1. Where the original possession by the holder of land is in privity with the title of the rightful owner, in order to enable such holder to avail himself of the statute of limitations, nothing short of an open and explicit disavowal and disclaimer of holding under that title, and assertion of title in himself brought home to the other party, will satisfy the law. Zeller's Lessee v. Eckert, 289.
2. The burden of proof is on the holder to establish such a change in the character of the possession. Ibid.
3. The statute does not begin to run until the possession becomes tortious and wrongful by the disloyal acts of the tenant, which must be open, continued, and notorious, so as to preclude all doubt as to the character of the holding, or the want of knowledge on the part of the owners. Ibid.
4. In this case there was evidence enough given upon this point to authorize the court below to submit the question of adverse possession to the jury, and advise them that a foundation was laid upon which they might presume a grant for the purpose of quieting the title. Ibid.
1. Money in the hands of a purser, although it may be due to seamen, is not liable to an attachment by the creditors of those seamen. Buchanan v. Alexander, 20.
2. A purser cannot be distinguished from any other disbursing agent of the government; and the rule is general, that, so long as money remains in the hands of a disbursing officer, it is as much the money of the United States as if it had not been drawn from the treasury. Ibid.
3. A decision of a state court, sanctioning such an attachment, may be revised by this court under the twenty-fifth section of the Judiciary Act. Ibid. BILLS OF EXCEPTIONS.
The mode in which bills of exceptions ought to be taken, as explained in Walton v. The United States (9 Wheat. 651), and in 4 Peters, 102, will be strictly adhered to by this court. Brown v. Clarke, 4.
BILLS OF EXCHANGE AND PROMISSORY NOTES.
1. By a statute of Florida, where suit is brought upon a bond, the plaintiff need not prove its execution unless the defendant denies it under oath. It also provides that such an instrument may be assigned; that the assignee becomes vested with all the rights of the assignor, and may bring suit in his own name. Bradford v. Williams, 576.
2. Under this statute, where a joint and several bond was signed by three obligors and made payable to three obligees, one of whom was also one of the obligors, and the obligees assigned the bond, the fact that one of the obligors was also an obligee was no valid defence in a suit brought by the assignee against the two other obligors. Ibid.
3. The inability of one of the obligees to sue himself did not impair the vitality of the bond, but amounted only to an objection to recovery in a court of law. The assignment, and ability of the assignee to sue in his own name, removed this difficulty. Ibid.
4. The statute of Florida places bonds, as far as respects negotiability and the
right of the assignee to sue in his own name, upon the same footing as bills
of exchange and promissory notes. The case, therefore, falls within the
principle of a partner drawing a bill upon his house, or making a note in the
name of the firm, payable to his own order, both of which are valid in the
hands of a bona fide holder. Ibid.
1. The grant of Massachusetts, confirmed in 1628, included the territory "lying
within the space of three English miles on the south part of Charles River,
or of any or every part thereof." Rhode Island v. Massachusetts, 591.
2. In 1662, the grant of Connecticut called to be bounded on the north by the
line of the Massachusetts plantations. Ibid.
3. In 1663, the grant of Rhode Island called to be bounded on the north by the
southerly line of Massachusetts. Ibid.
4. Whether the measurement of the three miles shall be from the body of the
river, or from the head-waters of the streams which fall into it, is not clear.
The charter may be construed either way without doing violence to its lan-
guage. Ibid.
5. The early exposition of it is not to be disregarded, although it may not be
6. In 1642, Woodward and Saffrey fixed a station three miles south of the south-
ernmost part of one of the tributaries of Charles River. Ibid.
7. An express order of the crown was not necessary to run this line, as it was
not then a case of disputed boundary. Ibid.
8. In 1702, commissioners were appointed by Massachusetts and Rhode Island
to run the boundary-line, who admitted the correctness of the former line.
Ibid.
9. In 1710, Rhode Island appointed an agent to conclude the matter on such
terms as he might judge most proper, who agreed that the stake set up by
Woodward and Saffrey should be considered as the commencement of the
line. Ibid.
10. In 1711, Rhode Island sanctioned this agreement. Ibid.
11. In 1718, Rhode Island again appointed commissioners with power to settle
the line, who agreed that the line should begin at the same place. This
was accepted by Massachusetts and Rhode Island, the line run accordingly
by commissioners, and the running approved by Rhode Island. Ibid.
12. The allegation that the commissioners of Rhode Island were mistaken as to
a fact, and believed that the stake was within three miles of the main river,
and not one of its tributaries, is difficult to establish, and cannot be assumed
against transactions which strongly imply, if they do not prove, the knowl-
edge. Ibid.
13. If the first commission was mistaken, it almost surpasses belief that the
second should again be misled. Ibid.
14. To sustain the allegation of a mistake, it must be made to appear, not only
that the station was not within the charter, but that the commissioners
believed it to be within three miles of the river, and that they had no
knowledge of a fact as to the location of it which should have led them to
make inquiry on the subject. Ibid.
15. Even if the calls of the charter had been deviated from, which is not clear,
still Rhode Island would be bound, because her commissioners were author-
ized to compromise the dispute. Ibid.
16. It is doubtful whether a court of chancery could relieve against a mistake
committed by so high an agency, in a recent occurrence. It is certain that
it could not, except on the clearest proof of mistake. Ibid.
17. This mistake is not clearly established, either in the construction of the
charter, or as to the location of the Woodward and Saffrey station.
Ibid.
18. Even if the mistake were proved, it would be difficult to disturb a possession
of two centuries by Massachusetts under an assertion of right, with the
claim admitted by Rhode Island and other colonies in the most solemn
form. Ibid.
19. For the security of rights, whether of states or individuals, long possession,
under a claim of title, is protected. And there is no controversy in which
this great principle may be invoked with greater justice and propriety, than
in a case of disputed boundary. Ibid.
The army regulations under which General Gratiot was removed from West
Point to Washington were authorized by law, and his brevet rank did not
release him from discharging the duties of his commission proper. Gratiol
v. United States, 81.
1. The holder of a register's certificate of the purchase of a lot in the town of
Dubuque, lawfully acquired, and issued by the register under the two acts
of 2d July, 1836, and 3d March, 1837, has such an equitable estate in the
lot, before the issuing of a patent, as will subject the lot to sale under exe-
cution under the statute of Iowa. Levi v. Thompson, 17.
2. The doctrine established in the case of Carroll v. Safford, 3 Howard, 441,
reviewed and confirmed. Ibid.
3. A policy of insurance contained a stipulation, that if the insured then had, or
thereafter should have, any other insurance upon the same property, notice
thereof should be given to the company, and the same indorsed upon the
policy, or otherwise acknowledged by the company in writing, in default of
which the policy should cease. Carpenter v. Providence Washington Insur-
ance Company, 185.
4. A bill was filed in equity by the insured, alleging that notice was given to the
insurance company, and praying that the company might be compelled to
indorse the notice upon the policy, or otherwise acknowledge the same in
writing. Ibid.
5. When the answer of the company, sworn to by the then president, denies the
reception of the notice, to the best of his knowledge and belief, the question
becomes one of fact and of law; of fact, whether the evidence offered by
the complainant is sufficient to sustain the allegation; and of law, whether,
if so, this court can compel the company to acknowledge it. Ibid.
6. The answer being responsive to the bill, and denying the allegation, under
oath, the general rule is, that the allegation must be proved, not only by the
testimony of one witness, but by some additional evidence. Ibid.
7. Several qualifications and limitations of this rule examined. Ibid.
8. The circumstances of this case are such that the general rule applies. Ibid.
9. Two witnesses are produced, by the complainant to prove the notice, but
neither of them swears positively to it, and the circumstances of the case
do not strengthen their testimony. Ibid.
10. The rules by which parties are sometimes allowed to introduce parol evidence
with reference to a written contract do not apply to this case, where the
parol proof is offered by the complainant, seeking to show a fact which, if
true, would establish a breach of duty in the defendants, happening after
the original contract was made. Ibid.
11. The question of law which would arise if the notice were sufficiently proved
by the complainant need not be decided in this case.
12. Although a Circuit Court, sitting as a court of law, may direct credits to be
given on a judgment in favor of the United States, and consequently exam-
ine the grounds on which such an entry is claimed, and may direct the
execution to be stayed until such an investigation shall be made, yet it can-
not entertain a bill, on the equity side, praying that the United States may
be perpetually enjoined from proceeding upon such judgment. United States
v. McLemore, 287.
13. A bill in chancery which recites, that the complainants had recovered a
judgment at law in a court of the United States, upon which an execution
had issued and been levied upon certain property by the marshal; that an-
other person, claiming to hold the property levied upon by virtue of some
fraudulent deed of trust, had obtained a process from a State court, by which
the sheriff had taken the property out of the hands of the marshal; and
praying that the property might be sold, cannot be sustained. Knox et al. v.
Smith, 298.
14. If the object had been to set aside the deed of trust as fraudulent, the fraud,
with the facts connected with it, should have been alleged in the bill. Ibid.
15. There exists a plain remedy at law. The marshal might have brought tres-
pass against the sheriff, or applied to the court of the United States for an
attachment. Ibid.
16. No relief can be given by a court of equity, unless the complainant, by his
allegations and proof, has shown that he is entitled to relief. Ibid.
17. A person cannot legally purchase on ms own account that which his duty or
trust requires him to sell on account of another, nor purchase on account of
another that which he sells on his own account. He is not allowed to unite
the two opposite characters of buyer and seller. Michoud v. Girod, 503.
18. A purchase, per interpositam personam, by a trustee or agent, of the particular
property of which he has the sale, or in which he represents another, wheth-
er he has an interest in it or not, carries fraud on the face of it. Ibid.
19. This rule applies to a purchase by executors, at open sale, although they
were empowered by the will to sell the estate of their testator for the bene-
fit of heirs and legatees, a part of which heirs and legatees they themselves
were. Ibid.
20. A purchase so made by executors will be set aside. Ibid.
21. The decisions of the courts of several States, upon this subject, examined and
remarked upon. Ibid.
22. Relaxations of this rule of the civil law, which were made in some countries
of Europe, were not adopted by the Spanish law, and of course never
reached Louisiana. Nor were those relaxations carried so far as to allow &
testamentary or dative executor to buy the property which he was appoint-
ed to administer. Ibid.
23. The maxims and qualifications of the civil law, upon this point, examined.
Ibid.
24. Although courts of equity generally adopt the statutes of limitation, yet, in a
case of actual fraud, they will grant relief within the lifetime of either of the
parties upon whom the fraud is proved, or within thirty years after it has
been discovered or become known to the party whose rights are affected by
25. Within what time a constructive trust will be barred must depend upon the
circumstances of the case, and these are always examinable. Ibid.
26. Acquittances given to an executor, without a full knowledge of all the cir-
cumstances, where such information had been withheld by the executor,
and menaces and promises thrown out to prevent inquiry, are not binding.
Ibid.
1. Under the statutes of Mississippi, providing for the admission of the evidence
of a notary public with regard to a protested note, directing the form of pro-
ceeding which the notary shall pursue, and providing further that justices
of the peace may, in certain cases, perform the duties of notaries public,
it was proper to read in evidence the original paper of the acting notary,
although the record was made out at a time subsequent to that when the
protest was actually made. Brandon v. Loftus, 127.
2. By the law merchant, when a demand of payment is made upon the drawee
of a foreign bill of exchange, the bill itself must be exhibited. Musson v.
Lake, 262.
3. Neither the statutes of Louisiana, nor the decisions of the courts of that
State, have changed the law in this respect. Ibid.
4. The statutes and decisions examined. Ibid.
5. If, therefore, the notarial protest does not set forth the fact that the bill was
presented to the drawee, it cannot be read in evidence to the jury. Ibid.
6. Even if the laws of Louisiana, where the drawee resided, had made this
change in the law merchant, it would not affect the contract in the present
case, which is a suit against an indorser residing in Mississippi, where the
contract between him and all subsequent indorsees was made, and where
the law merchant has not been changed. Ibid.
7. In an action brought by the indorsee against the indorser of a promissory
note, which had been deposited in a bank for collection, the notary public
who made the protest is a competent witness, although he has given bond
to the bank for the faithful performance of his duty. Cookendorfer v. Pres-
ton, 317.
8. He is also competent to testify as to his usual practice. Ibid.
9. The cases reported in 9 Wheaton, 582, 11 Wheaton, 430, and 1 Peters, 25,
reviewed. Ibid.
10. At the time when these decisions were made, it was the usage in the city of
Washington to allow four days of grace upon notes discounted by banks,
and also upon notes merely deposited for collection. Ibid.
11. But since then the usage has been changed as to notes deposited for colleo-
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tion, and been made to conform to the general law merchant, which allows
only three days of grace. Ibid.
12. Although evidence is not admissible to show that usage was in fact different
from that which it was established to be by judicial decisions, yet it may be
shown that it was subsequently changed. Ibid.
13. In the case of a protested note, it is not necessary for the holder himself to
give notice to the indorser, but a notary or any other agent may do it. Har-
ris v. Robinson, 336.
14. The object of the rule which requires the notice to come from the holder is
to enable him, as the only proper party, either to fix or waive the liability
of indorsers. Ibid.
15. Where a note was handed to a notary for protest by a bank, and it did not
appear whether the bank or the last indorser was the real holder of the
note, and the notary made inquiries from the cashier and others not unlikely
to know, respecting the residence of the prior indorsers, and then sent no-
tices according to the information thus received, it was sufficient to bind
such prior indorsers. Ibid.
16. If the last indorser was the holder, the cashier of the bank was his agent for
collecting the note, and the evidence showed that in fact the last indorser
knew nothing more than the cashier. Ibid.
17. The cases on this subject examined. Ibid.
18. The facts being found by a jury, the question, whether or not due diligence
was used, is one of law for the court. Ibid.
19. If due diligence is used in sending the notice to the indorser, it is immaterial
whether it is received or not. Ibid.
20. The statutes of Alabama require the negotiability and character of bills of
exchange, foreign and inland, and promissory notes, payable in bank, to be
governed by the general commercial law. Smyth v. Strader et al.
21. If a partner draws notes in the name of the firm, payable to himself, and then
indorses them to a third party for a personal and not a partnership consid-
eration, the first indorsee cannot maintain an action upon them against the
firm, if he knew that the notes were ante-dated. Ibid.
22. But if the first indorsee passes them away to a second indorsee before the
maturity of the notes, in the due course of business, and the second indorsee
has no knowledge of the circumstances of their execution and first indorse-
ment, he may be entitled to recover against the firm, although the partner
who drew the notes committed a fraud by ante-dating them. Ibid.
23. But if the second indorsee received the notes after their maturity, or out of
the ordinary course of business, or under circumstances which authorize an
inference that he had knowledge of the fraud in their execution or first in-
dorsement, he cannot recover. Ibid.
24. These things are matters of evidence for the jury. Ibid.
25. Evidence is admissible to show that, in an account current between the first
and second indorsee, no credit was given in it for the notes when they were
passed from the first to the second indorsee. Ibid.
26. So, evidence of drawing and re-drawing between the first and second indor-
see, alluded to in the account current, is admissible. Ibid.
27. The testimony of one of the partners, offered for the purpose of proving the
fraud committed by the drawer of the notes, is not admissible. This court
again recognizes the rule upon this subject established in the case of Hen-
derson v. Anderson, 3 Howard, 73. Ibid.
28. The partner offered as a witness, was a party upon the record, and thus, also,
disqualified. Ibid.
1. Where a person domiciled in England died, leaving property both in Eng-
land and Pennsylvania, and the executor took out letters testamentary in
both countries, in a suit in England against the executor by the administra-
tor of a deceased claimant, the parties were restricted to the limits of the
country to which their letters extended. Aspden v. Nixon, 467.
2. The executor could not rightfully transmit the Pennsylvania assets to be dis-
tributed by a foreign jurisdiction. Ibid.
3. So, the administrator of the deceased claimant, acting under letters granted in
England, only represented the intestate to the extent of these English let
ters, and could not be known as a representative in Pennsylvania. Ibid.
4. Two suits, therefore, one in England, between the executor and the adminis-
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