[Douglass and others v. Reynolds and others.]

The sixth instruction asserts, that if the notes mentioned in the receipt, were received as conditional payments of the said debt, the defendants are discharged, unless it is proved that due diligence had been used to recover the amount of them from the individuals responsible thereon, and that the same could not be obtained. If, by the word "recover," were here intended a recovery by a suit at law, the proposition could not be maintained. But if, as we suppose, it is used in the sense of collect or obtain; its correctness, as a general proposition in cases of conditional payments of debts by notes, is admitted. He who receives any note upon which third persons are responsible, as a conditional payment of a debt due to himself, is bound to use due diligence to collect it of the parties thereto at maturity, otherwise by his laches the debt will be discharged. The difficulty is in applying the doctrine to the circumstances of the present case in the actual form in which it is propounded in the instruction. It assumes, as matter of fact, what the court cannot intend, that the notes were received as conditional payment. It does not asset what the debt is to which it alludes; though it probably refers to the debt stated in the account connected with the receipt. Now, that account is not in terms sued for; but certain drafts amounting to eight thousand dollars, accepted and indorsed, and paid by the plaintiffs: and whether they were included in the account or not, was matter of evidence and not matter of law. Although then the instruction asserted a proposition generally true in point of law, it is not clear, that, in the very terms in which it is propounded, with, reference to the case in judgment, the court were bound to give it, since it involved matters of fact.

The seventh instruction is open to a similar objection. It manifestly assumes, as its basis, general questions of fact, upon which the court had no right to pronounce judgment. It also supposes that the debt sued for is wholly confined to the account, and that the notes referred to were not within the scope of the guarantee, and, if paid by the plaintiffs, could not be recovered by the defendants; which is far from being admitted. Indeed, this, and several of the preceding instructions proceed upon the ground, that the guarantee was a limited

[Douglass and others v. Reynolds and others.]

and not a continuing guarantee, which construction has been already overturned.

Upon the whole, we are of opinion that the court below erred in refusing the second and fourth instructions prayed by the defendants, and that for these errors the judgment must be reversed, and the cause remanded to the district court of Mississippi with directions to award a venire facias de novo.

This cause came on to be heard on the transcript of the record from the district court of the United States for the district of Mississippi, and was argued by counsel: on consideration whereof, it is the opinion of this court that the court below erred in refusing the second and fourth instructions prayed by the defendants, and that for these errors the judgment must be reversed. Whereupon, it is adjudged and ordered by this court, that the judgment of the said district court in this cause be, and the same is hereby reversed, and that this cause be, and the same is hereby remanded to the said district court with directions to award a venire facias de novo.

VOL. VII.-R

HYPPOLITUS JOSEPH AUGUSTINE ESTHO ET AL. V. BENJAMIN L. LEAR, ADMINISTRATOR OF THADDEUS KOSCIUSZKO.

A case not being properly prepared in the circuit court for a hearing, the decree was reversed, and the cause remanded, with liberty to the plaintiff to amend his bill.

AN appeal from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington.

The case was argued by Mr Swann and Mr Sampson, for the appellants; and by Mr Wirt and Mr Dandridge, for the appellees.

Mr Chief Justice MARSHALL delivered the opinion of the Court.

The appellants had filed their bill in the court of the United States for the county of Washington, alleging themselves to be the distributees and next of kin of Thaddeus Kosciuszko, deceased, who departed this life intestate, as they allege, with respect to personal property in the United States. The bill charges that Thaddeus Kosciuszko, being about to leave America, deposited with Mr Jefferson a paper writing purporting to be a will which was executed in Virginia, and is in the following words:

"I, Thaddeus Kosciuszko, being just on my departure from America, do hereby declare and direct, that, should I make no other testamentary disposition of my property in the United States, I hereby authorize my friend, Thomas Jefferson, to employ the whole thereof in purchasing negroes from among his own, or any others, and giving them liberty in my name, in giving them an education in trade or otherwise, and in having them instructed for their new condition in the duties of morality, which may make them good neighbours, good fathers or mothers, husbands or wives, in their duty as citizens, teaching them to be defenders of their liberty and country, and of

[Estho et al. v. Lear.]

the good order of society, and in whatsoever may make them happy and useful; and I make the said Thomas Jefferson executor of this.

"5th May 1798."

"T. KOSCIUSZKO.

After the testator's death, Mr Jefferson proved the will in the county court of Albemarle, but renounced the executorship. Letters of administration have since been granted on it in the county of Washington in this district, to Benjamin L. Lear, who is in possession of the fund which is referred to in the paper writing. The plaintiffs contend that this paper writing is not a will; or if a will, cannot have effect, the bequest contained in it being one which the law will not sustain. They therefore contend that, this will being void and inoperative, they, as the next of kin, are entitled to this fund, there being no creditors to claim.

The answer insists on the validity of the will, and that the defendant is ready to carry the trust into execution.

Before the court can decide the intricate questions which grow out of this will, we think it necessary to possess some information which the record does not give.

The domicil of general Kosciuszko is not stated. He was a native of Poland, and died in Switzerland. Whether he was domiciliated in Switzerland or not does not appear. The law of domicil, with respect to wills in cases of testacy, or regulating distribution in cases of intestacy, may be material.

It also appears that the testator made a will in Europe. From the manner in which the subject is mentioned, we presume that this makes no disposition of his property in the United States; but, since we are informed of its existence, it would be desirable to see it.

We do not think the case properly prepared for decision; and therefore direct that the decree be reversed and the cause remanded, with liberty to the plaintiff to amend his bill.

THE UNITED STATES V. ABEL TURNER.

Indictment in the circuit court of North Carolina for the forgery of, and an attempt to pass, &c. a certain paper writing in imitation of, and purporting to be a bill or note issued by the president, directors and company of the Bank of the United States, founded on the eighteenth section of the act of 1816, establishing the Bank of the United States. The note was signed with the name of John Huske, who had not been at any time president of the Bank of the United States, but who, at the time of the date of the counterfeit, was the president of the office of discount at Fayetteville; and was countersigned by the name of John W. Sandford, who at no time was cashier of the mother bank, but was at the said date cashier of the said office of discount and deposit. Held, that this was an offence within the provisions of the law.

It is clear that the policy of the act extends to the case. The object is to guard the public from false and counterfeit paper, purporting on its face to be issued by the bank. It could not be presumed that persons in general could be cognizant of the fact who, at particular periods, wer the president and cashier of the bank. They were officers liable to le removed at the pleasure of the directors, and the times of their appointment or removal, or even their names, could not ordinarily be within the knowledge of the body of the citizens. The public mischief would be equally great, whether the names were those of the genuine officers, or of fictitious or unauthorized persons, and ordinary diligence would not protect them against imposition.

ON a certificate of division from the circuit court of the United States for the district of North Carolina.

The defendant, Abel Turner, was indicted at May term 1832, in the circuit court, under the eighteenth section of the act, incorporating the Bank of the United States, passed in April 1816.

The indictment contained four counts.

The first count charged the defendant with having forged and counterfeited a bill or note issued by the orders of the president, directors and company of the Bank of the United States, the tenor of which said false, forged and counterfeited paper writing is as follows, to wit, "the president, directors and company of the Bank of the United States promise to pay twenty dollars, on demand, at their office of discount and de