley, as a witness, contending that he was entitled, as informer, to half the penalty, under the 2d section of the Act of Congress, supplementary to the Act concerning the District of Columbia. [2 Stat. at Large, 115.]</p> <p>But the Court overruled the objection.</p> <p>prayed the Court to instruct the jury that it is not necessary to prove that the traverser knew that the girl was under the age of sixteen.</p> <p>contended that there could be no offence, if the tra-verser did not know that fact. The indictment has charged it to be done knowingly, and it would have been bad if it had not. The scienter, therefore, must be proved.</p>

Fieri facias. Motion to quash the execution, on the ground that a writ of error had issued, and the plaintiffs had joined in error at the Supreme Court. The judgment below was signed on the 27th of March, 1802, and the execution was, by consent, stayed two months, before the expiration of which time, viz., on the 19th of May, the writ of error was filed ; and bond given and citation issued.

Motion to amend by changing the writ from case to covenant. No declaration nor cause of action was filed at the time of issuing the writ, which was ordered, by the plaintiff’s counsel, to be in case.

Covenant on a lease. (See a statement of the pleadings in this cause, 1 Cranch, Rep. 345.) The questions brought into view by the pleadings, were, 1. Whether the defendant was individually bound. 2. Whether the destruction of the building was an inevitable casualty, within the meaning of the covenant. cited 2 Mallory’s Ent. 118; 1 Noll. Ab. 450; Dyer, 33; Shubrick v. Salmond, 3 Burr. 1637; Monk v. Cooper, 2 Ld. Raym. 1477; Forward v. Piüard, 1.

<p>If the verdict be for less than twenty dollars, in assumpsit, a nonsuit must he entered.</p>

Debt on bond. Issue, and continued to next term. moved for leave to issue a commission to take depositions in the State of Massachusetts, under the Act of Congress, (Judiciary Act,) 1789, § 30, [1 Stat. at Large, 88.] Refused by the Court, because not grounded on affidavit showing it to be necessary to the justice of the ease.

<p>SPECIAL SESSION.</p> <p>On an indictment for murder, the declarations of the deceased, in extremis, and when sensible of approaching death, may be given in evidence as to facts, but not as opinions.</p>

Motion by Mr. Mason, for the United States to amend the record by adding a statement of the case, according to the requisitions of the 19th section of the Judiciary Act of September 24th, 1789. [1 Stat. at Large, 83.] It was a suit in equity which, since the last term, had been carried up by writ of error to the Supreme Court of the United States, and dismissed on the motion of the Attorney of the United States, because not accompanied by a statement of the facts upon which…

<p>Upon a deed made in 1779, reserving an annual rent of £26 current money of Virginia, forever, the rents accruing during the existence of paper money are to be reduced according to the scale of depreciation.</p>

<p>In assault and battery, on the plea of not guilty, the plaintiff is not bound to prove that the defendant struck or assaulted him first.</p> <p>But, on the plea of son assault demesne, the defendant must prove that the plaintiff assaulted him first.</p>

<p>Assumpsit, on a written agreement, by which the plaintiff and defendant, one being a bricklayer and the other a carpenter, and each being about building a house for himself, agreed to do the work in his trade to the other’s house: “ Each work and materials to be measured and valued agreeable to the customary mode in Alexandria, and whatever balance there may be on either side, at any time they choose to have the work and materials valued, is to be paid in cash on demand. (Signed) Abel Blakéney, Jno. Evans.</p> <p>The defendant offered to prove, by parol testimony, that the work done by the plaintiff was not worth so much' as the valuers had alleged. The plaintiff objected, that if he proved that the work and materials were measured and valued agreeably to the customary mode in Alexandria, and that according to such measurement and valuation, such a balance was due, it is conclusive ; and the Court were of that opinion, and refused to receive such evidence.</p> <p>It appeared, from the testimony of the witness, that the valuers had reduced the result of their valuation to writing and delivered it lo the parties.</p>

<p>Motion for new trial on the ground, that since the trial the defendant had discovered evidence, before unknown to him, tending to discredit Violet, the principal witness against the defendant.</p>

<p>On motion to set aside an office judgment upon an injunction bond, the Court -will not suffer the defendant to plead that the obligee was dead at the time of the execution of the bond.</p>

<p>having, as he supposed, proved all the plaintiff’s account for work and labor, except a sum of £3.3s. 6d. for work done by the plaintiff himself, moved the Court to instruct the jury that the plaintiff’s own oath should be taken as evidence of the sum of £3. 3s. 6d. The oath was made this day.. The account did not state when the work was done, but the cause has been depending in court more than a year. The whole account amounted to £94.</p>

Indictment for retailing spirituous liquors without license. The defendant justified under a license from the corporation of Georgetown. , contended that the corporation of Georgetown have either an exclusive or a concurrent right to license retailers and ordinary keepers, under the Act of Maryland, of 1799, c. 85, § 2. The general law was that the county courts should grant licenses.

<p>Manumitted slaves arc good witnesses for or against a free mulatto in Washington county.</p>

offered to prove the handwriting of Fqx, by comparing it with his signature to the power of attorney filed in this cause, considering it as a matter of record.

<p>The Court will not suffer the general issue to be stAck out to give the defendant leave to plead in abatement.</p>

<p>If the landlord take a single bill of a third person for the amount of rent due from his tenant, and give time of payment to the third person until he fail, this is good evidence to support the plea of no rent-arrear.</p>

<p>In order to make the plaintiff’s own oath evidence in support of an account where the dealings do not exceed .£10 in one year, the affidavit must aver that .no security has been given for the debt, and must pursue exactly the form prescribed in the Act of Assembly of Maryland.</p>

Trover for hogs. The defendant justifies under a by-law of Georgetown, authorizing any person to take up -hogs going at large, &c. objected to the copy of the by-law offered in evidence, because the original by-law did not appear to have been made under the seal of the corporation, although the copy produced was attested by the clerk of the corporation, as a true copy under the seal of the corporation, and also by the mayor, who has also annexed the corporate seal to his…

<p>The plaintiff cannot recover upon a general indebitatus assumpsit, if a special agreement' be proved.</p>

August 6th, 1803. Stewart was surrendered in discharge of his bail; and being prayed in commitment, produced a summons from commissioners of bankruptcy in Baltimore, dated August 4th, 1803, to appear, &e., on the 5th of August, and the 25th of August, 1803, and the 15th of September next.

<p>Security for costs cannot be given in the clerk’s office.</p>

Indictment for a riot. moved to instruct the jury that if they are satisfied that the defendants did not assemble together with the intention to do an unlawful act, but met together innocently, and that the present affray happened without a previous intention formed by the defendants to do a wrong, then they must find for the defendants, on the 1st count — and on the 2d find only those guilty who are proved to have committed the unlawful act. 1 Hawk. 294; Act of Virginia,…

Motion to compel the father of a bastard to support it. This Court has no jurisdiction — it is not within the words of the Act of Congress of February 27, 1801, [2 Stat. at Large, 103,] or of the act of the 3d of March, 1801, [ut sup. 115.] The Act of Assembly of Virginia gives a peculiar jurisdiction to the county court- only. Rev. Code, 1792, c. 102, 23. This is no crime or offence. If it is an offence, this is not the mode of prosecuting it.

Motion to amerce the. marshal, the bail named in the recognizance taken before justices of the peace, being alleged to be insufficient.

At last term, the garnishee having been returned summoned, and not appearing, judgment of condemnation was entered against him for ¿£119, being the whole amount of the plaintiffs’ claim.. A ca. sa. issued on 14th December, 1803, returnable to this term, which commenced on the 26th of December, 1803. On Saturday, 24th December, 1803, at an adjournment of the last term, Mr. Peacock, for the garnishee, moved to appear and set aside the judgment and plead.

Indebitatus assumpsit for work and labor by the plaintiff as a blacksmith ; plea, non assumpsit and issue. 1st Count a certain sum. 2d, Quantum meruit. 3d, Insirniil computasset.

Indictment for keeping a public gaming-house. 1st Count. Common nuisance. 2d. Under the Act of Assembly of Maryland, 1797, c. 110, prohibiting faro-tables, and other gambling devices, to be kept by tavern-keepers and retailers of wine and spirits. cited 1 Hawk. 360, 362, that a public gaming-house is a common nuisance. contended that playing at cards or dice is not malum in se; nor in itself an offence at common law. 11 Co. 87, (6).

<p>It is a contempt of court in .a witness to refuse to answer proper questions before the grand jury, for which he may be fined, and required to give security for his good behavior. ;</p>

<p>A juror cannot be permitted to make solemn affirmation in lieu of oath, unless he be one of those people who hold it unlawful to take an oath on any occasion.</p>

<p>This was an action on the case for money paid, laid out and expended, and for money had and received. The bank having a claim against one Hamilton, a part owner of the ship Alexandria, caused her to be attached at Baltimore, and obtained judgment of condemnation. At the sheriff's sale, the plaintiff became the purchaser, but under an agreement with the hfink that they should exonerate him from all liens and incumbrances on the ship. The seamen libelled the ship for wages, and the plaintiff finding their claim just, paid them, and now brought this action to recover the amount of such payments from the bank. It was admitted by the defendants that the plaintiff would have a right to recover, if there were any claims against the ship for which the claimants had a lien at the time of the sale; and which the plaintiff’ had paid. The charges paid by the plaintiff were for the mate’s wages, work done for repairs on the ship, and for' provisions. It appeared that the mate was engaged at Alexandria, where the former owners lived, to go to Baltimore to take charge of the ship, and prepare her for sea; that when he arrived he found Hamilton’s share' attached, and in the custody of the sheriff; that after remaining on board about fourteen days, he was directed by the owners at Alexandria not to proceed in preparing the ship for sea, but to remain on board to take care of her: he was to have one dollar a day until that vessel sailed, after which he was to have thirty-six dollars per month as mate. He went on board the 10th of January, and remained on board till the 16th of June, when the ship was sold by the sheriff.</p> <p>contended that, as to repairs and provisions, in order to make the ship liable they must be furnished while the ship was on her voyage, or else that there must be an express hypothecation; that Baltimore could not be deemed a foreign country as to Alexandria ; and, as to the mate’s wages, they admitted that if he was employed as a mariner by the owners, in contemplation of a voyage, and to prepare the ship for such a voyage, she was liable to him for his wages while so employed in port, but contended that, by his remaining on board after the orders of countermand were given, he remained there under a new contract, and was a mere ship-keeper, for which service he had no lien on the ship, and cited Green v. Farmer, 4 Burr. 2214; Godin v. London Assur. Co. 1 Burr. 494; Ex parte Shank 8f al. 1 Atk. 234; Ab. on Shipping, 91, 66, 108; Rich v. Coe, Cowp. 636; Westerdellv. Dale, 7 T. R. 312 ; Abbott, 288; Watkinson v. Bernardiston, 2 P. Wms. 367; Wells v. Osmond, 6 Mod. 238. The remedy of the plaintiff against the former owners is good for these charges.</p> <p>Whenever necessary supplies are furnished to a ship, the individual has a triple security; the master, owners and ship. In any case in which a master may hypothecate, if necessaries are furnished, the ship is liable without hypothecation. The contract was made on the credit of the ship, and not on that of the owners, who, as to Baltimore, were in a foreign country, that is, in Alexandria. Mariners may libel where the compact is made on land, and cannot libel unless their lien on the ship is perfect. The cases cited are upon questions to the jurisdiction of the Court of Admiralty, not upon the nature of the contracts. 4 Ba. Ab. 615; Yates v. Hall, 1 T. R. 73, 2 T. R. 73; 1 Comyns, Dig. 391; Wells v. Osman, 2 Ld. Raym. 1044; Cro. Car. 296; Moaré v. Clement, 2 Shower, 338; 4 Ba. Ab. 620 ; Abbott, 102 ; Merritone v. Gibbons, 3 T. R. 267; Rich v. Coe, Cowp. 636 ; 2 Bac. 376; Ross v. Walker, 2 Wils. 264.</p>

<p>A promise, in writing, made under a supposed previous legal liability wliieli did not exist, is void for want of consideration. Jurors escaping from tlieir room may be fined for tlieir contempt.</p>

A. special count was filed, under the leave given at the last term, stating a special agreement to furnish rations for the marines for one year. prayed the Court to instruct the jury, that although the plaintiffs had not supplied beef during the whole year, according to agreement, yet the defendant has no right to offset the unliquidated damages, for the plaintiffs not having continued to furnish the beef during the whole year, but that the plaintiffs were entitled to…

<p>Attachment for violating an injunction.</p>

<p>Juror not permitted to affirm.</p>

Indictment at common law for a riot, and for assault and battery. Mr. Youngs moved in arrest of judgment. 1st. Because an indictment will not lie for a riot, the Act of Assembly of Virginia, of December 4th, 1786, Old Rev. Co. 38, 39, having prescribed a certain mode of prosecution. 2d. Because assault and battery cannot be joined with riot, in the same indictment. They require separate and different kinds of punishment.

o Suit by a seaman for wages against the captain of the ship Governor Strong. offered to read the answer of the captain to the libel of the sailors in the Court of Admiralty, the present plaintiff being one of the libellants. Admitted by the CouRT. Kilty, C. J., doubting.

<p>Debt for rent— demise for one year.</p>

Wilson was indorser of the note of Ricketts, Newton & Co. and Alexander Henderson & Co. The note was discounted at the Bank of Alexandria for the benefit of Alexander Henderson & Co. contended, That the provisions of the charter of the bank respecting summary judgments, applied only to the party who was the real debtor. That in Virginia the maker must be sued, &c., before resort can be had to the indorser.

Trespass quare clausum fregit; not guilty; defence on warrant; plats, deposition, and accounts filed : leave to add and amend. The defendant had a new location and plat of a contiguous ■tract made by the surveyor, since the last term, under leave to add and amend, thirty days’ notice having been given to Pancoast. moved .for a continuance, on the ground of its being an important amendment on the part of the defendant, which would require time to consider and plead.

moved to amend the declaration by specifying the names of the company. asked if there was any thing to amend by, and cited the cases of Nicholls v. Harrison, decided at December term, 1802, (not-reported,) which was a refusal by the Court (Marshall, J. and Cranch, J. against the opinion of Kilty, C. J.) to allow covenant to be changed to case, or case to covenant.

The prisoners being brought up to be arraigned for counterfeiting a bank-note of the United States for fifty dollars, — observed that the Act of Congress [1 Stat. at Large, 573,] has made it felony, and the Act of 30th of April, 1790, § 29, [ut sup. 118,] entitles the prisoners to a copy of the indictment and a list of witnesses in all capital cases. Every felony at common law is a capital offence.

Assumpsit for goods sold and delivered. offered parol evidence to prove the bankruptcy of the plaintiff and assignment of his effects, to show that the plaintiff could not maintain the action. Refused.

Demurrer to the declaration, because it does not state by whom letters testamentary were granted. Cur. ad. vult. See Chiberton v. Trudgeon, Cro, Jac. 556, which seems in support of the demurrer. Quaere,‘whether there is not a difference between letters testamentary and letters of administration. See Grays-brooke v. Fox, Plowden, 279 ; Temple v. Temple, Cro. Eliz. 791; Morgan v. Williams, Cro.

<p>A writ of error is not a supersedeas unless a copy of the writ be filed in the clerk’s office for the adverse party, according to the 23d section of the Judiciary Act of 1789.</p>

Indebitatus assumpsit for one thousand dollars for sundry quantities of cattle sold and delivered at defendant’s request. The evidence offered was an agreement to sell and deliver to the defendant four yoke of steers, at a certain price for each yoke, amounting in the whole to less than one thousand dollars ; and a delivery of the cattle under the agreement.

Assumpsit on promissory note. The note was not suffered by the Court to go in evidence to the jury; not being proved by the subscribing witness, and the absence of the witness not accounted for.

Indictment for disturbing the religious worship of a society of Methodists, under the 4th section of the Act “ for the effectual suppression of vice,” &e., passed 26th December, 1792.

Application to be naturalized. Affidavit that “ he has resided within the United States upwards of six years, that during that period he was absent a short time upon business, but left his family in the United States.

Debt on bond conditioned to prove plaintiff a bankrupt. Plea, conditions performed. Replication. Breach, that defendant did not prove plaintiff to be a bankrupt. Rejoinder, that he did prove him to be a bankrupt. Surrejoinder, that he did not; and tenders issue. Rebutter, joins the issue. contended that he had a right to open the cause, because he held the affirmative, to wit: that he did prove plaintiff a bankrupt.

Writ of inquiry, upon a judgment on demurrer in an action of covenant on a lease; breach, not paying rent. contended that as the landlord has a summary process to compel payment, he is not entitled-to interest. The action is covenant and sounds in damages, and the jury alone can assess them.

Case, for carrying away a slave whereby the plaintiff lost his service; and debt, under the Act of Virginia, of 17th December, 1792, Rev. Code, (P. & P. Ed.) p. 192, for three hundred dollars penalty for carrying away the same slave. Both actions were tried at the same time by the same jury. Question — Whether the master of the vessel is liable to the penalty, if he did not know that the slave was on board at the time he sailed ?

<p>Although the plaintiffs name themselves administrators, yet if they have not made pro-ferí of their letters of administration they are not bound to give oyer of them.</p> <p>The Act of Congress respecting the authentication of the records of State courts does not apply to records of the courts of the United States.</p>

<p>A copy of the proceedings of the commissioners of bankruptcy, in England, certified by a notary and. the American consul, or by a notary and the mayor of Liverpool, is not evidence admissible under the Act of Assembly of Virginia, because not recorded in England, so as to make them evidence there.</p>

The Court, at last term, overruled the defendant’s demurrer, but the judgment was not entered until this term; and-the jury being now called to be sworn to inquire of damages, — offered to plead a breach of covenant on the part of the plaintiff in bar of the action, and contended that the covenants were dependent.

Debt, on an auctioneer’s bond. Plea, 1st, non est factum, and 2d, delivered as an escrow, to be his deed, if also executed by William Hodgson and Peter Sherran, who did not execute it. Issue to the 1st plea; special demurrer and joinder to the 2d plea, because, 1st, the plaintiffs were not privy to the delivery as an escrow ; 2d, the thing to be performed is to be done by strangers and not by the plaintiffs. The obligee must be privy and consent to the conditional delivery.

<p>A note given before the bankruptcy of the maker, payable after and taken up by the payee (the indorser) before final certificate, may be proved under the commission.</p>

This was an action to try the right of the plaintiff to his freedom under the will of Mrs. Turner, which was in these words: “ I will that my slaves be sold by my executors, for the following terms: Bazil for eight years,” (and others for other terms,) “ and the money arising from the same I desire shall be applied in the following manner, to wit,” (&c., giving sundry specific legacies, and the residue to her husband, Charles Turner, she having, by her marriage settlement,…

Injunction. Motion to dissolve. The equity relied Upon was, that upon a joint judgment at law against Watson, and Jesse Simms his appearance-bail, Simms had been taken upon a joint ca. sa. against him and Watson, and discharged by the plaintiff at law, Summers.

<p>One half of the real estate of a testator in Virginia is liable for his debts, although not charged by the will. Qucere.</p>

<p>The practice of selling spirituous liquors, in a public manner, to negroes and slaves, assembled in considerable numbers, and suffering them to drink the same in and about the bouse on the Sabbath, constitutes the offence of keeping a disorderly house, although the owner may have a tavern license.</p>

<p>The selling of spirituous liquors to negroes, in a public manner, assembled in considerable numbers, and suffering them to drink the same in and about the house on the Sabbath, constitutes it a disorderly house.</p>

Indebitatus assumpsit for money had and received by defendant to the use of the bankrupt, and of the plaintiffs as his assignees. Hadfield, of London, held a protested bill for $19,000, drawn by Browne, of Richmond, Virginia, and assigned it to Muilman & Co., of London, for collection, who employed Barry (the defendant) as their agent to collect it. Muilman & Co. became bankrupt. Barry collected the money and remitted it to Hadfield, who afterwards also became bankrupt.

Indictment for stealing a steer, the property of Thomas Young and Thomas Files, under the Act of Congress.

Assumpsit, for money paid and advanced for the use of the defendants. The jury not having agreed at the former trial, in December term, 1803, the cause now came on again, and the facts appeared to be as follows: The defendants had sold to the plaintiff half of the ship Alexandria, to be delivered to the plaintiff free of all liens and incumbrances.

<p>Where there are two joint indorsers notice must he given to both.</p> <p>If one of the joint indorsers pay the note, he cannot recover a moiety from the other indorser unless he was liable to pay the note.</p> <p>Qucere. as to interest on money had and received.</p>

Plea of release under the Insolvent Act of 1774, e. 28. General demurrer. in support of the demurrer, contended that the release was not valid under the Act of 1774. That act provides that a copy of the justices’ certificate shall by the sheriff be affixed to the door of the clerk’s office of the county, and at the door of the prison of the county. The prisoner must be confined in the county jail, and the debtor’s property is to vest in the sheriff of the county.

Assumpsit on acceptance of an inland bill. The defendant proved that upon the assumption of J. H. Barney in writing, to pay the debt* the acceptance was given up by A. & W. Bowyer to the defendant to be cancelled.

Indictment for forgery. A venire was ordered to this day Thursday, January 17, 1805, and upon request of the prisoner the trial was postponed until Monday next; whereupon the jurors summoned were ordered to attend on Monday. The like was done in the case of United States v. Ray & Williams, at last term.

The case in evidence was this : — The Rev. Francis Neale, as the agent, and at the request of the defendant, wrote a letter to the plaintiff, residing in Charles county, (Maryland,) to know the terms on which he would sell a certain house and lot in Georgetown ; and afterwards, at her request, made a verbal agreement with him for the purchase, which was not reduced to writing.

<p>Assumpsit on a negotiable promissory note for 1400 dollars, made October 10,1798, by W. M. Duncanson, payable to, and indorsed by, G. French, due 9 and 12 December, 1798. On the 15th December, 1798, F. Munroe (a notary-public,) demanded payment of Duncanson, and protested the note. The note was made for accommodation of W. M. Duncanson. G. French died Friday, the 14th December, 1798, and was perfectly in his senses in the morning of that day. All the parties resided in Georgetown and Washington.</p> <p>was examined as a witness for the plaintiffs. He had had a conversation with the president of the bank, which he related to the defendant’s agent, and he was requested by the plaintiff’s counsel to stale the reply of the defendant’s agent. This communication was made by the president of the bank to the witness, as counsel for the defendant, and the answer of the defendant’s agent to the witness was made to him as counsel, but he did not conceive the answer of the defendant’s agent to be made in confidence. He did not recollect whether he even communicated the answer to the president of the bank, but did not consider himself as restrained from communicating it.</p> <p>The Court admitted the evidence to be given ; not considering it as a case within the rule respecting counsel and client.</p> <p>W. M. Duncanson, the maker of the note, being called as a witness for the defendant, Mr. Mason, for the plaintiffs, objected, because no party to a negotiable paper is to be allowed to invalidate the instrument. Walton v. Shelly, 1 T. R. 296; Jordaine v. Lashbrook, 7 T. R. 601; Esp. N. P. 708; Peake, L. E. 128. Mr. Gantt cited Esp. N. P. 708.</p> <p>The Court admitted W. M. Duncanson to be sworn and give evidence, saying that Walton v. Shelly was overruled by Jordaine v. Lashbrook.</p> <p>The plaintiff having introduced a deed from Duncanson to Ray to show the fact of Duncanson’s insolvency, the defendant called Duncanson as a witness to prove that that deed was obtained by fraud, and without consideration, and so the inference derived therefrom not correct.</p> <p>The Court admitted W. M. Duncanson to testify as to the grounds upon which that deed was given.</p> <p>said : It is a general principle, that a man is estopped to deny his deed. It is also a general rule, that a man shall not be permitted to do that indirectly which he is forbidden to do directly. There is no case in which it has been allowed as to a sealed instrument. The case of Jordaine v. Lashbrook was upon an accommodation note.</p> <p>Mr. Mason prayed the Court to instruct the jury, that if they should be satisfied that this note was indorsed by G. French, without any valuable consideration passing from him to any person for the same, merely to accommodate W. M. Duncanson, the maker of the note, and to give him a credit with the plaintiffs for the amount thereof, and that the plaintiffs received the same with a knowledge of its having been so drawn and indorsed ; that if they are also satisfied that John Weems was the agent of the defendant, and that he had notice of the dishonor of the note in January, 1799, and then conversed with and endeavored to make arrangements with the plaintiffs for the same, and are also satisfied that G. French, in his lifetime, and his executrix, or his estate since his death, have suffered no loss or injury from the circumstance of this note not having been demanded of the drawer before the 15th December, 1798, or of notice not having been given to the indorser, or his executrix, of the dishonor of the note, other than as above stated, that such laches and neglect of the plaintiffs as to a demand on the maker, and in not giving other notice to the indorser of the said note, does not debar and take away their right to recover upon this note against the present defendant. De Berdt v. Atkinson, 2 H. Bl. 336, and Nicholson v. Gouthit, Id. 609 ; Chitty, 86, 87, 89, 101. Mr. Mason admitted that the onus probandi of showing that the indorser has sustained no damage by want of notice, lies on the plaintiffs. Nicholson v. Gouthit, 2 H. Bl. 609. An indorsed promissory note is a bill of exchange. If the drawer of a bill has no funds in the hands of the drawee, no notice is necessary to the drawer, of the dishonor of the bill'. Chitty, 17, 169, 170; Kyd, 125. The fact of insolvency, in the case of De Berdt v. Atkinson, does not differ it from this case, because the insolvency and knowledge of that insolvency by Atkinson was only a fact to show that he could not suffer by want of notice. In the present case it is expressly proved that the defendant received no injury by want of notice, and therefore is precisely within the reason of the case of De Berdt v. Atkinson.</p> <p>Mr. Mason attempted to reconcile the cases of DeBerdt v. Atkinson, and Nicholson v. Gouthit. The defendant, Gouthit, actually sustained a loss in consequence of want of notice, because the funds which he held when the note became payable, were withdrawn before the demand was made, and therefore if compelled to pay the note he would be injured. Chitty, (p. 87,) does-not notice the cases as contradictory, although he cited both in the same page, and states the law of DeBerdt v. Atkinson as absolutely settled. Christian’s Notes to Bl. Com. 2d vol. 470, note 26th.</p> <p>The indorser is a surety, and liable only in a qualified manner. There is a difference between the acceptor of a bill and the maker of a note, and between the in-dorser of anote and the drawer of a bill. The indorser indorses on the credit of the maker; and the reason of notice is that the indorser may immediately resort to the maker and get security; but in the case of a drawer of a bill who has no funds in the hands of-the drawee, the drawer has no right to expect the bill to be honored or paid. Esp. N. P. 34. In the case of a drawer of a bill without funds, the drawer is the principal debtor, and is not in the- nature of surety. Robertson v. Vogle, 1 Dal. 252. Although it may be an accommodation note, yet there is the same reason for notice as if it were for a real debt. Tindall v. Browne, 1 T. R. 167.</p> <p>This was an extraordinary transaction-of negotiation at the Bank of Columbia. There is a difference between an indorsed promissory note and bill of exchange. Prima facie it is a bona fide transaction.- - Notice must be waived by some agreement. The maker of a promissory note is absolutely bound" to pay. The contract of the indorser is conditional only. The holder undertakes to do certain things, and if he omits these he waives the liability of the in,dorser. Kyd, 109, 111, 117; 2 Bl. Com. 470. In the case of DeBerdt v. Atkinson-, the decision' was upon the ground of the insolvency of the maker being known to Atkinson at the time of the ind'orsement; so that Atkinson undertook to pay at all events. By not"demanding the money of W. M. Duncanson, on the day it became due, the plaintiffs have given credit to W. M. Duncanson. The indorsement is only a conditional contract, and the conditions have not been complied with. To make him liable without demand or notice, is to create a liability on the defendant which he never assumed. The case of DeBerdt v. Atkinson is overruled by that of Nicholson v. Gouthit. Notice’must be stated in the declaration, and it is error if not stated; it must therefore be proved. There was no consideration between the plaintiff and defendant, unless the payment to Duncanson can be considered as a payment to French ; and if the money was thus paid to French, and by French to Duncan-son, then a consideration passed from Fre.nch to Duncanson, and Duncanson had funds in his hands, upon which French could draw.</p> <p>* Mr. Mason. Until French repays the money to the bank, he cannot support an action against Duncanson.</p>

Debt on an appeal-bond — plea, non est factum. On the trial, Mr. Key, for the defendant, prayed the Court to instruct the jury, “ That if they should be satisfied, by the evidence, that the bond was signed, sealed and delivered by Mary Sweeny, and by J. T. Frost and the defendant, as her sureties, and was afterwards presented to Cornelius Coningham, (the justice who had rendered the judgment,) for his approbation and acceptance of the sureties, and was by him refused and…

<p>The .writ and declaration may be amended by substituting the corporate name of the jjlaintiff, for “ The Corporation of Georgetown,” on payment of all costs; and a continuance and leave to plead de novo.</p>

Case, for use and occupation. A parol demise for a year from 1st November, 1802, at six hundred dollars per annum was proved. Defendants quitted the house in February, 1803, because the chimneys smoked, so that their lodgers had determined to leave them. contended for the whole year’s rent.

<p>This cause stood on the appearance-docket of this term.</p> <p>moved for judgment in an action brought to this term on a bond given by the defendant, with the plaintiffs as sureties, to the United States, for duties; the plaintiffs having paid the duties, and the defendant having become insolvent. ■This suit was brought under the Act of Congress of the 2d of March, 1799-, § 65, [1 Stat. at Large, 676.]</p> <p>contended — 1st, That sureties are not entitled to judgment at the first term. 2d, That if they have that remedy, it can be used only in cases of such kinds of insolvency as are mentioned in the Act of'Congress of the 2d of March, 1799, § 65, [ut sup.]</p> <p>relied on the words “ the like advantage, priority or preference for the recovery,” &c., in page 387. They admitted that the.United Slates could not recover judgment on a bond for duties, but by a jury trial in common form; but contended that the surety who pays the debt of an insolvent principal has a right to a trial at the first term.</p>

Indictment for assault and battery on George Coryell. asked the witness, Preston, whether he had heard Coryell use threats to break up and injure Bartle, or any prior quarrel, in order to discredit the witness Cor-yell, and to mitigate the fine, which, by the law of Virginia, is to be assessed by the j ary. objected, that it was not a justification, nor could be given in evidence in mitigation of the fine. But the Court permitted the question to be asked.

Indictment for assault on Julia Drake. moved the Court to arrest the judgment upon the verdict, because the name of a prosecutor was not indorsed on the indictment; and cited the Virginia law, New Rev. Code, 105, c. 74, § 24, 25; p. 346, c. 188, § 2; and the Act of 1802, p. 431, c. 303.

<p>The qualifications of jurors in this Court must he the same as in the county courts of Virginia.</p>

<p>The holder of a bill before protest, is not affected by a settlement between the drawer and payee.</p> <p>In an action upon protest for non-payment, it is not necessary to show a protest for non-acceptance, nor to give notice of non-acceptance.</p> <p>Reasonableness of notice is to he decided by the jury.</p> <p>In an action by the payee of a hill having two subsequent indorsements in full, it is not necessary for the plaintiff to show a now assignment to himself.</p> <p>If the drawer has no funds in the hands of the drawee he is not entitled to notice of non-payment.</p>

Case for enticing a servant. The plaintiff’s declaration stated that John Leonard, (the servant,) for a certain price agreed to serve the plaintiff for eight months. The plaintiff produced. an indenture by which, in consideration of eight guineas paid by the plaintiff to'Alexander Smith, Leonard agreed to serve the plaintiff for eight months. objected that the proof varied from the declaration.

Assumpsit on a special contract respecting flour. prayed the Court to instruct the jury, that they ought to regulate the damages according to the price of flour on the day when the flour ought to have been delivered, and cited the following cases: „Groves v. Graves, 1 Wash. 1; Dutch v. Warren, 1 Powell on Cont. 137.

Debt against the principal and surety on a prison-bounds bond; plea, covenants performed ; replication, did not keep in the bounds, but departed without being discharged in due course of law ; rejoinder, discharged in due course of law ; and issue thereon. contended that a warrant of dis- . charge by the magistrates is conclusive evidence that Simms was discharged in due course of law, and is as much a discharge of the bond, as it would be to the sheriff, if the prisoner was…

<p>Indictment for keeping a faro-table, at common law, and on the Act of Assembly of Maryland, 1797, c. 110.</p>

Indictment for selling spirituous liquor to slaves on Sunday, contra formam statuti. The defendant, being a shopkeeper, sold liquors to slaves on Sundays, and kept a disorderly house.

This was the sixth term since the action was instituted. The plaintiff, at last term, had leave to amend, by changing his action from debt to case, and laid a rule on the defendant to plead by the plea-day. now pleads non assumpsit, and moves for a continuance, the cause not having been at issue at the last term.

A summons for witnesses in Virginia, on the part of the plaintiff, was. issued and directed to the marshal of Virginia. It was served by a private person who made affidavit that he read it to the witnesses and required their attendance, and that he believed they attended in consequence of such summons.

Case against a common ’ carrier, for negligence in carrying tobacco from Bladensburg in a scow. offered the deposition of William Barry, a seafaring man, taken under the Act of Assembly of Maryland, 1721, c. 14. objected that the notice was only to himself, as attorney, on the day before the taking, which was not reaspnable notice. Every departure from the general rules of evidence, must be taken strictly. The act requires notice to the adverse party.

' contended, 1st. That the warrant to take Barney to answer to the “ corporation,” (not calling them by their corporate name,) is void. 2d. That the warrant ought to have stated that Barney was a person residing within the jurisdiction of the corporation. relied on the seventh section of the Act of Congress of May 3, 1802, [2 Stat. at Large, 195,] (Charter of Washington,) and on the appearance of Barney, without objecting to the jurisdiction, or to the misnomer of the…

Indebitatus assumpsit and quantum meruit, for work and labor done as extra work; a special contract under seal having been made for building a house of a certain plan and description, which contained the following clause: “ And it is mutually agreed upon that in case any misunderstanding shall take place in relation to the bill of particulars or any other misconception or want of appropriate words to convey the true intent and meaning of said parties, or in case any material…

Debt, on bond, conditioned to pay $460, on 1st January, 1804; $460, on 1st January, 1805; $460, on 1st January, 1806 ; and $460, on 1st January, 1807. The writ issued in June, 1804. The trial was in August, 1805. Plea, payment, and issue. (See the Act of Assembly of Maryland, 1785, c. 80, 13.)

Motion to stay proceedings against bail, or to enter an exo-neretur. The ca. sa. against Roberts was returned “ non est,” to December term, 1803. On the 7th of January, 1804, the law of Maryland was passed to discharge Roberts as an insolvent debtor. On the 27th January, 1804, the scire jadas issued against the bail, returnable to July term, 1804, and was returned scire feci. In May, 1804, Roberts was discharged by the Chancellor of Maryland.

Injunction. The answers of the defendants were filed August 10, 1805, and notice of motion to dissolve on the 30th of September, 1805, (the day to which the July term stood adjourned) was served on Burford on the 18th of August, and on Mr. Youngs, his solicitor, on the 21st September, who acknowledged service and promised to attend on this day (October 4, 1805.)

Indictment for false imprisonment of James Carter, a mulatto boy. . moved the Court to instruct the jury, that the evidence does notsupport the indictment. The evidence was that the boy (who was a free mulatto) was bound to the defendant, in Maryland. The defendant brought him into Alexandria. By the law of Maryland the indenture was void if he carried him out of that State. The defendant having brought him to Alexandria, sold his time to Hodgkins.

Bill for injunction to prevent the administrators from confessing judgment at law in favor of other creditors in equal degree; and to distribute the assets pari passu. An administrator is a trustee, and subject to equitable jurisdiction. At law an administrator may prefer a creditor in equal degree; but a court of equity may interfere; especially before any payments are made. The equity of him who claims pro raid is superior to that of him who contends for all.

<p>Assumpsit for goods sold and delivered. Upon the trial of the general issue, the defendant offered in evidence a bill of parcels of the same goods rendered by and in the handwriting of the plaintiff, beginning with these words: “ Mr. Theophilus Harris, bought of Dunlap and Johnston,” and containing a particular account of rum and sugar; at the foot of which, was the following receipt, signed by the plaintiff: “Received Messrs. Cling-man & Magaw’s note for the above sum, payable to the order of John Towers and Theophilus Harris, payable the 2d of April, 1798 ; when paid, received in full.”</p> <p>This note, with the blank indorsements of Towers and Harris and Johnston, was delivered by Johnston to Dunlap, who brought suit upon it in Virginia, against Harris, but failed to recover, because an indorsee cannot, in Virginia, recover at law against a remote indorser. Dunlap then brought suit against Towers, on the same note in this Court, which suit was still pending.</p> <p>The defendant, upon these facts, prayed the Court to instruct the jury, that the plaintiff could not recover in this action for the goods sold; and that from the bill of parcels and receipt aforesaid, the transaction must be considered as a joint contract. Which instruction, the CouRT refused to give, as prayed, but directed the jury that the bill of parcels was evidence (but not conclusive) of a joint contract of sale ; and that the plaintiff may explain the transaction by parol, or other evidence to prove that he was the sole owner of the sugar, and that Dunlap was the sole owner of the rum, and that the contract was made with'the plaintiff in his own right for the sugar, and with him as agent of Dunlap for the rum. But if the plaintiff should produce no explanatory evidence, he could not maintain the present action. And the Court further instructed the jury that if they should be satisfied, by the evidence, that the contract of sale was made with the plaintiff alone, and that part of the goods was the sole property of the plaintiff, and that the residue was the sole property of Dunlap, and that the plaintiff had authority from Dunlap to sell such residue ; then the plaintiff had a right to recover judgment in this action against the defendant for the whole amount of the goods so sold and delivered, and that the other facts stated are not sufficient to bar the plaintiff.</p> <p>was then going on to argue to the jury from the face of the bill of parcels,, that it did not purport a joint contract; but the Court stopped him, and would not suffer him to argue the question of law to the jury after it had been decided by the Court.</p> <p>Verdict for the plaintiff.</p> <p>moved for a new trial. 1. Because the verdict was against evidence. 2. Because the plaintiff’s brother in Jaw was on the jury. 3. Because the note was outstanding, and had been passed away by Johnston, Who had received its value from Dunlap. Thearslake v. Morgan, 5 T. R. 513; Tapley v. Martens, 8 T. R. 453.</p>

Debt against Summers and Crawford. Both defendants were taken by the marshal, and after office judgment, appeared by attorney and set aside the office judgment; whereupon the cause was sent back to the rules for further proceedings, when the defendant, Summers, in proper person, pleaded in abatement that he was one of the marshal’s deputies, and that the capias was not served on him by a disinterested person, as required by the 28th section of the Judiciary Act of 1789. [1…

Debt on official bond as town-sergeant; breach, non-payment of fees put into his hands to collect for Bedinger : general replication and issue. ■ A copy of a list of fees, dated 5 May, 1800, with Turner’s acknowledgment, was produced. At the bottom of the list was the following order: “ Sir : — Pay Mr, Russel, out of the sale of negroes, fifty dollars, and return Groverman’s note. Charles Turner. 26th December, 1801. Wm.

<p>The Bank of Alexandria is, by its charter,1 entitled to judgment at the first term.</p>

Trespass for distraining goods for a militia fine ; special justification under a warrant, &c.; replication, that the plaintiff was a justice of the peace; demurrer and joinder. The Act of 3d of March, 1803, [2 Slat, at Large, 215,] to provide for the organization of militia of the District of.

<p>Upon a plea of tender, it is not sufficient to prove that the defendant asked the plaintiff if he would take the money, and said he was ready to pay it, and would give his check for it.</p>

This was an action upon the ease upon the Statute of Virginia of 25 January, 1798, § 6 and 7, by the owner of a slave, against the master of a Georgetown packet-boat, for damages for carrying the plaintiff’s slave from Alexandria to Georgetown, whereby the plaintiff lost the service of the slave from the 29th of April to the 21st of May, and was put to great expense, 6cc.

<p>A slave brought into Alexandria in 1802, by a person removing from Maryland, and omitting to take the oath within sixty days after his removal, is entitled to freedom under the Act of the 17th of December, 1792, although the person bringing the slave was not his owner.</p>

Verdict for the plaintiff, subject to the opinion of the Court upon the following questions : — 1. Whether the defendant, who obtained letters of administration in Fairfax county, before its separation from Virginia, can maintain the plea of “ never administrator.” 2. Whether it was necessary, under the Statute of Frauds, that the promise alleged in the 2d count should be in writing. The 1st count was upon the promise of the intestate.

<p>If there be no declaration the Court will not require special bail, unless the plaintiff appears at the return of the writ.</p>

This was an indictment against Baker for an assault and battery upon W. Howard, who entered Baker’s house with the officer who had an execution against the goods of Baker, at the suit of Barry. Howard accompanied the officer at the request of the plaintiff, and as his agent to show the goods to the officer.

<p>Indictment. 1st count, at common law, for a nuisance, in keeping a public gaming-house. 2d. Under the Act of Assembly of Maryland, for keeping a faro-table, the defendant being a retailer of spirituous liquors.</p> <p>gave up the 2d count.</p>

The prisoner was indicted, under the Act of Congress of 1790, [1 Stat. at Large, 112,] for the punishment of certain crimes, for stealing a watch in the county of Washington.

Assumpsit, against the maker of a promissory note, indorsed by Bazil Wood, as surety, and given to the plaintiffs to secure the purchase-money of lots No. 1 and 2, in the square No. 107, in the city of Washington, dated August 6, 1800.

Habeas corpus, ad subjiciendum. The return states a warrant, from a large number of justices, to bring before them the prisoner, to find sureties for his good behavior.

Indictment for receiving a bank-note of the Bank of Álexan-dria, the property of the President, Directors, & Company of the Bank of Columbia, knowing it to be stolen ; against the form of the statute.

Motion, by the defendant, for a rule on the plaintiff, to give security for costs, on the ground that the plaintiff is a non-resident. The facts admitted were that the plaintiff has a large bookstore in this city, and occasionally resides here during the winter, has a family, and now resides at Philadelphia. His family never has resided here. He has a storekeeper here. The marshal has applied at the store and received' pay for fees regularly.

<p>Delivery of tlie cargo to the owners, by the supercargo, is evidence of his receipt of his commissions in an action against him by a third person, who is entitled to a share of those commissions.</p>

Money had and Received, to recover one hundred and eighty dollars paid in advance for the purchase of the horse Yorick. The plaintiff paid the defendant one hundred and eighty dollars, in advance, for the horse, which was to be delivered to plaintiff at f.a future day, on payment of the balance, and if the balance should not be paid on or before that future day, the advance-money should be forfeited.

The plaintiffs had obtained judgment against the defendant at July term, 1804. A ca. sa. was issued, November 8,1804, which was countermanded by the plaintiffs, and a fieri facias issued on the 21st November, 1804, which was also countermanded.

Debt on a duty-bond, returnable to this term; special bail. The defendant appeared in proper person. on the last day of the sitting of the Court, moved for, and obtained a rule on the defendant to plead instanter.

<p>Debt on sheriff’s bond; plea, conditions performed; replication, that on the 5th of May, 1800, one Bedinger, clerk of Berk-ley county, put into Turner’s hands, to be collected and accounted for according to law, tickets of fees due to Bedinger as clerk amounting to $175 and 32 cents, for which fees Turner was bound to have accounted before the first of September ensuing, and to have paid over to Bedinger, which he did not do. To this replication there was a general rejoinder and issue, and verdict for the plaintiff.</p>

<p>Words spoken of one of tlie plaintiffs cannot be given in evidence to support an averment of words spoken of both plaintiffs ; nor can words spoken by each defendant separately, and out of the presence of each other, be given in evidence to support an averment of words spoken jointly by the defendants.</p> <p>An attachment cannot be served in court.</p>

<p>Under the bankrupt law, an attaching creditor was entitled to only a ratable part of his debt, with the other creditors; and that part was to be ascertained by the assignees, under the direction of commissioners.</p>

Plea in abatement — pendency of a former suit in Fairfax county, Virginia. Demurrer, special; because, 1. A suit in Fair-fax is no bar to a suit here. 2. A suit in chancery is no bar to a suit at law. 3. There is no proferí of a record of the case in Fairfax.

In an action of assumpsit, for boarding, lodging, and liquors, brought by the plaintiff,' who ivas a tavern-keeper, moved the Court to instruct the jury, that the plaintiff cannot recover more than $5 a year for liquors sold to be drank in the house.

<p>Assumpsit, on a policy of insurance on the cargo of the brig Fame, from Alexandria, to, at, and from Barbadoes, and four other ports in the West Indies, and back to Alexandria; captured by the British ship Centaur, and condemned at Barbadoes, by a British vice-admiralty court, for attempting to break the blockade of Martinique.</p> <p>after stating that the law was not yet conclusively settled in the courts of the United States, upon the question whether the. sentence of a foreign court of admiralty was conclusive evidence of the fact of violation of the neutral character of the captured vessel, in an action upon a policy of insurance, moved the Court to instruct the jury to find a special verdict, and cited the following authorities: Vin. Ab. 490, tit. Trial, B; Regina v. Beiodley, 1 P. Wms. 213 ; Ridgeway, 34; Harg. Co. Lit. 155, (b) note 5; 2 Morgan’s Essays, 44; 3 Tuck. Bl. 376 ; Wilson v. Rucker, 1 Call, 500; Watson v. Alexander, 1 Wash. 354; 2 Wash. 274 ; Picket v. Morris, 2 Wash. 274; Syme v. Butler, 1 Call, 105, 112, 114.</p> <p>The question has been long settled, and there is nothing in the case which requires an extraordinary proceeding. The plaintiffs, if they please, may ask the instruction of the Court, and take their bill of exception, if the opinion of the Court should be against them, or if the Court should refuse to instruct the jury.</p>

Non assumpsit et plene administravit, general replication and issue. Verdict. We of the jury find the issues for the plaintiff, and assess her damages at ^220^¶. moved, in arrest of judgment, that the jury ought to have found specially that the defendant had in his hands goods unadministered sufficient to satisfy the debt; and relied on the case of Booth v. Armstrong, 2 Wash. 301.

Covenant, on a charter-party, for non-payment of demurrage. The plaintiff agreed to allow twenty working lay days for the loading at Alexandria. The cargo was to be wheat.

<p>A court of equity will not decree the execution of a yerbal agreement to pay the debt . of another, although confessed in the answer, if the Statute of Frauds be pleaded and ■ insisted upon in the answer.</p>

The bill in this case sets forth.— 1. That one, Joseph Hodg-son, late of White Haven, in Great Britain, deceased, on the 29th of October, 1798, pretending to be in partnership with W. I. Hall, of Alexandria, purchased, for the partnership, goods to the amount of £500. 7s. 0d. sterling, and gave to the complainants a promissory note, dated at White Haven, on that day, for that amount, signed Hodgson & Hall.

<p>Injunction to stay a judgment at law.</p>

Verdict for the plaintiff. Motion by the defendant’ for a new trial, grounded on the affidavits of three or four'of the jurymen, that a mistake was made by the foreman in-calculating upon the principles agreed on by the jury ; some of the others, particularly the foreman, believed there was no mistake. cited Vasie v. Delaval, 1 T. R. 11, and Cochran v. Street, 1 Wash.'79. '■

<p>The testator having bequeathed a certain annual allowance to his three younger children, to be paid out of the rents of his real estate,'and having by his will disposed of all his property except the reversion of certain land, directs his .executors, in case the rents should not be sufficient to pay the allowance, to adopt some mode for raising the deficiency out of the other parts of the'estate not devised to his wife: Held, that the executors had, thereby, power to sell the reversion of the lands.</p> <p>The widow is to bear her proportion of the executors’ commissions.</p>

Presentment, for opposing Clement Venable, a constable, in the execdtion of his duty; it having been proved that Venable had a warrant against the defendant. moved that the warrant should be produced, anfl to instruct the jury to that effect. It is. not necessary to produce the. warrant. Venable took the man in an affray, and had a right to do so as a peace-officer.

Motion by Mr. Caldioell, for the defendant to appear without bail. The cause of action was an account and affidavit by one of the plaintiffs, that the above account, as stated, is “true and correct, according to the best of his knowledge and belief.” 1 Sel. Prac. 112.

Indictment for opposing Clement Venable, in the execution of his duty as a constable. objected to parol testimony of the warrant being given, because it is matter of record. Peake’s L. E. 19.

<p>Parol evidence of the contents of a warrant cannot be-given unless the loss of the warrant be proved.</p>

<p>Ail affidavit in tie form of that required by the Act of Maryland, of 1729, is sufficient to hold the defendant to bail.</p>

Indictment for stealing three fence-rails, the property of some person or persons to the jury unknown. contended that the fence was part of the freehold, and therefore the defendant was only guilty of a trespass.

<p>An insolvent debtor will be discharged from arrest for costs accrued partly before and partly after his discharge under the act.</p>

Petition for freedom on the ground that the petitioner was born and on the 27th of February, 1801, resided in that part of the District of Columbia, which was ceded by Virginia to the United States, with Mr. Chapman, his owner, who sold him to Mr. Payne, who sold him to the defendant in Washington county, in this district, and sent him to the defendant, from the county of Alexandria, into this county.

Indictment for larceny. prayed the Court to instruct the jury, that if the prisoner’s confession was made after threats, &c., or promises of favor, then neither the confession, nor the making satisfaction to the owner, is competent evidence against the prisoner in this prosecution. contended, that if the confession be corroborated by any facts discovered in consequence of the confession; the confession itself may go in evidence.

<p>Appeal from the judgment of William Thornton, a justice of the peace, in an action of debt for penalty of the by-law, for running hacks without license, contrary to the by-law, c. 9.</p>

Attachment under the Act of Maryland of 1795, c. 56. 1. Objected that the oath was made by Small only. 2. That the Christian names of Birch & Small are not mentioned, either in the writ of capias, or of attachment, nor in the affidavit. 3. That it must appear on the papers that the plaintiffs were citizens of the United States. The act was made for a certain class of people, for citizens of the United States only.

<p>It is not necessary that a forthcoming bond should recite the return of the execution, nor the certificate of the service, nor the name of the person by whom it was served; but it must state that the execution was served.</p> <p>A mistake in calculating the marshal’s fees may be cured by a release; and judgment may be rendered for the true sum.</p>

' Indictment, for assault and battery on Joshua Biddle. John Johnston’s name, as prosecutor, was indorsed on the indictment. Joshua Riddle was examined as a witness on the part of the prosecution, and on cross-examination said he felt himself bound in honor to indemnify Johnston, in case he should be obliged to pay costs; but he had made no engagement; that Mr. Taylor, his counsel, had managed the business, and that he had no conversation himself with Johnston.

Indictment, for assault and battery. General demurrer, be- ■ cause the name of a prosecutor was not indorsed according to the Act of Assembly. cited the law of Virginia, of 13 November, 1792, and read the title of the act to show the intent to prevent vexatious and malicious prosecutions.

<p>Supplemental affidavits will not be received upon a motion for the continuance of a cause.</p> <p>To support a plea in abatement, for not naming all the joint promisors, it is not necessary for the defendant to prove that the plaintiff knew he was dealing with a copart-nership.</p>

contended, that as this theft was charged in the indictment to have been done feloniously, the prisoner had a right to a peremptory challenge of twenty jurors, under the Act of Assembly (Old Rev. Code, 109.) See U. S. v. Michael Car-rigo, [ante, 49.]

<p>This Court has power to send an attachment into Virginia, for a witness in a civil cause, who resides within one hundred miles of the place of trial; and such attachment is to be directed to, and served and returned by, the marshal of Virginia.</p>

The plaintiff died since the last term, and the administrator appears at this term. The issue was made'up at the last term. contended that he was of right entitled to a continuance. By the Act of Assembly of Virginia, (P. P. 110, § 20,) all suits abate by the death of a party, unless there has been a verdict or interlocutory judgment. But the Judiciary Act of 1789, [1 Stat. at Large, 73,] provides that the suit shall not abate, but that the defendant shall answer thereto.

<p>If the goods sold belonged to a partnership at the time of sale, the action must be brought in the name of all the partners, although the defendant was ignorant of the partnership.</p>

Assault and battery. contended, that he had a right to read the deposition of Beckwith Green, taken de bene esse, upon showing that a subpoena had been issued to the marshal of the District of Columbia, and returned non est. It was issued only a few days before the sitting of the Court. He cited the ease of Broadwell v. McClish $f Wolves, at April term, 1801, [ante, 4.]

Assumpsit by the indorsee against the indorser of a foreign bill of exchange, drawn by Foreman on Butcher & Westphalia, at Hamburg, in favor of the defendant, and by him indorsed to the plaintiff.

Assumpsit on an agreement in writing. James Bacon, one of the defendants, having pleaded bankruptcy, the plaintiff demurred generally. The Court overruled the demurrer, and offered Bacon as a witness. The Court admitted him to be sworn, upon executing a release of all right to a surplus and commission, &c.

<p>The defendant may, at the trial-court, give notice to anon-resident plaintiff, that security for costs will be required, and the cause will be continued if the plaintiff is not ready to give the security.</p>

Debt on a promissory note. The defendant pleaded nil debet, and offered evidence of infancy in support of the plea. There is a difference between contraéis void and voidable. This note was' not void, but voidable. If infancy be pleaded, the plaintiff may reply that it was given for necessaries.

<p>The Court will not continue a cause for the absence of a witness, who has been summoned, if no attachment has been moved for, if the witness resides within one hundred miles of this place, although he resides out of this district.</p>

<p>LambeRt died since the last term. Fosdiek, the surviving partner, resides out of the district. The defendants moved for a rule on the plaintiffs to give security for costs.</p> <p>The CouRT decided that if the plaintiff did not now give the security, they would continue the cause so as to enable the defendant to give sixty days’ notice of the motion, according to the Act of Assembly. See Thomas v. Woodhouse, [ante, 341.]</p> <p>Mr. Swann gave the security required.</p> <p>contended that he had a right to a continuance, because the plaintiff had filled up a blank in the declaration.</p>

Habeas corpus, to Andrew Jamieson to bring the body of Mc-Cutchin, whom he claims as an apprentice. The return showed an indenture between the overseers of the poor and Andrew Jamieson, under their seals, in which they state that the boy is nine years old in July, 1794, (the date of the indenture,) and bind him until he shall be twenty-one years old.

<p>Lovering lives in Alexandria. Motion for a rule on the plaintiff to give security for costs.</p>

Injunction. Motion to dissolve. It was objected that the answer does not appear to be sworn, &c., there being no certificate but that of the justice himself, that he was a justice of the peace for Prince George’s county, in Maryland, at the time he administered the oath. This Court has never gone so far as to admit an answer sworn and certified in this manner. In England, the answer is taken by commission.

<p>Assumpsit upon a promissory note indorsed by the defendant to the plaintiffs.</p>

Assumpsit for goods sold and delivered. The plaintiffs’ witness deposeth that the goods were sold to the defendants by Woodward & Company. having required proof that the plaintiffs were the persons who constituted the firm of Woodward & Company, and having referred to the case of Tibbs et al. v. Parrott, [ante, 313,] — Mr. Swann had leave to argue the point again, and contended that the plaintiffs have made a record acknowledgment that they constitute the firm.

<p>In Chancery. This was a motion to discharge the ne exeat and certain chancery attachments, and for restoration of certain goods delivered by Holliday & Allen, to the marshal, under the condition of the order for a ne exeat.</p> <p>The bill states that Charles McLaughlin, late of Georgetown, deceased, was indebted to the plaintiff in nine hundred and ninety-two dollars and upwards, which sum yet remains due and unpaid. That the defendant, Peggy McLaughlin, obtained letters of administration on his estate, from the Orphans’ Court, in the county of Washington, in this district. That Joshua Barney and Joseph Young, both of Baltimore, in the State of Maryland, are her sureties for the faithful administration of the estate ; and that she has given no security whatever, within the District of Columbia. That she is about to remove herself from the said district and to settle in the State of Maryland. That the complainant has reason to believe she has fraudulently concealed and embezzled a great quantity of goods and chattels of the decedent to a great value; — and that to defraud the creditors, she and the defendant, Barney, without suffering those goods to be inventoried and appraised, but concealing them from the view of the appraisers, employed a vessel, owned by one Holliday, of Maryland, and of which William Allen is master, to convey the concealed and embezzled goods out of this district, into Maryland. That the goods are now on board the vessel, on the River Potomac, sailing on the voyage to Havre de Grace, or Baltimore, and transporting thither for the private gain of the administratrix and of the defendant, Barney. That so secret have been their proceedings, that it is impossible for any of the creditors to know certainly, or to bring proof in a court of law as to the quantity and value of the said goods, nor of what particular articles they consist, without the interposition of this Court for a discovery thereof. That unless the said goods can be subjected to examination and detention, under the orders- of this Court, for the purpose of being applied to the satisfaction of the complainant and other creditors of the deceased, they will lose their demands. It seeks a discovery as to what goods of the deceased have come to the hands of the administratrix or of the defendant Barney, other than those which have been inventoried: What goods of the deceased, *or of others, and to whom belonging, were shipped on board of the vessel. It prays that the defendants, Peggy and Joshua, may be restrained by ne exeat from departing from the district until a full, fair, and final administration shall be made: That all the defendants may be enjoined and restrained from carrying away the goods shipped on board the vessel, and that Holliday and Allen may be restrained from departing until the said goods shall be surrendered and subjected to due examination ánd appropriation, under’ the jurisdiction and orders of this Court. This bill being sworn to, the following order was indorsed by one of the judges of this Court:</p> <p>“ The clerk will issue a writ of ne exeat as prayed, restraining the defendants from removing out of the District of Columbia, with the effects within mentioned, unless they give bond with security in the usual form, in the penalty of one thousand nine hundred dollars; or shall deliver up to the marshal the said effects, to be subject to the future order of the Court.”</p> <p>The answer of Peggy McLaughlin denies that she or the defendant Barney, is personally indebted to the plaintiff, and denies his claim to be just against the estate of her husband. It admits that the defendant Barney, and one Joseph Young, both of Baltimore, in Maryland, are her sureties in the administration-bond, and avers them both to be men of sufficient property; — that they were accepted by the judge of Orphans’ Court, who has the sole jurisdiction as to their sufficiency, and denies the power of this Court to judge thereon, or to require other sureties. It denies that she is about to change her residence, but avers that she only intended to pay a visit to her friends. It denies that she intended to remove out of the jurisdiction of the Court, which has the power to settle the deceased’s estate. It denies that she has fraudulently concealed, or embezzled any of the estate, — but avers that she has fairly inventoried the estate according to the best of her knowledge. It avers that the goods on board the vessel were the property of herself, and other persons whom she names. That she has no inventory of those effects. It states that she purchased part of those goods, to the amount of eight hundred and thirty-eight dollars, from Mr. Crawford, who bought them at the sale of the deceased’s estate. It again denies the power of this Court to compel further security for the administration of the estate; and avers that if any waste, fraud, or embezzlement has taken place, there is a clear remedy on her bond already given. It alleges that several creditors, of whom the complainant is one, have filed a libel against her in the Orphans’ Court, at Washington, on the ground of the fraud, concealment, and embezzlement, which is the subject of the present bill, and that that court has complete jurisdiction over the subject; and refers to the'proceedings in that court. It further states, that the same creditors have filed a bill on the same grounds in the Circuit Court, in Washington county, a copy of which is referred to. It alleges that although she has sold property of the deceased to a Mr. Crawford, and given him possession, yet she is enjoined from taking his notes with surety, whereby the estate is put to hazard. It avers a design to oppress her by a multiplicity of suits, and by drawing her into different tribunals for the same cause of action.</p> <p>In the answer to the libel in the Orphans’ Court, which is made part of her answer to the present bill, she admits, that in order to be near'her relations, she did intend to remove to Baltimore, but not to avoid the settlement of her husband’s estate, nor to avoid the process of this Court; but from the persecutions of her creditors she has changed her mind, and does not now intend to leave the District of Columbia, but means therein to reside, and settle the estate of the intestate.</p>

Quantum meruit for work and labor done, [and materials furnished,] as a carpenter. The defendant proved a special agreement under hand and seal. The plaintiff offered evidence that he was interrupted by the yellow fever from proceeding with the work, and that before the fever subsided, the defendant employed another person to complete the work. The agreement was as follows: “ Alexandria, July 29th, 1803.

Special action on the case — plea, not guilty. On the trial, the defendant objected to the reading of a deposition, because it did not appear that the witness might not attend personally. The residence of the witness was agreed to be at Fredericksburg, fifty miles only from Alexandria. No subpoena had been issued for him.

moved for an attachment against the defendant, for not paying the costs of the last term, (the cause having been continued at his costs,) grounded on a paper signed by the clerk, stating the costs of the continuance in general terms to be, for witnesses’ attendance, $48, and marshal’s fees, $3, without stating who were the witnesses, nor how long they attended, nor for what services the marshal’s fees arose ; nor did it contain any certificate of the order of the court, or…

<p>Qumre, whether the Court can issue an attachment for a witness residing at Winchester, in Virginia, less than one hundred miles from this place.</p>

Motion by Mr. E. J. Lee, to discharge the special bail which had been required by an indorsement of the plaintiff’s attorney.

Assumpsit on a policy on goods on board the brig Celia, from Alexandria to Bourdeaux, and at and from thence to St. Bartholo-mews, with leave to attempt to get into Guadaloupe; but if, in attempting to get in, they should be warned off, and register indorsed, they should desist from any further attempt.

<p>The Court will not sign a bill of exceptions, which states that it contains all the evidence in the cause, unless, &c.</p>

<p>In an action upon the case against the owner of a stage-eoach, for taking away the plaintiff’s slave, evidence may be given, oh the part of the defendant, that the plaintiff had given the slave a written permission to seek a new master, and if such permission be without limitation of time or place, the plaintiff cannot recover.</p> <p>The office-keeper of the defendant is a competent witness for the defendant, because he is liable to the defendant if the plaintiff recovers, and to the plaintiff if he fails to recover, in this suit.</p>

<p>An affidavit is not necessary to continue negro petitions at the first term.</p>

Special action on the case by a landlord against his tenant for removing a wooden shed during the term, which the defendant had erected during the term upon posts inserted into the ground to the depth of two feet, and leaning against the wall of a house situated on an adjoining lot not belonging to the plaintiff. contended that it was a general rule that, between landlord and tenant, things annexed by the tenant to the freehold or building, and which can be removed without…

Indictment, upon the Maryland Statute of 1793, c. 35, for stealing bank-notes, charging the prisoner with stealing the “ notes of some bank established by a charter from the government of the United States or of some individual State of the United States.” prayed the Court to instruct the jury that they must be satisfied, by the evidence, that the notes were of some bank having a charter from the United States, or from some particular State; that the act of incorporation, or…

Slander. Charles Cavender, a black man, was admitted to testify for the plaintiff, after witnesses had been examined by the Court on oath, and testified that Charles had acted publicly for eleven years as a free man, and was generally reputed as such.

Indictment for forging a check on the Office of Discount and Deposit at Washington, the said office being a bank established under a charter from the government of the United States. The indictment w'as under the Act of Maryland, November, 1797, ch. 96, 2. requested that the jurors might be asked whether they had formed and delivered any opinion upon the case.

<p>Affidavit of administratrix to hold to hail.</p>

Indictment for assault upon a constable, in the execution of his duty. The United States proved that the warrant had been given by the constable to one John Palmer, who was not summoned as a witness.

moved the Court to issue a bench-warrant upon a charge of treason against Erick Bollman and Samuel Swartwout, who had been brought, by a military force, from New Orleans, and detained here under a military guard. This motion was founded upon the affidavit of General Wilkinson, made in New Orleans, and a printed copy of the President’s message to Congress of the 22d of January, 1807. (See 4 Cranch, App.

Motion by Mr. F. S. Key, for the defendant, to dissolve an injunction which had been obtained to stay two j udgments at law, for ¿£1000 each, to be released on payment, of £500 with interest at 3 per cent, from January 1, 1792, and costs, and it was agreed that all payments made to appear to James D. Barry, within two months, should be allowed.

<p>If the owner of a slave who sues for freedom will not give the security required by law, he must pay the prison-fees for the commitment and safe custody of the slave pending the suit in the county of Alexandria.</p>

suggested that the Court could not take the bill for confessed, nor proceed to decree against Legg. The subpoena was served on Legg, and the bill, having been filed three months, was taken for confessed. The debt was due from Legg to the plaintiff on promissory notes under seal. The bill states, in the usual form, that the defendant Legg is a non-resident of the District of Columbia, and cannot be found so as to be served with process.

<p>The Orphans’ Court of Alexandria county cannot, in any ease, grant letters testamentary without security, unless the testator’s visible personal estate is sufficient to pay all the debts.</p>

<p>cited 1 Har. Ch. Pr. 33; 1 Fonb. 13, 34, 340; Silk v. Prime, 1 Bro. C. C. 138, in the note; Perkins v. Baynton, lb. 375; Virg. Law, ,p. 165, § 33, and Act of Virg. 1806, respecting mispleading by executors and administrators; also, Waring v. Danvers, 1 P. Wms. 295; Coder oft v. Blade, 2 P. Wms. 298; Croft v. Pyke, 3 P. Wms. 183; Jacomb v. Harwood, 2 Ves. 268; and Robinson v. Gumming, 2 Atk. 411.</p>

The bill states' that the defendant, Wanton, being indebted to the plaintiffs, agreed -to . assign to the plaintiff, Walker, in trust for himself and the other plaintiffs, so much of his merchandise, as the plaintiff, Walker, should judge sufficient to satisfy the several claims of the plaintiffs.'’ .That it was understood, at the time, that the goods were to be charged to the plaintiffs at the invoice price, with costs and charges thereon.

Upon an appeal from the judgment of a justice of the peace, the jury found a verdict for the appellee, for $10.69. The judgment of the justice was for $17.50. contended for costs. Appeals from justices of the peace are given by the Maryland Act of 1791, ch. 68. The condition of the appeal-bond only provides for costs in ease the judgment shall be affirmed. The appellee cannot sue upon the bond, for the condition has not been broken.

<p>Stealing wood, in collusion with, the owner’s slave, is larceny.</p>

Issue from the Orphans’ Court to ascertain the sanity of a.testator. It was made a question who was to open and close the argument. The plea is that the testator was of sound mind, and of this they put themselves ' on the country; the affirmative of the issue is with the defendants. He who has the burden of proof is to open and close. Every man is presumed to be sane, until the contrary is proved.

This was an action upon a covenant in a mortgage for pay-rnent of money ; plea, general performance, general replication and issue. contended that the original covenant ought to be produced.

<p>Qumre, whether a witness, who has declared his disbelief of a future state of rewards and punishments, is a competent witness. And whether such declarations can be given in evidence to the Court, to prevent the witness from being sworn and examined.</p>

Petition for freedom. The petitioner proved by Lund Washington that he was sold by him to James R. Dermott, in April, 1800, upon the express condition that he should be free at the expiration of the term of six years from the sale ; and the price paid (&80) was much less than if the sale had been for life. Mr. F. 8.

Petition for freedom. The cause being called for trial, and no issue made up, Mr. Jones and Mr. Morsell, for the defendant, asked for time to put in a plea denying the facts in the petition, which were stated as the ground of the right to freedom. The petition contained also a general allegation that the defendant unjustly held the petitioner in slavery. The Court said that they would receive the general issue only, unless the petitioner should agree to continue the causé.

The affidavit to continue the cause stated that the defendant had receipts for money paid to the plaintiff’, which were necessary, material, and competent evidence for his defence; that he has used his reasonable endeavors to procure the same, but finds they have become mislaid ; and though he has searched among his papers with diligence, without success, he believes by the next court he will be able to ascertain where they are and to produce them, and that they would…

The defendant was convicted of manslaughter upon an indictment for the murder of John Doyle, on the 17th of May, 1807, and a question arose whether, on a common-law indictment, the statutory punishment can be inflicted. The judgment of the Court was that he pay a fine of twenty dollars, and be imprisoned for twelve calendar months, including this day, (June 26, 1807,) and stand further committed until his fine and costs should be paid.

Indictment at common law for burglary, in the house of John Curran. The jury having retired, sent to the Court to know whether they could, upon that indictment, find the prisoner guilty of stealing only, and acquit him of the burglary.

Indictment for passing counterfeited coin, contrary to the Act of Virginia, December 19th, 1792, p. 249, whereby the passing of such coin, “in payment,” is punishable with death.

<p>After oyer, and issue on the plea of payment, the plaintiff is not bound to produce the bond again.</p>

<p>Parol evidence cannot be given of the contents of a letter mitten by the defendant to a stranger to the suit.</p> <p>A bill of parcels, receipted by the defendant, is not, per se, evidence of an unexecuted contract to deliver the goods, but is prima facie evidence of a contract executed.</p> <p>An action for money had and received, will lie for money paid by the plaintiff to the defendant, upon a contract which the defendant has failed to execute on his part.</p>

<p>If, after a plea of nil debet, by the appearance-hail, the principal comes in and gives special bail, and pleads the same plea, the plaintiff is entitled to a continuance of course.</p>

<p>Original entries in the handwriting of a deceased clerk, must be produced. It is not sufficient to give a copy in evidence.</p>

Assumpsit by the assignee of Thomas Moore, a bankrupt. The defendants offered to set off a debt due to them by Henry and’ Thomas Moore. cited the 42d section of the Bankrupt law, [2 Stat. at Large, 19,] 1 Esp. 117 ; 1 Aik. 133. Partners are jointly and severally bound. A separate commission may issue against one partner, upon a partnership debt; consequently a joint debt may be proved under a separate commission.

<p>Issue directed by chancery to try the question whether Harts-horne, as receiver, &c., be a creditor of the estate of Gillis, and to what amount. Moorehouse & Company were indebted to Mandeville, and gave him William Armstead & Company’s notes as collateral security. James Gillis, the bankrupt, was one of the house of Armstead & Company. Moorehouse was taken in Philadelphia, and gave Charles Young as special bail. There was judgment against Moorehouse & Company, and a capias ad satisfa-ciendum returned non est; sci. fa. and ca. sa. against the bail, upon which the bail was taken and discharged out of custody by order of Mandeville.</p> <p>contended that the arrest and discharge of Charles Young, discharged the debt of Moorehouse & Company, for which he was liable as bail; and that therefore the notes of Armstead & Company ought to be returned to Moorehouse & Company; and cited the Act of Virginia, p. 160 ; 1 Cro. 851; Williams v. Cutting, 2 Cro. 186, 143; 10 Vin. 579; Esp. N. P. 196; Vigers v. Aldrich, 4 Burr. 2482; Jacques v. Willy, 1 T. R. 557; 1 Call, 18, 21; Higgins’s case, 2 Cro. 320 ; Higgin v. Summerland, 2 Bulst. 68.</p> <p>cited Heylin v. Ulmhall, 2 W. Bl. 1235; Freeman v. Freeman, 2 Cro. 548; 1 Com. Dig. 502; 1 Sid. 107; 2 Bulst. 68; 3 Com. Dig. 311; 1 Vent. 315; 10 Vin. 578, tit. Execution; T. Raym. 73 ; 1 Lev. 95.</p>

Trespass, for assault and battery and false imprisonment, to try the right of freedom. offered a deed of gift of the plaintiff by Colonel William Lyles to Miss Ann Lowery, whom W. H. Lyles afterwards married, acknowledged before Mr. Bowie, a justice of the peace of Prince George’s county, Maryland, and a certificate of the clerk of Prince George’s county, that Mr. Bowie was on that day a qualified justice of the peace, and a certificate of J. M. Gantt, chief judge of the…

<p>If a witness appear in court at the term mentioned in his recognizance, and no default he entered against him at that term, and the recognizance he not respited, he is not bound by the recognizance to attend at the following term, although the cause should be continued.</p>

Habeas Corpus. It appeared by the return that they were committed by virtue of the following warrant. “ Alexandria County ss. You are required to receive into your jail and custody, Robert Sprout and Thomas Bailey, two sailors belonging to the ship Alexandria, Captain William Weston, they being charged for neglect of duty on board, rioting and threatening to take the life of their captain áhd mate contrary to law. Given under my hand this 14th day of July, 1807. A. Faw.

<p>Assumpsit upon W. Wilson’s note, indorsed by the defendant to the plaintiff, as assignee of Melver’s estate. 1st Count on the assignment of the note, setting forth that the maker, W. Wilson, was insolvent at the time of the suit' brought. 2d Count for money had and received.</p>

Motion to discharge a ne exeat issued against Bowie, as garnishee of Ball. Bowie, contended that the Act of Virginia, of 26th of December, 1792, p. 115, provides for the case of restraining the garnishee from paying away the money, &c., by authorizing the Court to require security, or by ordering the property to be given up to the plaintiff. A ne exeat does not lie against any but the principal debtor himself. 2 Har. Ch. Pr. 202-210.

This was an action for money had and received, for the price of a negro sold by the defendant to the plaintiff, without title*. The plaintiff, on the evening before the trial, gave notice to the defendant to produce a deed of trust including the negro in question. The affidavit of service stated the service on the defendant and his promise to produce the deed.

<p>In an action in Virginia, by the indorsee against the indorser of a promissory note, if the maker is insolvent, it is not necessary that the plaintiff should have first sued the maker, although at the time of bringing the suit, the maker had in his hands, goods . and chattels more than enough to pay the debt.</p> <p>If the defendant indorsed the note to give it credit, no other consideration is necessary to support the action.</p> <p>A special demurrer brings into question the substantial validity of the pleading of the demurring party.</p> <p>A blank indorsement may be filled up at the bar, after the jury is sworn; and the in-dorsement so filled up is primó, facie evidence of a good consideration.</p>

Notice of taking a deposition under the Virginia laws, was given to E. J. Lee, attorney at law for the defendant. became nonsuit; and the Court reinstated the cause on payment of the costs of the term. The deposition having been taken under the former decisions of this Court that such notice was good. (Duckett, J., contra.) \post.]

<p>The record of a cause, is the history of the proceedings in an action made out at full length, and in techineal language; and when once made out and mitten in the record book the power of the clerk over it has ceased. It has become a public document and cannot he altered, unless by order of the Court under certain circumstances.</p> <p>The plea of mil tiel record refers to the time of the plea pleaded, and a subsequent amendment of the record does not affect the issue.</p> <p>A material variance between the record of the recognizance and the recital of it in the scire facias, is fatal.</p>

<p>Assumpsit for disobedience of orders. The first count of the declaration stated a cargo shipped jointly by plaintiffs and one Lawrason, and joint orders from all three, and an express promise in writing by the defendant to obey those orders; and a breach of the orders; and averred that if the defendant had obeyed the orders and brought in a cargo of salt, the profit of the plaintiffs on the sale of that salt would have been fourteen hundred and thirty-five dollars; by reason whereof the defendant became liable to pay that sum to the plaintiffs, and being so liable, the defendant, in consideration thereof, promised the plaintiffs to pay that sum to them on demand. The second count was like the first, but upon another breach of the orders. The third, was indebitatus assumpsit for goods sold and delivered. The fourth, money had and received. The fifth, insimul computasset.</p>

<p>The Statute of Limitations, does not apply to accounts between merchants.</p>

Detinue for negro Frederick. W. Wilson made a deed of trust of this negro to Mr. E. J. Lee, to secure Mr. Kennedy.

The defendant was indebted to H. & T. Moore in a balance of seventy-six dollars. When the partnership of H. & T. Moore was dissolved, T. Moore continued to carry on the business, and was authorized by his partner to collect and pay the partnership debts, as far as the joint effects should come into his hands.

Trover. offered a paper signed by J. Withers, not under seal, witnessed by one subscribing witness, purporting to be a mortgage of goods, and acknowledged in open court to be his act and deed. A mortgage of chattels must be under seal, and executed before three witnesses, and recorded according to the Act of Assembly of Virginia of 13th December, 1792, § 4, p. 157.

Debt oh a promissory note for 214 dollars. Payments indorsed on the note, before the suit was brought, reduced the sum due on the note to eight dollars and ninety-four cents. The verdict was for the debt in the declaration, to be discharged on the payment pf eight dollars and ninety-four cents. contended that a nonsuit ought' to be entered, under the Act of Virginia, 3d December, 1792, § 38, p. 90. contended that this cause could not have been heard on a petition in Virginia.

<p>Parol evidence may be given to explain the expression “ certain controversies and accounts ” in a written submission.</p> <p>An award made upon part only of the subjects submitted, will be set aside.</p>

Indictment for highway robbery of John Graham, and taking from him his watch. Upon the trial, Mr. Simms, and Mr. Swann, for the prisoner, called for evidence of the place being a highway. offered to prove by parol evidence, that it has been long used as such, and to-prove by the records of this Court, that this Court has appointed an overseer of the road. If there is a record of the opening of the road, it must be in Fairfax county, in Virginia, out of our jurisdiction.

<p>Indictment against the defendant at common law for manslaughter, in killing her daughter.</p>

<p>If several persons, jointly concerned in an assault and battery, be separately indicted, each as for his own offence, and all tried at the same time by the same jury, one of the defendants may be examined as a witness for the others.</p> <p>In order to make those liable who were only present aiding and abetting, it is not necessary that they should be indicted jointly, nor with a simul cum.</p>

Assumpsit against a negro for the money lent and advanced by the. plaintiff to the defendant to enable him to purchase his freedom, the defendant having thereby obtained a deed of emancipation. prayed the Court to instruct the jury, in effect, that the defendant, being a slave when the money was advanced, is not answerable in this action unless the defendant has since promised upon that consideration, and that those facts may be given in evidence and avail the defendant upon…

<p>Assumpsit. Non assumpsit and issue.</p> <p>gave in evidence an agreement of the plaintiff and other of his creditors, to release him on .executing a deed of his property to such trustees as the subscribe ers should appoint, and that he executed such a deed.</p> <p>contended. 1. That the plaintiff never approved the trustees, or the deed. 2. That no release was ever executed by the plaintiff. 3. That the defendant promised to secure the plaintiff in another debt due from the defendant and another.</p> <p>cited Cockshot v. Bennett, 2 T. R. 763, and Butler v. Rhodes, Peak’s N. P. 238.</p>

The Court refused to put off the trial of this cause on account of the non-payment of the former costs; the cause having been reinstated on payment of costs, [ante, 429.] objected to the deposition of J. MeCanahan, taken under the Act of Congress. 1. The certificate does not state it to be a civil cause, but only in a suit. 2.

Assumpsit. The declaration consisted of three counts. 3. In-debitatus assumpsit for goods sold and delivered. 2. Quantum valebant. 2.

The indictment charged, that the defendant, being coroner of the county of Alexandria, and having, upon view of the dead body of one Curran, taken an inquest, stating that, while opposing the lawful orders of a justice of the peace, the said Curran was killed by a brickbat thrown by some unknown person, but not finding the killing to be murder nor manslaughter, he, the defendant, “wilfully, injuriously, and unlawfully made a false statement of the evidence in writing, and…

<p>Habeas corpus ad subjiciendum. The marshal returned that he held him under an attachment of contempt from the Orphans’ Court, dated January 9, 1797, returnable on the 13th of the same month, for not appearing on the 8th, to show cause why he should not give counter security to his sureties in the administration of Dyson’s estate. Upon which attachment the marshal had returned “ executed and in custody,” but no order of the Orphans’ Court Avas made for the commitment, nor did it appear that the Orphans’ Court had made any further order respecting the business. The return further stated that he had been delivered up by his bail in a suit at law, and prayed in custody; but the twenty days having expired and the defendant not charged in execution, ■—</p>

<p>This Court has jurisdiction to discharge an apprentice upon petition, on account of cruelty of the master, and to bind out the petitioner to another master.</p>

<p>The Court will not order a number of actions of debt upon several promissory notes due at several times, to be consolidated, although the parties are the same in all, and each note was payable before any one of the suits was brought.</p> <p>In an action by the Bank of Alexandria, upon a note made negotiable in that bank, the Court will rule the defendant to trial at the first term, if the writ be served ton days before the return day.</p> <p>Virginia had a right to legislate over this part of the district, until the 27th of February, 1801.</p> <p>The charter of the Bank of Alexandria is a public act.</p>

This was an action of covenant on the same policy as that in Simas’s case, [ante, 343.] The 1st count avers the interest to be in Straas & Leeds. The 2d avers it to be in Leeds alone. The loss is stated to be bv capture. Issue was joined upon the three first pleas.

<p>In Virginia the insolvency of the maker of a promissory note excuses the holder for not suing him and obtaining judgment, &c., before suing the indorser.</p> <p>An indorsement of a blank paper, with intent to give credit to the maker of a promissory note which should afterwards be written thereon, is obligatory, although no other consideration passed from the indorsee to the indorser; and authorizes the maker to make the note in the manner intended at the time of the indorsement.</p> <p>It is no bar to the plaintiff’s recovery in this action that the maker had, at the time the note became payable, property enough to pay this debt, and that he and the plaintiff both resided in the same town, and that the plaintiff brought no suit against ■ the maker.</p> <p>The insolvency which will excuse the plaintiff for not bringing suit against the maker, must be such as, in the opinion of the jury, would render a suit fruitless.</p> <p>If the maker was solvent at the time the note became payable, and during such solvency the defendant requested the plaintiff (but not in writing) to sue the maker, and he did not, the defendant is discharged from liability, under the equity of the Statute of Virginia 23d December, 1794, concerning debtors and their securities.”</p>

The question submitted to the Court, in this case was, “ Whether valuable and permanently useful improvements made upon the land, may be given in evidence in mitigation of damages by the defendant in an action of trespass for mesne profits, brought after a recovery in ejectment.” submitted the following written argument.

<p>A prison-bounds bond may be assigned by a deputy-marshal.</p>

<p>The Court will send attachments into Maryland for witnesses who reside within one hundred miles of Washington, if they fail to attend according to summons.</p>

Indictment for stealing fence-logs, the property of John Orr, from a worm fence. The fence consisted of ten logs, two, supporting a rider. contended that it was not larceny, but trespass. The fence is part of the freehold, and would have gone to the heir, and not to the executor. It could not be taken in execution. Orr was the tenant of W. Brent. Mr. Caldwell contended, the fence was the property of W. Brent, (which Orr admitted in his testimony,) and not of Orr.

<p>The 1st count of the declaration stated that the defendant was indebted to the plaintiff “ for sundry matters properly chargeable in account, as by an account thereunto annexed.” The 2d count was for board and lodging, and other necessaries for twelve months.</p> <p>The plaintiff produced an account for a tavern-bill, and proved that he presented the account to the defendant, who said there were other credits on a former account, and he would produce them and settle the account.</p> <p>contended that the evidence did not support the first co.unt, and that no evidence could be given uporr that count, but an account -which would in itself have .been evidence under the act of 1729, c. 20, under which act alone they contended the count was good. The issues were non assumpsit and limitations. There was no demurrer.</p>

Petition for freedom. The defendant having challenged twelve of the jurors peremptorily, challenged Mr. Smith, one of the tales, for favor. Eight jurors having been sworn, were sworn as triors.

This was an action of debt on a bond in the penalty of six thousand dollars. There was an indorsement, the precise meaning of which could not well be understood. objected, that there ought to have been an affidavit to show the precise amount claimed by the plaintiff, and moved for leave to appear for the defendant without special bail.

<p>Ejectment for a tract of land called “ Argyle, Cowell, and Lawn.”</p> <p>The plaintiff, to support his title, produced a patent from Lord Baltimore, dated December 8,1722, to Randal Black, and a deed from John Bradford to Richard Lee, for the same land, dated August 3, 1737, but did not produce any deed from Black to Bradford. As evidence from which the jury might presume such a deed, he offered to read the entries in the Lord Proprietors’ books, charging Richard Lee with the quitrents of a tract called Angle, and offered parol evidence to prove that Angle meant Argyle, Cowell, and Lawn.</p> <p>objected that parol evidence could not be admitted to explain the record.</p> <p>Evidence was also given of the possession of Richard Lee and his heirs down to Russell Lee, who was a citizen of the United States, and died intestate in 1793, leaving four sisters his heirs at law, one of whom (Mrs. Dawson) was a British subject at the time of his death. See Dawson v. Godfrey, in Sup. Ct. U. S. 4 Cranch, 321. The other three were citizens of the United States, and are the lessors of the plaintiff in this action.</p> <p>contended that the plaintiff could not recover the share which would have descended to Mrs. Dawson if she had not been an alien; and that the four sisters constituted but one heir. 2 Bl. Com. 187; Bac. Ab. tit. Parcener; Co. Lit. 163 (b); Co. Lit. 8 (a).</p> <p>relied upon the opinion of the Supreme Court of the United States in the case of Dawson v. Godfrey, 4 Cranch, 321.</p>

<p>The list of slaves required by the law of Maryland, 1796, c. 67, must be delivered to the clerk of the county into which they shall be first brought, and within three months thereafter.</p>

Debt, on a note under seal. There were payments proved which reduced the amount due to seventeen dollars and thirty cents. The verdict is, “we find for the plaintiff and find the sum due on the note to be seventeen dollars and thirty cents.” moved for judgment of non pros., under the Act of Maryland, 1796, c. 68, § 9. Mr. Caldwell. The courts in Maryland are expressly limited. The jurisdiction of this Court is general.

Indictment for assault and battery. The defendant pleaded the Act of Congress of April, 1790, [1 Stat. at Large, 112,] by which prosecutions are limited to two years, after the offence committed. Replication that a presentment was found for the offence within the two years. General demurrer.

Upon affidavit that witnesses resided in Fredericksburg, (less than one hundred miles from Alexandria) — moved for a commission to Virginia, to take the depositions of those witnesses to be used as well in a suit in chancery, as at common law depending in this Court. The chancery suit was at issue and a general dedimus had been awarded.

Indictment for misdemeanor in office of justice of the peace in taking the personal recognizance of Harry Allen, in the sum of one hundred dollars, charged with theft of goods to the amount of sixty dollars, and receiving one hundred dollars in cash in lieu of bail or security. for the defendant, contended that the justice acted judicially, and that it was an error in judgment for which he is not liable to answer criminally, and that he has a right to take the money ; arid…

Assumpsit to recover the expenses and disbursements of the schooner Mississippi, which the plaintiff (who was the owner, by virtue of an absolute bill of sale made by R. & J. Hamilton to him, after the end of the voyage,) had paid on the orders of the defendant, who had been master of the schooner during the voyage, and who had received the freight, and applied it according to the directions of the former owners, R. & J. Hamilton. prayed the Court to instruct the jury, in…

Assumpsit upon the defendant’s letter of guaranty for ¡£10,000 sterling for Sanderson & Rumney. offered to read a copy of a letter, dated 11th August, 1799, from Sanderson & Rumney, to the plaintiffs, acknowledging a balance of £10,000 sterling to be due from them to the plaintiff. The defendant proved that Rumney, the writer of the letter, resided with his family in the Genesee country, in the State of New York.

This cause having been referred, but no issue made up, and the award having beén set aside at the last term, and the cause standing on an office judgment and writ of inquiry,— moved to plead the statute of limitations, which opposed, and produced the will of Turberville, by which he orders all his just debts to be paid, and contended that that would be a good bar to the plea of the statute, and that the court would not suffer a nugatory plea to be pleaded.

<p>Trover for certain goods. John Withers being indebted to the plaintiffs, Leonard & Thomas Cooke, and also intending to indemnify them against their suretyship, in a replevin bond given to release the same property from distress for rent due to L. Summers, it having been seized by Neale as bailiff of Summers, by a writing not under seal, mortgaged to them the property in the hands of Neale. The possession of the property remained with Neale after the release of it by execution of the replevy bond. A few minutes after the release of the property from the distress, a creditor took his fieri facias against the goods of Withers, and put it into the hands of the said Neale, who was a constable, and he levied it upon the goods in his hands.</p> <p>On the day after the fieri facias was laid, the plaintiffs demanded of Neale the possession of the goods, which he refused to give ; whereupon the plaintiffs brought their action of trover. On the trial, the plaintiffs proved that it was not in their power to obtain the testimony of the subscribing witness, John Pierson, and offered to prove his handwriting, and that of Withers, the maker of the instrument.</p> <p>The Court suffered them to give such evidence.</p> <p>then prayed the Court to instruct the jury that if they should not, by the evidence, be satisfied of the handwriting of Pierson, they ought to disregard the evidence of the handwriting of Withers.</p> <p>Which instruction the Court refused to give. It not being a sealed instrument, the Court thought that the strongest evidence of the signature of Withers, was, not proof of the handwriting of the witness, but of the handwriting of Withers himself, notwithstanding the case of Barnes v. Trompowsky, 7 T. B.. 265, and Adam v. Kers, 1 Bos. & Pul. 360.</p> <p>The defendant’s counsel, Mr. Taylor, then prayed the Court to instruct, &e., that the plaintiffs, not having had the possession of the goods, cannot recover in this suit, against the claim of the creditor in whose name the fieri facias was issued. Upon this question,</p>

<p>The principal obligor in a bond is a competent witness for the surety.</p> <p>The Court will not give an instruction upon a point not material to the issue.</p> <p>An averment that the usurious contract was made in November, is supported by evidence that it was made in September. The variance is not material.</p>

Assumpsit against the defendant as indorser of a promissory note made by Kerchival to Lindo, who assigned it to Welsh, “without recourse,” who assigned it to Hodgsett. offered no evidence but a transcript of a record of a suit between Hodgsett and Kerchival, upon the note described in the declaration, in which suit the defendant pleaded payment to Lindo, and obtained a verdict on that issue.

This was an action for a British debt contracted before 1775, for goods sold to the defendant’s intestate by a British factor; the balance was agreed in 1784, and acknowledged often afterwards as a just debt. The counsel agreed that the statute of limitations might be given in evidence on non assumpsit, if it could avail if pleaded specially.

<p>Notice to produce a book of accounts given on the preceding evening, is sufficient when the counting-house of the party is very near the court-house.</p> <p>The defendant is not liable for goods delivered to his wife upon her credit after a separate maintenance allowed by him; hut from the defendant’s express promise to pay, the jury may infer that the goods were delivered to his wife by his order, unless such inference is rebutted by proof that the original credit was given to her.</p>

This was a certiorari to bring up the proceedings had before a justice of the peace in a case of forcible entry and detainer, upon a warrant issued under the Act of Virginia of the 3d of December, 1792, p. 151, which reduces into one the several acts concerning forcible entries and detainers. The certiorari was granted by the chief judge of this court, upon the petition and affidavit of the defendant, in vacation.

<p>An account in bar or set-off, must be filed one term before trial.</p>

Assumpsit on a note for $625.95, drawn by Henderson & Company, payable to the plaintiff or order, and the name of the defendant written on the back of it. , The plaintiff’s attorney had filled up the blank indorsement, in this manner, viz.: “ In ease the within Alexander Henderson & Company, should fail to pay the within-mentioned sum when it becomes due, and should then be insolvent, I then promise to pay the same to the within-mentioned Rezin Offutt.

Debt for the penalty of a by-law of the corporation of Alexandria, against burning oyster-shells on a brickkiln, without a license. objected to the jurors, because they were citizens of Alexandria, and the penalty enured to the benefit of the corporation; and cited Hanson v. Peircy, 1 Morgan’s Essays, 280; Rex v. Carpenter, 2 Shower, 47; City of London v. TJnfree Merchants, 2 Shower, 146 ; 3 Bac. Ab. 252, tit.

This cause was tried at November term, 1807, [ante, 448,] when a special verdict was found. It was an action brought against a free negro for money lent to him while a slave, to enable him to purchase his freedom.

Debt by the plaintiff as assignee of a promissory note made by the defendant. offered to read a deposition which had been taken under the Act of Congress, without notice, before Judge Parker, in Virginia, who certified that it was written by himself, and subscribed and sworn to by the deponent, and that the deponent resided more than one hundred miles from the county of Alexandria, and District of Columbia.

<p>Debt on a promissory note for $382.47. The defendant pleaded nil debet.</p> <p>offered in evidence under the plea of nil debet, a record of Frederick county, Virginia, of a judgment upon a declaration for $10,000 for goods, wares, and merchandises sold and delivered, upon which judgment was confessed for £739 13s. and offered parol evidence to prove that the judgment was upon and for this note and another.</p> <p>objected that it ought to have been pleaded; that it cannot be for the same cause of action. Goods sold and delivered, and a promissory note are different causes of action, and cannot be averred to be the same. Rook v. Sheriff of Salisbury, 12 Mod. 412 Bredon, qui tarn, v. Harman, 1 Str. 701; 4 Bac. Ab. 114, Pleas and Pleading, I. 113.</p>

This was a petition to deprive the defendant of the benefit of the insolvent law, filed under the seventh section, upon an allegation that the defendant had given a preference to one of his creditors in a deed to La Mar, in trust to pay a debt due Margaret Jamesson in Ireland. Upon the insolvency of the defendant, this property was all given up to his trustee. If the deed be void, there was no preference given.

On motion of Mr. Jones, the Attorney for the District, to send up an indictment to the grand jury upon a presentment made by them, no person being indorsed as prosecutor, — ■

Special assumpsit by defendant’s testator to sell all his crops for several years at a certain price; breach, that he did not sell and deliver, &c. Pleas, non assumpsit and limitations.

<p>Debt on a bond, with proferí of the original bond. The defendant demanded oyer, and the plaintiff produced a supposed copy only, it being said that the original was in the possession of the defendant; whereupon the defendant demurred because the profert was of the original, and the oyer was of a supposed copy.</p> <p>cited Thoresby v. Sparrow, 1 Wils. 16 ; Smith v. Woodioard, 4 East, 587.</p> <p>The plaintiff could not have declared upon it as a bond lost or mislaid, and when he drew the declaration he supposed that the defendant would be compelled to produce it, so as to enable him to give oyer. Read v. Brookman, 3 T. R. 151. In Darlington v. Groverman, this Court compelled the defendant to receive a copy as oyer.</p>

This was an action upon a judgment of J. Franklin, a justice of the peace of Charles county, in Maryland. offered in evidence a paper purporting to be an execution issued by J. Franklin, against the defendant, and in favor of the plaintiff, upon which there was a certificate of the clerk of Charles county, that J. Franklin was a justice of the peace. objected that the commission of the justice should be produced.

<p>Pree-born negroes, not subject to any term of servitude by law, are competent witnesses in all cases. Color alone is no objection to a witness.</p>

<p>Peremptory challenge not allowed in cases of larceny.</p>

Indictment for stealing a gold watch. The defendant was a fr.ee-born mulatto, not subject to any term of servitude by law. offered Charity, a slave, as a •witness against the prisoner. See United Slates v. Mullany, [ante, 529.] In the case of United States v. Negress Terry, at June term, 1806, [ante, 318,] at Washington, and in the ease of United States v. Shorter, at December term, 1806, [ante, 371,] a slave was admitted as a witness for free negroes.

Assumpsit on a promissory note for 1500 dollars made by the defendant to Eber Piale, dated March 19th, 1805, payable to Eber Hale on the 7th of September, 1805, who indorsed the note in this form, viz.: — “Baltimore, September 7, 1805. The within note I assign to Jones & Passmore for such part of it as will be security for them for five hundred and fifty-six dollars and eighty-six cents, which Mr. Henry Knowles will pay if not paid by me in sixty days. Eb.

Debt on the Marshal’s official bond. The facts agreed were that the marshal arrested Jane Burch on a capias ad satisfaciendum at the plaintiff’s suit, and voluntarily suffered her to go out of prison for three days, after which she returned and was discharged under the insolvent act before the return day of the writ.

Attachment under the Act of 1795, c. 56. The justice certified that William Davis jnade oath that the defendant is bona fide indebted to him in the sum of $92.50, &c., according to the act, and that William Davis at the same time produced before him a memorandum of a settlement betwixt the said Uriah Wyer and Jacob Todhunter, which memorandum was assigned to the aforementioned William Davis, by which it appeared that the said Uriah Wyer is indebted as aforesaid, and upon…

Habeas corpus ad subjiciendum. The mittimus returned, was in the following form, viz. “ District of Columbia. County of Washington, ss.

Assumpsit, upon an indorsement of a promissory note drawn by U. Forrest, for $16,407, due 4-7th of February, 1801, dated 6th of August, 1800. The writ issued 23d of April, 1803. offered Mr. Thomas Munroe, as a witness. Mr. Morsell and Mr. G. Lee, objected : That all the rights of Thornton, and the other commissioners of the city of Washington, vested in Mr. Munroe, by the Act of Congress of May 1st, 1802, [2 Stat. at Large, 181,] under which he was appointed superintendent.

This was an action on the case to recover from the postmaster at Washington, the value of bank-notes lost in the course of the mail. The cause first came before the Court at December, 1807. The declaration then contained only two counts: 1st, for fraud. 2d, for negligence of the defendant himself in not sending on the letter, with its contents, to Petersburg, as it was directed, “ and as it was his duty-to do,” whereby the plaintiffs lost the money.

<p>It is a sufficient averment of the residence of the adverse party, by the magistrate who takes a deposition under the Act of Congress, if he certifies that it appears to him that the party resides more than one hundred miles from the place of caption.</p> <p>If hooks and papers are in court they may he called for after the jury is sworn.</p>

In an action upon the acceptance of a bill of exchange drawn by W. Hartshorne upon the defendants in favor of Ashley, and by him indorsed to Henry; the defence was that the ship Rose was transferred to Hartshorne in payment of the bill, under a contract signed by Ashley.

<p>Assumpsit for money paid, and money had and received. Plea, discharge under the bankrupt law. Replication, that the money paid for the defendant by the plaintiff, was paid by him to the United States in discharge of the defendant’s bond given for duties in which the plaintiff was his surety.</p>

Assumpsit. The declaration had three counts. 1. The first count stated a promissory note made by G. N. Lyles, to Amos Allison and Jacob Geiger, for four hundred and seventy-nine dollars and eighty-nine cents, at ninety days, dated 17th July, 1804, for value received, “ negotiable at the Bank of Alexandria,” but not payable to order, and avers that it was assigned by indorsement by Allison and Geiger, to the plaintiffs, whereby the plaintiffs were entitled to demand the money…

Indictment for manslaughter. The right of peremptory challenge was allowed. The mortal blow was given in Alexandria, the death happened in St. Mary’s county, in Maryland. contended that the crime was not punishable here, and cited 1 East, C. L. 361; 1 Hawk. c. 31, § 12,13 ; Virginia Law of 29th November, 1792, e. 73, § 16, p. 104. There is no evidence of the defect of the common law, but the recital of the Statute of 2 and 3 Edw. 6, c. 24.

<p>Slander. The declaration was “ he stole.” The evidence was “ you stole.”</p>

<p>The statute of usury applies to contracts of corporations, as well as to those of natural persons.</p> <p>The Bank of Alexandria may, upon discounting notes, deduct the whole interest for the whole time they have to run.</p>

<p>If a juror in. a civil cause be taken suddenly ill, the jury may be discharged, and the cause may he continued to the next term.</p>

<p>Notice to the indorser, of non-payment of a promissory note, not payable to order, is not necessary in Virginia.</p> <p>Due diligence is a question for the jury.</p>

offered, at the hearing, to prove certain papers not made exhibits; and cited the 30th section of the Judiciary Act of 1789. [1 Stat. at Large, 88.] The cause was set for hearing upon the bill, answer, replication, exhibits, and depositions. Mr. C. Lee stated it to be the practice in the federal courts to examine witnesses at the hearing, and to have the evidence taken down in writing by the clerk.

<p>The Court will not permit a defendant to tender an issue which he had refused to join, and to which he had demurred when tendered by the plaintiff; there having been . judgment rendered against him by the Supreme Court on the demurrer.</p>

<p>When costs are given, on leave to amend, the payment of the costs is not a condition precedent.</p>

Indictment for selling spirituous liquors without license. Alexander Simms, the prosecutor, whose name was indorsed on the indictment, was offered, by the United States, as a witness. objected that he was interested ; being liable to pay the costs, according to the Act of Virginia, of 13th November, 1792, § 25, p. 105. Mr. Jones. It is every-day’s practice in England to examine prosecutors.

Attachment in chancery. The defendants had by answer denied that the plaintiffs were executors in the District of Columbia. The plaintiffs thereupon dismissed their bill.

<p>A count upon a promise to pay the debt of another in a certain event, must aver a consideration.</p> <p>An averment that the defendant put his name on the back of a note with intent to give it credit, and to induce the plaintiif to accept the same, and that the note so indorsed was delivered to the plaintiif for a full and valuable consideration, is a sufficient averment of a consideration for the promise.</p> <p>Insolvency of the maker', in Virginia, dispenses with suit and demand and notice.</p>

moved for a commission to take depositions of witnesses residing in England. Notice of the motion had been served on Mr. E. J. Lee, the attorney at law of the plaintiff, who resided in England. Mr. E. J. Lee objected, that the notice under the Act of Virginia, 29th of November, 1792, § 13, p. 279, ought to be given to the party himself or his attorney in fact, or agent, Buddicum v. Kirk, 3 Craneh, 297.

Debt on a note signed by R. B. Jamesson, charging Mande-ville as a secret partner. 1st plea, nil debet. 2d plea, usury, upon which there was a demurrer and judgment at the last term. 3d plea, usury.

Debt against the indorser of a bill of exchange drawnby Cado-gan, at Barbadoes, in favor of the defendant, on merchants in England, indorsed by the defendant to the plaintiff in Alexandria, but not accepted nor paid. contended that the defendant is not liable to the fifteen per cent, damages under the Act of Assembly of the 12th November, 1792, p. 113. The act means bills drawn in Virginia. The defendant is not liable for more than he can recover from Cadogan.

<p>The disability of one joint plaintiff dbes not take the ease out of the statute of limitations.</p>

moved for a rule on James Taylor to show cause why an attachment should not issue against him for a contempt in not obeying a summons to appear and testify as a witness, and to bring with him certain papers. The witness resided in Norfolk, Virginia, more than one hundred miles from the place of trial.

Debt on a bond conditioned to perform covenants respecting the building of a bridge at the county charge, in the county of Lou-don, in Virginia. objected to an inhabitant of Loudon county as a witness, on account of his interest. The witness is not directly interested, or if he has any interest it is too small, and remote.

This was an action for money paid, laid out, and expended, in the purchase of plank in Boston to be shipped here for the defendant.

This was a rule upon Mr. Custis to show cause why an inquisition which had awarded him three thousand dollars on condemnation of a part of his land for the road, should not be quashed and a new warrant issued. contended that this Court had no jurisdiction in this case.

Debt for $330.56, on the defendant’s note dated 23d of April, 1807, payable 180 days after date, to W. Hodgson, and by him assigned to the plaintiff. The defendant pleaded, 1. Nil debet. 2. A set-off of a note due to him from Hodgson before notice of the assignment of defendant’s note to the plaintiff. 3. A set-off for goods sold and delivered to Hodgson before notice of the assignment. To these pleas there were general replications and issues.

<p>A resident of Alexandria may be held to special bail in Washington in an action of debt founded upon a judgment in an action of debt in Virginia, in which bail was given; although no previous writ had been issued against the defendant in Alexandria county.</p>

<p>Unliquidated damages arising from the non-performance of a verbal promise to con- ' vey real estate made without consideration and under a mistake of fact, cannot, in equity, be set off against a judgment at law.</p>

Indictment for not supporting a bastard child, under the Act of Maryland of 1781, c. 13. The mother was received as a competent witness, although she was to be relieved from the charge of maintaining the child, by convicting the defendant. objected to the cross-examination as to her connection with others. The Court limited the inquiry to a period not more than twelve months nor less than six before the birth of the child. But permitted the examination within that period.

This cause was tried at December term, 1802, [ante, 106,] when a verdict was found for the United States.

Indictment for bigamy. The right of peremptory challenge was allowed to the defendant without being questioned by the Attorney for the United States. objected to a witness because interested; the witness having a suit against the defendant for necessaries furnished to the first wife. The verdict in this cause is prima facie evidence of the marriage in that suit. So in an indictment for forgery, the party whose name is forged is not a competent witness.

Assumpsit upon F. L. Hamilton’s note indorsed by the defendant, 28th of May, 1808, at sixty days; protested 2d of August. The demand ought to have been on the 30th or 31st of July. contended that the subsequent conversation, in which the defendant requested the plaintiff to pursue Hamilton and expressed uneasiness, is evidence of a due demand and notice, or of waiver of notice. Mr. Caldwell.

The streets of Georgetown are common highways. If the hack-owner be not a resident of Georgetown, and if he charges nothing for carrying the passenger into Georgetown ; if he only charges for carrying him to the western limits of the city ; he does not violate the by-law. The contract was to take the passenger from the Capitol to the Union Tavern, in Georgetown.

Wilson, a debtor confined in the prison bounds of Alexandria, upon a capias satis-faciendum in a civil cause, to be discharged. The marshal having demanded of the creditor the daily allowance according to the Act of Congress 3d of March, 1803, [2 Stat. at Large, 237,] which the creditor refused to pay. Notice of this motion had been served on Colonel Simms, the agent of the creditor.

Habeas corpus and petition to discharge an apprentice. Brown, the master, being about to leave Georgetown, assigned the apprentice, with his shop, to another person. The articles of apprenticeship were merely a contract between the boy (who was sixteen years old) and the master. There are only three modes of binding under the Act of Maryland, namely, by the Orphans’ Court, by two justices of the peace, or by the father.