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Wilson v. Smith. 3 H.

John, he, St. John, had failed in business, and had departed this life; that he failed, and had not recovered his affairs at the time of his death, and was insolvent; that the credit for the amount of the bill, carried by the defendant to St. John's account, was made in payment of a previously existing debt due by St. John to the defendant, no new transaction having arisen between the defendant and St. John after the payment of the said bill to the defendant; that, to secure the payment of his debt to the defendant, St. John had transferred to the defendant three hundred shares of the capital stock of The Augusta Insurance and Banking Company, upon which $100 per share had been paid ; that the defendant appeared satisfied with this security, and that St. John would then have given additional security had the defendant required it.' That the draft or bill of exchange was made payable to the order of Henry B. Holcombe, the drawer, and by him indorsed in blank, and indorsed by St. John to H. Smith, Esq., (the defendant,) or order. That, when the draft was sent to the defendant for collection, he was not apprised to whom it belonged, nor were any instructions or directions given to him as to the disposition of the money when collected.

“ The following point was presented, during the progress of the trial, for the opinion of the judges, on which the judges were opposed in opinion, namely: Whether there was such privity of contract between the plaintiffs and defendant, either express or implied, as would enable the plaintiffs to maintain the action for money had and received.

" Which said point, upon which the disagreement has happened, is stated above, under the direction of the judges of the said court, at the request of the counsel for the parties in the cause, and ordered

be certified into the supreme court of the United States, at the next session, pursuant to the act of congress in such case made and provided."

Berrien, for the plaintiffs.

Nelson, (attorney-general,) for the defendant.

[ * 769 ] * TANEY, C. J., delivered the opinion of the court.

We think the question certified has been settled by the decision of this court, and that it is unnecessary to go into an examination of the English laws which were cited in the argument. It is admitted that the bill was the property of the plaintiff, and was transmitted to St. John, at Augusta, for collection, and by him transmitted to the defendant, at Savannah, where the drawer resided; and

Wilson v. Smith. 3 H.

that no consideration was paid for the bill, either by the defendant or St. John. According to the usual course of dealing among merchants, the transmission of the paper to St. John gave him an implied authority to send it for collection to a sub-agent at Savannah, for it could not have been expected by the plaintiff that St. John was to go there in person, either to procure the acceptance of the bill, or to receive the money, nor could St. John have so understood it. So far, therefore, as the question of privity is concerned, the case before us is precisely the same with that of the Bank of the Metropolis v. The New England Bank, 1 How. 234. In that case, the bills upon which the money had been received by the plaintiff in error, were the property of the New England Bank, and had been placed by it in the hands of the Commonwealth Bank for collection, and were transmitted by the last-mentioned bank to the Bank of the Metropolis, in Washington, where the bills were payable. And upon referring to the

case, it will be seen that the court entertained no doubt of the right of the New England Bank to maintain the action * for money had and received, against the Bank of the Me- [ *770 ] tropolis ; and the difficulty in the way of its recovery in the action was not a want of privity, but arose from the right of the Bank of the Metropolis to retain, under the circumstances stated in the case, for its general balance against the Commonwealth Bank. In that case, as in the present, the agent transmitting the paper appeared, by the indorsements upon it, to be the real owner, and the party to whom it was transmitted had no notice to the contrary, and the money received was credited to the Commonwealth Bank. We think the rule very clearly established, that whenever, by express agreement between the parties, a sub-agent is to be employed by the agent to receive money for the principal, or where an authority to do so may fairly be implied from the usual course of trade, or the nature of the transaction, the principal may treat the sub-agent, as his agent, and when he has received the money, may recover it in an action for money had and received.

Another question has been raised in the argument, that is, whether the defendant has a right to retain on account of the money due to him from St. John? As this point has not been certified, it is not regularly before the court, yet as it has been fully argued on both sides, and evidently arises in the case, it seems proper to express our opinion upon it, as it may save the parties from further litigation and expense.

Upon this part of the case, as well as upon the question certified, we think the case of the Bank of the Metropolis v. The New England Bank, 1 How. 234, decisive against the defendant. It appears

54

VOL. XV.

Winston v. United States. 3 H.

from the statement that he made no advances, and gave no new credit to St. John on account of this bill. He merely passed it to his credit in account. Now if St. John had owed him nothing, upon the principles we have already stated, the plaintiff would be entitled to recover the money; and we see no reason why he should be barred of his action because St. John was debtor to the defendant, since the case shows that he incurred no new responsibility upon the faith of this bill, and his transactions with St. John remained in all respects the same as they would have been if this bill had never been transmitted to him. In the case of the Bank of the Metropolis and the New England Bank, it appeared in evidence that there had for a long time been mutual dealings between these two banks, in the collection of money for each other, and that balances were suffered to remain, and credit given, upon the faith of the paper transmitted or expected to be received, according to the usual course of their business with one another. And the court held, that if credit had been so given, the party giving it had the same right to retain as if he had made an advance of money; the hazard he ran by the extension of the credit giving him as just and equitable a right to retain, as if he had incurred responsibility by an advance of money. The right to retain,

in that case, depended upon the fact that credit was given. [ *771 ] But in * the case at bar, this fact is expressly negatived, and

there is no ground, therefore, upon which he can retain, according to the principles decided in the case referred to.

As this point, however, is not in strictness regularly before this court, we shall confine our answer to the question sent here for decision, and shall direct it to be certified to the circuit court, that there was such a privity of contract between the plaintiffs and defendant, as would enable the former to maintain the action for money had and received.

THOMAS B. WINSTON V. THE UNITED STATES.

3 H, 771.

Nelson, (attorney-general,) moved to dismiss.

TANEY, C. J. A motion has been made to dismiss the case for want of jurisdiction.

It appears that an action was brought by the United States against the plaintiff in error, in the district court of the United States for the northern district of Mississippi, (the said court having the powers of a circuit court,) for the purpose of recovering damages against the plaintiff in error, who was a notary public, for having failed to give notice to the indorsers of a promissory note, put into his hands for pro

Ross v. Prentiss. 3 H.

test, whereby the United States lost their remedy against them. The note was for $537.27, and the damages in the declaration laid at $1,000. There was a verdict and judgment for the sum of $750.36, and it is upon this judgment that the writ of error is brought.

The matter in dispute is below the amount necessary to give jurisdiction to this court, and the writ of error must therefore be dismissed.

Hugh Ross, Administrator of Hiram Pratt, deceased, Appellant, v.
William PRENTISS, Marshal, Defendant.

3 H. 771.
Where the question is whether property of greater value than $2,000 is liable to be taken in

execution for a less sum than $2,000, the latter is the amount in dispute, and there can be no appeal.

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16 wc

Nelson, (attorney-general,) moved to dismiss.

Taney, C. J. It appears from the record in this case [ *772 ) that a bill in chancery was filed in the circuit court for the district of Illinois, by the appellant against the appellee, who was the marshal for that district, stating, among other things, that the United States had recovered a judgment in the district court for the district of Illinois, against one John S. C. Hagan and Gholson Kirchenal, for the sum of $600 damages, and $35.25, costs, upon which an execution had been issued, directed to the said marshal, who had levied it upon a certain lot of land and premises described in the bill, upon which the complainant, as administrator as aforesaid, held a mortgage to a large amount mentioned in the bill, and which he was then proceeding to foreclose; and averring that the said property was not chargeable with the said judgment, and that he was in danger of losing the benefit of his mortgage, by a sale under the execution, and praying that the marshal might be enjoined from making such sale.

Upon this bill an injunction was granted, and the appellee afterwards put in his answer, and the cause was proceeded in until a final hearing, when the injunction was dissolved and the bill dismissed.

It is unnecessary to state more particularly the character of the controversy, because the case now comes before us on a motion to dismiss, upon the ground that the matter in dispute is not sufficient in amount to give jurisdiction to this court.

The motion is resisted by the appellant, who insists that the jurisdiction depends on the value of the property upon which the execution has been laid, and the amount of the appellant's interest in it. And as thị property is worth much more than the sum required to

United States v. King. 3 H.

give jurisdiction, and the mortgage also for a larger amount, he has a right to appeal to this court from the decree of the circuit court; because, as he alleges, he may lose the whole benefit of his mortgage by a forced sale under the execution.

We think otherwise. The only matter in controversy between the parties is the amount claimed on the execution. The dispute is, whether the property in question is liable to be charged with it or not. The jurisdiction does not depend upon the amount of any contingent loss or damage which one of the parties may sustain by a decision against him, but upon the amount in dispute between them; and as that amount is in this case below $2,000, the appeal must be dismissed.

45 563 $65 366 63 148 169 127 668 553 , 564

73 THE UNITED STATES, Plaintiff in Error, v. RICHARD King and DANIEL

W. Coxe, Defendants.

3 H. 773. Though a document, purporting to be a return of a Spanish survey, had been recognized by

the Spanish colonial authorities as genuine, and is therefore to be deemed so, primâ fucie,

yet it may be shown to be antedated and forged. A Spanish grant, which did not contain any description by which the land could be located,

and was connected with no survey, did not create any private property, in any part of the

public domain ; such a title was not confirmed by the treaty of cession of Louisiana. An equitable Spanish title, not confirmed by the United States, cannot prevail against a

legal title acquired from the United States. The act of April 29, 1816, § 1, (3 Stats. at Large, 329,) did not confirm the title to a quan

tity of land exceeding one league square.

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Error to the circuit court of the United States for the eastern district of Louisiana, in a petitory suit. The decision of the court did not proceed upon the particular terms of the documents introduced, and is entirely intelligible without their insertion.

Nelson, (attorney-general,) for the United States.

Coxe, contrà.

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[ *784 ] Taney, C. J., delivered the opinion of the court.

This case is one of great importance, from the amount of property in dispute; and if the court entertained any doubt upon the questions of law or of fact which are presented by the record, we should regard it as our duty to hold it under advisement, and post

pone the decision to another term. But the principles of [ *785 ] law upon which it * depends are not new in this court, and

have often been the subjects of discussion and consideration since the cession of Louisiana and Florida to the United States. And having, after a careful examination of the evidence, formed a

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