Welch v. Lindo. 7 C.

On the prayer of the defendant, the court decided that this evidence was not, in itself, sufficient to support the action on the second count, and to this opinion the counsel for the plaintiff excepted.

The testimony offered by the plaintiff, was certainly incompetent of itself to prove that the defendant had received money to his use. The mere possession of a note which he had assigned to another could not, while that assignment remained, be evidence that the note was his property. Some reassignment or receipt from the last assignee was necessary while the indorsements remained to prove that the title against the prior indorser was in him, and that he had paid a sum of money which gave him a claim on that indorser. And if the record of the State of Kentucky could prove that Lindo had received the money due upon the note, it would not prove that he had received it to the use of the plaintiff. Nor, under this indorsement, which is an assignment of the note without expressing value received, and that, too, without recourse against the assignor, can it be fairly inferred that the nominal value of the note was actually paid.

There is, then, no error in the direction given by the circuit court. On the first count, there was a verdict for the plaintiff, but judgment was arrested, because that count was insufficient in law.

This count states, that a promissory note was made by John Kercheval, payable to Abraham Lindo; that Lindo indorsed that note to the plaintiff, in these words, "pay the within to James Welch, or order, without any recourse whatever on A. Lindo." That the plaintiff indorsed the said note to William Hodgsett, who instituted a suit thereon, in which the said Kercheval pleaded, that he had paid the debt to Abraham Lindo. A verdict was found for the defendant, on which a judgment was rendered, which re- [* 164 ] mains in full force. By these proceedings, the plaintiff became liable to pay the said Hodgsett the amount of the said note and costs of suit, which he had actually paid. The declaration then proceeds to state, that, by reason of the premises, the defendant, Abraham Lindo, became liable to pay the plaintiff the amount of the said note and costs of suit, and being so liable, he assumed, &c. Under the mere assignment from Lindo to Welch, it is clear that this suit is not sustainable; because it is a part of the contract, that Lindo shall not be liable under his indorsement. The count is also defective, in not stating that the indorsement was made on a valuable consideration, and also in not averring that Lindo had actually received the money for which the note was given.

These are substantial faults, which are not cured by a verdict. The declaration presents a case in which there was no liability on

State of New Jersey v. Wilson. 7 C.

the part of the defendant, to the plaintiff, which can sustain the assumpsit found by the verdict.

There is no error, and the judgment is affirmed.

THE STATE OF NEW JERSEY V. WILSON.

7 C. 164.

A legislative act passed in consideration of a release of title by the Indians, declaring that certain lands which should be purchased for the Indians, should not, thereafter, be subject to any tax, constituted a contract, which could not be rescinded by a subsequent legislative act. Such repealing act being void under that clause of the Constitution of the United States, which prohibits a State from passing any law impairing the obliga tion of contracts.

THIS case was submitted to this court, upon a statement of facts, without argument.

MARSHALL, C. J., delivered the opinion of the court, as follows: This is a writ of error to a judgment rendered in the court of last resort, in the State of New Jersey, by which the plaintiffs allege they are deprived of a right secured to them by the Constitution of the United States.

[ *165] The case appears to be this:

The remnant of the tribe of Delaware Indians, previous to the 20th February, 1758, had claims to a considerable portion of lands in New Jersey, to extinguish which became an object with the government and proprietors under the conveyance from King Charles II. to the Duke of York. For this purpose a convention was held in February, 1758, between the Indians and cornmissioners appointed by the government of New Jersey, at which the Indians agreed to specify particularly the lands which they claimed, release their claim to all others, and to appoint certain chiefs to treat with commissioners on the part of the government for the final extinguishment of their whole claim.

On the 9th of August, 1758, the Indian deputies met the commissioners, and delivered to them a proposition reduced to writing-the basis of which was, that the government should purchase a tract of land on which they might reside in consideration of which they would release their claim to all other lands in New Jersey south of the River Raritan.

State of New Jersey v. Wilson. 7 C.

This proposition appears to have been assented to by the commissioners; and the legislature, on the 12th of August, 1758, passed an act to give effect to this agreement.

This act, among other provisions, authorizes the purchase of lands for the Indians, restrains them from granting leases or making sales, and enacts" that the lands to be purchased for the Indians aforesaid shall not hereafter be subject to any tax, any law, usage, or custom to the contrary thereof, in anywise notwithstanding."

In virtue of this act, the convention with the Indians was executed. Lands were purchased and conveyed to trustees for their use, and the Indians released their claim to the south part of New Jersey.

The Indians continued in peaceable possession of the lands thus conveyed to them, until some time in the year 1801, when, having become desirous of migrating from the State of [166] New Jersey, and of joining their brethren at Stockbridge, in

the State of New York, they applied for, and obtained an act of the legislature of New Jersey, authorizing a sale of their land in that State.

This act contains no expression in any manner respecting the privilege of exemption from taxation which was annexed to those lands by the act, under which they were purchased and settled on the Indians.

In 1803, the commissioners under the last-recited act sold and conveyed the lands to the plaintiffs, George Painter and others.

In October, 1804, the legislature passed an act repealing that seetion of the act of August, 1758, which exempts the lands therein mentioned from taxes. The lands were then assessed, and the taxes demanded. The plaintiffs thinking themselves injured by this assessment, brought the case before the courts in the manner prescribed by the laws of New Jersey, and in the highest court of the State, the validity of the repealing act was affirmed, and the land declared liable to taxation. The cause is brought into this court by writ of error, and the question here to be decided is, does the act of 1804 violate the Constitution of the United States.

The Constitution of the United States declares that no State shall "pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts."

In the case of Fletcher v. Peck, 6 Cranch, 87, it was decided in this court on solemn argument and much deliberation, that this provision of the Constitution extends to contracts to which a State is a party, as well as to contracts between individuals. The question then is narrowed to the inquiry whether, in the case stated, a contract existed, and whether that contract is violated by the act of 1804.

King v. Riddle. 7 C.

Every requisite to the formation of a contract is found in the proceedings between the then colony of New Jersey and the Indians. The subject was, a purchase on the part of the government of extensive claims of the Indians, the extinguishment of which would

quiet the title to a large portion of the province. A propo[*167 ] sition to this effect is made, the terms stipulated, the *consideration agreed upon, which is a tract of land with the privilege of exemption from taxation; and then, in consideration of the arrangement previously made, one of which this act of assembly is stated to be, the Indians execute their deed of cession. This is certainly a contract clothed in forms of unusual solemnity. The privilege, though for the benefit of the Indians, is annexed, by the terms which create it, to the land itself, not to their persons. It is for their advantage that it should be annexed to the land, because, in the event of a sale, on which alone the question could become material, the value would be enhanced by it.

It is not doubted but that the State of New Jersey might have insisted on a surrender of this privilege as the sole condition on which a sale of the property should be allowed. But this condition has not been insisted on. The land has been sold, with the assent of the State, with all its privileges and immunities. The purchaser succeeds, with the assent of the State, to all the rights of the Indians. He stands, with respect to this land, in their place, and claims the benefit of their contract. This contract is certainly impaired by a law which would annul this essential part of it.

4 P. 514; 6 P. 691; 12 P. 657; 16 P 281; 6 H 301, 507; 16 H. 369.

KING V. RIDDle.

7 C. 168.

A recital in the defendant's deed, that the plaintiff and others had paid the defendant's debt, the repayment of which the defendant desired to secure to him, is evidence from which the jury may infer that the payment was at the defendant's request, and is also sufficient to take the debt out of the Statute of Limitations.

Under the act of January 6, 1800, for the relief of insolvent debtors, (2 Stats. at Large, 4,) the debt is not discharged.

ERROR to the circuit court for the District of Columbia, in an action of assumpsit for money paid. The general issue and the Statute of Limitations were pleaded. Among the evidence introduced by

King v. Riddle. 7 C.

the plaintiff was a deed of the defendant, which recited that the plaintiff and others became his sureties for a debt, and paid it, and that the defendant being desirous to secure his sureties, thereby assigned property in trust to be distributed equally among them. The defendant gave in evidence a certificate of his discharge from imprisonment, under the act of January 6, 1800, (2 Stats. at Large, 4.) The errors assigned appear in the opinion of the court.

E. J. Lee, for the plaintiff.

Swann, for the defendant.

* Marshall, C. J., delivered the opinion of the court, to [*170 ] the following effect:

In this case the whole evidence is spread upon the record by the bill of exceptions, and the court below refused to instruct the jury (as requested by the defendant) that it was not sufficient in law to enable the plaintiff to recover in this action.

If the court ought to have given this instruction their refusal is certainly error.

The evidence shows that a note was given, or money paid

by the plaintiff for the use of the defendant; but it is ob- [171] jected that it was not paid at the request of the defendant.

If the plaintiff was not bound to pay it, and if it was paid without the request of the defendant, it is certain that the plaintiff is not entitled to recover. But the court thinks that the recital in the deed of assignment is evidence from which the jury might infer a request. The court is also of opinion that the recital in the deed is sufficient to take the case out of the Statute of Limitations. Although the court is not willing to extend the effect of casual or accidental expressions farther than it has been, to take a case out of that statute, and although the court might be of opinion that the cases on that point have gone too far, yet this is not a casual or incautious expression; the deed admits the debt to be due on the 15th of July, 1804, and five years had not afterwards elapsed before the suit was brought. Then it is objected that there is no evidence of the payment of the money by the plaintiff; but the court thinks that the recital of the deed is evidence from which the jury might infer the payment. There was no error respecting the discharge under the insolvent act. It was only a discharge of the person, and could not affect the judgment.

Judgment affirmed.