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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