own hands, or to distribute the same among the parties entitled, without a special order from the Court; but such an irregulari- ty may be cured by the assent and ratification of all the parties interested, if there be no mala fides. The Collector, 194 7. Under the 67th section of the Collection Act of the 2d of March, 1799, c. 128. where goods were entered by an agent of the owner on his behalf, and the entry included only a part of the goods which the packages contained, and the owner sub- sequently made a further, or post entry of the residue of the goods; and the packages being opened several days afterwards and examined by the Collector in the presence of two mer- chants, and their contents found to agree with the two entries taken together, but to differ materially from the first entry; held, that the Collector was not precluded from making a seizure of the goods after the second entry, for a variance between the contents of the packages and the first entry, and that such seizure must be followed by confiscation, unless it should appear that such difference pro- ceeded from accident and mis- take, and not from an intention to defraud the revenue. The United States v. Six Packages of Goods,
H. and others, merchants in Balti- more, consigned a vessel and
cargo to W. and others, mer- chants in Amsterdam, with in- structions to them respecting her ulterior destination, which showed, that on the failure of getting a freight to Batavia, or of selling the vessel at a price limited, she was to proceed to St. Petersburg, and there take in a return cargo of Russia goods for the United States, but with instructions to the master committing to him the manage- ment of the ulterior voyage. No freight to Batavia could be obtained, and the vessel could not be sold for the price limit- ed at Amsterdam; and W. and others, purchased in Amsterdam, with the concurrence of the master, a return cargo of Ras- sian goods, partly with the mo- ney of H. and others, and partly with money advanced by them- selves. On the return of the tessel to Baltimore, H. and others objected to the purchase of this cargo in Amsterdam, as being contrary to express or- ders, and gave notice to W. and others, of their determination to hold them responsible for all losses sustained in consequence of this breach of instructions ; but received the goods and sold them. W. and others brought an assumpsit against H. and others, to recover from them the moneys advanced. The de- claration contained the three usual money counts. Held, 1st. That the plaintiffs had a demand in law against the defendants, which could be maintained in this form of action. 2dly. That whether the plaintiffs could, or could not, be made responsible in any form of action which might be devised for the possible loss
resulting from the breaking up of the intended voyage to St. Petersburgh, the defendants were not entitled to a deduction from the plaintiffs' demand, for the amount of such loss. Wil- links v. Hollingsworth, 240. 251
See CONSTITUTIONAL LAW, 2. Lo- CAL LAW, 5, 6.
BILLS OF EXCHANGE AND PROMISSORY NOTES.
1. Where the second day of grace falls on Saturday, it is the last day of grace; and notice of non- payment given to the drawer of a bill on that day, after a de- mand upon the acceptor on the same day, is sufficient to charge the drawer. Bussard v. Lever- ing, 102 2. Notice to the drawer, by putting the same into the post-office, where the persons live in diffe- rent places, is good. ib.
3. After demand of the maker of a
note, on the third day of grace, notice to the endorser on the same day, is sufficient by the general law merchant. Linden- berger v. Beall, 104 4. Evidence of a letter, containing notice, having been put into the post-office, directed to the en- dorser, at his place of residence, is sufficient proof of the notice to be left to the jury, and it is unnecessary to give notice to the defendant to produce the letter before such evidence can be admitted.
5. No protest of a promissory note, or inland bill of exchange, is necessary. Young v. Bryan, 146 6. A protest of an inland bill or promissory note is not necessa- ry, nor is it evidence of the facts stated in it. The Union Bank v. Hyde, 572 7. The following undertaking of the endorser of a promissory note, I do request that here- after any notes that may fall due in the Union Bank, in which I am, or may be endorser, shall not be protested, as I will con- sider myself bound in the same manner as if the said notes had been or should be legally pro- tested," held to be ambiguous as to whether it amounted to a waiver of demand and notice; and parol proof admitted to show that it was the understand- ing of the parties, that the de- mand and notice required by law to charge the endorser, should be dispensed with.
1. There is no difference in re- spect to the conclusiveness of a judgment at law and of a decree in Chancery. Both are conclu- sive as to the facts directly in controversy. Hopkins v. Lee, 109. 113 2. A decree cannot be pronounced, on the testimony of a single witness, unaccompanied by cor- roborating circumstances, against a positive denial, by the defend- ant, of any matter directly charged by the bill, in the de-
fendant's answer, or answer in support of his plea. Hughes v. Blake, 453
3. A replication to a plea is an ad- mission of the sufficiency of the plea, as much as if it had been set down for argument, and al- lowed; and all that the defend- ant has to do, is to prove it in point of fact, and a dismission of the bill on the hearing is then a matter of course. ib. 4. Under what circumstances a plea of a former judgment at law, for the same cause of ac- tion, is a good bar in equity. ib. 5. To establish the existence of a trust, the onus probandi lies on the party who alleges it. Pre- vost v. Gratz, 481 6. In general, length of time is no bar to a trust clearly establish- ed to have once existed; and where fraud is imputed and pro- ved, length of time ought not to exclude relief. Ib. 497 7. But as length of time necessarily obscures all human evidence, and deprives parties of the means of ascertaining the nature of the original transactions, it operates, by way of presump- tion, in favour of innocence, and against imputation of fraud. ib.
8. The lapse of forty years, and the death of all the original parties, deemed sufficient to presume the discharge and ex- tinguishment of a trust, proved once to have existed by strong circumstances; by analogy to the rule of law, which after a lapse of time presumes the pay- ment of a debt, surrender of a deed, and extinguishment of a trust, where circumstances re- quire it.
9. The general rule is, that time is not of the essence of a contract of sale; and a failure on the part of the purchaser, or ven- dor, to perform his contract, on the stipulated day, does not, of itself, deprive him of his right to a specific performance, when he is able to comply with his part of the engagement. shier v. Gratz,
But circumstances may be so changed, that the object of the party can no longer be accom- plished, and he cannot be pla- ced in the same situation as if the contract had been perform- ed in due time. In such a case, a Court of equity will leave the parties to their remedy at law. ib.
Part performance will, under some circumstances, induce the Court to relieve. ib. But where a considerable length of time has elapsed, where the party demanding a specific per- formance has failed to perform his part of the contract, and the demand is made after a great change in the title and the value of the land, and there is a want of reciprocity in the obligations of the respective parties, a Court of equity will not inter- fere. ib. Who are necessary parties in equity. Kerr v. Watis, 550.
1. Where, in a contract with the Secretary of War, for supplying the troops of the United States with provisions, specific prices are stipulated for rations issued at certain places mentioned in the contract; and it is further provided, that " should any ra- tions be required at any places not specified in this contract, the price of the same shall be hereafter agreed on betwixt the public and the contractor;" if the parties cannot agree upon the price for the rations thus required, a reasonable compen- sation is to be allowed, and is to be proved by competent evi- dence, and settled by a jury; and the contractor, upon the trial, is at liberty to show, that the sum allowed by the Secre- tary at War is not a reasonable compensation. United States v. Wilkins,
135 2. Under the 3d and 4th sections of the act of the 3d of March, 1797, c. 74 the defendant is entitled, at the trial, to the full benefit of any credit in his fa- vour, whether arising out of the particular transaction for which he was sued, or out of distinct and independent transactions, which would constitute a legal or equitable set-off, in whole or in part, of the debt sued for by the United States. ib.
See ADMIRALTY, 1, 2, 3. 7.
See PRIZE, 12, 13. 24, 25.
1. The record of a judgment in one State, is conclusive evi- dence in another, although it appears that the suit, in which it was rendered, was commen- ced by an attachment of pro- perty, the defendant having af- terwards appeared and taken defence. Mayhew v. Thatcher,
2. An act of a State Legislature which discharges a debtor from all liability for debts contracted previous to his discharge, on his surrendering his property for the benefit of his creditors, is a law impairing the obligation of contracts within the meaning of the constitution of the United States, so far as it attempts to discharge the contract and it makes no difference in such a case, that the suit was brought in a State Court of the State, of which both the parties were ci- tizens, where the contract was made, and the discharge ob- tained, and where they conti- nued to reside until the suit was brought. Farmers and Mecha- nics' Bank v. Smith, 131 3. To an action of trespass against the Sergeant at Arms of the House of Representatives of the United States, for an assault and battery and false imprison- ment, it is a legal justification and bar, to plead, that a Con- gress was held and sitting, du-
ring the period of the trespasses complained of, and that the House of Representatives had resolved that the plaintiff had been guilty of a breach of the privileges of the House, and of a high contempt of the dignity and authority of the same; and had ordered that the Speaker should issue his warrant to the Sergeant at Arms, commanding him to take the plaintiff into custody, wherever to be found, and to have him before the said House, to answer to the said charge; and that the Speaker did accordingly issue such a warrant, reciting the said reso- lution and order, and command- ing the Sergeant at Arms to take the plaintiff into custody, &c. and delivered the said warrant to the defendant: By virtue of which warrant the defendant ar- rested the plaintiff, and con- veyed him to the bar of the House, where he was heard in his defence, touching the matter of the said charge, and the exa- mination being adjourned from day to day, and the House hav- ing ordered the plaintiff to be detained in custody, he was ac- cordingly detained by the de- fendant, until he was finally ad- judged to be guilty, and convict- ed of the charge aforesaid, and ordered to be forthwith brought to the bar, and reprimanded by the Speaker, and then dischar- ged from custody; and after be- ing thus reprimanded, was ac- tually discharged from the ar- rest and custody aforesaid. An- derson v. Dunn, 4. This Court has, constitutionally, appellate jurisdiction under the judiciary act of 1789, c. 20. s. 25. from the final judgment or
decree of the highest Court of law or equity of a State, having jurisdiction of the subject mat- ter of the suit, where is drawn in question the validity of a treaty, or statute of, or an au thority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the consti- tution, treaties, or laws of the United States, and the decision is in favour of such, their vali- dity; or of the constitution, or of a treaty, or statute of, or com- mission held under the United States, and the decision is a- gainst the title, right, privilege, or exemption, specially set up or claimed, by either party, un- der such clause of the consti- tution, treaty, statute, or com- mission. Cohens v. Virginia,
5. It is no objection to the exer- cise of this appellate jurisdic- tion, that one of the parties is a State, and the other a citizen of that State. ib. 6. The act of Congress of the 4th
of May, 1812, entitled, “an act further to amend the charter of the city of Washington," which provides, (s. 6.) that the Cor- poration of the city shall be em- powered for certain purposes, and under certain restrictions, to authorize the drawing of lot- teries, does not extend to au- thorize the Corporation to force the sale of the tickets in such lottery, in States where such sale may be prohibited by the State laws. it. 7. Decision of the House of Lords
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