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Gracie v. Palmer. 8 W.

court of Pennsylvania. It did not appear that the defendants were inhabitants of, or found in the district of Pennsylvania, at the time of serving the writ; and he therefore contended, under the 11th section of the Judiciary Act of 1789, c. 20, (1 Stats. at Large, 78,) that no civil suit could be brought against them by original process in that district.

MARSHALL, C. J., stated that the uniform construction, under the clause of the act referred to, had been, that it was not necessary to

aver, on the record, that the defendant was an inhabitant of [*700] the district, or found therein. That it was sufficient if the

court appeared to have jurisdiction by the citizenship or alienage of the parties. The exemption from arrest in a district in which the defendant was not an inhabitant, or in which he was not found at the time of serving the process, was the privilege of the defendant, which he might waive by a voluntary appearance. That if process was returned by the marshal as served upon him within the district, it was sufficient; and that where the defendant voluntarily appeared in the court below, without taking the exception, it was an admission of the service, and a waiver of any further inquiry into the matter. Motion denied.

INDEX.

ABATEMENT.

1. The 31st section of the Judiciary Act, (1 Stats. at Large, 90,) does not enable the demandant in a real action to prosecute it against the heir of the tenant who dies before judgment, and the suit abates. Macker's Heirs v. Thomas, 314.

2. If judgment is rendered against the heir, he may reverse it by a writ of error, though he did not assign for error in the court below, that the suit was abated. Ib.

EXECUTORS &c. 5.

ACCOUNT.
ASSIGNMENT, 6.

ACTION.

An action at law will not lie in the circuit court of the United States for the District of Columbia, to recover a sum of money decreed to be paid by the same court sitting in equity. Hugh v. Higgs, 546.

AGENT, 5; BILLS OF EXCHANGE, &c. 8; PRACTICE, 1.

ADMIRALTY.

1. In all proceedings in rem, on an appeal, the property follows the cause into the circuit court, and is subject to the disposition of that court. The Collector, 58.

2. But it does not follow the cause into the supreme court, on an appeal to that court. Ib.

3. After an appeal from the district to the circuit court, the former court can make no order respecting the property, whether it has been sold, and the proceeds paid into court, or whether it remains specifically, or its proceeds remain, in the hands of the marshal. Ib.

4. It is a great irregularity for the marshall to keep the property or the proceeds thereof in his own hands, or to distribute the same among the parties entitled, without a special order from the court; but such an irregularity may be waived by the assent and ratification of all the parties interested, if there be no mala fides. Ib. APPEAL, 3; CONSUL; PRACTICE, 2. 3.

ADVERSE POSSESSION.
SEISIN AND DISSEISIN.

AGENT.

1. A naked power inter vivos to convey property not coupled with an interest, though

irrevocable by the donor of the power, by reason of a contract not to revoke it,
necessarily ceases at his death. Hunt v. Rousmanier's Administrators, 379.

2. By the phrase "coupled with an interest," is not meant an interest in the exercise
of the power, but an interest in the property on which the power is to operate. Ib.
3. It being admitted by the demurrer to a bill in equity, that certain powers of attorney
were given and received under the belief that they were, and with the intention that'
they should create, a specific lien and security upon certain vessels, and the donor
of the powers having died, and the creditor having brought his bill to have the agree
ment for security executed, the demurrer was overruled, and the defendant ordered
to answer. Ib.

4. Where an agent effected two policies of insurance, and gave his own note for the
premium, in an action on one policy, the underwriters may set off the amount of the
premium on the other policy, and having been prevented by an injunction from
doing so, equity will compel the principal to allow the amount to be deducted from
the judgment. Leeds et al. v. The Marine Insurance Company, 165.

5. A consignee abroad having purchased a return cargo, and consigned it to the prin-
cipal, who objected to the purchase, but received and sold the cargo, an action by
the consignee, for money had and received, will lie to recover the proceeds of the
sales. Willinks v. Hollingsworth et al. 73.

6. In that action, the defendant can not recoupe damages for breach of his orders.
Ib.

ASSIGNMENT, 2; Prize, 15.

ALIEN.

1. British subjects born before the Revolution are incapable of inheriting or transmit‐
ting lands in this country, save by force of some treaty. Blight's Lessee v. Roches-
ter, 316.

2. Both the treaty of peace with Great Britain of 1733, (8 Stats. at Large, 80,) and
the treaty of 1794, (8 Stats. at Large, 116,) provided only for titles then existing.
1b.

3. Alienage being proved, the fact that the alien acquired real estate many years since,
but did not occupy it, is not sufficient ground for presuming that he became a citizen
of Virginia, by taking an oath of fidelity in a court of record. Ib.

CONSTITUTIONAL LAW, 2; CORPORATION, 3.

AMENDMENT.

PRACTICE, 2. 3.

ANSWER.

EQUITY.

APPEAL.

1. A decree of the highest court of equity of a State, affirming the decretal order of an
inferior court of equity of the same State, refusing to dissolve an injunction granted
on the filing of the bill, is not a final decree within the 25th section of the Judiciary
Act, (1 Stats. at Large, 85,) from which an appeal lies to this court. Gibbons v.
Ogden, 120.

2. An equity suit, where an appeal has been taken from the circuit court to this court
but not prosecuted, will be dismissed upon producing a certificate from the court
below to that effect. Randolph et al. v. Barbour et al. 35.

3. An admiralty suit, where an appeal has been taken from the circuit court to this
court, but not prosecuted, will be dismissed, upon producing a certificate from the
court below, that the appeal has been taken, and not prosecuted. The Jonquille,

121.

4. This court will not grant a rehearing in an equity cause, after it has been remitted
to the court below to carry into effect the decree of this court, and a subsequent ap.
peal brings up only the proceedings after the mandate. Browder v. M'Arthur, 220.
5. In an equity cause, the res in litigation may be sold by order of the circuit court,
and the proceeds invested in stocks, notwithstanding the pendency of an appeal to
this court. Spring et al. v. The South Carolina Insurance Company, 144.

ADMIRALTY; INTEREST.

APPEARANCE.

BAIL; Courts OF THE UNITed States, 7; Judgment, &c. 3.

ARBITRATION AND AWARD.

BAIL, 2.

ARREST.

INSOLVENT DEBTOR, 2; PARLIAMENTARY LAW, 2.

ASSIGNMENT.

1. A conveyance of property by a forger of notes to a trustee, for the benefit of the
holders of those notes, the cestuis que trust not engaging or holding out any expec-
tation that they would forego a prosecution, is valid, although the trustee knew the
assignor was about to abscond, and the conveyance was made with the hope that
the holders of the notes would be propitiated thereby, and would not prosecute.
Marbury v. Brooks, 325.

2 The assignor having selected the assignee, and made the conveyance to him without
the knowledge of the cestuis que trust, he is not their agent so far as respects the in-
ception of the transaction, and participation by him is not participation by them in
the hopes and purposes of the assignor. Ib.

3. An assignment of a policy of insurance, will entitle the assignee to receive from the
underwriters the amount insured in case of a loss. Spring v. The South Carolina
Insurance Company, 411.

4. It is not necessary that the assignment should be accompanied by an actual delivery
of the policy, to make a title against one who is not a bonâ fide purchaser. Ib.
5. Upon a bill of interpleader, filed by the underwriters against the different creditors
of an insolvent debtor, claiming the fund proceeding from an insurance made for
account of the debtor, some on the ground of special liens, and others under the
assignment, the rights of the respective parties will be determined.

Ib.

6. But, on such a bill, those of the co-defendants who fail in establishing any right to
the fund, are not entitled to an account from the defendant, who shows himself to be
the assignee of the policy, of the amount and origin of his claims. 1b.
Executors, &c., 1; Lien; Public Lands, 13 – 18.

ATTACHMENT.

1. Under the act of assembly of Maryland of 1795, c. 56, if the defendant appears, and
dissolves the attachment, a declaration and subsequent pleadings are not necessary,
as in other actions, but the cause may be tried upon a short note. Goldsborough v.
Orr, 390.

2. But where the plaintiff is entitled to a stipulated sum of money, in lieu of a specific
article to be delivered, an attachment will lie, under that act. Ib.

BAIL.

1. Under the act of assembly of Virginia, the defendant may enter special bail, and
defend the suit at any time before the entering up of judgment upon a writ of

inquiry executed; and the appearance of the defendant, or the entry of special bail,
before such judgment, discharges the appearance bail. Bartle v. Coleman, 127.
2. If the defendant does not appear, or give special bail, the appearance bail may
defend the suit, and is liable to the same judgment as the defendant would have
been liable to; but the defendant cannot appear and consent to a reference, the
report and judgment on which is to bind the appearance bail as well as himself
Such a joint judgment is erroneous, and will be reversed as to both. Ib.

BANK.

1. A banking corporation, created by the legislature of Louisiana, is capable of making
a contract without the use of its corporate seal. Fleckner v. The Bank of the United
States, 437.

2. The cashier of a bank is its executive officer, by whom its debts are received and
paid, and its securities taken and transferred. Ib.

The Bank of the

promissory note.

EVIDENCE, 5; UNION BANK OF ALEXANDRIA.

BANK OF THE UNITED STATES.

United States is not restrained by its charter from purchasing a
Fleckner v. The Bank of the United States, 437.

BILLS OF EXCHANGE AND PROMISSORY NOTES.

1. No protest of a promissory note is necessary, by the common law.
Bryan, 43.

Young v.

2. A protest of an inland bill or promissory note is not necessary, nor is it evidence
of the facts stated in it. The Union Bank v. Hyde, 169.

3. The following undertaking of the indorser of a promissory note: "I do request
that hereafter any notes that may fall due in the Union Bank, on which I am or
may be indorser shall not be protested, as I will consider myself bound in the same
manner as if the said notes had been or should be legally protested,” held to be a
waiver of demand and notice; both parties having had a course of dealing founded
on that construction. Ib.

4. Where the second day of grace falls on Saturday, it is the last day of grace; and
notice of non-payment given to the drawer of a bill on that day, after a demand
upon the acceptor on the same day, after business hours, is sufficient to charge the
drawer. Bussard v. Levering, 22.

5. Notice to the drawer, by putting the same into the post-office, where the persons
live in different places, is good. Ib.

6. After demand upon the maker of a note, on the third day of grace, notice to the
indorser on the same day, is sufficient by the general law merchant. Lindenberger
v. Beall, 23.

7. Evidence of a letter, containing notice, having been put into the post-office,
directed to the indorser, at his place of residence, is sufficient proof of the rotice
to be left to the jury, and it is unnecessary to give notice to the defendant to pro-
duce the letter before such evidence can be admitted. Ib.

8. Though an indorser of a negotiable note may ordinarily be declared against in an
action for money had and received, yet if the plaintiff's evidence shows that he was
a mere accommodation indorser, this action will not lie; he can be charged only on
a special count upon the note. Page's Administrators v. The Bank of Alexandria,

209.

9. The words "ne varietur," written on a negotiable note by a notary, do not restrain
its negotiability, by the laws of Louisiana. Fleckner v. The Bank of the United
States, 437.

BANK OF THE UNITED STATES; COURTS OF THE UNITED STATES, 4; Evi-
DENCE, 4; EXECUTORS, &c. 1–3.

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