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INDEX.

ABATEMENT.
REVENUE Laws, 10.

ACKNOWLEDGMENT.

DEED.

ACTION.
1. A public officer is not liable to an action for an honest mistake, made in a matter

where he was obliged to exercise his judgment, though an individual may suffer from

his mistake. Kendall v. Slokes, 296.
2. An application by a private person for a writ of mandamus, proceeds upon the

ground that he has no other adequate remedy; and after the mandamus has been
awarded, the applicant cannot have an action on the case for the same cause for

which the mandamus was granted, though he may for disobeying the mandamus. lb.
3. The effect of the 2d section of the act of March 3, 1839, (5 Stats. at Large, 348)

is, that an action cannot be maintained against a collector of customs to recover back
money illegally exacted by him as, and for, duties, although paid under protest.

Cary v. Curtis, 409.
4. An action at law by the bearer will lie on a note payable to A B or bearer for the

use of an unincorporated company, of which the promisors are members. Bonna-
fee v. Williams, 558.
ARBITRATION; BOND; EXECUTORS, &c.; FACTOR ; LIBEL, 1. 4; MONEY HAD

AND RECEIVED; REVENUE Laws, 13.

ADMIRALTY.
It belongs to the jurisdiction of the admiralty to entertain suits to try the title to pro-
ceeds in the registry of the court. Andrews v. Wall, 555.

Costs; SHIPS, &c.

ADVERSE POSSESSION.

TENANTS IN COMMON.

AGENT.
1. If the owner of the bill send it to an agent, not residing at the place where it is pay-

able, for collection, the agent has an implied authority to employ a sub-agent at that
place; and if the sub-agent receive the contents, the owner can sue him for money

bad and received, though the sub-agent had no notice when he collected the money,

that the agent was not the owner. Wilson v. Smith, 635.
2. And in such a case, the sub-agent cannot retain part of the proceeds, on account of

a debt of the agent, unless he has given credit on the faith that the agent owned the
bill. 16.

COLLATERAL SECURITY; REVENUE LAWS, 11.

ALABAMA.
PLEADING, 1; SEA.

ALIEN.
COURTS OF THE UNITED STATES, 1.

AMENDMENT.
1. At the term when a verdict was rendered, a motion was made in arrest of judgment,

for a misjoinder of counts, and the judgment was ordered to be arrested, but no
formal judgment, that the plaintiff take nothing by his writ non obstante veredicto,
was entered. At the second term following, the court, on motion, set aside the order
arresting the judgment, allowed a nolle prosequi to be entered on one count to cure
the misjoinder, and ordered the verdict to be entered on the other count, to which it
appeared the evidence was applicable, and entered a judgment nunc pro tunc for the
plaintiff

. Held, 1. That this amendment of the verdict and of the record was within
the power of the court under the statute of jeofails, (the 32d section of the judiciary
act of 1789, 1 Stats. at Large, 91,) and, being an exercise of the discretion of the
court below, it could not be revised by a writ of error. Matheson's Administrators y.

Grants Administrator, 114.
2. There is no fixed time within which verdicts and judgments may be amended; even

after error brought, if within a reasonable time, such amendments may be allowed,
and it is a salutary practice thus to cure mere formal defects. 16.

APPEAL.
1. Though this court has jurisdiction of appeals only from final decrees of the circuit

courts, yet, if this court actually entertains jurisdiction and affirms the decree of a
circuit court, and remands the case for further proceedings, the question whether
the decree appealed from was final, cannot be raised by a second appeal from the
decree of the circuit court subsequent to those further proceedings; such an appeal
brings under review only the proceedings of the circuit court subsequent to the man-

date. Washington Bridge Company v. Stewart, 498.
2. An appeal bond, approved by the court, is sufficient, though signed by only part of

the appellants. Brockett v. Brockett, 107.
3. A petition to open a final decree, filed and taken into consideration by the court at

the same term in which the decree was made, suspends the decree, so that the ten
days, allowed to supersede it by an appeal, do not begin to run till the petition is dis-
posed of. Ib.
Bond, 1; Citation; Costs; Courts OF THE UNITED STATES, 8. 14. 22.

ARBITRATION.
After an award, and the receipt of the money awarded, an action for the original

cause cannot be maintained upon the ground that the claimant did not claim or
prove before the referee all the damages he had sustained. Kendall v. Stokes, 296.

AUCTION

SALE, 1.

BAILMENT.
BOND, 2; COLLATERAL SECURITY.

BANK.
USURY, 1.

BALTIMORE AND OHIO RAILROAD COMPANY.
The State of Maryland passed a law to subscribe $1,000,000 to the stock of the Balti-

more and Ohio Railroad Company, and providing that, if the company should be
located so as not to pass through certain towns in the county of Washington, the com-
pany should forfeit $1,000,000 to the State, for the use of Washington county. The
company assented to this law, as part of its charter. Held, that this was a law in-
flicting a penalty; that nothing was due to the county by contract, and that the State
could release and had released the penalty by a subsequent law to that effect. Mary-
land v. Baltimore and Ohio Railroad Company, 541.

BANKRUPT.
1. Under the bankrupt act of 1841, (5 Stats. at Large, 440,) fiduciary debts, contracted

before the passage of the act, constitute no objection to the discharge of the debtor

from other debts. Chapman v. Forsyth, 87.
2. A balance, due from a factor to his principal, is not a fiduciary debt within the

meaning of that act. Ib.
3. A fiduciary creditor is not affected by proceedings in bankruptcy, unless he has vol-

untarily come in and proved his debt. Ib.
4. The bankrupt act of August 19, 1841, (5 Stats. at Large, 440,) conferred upon dis-

trict courts of the United States power to determine the validity of a mortgage

alleged to exist on the property of the bankrupt. Ex parte Christy, 451.
5. Under the bankrupt law of August 12, 1841, (5 Stats. at Large, 440,) a circuit

court of the United States rightly dismissed a bill, the object of which was to de-
prive a creditor of the benefit of a judgment recovered in a state court prior to the
bankruptcy, and which operated as a mortgage on the lands of the bankrupt, no
fraud or other cause of invalidity being alleged. Nugent v. Boyd, 501.

BILLS OF EXCHANGE AND PROMISSORY NOTES.
1. A drawer had funds in the hands of the acceptor when the acceptance was made,

but withdrew them, under an agreement to provide other funds before the maturity
of the bill; if the drawer failed to keep this agreement he was not entitled to notice
of the dishonor of the bill, for he had no right to expect it would be paid. Rhett v.

Poe, 167.
2. If the holder of a bill is unable, by due diligence, to ascertain the residence of the

drawer, he is excused from giving him notice of the dishonor of the bill. 16.
3. If the drawer and acceptor are copartners in the transaction out of which the bill

grew, the drawer is not entitled to notice. Ib.
4. An indorser of a note, intended to guarantee a bill of exchange, cannot avail him-

self of want of notice to the drawer of the bill. Ib.
5. Under an agreement between the third indorser and the indorsee, that the latter

should send the note to the bank, where it was made payable, for collection, and in
the event of its not being paid at maturity the indorsee should use due diligence to
collect it from the maker and prior indorsers. Held, 1. That evidence of a usage
of any banks except that at which the note was payable, was not admissible. 2. That
the presentment of the note at that bank, and demand of payment there, when the

note came to maturity, was a compliance with that part of the contract respecting
the sending it for collection to that bank. 3. That an honest prosecution of a suit
against the maker and prior indorsers, to a judgment and the return of nulla bona
and proof of actual insolvency and absence from the State were due diligence,
though executions were not sent into all the counties where all the defendants re-
sided, and by an erroneous ruling of the court that judgment was for a less sum

than should have been recovered. Camden v. Doremus, 535.
6. When the facts, upon which the question of due diligence depends, are ascertained,

whether due diligence was used, is a question of law. Rhett v. Poe, 167.
7. An indorser, who has settled with the maker, and discharged him from payment, is

not entitled to notice of non-payment. Burke v. McKay, 35.
8. It is not necessary, in Mississippi, or by the general law merchant, that a promissory

note should be protested by a notary, or that he should give the notices of the dis-

honor. 16.
9. If a justice of peace be empowered, by statute, to act as a notary, he is one

quoad hoc. 16.
10. Under the statute of Maryland, if a bill of exchange be paid, supra protest, for

the honor of the payee, the first of three indorsers, who thereupon repays the
amount of the bill, with interest and charges, to the person who took the bill for his
honor, the payee thus becomes the holder of the bill, and may recover damages

against the drawer. Bank of the United States v. United States, 257.
11. Damages are allowed on bills as a compensation for not obtaining the money at the

place stipulated, and not by way of a penalty. Ib.
12. The United States, being a drawer of a protested bill, is liable to pay damages. Ib.
13. A note, payable to G. and G., primâ facie imports that there is a partnership.

Matheson's Administrators v. Grant's Administrators, 114.
Action, 4; AGENT; COLLATERAL SECURITY; Courts OF THE UNITED STATES,

20; EXECUTORS, &c.; FACTOR; WITNESS.

BOND.
1. On a motion to dismiss the writ of error in this case, because the appeal bond ran

to The People of the State of New York, or Frederick F. Backus, in the alternative,
it was held that the bond was good, and, if forfeited, might be sued upon in the
name of the people or of the relator, at the option of the government. Spalding v.

New York, 35.
2. It is not a defence to an action on the official bond of a receiver of public moneys,

conditioned to keep safely the public moneys collected by him, that the money was
feloniously stolen, without any fault on his part. United States v. Prescott, 559.

APPEAL, 2; Courts OF THE UNITED STATES, 21.

BURDEN OF PROOF.
REVENUE LAWS, 4.

CASES AFFIRMED.
1. Griffin et al.v. Thompson, 2 How. 244, reviewed and affirmed. M Farland v. Gwin,

614.
2. Taylor el al. v. Savage's Executor, 1 H. 282, affirmed. Taylor v. Savage's Execu-
tor, 151.

REVENUE LAWS, 9; WITNESS.

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CERTIORARI.
A certiorari will not be issued upon a suggestion that parts of the charge of the court

below, not appearing by the bill of exceptions to have been excepted to, are not in
the record. Stimpson v. West Chester Railroad Company, 547.

CHARGE.
DEVISE, &c. 2. 3. 6.

CHARITY.
1. The corporation of the city of Philadelphia is capable of taking under a devise of

real and personal estate in trust for the establishment and support of a college for

poor orphan boys, and can execute the trust. Vidal v. Girard's Executors, 61.
2. The 32 & 34 Hen. VIII. disabling corporations to take by devise, is not in force in

Pennsylvania. Though the 43 Eliz. c. 4, is not in force in Pennsylvania, its conserva-
tive provisions are recognized, and charitable devises are not void in that State, on
account of the inability of the trustee to take, or of the uncertainty of the bene-

ficiaries. Ib.
3. A devise upon a trust to establish and maintain a college for the education of indi-

gent orphan boys, is a charitable bequest, although the will of the testator excludes
all ecclesiastics, missionaries, and ministers of all sects, from exercising any trust or
duty concerning the college, and from admission for any purpose, or as visitors,
within its precincts. Ib.

CITATION
On motion of the defendant, this suit was dismissed because the citation was signed by

the clerk and not by a judge, pursuant to the requirement of the 22d section of the
judiciary act of 1789, (1 Stats. at Large, 84.) United States v. Hodge, 541.

WAIVER.

COLLATERAL SECURITY.
If a debtor indorse notes to his creditor as collateral security, the creditor does not

make them his own by failing to give notice to the debtor on non-payment, according
to the requirements of the commercial law; it is merely a question of due diligence,
on the part of the creditor, to obtain payment. Lawrence v. McCalmont, 178.

CONFLICT OF LAWS.

CORPORATION, 2.

COLLECTOR

ACTION, 3.

CONSIGNOR AND CONSIGNEE.

FACTOR.

CONSORTSHIP.

SHIPS &c. 1-3.

CONSTITUTIONAL LAW.
1. A state law, which prohibits property from being sold on execution for less than

two thirds the valuation made by appraisers, pursuant to the directions contained in

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