1821.

U. States

V.

Wilkins.

examination, and by them disallowed in whole or in part, unless it shall be proved to the satisfaction of the Court, that the defendant is at the time of the trial in possession of vouchers not before in his power to procure, and that he was prevented from exhibiting a claim for such credit at the Treasury by absence from the United States, or some unavoidable accident. The terms of these sections are very broad and comprehensive. The third section manifestly supposes, that not merely legal but equitable credits ought to be allowed to debtors of the United States by the proper officers of the Treasury; and the fourth section prohibits no claims for any credits, which have been disallowed at the Treasury, from being given in evidence by the defendant at the trial. There being no limitation as to the nature and origin of the claim for a credit which may be set up in the suit, we think it a reasonable construction of the act, that it intended to allow the defendant the full benefit at the trial of any credit, whether arising out of the particular transaction for which he was sued, or out of any distinct and independent transaction, which would constitute a legal or equitable set-off, in whole or in part, of the debt sued for by the United States. The object of the act seems to be to liquidate and adjust all accounts between the parties, and to require a judgment for such sum only, as the defendant in equity and justice should be proved to owe to the United States. If this be the true construction of the act, which we do not doubt, the defendant might well claim a credit in this suit for the sums due him, even if they had

grown out of distinct and independent transactions, for he is legally, as well as equitably, entitled to them. But even if this construction of the act were doubtful, upon the facts of this particular case, as far as we can gather them, we should have probably come to the same result.

This suit seems to have been brought by the United States for the money price of certain provisions received by the defendant under the articles of agreement. The real object of the suit is, therefore, to procure an account and settlement of that claim. It forms an item in the general account between the parties, like every other advance made by the Government to the defendant; and, independent of any statute provision, the defendant would have a right to show, that he had accounted for the value of such advance by delivering the equivalent provisions for which it was originally made. In this view, also, the fourth question might be answered in the affirmative.

The opinion of the Court will be certified accordingly to the Circuit Court of Kentucky:

1. That under the contract marked B., the defendant is not entitled to the sums disallowed in the paper D., nor to the sums specifically charged in the first and second items of the paper C., which were disallowed by the Treasury officers; but is entitled to the sum charged in the third item of the paper which was disallowed by the same officers, if Fort Deposit was within the reputed boundary of the Chocktaw country.

C.,

1821.

U. States

V.

Wilkins.

1921.

Young

V.

Bryan.

2. That the defendant is not entitled to the first and second items in the paper C., on the ground, that the place at which the rations were delivered is not specially provided for in the contract; but that he has a right to show, that the sum allowed by the Secretary of War for those rations, is not a reasonable compensation.

3. That upon such proof the defendant is entitled to a reasonable compensation for those rations, to be ascertained by the jury.

4. That the defendant ought to be permitted to claim a credit for the above sums due him in this suit.

Certificate accordingly.

(PRACTICE.)

YOUNG V. BRYAN et al.

The Circuit Court has jurisdiction of a suit brought by the endorsee of a promissory note, who is a citizen of one State, against the endorser, who is a citizen of a different State, whether a suit could be brought in that Court by the endorsee, against the maker, or not. No protest of a promissory note, or inland bill of exchange, is neces

sary.

ERROR to the Circuit Court of Tennessee.

This was an action of assumpsit, brought in the Court below, by the defendants in error, citizens of Pennsylvania, against the plaintiff in error, a citizen

of Tennessee, as the endorser of a promissory note drawn by another citizen of Tennessee, and endorsed to the plaintiffs. The only questions in the cause

were,

(1.) Whether the Court below had jurisdiction; and, (2.) whether notice of protest was necessary to charge the endorser in this case. Judgment having been rendered against the defendant below, the cause was brought by writ of error to this Court.

1821.

Young

V.

Bryan.

Mr. Eaton, for the plaintiff in error, (1.) argued, February 224. that under the 11th section of the judiciary act of 1789, c. 20, the Court below had not jurisdiction. The decision of this Court, in the cases of Montalet v. Murray," and Turner v. the Bank of North America,' shows, that where jurisdiction does not attach between the drawer and drawee, assignment cannot give jurisdiction. The endorser can only transfer by the assignment, the rights and interest he possesses; as he had no right (he and the drawer being citizens of the same State) to sue in the Federal Court, he could not consequently create any such right by the assignment. It would amount to a creation of jurisdiction by consent, which the law does not warrant. The case of Slacum v. Pomery, went off on the ground of the want of notice. At any rate, that was a foreign bill, and perhaps within the operation of the 11th section of the judiciary act it is, then, not authority in this case. In the language of the 11th section of the judiciary act,

a 4 Cranch, 46.

b 4 Dall. 11.

c6 Cranch, 221.

1821.

Young

V.

Bryan.

this is a "suit to recover the contents of a promissory note in favour of an assignee," &c. The declaration contains but a single count, founded upon the assignment, non-payment, and consequent liability of the plaintiff in error. There is no count for money had and received; there is but a single count, and that is to recover the contents of the note, a chose in action, which is against the express provision of the act. There is no distinct. substantive contract, between the endorser and holder of the note; and, if there were any, it is not declared on. (2.) No notice of protest was given. This was necessary to charge the endorser:" and the declaration should contain an averment of notice of protest."

Mr. Sergeant, contra, (1.) admitted, that where by the judiciary act, jurisdiction does not attach between the drawer and the payee of a note, assignment cannot give jurisdiction. Such, and no more, is the amount of the decisions referred to. If the payee of the note could not maintain a suit in the Federal Courts against the drawer, neither can the endorsee maintain a suit in the Federal Courts against the drawer. But the jurisdiction of the Federal Courts extends to the case of a suit brought by the endorsee against the endorser, being citizens of different States, whether a suit could have been there brought against the drawers or not. By the words of the act, a general jurisdiction is given, in terms,

a French's Exrx. v. The Bank of Columbia, 4 Cranch, 141. Donaldson v. Means, 4 Dall. 109.

b Slacum v. Pomery, 6 Cranch, 221.