1820. act, done by the Cashier of a Bank, was done in his official or individual capacity? Had the draft, signed Mechanics by Paton, borne no marks of an official character on སྙ Bank V. lumbia. the face of it, the case would have presented more Bank of Codifficulty. But if marks of an official character not only exist on the face, but predominate, the case is really a very familiar one. Evidence to fix its true character becomes indispensable. of the charter the Mechan applicable to It has been contended, but the argument was not The 17th sec. pressed with much confidence, that this defendant incorporating could not be, bound otherwise than in conformity ics' Bank, not with the 17th section of the charter; by which it is this case. enacted, "that all bills, bonds, notes, and every other contract or engagement, on behalf of the corporation, shall by signed by the President, and countersigned by the Cashier; and the funds of the corporation shall in no case be liable for any contract or engagement, unless the same shall be signed and countersigned as aforesaid." It is to be hoped this argument was not intended to reach the case of a deposit of money; and yet if it proves any thing, it proves that no contract in law could be imputed to this bank. The truth is, that a check is properly neither a bond, bill, or note, with regard to the bank drawn upon, but an acquittance. And the contract arising out of a payment upon it, is a contract for money advanced, and must be so declared upon. It is true that checks are generally made payable to bearer, and this was made payable to order; but it is in evidence that it was drawn as a check, and paid as a check, and the declaration'contains only the common money counts.. Of the six exceptions in the transcript of the 1820. Mechanics' record, the 1st, 2d, 4th, and 5th, are taken on behalf of the Mechanics' Bank of Alexandria. Upon comparing these exceptions with the evidence, it does not Bank of Co- appear that they affirm any other proposition growPresumption ing out of that evidence, but that the check, on the that the check face of it, purported to be the private check of Paton, lumbia. was official, and parol tes timony admis- and no extrinsic evidence could be received to prove plain the am- the contrary. sible to ex biguity. The only ground on which it can be contended that this check was a private check, is, that it had not below the name the letters Cas. or Ca.. But the fallacy of the proposition will at once appear, from the consideration, that the consequence would be, that all Paton's checks must have been adjudged private. For no definite meaning could be attached to the addition of those letters without the aid of parol testimony. But the fact that this appeared on its face to be a private check, is by no means to be conceded. On the contrary, the appearance of the corporate name of the institution on the face of the paper, at once leads to the belief that it is a corporate, and not an individual transaction: to which must be added the - circumstances, that the cashier is the drawer, and the teller the payee; and the form of ordinary checks deviated from by the substitution of to order, for to bearer. The evidence, therefore, on the face of the bill, predominates in favour of its being a bank transaction. Applying, then, the plaintiff's own principle to the case, and the restriction as to the production of parol or extrinsic evidence could have been only applicable to himself. But, it is enough for the purposes of the defendant to establish, that there exist pur 1820. lumbia. ed, on the face of the paper, circumstances from which it might reasonably be inferred, that it was Mechanics either one or the other. In that case, it became in- Bank dispensable to resort to extrinsic evidence, to remove Bank of Cothe doubt. The evidence resorted to for this pose was the most obvious and reasonable possible, viz. that this was the appropriate form of an official check; that it was, in fact, cut out of the official check-book of the bank, and noted on the margin; that the money was drawn in behalf of, and applied to the use of the Mechanics' Bank; and by all the banks, and all the officers of the banks through which it passed, recognized as an official transaction. It is true, it was in evidence that this check was credited to Paton's own account, on the books of his bank. But it was done by his own order, and with the evidence before their eyes, that it was officially drawn. This would never have been sanctioned by the directors, unless for reasons which they best understood, and on account of debits which they only could explain. 1 The acts of nected with of written in dence. It is by no means true, as was contended in argu- agents, as conment, that the acts of agents derive their validity the execution from professing, on the face of them, to have been struments, how far explainable done in the exercise of their agency. In the more by parol evisolemn exercise of derivative powers, as applied to the execution of instruments known to the common law, rules of form have been prescribed. But in the diversified exercise of the duties of a general agent, the liability of the principal depends upon the facts, 1. That the act was done in the exercise, and, ≈ 2. Within the limits of the powers delegated. These 1820. facts are necessarily inquirable into by a Court and The Josefa jury; and this inquiry is not confined to written inSegunda. struments, (to which alone the principle contended for could apply,) but to any act with, or without writing, within the scope of the power or confidence reposed in the agent; as, for instance, in the case of money credited in the books of a teller, or proved to have been deposited with him, though he omits to credit it. Judgment affirmed. (PRIZE AND INSTANCE COURT.) The JOSEFA SEGUNDA, Carricabura et al. An information under the act of the 3d of March, 1807, c. 77. to prevent the importation of slaves into the United States. The alleged unlawful importation attempted to be excused upon the plea of distress. Excuse repelled, and condemnation pronounced. Upon a piratical capture, the property of the original owners cannot be forfeited for the misconduct of the captors in violating the municipal laws of the country where the vessel seized by them is carried. But where the capture is made by a regularly commissioned captor, he acquires a title to the captured property, which can only be devested by recapture, or by the sentence of a competent tribunal of his own country; and the property is subject to forfeiture for a violation, by the captor, of the revenue or other municipal laws of the neutral country into which the prize may be carried. APPEAL from the District Court of Louisiana. From the proceedings in the Court below, it appear ed, that the brig Josefa Segunda being Spanish property, and on a voyage from the coast of Africa to the island of Cuba, with a cargo of negroes, was captured on the 11th day of February, 1818, off Cape Tiberon in St. Domingo, by the Venezuelan privateer, the General Arismendi. On the 24th of April following, she was seized in the river Mississippi, by certain custom house officers, and conducted to New-Orleans, where a libel was filed against her in the District Court for the Louisiana district. The libel contained four counts. The first alleged, that the said negroes were unlawfully brought into the United States from some foreign country in the said brig, with intent to hold, sell, or dispose of them as slaves, or with intent that the same should be held to service or labour, contrary to the act of Congress in such case made and provided. The second count alleged, that these negroes were taken, received and transported on board the said brig, from some of the coasts or kingdoms of Africa, or from some other foreign kingdom, place, or country, for the purpose of selling them in some port or place within the jurisdiction of the United States, as slaves, or to be held to service or labour, contrary, &c. In the third count it was charged, that the said brig was found in some river, port, bay, or harbour of the United States, or on the high seas, within the jurisdictional limits of the United States, or hovering on the coast thereof, to wit, in the river Mississippi, having on board some negroes, mulattoes, or people of colour, for the purpose of selling them as slaves, or with an intent to land the same, in some port or 1820. The Josefa |