Gambar halaman

by the ninth section of the judiciary act, to confer upon Pursuant to said petition this court entered an order the District Court the exclusive original cognizance permitting argument upon the merits of the petition of all admiralty and maritime causes, the words of the and directing that due notice be given to the libelants act being in terms exactly co-extensive with the power and the clerk of the District Court. Hearing was had conferred by the Constitution. In order, therefore, in conformity to that order, and the case was held to determine the limits of the admiralty jurisdiction, under advisement. it becomes necessary to ascertain the true interpreta- Power is certainly vested in the Supreme Court to tion of the constitutional grant. On that subject three issue the writ of prohibition to the District Court when propositions may be assumed as settled by authority, that court is proceeding in a case of admiralty and and to those it will be sufficient to refer on the present maritime cognizance of which the District Court has occasion, witbout much discussion of the principles on no jurisdiction. 1 Stat. at Large, 81; U. S. v. Peters, which the adjudications rest: (1) That the jurisdic- 3 Dall. 129. tion of the District Courts is not limited to the partic- Where the District Court is proceeding in a cause not ular subjects over which the admiralty courts of the of admiralty and maritime jurisdiction, the Supreme parent country exercised jurisdiction when our Con- Court cannot issue the writ, nor can the writ be used stitution was adopted. (2) That the jurisdiction of except to prevent the doing of something about to be those courts does not extend to all cases which would done, nor will it ever be issued for acts already comfall within such jurisdiction according to the civil law pleted. Ex parte Christy, 3 How. 292; U. S. v.

v. Hoffand the practice and usages of continental Europe. man, 4 Wall. 158. (3) That the nature and extent of the admiralty juris- Admiralty and maritime jurisdiction is conferred by diction conferred by the Constitution must be deter- the Constitution, and Judge Story says it embraces mined by the laws of Congress and the decisions of two great classes of cases--one dependent upon localthis court, and by the usages prevailing in the courts ity, and the other upon the nature of the contract. of the States at the time the Federal Constitution was Damage claims arising from acts and injuries done adopted. No other rules are known which it is reason- within the ebb and flow of the tide have always been able to suppose could have been in the minds of the considered as cognizable in the admiralty, and, since framers of the Constitution than those which were then the decision in the case of The Genesee Chief, it is conin force in the respective States, and which they were sidered to be equally well settled that remedies for accustomed to see in daily and familiar practice in the acts and injuries done on public navigable waters, not State courts.

within the ebb and flow of the tide, may be enforced Authority is conferred upon the libelants as the in the admiralty as well as for those upon the high proprietors of the wharf and slip in question by the seas and upon the coast of the sea. law of the State to charge and collect wharfage and Speaking of the second great class of cases cogniza. dockage of vessels lying at said wharf and within the ble in the admiralty, Judge Story says, in effect, that slip adjoining the wharf of the libelants.

it embraces all contracts, claims and services which Sufficient appears to show that the respondents are are purely maritime, and which respect rights and the owners of the barge named in the libel; that on duties appertaining to commerce and navigation. 2 the tenth of October, 1876, she completed a trip from Story on Const., $ 1666. the port of Baltimore for the port of New York, and Public navigable waters, where inter-state or foreign that she took wharfage at the wharf or pier of the commerce may be carried on, of course, include the libelants, wbere she remained for eleven days. For high seas, which comprehend, in the commercial sense, the use of the berth occupied by the barge, the libel- all tide-waters to high-water mark. ants charged thirty-four dollars and twenty cents as Maritime jurisdiction of the admiralty courts in wbarfage and dockage. Due demand was made and cases of contracts depends chiefly upon the nature of payment being refused, the libelants instituted the the service or engagement, and is limited to such subpresent suit, which is a libel in rem against the barge jects as are purely maritime, and have respect to comto recover the amount of that charge. Process was merce and navigation within the meaning of the Conserved, and the respondents appeared and excepted to stitution. the libel, and set up that process of condemnation Wide differences of opinion have existed as to the should not issue against the barge for the following extent of the admiralty jurisdiction, but it may now reasons: (1) Because no maritime lieu arises in the case be said, without fear of contradiction, that it extends for the matters set forth in the libel. (2) Because no to all contracts, claims and services essentially marilien in such a case is given for wharfage against boats time, among which are bottomry bonds, contracts of or vessels by the laws of the State. (3) Because the affreightment, and contracts for the conveyance of law of the State referred to in the libel as giving a passengers, pilotage on the high seas, wharfage, agreelien for wharfage is unconstitutional and void, for the ments of consortship, surveys of vessels damaged by following reasons: (1) Because it imposes a restriction the perils of the seas, the claims of material men and on commerce. (2) Because it imposes a duty of ton- others for the repair and outfit of ships belonging to nage on all vessels of the character and description of foreigu nations or to other States, and the wages of that of the respondents. (3) Because it discriminates mariners, and also to civil marine torts and injuries, against the boats or barges of persons who are not cit- among which are assaults or other personal injuries, izens of the State where the proprietors of the wharf collision, spoliation and damage, illegal seizures or reside.

other depredations on property, illegal dispossession Pending the proceedings in the District Court, the or withholding of possession from the owners of ships, respondents presented a petition here, asking leave to controversies between the part owners as to the emmove this court for a prohibition to the court below, ployment of ships, municipal seizures of ships, and forbidding the District Court to proceed further in the cases of salvage and marine insurance. Conkl. Treatcase.

ise (6th ed.), 254.

Wharf accommodation is a necessity of navigation, Goods, to a vast amount, are transported by such and such accommodations are indispensable for ships means of conveyance, and all experience shows that and vessels and water-craft of every name and descrip- boats of the kind require wharf privileges as well as tion, whether employed in carrying freight or passen- ships and vessels or any other water-craft engaged in gers, or engaged in the fisheries. Erections of the navigation. The Northern Belle, 9 Wall. 328. kind are constructed to enable ships, vessels and all Access to the ship or vessel rightfully occupying a sorts of water-craft to lie in port in safety, and to berth at a wharf, for the purpose of loading and unloadfacilitate their operation in loading and unloading ing, is the undoubted right of the owner or charterer cargo, and in receiving and landing passengers.

of such ship or vessel for which such right has been Piers or wharves are a necessary incident to every secured. Wendell v. Bacter, 12 Gray, 496. well-regulated port, without which commerce and navi- Privileges of the kind are essential to the carrier by gation would be subjected to great inconvenience, and water, whether he is engaged in carrying goods or pasbe exposed to vexatious delay and constant peril. sengers.

Conveniences of the kind are wanted both at the Repairs to a limited extent are sometimes made at port of departure and at the place of destination, and the wharf, but contracts of the kind usually have rethe expenses paid at both are everywhere regarded as spect to the voyage and are made to secure a restingproperly chargeable as expenses of the voyage. Com- place for the vessel during the time she is being loaded mercial privileges of the kind cannot be enjoyed where or unloaded. Such contracts, beyond all doubt, are neither wbarves nor piers exist, and it is not reasonable maritime, as they have respect to commerce and navito suppose that such erections will be constructed for gation, and are for the benefit of the ship or vessel general convenience unless the proprietors are allowed when afloat. to make reasonable charges for their use.

Carrying vessels would be of little or no value unless Compensation for wharfage may be claimed upon an they could be loaded, and they are usually loaded from express or an implied contract, according to the cir. the wharf, except in a limited class of cases where cumstances. Where a price is agreed upon for the use lighters are employed, the vessel being unable to come of the wharf, the contract furnishes the measure of up to the wharf in consequence of the shoalness of the compensation, and when the wharf is used without water. any such agreement, the contract is implied, and the Accommodations at the port of destination are proprietor is entitled to recover what is just and rea- equally indispensable for the voyage as those at the sonable for the use of his property and the benefit port of departure. Consignments of goods and pasconferred.

sengers must be landed, else the carrier is not entitled Such erections are indispensably necessary for the to freight or fare. Where the contract is to carry safety and convenience of commerce and navigation, from port to port, an actual delivery of the goods into and those who take berth alongside them to secure the possession of the owner or consignee or at his warethose objects derive great benefit from their use. house is not required in order to discharge the carrier experience supports that proposition, and shows to a from his liability. He may deliver them on the wharf, demonstration that the contract of the wharfinger but to constitute a valid delivery there the master appertains to the pursuit of commerce and navigation. should give due and reasonable notice to the consignee,

Instances may, doubtless, be referred to where so as to afford him a fair opportunity to remove the wharves are erected as sites for stores and storehouses, goods or to put them under proper care and custody. but the great and usual object of such erections is to Delivery an the wharf, under such circumstances, is advance commerce and navigation by furnishing rest- valid if the different consignments be properly separing-places for ships, vessels, and all kinds of water- ated, so as to be open to inspection and conveniently craft, and to facilitate their operation in loading and accessible to their respective owners. The Eddy,5 Wall. unloading cargo and in receiving and landing pas- 495. sengers.

These remarks are sufficient to show that wharves, Nor is the nature of the service or the character of piers, or landing-places are well nigh as essential to the contract changed by the circumstance that the commerce as ships and vessels, and are abundantly water-craft which derived the benefit in the case before sufficient to demonstrate that the contract for wharfthe court was without masts or sails or other motive age is a maritime contract for which, if the vessel or power of her own. Sail ships, and even steamships water-craft is a foreign one or belongs to the port of a and vessels, are frequently propelled by tugs, and yet, 3tate other than the one where the wharf is situated, a if they secure a berth at a wharf or in a slip at the maritime liep arises against the ship or vessel in favor place of landing or at the port of destination, and of the proprietor of the wharf. actually occupy the berth as a resting-place or for the Standard authorities, as well as reason, principle, purpose of loading or unloading, no one, it is supposed, and the necessities of commerce, support the theory will deny that the ship or vessel is just as much liable that the contract for wharfage is a maritime contract, to the wharfinger as if she had been propelled by her which in the case supposed gives to the proprietor of owu motive power.

the wharf a maritime lien on the ship or vessel for his Neither canal boats nor barges ordinarily have sails security. or steam power, but they usually have tow-lines, and From an early period wharf-owners have been alit clearly cannot make any difference, as to their lia- lowed to exact from ships and vessels using a berth at bility for wharfage, whether they are propelled by their wharves a reasonable compensation for the use steam or sails of their own, or by tugs or horse or mulo of the same, and the ship or vessel enjoying such a power, if it appears that the boat or barge actually privilege has always been accustomed to pay to the occupied a berth at the wharf or slip at the commence- proprietor of the wharf a reasonable compensation for ment or close of the trip as a resting-place, or for the the use of the berth. The Kate Tremaine, 5 Ben. R. purpose of loading or unloading cargo, or for receiving 611. or landing passengers.

Ancient codes and treatises, such as are frequently


recognized as the source from which the rules of the the benefit of the ship or vessel, a maritime lien in the maritime law are drawn, usually treat such contracts case supposed arises in favor of the proprietor of the as maritime contracts, for which the ship or vessel is wharf against the vessel for payment of reasonable liable. The Maggie Hammond, 9 Wall. 452; DeLovio v. and customary charges in that behalf for the use of Boit, 2 Gall. 472.

the wharf, and that the same may be enforced by a Charges for wharfage were adjudged to be lien claims proceeding in rem against the vessel or by a suit in in the District Court of the Third Circuit more than personam against the owner. seventy years ago, and in speaking of that case, Judge Many other questions were discussed at the bar Story says that it seems to him that the decision was which will not be decided at the present time, as they fully supported in principle by the doctrines as well of are not properly involved in the application before the common law as of the civil law, and by the anal- the court. ogous cases of materials furnished and repairs made Petition for prohibition denied. upon the ship (Ship New Jersey, 1 Pet. Adm. R. 228; Ex parte Lewis, 2 Gall. 484), where it was expressly adjudged that the contract was necessarily maritime, PRESUMPTION OF GOOD FAITH IN THE giving as the reason for the conclusion that the use of TRANSFER OF NEGOTIABLE PAPER. the wharf is indispensable for the preservation of the vessel. Johnson v. McDonough, Gil. 103.

SUPREME COURT OF THE UNITED STATES -- OCTO Other eminent admiralty judges have decided in the

BER TERM, 1877. same way, and among the number the late Judge Ware, whose opinion in cases involving the question of admiralty jurisdiction is entitled to the highest re

Brown et al., plaintiffs in Error, v. SPOFFORD et al. spect. The Phæbe, Ware, 341; 2 Conkl. Adm. (2d ed.) Promissory notes payable to order may be transferred by 515; Bark Alaska, 3 Ben. 392; Hobart v. Drogan, 10 indorsements, or when indorsed in blank or made pay

able to bearer they are transferable by mere delivery Pet. 120; The Mercer, 1 Sprague, 284; The Ann Ryan,

and the possession of such an instrument indorsed in 7 Ben. R. 21; Dunlap's Adm. 75; Abb. on Ship. (5th

blank, or made payable to bearer, is prima facie evi

dence that the holder is the proper owner and lawful ed.) 423.

possessor of the same; and nothing short of fraud, not Water-craft of all kinds necessarily lie at a wharf even gross negligence, if unattended with mala fides, is

sufficient to overcome the effect of that evidence or to when loading and unloading, and Mr. Benedict says invalidate the title of the holder, supported by that evithat the pecuniary charge for the use of the dock or dence.

Accordingly held that an agreement made at the time of the wharf is called wharfage or dockage, and that it is the making or indorsement of a negotiable instrument was subject of admiralty jurisdiction; that the master and not admissible in an action upon such instrument by a

bona fide purchaser for value before maturity. owner of the ship and the ship herself may be pro- In such an action the settled cominercial rule is that nothceeded against in admiralty to enforce the payment of ing less than prior knowledge of such facts and circum

stances as impeach the title is available as a defense, wbarfage, when the vessel lies alongside the wharf or unless it be shown that the instrument was fraudulent at a distance and only uses the wharf temporarily for

in its inception. To impeach the title of a holder for

value, it must first be shown that he had knowledge of boats or cargo. Ben. Adm. (2d ed.), $ 283.

the circumstances at the time the transfer was made. Application for the writ of prohibition is properly Agreements unperformed cannot be pleaded in accord and

satisfaction. made in such a case upon the ground that the District

RROR to the Supreme Court of the District of , it

Columbia. The facts appear in the opinion. must depend not upon facts stated dehors the record, Mr. Justice CLIFFORD delivered the opinion of the but upon those stated in the record upon which the court. District Court is called to act and by which alone it can Sufficient appears to show that the plaintiffs claim to regulate its judgment. Mere matters of defense, recover of the defendants the amount of five promiswhether going to oust the jurisdiction of the court or to sory notes, set forth in the record, each dated January establish the want of merits in the libelants' case, can- 8, 1872, payable to the order of Austin P. Brown, in not be admitted under such a petition here to displace one, two, three, four and five months from date, the right of the District Court to entertain suits, the rule amounting in the aggregate to the sum of eleven thoubeing that every such matter should be propounded by sand three hundred and thirty-six dollars and sixtysuitable pleadings as a defense for the consideration of four cents. Due indorsement of the notes was made the court, and to be supported by competent proofs, by the payee, and the plaintiffs also claim to recover provided the case is one within the jurisdiction of the the costs and fees of protest and notice to the makers District Court. Ex parte Christy, 3 How. 308.

for non-payment. Congress has empowered the Supreme Court to issue Service was made and the defendants appeared and writs of prohibition to the District Courts "when pro- pleaded the general issue, and two special pleas, which ceeding as courts of admiralty and maritime jurisdic- are fully set forth in the record. tion," by which it is understood that the power is Issue was joined by the plaintiffs upon the first plea limited to a proceeding in admiralty. Conkl. Treatise of the defendants, and to the second plea the plaintiffs (5th ed.), 56. Such a writ is issued to forbid a subordi- replied and denied the same in fact and in substance, nate court to proceed in a cause there, depending on and all and singular the matters therein set forth, and suggestion that the cognizance thereof belongeth not alleged in further reply that they became the holders to the court. F. N. B. 39; 3 BI. Com. 112; 2 Pars. on of the notes in the regular course of mercantile dealShip. 193; 8 Bac. Abr. 206.

ings, for a full, fair, and valuable consideration, before Viewed in the light of these considerations it is clear the maturity of the notes and without any notice or that a contract for the use of a wharf by the master knowledge of the matters set forth and alleged in the or owner of a ship or vessel is a maritime contract, defendants' second plea. They also deny and traverse and, as such, that it is cognizable in the admiralty; all the allegations and averments contained in the dethat such a contract being one made exclusively for fendants' third plea.


has transcended its jurisdiction in entertaining E

Special pleas in such a case are unnecessary, as every Negotiable notes are written instruments, and as such defense, where the action is assumpsit upon such they cannot be contradicted, nor can their terms promissory notes, is admissible under the general issue. be varied by parol evidence, and that proposition is

Delay ensued, and at a subsequent term the parties universally true where the promissory note is in the went to trial and the verdict and judgment were in hands of an innocent holder. Where a bill of exchange favor of the plaintiffs, in the sum of eleven thousand was drawn in the usual form and was protested for three hundred dollars and forty-seven cents, with non-payment, the court held twenty years ago that costs and interest. Exceptions were taken by the parol evidence of an understanding between the drawer defendants, as appears by the record.

and the party in whose favor the bill was drawn, was Six notes, it seems, were given by the defendants, inadmissible to vary the terms of the instrument. all of the same date, one of which was not due when Brown v. Wiley, 20 How. 447. the suit was instituted to recover the amount of the first In that case the defendant offered to prove to the five. On the second of August, 1872, the plaintiffs jury, pursuant to the defense set up in a special plea, sued the other note, which was signed and indorsed a parol agreement between him and the plaintiffs, like the other five, and was for the sum of twenty-two that the bill should not be presented for acceptance hundred and sixty-seven dollars and thirty-two cents until funds were furnished and placed in the hands of for value received. Service was made and the defend- the drawees, to provide for a certain other draft, who ants appeared and filed three pleas, of the same legal had agreed to accept the second bill when funds were effect as those filed in the preceding case. Replications received to meet their liability for accepting the first were also filed by the plaintiffs, of the same legal im- bill, but the court below excluded the evidence and the port as those which they filed in the suit to enforce defendant excepted, and this court decided that the payment of the first five notes. Proper issues being ruling was correct and affirmed the judgment, holding joined, the parties went to trial and the verdict and that the evidence offered that the bill should not be judgment were for the plaintiffs, in the sum of two presented until a distant, uncertain, or undefined thousand two hundred sixty-nine dollars and eighty-period, tended in a very material degree to alter and five cents, with costs and interest, as therein provided. vary the operation and effect of the instrument.

Separate judgments were rendered in the two cases, Shankland v. Washington, 5 Pet. 394; 1 Greenl. Ev. but the defendants were allowed to file eight bills of (12th ed.), 318; Stackpole v. Arnold, 11 Mass. 30; Hunt exceptions to the rulings of the court in each of the V. Adams, 7 id. 521; Myrick v. Dame, 9 Cush. 254; sases, which were subsequently signed and sealed by Thompson v. Ketchum, 8 Johns. 192. the presiding judge, each of the bills of exceptions hav- Certain fixed principles govern the liability of parties ing respect to the trial in the respective suits as if the to a bill of exchange or promissory note which are same had been previously consolidated and the ver- essential to the credit and circulation of such paper, dicts had been rendered at the same time by the same of which the most important is that whatever may jury. Both judgments were removed into this court have occurred between other parties to the instrument, by one writ of error.

if not fraudulent in its inception, the holder of the Certain errors are assigned here as applicable to the same, if he acquired it for value in the usual course of judgment in each of the respective cases, in substance business before maturity, cannot be affected by any and effect as follows: (1) Evidence was offered by the such transactions, unless it be first shown that he had defendants to prove the alleged agreement between knowledge of such transactions at the time the transthem and the company, which was excluded by the fer was made. Nothing less than knowledge of such court, and they assign for error that the court erred in transactions can meet the exigencies of such a defense, excluding that evidence. (2) That the court erred in the rule being that the bona fide holder of a negotiable holding that the agreement between the company and instrument for value, if acquired before maturity and the defendants offered in evidence would not affect the without notice of any facts which impeach its validity right of the plaintiffs to recover in the suits. (3) That between the antecedent parties, has a good title to the the court erred in holding that if the plaintiff's received instrument, unaffected by any such prior transaction, the notes before maturity, without notice of the alleged and may recover the amount even though the instruagreement, the defendants were liable in the action, ment, as between the an ent parties, is without even though the plaintiffs paid their own notes with any legal validity. Goodman v. Simonds, 20 How.

. 364; money borrowed from the company, whose agents | Swift v. Tyson, 16 Pet. 15; Murray v. Gardner, 3 they were in the transaction. (4) That the court Walls. 119. erred in instructing the jury that if they find from Attempt was made in a leading case to prove that the evidence that the plaintiffs did not have notice of the payee agreed with the indorser that if he would the alleged agreement between the company and the indorse the note he should incur no responsibility, as defendants, still they may recover in the actions if the payment was secured by collaterals, and when the jury further find that the defendants neglected offered in the Circuit Court the evidence was admitted, and failed to comply with the terms of the agreement. but the court, when the case was brought here on writ (5) That the court erred in instructing the jury that of error, reversed the judgment, holding that the evithe agreement to receive as a compromise in discharge dence should have been excluded. Banks v. Dunn, 6 of the notes a sum less than the amount of the same Pet. 53. could only be made available as a defense by proving Decided cases of the most authoritative character that the sum agreed was paid or tendered by the de- have determined that parol evidence of an oral agreefendants as therein stipulated.

ment alleged to have been made at the time of the Exceptions not assigned for error will not be sep- drawing, making, or indorsement of a bill or note, arately examined. Two of the errors assigned, to wit, cannot be admitted to vary, qualify, contradict, add the first and the second, are so nearly alike that they to, or subtract from, the absolute terms of a written may be examined together.

contract. Specht v. Howard, 16 Wall. 566.

In the absence of fraud, accident, or mistake, the flowing from their acts, unless it be first shown that rule is the same in equity as at law, that parol evidence he had knowledge of such facts and circumstances at of an oral agreement, alleged to have been made at the

the time the transfer was made. Goodman v. Sionds, time of drawing, making, or indorsing a bill or note, 20 How. 366; Collins v. Gilbert, 4 Otto, 758. cannot be permitted to vary, qualify, or contradict, or Tested by these authorities it follows that the third to add to, or subtract from, the absolute terms of the assignment of error must be overruled. written contract. Forsyth v. Kimball, 1 Otto, 294.

Both the fourth and the fifth assignments of error Parol evidence of an agreement made contempora- have respect to the supposed compromise which it is neously with a promissory note which contains an alleged was proposed and adopted, and inasmuch as absolute promise to pay at a specified time is not ad- they relate to the same state of facts they will be exmissible in order to extend the time for payment or to amined together. provide for the payment out of any particular fund, Parties may doubtless adjust their controversies, or in any other way than that specified in the instru- and where they do so in good faith and understandment, or to make the payment depend upon condition. | ingly, courts of justice will uphold the adjustment, Chitty on Cont. (10th ed.) 39; Abrey v. Crux, Law unless it violates the rules of law applicable to the Rep., 5 C. P. 41; Allan v. Furbish, 4 Gray, 506; 2 Pars. transaction. Suppose that is so, still it is clear the on Bills and Notes, 501.

alleged compromise was never carried into effect. Apply these rules to the case before the court and it What was proposed is that the notes were to be delivis clear that the first and second assignments of error ered up upon the payment of a prescribed amount at must be overruled, as it is clear that the evidence the time and in the manner set forth in the agreement, offered was inadmissible and that the ruling of the but nothing was ever paid or tendered, nor was any court was correct.

thing ever done in fulfillment of the agreement. InDue execution of the notes is admitted, nor is it stead of that the evidence shows that the defendants questioned that they were indorsed in blank, as set up never made any attempt to make the payments, and by the plaintiffs. Beyond all doubt the plaintiff's be- the court instructed the jury that if they found that came the holders of the notes before maturity and for the agreement of compromise was never carried out by value, but the defendants insist that the plaintiffs did the defendants that it constitutes no defense to the not become the holders of the same in good faith, nor action; that such a compromise can only be made in the regular course of business, and they requested available to the defendants as a defense by proving the court to instruct the jury that if they believed that the sums agreed to be paid in discharge were paid that the plaintiffs came into the possession of the notes or tendered as stipulated. Formal exceptions were without paying value, or under circumstances which taken to those instructions, and they are the basis of would have put a prudent man upon inquiry concern- the errors alleged in the fourth and fifth assignments. ing the alleged agreement, then the jury must consider Sufficient appears to show that the indebtedness of the plaintiffs bound by the agreement, and that their the defendants amounted to the sum of thirteen thouverdict should be for the defendants.

sand six hundred and three dollars and ninety-six Three objections arise to that prayer for instruction, cents, and that the plaintiffs agreed to accept ten thouany one of which is sufficient to show that it was prop- sand dollars as a compromise, “upon the payments erly rejected: (1) Because the uncontradicted evidence being made at the times stated," from which it is evishowed that the plaintiffs did pay value for the notes. dent that nothing short of the fulfillment of that (2) Because the settled rule of law is that the plaintiffs, agreement would discharge the original demand, and as the holders of the notes for value, and having ac- that such a compromise, to be available, must be perquired the same before maturity and in the usual formed. 2 Pars. ou Cout. (6th ed.) 685; 2 Story on course of business, or without notice of any prior Cont. (5th ed.) 537; Chitty on Cont. (10th ed.) 693. equities, have a good title to the same irrespective of Agreements unperformed cannot be pleaded as acwhat may have transpired between the defendants cord and satisfaction. U.S. v. Clark, Hemp. R. 317. and prior holders of the notes. (3) Because there Where a creditor agreed to satisfy a judgment for a is no evidence in the case that the plaintiffs had knowl- less sum than the amount recovered, if paid by a day edge of any equities between the defendants and such certain, and the debtor failed to make the payment, prior parties, the settled commercial rule being that it was held that the creditor might enforce the judg. nothing less than prior knowledge of such facts and ment for the full amount. Early v. Rogers, 16 How. circumstances as impeach the title can meet the ex- 608. igencies of such a defense, unless it be shown that the Performance of the agreement by the judgment instrument or instruments were fraudulent in their debtor, it was held in that case, was a condition preinception.

cedent to the proposed reduction of the judgment, and Where the supposed defect or infirmity in the title the court said: “We think the district judge interof the instrument appears on the face at the time of preted the agreement of the parties and the judgment the transfer, the question whether the party who took correctly, as the parties made the reduction dependent it had notice or not is in general a question of con- on a condition which has not been fulfilled.” struction, and must be determined by the court as Where an arrangement was made for the discharge matter of law, as has been held by this court in several of certain notes, but the arrangement failed because

(Andrews v. Pond, 13 Pet. 65; Fowler v. Brant- one of the debtors disagreed to the terms of the conly, 14 Pet. 318.) But it is a very different thing when position, the court decided that the debt stood revived, it is proposed to impeach the title of a holder for value and that judgment was properly rendered for the by proof of any facts and circumstances outside of the whole amount. Clark v. Broun, 22 Wall. 273; Addison instrumeut itself. He is then to be affected, if at all, on Cont. (6th ed.) 996. by what has occurred between other parties, and he Two other exceptions were taken at the trial, in may well claim an exemption from any consequences respect to which it is only necessary to say that they


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