INDEX

OF THE

PRINCIPAL MATTERS.

ACTIONS.

By the law of Mississippi, the assignee of a chose in action may institute a suit in his own name. When therefore an executor, having proved the will of his testator, in Kentucky, had assigned a promissory note due to the estate by a citizen of Mississippi; the suit was well brought by the assignee, without any probate of the will in that state. Harper vs. Butler, 239.

ADMINISTRATORS.

1. Where administrators, acting under the provisions of an act of assembly of the state of Ohio, were ordered by the Court, vested by the law with the power to grant such order, to sell real estate, and before the sale was made the law was repealed, the powers of the administrators to sell terminated with the repeal of the law. The Bank of Hamilton vs. Dudley's Heirs, 523.

2. The lands of an intestate descend not to the administrator, but to the heir; they vest in him, liable to the debts of his ancestor, and subject to be sold for those debts. The administrator has no estate in the land, but a power to sell under the authority of the Court of Common Pleas. This is not an independent power, to be exercised at discretion, when the exigency in his opinion may require it; but it is conferred by the Court, in a state of things prescribed by the law. The order of the Court is a prerequisite indispensable to the very existence of the power; and if the law which authorizes the Court to make the order be repealed, the power to sell can never come into existence. The repeal of such a law divests no vested estate, but it is the exercise of a legislative power, which every legislature possesses. The mode of subjecting the property of a debtor to the demands of a creditor must always depend on the wisdom of the legislature. Ibid. 523.

AMENDMENT.

1. The declaration purported to count upon sixty-eight bills of the bank of the commonwealth of Kentucky, and it appeared that one of the bills had been omitted to be described, so that the declaration made out a less sum than the writ claimed or the judgment gave. The defendants in error, plaintiffs below, moved for leave to cure the defect by entering a remittitur of the amount of the bill so omitted and damages pro tanto.

This Court thinks itself authorized to make a precedent in furtherance of justice, whereby a more convenient practice may be introduced, and to allow the party to enter his remittitur; but on payment of the costs of the writ, if error is prosecuted no further after such amendment made. Bank of Kentucky vs. Ashley et al. 329.

ASSUMPSIT.

1. The act incorporating the Bank of the Commonwealth of Kentucky contains a provision by which it is enacted, that the bank shall receive money on deposite without being required to give an obligation under seal to repay it. This enactment must be construed with regard to the practice of banking, and the general understanding of mankind; and must create a liability to the depositor by the simple act of depositing, that is, an assumpsit in law, implied from an act in pais. The Bank of the Commonwealth of Kentucky vs. Wister et al. 324.

ASSUMPSIT.

2. Upon the deposite being made in the Bank of the Commonwealth of Kentucky, the cashier gave under his hand a certificate that there had been deposited to the credit of the plaintiffs below, seven thousand seven hundred and thirty dollars and eightyone cents, which is subject to their order on presentation of this certificate. The deposite was made in the notes of the bank, and when the same were deposited, and when demand of payment was made, the notes were passing at one half their nominal value. When the certificate was presented to the bank, the cashier offered to pay the amount in the notes of the bank, but they refused to receive payment in any thing but gold or silver. The language of the certificate is expressive of a general not a specific deposite, and the act of incorporation is express, that the bank shall pay and redeem their bills in gold or silver. The transaction then was equivalent to receiving and depositing the gold or silver; if the bank did not so understand it they might have refused to receive it; and the plaintiffs would certainly have recovered the gold and silver, to the amount upon the face of the bills. Ibid. 325.

3. The bank having offered to pay the amount of the certificate in their bills, they put their own construction on the same, and they cannot afterwards say that the plaintiffs below should have accompanied the certificate with a check. Ibid. 326

BANK OF THE UNITED STATES.

The charter of the Bank of the United States forbids the taking of a greater rate of interest than six per centum, but it does not declare a contract on which a greater interest has been taken or reserved, to be void. Such a contract is void upon general principles. Courts of justice are instituted to carry into effect the laws of a country, and they cannot become auxiliary to the violation of those laws. There can be no civil right where there can be no legal remedy; and there can be no legal remedy for that which is itself illegal. Bank of the United States vs. Owens, 538.

BILL OF EXCEPTIONS.

The record contains, imbodied in the bill of exceptions, the whole of the testimony and evidence offered at the trial of the cause by each party in support of the issue. It is very voluminous, and as no exception was taken to its competency or sufficiency, either generally or for any particular purpose, it is not properly before this Court for consideration, and forms an expensive and unnecessary burden upon the record. This Court has had occasion, in many cases, to express its regret on account of irregular proceedings of this nature. There was not the slightest necessity of putting any portion of the evidence in this case upon the record; since the opinion of the Court, delivered to the jury, presented a general principle of law; and the application of the evidence to it was left to the jury. Pennock et al. vs. Dialogue, 15. BILLS OF EXCHANGE.

1. Promissory notes.

2. Bills of exchange, payable at a given time after date, need not be presented for acceptance at all; and payment may at once be demanded at their maturity. Townsley vs. Sumrall, 178.

3. It is admitted, that in respect to foreign bills of exchange, the notarial certificate of protest is, of itself, sufficient proof of the dishonour of a bill, without any auxiliary evidence. Ibid. 179.

4. It is not disputed, that by the general custom of merchants in the United States, bills of exchange drawn in one state on another state are, if dishonoured, protested by a notary; and the production of such protest is the customary document of dishonour. Ibid. 180.

5. If a person undertake to accept a bill, in consideration that another will purchase one already drawn, or to be thereafter drawn, as an inducement to the purchaser to take it; and the bill is purchased upon the credit of such promise for a sufficient consideration; such promise to accept is binding upon the party. It is an original, promise to the purchaser, not merely a promise for the debt of another; and having a sufficient consideration to support it, in reason and justice as well as in law, it ought to bind him. Ibid. 181.

6. It can make no difference in law, whether the debt for which a bill of exceptions is taken is a pre-existing debt, or money then paid for the bill. In each case there is a substantial credit given by the party to the drawer upon the bill, and the party parts with his present rights at the instance of the promissee, whose promise is substantially a new and independent one, and not a mere guarantee of the existing promise of the drawer. Under such circumstances, there is no substantial distinction, whether

BILLS OF EXCHANGE.

the bill be then in existence, or be drawn afterwards. In each case, the object of the promise is to induce the party to take the bill upon the credit of the promise. Ibid. 182.

7. If the holder of a bill of exchange, at the time of taking the bill, knew that the drawee had not funds in his hands belonging to the drawer, and took the bill on the promise of the drawee to accept it, expecting to receive funds from the drawer; the promise of the drawee to accept the bill, constitutes a valid contract between the parties, notwithstanding the failure of the drawer to place funds in his hands. The acceptance of the drawee of a bill binds him, although it is known to the holder that he has no funds in his hands. It is sufficient that the holder trusts to such acceptance. Ibid. 183.

8. It is well settled, that if a bill of exchange be drawn by one partner in the name of the firm, or if a bill drawn on the firm by their usual name and style be accepted by one of the partners, all the partnership are bound. It results necessarily from the nature of the association, and the objects for which it is constituted, that each partner should possess the power to bind the whole, when acting in the name by which the partnership is known; although the consent of the other partners, to the particular contract, should not be obtained, or should be withheld. Le Roy vs. Johnson, 197. 9. Where a bill of exchange was drawn by A, after the dissolution of his partnership with B, and the proceeds of the bill went to pay and did pay the partnership debts of A & B, which A, on the dissolution of the firm, had assumed to pay; the holder of the bill after its dishonour can have no claim on B, in consequence of the particular appropriation of the proceeds of the bill. Ibid. 199.

CARRIERS.

1. The law regulating the responsibility of common carriers does not apply to the case carrying intelligent beings, such as negroes. The carrier has not, and cannot have over them the same absolute control that he has over inanimate matter. In the nature of things, and in their character, they resemble passengers, and not packages of goods. It would seem reasonable, therefore, that the responsibility of the carrier should be measured by the law which is applicable to passengers, rather than by that which is applicable to the carriage of common goods. Boyce vs. Anderson, 155. 2. The law applicable to common carriers is one of great rigour. Though to the extent to which it has been carried, and in the cases to which it has been applied, its necessity and its policy are admitted; yet it ought not to be carried further or applied to new cases. It has not been applied to living men, and it ought not to be. Ibid. 155. 3. The ancient rule of the law of carriers, that the carrier is liable only for ordinary neglect, does not apply to the conveyance of slaves. Ibid. 156.

CHANCERY AND CHANCERY PRACTICE.

1. As the plaintiffs in the Circuit Court claimed under a conveyance made in pursuance of a decree of a Court of competent jurisdiction, the bill ought not to have been dismissed for want of parties. The Circuit Court ought to have given leave to make new parties, and on their failing to bring the proper parties before the Court, the dismission should have been without prejudice. Hunt vs. Wickliffe, 215.

2. The Court has decided that a suit could be maintained in equity, by the holder of an endorsed note, against a remote endorser; and upon grounds perfectly familiar to Courts exercising equity jurisdiction. The Bank of the United States vs. Weisiger, 331.

3. It has been decided in Kentucky, that a suit at law could not be maintained in that state by the endorsee, against a remote endorser. The conclusion then results from our decisions, that he must be let into equity; for an endorsement is certainly no release to the previous endorsers; and the ultimate assignee alone is entitled to the benefit of their liability. And this we understand to be consistent with the received opinions and practice in Kentucky. Ibid. 348.

4. The testatrix directed that the interest of certain funds should be applied "to the proper education" of certain persons, her nephews, "so that they may be severally fitted and accomplished in some useful trade;" and gave to each of them "who should live to finish his education or reach the age of twenty-one years of age, one hundred pounds to set him up in his trade." She also gave the whole of her estates of every description, to be equally divided among certain persons, who should be living when the interest applicable to the education of her nephews should cease to be required, they being some of the persons among whom the same was to be divided; and she directed that so long as any one of the three nephews who should live, had not finished

CHANCERY AND CHANCERY PRACTICE.

his education, or arrived at the age of twenty-one years, the division of the property
so devised and given should be deferred, and no longer.

A bill was filed, by one of the nephews of the testatrix, charging that the executors had
not paid the several sums of money bequeathed to him, and praying that they may
be decreed to pay the same. No other persons were made parties to the proceeding
but the executors; and after a report of the master, the cause came on to a hear-
ing, and the Circuit Court dismissed the bill for want of proper partics. The de-
fendants at the argument insisted that not only the two nephews, whose education
was provided for by the testatrix, should have been made parties, but also all the
residuary legatees. So far as the bill sought to obtain such a portion of the fund as
was by a fair construction of the will applicable to the education of the nephews of
the testatrix, they alone were required to be parties; and the Court reversed the de-
cree of the Circuit Court which dismissed the bill; for the purpose of enabling the
complainant to make the other two nephews of the testatrix parties.

The Court did not consider it necessary to make the residuary legatees parties; in a pro-
ceeding the sole object of which was to ascertain and distribute among the nephews
of the testatrix the amount to which they were entitled, for the expenses of educa-
tion. The residuary legatees have undoubtedly an interest in reducing every demand
on the estate. Whatever remains sinks into the residuum; and that residuum is
diminished as well by the claims of creditors and specific legatees, as by this. In
all such cases the executors represent the residuary legatees, and guard their inte-
rests. It is a part of that duty which requires them to protect the interests of the
estate. In such suits the residuary legatees are never made parties. To require it
would be an intolerable burden on those who have claims on an estate in the hands
of executors. Dandridge vs. Washington's Executors, 377.

5. Where a bill was filed against the stockholders of a voluntary association, for the pur-
pose of banking; and the process was returned, "served" upon some of the parties
named in the bill, and as to others, who were not within the reach of the process,
"not found;" the Court stated, that it was not meant to say, that in cases of this
nature it is necessary to bring all the stockholders before the Court, before any de-
cree can be made. It is well known, that there are cases in which a Court of equity
dispenses with such a proceeding, when the parties are very numerous and un-
known; and the adoption of the rule would evidently impede, if not defeat the
purposes of justice. Mandeville et al. vs. Riggs, 487.

6. Upon the death of some of the parties to the bill who had been served with process,
the bill ought to have been revived against their personal representatives, if they
could be brought before the Court; unless some good reason, such as absolute in-
solvency, could be assigned to justify the decision. Ibid. 487.

7. One of the great principles upon which Courts of equity generally require all parties,
who are known and within the reach of its jurisdiction, to be made parties; is to
prevent future litigation and to take away multiplicity of suits. There are excep-
tions, it is true, to the rule, but they are founded upon special considerations.
Ibid. 487.

8. No instances are known where a joint liability has been asserted before a Court of
Chancery, on which the decree has not been made against all the parties before it
who did not establish some personal discharge. Ibid. 488.

9. In a bill filed in the Circuit Court of Alexandria county, in the District of Columbia,
against the stockholders of an association for banking purposes, the bill was dismissed
as to those stockholders who were named in the bill, but were not served with pro-
cess; and it was held to be error. As non-residents, the act of Congress of the 3d
of May, 1803, allows proceedings to be had against them by publication in the
newspapers in the district. Ibid. 489.

10. The complainants in the Circuit Court were proved to be the regularly appointed
committee of a voluntary society of Lutherans in actual possession of the premises,
and acting by their direction to prevent a disturbance of that possession; under the
circumstances of the case, there does not appear to be a serious objection to their
right to maintain a suit for a perpetual injunction against the heirs of the donor,
who sought to regain the property, and to disturb their possession. Beatty et al.
vs. Kurtz et al. 584.

11. The only difficulty which presents itself upon the question, whether the complainants
in the Circuit Court have shown, in themselves, sufficient authority to maintain their
suit, is, that it is not evidenced by any formal vote or writing. If it were necessary
to decide the case on this point, under all the circumstances, it might be fairly pre-

CHANCERY AND CHANCERY PRACTICE.

sumed. But this is not necessary; because this is one of those cases in which cer-
tain persons belonging to a voluntary society, and having a common interest, may
sue in behalf of themselves and others, having the like interests, as part of the same
society, for purposes common to all, and beneficial to all. Ibid. 585.

12. There is no doubt, but that under the general prayer in a bill in chancery for general
relief, other relief may be granted than that which is particularly prayed for; but
such relief must be agreeable to the case made by the bill. English et al. vs. Fox-
all, 595.

13. A marriage settlement provided that the trustees, after the death of the husband,
should stand possessed of a bond executed to them by the husband, and of the sum
of thirty-seven thousand and thirty-eight dollars to be received by them, upon trust to
place out the same, when it shall come into their hands, at interest, on freehold se-
curities, or invest it, or any part of it, in the purchase of stock of the United States
of North America, or bank stock there, with the approbation of the wife; and to
call in and replace the same, and reinvest the same, and the produce thereof, from
time to time, upon or in such securities, or stock, with the approbation of the wife.
It is not an unreasonable interpretation to say, that the wife, who survived the hus-
band, was to have a controlling agency, within the limitation prescribed by the con-
tract. She has not an arbitrary and unlimited discretion. The investment is re-
The trustees are
stricted to three objects; freehold securities, United States stock, or bank stock; and
the trustees are not authorized to make any other investment.

bound to make the investment in any one of the funds mentioned, which the wife
might request or direct. Ibid.

14. The husband by his will confirmed the marriage settlement, and he further declared,
"that if the sum of thirty-seven thousand and thirty-eight dollars secured to be paid
to the trustees should at any time be found insufficient to raise and bring into the
hands of the trustees the clear annual sum of two thousand two hundred and
twenty-two dollars and twenty-two cents, the annuity secured to be paid to his wife
by the settlement, then the trustees of his will shall, from time to time, transfer to
themselves, as trustees of the settlement, out of the residuum of his estate, such
sum or sums of money as may, from time to time, be found necessary to make up
any deficiency there may happen to be between the current amount of the interest
and produce of the principal sum, and the amount of the annuity; so that, in no
event, less than two thousand two hundred and twenty-two dollars and twenty-two
cents shall be raised annually for his wife, or for her benefit in the United States."
The personal estate of the husband, exclusive of the sum placed in the hands of
the trustees of the annuity, was so invested as to produce six per centum per annum,
and the direction of the wife to keep invested in six per cent. stock of the United
The wife
States the thirty-seven thousand and thirty-eight dollars, produced a deficiency in the
annuity, which she claimed to have made up from the residuary estate.
has a right to claim this deficiency to be so made up. Ibid.
CHARITABLE USES.

A lot of ground had, in the original plan of an addition to Georgetown, been marked
"for the Lutheran church;" and by the German Lutherans of the place, had been
used as a place of burial from the dedication, and who had erected a schoolhouse
on it, but no church; exercising acts of protection and ownership over it at some
periods, by committees appointed by the German Lutherans, the original owner
This may be considered as a dedication of the lot to
acquiescing in the same.
public and pious uses: and, although the German Lutherans were not incorporated,
nor were there any persons who as trustees could hold the property, the appropria-
tion was also valid under the bill of rights of Maryland. The bill of rights, to this
extent at least, recognises the doctrines of the statute of Elizabeth for charitable
uses; under which, it is well known, that such uses would be upheld, although
there was no specific grantee or trustee. This might at all times have been enforced
as a charitable and pious use, through the intervention of the government, as parens
patriæ, by its Attorney General or other law officer. It was originally consecrated
for a religious purpose. It has become a depository of the dead; and it cannot now
be resumed by the heirs of the donor. Beatty & Ritchie vs. Kurtz et al. 584.
COMMON LAW.

The common law of England is not to be taken in all respects to be that of America.
Our ancestors brought with them its general principles, and claimed it as their birth-
right. But they brought with them and adopted only that portion which was ap-
plicable to their situation. Van Ness vs. Pacard, 144.

515