Volume 37 — United States Reports

IN er,ror from tíre circuit court of the United Sitates- of the, District of Columbia; in the county of. Washington. The United States instituted two actions of assumpsit against the defendant, to recover the balances stated to be .due to the United States, on transcripts regularly certified by íhé.treasury department.

Held: that although-an administrator may-' lawfully confess a judgment in favour of one creditor, yet if that creditor afterwards'is satisfied, or offers to compromise, and offers to také sixty pounds fin-one hundred pounds, and the-administrators do not do it, to the intent that the judgment may stand in force, so that third persons máy be defrauded, and the administrators convert the deceased’s goods to their private…

Held: that the courts of the United States have jurisdiction in a case, in which citizens of.the United States are but nominal plaintiffs, for the use of an alien. On the authority of this case, and of the practice of the courts of the, state of New York, the jurisdiction of the Court is claimed. The district attorney is but a nominal party.

Held: that if the parties to a compromise understand the facts correctly, erroneous deductions of law from those facts by a party, would not be ground for the setting aside the settlement induced by those deductions. In .Tennessee, the same doctrine, as to mistakes of law, was established in the case of Lewis v. Cooper, Cooke, 467. In Virginia, it was established in the case of Brown v. Armstead, 6 Rand. 594 .

WRIT of error to the district court of the northern' distriet of New York. Mr. Beardsley moved to dismiss the writ of error, it not being stated in the writ or declaration, that the defendant was a citizen of the state of New York. The plaintiff is an alien, and this is stated, in due form; but nothing is said of the. citizenship of the defendant.

Held: .that to give ¡this Court appellate- jurisdiction, two things should have occurred' and be apparent in the record: first, ¿hat,some one of the questions, ¡stated i.n the section, did arise in the court below; and secondly,-that a decision was actually made thereon by.the same court,-in the same manner required'by the section;, If both of Jthese dri not appear in the record, the appellate jurisdiction fails. .

THIS case came before the Court on a certificate of a division of opinion between the judges of the circuit court for the southern district of New York.

<p>ERROR to the circuit court of the United States, for the district of Georgia.</p> <p>In the circuit court of the United States; for the district of Georgia, Lowell Holbrook instituted an action.on four promissory notes; one of which was drawn by the plaintiff in error, in favour of Lowell Holbrook, and the three other notes were drawn, in favour of other persons, who had endorsed the same over to Mr. Holbrook. An affidavit of the agent of the plaintiff, stating that the defendant, John M'Niel, was indebted to Lowell Holbrook in the amount of ¿he said notes, was filed with the declaration. Issue beipg joined-in' the suit, the plaintiff to support the action, witnout having proved the handwriting of the drawer of the notes, or of those-who had endorsed three of the notes to him, offered 'the testimony of W. W. Gordon, Esq. the counsel of the plaintiff, to prove “that John M'Niel had repeatedly, and as late as November 1st, 1835,- admitted his indebtedness upon those promissory notes; and,- at the same time, offered to confess a judgment for the amount of principal and interest, upon certain terms, hy which he was to be allowed time for the payment of part. The negotiation continued until November 3d, 1836; and then was only not completed, from the-inability of John M'Niel to pay the cash, which he had in .the -first instance offered.”' The defendant objected to the admission of this evidence, and insisted that the acknowledgment was -only an offer by the defendant to buy.his peace, by a compromise made m the course of a negotiation,-for the settlement, of the claim of Mr. Lowell Holbrook; which said compromise and negotiation having failed, the acknowledgment could not be given in evidence, to sustain the claim of the plaintiff. The defendant also objected to the evidence;.as the plaintiff had declared against the defendant as' epdorser of promissory, notes alleged to' have been made by certain persons to him, he was bound to prove the endorsement of the notes by the said persons; anddhe court could not dispense with the proof of thé endorsemeiits. The court refused to give the instructions, as asked by the defendant; and instructed . the jury, that the evidence offered and- admitted was sufficient to entitle the plaintiff to recover against the defendant..</p> <p>The jury having found a verdict .for the plaintiff, according to the instructions of the court, and judgment having been entered thereon; the defendant prosecuted this writ of error.</p> <p>The case wás submitted to the Court by.Mr. King:-who also moved the Court to allow damages to the defendant in error, at the rate of ten per centum per annum, according to the 17th rule'of the Court; which allows such damages, .when a writ of error is sued out for delay..</p>

The appellants filed their bill in the court below, in July, 1836, stating, in substance, that they were deeply interested in the trade and navigation of the Potomac river, a common highway; the unobstructed use of which is secured by a compact in 1786, between the states of Virginia', and Maryland.

<p>A defendant in an appeal, using the copy of the record received frQm.the circuit court lodged by the appellant, cannot have the appeal docketed and dismissed, under-the 3Qth rule of the court; on the ground that the appellant has failed to comply with the 37th rule, which requires a bond ,to be given to the clerk of the Supreme Court, . before the case is docketed. He must, ,tS"'sustain a "motion to dismiss the cause, produce the certificate of the circuit court- stating the cause; and certifying that such an appeal has been duly sued out and allowed.</p>

Held: that, no lien is created in favour of the United States by the ■law of priority. United States v. Fisher et al. 2 Cranch, 358 ; Conard v. The Atlantic Insurance Company, 1 Peters, 440; United States v. Hooe et al. 3 Cranch, 73 .

1. Because no persons are named in the writ as plaintiffs; but they are' described, generally, as The Heirs of Nicholas Wilson. 2. That .the widow of Nicholas Wilson, who is interested in the suit, did not join in the application for the writ of error.

Held: that a party named on the record might be released, so as to constitute him a competent witness, was cited in the argument. The court said, such a rule would hold out to parties a strong temptation to perjury; and we think it is not sustained either by principle or authority. IN error to the circuit court of the United States, for the county of Washington, in the District of Columbia.

<p>Under the laws of Louisiana, and the decisions of the courts of that state, a mark for the name, to an instrument, by a person who is unable to write his name, is of the same effect as' a signature of the name.</p> <p>A bill of sale of slaves and furniture, reciting that the full consideration for the' property transferred, had been received, and which does not contain any stipulations or obligations of the party to whom it is . given, is not a cynalagmatic contract, under the laws of Louisiana; and the law does not require that such a bill of sale shall have been made in as many originals as there were parties having a direct interest in it, or that it should have been signed by the vendee.</p> <p>Evidence will be legal, as rebutting testimony; as to repel an imputation or charge of fraud; wh. :h would not be admissible as original evidence..</p>

Held: that the bill of revivor was in1 no just sense an original suit, but was a mere continuation of the original suit. The parties to the original suit were citizens of different states; and the jurisdiction of thp Court completely attached to the controversy.

<p>ERROR to the district court of the United. States, for the northern district of, New York.</p> <p>This was a writ of error prosecuted by; the demandant, in “the district court of the northern district of New York, in' á writ of right sued out by: her. The case was fully argued by Mr. Myer and Mr. Jones fop the plaintiff in £tror; and by Mr. Beardslev fop the defendant.</p> <p>The judgment of the district cojan was reversed on a single point, the rejection of certain evidence offered by the plaintiff. No opinion was given on any other question in the cause; and the argfimehts on the numerous points presented to the Court, and. argued by the counsel for the plaintiff and defendant, are therefore omitted.</p>

Held: that the decree of the circuit court,' refusing to order these notes.should be delivered up, was correct. . ON appeal from the circuit court of the .United States, for the county of.

The plaintiff in. error brought an action claiming to be endowed out of certain lots, with the improvements on them, being No. 16 and No. 17, in square 728, in the city of Washington; and relied on the following circumstances, as giving her the right-thereto. On the 24th of August, 1S04, George Walker and William Turni-cliffe conveyed, in fee simple, to Pontius D. Stelle, lots 16 and 17, in-square 728, in the city of Washington.

THIS cáse came before the Court on a certificate of division of opinion of the judges of the circuit court for the district of West Tennessee. The defendant, Calvin Jones, was attached by a writ of capias ad respondendum, issued on the 22d May, 1835,. to answer Adams, Cunningham and Company; they claiming from him the sum of fifteen hundred and twenty five dollars, for goods furnished to Miss Betsey Miller, under the following letter of guaranty.

APPEAR from the superior court of East Floridp. In'the superior court of East Florida, the.widpw and children, heirs of William Mills, deceased, presented a petition; claiming title to a tract of lánd, situated on the east side of the river St -Johns, at a place called Buffalo Bluff, about two miles below the former piante? tion of Pantbn Leslie and Company. This land ,was claimed under a grant df Governor Coppinger, dated St. Augustine', 10th April, 1817.

<p>APPEAL from the court of appeals of Florida.</p>

IN error from the. district court of the United -States for the District of Mississippi. In the district court of Mississippi an' action of debt was instituted on ait obligation executed on the first day of January, 1834,-by which John Richards & A. H. Buckholts promised, under their respective hands and seals, to pay to N. Rogers & Sons, on the first day of April, 1824, three thousand two hundred ánd eighty-eight dollars, with interest from the date.

Held: that .if the.benefit of the insolvent laws had- been extended to the principal, before .the bail was fixed by proceedings against the principal, it might have become a question whether they were not discharged under the rule laid down by the Court, in. the case of Beers y. Haughtqn, 9 Peters, 329.

<p>The intention of congress, in passing the act, authorizing a division of opinion of the judges of the circuit courts of the United States to be certified to the Supreme Court was, that a division of the judges of the circuit. court, upon a single and ' material point, in the progress of the cause,.should be • certified to the Supreme Court for its opinion; and not the whole cause. When a.certificate of division brings up the whole cause, it would'be, if the .Court should decide it, in effect, the exercise of'original; rather than appellate jurisdiction.</p> <p>The case of the United States v. Banby, 9 Peters, 367, cited, and approved.</p>

Held: that this evidence was admissible, without an amendment of the answer. It rebutted the allegation in the bill, that the deed was made wholly withouj. consideration.

Held: that Cf. could not be permitted to avail himself of this defect in th'e title, while standing in the relation of a purchaser,' to defeat the agreement-to purchase - made with the heirs of C. B. Under the most favourable circumstances, he could only have it reformed; and the amount advanced to perfect the title, deducted'from the unpaid purchase money.

Held: that as T. had a right in 1825 to call .on S. to account, and as no suit was instituted against S. until 1834; S. having always denied his liability to T. for the amount of the .sales, from the time of the demand; the statute of limitations was a bar to an action to recover the amount from S. The effect and nature of an averment in a plea put in by a defendant, when it is not essential to the plea.

Held: and now deliberately hold, to be a scintilla of legal right; which is all that, by the laws'of the state, is necessary to entitle the holder of such right to redeem lands sold for taxes.

Held: that even in the case of a libel for salvage, it is the duty of the owner, if he can, to raise the money to pay the salvage; and if he makes no such attempt, but suffers the ship to be sold under the admiralty process, he cannot thereby convert, a loss, which is partial, 'into a total loss.

Held: would be the possession of the said Marie Louise, and would not be a possession in St. C.yr,available by him or those claiming under him,.under the law of prescription mentioned.

ON- a motion, by Mr. Crittenden, for a rule on the judges of the circuit court of the United States for the eastern district of Louisians, for a rule to show cause why a mandamus, in the nature of a writ, of procedendo, should not issue, &c.

In the district court of East Florida,.in April, 1829, Zephaniah Kingsley presented a petition, claiming title to a tract of land situated on a creek emptying into the river St.-John; which'he asserted was granted to him by Governor Coppinger, on the 20th of November, 1816, while East Florida was.held by the crown of Spain.

Held: that by its terms, it'authorized surveys at places other than the one described; and that after surveying all that was vacant there, the quantity found deficient might be surveyed where the gr-antee designated.

Held: that on a-guaranty of ,a‘ promissory note, drawn ,and endorsed by- others, if the drawer and endorser are insolvent when the note becomes due, this would,-prima facie,-be-evidence that: the guarantor was’not prejüdiced; and therefore the giving, him notice of non-payment, is, in -such case, dispensed with, .And .'in the case of Halbrow v. Wilkins, 1 Barn. & Cressw. 10, the court say,,if á guarantor of-a bill be…

ihe supreme court of the third judicial district of thé state of Missouri.

Held: that even if this stipulation applied to lands in the territory in question, yet the words used did not import a present confirmation by virtue of the treaty itself, but that they Were words of contract-; ■ “that the ratification arid' confirmation which were promised, must be the act of the legislature; and- until such shall bb passedj the Court is npt at liberty to disregard the exitting laws on the subject."…

The heirs of Joseph Delespine, and others, purchasers from Joseph Delespine, filed a petition to the supreme court of East Florida, praying .confirmation of a grant to Joseph Delespine, made by Don José Coppinger, on the 9th day of April, 1817; he being then the Spanish governpr of East Florida. .The grant was for forty-three thousand acres, under which surveys-were made by George J. F..

Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657 (1838), was a United States Supreme Court case in which the Court asserted its original jurisdiction over a suit in equity, a boundary dispute between Massachusetts and Rhode Island dating to colonial times.

MR. WEBSTER, in behalf of the state of Massachusetts, as her attornéy and counsel iti Court, moved the Court for leave to' Withdraw the,plea'filedvin this case, on the part of the state of-Massachusetts; . and also the appearance which has been entered in this Court, for-.the said state. amoved the Court for leave to withdraw the general replication to the defendant’s plea, in bar arid answer; and to amend the original bill. stated that the governor ' of the state of…