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This cause came on, &c., on consideration whereof, it is adjudged and ordered by this court that the judgment of the district court in this cause be and the same is hereby reversed and annulled; and it is further ordered that the cause be remanded to the said district court, with directions to permit the defendant to plead de novo, if he elect so to do.
INSURANCE, 4. 7.
1. In an action by a corporation, if the defendant would deny the corporate existence,
be must do so by a plea in abatement. Conard v. The Atlantic Insurance Company
of New York, 637.
2. The non-joinder of a partner as a defendant in an action of assumpsit, can only be
pleaded in abatement. Barry v. Foyles, 592.
3. The question of citizenship constitutes no part of the issue upon the merits; it must
be raised by a plea to the jurisdiction. D'Wolf v. Rabaud, 672.
DEED, 3. 4.
Bond, 10; SALE, 4–6; Usury.
ADJUTANT AND INSPECTOR-GENERAL.
Under the act of March 16, 1802, (2 Stats. at Large, 132,) the adjutant and inspector-
general, while stationed at the seat of government, was not entitled to additional
allowances by way of double rations. Parker v. The United States, 580.
1. Á lien for duties on goods imported cannot be enforced by a libel in rem in the ad-
miralty. The United States v. 350 Chests of Tea, 302.
2. A suit in personam against an owner of a vessel, for supplies, cannot be maintained
in the admiralty, where the owner gave a negotiable promissory note for the debt,
which has not been given up or tendered at the hearing. Ramsay v. Allegre, 395.
3. A stipulation for property subject to admiralty process, is a mere substitute for the
thing itself, and the rights of the stipulators are subject to the same powers as might
be exercised by the court over the property, if still in its custody. The Palmyra, 1.
4. They cannot prevent the reinstatement of a cause, though the court may not wholly
disregard their interests. Ib.
CONSTITUTIONAL LAW, 6; ForfEITURE.
1. 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 authority did not extend to consignments made by himself. Schimmelpennich v.
2. 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 per-
son 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
BILLS OF EXCHANGE, &c. 4; EVIDENCE, 1. 2. .
Under the law of Maryland, of December 19, 1791, which enables foreigners to take,
hold, and transmit lands, a naturalized citizen is not included, but lands acquired by
him, before he became a citizen, are within the act. Spratt's Lessee v. Spratt, 610.
ALTERATION OF INSTRUMENTS.
This court will not review the decision of a circuit court allowing a new count to be
filed, in an action of ejectment, alleging a demise by a lessor not named in the old
counts, nor its refusal to allow costs on the leave to amend. Wright v. Hollingsworth's
DEED, 4; PRACTICE, 2.
If a bill charges notice, the defendant must answer without a special interrogatory;
but is not bound to answer an interrogatory as to a fact not stated in the bill. The
Mechanics' Bank of Alexandria v. Lynn, 633.
The decision of the orphans' court for the county of Washington, in the District of
Columbia, as to the quantum of commissions to be allowed to an executor, is con-
clusive, and no appeal lies. Nicholls v. Hodges, 698.
, PARTIES, 2; PRIZE.
1. To impeach an award made under a conditional submission, upon the ground that
the award does not cover all matters submitted, the party must distinctly show that
there were other matters submitted, of which express notice was given to the arbi-
trator, and that he omitted to determine them. Karthaus v. Ferrer, 540.
2. An ambiguity in an award, not affecting the interest of the party objecting to it, is
not available by him. 16.
3. Where a submission was made by one partner of a “late firm," and it did not
appear that any other partner existed, a direction in an award that the firm should
pay, was held to be equivalent to a direction that he should pay. 16.
4. It is not necessary to the validity of an award that each party should be ordered to
do, or not to do, something. Ib.
A question of fact upon a bill filed to set aside the sale and assignment of a land
Evidence deemed insufficient, and bill dismissed.
BANKRUPT; BOND, 13. 14; SALE, 1; UNITED STATES.
A variance between an account filed to obtain an attachment, and the declaration
filed after the defendant appeared and discharged the attachment, is of no impor-
tance. Barry v. Foyles, 592.
The bail is fixed by the death of the principal after the return of the ca. sa. and before
the return of the scire facias; and the bail is not entitled to an exoneretur in such
a case. Davidson v. Taylor, 389.
BILLS OF EXCHANGE, &c. 8. 10; BOND, 2-4; CORPORATION; EQUITY, 1; .
PARTIES, 5; SURETY, 3.
The right to indemnity for an unjust capture, passes to the underwriter by an aban-
donment, and to the assignee, on the bankruptcy of the underwriter, under the
bankrupt act of April 4, 1800, (2 Stats. at Large, 19.) Comegys v. Vasse, 529.
BILLS OF EXCHANGE AND PROMISSORY NOTES.
1. The case of Cooledge et al. v. Payson, (2 W. 66,) reviewed, and the rule con-
firmed, 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. Schimmelpennich v. Bayard,
2. If drawees were bound in good faith to accept, they cannot assume the position of
acceptors supra protest, for the honor of an indorser. 10.
3. 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. 16.
4. 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 pro-
ceeding on the part of the drawee. Konig v. Bayard, 558.
5. A mere agreement by the holder with the drawer for delay, without a considera-
tion, and not communicated to the indorser, does not discharge the indorser. M'Le-
more v. Powell, 353.
6. If an indorser who has not been duly notified unconditionally promise to pay the
note, with a knowledge of all material facts, it is not necessary to prove notice or
demand; but saying he knew the maker had not paid it, and was not to pay it, that
it belonged to himself alone to pay it, is not sufficient, unless the indorser knew
there had been no demand, and that so he was discharged. Thornton v. Wynn,
7. An indorser resided in the country, two or three miles from the town of George-
town, where the note was payable, and was in the habit of receiving his letters at
the post-office of that place; held, that a notice put into that post-office and
directed to him at Georgetown, was sufficient. The Bank of Columbia v. Love
8. A bank which receives a bill for collection is the agent of the holder, not of
another bank which merely transmits the bill for the holder, and is liable to the
holder for a want of due diligence. The Bank of Washington v. Triplett, 433.
9. A time bill, not presented for acceptance, is not payable till the last day of grace. 10.
10. The holder of a bill sent to a bank for collection, is bound by the settled usage of
the banks of that place, as to the time of demanding payment. A time bill need
not be presented for acceptance; and an omission thus to present it, or to apprise
its owner that ineffectual inquiries have been made after the drawee, or failure to
protest for non-acceptance, is not negligence in a bank holding it for collection, pro-
vided the bank acted, in those particulars, according to its settled usage. Ib.
11. It is sufficient evidence of a demand of payment of a note made payable at a
particular bank, that the note was at the bank, was its property, and was unpaid at
maturity. Fullerton v. The Bank of the United States, 723.
12. If a note is discounted in renewal of a former note, the law does not prevent the
bank from charging the former note to the last indorser, and crediting him with the
proceeds of the last note. Ib.
13. There is nothing in the constitution or laws of the United States, to prevent the
circuit court of the United States for Ohio from adopting the act of that State
concerning actions against drawers and indorsers. 16.
14. Under the statute of Virginia, giving to debts due on protested bills of exchange,
the rank of judgment debts, a joint indorser, who has paid more than his proportion
of the debt, has a right to satisfaction out of the assets of his co-indorser with the
priority of a judgment creditor. Lidderdale's Executors v. Robinson's Executot,
15. Wherever the government of the United States, through its lawfully authorized
agents becomes the holder of a bill of exchange, it is bound to use the same dili-
gence, in order to charge the indorser, as in a transaction between private individ-
uals. The United States v. Barker, 356.
ADMIRALTY, 2; AGENT; EVIDENCE, 7; Usury.
1. Under a bond to remain a true prisoner until lawfully discharged, a discharge under
a resolve of the legislature, passed in conformity with an ancient usage thus to re-
lieve from imprisonment, is a lawful discharge, and does not impair the obligation of
the contract. Mason v. Haile, 227.
2. A condition of a cashier's bond,“ well and truly to execute the duties of cashier,"
includes not only honesty, but reasonable skill and diligence. Minor v. The Mechan-
ics' Bank of Alexandria, 445.
3. A usage of the board of directors, to permit the cashier to misapply the funds of
the bank, cannot exonerate his sureties. Ib.
4. The cashier's bond, in this case, was held to cover all defaults in duties, from time
to time annexed to the office, by those having the control of the bank. Ib.
5. If a cashier, on leaving his office, fail to pay over or account to the bank for any
part of the moneys of the bank received by him, the presumption is that he wilfully
wasted or misapplied them, and the burden is on him or his sureties to show the
6. The postmaster-general has power to take a bond from a postmaster for the pay.
ment of moneys received by him in his official capacity. The Postmaster-General
of the United States v. Early, 86.
7. Including in an official bond other things which are separable from the subjects for
which it may lawfully be taken, does not necessarily vitiate it. 16.