U.S. vs. Passmore April term 1804¹—

     Omit the argument to show that the Common Law affords a rule of decision in criminal Cases in the federal Courts, because it is irrelevant to the case & unecessarily prolongs the opinion; at that time I hoped that by not abandoning the doctrine, it might again become popular & maintain its just ground. In this I have been disappointed, & of course have no wish to disturb the subsequent decision of the Supreme Court.

     The part of the opinion which I wish to be omitted commences in my note book thus—"as something was said about the Common law as applicable to the Courts of the U.S. I think it necessary without going far into the subject to notice those observations &ca."

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Kohne vs. Insur. Co. N. America. October 1804

     To prevent a misapprehension of the meaning of the Court as to the necessity of Landing a Cargo under the Law of Congress which is intended for reexportation, I would wish that part of the opinion to be expressed in less general terms—as thus "The general² meaning of importation is to bring in with intent to land. But where the goods are intended for reexportation, the Law of Congress requires something further to be done. It declares that duties on goods imported are to be paid &c." So in another sentence of the same paragraph it stood in my note book thus "Bringing in a Cargo without landing is no more an importation in reference to our Laws, than the same act & a mere reporting without paying duties &c." To show that whenever I was speaking of importation, I meant in reference to exportation again; I would say in the above sentence "in reference to the above Act of Congress" instead of "our Laws."

     In the Conclusion of this opinion, it stood thus in my note book— "you will decide for yourselves whether the Circumstances before mentioned or any of them were matereal to the risk. If they were, the plf. cannot recover, as it is admitted they were not disclosed."

These words I have erazed altogether in my note book, not being quite satisfied that in a case like this, the materiality of the concealment ought to be left to the Jury. At all events it is unecessary to continue that sentence in your report, & the insertion of it may mislead.

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Rentgen vs. Kanower & Graint, same term.

My note book does not state whether the general issue was pleaded & notice given to the plf. that he was not the original Inventor, or not. I presume of course that this was the case, as that point was argued without objection. If no such notice was given, any opinion upon that point was improper because unecessary. If it was given, it was sufficient to state what the Witnesses proved & the law in respect to their testimony, without adding the following expressions which could only excite doubt where none was or could be felt vz "I do not say whether the patent is prima facie evidence of this fact or not, nor it is necessary to decide this point, because if it were not so, still slight evidence would be sufficient on his part to put it upon the deft to prove the contrary & in this case the plfs. witnesses say enough on this point." This sentence you will please omit, as there can be no doubt, but that it lies on the deft to prove that the patentee was not the original inventor. 

Mary &c. assignees of Anthony & Pleasants vs. Barker—same term.

The court decided that whatever either Pleasants or Anthony has acknowledged might be given in evidence aft the plfs.— It would be well to prevent a misunderstanding of the meaning of the Court, to qualify those general expressions by adding the words "before the bankruptcy." as their acknowledgements, afterwards would certainly not be evidence.

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Walker vs. Smith—same term. mot. for new trial.

The opinion on that part of it which I wish corrected stands thus in my note book. "But I certainly never meant to direct the Jury to find interest in this case, altho I think they would have been Justified in allowing it in the name of damages (This is not a demand of a debt which by law carries interest. It is an action to recover damages for a breach of duty in the deft as his factor. The plea is not guilty.) But if the Jury &c." 

The Sentence enclosed in brackets may as well be omitted as they rather perplex than illustrate the idea of the Court.

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Hyllon's Lessee vs. Brown. Same Term.

The opinion given in this case is I think perfectly correct in reference to the case itself. But there are some expressions in it which if applied to other cases, without the necessary qualifications might lead to error. The only point necessary, or which was intended to be decided was, that it was sufficient for the plf. to prove a right of entry or of possession, which prima facie was sufficient for him to maintain his ejectment, and that it was not incumbent on him to go further & show the title to be out of the Proprietor. If the rule of nullum tempus &c. applied to the Proprietor by the stat. or Common law of your state, it would follow that it would be necessary for the plf. in an Eject. agt. the Proprietor or his tenant to prove the title out of him, but not I conceive agt. a third person claiming merely by possession, or claiming under the same title that the plf. did. 

It would perhaps be best to state the opinion somewhat in this way— Washington J. During the vacation I have considered this question, and am now satisfied that the nonsuit was improperly directed. I permitted my Judgt. to be influenced more than it ought to have been by the case of Shriders Lessee vs. Nargan 1 Dall. 68. I am now of opinion that in this case it was Sufficient for the plff to show a right of entry in himself which was prima facie sufficient to maintain his Ejectment, and that it was not necessary for him in this action to go further & show that the title was out of the Proprietor.

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Lessee of Hurst vs. Durnell—April 1805—

     In giving an opinion on the 4th & last question it was stated "that tho Wm Penn had been a trustee, yet that from the moment a trustee holds adversely to the Cest-que trust, the act of Limitations begins to run &c." I do not think that this is law,³ and as the Court had before stated that Penn did not stand on the character of a trustee, this opinion upon an abstract principle of law was unecessarily given & had better therefore be omitted.

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Lessee of James vs. Stookey—Jany 1806

     In my book I have a note that after the Court had overruled the evidence offered of the verdict & Judgt in the Sup. Co[ur]t between Lukins' & Lytte vs. Croyle, the Judge expressed a doubt as to the correctness of the decision, in consequence of a dictum in Bull. 233 that where hear say evid. may be given, a verdict between other parties may.

     The case from 2 Stra. 1151 cited by Bull. is the other way, and as the question has not been finally settled on argument that I can find, it will be well to omit from the report what was afterwards said by the Court, implying a doubt of the correctness of what was decided.

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Myers Moses vs. Delaware Insurance Co. April 1806

     In the charge it is stated that whether the Concealment of certain facts be material to the risk, is always a question for the Jury.

     This expression "is always" &c. is too general— State it, "that the Court leaves it to the Jury under all the Circumstances of the case, whether the facts not disclosed were material to the risk or not."

Hurlin vs. Phenix Ins. Co. April 1806.

     In my note book, in that part of the charge which respects the right to abandon as to the vessel, it is stated that "the vessel never was detained for a moment with a view to condemnation." This is not the fact & it is stated otherwise in the preceding part of the charge. It should be expressed somewhat in the following terms "It is true that she was detained for some time whilst the attempt to get her & her Cargo condemned was making, but immediately afterwards the Captain was at liberty to go where he pleased with her." a few Sentences following the above a similar mistatement of the above fact appears in my book, which I have erased, & which you will please correct, if it be in your report.⁴ Whether the fact of her detention was as the plf. contended it was or not, was unimportant, because the answer to the argument, (admitting the fact,) "that the same letter which informed the plf. of the detention informed him also of her liberation," was sufficient.⁵

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Dederer vs. Delaware Ins. Co. Spring term 1807

     Upon the question whether the register of the vessel was prima facie evid. of Citizenship⁶ in plf., the Court gave no positive opinion, but I have it in my note book that the Court rather inclined to the opinion that it was. As Citizenship was proved alienate, it was unecessary for the Court to say any thing on this point; and as I am now inclined to hold a different opinion, I wish you to state that the plf. offering to prove the Citizenship by other evidence, the Court gave no positive opinion on the point, but directed the plff to produce the other evidence of that fact.

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Webster vs. Massy—April 1808

Opinion. "Upon general principles of law there is an important distinction between a discharge from the Contract itself under foreign laws⁷ and a mere discharge of the person. In the former case, the laws which discharge from the obligations of a contract will be regarded here equally with those which affect it in its formation. In Camfranque & Brunelle this Court decided that the defendant should not be held to bail upon the ground that the french arreté was incorporated into & governed the Contract. But as to the mere forms of proceeding, the laws of the Country to whose tribunals the appeal is made must govern. The discharge of the person only under a foreign insolvent law leaves the contract in full force, & whether bail should in a such a case be required; must depend on the laws of the Country where the suit is brought.⁸

The first objection made by the plfs. Counsel to the making⁹ of this rule absolute appears to the Court to have great weight in it, and we think upon the whole that the deft ought not to be discharged on common bail." 

It will be best I think to state the opinion somewhat in the above way, omitting what was said as to the insolvent law of Pennsylva. not being a rule of decision, because passed after the year 1789, which was unecessarily stated & is clearly incorrect.

Latassee vs. Pecholier—same term.

The court in this case having referred to the preceding case of Webster & Massy, a similar correction must be made in this as in that, particularly as the opinion is clearly correct without a reference to the point decided in that. It will be sufficient to say upon the subject of duress "that the arrest in Delaware being legal by the laws of that State, a Court of this state could not consider it as being unlawful, altho it should have been otherwise had the deft been arrested in this state. The plea of duress therefore cannot be supported."¹⁰

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Fisher vs. Consequa—Octr 1809

In the opinion given it was stated "that an inhabitant of Pennsylva" is no less injured by the want of a remedy to recover what is due to him by a foreigner upon a sale of property where no price was stipulated than the would be if a fixed price had been agreed, and yet in the former case neither debt nor indebitatus assumpsit would lie." In a succeeding sentence, next but one to the preceding it is said "The uncertainty of the sum due tho it may be material to the form of the action does not in the common understanding of mankind render it less a debt."

In a subsequent case of Coll vs. The U.S. I had occasion to make a critical examination into the subject of the action of debt for an uncertain sum, in which the whole doctrine is explained, and as the words in this case which I have scored, may in the unqualified manner that they are used, conflict which what is said in the case of Coll., and as they are in no respect material to the decision or to the course of reasoning, it will be best for you to omit them altogether.