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Lawrence v. McCalmont. 2 H.

drawn under the first credit after it was actually given. The contract was then a continuing contract on both, and partially performed only by one. In the next place, the guarantee itself uses language susceptible of being treated as a present continuing consideration in fieri. It is “in consideration of Messrs. J. and A. Lawrence having a credit with your house ; ” now, the word “having” imports a present or future advance, just as much as a past. The word “having" is in the present tense; and if the parties then understood the letter of credit to be in fieri, and to be absolute only upon a condition subsequent, namely, the giving of the guarantee, the word is the most appropriate which could be used. The case of Haigh v. Brooks, 10 Adol. & El. 309, approaches very near to the present. There the guarantee was "in consideration of being in advance to L. &c., I guarantee, &c.” The court of king's bench thought that the words “ being in advance" did not necessarily import a past advance, but might be applied to a present or future advance.

But that which puts the whole matter in the clearest light and beyond the reach of legal controversy, is that the advances now sued for were all made after the second letter of credit was given; and if the guarantee applied (as we hold it did) to those subsequent advances under the new engagements, then the consideration was complete as upon a present and not as upon a past consideration. In every view therefore, in which we can contemplate the objection, it has no just foundation in law.

As to the sixth point on the question, whether due notice of the failure of Messrs. J. and A. Lawrence to repay the advances had been given, it was a mere question of fact for the consideration of the

jury, as to whether the guarantor had reasonable notice or [ * 454 ) not. * They have found a verdict for the plaintiffs, and we

are not at liberty to disturb it in a court of error. As to the seventh point, the notes having been left for collection only with the agents of the London house, although indorsed by the Messrs. Lawrence, they do not fall within the strict rules of commercial law applicable to negotiable paper. Admitting for the sake of the argument, that notice was not punctiliously given by the agents, still, it resolves itself into a mere question of due diligence on the part of the agents to collect the notes, and falls under the general law of agency. No evidence was shown at the trial to establish any loss or damage on the part of Mrs. Lawrence for want of due protest and notice, (if they were not made ;) and in the absence of such proof, we are not at liberty to presume that the agents did not do their duty.

The case of Swift v. Tyson, 16 Pet. 1, is entirely distinguishable

Adams v. Roberts. 2 H.

from the present in its leading circumstances. There the question was not whether a person receiving a note as collateral security or for an antecedent debt was not bound to due diligence in its collection, otherwise he made it his own, which was not doubted; but whether taking it as collateral security or in payment of an antecedent debt, he was not to be treated as a bonâ fide holder for a valuable consideration, unaffected by any unknown equities between the original parties. This court held that he was.

Upon the whole we are all of opinion that there was no error in the rulings of the court, and the judgment is, therefore, affirmed with costs.

Ex parte in the Matter of CHARLES F. SIBBALD, Appellant, v. The

UNITED STATES.

2 H. 455.

2h 455 17 wa283

This was a petition to alter a mandate, originally issued in a Florida land case, in 1836, and concerning which a further order was made in 1838. The petitioner now asked to have the mandate so changed that he should be enabled to take the 16,000 acres, to which he was held entitled, out of any ungranted public lands in East Florida.

Story, J., delivered the opinion of the court.

[ * 457 ] On consideration of the petition filed in the above cause, it is the opinion of this court that it has no power to grant the relief prayed. Whereupon, it is now here ordered and adjudged by this court, that this petition be and the same is hereby dismissed.

Austin L. Adams and Ann C. HARDING, Plaintiffs in Error, v. JULIA

ROBERTS.

2 H. 486.

The court cannot give an instruction which makes the case turn on one point only, when

there are other grounds necessary to be passed upon by the jury; nor one which assumes as true a controverted fact.

Error to the circuit court for the county of Alexandria in the District of Columbia, in a suit for freedom by the defendant in error. As the opinion of the court rested upon the want of applicability to the evidence of the instructions prayed for, it is necessary to insert the bills of exception.

Adams v. Roberts. 2 H.

same.

[ * 488 ]

1st Bill of Exceptions. At the trial of this cause, the petitioner having given evidence tending to show that, previous to the year 1801, Sarah, the mother of the petitioner, was the property of Simon Summers, and remained in his possession until about the year 1799, when she was placed, by said Summers, in the possession of Wesley Adams, who, about that time, married the daughter of said Summers, and who lived then, and continued to live for many years thereafter, in Fairfax county, Virgínia; then gave evidence that diligent search had been made among the records of Fairfax county, Virginia, for an original deed of manumission of said petitioner's mother, by said Summers, but no such original deed could be found, and that the same is lost; but that there was among said records the enrolment of a deed, whereof the annexed paper, marked A, is admitted to be a true copy, and of the certificates of acknowledgment, and the recording of the

And further offered evidence, that said deed was personally acknowledged by the said Simon Summers, in the county court of the said county of Fairfax; the said slave, Sarah, being then there in the said county, and having always before resided in the said county. And the petitioner then read in evidence the said paper, marked A, purporting to be the copy of a deed of manumission from said Summers, of the negro woman, named Sarah, named therein; and then

gave evidence tending to show that the petitioner was the [ * 489 ] child of said * named Sarah, and is now about 38 (28) years

of age; and further gave evidence tending to show that the defendant, Harding, makes no claim to the petitioner in her own right, but solely by the direction of her co-defendant, Adams, who is the son of the Wesley Adams above named, and his said wife, the daughter of said Summers. And the petitioner further gave evidence tending to show that, about the year 1820, the said Wesley Adams brought Sarah, the petitioner's mother, to the public poor-house, in Fairfax county, State of Virginia, and applied to the overseers of the poor for said county, for alimony for said Sarah, as a free woman of color, and her two small children; and that a levy was made upon said county for their support, and they were supported until the year 1826, when a levy was made for the support of said Sarah and the three children, which she then had with her, but among whom the petitioner was not included; and that said levy, when raised, was placed in the hands of said Wesley Adams, for their support as aforesaid. And further gave evidence tending to show that Sarah passed as free for a number of years, and that Wesley Adams, about the year 1826, said that Sarah and her children were free, and that the

Adams v. Roberts. 2 H.

said Adams wanted to sell the petitioner to a witness, to serve him until she should reach twenty-five years of age, when she was to go free; and that Simon Summers had given slaves to him in such a way as to be of no service to him, as they became free so soon as they became valuable. And the petitioner further gave evidence tending to prove that, at the division of the estate of Simon Summers, who died in 1836, the defendant, Adams, was present, and that in said division, the said Sarah was brought into hotchpot, that is, Wesley Adams was charged, as distributee of Simon Summers's estate, with the value of the services of said Sarah, up to the year 1814, when she went free, and up to which time the said Summers had allowed her to serve Wesley Adams. And the plaintiff further offered evidence to prove that the said Simon Summers resided in the county of Fairfax before and until the 27th of February, 1801, when the county of Alexandria was erected,' consisting of a part of the said county of Fairfax; and the then residence of the said Simon Summers fell within the said county of Alexandria, in the District of Columbia, without any change of his actual residence; that the slaves mentioned in the deed of emancipation had always resided in the said county of Fairfax, up to the date of the said deed, and to the time of its acknowledgment as aforesaid.

The defendants then offered evidence tending to prove, that an * order was made by the overseers of the poor of [ * 490 ] the said county of Fairfax, in 1825, to demand of the said Wesley Adams the $20 advanced him for the support of Sarah's infant.children.

The defendants then gave evidence tending to show that said Sarah died some years ago on the land of John Adams, and after remaining two days there, was buried at the expense of the defendant, Austin L. Adams.

The defendants then gave evidence tending to show that at the date of the paper marked A, namely, 30th of December, 1801, the said Simon Summers was a resident of the county of Alexandria, District of Columbia, and did not reside in Fairfax county, Virginia. But the witnesses who proved the said residence of the said Summers, proved, on cross-examination, that at said last-mentioned date, the said Sarah was in the possession of Wesley Adams, in Fairfax county, Virginia ; and that at said date Simon Summers owned 200 acres of woodland in said Fairfax county, and was interested in another tract of land in said Fairfax county, on which there was a house, and which was cultivated land, but which was tenanted by one Furguson; and that said Simon Summers resided before 1800,

1 2 Stats. at Large, 105.

Adams v. Roberts. 2 H.

in Fairfax county, in Virginia, and never removed from the place where he then resided; but that the place of his residence was included within the lines of the District of Columbia, and that he continued to reside in the same place until his death.

Whereupon the defendants, by their counsel, prayed the court to instruct the jury, that if they shall believe, from the above evidence, that the said Simon Summers did reside in the county of Alexandria, District of Columbia, at the time of the executing and acknowledging the deed aforesaid, and continued so to reside until his death, in 1836, then that the deed of emancipation so, as aforesaid, made, executed, acknowledged, and recorded in the county court of Fairfax county, Virginia, does not entitle the petitioner to freedom under the statute of Virginia, in such cases made and provided, entitled “ An act reducing into one the several acts concern. ing slaves, free negroes, and mulattoes,” passed December 17, 1792.

But the court refused to give the instruction as prayed, &c. [*491 ]

* 2d Bill of Exceptions. Be it remembered, that on the trial of this cause, the petitioner and defendant having offered the evidence contained in the first bill of exceptions, and this being all the evidence adduced on the part of the petitioner and defendant aforesaid, the defendants, by their counsel, prayed the court to instruct the jury that the testimony aforesaid, although believed by the jury, is not sufficient in law to maintain the issue joined; and, therefore, the law is for the defendants.

But the court refused to give the instruction so prayed, not being willing to certify that the evidence so stated as aforesaid is all the evidence adduced by the parties in the said cause, and because such an instruction would take the cause from the consideration of the jury, without giving the petitioner the benefit of the presumption which the jury might draw from the facts so given in evidence.

Neale and Bradley, for the plaintiffs in error.

Brent, Sen., for the defendant.

[ *494 ] * Wayne, J., delivered the opinion of the court.

We think the court below did not err in refusing to give the instructions asked for by the defendants in either the 1st or 2d bill of exceptions.

By the statute of Virginia, two modes are pointed out in which manumission by deed can be accomplished.

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