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V.

MASON.

C. Lee, contrą. There is an essential difference Lawrason between common contracts and a letter of credit. The latter is a mercantile instrument, bottomed upon the principle of good faith. It is a promise to him who will give credit to the third person, and the consideration is the actual delivery of the money or goods to the third person, upon the faith of the letter of credit. This is, therefore, a promise to the plaintiff, and a good consideration is raised by the delivery of the corn upon the faith of the defendant's note in writing. All the forms of action upon a letter of credit, are in assumpsit.

It is objected that no demand was made on M'Pherson; the answer is, that he was known, to both parties to be insolvent.

MARSHALL, Ch. J. delivered the opinion of the court to the following effect:

This action is grounded upon a note in writing, which was certainly intended by the defendants to give a credit to M Pherson. They are bound by every principle of moral rectitude and good faith to fulfil those expectations which they thus raised, and which induced the plaintiff to part with his property. The evidence was clear that the credit was given upon the faith of the letter.

Unless, therefore, there is some plain and positive rule of law against it, the action ought to be supported.

In the case cited from Espinasse, the rule is laid down too broadly. If compared with analagous cases, it will be found to be considerably modified.

Thus, if money be delivered by A. to B. to be paid over to C. although no promise is made by B. to C. yet C. may recover the money from B. by an action of assumpsit.

If it be said that in such a case the law raises the assumpsit from the facts, and if the facts do not imply

LAWRASON
V.

MASON.

an assumpsit, no action will lay;-it may be answered, that in the present case there is an actual assumpsit to all the world, and any person who trusts, in consequence of that promise, has a right of action.

It has been suggested by the counsel for the defendants, that, although an action of assumpsit will not lay, yet possibly the plaintiff might support an action for the deceit. But an action for the deceit must be grounded upon the breach of the promise. And if an action will lay in any form, the present seems to be at least as proper as any other.

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An appearance of the defendant by attorney cures all antecedent

process.

Quere, whether a deputymarshal can

plead in abatement, that the capias was not served on him by a disinte

KNOX AND CRAWFORD v. SUMMERS AND

THOMAS.

ERROR to the circuit court of the district of Columbia.

The plaintiffs in error brought an action of debt on a irregularity of bond against the defendants, in the court below, to which the defendant, Summers, after oyer of the writ, pleaded in abatement, that on the day of the issuing of the original writ, as well as on the day of its service on him, he was one of the marshal's deputies, for the district of Columbia, and that the writ was not directed to a disinterested person, appointed by the court of the district of Columbia, or by any justice or judge thereof, to execute the same. To which plea the plaintiffs demurred specially, 1st. Because the plea was filed long after the appearance of the defendant, Summers. 2d, Because, after his appearance to the suit, no objection can be urged to the irregularity of the service of the process. 3d. Because, if the process was irregularly issued, directed, or served, the remedy was by motion and not by plea, and 4th. Because the process was duly issued, directed and served. Put the court below adjudged the

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plea to be good, and ordered the writ to be quashed as KNOX ET AL. to both defendants. Whereupon, the plaintiffs sued out their writ of error.

By the 28th section of the act of congress of the 24th of September, 1789, vol. 1, p. 66, it is enacted, "That in all causes wherein the marshal, or his deputy, shall be a party, the writs and precepts therein shall be directed to such disinterested person as the court, or any justice or judge thereof, may appoint; and the person so appointed, is hereby authorised to execute and return the

same.

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Swann, for the plaintiffs in error. The provision of the act of congress was not intended for the benefit of 'the marshal, or his deputy, but of the other party. word " shall," in this, as in many other cases, means may. It shall be directed to a disinterested person, if the other party shall request it. But if the direction of the writ to the marshal was an informality, it is cured by the general appearance of the deputy marshal. Co. Lit. 325. 2 Ld. Ray. 1544, Blenkinson v. Iles. The record states, that there was judgment by default, at the rules against both defendants, and that at the next court, on the motion of the defendants, by Walter Jones, jun. their attorney, it was ordered that the suit be returned to the rules for proceedings anew. At the next rules, the record states, that "the said Lewis Summers, in his proper person, comes and defends the force and injury, &c. and prays oyer of the writ," &c. So that this plea, in abatement, was not put in until after he had appeared by his attorney, and set aside the office judgment.

But this is not a matter pleadable in abatement. If a person is improperly arrested, his remedy formerly was by a writ of privilege, but now it is by motion to be discharged. He cannot plead it.

C. Lee, contra. When the cause was sent back to the rules for proceedings anew, it was as if nothing had been done at the rules. Every thing was to begin de novo. The defendant, Summers, is to be considered as then appearing for the first time; and instantly, upon his appearance, he pleaded in abatement in propria persona. Vol. III.

3 S

SUMMERS
IT AL.

KNOX ET AL.

V.

SUMMERS

ET AL.

It does not appear, upon the writ, that he was a deputy marshal. It could not, therefore, be taken advantage of úpon motion. Or if it could, yet that is not the most regular way. Upon a motion, the fact must appear by affidavit, and the court must decide the fact. But upon a plea, the fact is put in issue and tried by the jury, the proper tribunal to try a question of fact.

The law is express and positive; "the writ shall be directed" to a disinterested person. There is no discretion in the court.

Where it appears to the court, from the writ itself, that it ought to abate, there the court, ex officio, ought to give judgment against the plaintiff, though the defend nt does not plead it in abatement; but it is otherwise where this does not appear in the writ. 4 Buc. Ab. 44. Where the fact does not appear upon the record, it must be pleaded in due time.

WASHINGTON, J. The defendant could not set aside the office judgment, without entering his appearance.

C. Lee. If such an appearance is to cure all antecedent error, no plea in abatement could be put in, although the office judgment was irregularly obtained; nor could the defendant take advantage of irregularity at the rules; although the court is, by the express provisions of the law, authorised to set aside the proceedings at the rules.

The court were unanimously of opinion, that the appearance by attorney cured all irregularity of process. The defendant, perhaps, might have appeared in propria persona, and directly pleaded in abatement. But having once appeared by attorney, he is precluded from taking advantage of the irregularity.

The judgment reversed, the defendant ordered to answer over, and the cause remanded for further proceedings.

SANDS v. KNOX.

SANDS

V

ΚΝΟΣ,

ERROR to the court for the trial of impeachments, and the correction of errors, in the state of New-York.

The non-in

tercourse act of June 13th, 1798, did not impose any disability upon

vessels of the United States,

the existence of that act.

Thomas Knox, administrator, with the will annexed, of Raapzat Heyleger, a subject of the king of Denmark, brought an action of trespass vi et armis, in the supreme court of judicature, of the state of New-York, sold bona fide, against Joshua Sands, collector of the customs for the to foreigners port of New York, for seizing and detaining a schooner residing out called the Jennett, with her cargo. The defendant, States during of the United Sands, pleaded in justification, that he was collector, &c. and that after the 1st day of July, 1798, viz. on the 16th of November, 1798, the said schooner, then being called The Juno, was owned by a person resident within the United States, at Middletown, in Connecticut, and cleared for a foreign voyage, viz. from Middletown to the island of St. Croix, a bond being given to the use of the United States, as directed by the statute, with condition that the vessel should not, during her intended voyage, or before her return within the United States, proceed, or be carried, directly or indirectly, to any port or place within the territory of the French republic, or the dependencies thereof, or any place in the WestIndies, or elsewhere, under the acknowledged government of France, unless by stress of weather, or want of provisions, or by actual force or violence, to be fully proved and manifested before the acquittance of such bond, and that such vessel was not, and should not be employed during her said intended voyage, or before her return as aforesaid, in any traffic or commerce, with, or for any person resident with the territory of that republic, or in any of the dependencies thereof. That afterwards, on the 8th of December, 1798, she did proceed, and was voluntarily carried from Middletown to the island of St. Croix, in the West-Indies, and from thence, before her return within the United States, to Port de Paix, in the island of St. Domingo, being then a place under the acknowledged government of France, without being obliged to do so by stress of weather, or

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