Volume 28 — United States Reports

In the circuit court the testator of the defendant in error Richard W. Meade, instituted an action against Richard R. Keene, the plaintiff in error, for money lent and advanced to him in Spain, where Mr Meade, at.the time of-the.loan, resided, and carried on business as a merchant. In order to establish the claims of the plaintiff below, a commission was issued to Cadiz;, and under the same, certain depositions were taken, which were returned with the commission.

<p>When money of the United States has been received by. one. public agent from another public agent, whether it was received in an official or private capacity, there ^an be no doubt but that it Was received fo the use of the United States; and they may maintain an action against the receiver for the same; [28]</p> <p>B. a deputy commissary general of the United States received from M.'a deputy, quarter master general of the United States the sum o,f $10,000, and acknowledged the same by a receipt signed by him with his official description. The United States had á right to treat M. as their agent in the transaction,.by making B. their debtor, and to an action brought .against him for money had and received, the statute of limitations is' no bar. [29]</p> <p>An account stated at the treasury department which does not arise in the ordinary mode of doing business in that department, can derive no additional validity from being certified under the act of congress. A treasury Statement can only be regarded.as establishing items for moneys disbursed through the ordinary channels of the department, where the transactions are shown by its books. In these cases the officers may well certify, for they must have official knowledge df the facts stated. [29]</p> <p>But when moneys'come into the. hands of an individual, not through the officers of the treasury, or in the regular course of official duty, the books of the treasury do not exhibit the facts, nor can they be known'to the officers of-Ahe department. In such a case the claim of the United States for money thus in the hands of a third person must be established, not by a treasury statement, but by the evidence on which that statement was made. [29]</p> <p>In England any instrument or claim, though not negotiable, may be assigned to the king, who can sue upon it in his own name. ;..No valid .objection is perceived against giving the same effect to an assignment to the government df this country. ' [30]</p> <p>Whete, before the transfer to the United States of an instrument which was the evidence of debt, the term of five years had elapsed, the period after which the statute of limitations was a bar, it can require no argument to show that the transfer of such claim to the United States cannot,give it any greater validity than it possessed before the transfer.. [30]</p> <p>In the correct order of pleading it is necessary, that the facts of the plea should be traversed by the replication, unless matter in'.avoidance be set up. It is not sufficient that the facts alleged in the replication be inconsistent with-those stated in the piea; an issue must be taken on the material allegations of the plea. [31]</p> <p>This court, has'repeatedly decided, that the exercise of the discretion of the court below, in .refusing or. granting amendments of pleadings or motions for new trials, affords no grounds for a writ of error. In overruling a motion for leave to withdraw a replication and. file a new one, the court exercised its discretion ; and the reason assigned, as influencing that discretion, cannot affect the decision. [31]</p>

WRIT of error to the circuit-court for the district of Louisiana. Mr Ogden moved to dismiss the writ of error in this case, on the ground that the court had not jurisdiction of the cause, the sum in controversy not amounting tor two thousand dollars, the amount for which a writ, of. error' [s allowed. He stated, that the action was instituted for the violation ef a patent, and tne amount of the recovery- in damages was four hundred dollars, by the verdict of .the jury.

Held: that uhder that custom the note was not due and payable before the sixty-fourth day, for until that time the makoc&pildnot 'be in default. [40] Where it was the practice of the party who had a sixiy day note discounted at the bank of Washington, to renew the note by the discount o.' another note on the sixty-third day, the maker not being in fact bound to pay the note according to the custom prevailing in the…

An action of trespass fo try titles was brought in the circuit court of South Carolina, on the 20th of April 1822, by the defendant in error, against the plaintiff in this court, for the recovery of six hundred acres of land situated on the Savannah river. The title claimed by the plaintiff below and the evidence are fully stated in the opinion of the court.

The brig Josefa Segunda, a Spanish vessel, proceeding with a cargo of negroes from the coast of Africa to the island of Cuba, was captured On the 11th day of February 1818, off St. Domingo, by a regularly commissioned Venezuelan privateer, and on the 24th of the following April she was seized in the. river Mississippi, by custom house officers of the United States, carried* to New Orleans, and there the vessel and negroes were libelled, at the suit of. the United States, in…

<p>Where an appeal has Been dismissed, the appellant having omitted to file a transcript of the record within the time required by the rule of court, an official certificate of the dismissal of the appeal may not be given by the clerk during the term. The appellant may file the transcript with the clerk during the term, and move to have the appeal reinstated.. To allow such a certificate would be to prejudge such a motion.</p>

Held: that C. & Co. were entitled to recover damages for the breach of. their orders; ..that their not having given notice to B. & Co. that the paper would be considered as sold on their account, did not injure their claim ; and that the amount of the damages may be determined by the positive and direct loss arising plainly and immediately from the breach of the ' orders.

Held: that the indorser was discharged, and his having become the administrator of the drawer does not relieve the holder' from the obligation to demand payment of the note, and to give-notice thereof to the indorser.

WRIT of error to the district court of the western district of Virginia. This case was argued by Mr Doddridge, for the plaintiff in error, no counsel appearing for the defendant. He contended :. 1. That Wilsoii does not prove the making of any actual survey of the three last lines, and all that he does prove is that he protracted them. 2..

Held: under advisement until the present term. It was a writ of right, brought in the circuit court, for the recovery of certain real estate situate in the city of New York, whereof Robert Richard Randall died seised and possessed. *102 The. count was upon the seisin of Robert Richard- Randall, and went for the whole premises.

THIS case came before the court on a petition for a habeas •corpus, on the relation of Tobias Watkins, setting forth that at May term '1829 of the circuit court of. the district ¡of Co-' íumbia-, in thé.county of Washington, certain, presentments werefoundagainst him; upon three of which trials .were had, and verdicts passed against him; upon which judgments were pronounced,- purporting to condemn him to the payment of certain,,pecuniary fines and costs, and certain terms of…

Held: that it is merely declaratory, making no alteration whatever in the rulés of equity on the subject of legal remedy. It is not enough that there is a remedy at law; it must be plain and adequate; or in other words, as practical and as efficient to, the ends of justice and its prompt administration, as the remedy in equity.

Held: that there was no érror in these instructions. What is barratry.

THIS was a writ of error from the supreme court of.appeals in law and equity, in and for the state of South Carolina, ^ The suit arose out of a partition of a tract of land in the state of South Carolina; the. right of the plaintiffs in..error to a moiety having been denied on the ground of their alienage, and their consequent incapacity to inherit the same.

In the circuit court of Ohio; the plaintiff in error instituted a suit on the 15th of December 1823, against the defendant, who was register of the United States land office at Zanesville, to recover damages for having, as register, refused to enter an application in the books of his office; for certain lands in his district; the entry having been required to be made according to the provisions of the tenth section of the act of congress, passed the 18th pf May 1796,…

THIS was a writ of error to the court for the trial of impeachments and correction of errors forthe state ofNew York. An action of ejectment was commenced in the supreme court of New York, to May term 1825, for a tract of land, part of lot numher thirty-six, in Dryden, Tompkins county, part of the military tract, and formerly part of Onondaga county.’ The cause was tried in June 1826, and á verdict and judgment were rendered for the defendant.

Held: that the attachments issued cut of the court of common pleas of the county of .Suffolk, did not affect the rights of the United States to hold the merchandize until the payment of the duties upon them; and that the merchandize was not liable to any attachment by an officer of the state of Massachusetts, for debts.due to other creditors of George D’Wolf andlohn Smith.

Held: that the question of a claim of damages by Canter is not open before this court. The decree of restitution, without -any allowance of. damages, was a virtual denial of them, and a final decree upon Canter’s claim of damages. It was h s duty, .at that time, to have filed a cross appeal, if he meant to rely on a clain to damages; and not having done so, it was a submission to, the decree of resi'tuijon and costs only.

'ERROR to the district court of the western district of Virginia.

district court of the United States for the western district of Virginia. This was an ejectment brought in the district court of the western .district of Virginia,'and the question involved in the suit was the cohstruction to be given to the will of William King, deceased, formerly of Washington county in Virginia.

<p>Certified copies of the opinions of the court, delivered in .cases decided hy the .. court, are to be given by the .Repórter-; and hot by the Clerk of the court.</p>

Held: that the plaintiff, by voluntarily, making himself .a. parly to those proceedings, abandoned h(s extraterritorial immunity from the.operation of the bankrupt law of Louisiana; and was bound by that law to the same extent to which the citizens of Louisiana were bound.

Held: that P. was not liable to pay the bills; [426] The general rule is, that a principal is bound by the act of his agent no further than he authorises that agent tb bind him ; but the extent of the power given to an agent is decided as well from facts as' from express delegation.

Mr Vinton moved to amend the judgment of this court rendered in this cause at the January term of 1829; 2 Peters, 318; by giving to the defendants in error* damages on the judgmentjat the rate of six per centum per annum, and that the judgment of the court be so reformed. Mr Vinton stated, that the mandate, though issued, had never been presented to the circuit court, and it was now in this court.

<p>ERROR to the eastern district of.Louisiana.</p> <p>This suit was originally brought in the parish .court oí Ne'w Orleans by the défendants in error, by a petition for an attachment against the property of the defendant in the suit; apd wás removed into the district' courtof the United States for the eastern'district of Louisiana, the defendant being, a citizen of- the state of Massachusetts;</p> <p>; The object, of the suit was the recovery of the amount of certain sales of tobacco,, made by the-plaintiffs to a certain Eben Fiske, represented in the petition, to, be the agent'and. factor of the defendant; and for which he drew bills of exchange ori the defendant, and which bills were refused acceptance and payment. After an answer had been filed, the case was submitted to a special jury, and, a verdict was rendered for the ¡plaintiffs for $6414.</p> <p>The proceedings , in the Case were instituted and conducted according to the laws of Louisiana, which conforrti in a great degree to the principles and practice nf the civil law.</p> <p>On the trial, the plaintiffs produced the bills of exchange mentioned in the petition, and many letters written by the • defendant to Fiske, The defendant introduced^ as testimony, other letters written, as above; and also the récord of a suit brought by the-plaintiffs against Fiské, on the same bills, in which they charge, on oath, that the sale was made to Fiske, and that he was their, debtor; all which written testimony was, according to the practice of the state courts, filed in court, and forms part of the record.</p> <p>The plaintiffs also produced Fiske as a witness, to prove that he acted only as agent for the defendant, arid to make him a witness, gave a full release of all claims on him. He was objected to; but the court overruled the Objection, and a bill of exceptions was tendered and signed.</p> <p>By the twelfth section of an act of the general assembly of Louisiana, passed the 20th of July 1817, entitled an act “ to amend the several acts passéd to. organize the court of the state, and for other purposed,” it is among other things enacted, “ that when any cause shall be submitted to a jury to be tried, the verbal evidence shall, in all cases where an appeal lies to the supreme' court, if either party'require it, and at the time when the witnesses shall be examined, be taken down in writing by the clerk of the court, in order to be sent up to the supreme'court, to serve as a statement of facts in case of appeal; and the written evidence produced by both parties- shall be filed with the proceedings.”</p> <p>By a law of the United States, passed the 26th of May 1824, the mode of practice pursued in the state courts is directed to be followed in the courts of the United States in Louisiana.</p> <p>Under the provisions of these laws, the defendant applied to the court to direct the clerk to take down the verbal proof offered in the cause, or to suffer his counsel, the counsel of the plaiñtiffs, or the witnesses, to take it down'; which the judge refused to do: whereupon a bill of exceptions was tendered and signed.</p> <p>A motion was made for a new trial, which was overruled ; and a judgment was entered for the amount of the verdict. This writ of error was then prosecuted.</p> <p>The/plaintiff in error contended:</p> <p>1. That from the facts apparent on the record, the plaintiffs had no right of action against the defendant, and that therefore this court will decree a judgment to be entered in favour of the defenaa. t.</p> <p>2. The court will, at least, réverse this judgment, and award anew trial, for one or all of the following reasons:</p> <p>1. Because the court refused the evidence tq be put upon the record.</p> <p>2. Because the whole question was a question of law, ánd the decisión was against law.</p> <p>3. It is not, strictly,, a common law. proceeding, but a proceeding under the peculiar system of Louisiana; and, According to that system, the court has pbwer to reverse the judgment, under circumstances which would not give it that power when the trial had been according to the ciommon law.</p> <p>The -case was argued by Mr Livingston and Mr Webster for the plaintiff in error, and by Mr Jones for the defendants.</p>

MR BENTON moved the court for leave to reinstate this case, which had been dismissed on a former day of the term for want of an appearance of the plaintiffs in error. At the first term, when the writ of error was filed, the clerk of the court had entered the appearance of the attorney general of the United States, according to the usual prac- . tice in such cases.

<p>ERROR from the district court of Missouri.</p>

Held: that he was not entitled to recover. That a prior indorser is, in tjie regular course of business, liable to his indorsee, although that indorsee may have afterwards indorsed the note, is unquestionable. When he takes up the note he becomes the holder as entirely as if he had'never parted with it, and may sue the indorser for the amount.

Held: utterly void for want of a person having a sufficient capacity to take as devisee( b ).' The statute of Elizabeth in favour of charitable uses .cured this defect( c ), arid-provided (as we shall hereafter have occasion more immediately-to consider) a new mode of enforcing such uses by a commission under the direction of the court of chancery.