ABATEMENT-14.

Sheppard v. Graves,

1. It is a bad mode of pleading to unite pleas in abatement and pleas to the merits. And if after pleas in abatement, a defense be interposed, going to the merits of the controversy, the grounds alleged in abatement become thereby immaterial and are waived. (505) 518 2. In this case, as in the preceding, it is decided, that where the plaintiff averred enough to show the jurisdiction of the court, and the defendant pleaded in abatement that the plaintiff was disabled from bringing the suit, on account of residence, it was incumbent upon the defendant to sustain the allegation by proof.

Same v. Same,

(512) 521 3. Until that was done, it was not necessary for the plaintiff to offer any evidence upon the subject. ld. (lb.) 521

ACCOUNTS-16

1. There were two trustees of real and personal estate for the benefit of a minor. One of the trustees was also administrator de bonis non upon the estate of the father of the minor, and the other trustee was appointed guardian to the minor.

2. When the minor arrived at the proper age, and the accounts came to be settled, the following rules ought to have been applied.

3. The trustees ought not to have been charged with an amount of money, which the administrator trustee had paid himself as commission. That item was allowed by the Orphans' Court, and its correctness cannot be reviewed, collaterally, by another

court.

Barney v. Saunders et al.

(535) 1047 4. Nor ought the trustees to have been charged with allowances made to the guardian trustee. The guardian's accounts also were cognizable by the Orphans' Court. Having power under the will to receive a portion of the income, the guardian's receipts were valid to the trustees.

Id.

(lb.) 1047 5. The trustees were properly allowed and credited by five per cent. on the principal of the personal estate, and ten per cent. on the income. Id

(Ib. 1047 6. Under the circumstances of this case, the trustees ought not to have been charged upon the principle of six months' rests and compound inter(b.) 1047 7. The trustees ought to have been charged with all gains, as with those arising from usurious loans, unknown friends, or otherwise.

ests.

Id.

Id.

(Ib.) 1047

6. During the war with Mexico, the Admittance, an American vessel, was seized in a port of California, by the commander of a vessel of war of the United States, upon suspicion of trading with the enemy. She was condemned as a lawful prize by the chaplain belonging to one of the vessels of war upon that station, who had been authorized by the President of the United States to exercise admiralty jurisdiction in cases of capture.

Jecker et al. v. Montgomery,

(498) 240

7. The owners of the cargo filed a libel against the captain of the vessel of war, in the Admiralty Court for the District of Columbia. Being carried to the Circuit Court, it was decided:

1. That the condemnation in California was invalid as a defense for the captors.

2. That the answer of the captors, having averred sufficient probable cause for the seizure of the cargo, and the libelauts having demurred to this answer, upon the ground that the District Court had no right to adjudicate, because the property had not been brought within its jurisdiction, the demurrer was overruled, and judgment was entered against the libelants. (Ib.) 240

Id.

8. The judgment of the Circuit Court, upon the first point, was correct, and upon the second point, (Ib) 240

erroneous.

Id.

9. The Prize Court established in California was not authorized by the laws of the United States or

the laws of nations. Id.

(lb.) 240

10. The grounds alleged for the seizure of the vessel and cargo in the answer, viz.: that the vessel sailed from New Orleans with the design of trading with the enemy, and did, in fact, hold illegal intercourse with them, are sufficient to subject both

to condemnation, if they are supported by testi-
mony.

Jecker et al. v. Montgomery,

(498) 240
11. And if they were liable to capture and condem-
nation, the reasons assigned in the answer for not
bringing them into a port of the United States and
libeling them for condemnation, viz.: that it was
impossible to do so consistently with the public in-
terests, are sufficient, if supported by proof, to jus-
tify the captors in selling vessel and cargo in Cali-
fornia, and to exempt them from damages on that
account.
Id.
(Ib.) 240
12. The Admiralty Court in the district had ju-
risdiction of the case, and it was the duty of the
court to order the captors to institute proceedings
in that court, to condemn the property as prize, by
a day to be named in the order; and in default
thereof, to be proceeded against upon the libel for
an unlawful seizure.

Where a libel was filed, ciaiming compensation
for injuries sustained by a passenger in a steam-
boat, proceeding from Sacramento to San Francis-
co, in California, the case is within the admiralty
jurisdiction of the courts of the United States.

Steamboat New World et al. v. King, (469) 1019
AGENTS-16.

1. A contract is void as against public policy, and
can have no standing in court by which one party
stipulates to employ a number of secret agents in
order to obtain the passage of a particular law by
the Legislature of a state, and the other party
promises to pay a large sum of money in case the
law should pass.

Marshall v. Baltimore and Ohio Rail-
road Compaпу,
(314) 953
2. It was also void, if, when it was made, the
parties agreed to conceal from the members of the
Legislature the fact that the one party was the
agent of the other, and was to receive a compen
sation for his services in case of the passage of the
law.
Id.
(lb.) 593
3. And if there was no agreement to that effect,
there can be no recovery upon the contract, if in
fact the agent did conceal from the members of
the Legislature that he was an agent who was to re-

ceive compensation for his services in case of the
(Ib) 593
4. Where there is a special contract between prin-
cipal and agent, by which the entire compensation
is regulated and made contingent, there can be no
recovery on a count for quantum meruit.
Id.
(lb.)

593

5. The circumstance that a passenger was a
"steamboat man," and as such carried gratuitous-
ly, does not deprive him of the right of redress en-
joyed by other passengers. It was the custom to
carry such persons free.
Id.
(Ib.) 593
6. The master had power to bind the boat by giv-
ing such free passages.

Id.

Steamboat New World et al. v. King,(469.) 1019
7. The principle asserted in 14 How., 486, re-at-
firmed, namely: that, when carriers undertake to
convey persons by the agency of steam, public
policy and safety require that they should be held
to the greatest possible care and diligence.
(Tb.) 1019
8. The theory and cases examined relative to the
three degrees of negligence, namely: slight, ordi-
nary and gross.
(Ib.) 1019
9. Skill is required for the proper management
of the boilers and machinery of a steamboat; and
the failure to exert that skill, either because it is
not possessed, or from inattention, is gross negli-
gence.
Id.
(Ib.) 1019

Id.

10. The 13th section of the Act of Congress, passed
on the 7th of July, 1838 (5 Stat. at Large, 300,
makes the injurious escape of steam prima facie
evidence of negligence; and the owners of the
boat, in order to escape from responsibility, must
prove that there was no negligence.
Id.
(lb.) 1019

ALABAMA-13.

Circuit Court took two grounds of defense, and the
1. Where the respondent in a chancery suit in the
judge, in giving his reasons for a decree dismissing
the bill, upon one of the two grouuds, expressed
his opinion that the respondent had not established
the other ground, he cannot appeal from this as a
part of the decree.
Corning et al. v. The Troy Iron and
Nail Factory.
(451) 768
2. The decree was in the respondent's favor, dis-
missing the bill with costs, and no appeal lies from
an opinion expressed by the judge upon the facts of
the case, not affecting the decree.
Id.

(lb.) 768
3. Moreover, the decree complained of has al-
ready been argued before this court upon the appeal
decided to be insufficient, and the decree reversed.
of the other party, and both grounds of defense
There is, therefore, no such decree as that appealed
from.

Id.

(15.) 768
4. Besides, the court below has not acted upon
the mandate and entered a final decree: therefore
there is no final decree to appeal from.
Id.
(Ib.) 768

APPEAL-16.
See Practice and Chancery.
APPRAISERS-16.

of which the Circuit Court of the United States for
the District of Arkansas, was vested with power to
try offenses committed within the Indian country.
United States v. Dawson,
(467) 775
2. In July, 1844, it was alleged that a murder was
committed in that country.

Id.

(lb.) 775
3 In April, 1845, an indictment was found by a
grand jury, in the Circuit Court of the United
States for the District of Arkansas, against a per-
son charged with committing the murder.

Id.

Id.

(lb.) 775
4. In March, 1851, Congress passed an Act, erect-
ing nine of the Western counties and the Indian
country into a new judicial district, directing the
judge to hold two terms there, and giving him ju-
risdiction of all causes, civil or criminal, except
appeals and writs of error, which are cognizable
before a Circuit Court of the United States.
(Ib.) 775
5. The residue of the State remained à judicial
district to be styled the Eastern District of Arkan-
ld.
(Ib.) 775
6. This Act of Congress did not take away the
power and jurisdiction of the Circuit Court of the
United States for the Eastern District to try the in-
dictment pending.
(lb.) 775

sas.

Id.

3. The facts as they appeared to the officer must
furnish the rule for the application of these prin-
ciples.
(Ib.) 75
4. But the officer cannot take possession of private
property for the purpose of insuring the success
of a distant expedition upon which he is about
to march.

id.

(Ib.) 75
5. Whether or not the owner of the goods resumed
the possession of them at any time after their seiz
ure, was a fact for the jury. In this case, they
found that he did not resume the possession, and
in this they were sustained by legal evidence.
Id.

(Ib.) 75
6. The officer who made the seizure cannot justify
his trespass by showing the orders of his superior
officer. An order to commit a trespass can afford
no justification to the person by whom it was
executed.
Id.

(lb.) 75
7. The trespass was committed out of the limits of
the United States. But an action for it may be
maintained in the Circuit Court for any district in
which the defendant may be found upon process
against him, where the citizenship of the respective
parties gives jurisdiction to a court of the United
States.
(lb.) 75

Id.

ASSIGNMENT-13.

1. The following paper, viz.:
"The President or Cashier of the Planters' and
Merchants' Bank will please hold, subject to the
order of Mr. J. G. Lindsey, all the debts referred to
in the inclosed letter from Mr. McFarlin, except the
two drafts of McCollier Minge, upon the Messrs.
Ellicotts, of Baltimore, which, when collected,
please place to my credit"-imports an authority to
Lindsey to control the settlement and collection of
these several demands; but not necessarily a trans-
fer of the title to or interest in them.

Rogers v. Lindsey,

(441) 215
2. The circumstances of the case favor this con-
struction. Lindsey had become personally respon-

sible for a sum of money, which these debts were
intended in part to meet. As an honest transaction,
it would answer all purposes, if he had only a
power to collect the debts.
ld.
(lb.) 215
3. Where Lindsey, under this power, assigned an
interest in one of these judgments, and the bill
charged that the assignee knew of the interest of
the original creditor, which the assignee, in his
answer, did not deny, he failed to bring himself
within the rules which protect a purchaser for a
valuable consideration without notice, and his
claim must be set aside.
Id.
(lb.) 215

4. Lindsey's having assigned this judgment to a
third person, and then taken a re-assignment of it,
does not vary the case. He stands then in his origi-
nal position.
(lb.) 215

ld.

ATTACHMENT-16.

1. Where the debtor alleged that process of at-
tachment had been laid in his hands as garnishee,
attaching the debt which he owed to the creditor
in question; and moved the court to stay execu-
tion until the rights of the parties could be settled
in the State Court which had issued the attach-
ment, and the court refused so to do, this refusal
is not the subject of review by this court. The
motion was addressed to the discretion of the
court below, which will take care that no injustice
shall be done to any party.

Early v. Rogers et al.

(599) 1074

2. This court expresses no opinion, at present,
upon the point whether an attachment from a
state court can obstruct the collection of a debt by
the process of the courts of the United States.
Id.

(lb.) 1074

AUTHORITIES, LEGAL-16.
A distinction is to be made between cases which
which an opinion is expressed upon it incidentally.
decide the precise point in question and those in
Carroll v. Lessee of Carroll et al. (275) 936
AWARD-15.

accounts by means of an arbitrator, Bispham was
1. In the settlement of complicated partnership
charged with one half of certain custom house
bonds, which Archer, the other partner, was liable
to pay, and which obligations had been incurred
on partnership account.
(162) 644

1. An appeal does not lie to this court, from the
decision of a district court in a case of bankruptcy,
(11)
Crawford v. Points,
2. Even if it would, the decree of the District

(lb.)

29

29

Court in this case is not a final decree.
Id.
3. Where a bill in chancery was filed by the assign-
ee of a bankrupt, claiming certain shares of bank
stock the same being also claimed by the Bank and
by other persons who were all made defendants,
and the answer of the Bank set forth apparently
valid titles to the stock, which were not impeached
by the complainant in the subsequent proceedings
in the cause, nor impeached by the other defend-
ants, the Circuit Court decreed correctly in con-
firming the title of the Bank.

Buckingham v. McLean,

(151) 91
4. A power of attorney to confess a judgment
is a security within the second section of the Bank-
rupt Act, 5 Stat. at Large, 412.
ld.

(Ib.) 91
5. And this security is void if given by the debtor
in contemplation of bankruptcy. But by these
terms is meant an act of bankruptcy on an appli-
cation by himself to be decreed a bankrupt, and
not a mere state of insolvency.
Id.

(lb.)

91

6. In this case there is evidence enough to show
that the debtor contemplated a legal bankruptcy
when the power of attorney was given.
(lb.) 91
ld.

BANKS-16.

1. In 1845 the Legislature of Ohio passed a gen-
eral banking law, the fifty-ninth section of which
required the officers to make semi-annual divi-
dends, and the sixtieth required them to set off six
per cent. of such dividends for the use of the State,
which sum or amount so set off should be in lieu of
all taxes to which the company, or the stockholders
therein, would otherwise be subject.

2. This was a contract fixing the amount of taxa-
tion and not a law prescribing a rule of taxation
until changed by the Legislature.

State Bank of Ohio v. Knoop,

(369) 977

3. In 1851 an Act was passed, entitled "An Act
to tax banks, and bank and other stocks, the same as
property is now taxable by the laws of this State."
The operation of this law being to increase the tax,
the banks were not bound to pay that increase.
Id.
(Ib.) 977
4. A municipal corporation, in which is vested
some portion of the administration of the govern-
ment, may be changed at the will of the Legislature.
But a bank, where the stock is owned by individuals,
is a private corporation. Its charter is a legislative
contract, and cannot be changed without its as-
Id.
(Ib.) 977
5. The preceding case upon this subject.examined,
and the case of The Providence Bank v. Billings, 4
Peters, 561, explained.
(lb.) 977

sent.

Id.

BILL OF EXCEPTIONS--13.

1. Where the only exceptions taken in the court
below were to the refusals of the court to continue
the case to the next term, and it appears that the
continuance asked for below and the suing out the
writ of error, were only for the purpose of delaying
the payment of a just debt, and no counsel appeared
in this court on that side, the 17th rule will be ap-

1. In order to make a bill of exceptions valid, it
must appear by the transcript not only that the in-
structions were given or refused at the trial, but
also that the party who complains of them except-
ed to them while the jury was at the bar.
Phelps v. Moyer,
(160) 643
2. The bill of exceptions need not be drawn out
in form and signed before the jury retire; but it
must be taken in open court, and must appear by
the certificate of the judge who authenticates it
to have been so taken.

Id.

(Ib.) 643

3. Hence, when the verdict was rendered on the
13th December, and on the next day the plaintiff
came into court and filed his exception, it is not
properly before this court. And no error being as-
signed or appearing in the other proceedings, the
judgment of the Circuit Court must be affirmed,
with costs.

Id.

BILLS OF EXCEPTION-16.

(Ib.) 643

2. Nor is it a reason for rejecting the transcripts as
evidence, that the items charged in the accounts,
as balances of quarterly returns, did not purport,
on the face of said accounts, to be balances ac-
knowledged by the postmaster, nor were supported
by proper vouchers; but merely purported to be
the balances of said quarterly returns, as audited
and adjusted by the officers of the government.
The objection applied, if at all, to the accuracy of
the accounts, and not to their admission as evi-
dence.

Broome v. United States.
2. When a clerk of a court was sued upon his of-
ficial bond, and the breach alleged was, that he had
surrendered certain goods without taking a bond
with good and sufficient sureties, and the plea was,
that the bond which had been taken was assigned
to the plaintiffs, who had brought suit, and re-
ceived large sums of money in discharge of the
bond-this plea was sufficient, and a demurrer to
it was properly overruled.
Bevins v. Ramsey,
(179) 652

BONDS-16.
For Surety Bonds, see Sureties.

CARRIERS-16.

1. The circumstance that a passenger was a
"steamboat man," and as such carried gratuitou-
ly, does not deprive him of the right of redress en-
joyed by other passengers. It was the custom to
carry such persons free.

Steamboat New World v. King. (409) 1019

2. The master bad power to bind the boat by giving such a free passage. Id. (lb.) 1019 3. The principle asserted in 15 How., 486, re-affirmed, namely: that, when carriers undertake to convey persons by the agency of steam, public policy and safety require that they should be held to the greatest possible care and diligence. Id. (Ib.) 1019 4. The theory and cases examined relative to the three degrees of negligence, namely: slight, ordinary and gross.

Id.

(lb.) 1019 5. Skill is required for the proper management of the boilers and machinery of a steamboat, and the failure to exert that skill, either because it is not possessed, or from inattention, is gross negligence. Id. (Ib.) 1019 6. The 13th section of the Act of Congress, passed on the 7th of July, 1838 (5 Stat. at Large, 306), makes the injurious escape of steam prima facie evidence of negligence; and the owners of the boat, in order to escape from responsibility, must prove that there was no negligence. Id. (lb.) 1019

(28) 36 2. The reason given by the arbitrator, that he preferred creditors before awarding a certain sum to one of the partners, is insufficient. ld.

Id.

(Ib.) 36 3. Nor had the arbitrator a right to depart, in any particular, from the arrangement of the property which the partners had designated in their deed to -the trustee. Ib. 36 4. Where there was a contract for the sale of land for the purchase of which indorsed notes were given, but before the time arrived for the making of a deed, the purchaser failed, and the liability to pay the note became fixed upon the indorser; and a new contract was made between the vendor and the indorser, that, in order to protect the indorser, be should be substituted in place of the original purchaser, fresh notes being given and the time of payment extended, evidence was admissible to show that the latter contract was a substitute for the former.

Bradford v. Union Bank of Tennessee,(57) 49 5. A part of the land having been sold for taxes whilst the first set of notes was running to maturity (the vendee having been put into possession), and the vendor being ignorant of that fact when the contract of substitution was made, all that the indorser can claim of the vendor, is a deed for the land subject to the incumbrances arising from the tax sales. The notes given for the substituted contract must be paid. Id.

(1b.) 49

6. The indorser having filed a bill for a specific performance upon the title bond, which he had received from the vendor, this court will not content itself with dismissing his bill without prejudice, and thus give rise to further litigation, but proceed to pass a final decree, founded on the above principles, ld. (lb.) 49 7. The Legislature of Virginia incorporated the stockholders of the Richmond, Fredericksburg and Potomac Railroad Company, and in the charter pledged itself not to allow any other railroad to be constructed between those places, or any portion of that distance; the probable effect would be to diminish the number of passengers traveling between the one city and the other upon the railroad authorized by that Act, or to compel the said company, in order to retain such passengers, to reduce the passage money.

Richmond Railroad Company v. Louisa
Railroad Company,

(71) 55 8. Afterwards the Legislature incorporated the Louisa Railroad Company, whose road came from the West and struck the first-named Company's track nearly at right angles, at some distance from Richmond: and the Legislature authorized the Louisa Railroad Company to cross the track of the other, and continue their road to Richmond. Id. (Ib.) 55

9. In this latter grant, the obligation of the contract with the first Company is not impaired within the meaning of the Constitution of the United States. Id. (Ib.) 55

10. In the first charter, there was an implied reservation of the power to incorporate companies to transport other articles than passengers; and if the Louisa Railroad Company should infringe upon the rights of the Richmond Company, there would be a remedy at law, but the apprehension of it will not justify an injunction to prevent them from building their road. (Ib.) 55

Id.

11. Nor is the obligation of the contract impaired by crossing the road. A franchise may be condemned in the same manner as individual property. Id. (lb.) 55

12. The Statute of Frauds in the State of Alabama declares void conveyances made for the purpose of hindering or defrauding creditors of their just debts. Parish v. Murphree,

(92) 65

16. Where a bili in chancery was filed by the assignee of a bankrupt, claiming certain shares of bank stock, the same being also claimed by the Bank and by other persons who were all made defendants, and the answer of the Bank set forth apparently valid titles to the stock, which were not impeached by the complainant in the subsequent proceedings in the cause, nor impeached by the other defendants, the Circuit Court decreed correctly in confifming the title of the Bank. Buckingham v. McLean, (151) 91

17. A power of attorney to confess a judgment is a security within the second section of the Bankrupt Act, 5 Stat. at Large, 442.

Id.

(lb.) 91