Volume 26 — United States Reports

. THE appellant filed a bill-oil the .Chancery side of the Circuit-Court-of the.

IN the Circuit Coúrt-of the United-States-, for the district of Columbia, the defendant in error,-instituted a suit against the plaintiff in error, to recover damages-arising, out of-alleged breaches of- an agreement, in the-nature of a lease, dated 18th of December 1,819.

TRIPLETT & NEALE, the appellees, instituted a suit in the Circuit Court for the District of Columbia, against the President and Directors,of the Bank of Washington, the appei Jants for mal-agency in relation to an inland bill- of exchange, dated Alexandria, 19th June, 1817, drawn by W. H. Briscoe, for 625 dollars 34 cents, at four months after date, in favoui . of Triplett & Neale, upon Peter A. Carnes, Esqr. “ Wash ington City.” .

•THIS suit was instituted by the defendants in error, against George R. Gaither, as-the drawer'of a promissory note, dated Georgetown, 24th July 1823,- for 1513 dollars 96 cents; payable - six months after date,- to the order of W. W. Cor-corran & Co. Endorsers, W. W. Corcorran & Co;, and Thomas Corcqrran. ' Before the .swearing of the jury, in.-.the ease, it was stated,' by the counsel of both plaintiff and defendant, to one of the Judges of the Court; who, being a…

Held: that there is no decision exactly in pojnt to the case; that there is no distinction between the entry of a nolle pro-sequi, before, and the entry after judgment, as applicable to. this case.' The decisions of the Courts of the United States, upon this proceeding, have been on the ground that the question is matter of practice and convenience. {75} When the defendants sever in their pleadings, a nolle prosequi ought…

Held: that parol evidence was admissible, to show the agreement relative to the place where payment of the note was to be demanded ; although the agreement did not appear on the face of the note.

IN the Supreme Court of the county of Adams, in the state of Mississippi, the appellees filed a bill in chancery against the appellants; which, according to the laws of the state, was transferred tq the Supreme Court, where judgment was given for the . complainants. t The- purpose of the bill was to obtain a conveyance of a tract of .land, containing 2000 acres; for which Robert Starke, in 1791, under whom the complainants claimed, obtained an order of survey from the…

Held: that the defendants were not bound to make any discovery, which would expose them to penalties. {104} THIS case came before the Court, on an appeal by the United States, from the decree of the District Court of the'United States, for the western district of Virginia; in which Court, the District Attorney of the United States, filed a bill against John Webster, Cashier, and a number of others, as stockholders of the…

THIS was an appeal from the Circnit'Court of the District of Columbia, and county of Washington; where a bill had been filed by Daniel Rhenner, the appellee, against Daniel Rhea and Elizabeth his wife, and William Erskine, an infant, the son of Elizabeth Rhea, by a former husband, Robert Erskine. 1.

THESE cases were brought before this Court, from the Circuit Court of the United States for the district of Georgia, under the following circumstances. The schooner Isabelita, a Spanish vessel, owned by Juan Ma-drazo, a native Spanish subject, domiciliated at Havana, was-despatched by him with a cargo, his own property, in the year -181Z, on a voyage to the -coast of Africa, where she took in a cargo of slaves.

An action was instituted in the Circuit Court for the district of' Columbia, by the defendants in error, agains.hRichard Slade, James Anderson, and the plaintiff in error, trading under the firm of Richard Slade £c Co.; and the suit having abated, as to Slade, by his death, and by return, as to Anderson, it-was prosecuted against Joseph Mandeville only. The declaration contained the usual money counts, and the damages were laid at ten thousand five hundred dollars.

The objects of the bill, were to make void a contract made by the appellant, for the purchase of certain lots of ground, in the city of Washington, being the estate held in trust, for the creditors of Charles Minifie — that certain collateral securities, delivered by the appellant, with his-note for 3,815 dollars, being for -the purchase money of the lots of the trustee, should be returned; and that the note should be cancelled and surrendered — that'a release should be…

THIS case came before the Court, upon a division of opinion of the Judges of the Circuit Court of the United States for the district of Maryland.

" .THIS was an action of ejectment, commenced. in the Circuit Court for the district of West Tennessee, in 1813; vby the lessee of Levi Hollingsworth, and John Iiaighn, citizens of the state of Pennsylvania; against Henry W-right, and others, the -plaintiffs in error, and citizens of Tennessee. The declaration set foyth a demise from Hollingsworth and Kaiglin, to John. •Denn,. the defendant in error...

• THE action, in the Circuit Court for the district of Maryland, was instituted by the plaintiffs in error, on a policy of insurance, in the usual form; and' á verdict was rendered for the defendants, under the opinion of the Court, upon the first of nine exceptions, taken by the plaintiffs.

<p>The object of the treaty with Spain, which ceded Florida to the United States,- dated 22d May 1819, was to invest the commissioners with full power and authority to receive, examine, and decide upon the amount and validity of asserted claims upon Spain, for damages and injuries. Their decision, within the scope of this authority, is conclusive and final, and is not re-examinable. The parties must abide by it, as the decree of a competent tribunal of exclusive jurisdiction. A rejected claim cannot be brought again under review, in any judicial tribunal. But it does.not naturally follow that this authority extends to adjust all conflicting rights, of different citizens, to the fund so awarded. The commissioners are to look to the original claim for damages and injuries against Spain itself; and it is wholly immaterial, who is the legal or equitable owner of the claim, provided he is an American citizen. {212}</p> <p>After the validity and amount'ofthe claimhas been ascertained by the award of the commissioners, the rights of the claimant to the fund, which has passed into his hands, and those of others, are left to the ordinary course of judicial proceedings, in the established Courts of Justice. {212}</p> <p>In general, it may be affirmed, that mere personal torts, which die with the party, and do not survive to his personal representatives, are incapable of passing by assignment; and that vested rights, ad rem and in re,- possibilities, coupled with an interest and claim, growing- out ofi and adhering to property, may pass by assignment. {213}</p> <p>The law give? to the act of abandonment to underwriters, when accepted, all the effects which the most accurately drawn assignment would accomplish. The underwi iter then stands in the place of the insured, and becomes legally .entitled to all that can be recovered from destruction. {214}</p> <p>it is clear, that the right to compensation for damages and injuries, to which citizens of the United States were entitled, and which, under the treaty with Spain, were to be the subjects of compensation; passed by abandonment to the underwriters upon property, which had been seized or captured. {215} . *</p> <p>The right to indemnity for an unjust.capture, on the sovereign ;whether remediable in his own Courts, or by his own extraordinary interposition, or . grants upon private petition, or upon public negotiation; is a right attached to the ownership Of the property- itself, and passes by cession to the account of the ultímate sufferer; and is afterwards assignable to the person to whom it had been ceded. {215} ■</p> <p>It is not universally, though it may be ordinarily, the test of a right, that it . may be enforced in a Court of Justice. Claims and debts due by a sovereign, are not commonly capable of being so enforced. It does not follow, that because an unjust sentence cannot be reversed, that the party injured has lost all right to justice, or all claim, upon principles of public law, to remuneration. {216}</p> <p>The treaty with Spain recognised an existing righpin the aggrieved parties • to compensation; and did not, in the most remote degree, turn upon the notion of donation or gratuity. • It was demanded by our government as matter of right, and as such was granted by Spain. {217}</p> <p>The right to compensation from Spain, held under abandonment niade to underwriters, and accepted by them, for dafhagés and injuries, and which were to be satisfied under the treaty, by the United States; pissed to the assignees of the bankrupt, who held such rights by the provisions of the ■' bankrupt law of the United States^ passed April'4, 1800.. {219}</p>

<p>ON the 16th of January 1823, the plaintiff in error gave ..an arbitration bond, in the usual form,- with sureties,' to the defendants in error, in which it was set forth, that, “ whereas certain disputes, differences, and controversies, have arisen, and are still depending, between the above bounden Charles W. Karthaus,' acting for the late house of Charles W. Karthaus & Co. and himself, -and the. above' named Francisco Yllas y Fer-.rer, and Josef Antonio Yllas, for the ending and determining the disputes, differences, and controversies, aforesaid, and ail actions, suits, claims, and demands whatsoever, concerning thie same, the said parties have agreed to: refer the same to the award, judgment, and determination, of Lewis Brantz and Henry Child, both of Baltimore, merchants;'arbitrators indifferently chosen, and named by and on behalf of the said parties, to award, order, arbitrate, judge, and determine, concerning-, the same. And if the said arbitrators cannot determine the same, that then the same shall be fully ended and determined by a third person, to be by them chosen as an umpire, in,such manner as hereinafter is, in that behalf, mentioned and expressed.</p> <p>“Now, the condition of this obligation is such, that if the above bound Charles W. Karthaus, his heirs, executors, administrators, and every of them, shall and do, for and bn his and their parts, in and by all things, stand to, obey, abide, perform, fulfil, and keep the award, arbitrament, order, determination, final end, and judgment, which shall be by them, the afox-esaid arbitrators, made, of and concerning the premises, and of all disputes, differences, actions, suits, claims, and de-. mands whatsoever, tóuching and concerning the same, so as' such award, arbitrament, determination, final end, and judgment of the said arbitrators, of and in the premises, be by them made and given up in writing under both their hands and seals, ready to b,e delivered to each of the said parties in controversy, in fifty days from the day of the date hereof.</p> <p>“ And if they the said arbitrators, of and in the said premises, cannot agree, end, and determine the same, in fifty days froni the day of the date hereof, that then if the said Charles W. Karthaus, his heirs, executors, administrators, and every of them, shall and do, for and on his and their parts, in and by all things, stand to, obey, abide, perform, fulfil, and keep the award, arbitrament, and umpirage, of the above named arbitrators, and such third person and umpire, as they-the said arbitrators shall indifferently name, elect, and choose, for the ending and determining the same premises,' or a majority of them, so as such award, umpirage, and judgment of the said arbitrators and umpire, or a majority of-them, of and concerning the same, be by them so made and given up in writing, under- their hands and seals, ready to be delivered to each of the said parties in controversy, in sixty days from the day of the date hereof, This obligation to be void and of no- effect, otherwise the same shall remain in full force'and virtue.”</p> <p>Upon this reference, the following award was made, under the hands and seals of the arbitrators and the umpire.—</p> <p>We, the undersigned, Henry Child, arid' Lewis Brantz, as arbitrators, and Michael M’Blair, as umpire, acting in virtue of the annexed bond or instrument of writing, do hereby award, and'adjudge, that the late firm of Charles W. Karthaus & Co. pay, or cause to be paid, unto Francisco Yllas y Ferrer and Josef. Antonio Yllas, or their representatives, the sum of fourteen hundred and seventy-five dollars, for a balance of the ge-, -neral account current between the parties; and also the sum of thirteen hundred and ninety-eight dollars, for a balance arising out of the moneys recovered for the brig Arogante Barcelo-nese arid cargo; in which award,, a parcel of cutlasses, or their proceeds, are considered as becoming- the property of said Yllas y Ferrer.</p> <p>Given under our hands and seals, in Baltimore, this 8th of March 1828.</p> <p>To an action on the bond, against the plaintift in error, he pleaded the condition, and that no award had been made. The defendants in error replied, and answered, and set it out as stated;, and there was a. demurrer to the replication, which the Court overruled, and a judgment was entered for the plaintiff below. In this judgment error was alleged; and before thjs Court, the plaintiff in error sought to-maintain-—</p> <p>- ■ 1. That the award is not agreeable to the submission.</p> <p>- 2. It is not certain, final, and mutual.</p> <p>3. It- directs an act to be done by strangers.</p> <p>4. It is defective in other respects.</p> <p>The case was argued by Mr.1 Hoffman, and Mr:.Mayer, for the plaintiff in error; and by Mr. Wirt, Attorney General, for the defendants.</p> <p>The object of the submission was, to have all the matters in controversy adjusted by the arbitrators, and the words “ certain disputes,” so meant and intended, 2 Caines’ Rep. 320. 15 John. Rep. 197.' Com. Dig. Arbitration, 4 D.</p> <p>1. This was a submission between all the parties, the plain-tiff in error,'and the.’firm of which he was,a member, there being partnership and individual'disputes; and the award does-not apply to all, but only to the plaintiff in error. It should profess, to decide e.very thing" in the premises.</p> <p>The submission being conditional, ita quod, the referees were bourn] to pursue, strictly, the submission in all its tprms, and to award on all matters submitted to them. 2 Gallison’s Rep. 778.'Cokes’ Rep. Bascoe’s case, 193. i. Salk.70. Ryd on Awards, !76.</p> <p>. 2. An award must' be, 'so certain; that it may be pleaded in bar, to an action against tlie parties to it; which is not the fact in this cáse. 1. It does not comprehend all the parties,- nor decide upon all the subjects in dispute; it is uncertain- and contradictory, and there are no avermfents in the replication which will supply these deficiencies — there should have been an averment as to the members'of the firnNr-as to the accounts, and the'transactions out-of which the accounts-grew. By no-form of pleading, could the plaintiff in error show; he had, in this case,-satisfied the claims of the defendant in erroi1. The award should have designated the claims on' the plaintiff, individually, and on the firm; nor does,it appear by it, that Charles W. ■Karthaus, and C- W- Karthaus 8c Co., were the same persons. Cited, 1 Sacón’s Abr. Arbif. and Award, pi. E. 1. 216. 1 Com. Dig. 666. Tit. Awd. pi. E. 4. 7 East, 81. 5 Wheat. 394.</p> <p>In an action on an award, the plaintiff is not bound to set out the particulars; but if he proceed on the bond, he must set out the breaches with particularity. . The defendant may do' it, but it is the duty of the plaintiff; Kyd on Awards, 195. That part of the award, by which “ a parcel of .cutlasses, or their proceeds, are considered as becoming the property of the. said Yllas y Ferrer,” is altogether uncertain. It does not state what cutlasses, or what the^amount of the proceeds,' considered as the property of Yllas y Ferrer, were included, or referred to.</p> <p>The Court are always disposed to maintain awards, Caldwell on Arbitrations, 123.</p> <p>The pleadings do not exhibit any thing from which error can be imputed. The defendant should have rejoined, and shown that there were other parties, and other matters, than those stated in the award;' having failed to do this, there is nothing before the Court but the submission and the award; and there is .nothing to show, that there were other persons interested, and. other matter to be acted on, but those stated in the award. This form of pleading, is only waived when the submission sets out every matter at large. Cited, Kyd on Awards, 171. 7 East, 81.</p> <p>The firm is not a party to- the submission; and the .partner who submitted to the arbitration, will alone be bound by it, and to pay the amount awarded', Kyd, 40. As to the set-off, in such a case of individual and partnership accounts, cited 5 T. Rep. 493. 6 T. Rep.' 582-3.</p> <p>Certainty, to a common interest only, is required in awards. This award is sufficiently certain. Kyd,. 132. 1 Caines’ Rep. 314, 315. 14 John. 108, 109.</p> <p>If the award be certain in part, it may be executed for so much as is certain; although another part is uncertain; unless the part which is uncertain is the consideration for that which the uncertain part was given. 5 Wheat AQ^.. The award here is entirely for tlie defendants in error, and if any part of it is uncertain, which is denied, the plaintiff in error cannot complain. 11 Wheat. 448. The cutlasses and the proceeds are sufficiently designated, and if ■(hey.were not, it was for the plaintiff below, only, to complain.</p>

ON an appeal from, the Circuit Court, for the district of Kentucky. The facts and the pleadings in the case, are fully stated in the opinion of the Court. The cause was argued by .Mr. Wickliffe, on the part of the appellants; no counsel, appearing for the appellees. The following points were stated in the argument, by Mr. Wickliffe.— 1.

THIS was a bill, filed in the Circuit Court, for the district of Georgia, and the case came up, on a certificate of a divi- •• sion of opinion, which the judges ordered to be entered upon these points.— First, whether the complainants are entitled to relief? Secondly, what relief should be decreed to them ? • The only question presented for the decision of this Court, was, whether the Circuit Court had jurisdiction of the cause.

THE appellees filed their bill in the Circuit Court of the United States, for the district of Ohio, praying a discovery; and that the defendants may convey to the complainants such a title as they have acquired, to a lot of ground in the town of Cincinnati, and deliver, up the possession acquired by them; and also that they account for the profits; and for general relief.

MR. WICKLIFFE moved ,to dismiss this-cause, which was brought by a writ of error from the Circuit Court of the district of Kentucky; on the ground, that the property in controversy was not of the value of two thousand dollars; although the whole property owned by the lessor of the plaintiff in errror, was under -a patent, and which was recovered in the ejectment, is one thousand acres; yet, the title' tó a lot in the. town of Fal-mouth, of less value than five hundred…

THIS was an a ton of assumpsit, instituted in the Circuit Court of the Uni ■ d States, for the southern Circuit of New-York ;■ by William Konig, a merchant of Amsterdam, carrying-on business under the firm of William Konig- & Co. against the defendants, merchants in New-York, trading under the firm of Le Roy, Bayard & Co. The action was .upon a foreign bill of exchange, and the declaration charges, that the same was drawn at Baltimore, on the 2d day of September, 1822, by…

<p>THIS action was instituted in tlte Circuit Court of the United States, for the Southern district of New-York, upon nine several bills of exchange, drawn at Baltimore, at sixty days . sight, by John-C. Delprat, on the plaintiffs, carrying on busi- ' ness under the firm of N. & J. 8c R. Van Staphorst, merchants . in Amsterdam, and endorsed by the defendants.</p> <p>The cause was tried in April, 1825, and a verdict taken for the plaintiffs, for 832,275 95, being for the whole amount of their claim; subject to the opinion of the Court, upon a casé agreed.</p> <p>The Judges of the Court below, having divided in opinion oil the following points, the same were certified to this Court, and the cause was argued upon the case agreed, and the points upon which there was a division of opinion, by the Judges of • the Circuit Court.</p> <p>- 1. Whether the authority of J. C. Delprat, to draw upon the plaintiffs, did or 'did not amount to an. acceptance of the bills ?</p> <p>2. Whether the bills paid by the plaintiffs, supra protest, for the honour of the defendants, were drawn and negotiated, in conformity to the authority and instructions of the plaintiffs, to John C. Delprat ?,</p> <p>. 3. Whether the plaintiffs were bound to accept and pay the. bills in question, and whether the same having been paid by the plaintiffs, supra protest, for the honour of the defendants, the plaintiffs are entitled to recover the. amount of the defendants?</p> <p>4. Whether'J. C. Delprat was a competent witness r</p> <p>5. Whether the letter, offered by the plaintiffs in evidence, and rejected, ought to have been admitted ?</p> <p>6. Whether the plaintiffs are entitled to a judgment, on the verdict of the jury ?</p> <p>All the facts, with the correspondence between the parties, which were considered by the Court as necessarily connected with a full development of the case, are stated in the opinion of the Court.</p> <p>■ The cause was argued by Mr. Ogden-and Mr. Oakley, for the plaintiffs, and by Mr. Webster, and Mr. Ogden Hoffman, for the defendants.</p> <p>This action is upon bills of exchange, drawn by Delprat, and accepted, supra protest, and paid by the plaintiffs, as they allege, for the honour, of the defendants, who were the endorsers on the bills. It is admitted that the plaintiffs, being drawees of the bills, could accept and pay in this form; but it is claimed, that the bills were drawn under the arrangement between them and Delprat, and they were bound to accept them; that arrangement being a promise, so to do.</p> <p>This is the same question, as if the'defendants in this suit had brought an action against the plaintiffs, on those bills, as accepted bills.</p> <p>Does the authority to draw, create a promise to accept ? It is admitted that the law of France is, that acceptance shall be on the face of the bill. The law of France is .the law of Holland. We deny that the contract between the plaintiffs is such a promise to accept, as that, even if all its provisions and conditions had been complied with, any third nariy could have taken advantage of it.</p> <p>As it related to the parties themselves, it was a good pro-' mise, when Delprat conformed to the provisions of the arrangement; but strangers had no right to avail' themselves of this. The promise in the contract was made to Delprat, and was not assignable in its very nature.</p> <p>It is only when the promise points to some bill drawn,- or to be drawn, with such minuteness and certainty as to sums, time,, and parties, as that it may be considered a. complete transaction, and a. finished agreement, that the promise can avail to the use of third parties; and then it does not so avail as a promise to accept, but as an actual acceptance.</p> <p>There is no case of a parol promise to accept, being considered as an acceptance; and the doctrine has been already carried too far, so as to become the subject of regret. But there is no case which goes as far, as the plaintiff claims in this.</p> <p>Cases cited, 3 Bur. 1663. 1 East, 98. 4 East, 57. Wynne vs. Raikes, 5 East, 54. Cooledge vs. Pavson, 2 Wheat. 66. Starkey, 411.</p> <p>All those cases rest on the express promise to accept. Goodrich vs. Gordon, 15 John. 6. Why, if the authority to draw was a promise to accept, say, there was also a promise to accept?.</p> <p>The case of Cooledge vs. Pavson, 12 Wheat. 66, before this Court, settled all the principles relative to an obligation to accept; and this case does not come within the rules of law there established. The principles decided by the Court in- that case, were in the language of the Court:</p> <p>“ Upon a review of the case, this Court is of opinion, that a letter, written within a reasonable time before or after the date of a bill of exchange, describing it in terms not to be mistaken, and promising to accept it, is, if shown to the person who afterwards takes the bill on the credit of the letter, a virtual acceptance, binding the person who makes the promise.”</p> <p>The decision of the Supreme Court of New-York, recognises the same principles. That case was—</p> <p>Gordon was sendin'g a sloop from New-York to Savannah, during war. Hogan wrote a letter of instructions, viz. “ should he be capturedjransom the vessel, as low as possible,not to exceed 2,000 dollars, and your draft on me will be duly honoured.” He was captured, and drew the bill, for ransom, within the sum, and gave the letter, with the bib.</p> <p>■ Chief J ustice Marshall says, “ the testimony is full evidence that lliis letter, at all times, accompanied the bill — that the bill was drawn on the faith of it; — and that it was on the faith of this letter that the plaintiff, who' was an endorser, took the bill from the first endorser — and it would be a gross want of faith, now, to disclaim the captain’s authority.</p> <p>The arrangements between the plaintiffs and Mr. jDclprat, were personal to him, and could have no effect upon the transactions of others. ' They were to operate on the general business to be carried on between them, and their main object was, consignments to the plaintiffs. Mr. Delprat might purchase parts of cargoes, and they were willing to “ facilitate” all such commercial operations of his, as “ they could without prejudice to themselves.”</p> <p>Under this arrangement, Mr. Delprat purchased and shipped goods, drew for them, and the proceeds of the shipments -were carried to his account, and the bills paid, and charged to him. The defendants were not parties in those transactions, and they stood, as mere purchasers of the bills in the market.</p> <p>• These transactions are similar to many others in the United States, and have never been considered as involving an obligation io accept the bills, of which a purchaser can take advantage. Such a' responsibility,’ .on the part of the draweés of a bill, would give to it a greater effect, when in the hands of an assignee, than it had before the transfer.</p> <p>There is no usage making the authority to draw an acceptance. There is no case in which it has been ever so held; and it is inconsisteht with the negotiable nature of bills.</p> <p>The question, therefore, which has been raised, is met in its most imposing form, with an answer • in the affirmative; when acting under such an arrangement as that between the plaintiffs and Mr. Delprat, could the "plaintiffs take the.goods shipped to them, and refuse to pay tó a third person, the bills drawn upon those goods? It is considered they could; such is the mercantile, law, and it cannot be otherwise.</p> <p>Bills of exchange are ¡purchased on the faith of the names upon them, and.not under an expectation that there is a collateral obligation to pay them, on the part of the drawee. There is always an expectation, that the bills will be paid; but this expectation does not constitute a legal right against the drawee. In reference to the present bills, it appears from the testimony, that the defendants actually charged Mr. Delprat a commission for endorsing them, without which, they could not havé been advantageously negotiated.</p> <p>• It is said, that the shipments were made in trust to pay these hills, and ’ that the plaintiffs could not take the property free from the trust; Let this be so; but who can enforce the trust?' Certainly not the assignees, as the trust is not assignable. To the drawer, only, would the parties under such circumstances be answerable. The agreement made by the plaintiffs and Del-prat, was never performed by him, in any case; and thus the danger is manifested, of giving to a stranger, rights which Delprat would not have had himself. No lien existed on the goods, by which the payment of the bills could have been en-, forced 5 no such lien has ever been supposed to exist;, all liens require possession in the party or his agent. The goods in this . case went to Holland; the bills were sent to England; where - is the possession to maintain the lien ?</p> <p>If the bills had been drawn upon .particular shipments, and ■ the invoices and bills of lading of the goods had been delivered with the bills, the plaintiffs being so advised, by Delprat.; then they must have opened a particular account with the party holding the bills, and have paid them out of the shipments.</p> <p>A-s tythe suggestion of an equitable lien on the goods, for the payment o.f those bills; it cannot be contended, that the holder of the bills could follow the goods and enforce it. The law of Russia, gives a party a light to follow goods until he is paid, but this is not the law here. The policy of the English law, and that of all commercial countries, is, that' the paper is disconnected with the property.</p> <p>It is well settled law, that where goods are carried, under a permission to draw, the bills of lading being remitted fixes the property in the consignee, against the creditors of the consignor, although they get the goods. 1 Bos, 4* Pul. 563. 3 Chitty, 550. If A sends goods'to ,B, and directs him to pay the proceeds to C, this creates no lien in favour of C. 1 Starkey, 123. 143. 14 East, 558. Chitty, 550.</p> <p>Mr. Delprat was not the agent of the plaintiffs, under the contract, to draw the bills. He stood in no other relation to them, than that of a corresponding merchant, with like powers. He did not draw the bills as agent; they were said to be ' on his oyvn account, nor did he pretend to bind the plaintiffs, by his ac.ts, as his principals. Bayley on Bills, 156. 64. 3 Term Hep. 757. Chitty on Bills, 31. Agency may be inferred from analogous acts, but they must be of that character. There is no proof that similar bills were ever paid by the plaintiffs.</p> <p>The plaintiffs sent to the defendants their contract with Mr. Delprat, to show that they had granted him the credit. In their letter to the defendants, they do not say anything about the authority to draw; in reference to the credit, they desired the defendants to supervise the transactions of Delprat; in reference to, any bills he might draw, they would take care of themselves, by refusing to accept them.</p> <p>There is an answer to all the allegations, as to lien, and to an alleged liability to accept. The bills, it is manifest, were not taken on the credit of the drawees.</p> <p>The mercantile house'of the plaintiffs, at Amsterdam, were desirous to extend their business in the XJnited States; and they employed Mr. Delprat,- giving him authority to draw upon them, according to particular directions, and with a credit of 49,000 dollars,' with the defendants.- He acted under this arrangement for four years, and then failed; and the question is, who shall' sustain- the loss arising in the course of his transactions, out of bills drawn by him, upon the plaintiffs. Th~ business between Mr. Delprat and the plaintiffs, was not confined to the -contract, nor were his acts in conformity to R; and yet the. plaintiffs went on, without communicating to the-defendants.; who were deeply connected with them in mercantile business, and who had been particularly invited to. an agency in their arrangements with Mr. Delprat; that their confidence in Mr.' Delprat, their agent, had diminished, or they proposed to withdraw the agency from him.</p> <p>ThqysSuddenly break off the relations between them and Mr.. Delprat, and refuse to pay bills, drawn on property which had been shipped to them, "and which were to provide for the payment of the bills; taking the funds, the proceeds of the goods, to the credit of their general balance, arising out of their .several transactions; and they then pay the bills, supra protest, for the honour of the defendants, who were endorsers bn the bills. Can this be done ? — can they take the goods, and not pay the bills?</p> <p>Had’the plaintiffs a right to accept the bills supra protest, for the honour of the defendants?</p> <p>He who gives an.acceptance for the honour of a party, must do it before he accepts generally, “ or any ways engages or obliges himself thereto.” 1 Lex. Merc. (Mcdyn) Marius advice concerning Bills of Bxchange, 30, 31. In 1 Lord Raymond, 88, Lord Holt says, “an acceptor for honour of drawer,'is when a stranger, having no effects of .-drawer, accepts out of respect to the drawer.” The principle there, is that there can be no acceptance supra protest, for the honour of any party, when the acceptor is under any obligation, legal or equitable, as it respects that pa>-ty to accept generally. This results from the, nature of acceptance supra protest.</p> <p>The rules of law are—</p> <p>1. An acceptor supra protest, may demand a recompense, for the credit given him, for whose honour he accepts, Beawes’s Lex. Merc. f. 44; and if he re-draws, his bill ought to be readily complied with, besides a grateful acknoioledgment of the favour.</p> <p>2. Where a bill is paid supra protest, the payee may re-draw, . with addition of commission, and it ought, in gratitude, to be punctually complied with. Ibid. pi. 63, 64.</p> <p>Such acceptance must therefore be gratúitous, with a just motive; and without connexion with, or reference to the interests of the acceptor.</p> <p>To examine this case, according to these principles.—</p> <p>1. As between the plaintiffs and the defendants, were those bills such as should be considered' as accepted bills; or bills which the plaintiffs were “in any ways obliged to accept?’*</p> <p>They were; because they were drawn by Mr. Delprat:—</p> <p>1. In pursuance of his written authority.</p> <p>2. If not in pursuance of a general authority, this authority was to be inferred from the general course of business. An authority to draw a bill, is virtually an acceptance of the. bill, drawn in conformity to it. 9 Mass. 11. OWheat. 72. 2 Galli-'son, 238.</p> <p>2. A promise to accept a bill, is an acceptance, if the holder has taken the bill on the faith of the promise; although the bill is for a pre-existent debt, or whether the promise be before or after the bill is drawn. This is also the law,'although the promise be obtained from the drawee fraudulently.</p> <p>3. A general authority to draw bills, is equivalent to an acceptance of all bills drawn; or to a promise to accept all'.</p> <p>The facts in this case, were:—</p> <p>By the agreement of January 11,1818, between the plaintiffs and Mr. Delprat, he was their agent — <1. To form commercial connexions. 2. To promote consignments. 3. To act as directed in the' agreement.. As the plaintiffs’ agent, Mr. Delprat was bound — 1. To act for no other persons in procuring consignments, either from himself or from others. 2.. To use his utmost efforts, for the-benefit of the plaintiffs.</p> <p>The plaintiffs were bound — 1. To facilitate Mr. Delprat’s-commercial operations, without prejudice to themselves.</p> <p>The objects of this agreement were, to procure consignments, and that Mr. Delprat" should act as the commercial agent of the plaintiffs, generally; and the means of accomplishing them, were to draw bills, to make advances on cargoes, and for which . he was also to use the credit opened with the defendants. To the consignments, there was no limit; and of course, they could go beyond the credit.</p> <p>■ From a view of all the letters between the parties, and the evidence, it is manifest, that Mr. Delprat acted as the general' agent of the plaintiffs; to draw bills for advances on consignments, independent of the credit of 40,000 dollars, and after it was reyoked. -2. That the plaintiffs paid such bills without regard to the balance of accounts with him, down to July 1822;' and 3. That, the plaintiffs never set up the objection, that the bills were drawn without authority, until October, 1822.</p> <p>It is contended, that the agency óf Mr. Delprat for the plaintiffs, appears — 1. By the written agreement of the parties. 2. By the relative situation of himself and the plaintiffs, he being a commercial agent to procure consignments, by making advances by drafts on the plaintiffs. 3.Tn the Course of the business, and the long habit of the plaintiffs in paying the drafts drawn by him.</p> <p>The authority of an agent may be shown — 1. By his written power; or iiy the absence of that, by himself. • 2. From the relative situation of the parties. 3. From the habits and course of dealing between the parties. 4. From the recognition of the acts of the agent, by the principal, or by .similar acts.' The evidence establishes the agency of Mr. Delprat,’ for the plaintiffs, Upon all these principles. As to the bill for' £1,000, of July 31,1822. — 1. It was paid before it was due — It was drawn at 60 days; presented on the 14th September, and’ paid on the 1st October following. 2. There can be no. payment supra protest, until a demand and refusal of payment regularly made. This refusal cannot be until the bill falls due. Chitiy on Bills, 318.</p> <p>Had the plaintiffs a right to pay, those bills supra protest?</p> <p>1. In case of acceptance supra-protest for honour of the endorser, the bill must be presented 'for payment, and duly protested. Ckitty, 313. .</p> <p>2. If the drawee has accepted supra protest, for want of fuñas or.effects, and áfterwards receives effects; he is bound to discharge the endorser, and to advise him that he will pay. Beawes’s Lex. Merc. 109. Thus, there may be an obligation .to pay, when there was none to accept. As to the bills of July 31, 1822, for £1,000, and 5,000 guilders, they were .drawn on shipments by the Virginia.. The plaintiffs were so addressed — .the consignment of the property was received by the plaintiffs, after protest for non-.acceptance, and before the bills were paid. They were, therefore, bound to pay those bills out of the proceeds of those shipments.</p> <p>The plaintiffs cannot take this property, and apply it to their general account with Mr. Delprat, refusing to 'pay the bills drawn or. advances on the very properly. The shipments, when they were advised of the facts, were received by them,, subject to an equitable lien, in favour of the holders of their bills; and they have a right to their application to the payment of the bills.</p> <p>"As to the bills paid before the arrival of the ships. 1. Payment, supra- protest, is .evidence of money paid to the use of the defendants. It is an equitable action, and admits of any. equitable defence. Can it be sustained, after effects to pay the bills have come iflto the hands of the plaintiffs ? Does not the recciptofthe proceeds of thepropcrty, reimburse the plaintiffs in the payment ?</p> <p>• Equity will frequently give a party relief, in effect amounting to a lien, though not in possession of,the goods, to have his demand satisfied out of the proceeds of the goods, in preference to any other party. Chitty’i Commercial and Maritime Law, 550-1.</p> <p>The defendants ask the application of this principle to the bills upon wh^ch this suit has been instituted.</p> <p>This áction is to oblige the defendants to pay the amount of bills paid for their .honour, and which they say should have been paid by the drawees. The plaintiffs received the property, ..against which the bills were drawn; and the question is, whether .property could be received, and the bills drawn upon it be left unprotécted ? The consignee of property is nothing more .than a trustee, to receive the property, and appropriate the proceeds to the use of the consignee, and he must conform to the directions of the consignor. In this case, the bills of exchange > drawn by Mr. Delprat, were the direction as to the appropriation of those funds.</p> <p>It is no answer to this, to say, that the consignor is a debtor to the consignee; and that upon the principle that a consignee can,pay his general balance out of goods, which come into his hands, the plaintiffs would make use of the funds, for their own purposes. They could not get possession of the property, but by a wrongful act; as they had not a right to receive it on any other terms, but those prescribed by the shipper. Those bills, or the letters 'of advice, state, that they were drawn for advances on goods shipped.</p> <p>1. May not the drawees of the bills be considered as assignees of this property, bound to appropriate the proceeds to the payment of the bills ? This would be the case in equity.</p> <p>In New-York, the point has been decided. If the consignee takes goods, he takes them subject to the lien on them.</p> <p>The evidence shows, that Mr. Delprat was the agent of the plaintiffs, engaged in ■ making shipments to them, against which he drew bills, similar to those in which this suit is brought; and that between January and July, 1822, he shipped goods to the plaintiff tp a very large amount; upón'which bills were drawn, and which were accepted by the plaintiffs, and were paid. Mr. Delprat was the- general agent of the plaintiffs." Payley on Jlgency, 2. 1 Washington’s Rep. 19. II .Mass. Rep. 55.</p> <p>It is said an authority to draw, is not an agreement to accept. What else is it, but an implied' promise to accept ? In Cooledge vs. Payson, 7 Wheat., this Court has decided the point as to a particular bill — these are bills of a particular class. It is not necessary that the bill shall express to be drawn as agent, to bind the principal; the contrary practice is universal, and it was the .practice not to draw the bills of those partiesen that form. If it shall be said that Mr. Delprat had authority to draw, bills under particular agreement, and that those bills were not drawn in conformity with that agreement; the answer is, that the letter of the plaintiffs, announcing their refusal to accept the bills, does not state, the refusal to have been on that ground.</p> <p>■ It has been decided, that if underwriters refuse an abandonment, for reasons assigned, they cannot, afterwards, on the trial, allege other reasons for not paying the loss. The objections made by the plaintiffs to the bills, were, that accounts were not kept and settled by Mr. Delprat; and that á balance .was due to them for their shipínents; not because of mal-agency. The facts of the case show that those bills were drawn in conformity with instructions. •</p> <p>But, even if they had not, still the principals were • bound.</p> <p>. The law is so settled, even if the agent violates instructions.. 2 Kent's Commentaries, 484.' Another point in this case, which is in favour, of the defendants, rests on the particular situation of the two houses of trade, formed by the parties to this cause.' Whatever maybe the law as between strangers, the attempt made by the plaintiffs to throw those bills bn the defendants, is a violation of the good faith which had always existed between.. them. - •</p> <p>Between them, the highest Confidence existed. The defendants were agents for a large amount of the stocks of the United States, held by persons in Holland, and which were under the care of the plaintiffs; and they had large transactions for mutual benefit. •</p> <p>•In 1818, Mr. Delprat was appointed, by the.plaintiffs, their commercial agent, and was recommended to the particular care of the defendants, who were asked to “facilitate his operations.” The .agreement with Mr. Delprat was enclosed to the defendants, for the purpose of showing to them the nature of his agency, and informing them of his powers, and of the credit they had given to him. The defendants were to render such services, as would enable Mr. Delprat to execute the purposes of the contract.' Thus were the defendants brought into a close connexion with Mr. Delprat, for the purpose of promoting the designs and interests of the plaintiffs; and those bills, believed by them to be drawn in the regular course of the transactions, authorized by the relations between Mr. Delprat and the plaintiffs; were endorsed to “facilitate the operations” of Mr. Delprat, supposed to be beneficial to all parties.</p> <p>It is said that the plaintiffs were, by thacontract entered into by them with Mr.Delprat, to have nothingto do with the drawing of’ bills. They did not so construe the agreement, nor did the plaintiffs so consider it. .The construction of commercial agreements is best made by the understanding of the parties to them, and the use' made of the same. The evidence shows, that the con-¡jtruction which was assumed as proper, by the defendants, and upon, which they acted, in’endorsing those bills; had been frequently affii’med, in the 'course of forme: transactions, by the plaintiffs.</p>

<p>The Adjutant and Inspector General of thé Army of the United States, was not entitled to double rations, from the 30th of September 1818, to the 31st of May 1821.</p> <p>The President of the United States, has a discretionary power to allow such additional number of rations, to' officers commanding at separate posts, as he may think just, having respect to the special circumstances of each post. ' The law.granting.this authority, is not imperative) and.in the exercise of his discretion, the President may allow or. refuse to allow, additional rations, as in his opinion he may deem proper. {296{.</p> <p>The Secretaiy of War, as the legitimate organ of the President, under a'.ge- ■. neral authority from him, may exercise the power,and make the allowance, to officers having a separate commands {297}</p> <p>No officer is entitled to the additional allowance, unless he be a commandant at a separate post; and then the claim must be sanctioned by the Executive. The allowance cannot be made to more than one officer at the same station. {297}</p> <p>In the discharge of his ordinary duties, the Adjutant and Inspector General, has no distinct command; his duties consist in details of service, and not in active military command. {297}</p> <p>An officer may be'said to command at a separate post, when he is out of the reach of the orders of the commander-in-chief, or of a superior officer in command, in the neighbourhood. He must theibissue the necessary orders to the troops under his command, it being impossible to receive them from-a superior officer. {297}</p> <p>The general order of the War Department, of 16th March 1816, directing double rations to be'allowed to officers commanding military departments, is construed to relate to the geographical sections of country, into which the two divisions of the army are divided, and which were denominated “ departments,” and intended to designate the extent of actual command' given to the officer commanding each department; it does not relate to the law of the 3d of March 1813, “for the better organization of the General Staff of the Army.” {297}</p>

* This suit was instituted on the Chancery side of the Circuit Court, by the appellees, complainants in that Court, against the Mechanics Bank of Alexandria; to compel them to permit a transfer to be made of three thousand dollars of the capital stock of the bank, standing in the name of Adam Lynn, and held by him as trustee of the complainants.

In the Circuit Court for- the county of Washington, the defendant in error issued an .attachment against Robert Barry, the plaintiff in error; and according to the established practice, the plaintiff in the attachment,, filed, at the time it was issued, an account or statement of his claim; by which he alleged that Robert Barry, the defendant-below, was indebted to him in- the-sum of S3,410 25, for debts due from the firm'of James B. Barry 8c Co. assumed by him to pay to the…

THIS case was brought up from the Circuit Court of the United ■ States, for the Southern District of New-York, in the Second-Circuit; upon a certificate of the Judges of that Court, that they disagreed on certain points, set forth in the certificate.

This was an action of ejectment, brought by the plaintiff' in error to recover several messuages, which he claimed by virtue of several demises made to him by Thomas Spratt, and others; the messuages all lying and being in the county of Washington, in the District of Columbia; against Sarah Spratt, the defendant in error, who was the widow of James Spratt, and who was in possession of the.premises.

Held: that to take a case out of the statute,' there must be an unqualified acknowledgment, not only of the-debt as originally due, but that it continues so; and if there has been a conditional promise, that the condition has been performed < — a doctrine, quite as comprehensive, has been asserted in the Supreme Court of New-York. The subject was much considered in the case of Sands vs. Gelston, 15 Johns.

The appellee filed his bill on the Chancery side of the Circuit Court for the county of Alexandria, in the District of Columbia, against' the Mechanics Bank of Alexandria, to enjoin the bank from proceeding upon a judgment at law, which the bank had obtained against him, and upon which an execution had issued, and he had been taken and confined.' The bill stated, that'the judgment which had been obtained against the complainant was for what is called, according to the bank…

Held: that an assignment of part of the debtor’s property, did not fall within the provision of the statute. {439} Mere inability of the debtor to pay all his debts, is not an insolvency within the statute; but, it must be manifested in one of the three-modes, pointed out in the explanatory clause of the section. {439} The priority, as limited, and established in favour of the • United States, is not a right which…

THE plaintiffs instituted their suit in the' Circuit Court for the county of Washington, against the defendant, on a special •agreement to purchase two lots of ground in the city of Washington. The plaintiffs to support the issues joined on their part, offered in evidence certain deeds, papers and letters; the hand writing of the parties and the delivery of the letters, at their several dates, being admitted.

AN action of ejectment was instituted in- the Circuit Court ' of the United States for the District of Georgia, for the recovery of 287| acres of land, , in which the plaintiffs, claimed title . as .follows: A grant from the state of Georgia to-Samuel Alexander : and' a déed.fróm John.Cessna, styling himself Sheriff of Greene county in the state of Georgia,” purporting to .convey-to Buchner Harris, by virtue of a salé under an execution against Herod Gibbs, “ two hundred and…

<p>ERROR to the Circuit Court of Npw-York, for the Southern District. .</p> <p>The defendants in error, brought an action of assumpsit./ in the Circuit Court of the United. States, for the’ Southern District of New-Yort, against the plaintiff in error,-to recover damages, for .the breach .of .his contract, to ship to them, at Marseilles, five hundred boxes of-white Havana sugar.</p> <p>The declaration contains several special counts;.of which the first and second, on.ly. were relied upon at the .trial.</p> <p>The first count stated,,that atthé time of making the respective'promises and undertakings of-the defendants the plaintiffs, were co-partners in trades carrying on'-business at Marseilles in France^ under the firm of Rabaud, brothers and company. That-óñe George D’Wolf;. of Bristol, Rhode Island, being- desirous of drawing'upon the plaintiffs at Marseilles,, for 100,000 francs ;■ oh th¿T5th March 1825, át New-York, in-.considerar don that the plaintiffs,-' at the special -instance-and request-of the defendant, would authorize .the said George D’Wolf to dratv bills of exchange- upon the-plaintiffs for the-said sum. of 100,000 francs,- th.e- defendáht undertook, and-promised, .that he would ship for it he aqcoqnt of-George" D’Wolf, on- board of such vessel as - George D’Wolf -should direct,, five" hundred boxes of white Havana sugars’, consigned to the plaintiffs'.at Marseilles, (and the -plaintiffs afterwards, did duly, authorize. George D’Wolf to draw bills of exchange upon them at Marseilles, for the said sum. of .100,000 francs, which'bills .were drawn by him on theYOth of November 1825, and paid by the plaintiffs on the 3d day-of March 1826:' That op- the'4th day-of January 1825, at the. city óf New-York, Gebrge-D’Wolf did direct and name a vessel; '.the. brig Quito, then laying in the port of New-.York, and ready to receive the said.-sugars, onboard of which .vessel, the sugar should and.ought to have been'shipped, by the defendant, on account of George D’Wolf,, and consigned to the plaintiffs at Marseilles,- according to his said praniise/and undertaking; of all which promises the defendant had notice; and although -he-wus then and there requested to ship the sugar on board the said vessel, yet he did wholly refuse; the same.</p> <p>The second, count differs from the first -only in stating the contract to have been, that, “in consideration that the plain-tiffs, át the request of the defendant, would authorize George D’Wolf to draw bills of exchange upon them at Marseilles, for another sübx of .100,000 francs, on.account of oth.ey.five hundred boxes of white Havana sugar, to be shipped by the defendant for account of George D’Wolf, on board of such vessel as George D’Wolf should direct, and consigned to them the ■plaintiffs at Marseilles, the defendant undertook, &c.” and averring, that relying on the promise and undertaking of the defendant so made, they, the plaintiffs, after the malcing thereof, did duly authorize George D’Wolf to draw bills of exchange' upon them for another sum of 100,000 francs, on account of the last 'mentioned five hundred boxes of white Havana sugars, tobe shipped by the defendant on account of George D’Wolf, and consigned to the plaintiffs a.t Marseilles.</p> <p>. The cause was tried at the October term of the Circuit Court. of the United States, for the Southern District of New-York, in .1826, when the jury, under the charge of the Court found a verdict for. the plaintiffs below for $19,950 85. The, opinion of the Court, in the charge to the jury, was excepted to by the counsel for the defendant, and a bill of exceptions sealed by Mr. Justice Thomson, sitting as Judge of the Circuit Court; and the'opinion delivered by him, states the evidence adduced in the- cause.</p> <p>On the trial of the cause in the Circuit Court, the plaintiffs below, gave evidei.ee, by the testimony of George D’Wolf, who was examined under,a commission at Havana, that he George D’Wolf, had seyeral transactions with the plaintiffs previous to that which gave rise to this suit, and had at various times drawn bills on them. That he had three interviews with Mr. Belknap, on the subject of the shipment, of the sugars; which interviews were, had, first in Wall street in the city of New York; secondly, at the counting house of James D’Wolf, Jun., the plaintiff in error; and thirdly at the boarding house of Mr. Belknap. James D’Wolf, Jun..was present at the first interview, aud he with a certain Frederick G.- Bull was present at'the second, at his counting house.</p> <p>Mr. George D.’Wolf stated, that the transactions relative to the shipment of the sugars were; that, in Wall.street, he proposed tó' Mr. Belknap to address him five hundred boxes of sugars to the house at' Marseilles, on receiving authority to draw on account of the same, to the extent of 100,000 francs. Mr, Belknap, being engaged, an interview was proposed at the-counting house of Mr. James D’Wolf Jun., which took place, and at which Mr. Belknap observed, that the advance was heavy; and a' calculation was made by F. G. Bull, the confidential clerk of Mr. James Q’Wolf Jun., and by Mr. James D’Wolf himself, of the value of the sugar, compared with the proposed advance; the conclusion of which was, an agreement that the sugars should be shipped, and the authority to draw' granted to George'D’-Wolf; Mr. James D’Wolf engaging, by letter, to ship the sugars in behalf of George D’Wolf; which form of letter was afterwards .carried by George D’Wolf to Mr. Belknap, was assented to by him'; was signed by Mr. James D’Wolf.'Jun.;' and the authority to draw granted-and used accordingly.</p> <p>c This letter, and the authority to' draw, are.in the following' terms:—</p> <p>• New-York, 15th November 1825.</p> <p>. Mr. James D’WoliJun.</p> <p>Dear Sir -: — You will please ship for my account, on board o,f such-a vessel as I áhall direct, five hundred boxes white Havana sugar, consigned to Messrs. Rabaud, Brother & Co. Marseilles, and oblige yo.uf friend and obedient servant.</p> <p>George D’Woli.</p> <p>Agreed to, James D’Wolf, Jun. '</p> <p>New'-Fork, 15th November 1825.'</p> <p>Messrs. Rabaud, Brothers & Co., Man-.'lies..</p> <p>I have this day authorized George D’Wolf Esq. to draw on' you for thousand francs, and I request you to honour' his bills to that amount.</p> <p>; Your obedient servant, A. E. Belknap.</p> <p>Mr. George D’Wolf also stated,' that his object was to ship the sugars in one of his'own vessels; that he was then indebted to the house in Marseilles, aboiut thirty thousand francs, but could not say that Mr. James D’Wolf knew of the debt. The sugars were shipped to obtain the usual advance, and the consignees were, to have the . usual commissions in the transaction.</p> <p>Bills, to the amount of. the advance were afterwards drawn and negotiated in Boston, and the proceeds of .the same applied as follows: — 18,000 dollars remitted to Mr. James D’Wolf, in checks on the bank, and in an acceptance of Isaac Clapp, a bro*.ker in Boston; and .the residue of the proceeds of the transaction passed- to the account of George D’Wolf by Mr. Clapp.-It was admitted, that the bills. were regularly paid at Marseilles, by the defendants in error.'</p> <p>It was also in evidence, by the testimony of Mr. George D’Wolf, that at the time of the negótiátion for the bills, Mr. George-D’Wolf had in the hands of the'plaintiff in error, from three to four hundred boxes of sugar; of which sixty had been remitted from Rhode Island, on account of which he drew the sum of four thousand dollars, and the remainder were purchased for •his account by Mr. James D’Wolf Jim.; and at the same time he was indebted to Mr. James D’Wolf Jun. a considerable amount.</p> <p>• Mr. George D’Wolf, also testified* that the sugars to be shipped were to be on his account,, and uot .on that of the plaintiff in error — that the agreement with Mr. James D’Wolf was-.that the proceeds of . the negotiation of the advance should be remitted to him, and upon this verbal agreement, Mr. James D’Wolf granted his signature tocthe letter of the 15th of November 1825. Mr. James DJWolf afterwards wrote to the witness,-that he should decline to máke the shipment' inquestión, until he should receive the remittances' agreed upon. When the-letter was .first presented, Mr. James D’Wolf declined signing it, defei’ring it to the next morning, when he should see,’Mr. Bull; and it was signed the next morning. That the letter or memorandum of agreement, had for its solé object the .shipment of the sugars to Marseilles, that market being preferred to Ñéw-Yórk; and to place in the hands of Mr. James D’Wolf Jun. the proceeds of the bills, in order to further the shipment; and not with reference to accounts existing betweefi him. and the plaintiff in error; and that the plaintiff in error, knew the defendants, and particularly Mr. Belknap, in the transaction as stated.</p> <p>’ Mr. George D’Wolf also stated in his evidence, that toe did not know that Mr.. Belknap Was acquainted with the circumstance that the proceeds of the bills were to go to the plain-, tiff in error'; or with the state of accounts between'him add ' Mr. James D’Wolf junior.</p> <p>. Evidence wás also given to show, that the plaintiffs below carried on business in Marseilles, in France, and that all of the said parties, with' -the exception of Mr: Belknap, Were native subjects of France;- and that Mr, Belknap was a- nativecitizen of the United States, had resided some years in France,-' and now,.; always considering Boston as his-home, resided fti Boston,; where, he lodged in á boarding-house, in which her hired róóms by the year; and was understood'to pay taxes in-Boston; his letters of business were addressed' to Boston';.-;and. hé wás absent from there in' the United States; occasionally, for the purposes of transacting business for the firm in Mar-' seilles. !</p> <p>Boon after the negotiation of the 15th November, Mr: George D’Wolf became insolvent, and at the time of his failure, he was' largely .indebted to the plaintiff in error. Being thus embarrassed he addressed to Mr. Belknap the folio wing, letter:—</p> <p>Bristol, JR. 1. 2,7th December, 1825.</p> <p>. M.' 'A. E; Belknap. .</p> <p>Dear Sir,</p> <p>I am-in. receipt of yours of the 23d instant, and note-it is ' contents. Owing to my embarrassments, the Magnet which I had wrote youwould proceed to New-York to take the sugars, which Mr. James D’Wolf junior was to ship to your house in Marseilles, will not’ go on. You are therefore at liberty to make any arrangements with him you may think proper, fo.r the iu-tereát of-all concerned. I am extremely sorry that you met with an accident to prevent your visiting me,- as it would have afforded me much pleasure in seeing you.</p> <p>Believe rne very truly your friend, ■</p> <p>George D’Woi.f.</p> <p>Which letter was upon the 27th day of December 1825 shown to the pláintiff in error, by Mr. Belknap; and a copy of the same was, upon the 3d of January 1826, delivered to him. enclosed in the following letter: — ;</p> <p>New-York, January 3d 182C.</p> <p>Mr. James D’Wqlf Junior, New-York.</p> <p>Sir — I enclose you a copy o'f a letter which I yesterday received from- Mr. George D’Wolf, of Bristol Rhode Island. In pursuance of the authority given me by him, I shall, without delay, engage and provide a vessel, on board of which 1 shall require you (according, to your contract of the 15th November last,) to ship for account of Mr. George D’Wolf five hundred boxes white Havana-sugar, consigned to Messrs. Ra-baud, Brothers & Co., Marseilles.</p> <p>Your obedient servant,</p> <p>A. E. Belknap.</p> <p>On the 4th'January 1826, Mr. Belknap addressed the plaintiff in error, in the following terms:—</p> <p>New-Fork, January 4th 1826.</p> <p>Mr.-James D’Wolf Junior, New-York. '•</p> <p>Sir — In. pursuance of the notice J gave you in my' letter of yesterday, I have engaged the American brig Quito, Captain Wing, now lying, at Fly Market wharf, in this city-, for the purpose of receiving, on freight, for Marseilles, five hundred boxes of white Havana sugar. The Quito is a good staunch vessel, and is now ready to receive the sugár. I therefore require you to ship on board of-her for account of Mr. George D’Wolf, of Bristol R. I. five' hundred boxes of white Havana sugar, consigned to Messrs. Rabaud, Brothers &' Co. of Marseilles, according to your contract of 15th November last: Herewith, is a copy of a letter I addressed to Mr. George D’ Wolf, on the 23d of December last, his answer to which I showed you yesterday; at the same time I gave you a copy.of it. If you prefer to ship the sugar in any vessel other than the Quito, I have no objcction, provided yjju will' designate the vessel, and give notice to me immediately'; and make the shipment without delay.</p> <p>Your, obedient servant,</p> <p>A. E. Belknap.</p> <p>To this letter the plaintiff replied as follows.:—</p> <p>New-York, January 5th 1826,</p> <p>Mr. A. E.'Belknap.</p> <p>Sir — In answer to yoiir, letter of the 4th instant, I have mere • ly.to say, that whenever Mr. George D’Wolf, or any person authorized by him, will pay me for five hundred boxes of Havana sugar, I will ship the same, consigned to Messrs, Ra-baud, .brothers & Co., at Marseilles.</p> <p>Your obedient servant,</p> <p>James D’Wolf Jun.</p> <p>•Evidence was also given, that the brig Quito was engaged early in January 1826 by Mr. Belknap to . carry the sugar to Marseilles, that'she was a'competent vessel for the purpose, and'that the . freight'to be .paid for the transportation of the sugar was the usual and tustomary charge for the saipe.</p> <p>■ The plaintiffs in error objected- at the trial to the reading of tjie letter of 27'ih December 1825, from George D’Wolf to Mr. Belknap, ■vyhich objection was overruled by the Court.</p> <p>On the part of the plaintiffs in. error, at the trial of the cause before tthe'Circuit Court, Frederick G. Bull was introduced as a witness, whose testimony is stated in the bill of exceptions •t'o have been given as follows</p> <p>• That be is, and for nine years past- has been, a confidential clerk in the. employment of the said James D’Wolf, junior; that he was present at the coiinting-room of the said defendant on the 15th day of November 1825, when the interview mentioned and- described in the said deposition of the said George.D’Wolf took place,-between the said George D’Wolf,' the said Andrew E. Belknap, and the said James -D’Wolf, junior; that the said George D’Wolf and Andrew E. Belknap came into the counting-room on "said ÍSth.day of November in company, and were.conversing together; that they there found the said James D’Wolf, junior, and the witness; that after some, little time had-elapsed, the said James D’Wplf, junior, and the witness, withdrew into an inner apartment or ...adjoining, room,-and were in. a few minutes, followed by the said George D’Wolf, and the said Andrew E. Belknap; that while the said. Andrew.. E. Belknap and the said George D’Wolf were in conversation, the latter addressed a question to the said James D’Wolf,. junior, and asked him how much five hundred boxes.of sugar would bring, or amount to, at some specified price; that the said James D’Wolf, junior turned to the witness, and asked him to make the calculation; that the witness did make a hast-y calculation, and gave for answer,' “ about seventeen thousand dollars;”-'that he heard no proposition made by the said James D’Wolf, junior, to the said Andrew'E. Bel-knap, nor by the said Andrew E. Belknap to the said James D’Wolf, junior,.nor any conversation between the said Belknap and the said defendant of any importance, although he thinks that the said defendant did speak to the said Belknap once or twice during the said interview; that the said James D’Wolf, junior, appeared, .'so far' as the witness observed, to take. little or no interest in the conversation or business which was going-forward and taking place between the said George D’Wolf and the said Andrew E. Belknap; that during the time of said' conversation and interview, (.which occupied not more than ten or fifteen minutes,) the-said James D’W.olf,- junior,- left the counting-room for- a short time and .returned; that the said James D’WoJf, junior, is in the habit of communicating all matters of business to the witness, and consulting him concerning the same., and the witness does not-think it at all probable, that the said James D’Wolf, junior, would-have made any contract or agreement with the said Andrew E. Belknap,' either at that time or any other, without the knowledge of the witness; that the said James-D’Wolf,,junior, during part of the time of the said interview, was walking about his countingrfoom, while the said George D’Wolf and the said Andrew E. Belknap were conversing together, and at one time came up to the witness and addressed some remarks to, him; that the witness was writing at the desk, and occupied in his own affairs of business, and did not pay very particular attention to the conversation of the said parties; that the defendant and Belknap "might have conversed on the subject of the sugar without the .witness knowing it; and the witness would not undertake to' say that an . agreement by the- said defendant with the said plaintiff might not have been made without the knowledge of the witness; that the witness does not know, that the said Andrew E. Belknap knew'-that the proceeds of said' bills were to have been remitted to the said defendant, by the said, George D’Wolf, before.the said defendant was bound to ship th'e said sugar; that the said George D’Wplf was, on the 15th day of November 1825, and for a long period anterior thereto, and e.yer since has been, largely indebted to the said James D’Wolf, ■ junior; that the sum.of thirteen thousand- dollars^ for and on. account of the five hundred boxes of sugar -mentioned in the said deposition of George D’Wolf, was never paid by the said.' George to the said defendant, and never came into his hands: that George D’Wolf did, on or cd.iavf. the 23d day of November 1825, remit to the d'efendam, his, George D’Wolf’s, draft for six-thousand dollars, on Isaac Clapp, of Boston, at three days’ sight, and a check upon the United States’ Branch Bank at. New-York, for one tlwicsand dollars; which said -draft and check were both paid, and the amount thereof received by the said James D’Wolf, junior: that the said George D’Wolf did also, shortly after, transmit to the defendant, his, the said George, D’Wolf’s draft upon the said Isaac .Clapp, at thirty days’ sight, for seven thousand dollars, which was received by the defendant, but was never paid, either by the acceptor, the said.Isaac Clapp, or the drawer, the said George D’Wolf; but the same was protested for non-payment, and still remains due and unpaid.</p> <p>The counsel for the defendant below, then offered to prove by Mi'- Bull, that there was an express understanding and agreement between the defendant and George D’Wolf,■ at the time the said letter of the 15th of November was signed by the defendant, that the latter should furnis i the defendant with the funds necessary for the purchase of said sugar, before the said defendant, would be under any obligation to ship the same.</p> <p>This.testimony was not permitted to-go to the jury; the Court stating that “ the defendant below could offer no testimony to the jury, of any arrangement between him and George D’Wolf relating to the funds for the payment for the sugar, unless it should also appear that Mr. Belknap was party thereto, or that the same was brought to his knowledge.” The counsel for the defendant below excepted to this opinion.</p> <p>The defendant below also gave in evidence on the trial, the following letter, containing matter contradictory to the testimony of George D’Wolf.</p> <p>Boston, November 9.8th, 1825.</p> <p>Mr. James D’Wolf, Junior.</p> <p>Dear Sir,</p> <p>I send you my draft on Mr. Clapp for 86000, at three days’ sight, as; he cannot get any drafts or checks on New-York, having tried all-the banks and brokers;.he has not sold the exchange, or any part of it as yet, but thinks he can in three hr four days. Last sales' 19£- cents; money very scarce; the New-Yorkers have sent on a great deal of paper; banks stopt dis-' counting. He will remit you the balance as soon as he sells,’ then, if a draft can be procured; or otherwise will authorize you to' draw on him for the balance: I enclose a check on the Branch for 81000, making 87000 which credit this account:</p> <p>T am ypiir friend and obedient- servant,</p> <p>George.D’Wolf,</p> <p>The case was argued bv Mr. Ogden and Mr. Jonathan Prescott Hall for the .plaintiff in error, and by Mr. Webster; and Mr. Charles C. King for the defendants * ■</p> <p>The defendants in error brought an action of assumpsit in the Court below, against the plaintiff in error, founded upon a special agreement; they are therefore bound to prove the contract stated in the declaration, expressly, as laid. This is a cardinal rule in pleading-. Brum. L. Bay. 755. Hockin vs. Cooke, 4'T. jR., 314. ..The plaintiffs mu-st, in the'first.place, prove a promise from the.'defendant to the plaintiffs, and then, any consideration of benefit to the defendant, or-of injury to the pfain-tiffs; moving between the parties, will sustain the promise. (1 . Moll, Mr. 6.) ’</p> <p>. . It is admitted by the learned Judge, in his. charge to the jury, that 4£ the letter” from; Geo. D’Wolf to the defendant,. dated November 15th, 1825, and upon which the latter subscribed the words “ agreed to,” is the principal evidence in the cause.' This letter, we say, neither proves, nor conduces to prove the promise laid in the declaration. In the first place, the plaintiffs are not parties to the contract contained in the .writing'; and it is a general rule, that no person can maintain an action of assumpsit, upon an agreement to which he is not a party ; for in such case there can be no contract express or implied. Jordan vs. Jordan, Cro. Eliz. 369. Crow vs. Rogers, 1 Strange, 592. Bourne vs. Mason, 1 Vent. 6.</p> <p>The construction to be put upon this letter is matter of law,-¿nd it ought not to pass to the jury without explanation from' the Court. (1 T. R. 172.) This agreement, upon its face, clearly purports to be a contract between George D’Wolf upon the oné part, and James D’Wolf 'jun. upon the other. The words of ' the letter are to be'explained according to their natural import; and'we are not to go in search of conjectures, in order to extend them, when the meaning conveyed by-the terms of the agreement is evident, and leads tb.no absurd conclusion. Chitty'on Com. 4* 'Mar. vol. 3, 107¿ Rowel on Con. title “ Interpretation.” Vattel’s L. of N.. 224.</p> <p>An express contract is; gathered merely from the words of the parties themselves, who are bound to know the meaning which the law will attach to express words. It rests on no uncertain inferences of the.probable meaning- of the parties; but on the actual declaration of intention, made in direct terms. Chitty on Com. fy Mar. vol. 3, pages- 3 and .4.</p> <p>“The letter” judged by these rules, is plainly a contract’ between the defendant-and Geo. D’Wolf, resting upon a consideration passing between them, and the insertion of the names of thé plaintiffs w.as a mere direction, as to whose care the sugar when shipped- should be committed. • The plaintiffs are the mere agents or intended.bailees of Geo. D’Wolf, and have no apparent interest in the subject-matter'of the contract. The-agreement is placed? by the terms made use of, entirely under the- control,of- Geo. D.’Wolf, who has the power of designating a vessel to receive'the sugar. JHe is a party in fact, and a party in interest, and-by- complying with the terms of the agreement-imposed upon him,■ he would have the right,- and-the sole right’ to seek an - enforcement of.the contract. The words *.( for my account,’.’ contained in the letter prove that the agreement was not made with nor for the plaintiffs,'and they, have no author rity for hringing an nation in their-own'names,-for a violation of the contract,</p> <p>- This position may'be supported by dh analogy dra#n- from bills of lading. ' A .bill off lading, expressed in the ordinary form, transfer's • the property absolutely ■ to the consignee, and he becomes, in legal contemplation, the owner of the' goods. But if words areiriade usé .of in the bill of lading, which show that the property of the shipment remains in the consignor, and that the consignee is the .mere;agentor factffr of the consignor ,; then no action for a' violation of the contract contained in the bill of lading, will' lie in the name of the consignee. If 'must be brought in the name of the Consignor. • If .the rights of the consignee, arising from advances, made in expectation of the consignment are violated, he has no remedy upon the contract, but must bring trover, or go; into a Court of Equity. Ev'-' ans vs. Martlett, 12 Mod. 156, Chitty on. Com. %■ Mar. vol. 3. 401, n. 2;-n. 5. Potter vs'. Lansing; 1 John.' 215. Davis vs. Jordan^ S'Burrows, 2680. ■ Sargeaut vs. Morris, 3 B. %■ A, 277.</p> <p>The action mustbe brought in the- narde of the party who has the legal interest in the subject matter of the contract; and a mere equitable right, if any exist, will not support an action1' upon an express agreement to which the plaintiffs are not par-' ties.- If this sugar-had been shipped, it would have been-shipped as’the property of Geo. D’Wolf; who would have, been liable for freight, insuranee,■ and commissions. The property .would have been, at his risk; and in case of the-bankruptcy of the-plaintiffs, Geo. D’Wolf would have had "the right to repay to them the advance received, and' to stop the goods in transitu.</p> <p>“ This not being an action for deceit and imposition, but.on a written contract, the right of the, plaintiffs to-'recover is-measured', precisely by that contract.” Taylóe vs. Riggs, 1 Peters’s Reports of the Decisions of the S. C. 1828, post.</p> <p>2.. The letter upon, its face, is plainly.a contract between the defendant -and Geo. D’Wolf .. It is not negotiable, and the' delivery of it, therefore, to thfe plaintiffs by Geo.,D’Wóíf, gives them no authority to maintain an action upon the agreement in their own names. 1 This instrument'bears no analogy to a bill of exchange: not being made-payable in money and containing no operative words -of transfer. It is a mere executory agreement to slnp merchandise, and if .valid would only subject the. defendant' to damages for'its violation, aá between the original parties'. (Smith vS. Smith, 2 John, 240. Jerome 'vs. Whitney, 7 John, 321. Cooledge vs. Ruggles, 15 -Mass.) If this letter or order had been for the payment of money, but drawn-in its preseiit restricted form, it would not have'-entitled the plaintiffs to. maintain an action in their own names upon, the acceptance or special contract. No instrument in the form of a-bill of exchange, was ever held to be negotiable, unless in some substantial form made payable to'order on the face of it. The law, as laid down in the case of Hill us.-Lewis, (1 Salk: 133,) has always been ad-hered to. (See Girard, us. Da.Costaet al. l Dallas, 144. Down-; ing vs, Backentoes, 3 Carnes, 137. Stephens vs. Hill, 5 Esp. N. ■ P. Cases, 247.)</p> <p>3. This letter being a contract between Geo. D’Wolf and the defendant, is, as between the original parties, nuduni pactum, for the want of mutuality and void. George D’Wolf was not bound to designate a vessel nor to receive the sugar; and it.is a universal rule that a contract cannot bind one party and not the other. tiApromise'ma.y be voluntary, but an agreement to be binding, must contain a mutual engagement. ” Lyon vs. Lamb, Fell, on Met. Guar. 336. 1 Roll. Jib. 23. Coke Lift. 55, a. Doe vs. Smith,.2 T.R. 438. Clayton us. Jennings, 2 -W. B. R. 706. Payne vs. Cane, 3 T. R. 148. Cooke vs-. Oxley, 3 T. R. .148. _ Waine vs. Warlters, 5 East, 16. Kington-us.'Phelps, Peake’s N. P. Cas. 227.. Tucker us. Woods, l&John. 190.-Parkhurst us. Van Cortlandt, 1 John. C. R. 282. Jenkins us. Reynolds, 3 Brod.fyB. 13. Woods us. Edwards, 19 John. 211. McLemore us. Po.well, 12 Wheat. 557. 2 Black. Com. 447. . 1 Fonb. Eq. 383,' n. a. vol. 3, 129. 4 T. R. 764-5: 7 Ibid. 129-131.. 7 Bro. P. C. 184.</p> <p>4. But if-the agreement be no.t void for .want of mutuality; still payment of the value of the sugar to the defendant, is a condition precedent to his undertaking to ship, clearly implied from the face of the instrument, and should have been averred in the declaration. Chit. Plea. 314-J.5. 1 Wm. Sound. 3'~) note4 at the end. Úpm.-Dig. title Pleader C. 51. í T. R./645. 7 Ibid. 121. 1 Sound. 319-320. 1 East, 203, 208, 619. Coivper .vs. Andrews, Hobart, 41. 1 h. Black. 363.</p> <p>5.. The contract of the defendant relative to the shipment of the sugar was,entirely in writing,, and is contained in the letter of-November 15th-I825. If this agreement is free from ambiguity, So as to be capable of a sensible exposition from its own t.erms, without reference to. extrinsic, matters, dehors the instrument itself; then no parol evidence can be introduced to' vary the terms of the agreement, or to change the' parties thereto. Clarkeus, Russell, 3 Dali. 421. Qunni's us. Erhart, iH. Black. 289. Coker us. Guy; .2 Bos. fy Pull. 565. -Thompson us. Ketchum, 8rJohn. 146. Gilpins vs. Consequa, l.Pet.R. 87. Dean us.. Mason, 4 Qgn.R. The N. Y. Ins. Co.us..Thomas, 3 John.-Cas. 1. Jackson us. fcroy, 12 John. 427. ÍÍ Mass. 9,7. 2 Brow. Ch. 219. Peake’sEv, Í17. Vandevoort ús. .Col. Ins. ,Co. 2 Caines, 155. Mumford us. .McPherson, 1 John. Rep. 418. Brigham us, Rogers, 17 Mass. Po.well us. Edmunds, 12 East,. 10. Jackson us. Sill, 11 John. 216, Parkhurst us, Ván Cortlandt,- l.J. C. II. 283. Hampshire us. Pierce, 2 Vez., 2161 Jackson us. Hart, 12 John. 17. Grant; us. Naylor,.4. Cranch, 224.</p> <p>6.-' But if there is any doubt upon, this subject, and the parol evidence be admitted to explain the agreement, then we say, that neither the parol proof, nor ‘Uhe letter” taken in connexion with the parol proof, can sustain the plaintiffs’ declaration. — Í» Because there is no proof upon the_record, that the defendant-ever made the' promise set.forth in the declaratioiv either to Or for the plaintiffs: but on the contrary, the evidence is conclu- . sive that the very promise, claimed by the plaintiffs to have been made to them and for their benefit, was made by the defendant to George D’Wolf,- and for his benefit. The defendant having moved for a nonsuit at the trial, has aright to examine the testimony- üpon this point at this time, in the same manner as upon. the original motion. If .the testimony offered in evidence by the . plaintiff, be insufficient, in-point of law, to sustain his declaration, the defendant has a., right to call upon the Court to non-suit the plaintiff. Swift ns. Livingston,'2./0A». Cases, 112. Clements vs. Benjamin, 12 John. 298: Prátt vs. Hull, 13 John. 298. . Crook shank-us. Gray,.20 John. 350.</p> <p>' 2. The consideration upon which the defendant’s promise was .made, is entirely different from that set forth in the declaration,”' and this-is,a fatal variance. "(King vs. Robinson, Cro. Eliz. 79. Com. Big.vol. 1, 334, title,, action upon the case upon'assumpsit.)</p> <p>3.-, Were there any -doubt-upon these .points, the defendant • ought to have been permitted to remove- them by the testimony óf Mr. Bull: If it be contended that this promise, although not made directly■■ to the'plaintiffs, was -nevertheless-made to Geo. D’Wolf for .their benefit; then the testimony offered by the’defendant at the trial, ought to. have been received to contradict •this assertion.</p> <p>4. vBut the- promise-contained in the letter,, if made to Geo. D’Wdlf for the benefit of the plaintiffs, will not sustain the declaration,.unless he-cah-be,considered as' theunere agent of the plaintiffs; and this supposition is contradicted, not only by the words.of the instruméht' itselfj but by the plaintiffs’ own witness. [The counsel here referred- to and commented on the following cases: Dutton vs. Pool,.2 Lev. 210. Schermerhorn vs. Vandérheyden, 1 John. Rep. p. 9. Felton ns. Dickenson,-10 Mass. 287. Piggott vs. Thompson, 3 Bos. fy Pull.;149, and thé note.. Martyn vs. Hynde, Cowp.AM. Com,Of-Feltmakers'us. Davis, (1 Bos. Pull. 102.) 3 Salk. 234. Comí. 450. 3 T. R. 757. Chitt. on Plea, vol. 1, p: 4. Com. Diges. vol. 1, p. S09 and the note pi, title action . upon the case upon assumpsit."].' Indeed in the case of a written contract u inter partes,” no other than an immediate party to the. instrument itself, can maintain an. action upon -it. (Offley vs. Warde, 1 Lev. 235. Gilbey vs. Copley, 3 Lev. 139. Salter us. Kingsley, Carth. 77.) .</p> <p>If Geo. D’Wolf was tne agent, of the .plaintiffs, then they are bound by his acts, and' must place the proceeds of the bills of exchange in the hands Of the defendant, according to George D’Wolf s express promise,, before he will be under any obligation to ship the sugar.</p> <p>7.- No vessél .has.ever been designated by George D’Wolf, on board of which, the defendant has been required, by. George D’. Wolf, to ship the- sugar; and until such designation, no right,of action will accrue in favour of any pérson against the defendant. The letter of George D’Wolf dated December 27th, 1825, and. addressed to Á. E.. Belknap, (relied upon by the counsel, for the plaintiffs to prove an áuthority in Belknap .to designate a vessel as the agfent of.George D’Wolf,) is insufficient for that purpose! It gives Belknap no such authority.; and besides, George D’Wolf had no right, legal or moral, after , his bankruptcy, and-after failing to. place funds in the. hands of the defendants, either for the purchase or payment .of the sugar, — to call upon tíim to ship the . same, consigned to the plaintiffs at Marseilles.</p> <p>8. The'agreement of the .defendant relative to the shipment of the sugar, [f made with the plaintiffs at- all, was., collateral to an undertaking oh the part of George D’Wblf that he would, cause the sugar to be shipped by the defendant, in considerationbf an authority to! be given to" him to draw hills .of , exchange upon the plaintiffs, for hiá .own .benefit;- For thé.nóhfulfilment of this promise, George D’Wolf was and is liable, and the defendant’s undertaking is essentially a guarantee, given in aid of George D’Wolf’s credit, or for. the performance of' an act which' he was bound by a promise, confessedly original,', ■to perform.-, .Frcim. the.performance of this 'promise George D’Wolf has .never been- exonerated,. and the defendant’s Under-. taking, is collateral to-that of ..George D’Wolf.* The testimony of the plaintiffs- is''.therefore inadmissible hnder . the statute of . frauds, to’ prove their declaration for the want of a sufficient memorandum ofthe agfeement, in writing. Whatever doubts?may have existed; upon .this subject, it is now well settled, .that in / cases under the afatute.of. 29 Char.- 2, Chap.- 3,' sec. 4 (i-iV* K ' Beviied Laws page.78,. chap¿ 44, sec.: XI) the cónsideration upon; which the agreement rests as well as the promise itself, mustap- • •pear upon the writing: Wain us. Warlters, 5 Bast,-16.' Lynn vs..Lamb, Fell, on Guar,.- Saunde’rs.us. Wakefield, 8 5.’ <§* Sid. 595. Jenkins vs. Reynold, B. Sr Bing.,p, 14..Jean vs. Prink,, 3 John. 211.. Leonard v.s. Vredenburg, 8 JcM. 27. Stewart, vs.. M’Givin, 1 Cow. ■ 99. Sioan vs .Wilson, 4 ffdn- Sr John. 322; Stephens, Ramsay & . Co. vs. Winn, 2 Nott fy AT Cord 5>7%</p> <p>1. As this cause is brought here by a writ of error, we'apprehend that the Court will -not go into an examination of the weight of the testimony.' The verdict of the jury is conclusive, that the defendant made the agreement stated in the plaintiffs’ declaration.</p> <p>,Tt is unnecessary now to in quire,, what wasthe agreement between the defendant and George'D’WpIf,'.or whether that agreement cbuld.be enforced — and it was equally so at the trial, unless that agreement was- brought home to the knowledge of Belknap, so as- to.become a part of the defendant’s contract with the'plaintiffs.</p> <p>2. But aside from the verdict — The testimony proved the contract as laid in the declaration. Tf we putthé case upon the verbal agreement between the parties, as we contend that we may, (3 Dali. 300) then the testimony of -George D’Wolf clearly made out our case.! The letter is only corroborative of the verbal agreement If-we go upon the written contract as contained in the letter of the 15th November 1825; then we contend, that the written agreement is in its terms as much an agreement with, the plaintiffs as with George D’Wolf, and may entire to their benefit.. If the letter Bad not expressed that the s'u-gars were to -be shipped for the account of George D’Wolf, the agreement of the defendant would have been a mere undertaking with the plaintiffs.</p> <p>.Rut, for the purpose' of this action, it is sufficient, that the agreement contained in the letter of the 15th November, was in fact made and entered into by the defendant for the use and benefit of the plaintiffs. That it was so., was fully proved. They advanced the consideration • of the undertaking in the faith of its being performed; and the defendant, at- the time when he signed the letter, knew, "that it was to be delivered to Mr. Bel-' knap, who on its credit would authorize George D’Wolf to draw the-bills.</p> <p>It was not necessary, in order to entitle, the plaintiffs to maintain their action,-that George D’Wolf should have been a mere agent without interest. ' The cases cited' do not support. the position of the counsel. The rüle is, that if the promise is made to A for the benefit'of B, from whom that' consideration moves, the law will intend 'hat A is the iriere agent of B. (1 Com. Dig. action on, the case assumpsit. E 8/- note, Weston vs. Barker, 12 John. :Rep. 276. Lawson m.,Mason,.3- Cranch^ 492.)</p> <p>3. The main question, and that which involves the merits of this causé, arises upon that part of the. charge of the-learned Judge, in which he instructed the jury “ that if the undertaking of the defendant was entered into at the same time with that between Belknap and George D’Wolf, so as to form one entire transaction, then the consideration of the defendant’s undertaking might be proved by parol.”</p> <p>It is condeded that if the undertaking of the defendant was original, and. not within the statute-of Frauds, parol evidence of the consideration was admissible. If the consideration be ' stated in connexion with the-written agreement,' the undertaking is in. its terms direct to the plaintiffs; and. nbthing more remains to be supplied by parol evidence. But, if it were necessary, párol evidence was. admissible.to prove the res gesta, arid purpose of that letter arid agreement. ' Bateman vs. Phillips. 15 East, 272; 7 Taunt. 295. -5 Wheat'. 326.</p> <p>But it is- contended, that the undertaking of the defendant,</p> <p>(if an undertaking to the plaintiffs,) was a collateral agreement within the statute of Frauds.; arid that the consideration as well as‘th:e promise, must be in writing, in order to be binding upon the defendant.</p> <p>■ Admitting the law to' be now settled by the English-cases, as we say it ought not. to. be, we contend, that if the general proposition which Was first laid down by Lord Ellenboroúgh in the case of Wain vs. Warlters, can be maintained, still.our case cannot in any víéw of it be brought' within the principle of. that case.</p> <p>In Wain u's. Warlters, the defendant undertook to pay the. previously subsisting debt of another person, upon a netfi consideration ; that the' plaintiff would forbear to sue. .In the present case, the jury, have expressly, found that the arrangement between Mj. Belknap, and George D’Wolf, as to the authority to draw on'the house in Marseilles, on the shipment and consignment of the sugar, and the undertaking of the defendant to make that .shipment, were.-made and entered, into at one and the- same time, so as to form one 'entire transaction; and that the authority given-by Mr. Belknap-.to Ge.orge D’Wolf íq draw-on the plaintiffs' for. 100,000 frahcs,was the consideration of the entire agreement. If then the undertaking of the defendant was collateral and within the statute of Frauds, it was simultaneous with the original undertaking, and. supported by the same consideration — and upon the authority of Leonard vs. Vredenhurgh, (8 Johns. Rep. 29,) the parol evidence of the consideration was admissible. Leonard us, Vredenburgh was decided upon ' deliberate consideration, and has been followed and confirmed in- the subsequent cases, (Bailey vs. Freeman, 11 .Johns. Rep. 221. Nelson vs. Dubois, 13 Johns. Rep. 175, j. and it is regarded ás settled law in the state of New'-York.</p> <p>4.’-The undertaking of the defendant was not, collateral in any sense'; but was an original undertaking, exclusively his. .and need pot have been in writing.</p> <p>By agreeing to- ship the sugars and to consign them to the' plaintiffs, .on the account of Gep, D’Wolf, the defendant did not undertake .to pay any debt of George D’Wcilf, then existing, or'about to• be created. ■ Th'e defendant was the only person who undertook or was bound to make the shipment. He did not engage, that Geo. D’Wolf should ship the sugars, or that he would' ship on the default of .George; but- he assumed ■the entire and exclusive responsibility of providing and ship-, ping.the five hundred boxes, according to the terms of the letter..</p> <p>5. The letter, from George D’Wolf’ tó Mr. Belknap, dated at Bristol on the 27th December, ,1828, constituted Mr. Belknap the agent-of George D’Wolf for the purpose of naming the vessel; on board of. which the defendant was to make the ■ shipment. It was intended as' an authorization for that purpose, and w-as. regarded as such both by Mr. Belknap and the defendant. But whatever objections might have been made by the defendant,4 cither to the sufficiency, of. that authority, or to the right of Georgé'.D’Wolf, after his bankruptcy, either to name^ the.;vesselj or -t-o authorise Mr..’Belknap, or . any "other person to do so,-they-were waived by .the "defendant in his letter to Mr. Belknap,. under the date of-the 6th of January; 1826, pvherejn he-puts his refusal to ship "the sugars on'the single grpunci, that they had not been paid for.</p>

THE lessee of Richard B. Mason commenced an action of ejectment in the Circuit Court for the district of Kentucky, against John, Davis and others. tenants in possession, for the recovery of eight thousand acres of land, claiming, to recover thei same under a right of entry under, and by virtue of a grant from the state of Virginia to George Mason.of Fairfax, dated 19th of March 1817. • William Mason and others conveyed, by deedj .their interest in and to the land in contest,…

American Insurance Company v. Canter, 26 U.S. (1 Pet.) 511 (1828), was a case decided by the Supreme Court of the United States. The case involved the validity of a local court established by Congress in the Florida Territory whose judges lacked life tenure, as mandated by Article III of the Constitution. Chief Justice John Marshall upheld the courts on the basis of Congress's broad power to enact local laws for territories under Article IV, Section 3, Clause 2 of the Constitution. The case was later discussed in Dred Scott v. Sandford, where Chief Justice Roger Taney distinguished it in holding that Congress could not ban slavery within a territory.

United States v. 422 Casks of Wine, 26 U.S. (1 Pet.) 547 (1828), is an 1828 United States Supreme Court civil forfeiture case between the United States and 422 casks of Malaga wine. The case was brought after the United States moved to seize the wine on the grounds that it had been deliberately mislabeled as sherry to get a tax drawback, and the buyers objected. The original trial was ruled in favor of the United States but was ordered to be retried after errors were discovered concerning jurisdiction. In the subsequent retrial, the Supreme Court ruled against the United States; however, it did grant a certificate of seizure on probable cause.

THIS was a writ of error to tlie Circuit Court of the United States for the district of Ohio, to reverse the judgment of that Coúrtán favour of the defendant in error, in an action of ejectment instituted by the plaintiff in error, to recover a tract of land in Perry county, in the state of Ohio..

The defendant obtained letters testamentary on the estate of .Thomas C. Hodges deceased, and passed his accounts in the Orphans’Court of Washington county, in which he was allowed 10 per cent, commission on the inventory of tire deceased’s estate; amounting to §2358 70, and §1200 for services rendered by him to the deceased.

Messrs. Jónos and Key, moved t.he Court for a mandamus Xa-be directed to the.

<p>The testator devised to his son Joseph Eden certain portions of his estate.iii New York, •among' which were the premises sought to be recovered in this suit,-to him, his heirs, executors and administrators for ever. In like manner he devised to his .son Medcef, his heirs and assigns, certain other portions of his property i and adds the following clause: “It is my will and I do order and appoint, that if either of my sáid sons should depart this life without lawful issue, his share or part shall go to the survivor. And in case of both their deaths without lawfhl issue, I give all the property aforesaid to my brother John Eden, of JLofters, in Cleveland in Yorkshire, and iny sister Hannah Johnson, of Whitby, in Yorkshire, and their heirs.Medcef Eden died without issue, having devised his estate tó his widow, and other devisees named in Jus'will.-. According to the established law'of New-York, nothing passed, under the ulterior devise over to John Eden and Hannah Johnson"; Medcef Eden on the death of his brother Joseph Eden became seised of an estate in fee simple absó- . lute. {571}</p> <p>Adverse possession taken and held under a sheriff’s salé,, by virtue of judg- • ments and executions against Joseph Eden, will not, according to the decisions of the Courts of New-York; prevent the operation of a devise by another, in whom the title to'the estate -was vested by the death of the defendant in the'executions. {571}</p> <p>It has been the uniform course of this.Court, with respect to titles. to real' property, to. apply the same rule that is applied by the state tribunals in like cases. {571}</p>

This was , an action of debt, brought in the Circuit Court of the United States for the district of Maryland, at May Term 1825, to recover 3067 dollars, being the debt, damage's, costs, and charges, contained in a certain judgment between the same parties, recovered by the United States in the District Court of Maryland,’at March 'Term 1819.

THIS was an appeal, by the. complainants, in a bill, filed in the Circuit Court for the county of Alexandria, - upon which a decree was rendered in favour of the defendants,” appellees in this Court. . The complainants by their bill sought to make the real estate of George Deneale'liable for the payment of their debt.

WRIT of error to the Circuit Court for the county of Washington.

THIS was a writ of error brought to reversé a judgment rendered in the Circuit Court of the United States,-for the District of Ohio, in favour of the Bank of the-United States, the present defendants in error. The declaration contains a common count for money lent and advanced. The plea is non assumpsenmt.

THIS was an -appeal, from the Circuit Court of Ohio, by the .¡complainant in that Court, on a bib filed in the Cháncery side.of the Court; the object of which was, through the aid of that Court,'tp ofitain a conveyance of á tract of land, situated in the state of Ohio.

' The plaintiff brought an-action hf ejectment,'in the Circuit Court'of Ohio, to recover á tract-of land, situate in Adams county, in the Virginia! military district, and state of Ohio. On the trial of the cause, a bill óf exceptions was tendered by the plaintiff, to the opinion, of > the .Court úptíp the admissibility of certain testimony, Which was-offerecL-by. the plaintiff,- and which was rejected by the Court.

THIS was- an appeal from a decree in equity, of the Circuit ' Court for the county of Washington, against Robert Barry the appellant* upon a bill filed by Griffith Coombe, for the specific execution'-of a contract for the sale of real, estate in the city of Washington, and for the payment of the balance of an account, which it was alleged had been settled and agreed upon by the parties." Thq material charges in the bill, and.which were brought into the eoits.ideration of the…

This action of.' ejectment was originally instituted ;by the lessee of .the defendants in error, in the Circuit Court of' the state of Mississippi, citizens of that stated against Allison Ross, the .plaintiff in.error, to recover a tract of land lying in that -state.

the United States for the District of South Carolina. /The .appellees, oomplaiiiants in the.Court below, on behalf of Jane Heath, the wife of James P. 'Heath,' and of her children, filed a bill ■ in/the Chancery side, of the Circuit Court of the United States for the District of South Carolina, .against Ann Pray, executrix,' J. J.-Maxwell, and George Waters, executors of the last will of John Pray deceased, for the recovery of a legacy to- which Jane Heath was entitled under…

ERROR.for the Circuit Court of Alexandria. This, cáse was argued by Mr. Swann, for the plaintiffs,- and Mr. Jones, for the defendant. ■ The material facts of the case appear in the opinion of the Court;

Held: that the debt due upon the judgment obtained in Pennsylvania, by the plaintiff as administrator of W., was due to him in his personal capacity, and it was immaterial whether the defendant was or was not administrator of W., in the state of Mississippi.