Findlay v. Hinde. 1 P.

ought to be specifically decreed. He might insist the purchase. money had not been paid, or make various other defences. It is not true that, if he were made a party, no decree could be made against him. It might not be necessary to require him to do any act; but it would be indispensable to decide against him the validity of his obligation to convey, and overrule such defence as he might make; and if the purchase-money had not been paid, to provide by the decree for its payment, before any decree could be made against the defendants holding the legal title. We are all of opinion that upon this second preliminary objection, the decree of the circuit court must be reversed.

A question of some difficulty presents itself as to the extent of the reversal. The decree of the circuit court directs the defend[*247] ants, Ritchie and Vattier, to convey certain portions *of the lot of ground, and awards costs generally against all the defendants. There is no doubt the defendants, against whom there is only a decree for costs, could not appeal alone from the decree of costs. But the defendants below have all appealed together, and although some of them hold the legal title to the lot, yet they all have an interest in defending the title, standing as they do in the relation of vendors, and warrantees, and vendees. Under these circumstances we think the reversal should be general, as to all of the appellants, and the whole case opened. And we are the more inclined to adopt this course, because so numerous and so great have been the irregularities in conducting the cause in the court below, from its commencement to its termination, by decree, that it seems impracticable that justice be done between the parties without sending the cause back as to all the parties, with directions that the complainants have leave, if asked by them, to amend their bill, and make the proper parties; and to proceed de novo in the cause, from filing such amended bill.

This cause came on, &c., on consideration whereof it is the opinion of this court that there is error in the proceedings and decree of said circuit court, in this, that Abraham Garrison ought to have been made a party, but was not, before a decree was made between the parties in the cause. Whereupon it is adjudged, decreed, and ordered, that the decree of said circuit court for the district of Ohio, in this cause be and the same is hereby wholly reversed, annulled, and set aside. And it is further ordered, that the cause be remanded to the court from whence it came, with instructions to permit the complainants, upon application for that purpose, to amend their bill, and to make proper parties, and to proceed de novo in the cause, from the filing of such amended bill, as law and equity may require.

Old Grant v. M'Kee. 1 P.

OLD GRANT, on the Demise of Samuel Meredith, Plaintiff in Error, v. JOHN M'KEE, for the Use of the Bank of the Commonweath of Kentucky.

1 P. 248.

Where a recovery of a tract of land was had, in an action of ejectment, and a writ of restitution was awarded of a small portion thereof, of less value than $2,000, this court has not jurisdiction of a writ of error which brings up only the proceedings touching such restitution.

WICKLIFFE moved to dismiss.

MARSHALL, C. J., delivered the opinion of the court.

This is a writ of error to a judgment of the court of the United States for the seventh circuit, and the district of Kentucky, awarding restitution of lot No. 108, in the town of Falmouth, to the defendants in error, who had been turned out of possession by virtue of a writ of habere facias possessionem, issued on a judgment in ejectment in favor of the plaintiff in error.

Previous to the institution of the suit, the town of Falmouth had been laid out in pursuance of an act of assembly, and lot No. 108 had been sold and conveyed to George Hendricks. The law establishing the town of Falmouth, directed that the lots should be sold, subject to the condition of making certain improvements thereon, within seven years; on failure to do which, the trustees are empowered to enter on any lot not improved, and sell it again. These improvements were not made on lot No. 108.

The defendant in error moves to quash the writ of error, because the matter in controversy is not of the value of $2,000. The motion is resisted, because the whole property which was recovered in the ejectment may be considered as involved in this motion; since each tenant may move separately for an award of restitution, on the supposition that the regularity of the proceedings, under the law by which the town was established and the lots sold, may be exam- [249] ined. On this motion, the plaintiff in error has brought that subject into view, and has discussed it fully. But the court is of opinion that the question of title cannot be considered on this writ of error. The town of Falmouth was separated from the tract out of which it was taken, and this lot was sold before the suit was instituted; neither the trustees of the town nor the proprietors of the lot were parties to that ejectment. The motion to award restitution, therefore, involved nothing further than the lot to which the party prayed to be restored; and as that is not of the value of $2,000, the court has no jurisdiction. The writ of error is to be dismissed.

Writ of error dismissed for want of jurisdiction, it not appearing that the value of the premises in this suit is $2,000.

Konig v. Bayard. 1 P.

WILLIAM KONIG, who is an Alien, Plaintiff below, v. WILLIAM BayARD, WILLIAM BAYARD, JR., ROBERT BAYARD, AND JACOB LE ROY, Citizens of the State of New York.

1 P. 250.

An acceptor, supra protest, for the honor of the indorser, may, on payment of the bill, recover of the indorser, though he accepted at the instance of the drawee, and as his agent, provided the indorser is not damnified by this indirect mode of proceeding on the part of the drawee.

THE case is stated in the opinion of the court.

Webster and Hoffman, for the plaintiffs.

D. B. Ogden and Oakley, contrà.

[* 261]

MARSHALL, C. J., delivered the opinion of the court.

* This suit was brought in the court of the United States for the second circuit and district of New York, on a bill of exchange, drawn by John C. Delprat, of Baltimore, on Messrs. N. and J. and R. Van Staphorst, of Amsterdam, in favor of Le Roy, Bayard, and Co., of New York, and indorsed by them. larly presented and protested, after which it was by the plaintiff, for the honor of the defendants. verdict for the plaintiff, subject to the opinion of the court, on a case stated by the parties. The judges of the circuit court were divided in opinion on the following points: —

The bill was regu accepted and paid The jury found a

1. Whether the letters offered in evidence by the defendants, and objected to, ought to have been admitted.

2. Whether the plaintiff had a right, under the circumstances, to accept and pay the bill in question, under protest, for the honor of the defendants, and is entitled to recover the amount, with charges and interest.

The first question is understood to be waived. It is a question which was decided by the court at the trial, and could not arise after verdict, unless a motion had been made for a new trial.

The second requires an examination of the case stated by counsel. The bill was transmitted by Le Roy, Bayard, and Co., to Messrs. Rougemont and Behrends, of London, to have it presented for acceptance, who inclosed it to the plaintiff in a letter, from which the following is an extract: "We beg you to have the inclosed accepted; 1st, of fl. 21,500, 60 days, on N. and J. and R. Van Staphorst, and hold the same to the disposal of 2d, 3d, and 4th. You will oblige me by mentioning the day of acceptance, and in case of refusal, you will have the bill protested."

Konig v. Bayard. 1 P.

The plaintiff gave immediate notice of the dishonor of the bill, and of their intervention for the honor of the defendants.

Messrs. N. and J. and B. Van Staphorst addressed a letter to the defendants, dated the 26th of November, 1822, giving notice that the bill was dishonored, the drawer having no right to [262] draw, and that they were advised by counsel not to interpose in their own names for the honor of the defendants. The letter adds: "In this predicament, we applied to our friends, William Konig and Co., who had the said bill in hand, informed them of the whole case, and requested these gentlemen, under our guarantee, to intervene on behalf of your signature, with acceptance and payment of the above bill; which favor these gentlemen have not refused to us; so that, without our prejudice, and completely without yours, we have duly protected your interest."

The defendants also gave in evidence a letter from the plaintiff, stating that he had intervened, at the request of N. and J. and R. Van Staphorst, and under their guarantee; but that they required him to proceed against the defendants, as preliminary to the performance of that guarantee.

It was admitted that the bill was drawn by J. C. Delprat, on his own account, and not on any shipment for a debt due from him to the defendants, for advances previously made to him; and that he had given to the defendants an order on N. and J. and R. Van Staphorst, for all balances due from them to him.

It is not alleged that the drawees had any funds of the drawer in their hands.

The plaintiff in this case must be considered as the agent of N. and J. and R. Van Staphorst, and as having paid the bill at their instance. All parties concur in stating this fact. The Van Staphorsts adopted this circuitous course, instead of interposing directly in their own names, under the advice of counsel. They, however, immediately stated the transaction in its genuine colors, to the defendants. It is impossible to doubt that a person may thus intervene, through an agent, if it be his will to do so. The suspicion which might be excited by proceeding, unnecessarily, in this circuitous manner, cannot affect a transaction, which was immediately communicated, with all its circumstances, to the persons in whose behalf the intervention had been made; unless those persons were exposed to some inconvenience, to which they would not have been exposed had the interposition been direct. This is not the case in the present instance, since it cannot be doubted that the defendants might have availed themselves of every defence in this action of which they could have availed themselves had N. and J. and R. Van Staphorst been plain.

Schimmelpennich v. Bayard. 1 p.

tiffs. The case shows plainly that the bill was not drawn on funds, and that the drawees were not bound to accept or pay it. No reason, therefore, can be assigned why the person who has made himself the holder of the bill, by accepting and paying it under protest, should not recover its amount from the drawer and indorsers.

[* 263 ]

*This cause came on to be heard on a certificate of division of opinion of the judges of the circuit court of the United States for the southern district of New York, and on the points on which the said judges were divided in opinion, and was argued by counsel; on consideration whereof this court is of opinion that the plaintiff had a right, under the circumstances, to accept and pay the bill in question, under protest, for the honor of the defendants, and is entitled to recover the amount, with charges and interest; which is ordered to be certified to the said circuit court.

GERRIT SCHIMMELPENNICH and JAN ADRIAN TOE LEAR, who are Aliens, v. WILLIAM BAYARD, WILLIAM BAYARD, JUN., ROBERT BAYARD, and JACOB LE ROY, Citizens of the State of New York.

1 P. 264.

The case of Cooledge et al. v. Payson, (2 W. 66,) reviewed, and the rule confirmed, that a promise to accept, to amount to an acceptance, can be by a letter written within a reasonable time before or after the date of the bill, describing it in terms not to be mistaken, promising to accept it, and shown to the person who afterwards takes the bill on the credit of the letter.

If drawees were bound in good faith to accept, they cannot assume the position of acceptors supra protest, for the honor of an indorser.

Where an agent was authorized to make advances on consignments to the extent of two thirds the invoice price, and draw on his principal therefor, it was held that the anthority did not extend to consignments made by himself.

Though one dealing with an agent is generally bound to know the extent of his powers, yet if the principal has by his acts or declarations authorized a third person to believe that the agent has power to draw, and such third person has taken the agent's bills, the principal cannot accept them for the honor of such third person.

If a drawee has been in the habit of receiving consignments from the drawer, and has an open account with him, he is not bound to accept a bill, though in fact drawn against a particular shipment, if the letter of advice merely directed him to charge the bill in account, and the state of the account was such that the drawee had no funds of the drawer.

THE case is stated in the opinion of the court.

Ogden and Oakley, for the plaintiffs.

Webster and Hoffman, contrà.

[ * 274 ]

* MARSHALL, C. J., delivered the opinion of the court. This action was brought on nine bills of exchange, drawn