of judgment as the Government itself; and the 1824. U. States V. Kirkpatrick. of payments. The last ground respects the manner in which Appropriation the Court below laid down the law respecting the appropriation of payments. In our opinion, there is no error in the charge on this point. The general doctrine is, that the debtor has a right, if he pleases, to make the appropriation of payments; if he omits it, the creditor may make it; if both omit it, the law will apply the payments, according to its own notions of justice. It is certainly too late for either party to claim a right to make an appropriation, after the controversy has arisen, and a fortiori at the time of the trial.. In cases like the present, of long and running accounts, where debits and credits are perpetually occur. Osborn V. 1824. ring, and no balances are otherwise adjusted than for the mere purpose of making rests, we are of opinion, that payments ought to be applied to extinguish the debts according to the priority of time: so that the credits are to be deemed payments pro tanto of the debts antecedently due. U.S. Bank. Upon the whole, it is the opinion of the Court, that for the error of the District Court, on the question of laches, the judgment ought to be reversed, and a venire facias de novo awarded, with directions, also, to allow the parties liberty to amend their pleadings. [CONSTITUTIONAL LAW. CHANCERY.] OSBORN and others, Appellants, V. The PRESIDENT, Directors, anD COMPANY OF THE The act of incorporation of the Bank of the United States gives the Circuit Courts of the United States jurisdiction of suits by and against the Bank. This provision in the charter is warranted by the 3d article of the Constitution, which declares, that," the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." It is unnecessary for an atter ›y or solicitor, who prosecutes a suit for the Bank of the United States, or other corporation, to produce a warrant of attorney under the corporate seal. Whatever authority may be necessary for an attorney or solicitor to appear for a natural or artificial person, it is not a ground of re versal for error, in an appellate Court, that such authority does not 1824. In general, the answer of one defendant in equity cannot be read in A Court of equity will interpose by injunction to prevent the transfer A State cannot tax the Bank of the United States; and any attempt, APPEAL from the Circuit Court of Ohio. The bill filed in this cause, was exhibited in the Court below, at September term, 1819, in the name of the respondents, and signed by solicitors of the Court, praying an injunction to restrain Ralph Osborn, Auditor of the State of Ohia, Osborn V. U. S. Bank. 1824. Miller V.. Stewart. ten on several sheets of paper; as much as a policy of insurance is the several contract of each underwriter, or as a bond would be the several deed of as many individuals as executed it, if it be so expressed, making them, if such be the letter of it, severally liable, and for various sums, no one for another. Interlining another county, then, left it still the original decd, as to each county taken severally, and only operated as the creation of a new power as to another county, if, in faet, as there is no averment of a subsequent delivery, it was any thing more than a mere nugatory act. Such is certainly the good sense of the law upon the s ject; and it is supported, we conceive, by respectable opinions, and by adjudged cases. Chief Baron Gilbert, in treating on this topic observes, "but if any immaterial part of the contract be added after sealing and delivery, as, if A., with a blank left after his name, be bound to B., and after C. is added as a joint obligor, this does not avoid the bond, because this does not alter the contract of A.; for he was bound to pay the whole money without such addition:" And the case of Zouch v. Clay, which he quotes, as reported in Ventris, undoubtedly sustains his doctrine; for there the Court overruled the plea of non est factum on the interlineation, on the the ground that the bond remained the same as to him. In this case, the bond emphatically remained a 1 Loft's Gilb. 111. Ventris, 185. The note at the end of Pigot's case, 11 Coke, also recognises this distinction. the same as to this defendant, for he was still liable only as to the eight counties, and no more; and was so guarded, as to make it impossible that the interlineation of a thousand other counties could alter or increase his liability, since the names of the counties are inserted in the condition specifically. As to his liability, and as to its influence upon the power conferred in the eight counties, this interlineation was altogether insignificant, no more than a dash of the pen, and could have done him no more injury. There is nothing in the argument which would attach importance to it, on the ground of produing difficulty and confusion-it has been said, even impracticability, in rendering the accounts of this Deputy. It is begging the question, and urging the very thing as a difficulty, which the plaintiff proffers to execute. He claims a sum collected in the eight counties specified, and no more; and unless he can prove so much collected in the eight original counties, it is very clear, that he cannot have a verdict. But is he to be prejudged? is he not to be permitted to make out the case which he offers to prove? Nor is there any more weight in the argument, that, "although the defendant may have beer willing to indemnify against eight counties, it does not follow, that he would undertake to indemnify against nine." No one pretends to charge him with nine counties. Surely there was nothing in the contract, to preclude the plaintiff from extending his deputation to this individual over his whole 1824. Miller V. Stewart |