MiU-C University of Michigan, William L. Clements Library

To Joseph Story, 8 June 1825

cde-admin — Mon, 11 Mar 2024 13:25:22 +0000

To Joseph Story, 8 June 1825

Recipient

Story, Joseph

cde-admin Mon, 03/11/2024 - 09:25

Document Date

Wed, 06/08/1825 - 12:00

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I now sit down to report to you the few decisions made during my last circuit. The Court at Phila. continued only two or three weeks in consequence of the sickness of Mr Binny who was concerned in almost all the arguable causes. The only Cases decided which may be considered as containing important principles are the two following.

1. Lessee of Lanning vs. London. The declaration was upon a demise of a tract of land unnecessarily described by boundaries, and at the trial the plf. discovered that the description applied to a tract of land to which he had no title which would have subjected him to a nonsuit if the deft had not consented to withdraw a Juror & continue the cause. The plf. afterwards moved to amend the declaration by describing the tract intended to be sued for, or by describing it generally in the usual form. This was opposed, & all the english & american cases applicable to the doctrine of Jeofails & amendments were cited on the one side & the other. It was decided that the english statutes extending only to amendments in matters of form, the courts professed to authorise them only in those cases. But then the question¹ which constantly occurred was, what was form & what substance? In deciding that question the cases are so contradictory as to make it difficult to deduce from them any intelligible principle. These difficulties it was obviously the design of the 32d Sect. of the Judiciary Act to remove, by permitting amendments in matters of substance. The first clause of this Section respects Jeofails in matters of form, & the second, amendments in all cases whatever whether in Substance or form, the Court being at the same time authorised to impose Just & reasonable terms upon the party applying so as to prevent injury to the other party. The amendment was accordingly allowed upon the following terms viz. payt of Costs—liberty to the deft to plead de novo & to avail himself at the trial of the act of limitations if he could do so were he now served with the declaration.

2. Benners admtrs. vs. Foulkrod Exectr of Holt. A suit at law had formerly been brought agt the present deft by the assignees of Benner a bankrupt under the bankrupt law of the U.S. to recover a pecuniary legacy devised by Holt to J.S. which was purchased by & assigned to Benner before his bankruptcy but which legacy was dependent upon a contingency which did not happen 'till some time after the bankruptcy & assignment. In that suit a verdict & Judgt were rendered in favor of the Assignees, and the sum recovered was duly satisfied by the executor. The Case now to be reported came on upon a bill in equity filed by the admtr. of Benner agt the same executor to recover the same legacy over again, upon the ground that the legacy, depending upon a contingency at the time of the bankruptcy & assignment did not pass under the Assignment.

The Court admitted that the legacy did not pass by the Assignment upon a Correct exposition of the bankrupt law of the U.S. and consequently that the assignees ought not to have recovered. But we decided that, independent of Benners Knowledge of that suit & of his acquiescence in the Judgt which were sufficient to shut the door of the Court of equity against him, he ought not to recover upon general principles of law—that a person who has once been compelled by the Judgt of a competent tribunal, (tho an erroneous one) to pay a sum of mony to one man, cannot be compelled in another action by the rightful owner to pay it over again, his conduct in defending the first suit having been in all respects fair & honest—that altho the right of the real owner is not barred by the first Judgt he not having been party or privy to it, yet his remedy is against the same deft—and that the mony recovered in the first action is mony recieved by the plf. in it to the use of the true owner, which the latter may recover of the former in an action for mony had & recieved. Cases referred to Le chevalier Assig[n]ee of Dormer vs. Lynch Doug. 170—Philips vs. Hunter 2 H. Blac. 402. Embree & Collins vs. Hanna 5 Johns. rep. 101.

The following cases are no otherwise important than as they contain some principles of practice which, when found to be correctly laid down, it is desirable should be uniform in the Circuit Courts. But this uniformity can only be brought about by publick or epistolary reports of the decisions.

3d—Bradford vs. Geiss. Decided that it is a good exception to an answer in chancery that after denying that the deft had any Knowledge of a fact charged in the bill, it omits to² deny that he had any information or belief of the fact. 1 New. Chy 179.

4th. Rogers vs. Abbot. Upon a motion for an injunction to restrain the deft from making and vending the plfs. patented improvement, the Court required besides an affidavit of the truth of the facts stated in the bill, a special affidavit that "the plf. was to the best of his Knowledge & belief the true & original inventor & discoverer of the improvement for which he had obtained a patent, & that the same had not to his Knowledge or belief been in use or been described in any publick work anterior to his said discovery" following the Spirit of the 6th Sect. of the patent act. The order for the injunction further required the plf. to bring his action for damages returnable to the first Court & to speed it to a trial.

5. Young vs. Potts. The deft in an original bill filed his answer not long previous to the Session of the Court, when he filed a Cross bill founded upon facts recently come to his knowledge a discovery of which from the plf. in the original bill was essential to a Just decision of the cause. The original cause having been set for hearing, the Court refused to let it be brought on before the Cross bill was answered.

I send you no report of the Case of Corfield vs. Coryell as you perused the opinion at large during the last Session of the Supreme Court. The points decided were considered by some of the bar so important that a Copy was taken with a view to publish it in Walsh's paper.

I shall be impatient to recieve a report of the Cases decided on your Circuit. Do not forget our Compact with Justice Thompson. Believe me to be very sincerely my dear Sir your friend & affect. Servt

To Joseph Story, 14 Dec. 1825

cde-admin — Mon, 11 Mar 2024 13:25:22 +0000

To Joseph Story, 14 Dec. 1825

Recipient

Story, Joseph

cde-admin Mon, 03/11/2024 - 09:25

Document Date

Wed, 12/14/1825 - 12:00

Document Body

I returned home the day before yesterday after an absence of about four months. It was my intention not to address you until I could get time to forward you my report of the decisions made on my late Circuit, many of which are highly interesting. But as the business of General Washingtons estate, which will in a few days be brought on for a final hearing before the Court now sitting in Alexa., will engage all my attention for some time, and as no time ought to be lost which may enable you to repair the loss occasioned by the fire in Boston, I have thought it best to attend at once to that business although I shall thereby tax you with two letters instead of one.

The letters now enclosed together with those forwarded from Phila. contain all your reports to me since June 1822, and it will afford me great pleasure to know that they will contribute to secure to the publick the benefit which may certainly be anticipated from Masons next volume.

Whilst I was in Phila. I recd a letter from our friend Mrs Ledger strongly urging me to vote for young Caldwell as our Clerk. I assured her most truly of the pleasure it would afford me to oblige her if I were not restrained from doing so by a Sense of publick duty & also by a promise to a most deserving man & one who would be a comfort to the Judges individually & a credit to the Court. I stated very candidly that I thought the publick too deeply interested in the preservation of the archives & records of the Supreme Judicial tribunal of the Nation & their orderly arrangement to suffer as to entrus<t> them to the care of so young a man as the one she patronized. Knowing your friendship to this lady I should almost tremble for my friend Griffith if I did not also know the exalted principles by which your conduct is always governed. If Justice Thompson should vote with us Mr G. will undoubtedly be appointed to the Office. Do not omit to present me in the most friendly (I was very near saying Affectionate) terms to Mrs Ledger & believe me to be most sincerely yr Affect. friend

To Lawrence Lewis, 26 Jan. 1810

cde-admin — Mon, 11 Mar 2024 13:25:19 +0000

To Lawrence Lewis, 26 Jan. 1810

Recipient

Lewis, Lawrence

cde-admin Mon, 03/11/2024 - 09:25

Document Date

Fri, 01/26/1810 - 12:00

Document Body

The County Court of Fairfax has appointed Mr Moore to settle our executors accounts, and he will attend us h<mutilated> any time we wish. I wish it were possible that we <c>ould have a meeting previous to this business being taken up by the Commr in order to agree upon a mode of stating & in fact to state the general account. I am prevented by company from going to your house which I intended to do as soon as it should be in my power. Suppose you come down someday next week and dine with us, and let us devote the morning to this business. I send you a Copy of my account which will show you the manner in which I think it ought to be stated; but I know very little about accounts, and if you prefer another mode I will adopt yours. Thus far is clear that we must incorporate into one Statement the debits & credits of the general account, altho each of us must necessarily have a private or seperate account to which the general account will refer.

I have very few reciepts for the Sums paid to the different legatees; but I presume that you have those which I want, or that the checks can be got from the Bank which will be considered as evidence of payments by the Commissioner. If your accounts & vouchers are prepared, let us endeavour to have them settled by the Commr next week, as I shall not be at home for some weeks afterwards.

As to our seperate accounts, Mr Moore advises that we should state on a seperate paper all the items for which we have not vouchers, (such as payments to the free Negroes who can give no reciepts) and swear to it before a Magistrate, the aggregate of which account can be debited & credited in the account, which we may seperately exhibit.

After we have had a meeting we can see what vouchers are wanting and can procure them. If you can come down for the purpose abovementioned, be so good as to bring your account with a particular statement of the vouc<hers i>n your possession as to the payments made to legatees, whch w<il>l enable us to see what are to be looked for.

When you have leisure be so good as to draw off our private account, crediting me with Gardners debt & debiting such articles as I owe you for, amongst which I will thank you to enter the sum paid by your nephew for the taxes on Mr Turners Kentucky land.

Mr Blackburn is here with his double barrel gun prepared to Join you in the destruction of all our partridges. I am Dear Sir very sincerely yrs

To Unknown, n.d.

cde-admin — Mon, 11 Mar 2024 13:25:19 +0000

To Unknown, n.d.

Recipient

Unknown

cde-admin Mon, 03/11/2024 - 09:25

Document Body

The difference between the first sales & the resales upwards of $29000. The only prin. on which the revaluation of Russels property could be made was that Colo. W. was no party to the first. If he were & the proceed. obligat. on him the resales were not because to that he did not consent. If he were not, then the value of Russels prop. Shd be consid. as of the date of the orginial val. & of course int. is proper on that sum & not only that at which it was improperly valued

To Unknown, 9 June 1829

cde-admin — Mon, 11 Mar 2024 13:25:19 +0000

To Unknown, 9 June 1829

Recipient

Unknown

cde-admin Mon, 03/11/2024 - 09:25

Document Date

Tue, 06/09/1829 - 12:00

Document Body

Understanding this moment that your father in law is now with you, I must beg the favor of you to present my Compliments to him, & request that he will do me the favor to accompany you on thursday. respectfully &c.

To Joseph Story, 22 Dec. 1823

cde-admin — Mon, 11 Mar 2024 13:25:19 +0000

To Joseph Story, 22 Dec. 1823

Recipient

Story, Joseph

cde-admin Mon, 03/11/2024 - 09:25

Document Date

Mon, 12/22/1823 - 12:00

Document Body

I returned home from my Circuit on the last day of Novr, since which, I have, as far as the various calls to which a farmer is exposed, have afforded me time for Study, been employed in preparing an opinion in the equity case of Conn. vs. Penn. the argument of which consumed nearly a fortnight of our last Term. I hope to make a final decree in this case in April, and never again to be plagued with it, unless an appeal should be taken.

The Session of the Phila. Crt lasted about five and a half weeks, but, what with two attacks of Sickness which confined me to my room each time, and the long arguments in the above case, and that of the pirates, I never did so little towards clearing the docket in the same length of time. I will endeavour to make you as intelligible a report as I can (in consequence of my note book having been left in Phila.) of what was done.

1. U.S. vs. Delaware Insurance Co.— This was an action for mony had & recd &c. One Watkins, in May 1[8]22,¹ borrowed of the defts, on respondentia, $10,000 upon the Specie & goods laden, or to be laden, on board the A. on a voyage from Phila. to Canton, & at & from Canton to Phila., at a prem[ium] of 14 Pr Ct— a memo. was endorsed on the respond. Bond, signed by W. reaching an agreement, that the bills of Lading for the Specie, goods &c. mentioned in the bond, shall be endorsed to the defts as a collateral security for the loan, and also, that the property to be shipped homeward, being the proceeds of the sum loaned, shall be for the account and risk of sd W. but to be consigned, as Collateral Security afsd, by invoices & bills of lading to the defts— It is then declared "that such endorsement or Consignment shall not exonerate the person of the borrower, nor compel the defts to accept the specie and goods which may arrive in discharge of the debt, but that the defts may recieve & hold the same for 60 days after their arrival in Phila., & if the bond shall not be discharged within sd 60 days, the defts may dispose of the goods at public Auction, and charge sd W. with any balance that might remain due.["] The bill of Lading for the $10000 borrowed & shipt at Phila. was accordingly endorsed as follows "I do assign the within bill of L., & sum of mony mentioned in it, & also the goods to be invested therewith at Canton, & shipped in return for the same, to the D. I. Co., as a Collateral Security, according to the Memo. on the respondentia bond." The bill of Lading given at Canton on the 23d Decr 1822, and the goods mentioned in it, were stated to be shipped for acct & risk of W. and consigned to the defts, & the invoice was also enclosed to them. The vessel returned to Phila. 24 Apr. 1823, & on the 26th June, the defts stated an acct with W. making him debtor a small Sum after crediting him with the goods. 9th of June 1823 W. executed an assignment of all his property to a trustee, for the payment of certain duty bonds due to the U.S. (for which this Action is brought) & the balance to pay his other Creditors[.] The Schedule accompanying this deed mentions the Canton goods in the hands of the defts by virtue of a Consignment to them. Charge— The question is, whether the preference of the U.S. will overreach the claim of the defts to these goods? The Cases of Thelusson vs. Smith 2 Wheat. & other Cases in the Supreme Crt have decided, that this preference is to be satisfied out of the Effects of the insolvent, & therefore, if, before the right of preference accrues, the debtor has made a bona fide conveyance of certain property or has mortgaged it, or it has been seized under Execution, or he has given it in pledge to secure a debt, the property is divested out of the debtor, & cant be made liable for debts to the U.S.— The Canton goods in this Case were vested in the defts, because, the endorsement of a bill of lading, or the filling it up to a third person, transfers the legal interest in it, provided it be for value 2 Holt. 74—² this is the case, if it be filled to a creditor as a security for a debt. Hibbert vs. Carter is a very strong Case,³ & precisely suits the present. The objection to the application of this doctrine to the present Case, that actual possession of the Cargo, not having been taken by the defts, prevented the vesting of the property in the defts, has no weight— The possession of the master was the possession of the defts. The right of possession follows the right of property. another objection that the goods were at the risk & for the Acct of W. is fully answered by Haillee vs. Smith 1 Bos. & Pul. 563— The verdict must be for the defts— verdict accordingly.

—

Richardson vs. McIntyre—Rule to show Cause why an exoneration shd not be entered on the bail price, the deft having been discharged under the insolvent law of this state. The debt for which the suit is brought is for the sales of goods sent by the plfs., Merchants of Massachussetts, to the deft, a mercht of Phila. to sell on Commission, and for the amt of which, the deft gave his note in Phila.—opinion— The debt was contracted in this State. according to the Uniform practice of the Court, we discharge on Common bail in Cases of debts contracted here, where the deft has been discharged under the insolvent law of this State, or direct exoneration to be entered, where special bail has been given, on the ground, that the person of the deft being discharged by a law of the State, the Courts of the U.S., sitting here, are bound to give them the benefit of the law.

—

Ward vs. Seabry—motion,⁴ by the deft in an ejectment; & Injunction bill to stay waste, that Service of the subpena in a bill of discovery filed by him in relation to the same land, on the plfs. attorney & solicitor in the above cases should be considered good service, the plf. residing in New York. motion denied, the Court having always refused it, except in cases of Injunctions to stay proceedings at law, and in Cross causes in equity. This is also the practice of the English Chancery. Newl. Ch. 65. 2 Mad. 327—4 Bro. C.C. 478.

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U.S. vs. Fairclough—debt for $500, the penalty given by the 57 S. of the duty law, agt the master; for disagreement between his manifest & Cargo. The disagreement consisted in surplus Cargo discovered on Board, not entered in the manifest— The question was, whether it was incumbent on deft to satisfy the Collector or Court, not only that no part of the goods had been unshipped &c. since they were taken on board, except as had been specified in the report &c. & pursuant to permits, but also, that the disagreement was by mistake or accident. opinion— The Case of surplus Cargo, is a Case of disagreement, and the deft must satisfy the Court of both facts to avoid the penalty, or, being construed and, in conformity with the 24th S. which, tho confined to the masters of American Vessels, is in pari materia with the 57th— want of room prevents my stating other reasons which weighed with us.

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U.S. vs. Whites & Johnson— Debt on a bond by defts to the U.S. in the penalty of $5000, with Condition that W. White (who, the Condition states had been appointed by the Secretary of the Navy agent for paying invalid pensioners belonging to Pennsylv:) shall faithfully execute agency. This suit is agt the sureties, the Principal having become insolvent, & been discharged. At the return of the writ, the D. Attorney entered Judgt for the penalty, and issued a fi[eri] fa[cias] upon which he endorsed that $3000 were to be levied, which sum, appeared by the accts settled at the Treasury department, to be due by W. White, as agent for the navy pension & privateer pension funds. The questions decided by the Court were raised upon a rule to show cause why the above proceedings should not be set aside. opinion— 1. The issuing an execution upon a Judgt for the penalty of a bond, to which there is a defeasance containing a Collateral Condition, without first issuing a writ of enquiry, or impanelling a Jury, to assess the damages due, is said to be the practice of the Courts of this State, but is obviously unjust, and is contrary to the principle of the 26 S. of the Judiciary law, & is therefore not to be sanctioned on the Courts of the U.S. 2. The defts were bound only for the faithful conduct of their principal in the administration of the invalid pension fund, on which nothing is due— The other two funds are totally distinct in their objects, organization, & execution, & they are not bound for the unfaithful conduct of W. White in relation to them, by the terms of the Condition of the bond, nor can Sureties be ever bound beyond the plain Scope of their agreement—Judgt for defts.

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U.S. vs. Haskell & Francois—Indictment for making a revolt— The Judge in his charge to the Jury defined this offence in the way stated in the case of the U.S. vs. Smith 1 Mas. 147, observing, at the same time, that our object was to carry the Case before the Sup. Crt, in order to obtain a definition of it there, or to obtain an explanatory law, in Case the prisoners should be convicted. It was stated to the Jury that, if they were satisfied that Smith, who had killed the Mate, severely wounded the Captain, & forced him below, assumed the entire command of the vessel, and was obeyed by the Prisoners as such Commander, in opposition to the orders of the Captain not to regard Smith, but to obey his (the Captains) orders, & that they refused to do so, the offence was made out, altho the prisoners never laid their hands on the master. That as to the excuse urged in favor of the prisoners by their Counsel, that they were influenced by fear in obeying the Usurper, & disobeying the Captain, it cant avail them, unless the Jury are satisfied that "it was a fear of death—such a fear as a man of ordinary fortitude & courage might prudently yield to." and that these men, under all the Circumstances of the Case, had a well grounded cause for such fear in Case they had refused to obey Smith.

After the Jury had been out, they returned into Court, and the foreman pronounced a Verdict of guilty. Upon a poll being demanded, one of the Jurymen gave the fullest proof, by his Conduct, of insanity, which was corroborated by many of his companions. The Court enquired of the Prisoners Counsel if they consented to discharge the Jury— They refused. We then ordered them to be discharged, directing a record to be made of the reasons—viz. that the Jury could not agree, and that the Court were satisfied upon view, & upon other evidence, of the insanity of one of the Jurors.

When another Jury was called, the prisoners Counsel tendered a long special plea stating, in Substance, the discharge of the former Jury, on the ground that they could not agree, (omitting the other reason) and insisting that this was equivalent to an acquittal. The D. Attorney demurred generally, and the Court, after a full examination of all the Cases, overruled the plea, on the ground, that its tendency was to put in issue before a Jury the question whether the Court had exercised its discretion in dismissing the former Jury, in a sound & legal manner. That the plea having stated, as one of the reasons, that which would not warrant the discharge, & omitted to state the one which would, the D. Attorney must either have replied, and so involve the case in the absurdity above noticed, or adopt the mode he had selected, of demurring. The Subject was examined much at large, and is so interesting, that I doubt not you will like to see the opinion in extenso.

—

Glenn vs. Humphreys—decided 1. that the insolvent law of Maryland, so far as it discharges the person, is constitutional, and so far as it discharges the debt, it is invalid. 2d That the deft having been duly discharged under it, and the debt on which this action is founded, having been contracted there, the Court wd allow the deft to appear on Common bail, if the debt were due to plf. But 3dly as it is due to the U.S. and the suit is brought in the name of the plf., the District Attorney, to whom the note was given for the use of the U.S. it is not affected by State insolvent Laws—U.S. vs. Wilson 8 Wheat. [253.]

I have barely left myself room to assure you of my unaltered friendship & Affection— Adieu

To Joseph Story, 21 Dec. 1825

cde-admin — Mon, 11 Mar 2024 13:25:19 +0000

To Joseph Story, 21 Dec. 1825

Recipient

Story, Joseph

cde-admin Mon, 03/11/2024 - 09:25

Document Date

Wed, 12/21/1825 - 12:00

Document Body

At length I have got sufficiently released from more urgent business to enable me to perform my promise to forward you a report of the cases which came before me on my late Circuit. I think I sent you from Phila. printed statements of¹ Pennock & Sellers vs. Dialogue & Courcier vs. Ritter— These will therefore be omitted from this letter.

<B>urton & wife vs. Smith admr W. E. Howel} Bill in equity— Upon the marriage of the plfs. the executors of Saml Howell, under<mutilated>en their testators will, assigned Certain bonds <mutilated> <mor>tgages to the intestate of the defts, in trust for the seperate use of the intended wife during her life &, after her death, over to other uses unnecessary to be stated. The following is the material clause in this deed of settlement "in trust that the said W. E. Howel his heirs &c. shall keep the said sums so secured out at the interest upon the securities afsd, or in case the same should be paid off, then upon other good land Security, and recieve the interest thereof due, and hereafter to grow due, & pay over the said interest when, & as the same shall become due, into the hands of the said Hannah" (the female plff) The trusts were accepted, & the deed was duly executed by the trustee. The securities were afterwards paid off, but the mony was not invested in other securities, but was used by the trustee, who died not leaving personal assets sufficient to pay his debts. The object of the bill is to charge the real estate of the intestate with this debt, & to compel the defts to invest the mony in good land security according to the deed of settlement. There were 2 questions—1st. whether this was a specialty debt, there being no express covenant by the trustee? 2d. Whether it was necessary to make the other Creditors of the intestate parties?

1. Decided that any words will be effectual to create a Covt which show the concurrence of the parties to the performance of a future act; in such a Case, Covt will lie, and equity will of course treat the obligation of the party as a specialty, if the deed be executed by him, tho there be no express substantive Covt on his part. 1 ch. Cas. 294 Hill vs. Car. 2 Bac. ab. tit. Covt A.—Lev. 274 Ray. 183—Sand. 319. 17 vez. 485 & 19th do 638 Ld Montfort vs. Cadogan. Cas. temp. Talb. 108 Gifford vs. Manley—6 Vin. 378 pl. 7. 1 P.W. 130—1 Atk. 88 Primrose vs. Bromly—1 Binn. 254 Frazer vs. Tunis. The Cases of Vernon vs. Vawdrey 2 Atk. 119 Cox. vs. Bacon 2 vez. 19 & 2 Mad. 132 apply to Cases where the trustee is no otherwise bound than by a parol acceptance of the trust, not to those where he has executed the deed. The other Cases are strictly applicable to the present to show that this was a specialty debt.

2. The other Creditors need not be made parties. The Admtr. is a trustee for & represents them. 1 Vez. 127 Peacock vs. Monk—1 Vez. 106 Newland vs. Champion. 2 Johns. C.C. 437. 2 Mad. Ch. prac. 152.

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U.S. vs. Ortega} Indict. for infracting the law of nations by an Assault committed on the person of Mr Salmon the Spanish Chargé d'Affaires. The following points of law were decided. 1st. The appointment of a chargé d'affairs by a foreign minister, upon his retiring from office, is usual, & sufficient to constitute the former a minister entitled to the protection of the law of nations. But whether a person be the legitimate representative of his sovereign or not, is a question of state, & not of Judicial enquiry. The constitution gives to the President the power to recieve Ambassadors &c. and necessarily bestows upon him the exclusive power to Judge of the credentials of those persons, & of their public character, & if he recieve and accredit them as Ministers, the other branches of the govt are bound to consider them as such & entitled to the protection afforded to such character by our laws & by the law of nations.

2. If a foreign Minister make the first assault, the return of a blow is no infraction of the law of Nations. 3. It is immaterial in this Case for the prosecutor to prove that the public character of the Minister was known to the deft.

—

Sebring vs. Ward.} No compensation² being allowed in the Supreme Court of this State to the party for his travel & expenses, it cannot be taxed in the bill of Costs under the Act of Congress 1 March 1793 Sect. 4.

2d. Under the fair construction of the following Acts the successful party in a Civil Suit in the C.C. of the U.S. is entitled to have charged in the bill of Costs $1.25 for the daily attendance of his witnesses & 5 c. per mile for their travelling—Act of 28 feb. [17]99 Ing. dig. 389—3 Sect. Act. of 8 may [17]92 2d Bior. 300. 2 Sect. Act 1 June <mutilated> Bior. 568—6 & 9 Sect. Act of 28 feb. [17]99—3 Bior. 135.

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U.S. vs. Stevens} Ind<mutilated>ing the master & assaulting him with a dan<ge>rous w<eapon> <mutilated>h offence laid to have been committed on board a Ves<sel> belonging <to> Citizens of the U.S. on the high Seas in the outer road off the port of <St> Domingo. The proof was that the offences were committed on the inner road or port of St Domingo. Decided that unless the place is material to the essence or degree of the offence, a variance between that laid in the indictment, & that proved, is not material 1 Chit. Crim. law 241. That the place is immaterial as to both of the offences charged, it being of no consequence whether they be committed in port or on the high Seas, they are equally punishable by the former & late crime Act.

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Read vs. Bertrand³} Action of account render—plea that deft had fully accounted & issue thereon. The parties had entered into an agreement whereby deft bound himself to recieve from the plf. a large invoice of goods which he was to sell for him on a certain commission, and to return all such as he should not be able to sell at the invoice prices. The defendt sold a part of the goods and rendered to the plf. an Acct of sales & account current in which he debited himself with the whole of the goods at the invoice prices & credited himself with the Sales as far as he had made any, leaving a large balance. The residue of the goods were neither sold, nor returned, & this action was brought in the usual form. Decided that rendering the partial acct of Sales & account Current does not maintain the plea, which is that the deft had, fully accounted which could only be by rendering an account of the sales of all the goods, or of those & such as could not be sold and had been returned. 2d Upon the account Current which deft had rendered, the plf. could not bring insimul computassent, because that would be to make the deft the purchaser of the unsold goods against his will.

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U.S. vs. Snyder} Debt on the defts official bond as Collector of the internal taxes & duties. The demand was founded on a Statement from the treasury in which the deft is charged with all the uncollected bonds & duties due within his district. Before the deft was appointed to this office, his predecessor had under the general instructions issued by the Commissioner of the revenue to the different Collectors placed the collection of these bonds & duties in the hands of an attorney, there being no deputy of the district attorney within or convenient to his district. Decided that the deft is not liable for the amt of these bonds & duties. The Collectors are placed under the control & superintendance of the Commissioner of the revenue, and having by his directions placed the collection of those bonds & duties in the hands of an attorney for Suit, even the predecessor of the deft was liable only for the ordinary care & diligence of an agent, much less is the deft answerable beyond this, the business having been placed beyond his reach before he came into office.

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Lawrence vs. Schuylkill Navigation Co.} In this Case the following points were decided. 1. That a receipt in full is not conclusive, but is merely prima facie evidence of what it purports. 2d That if proof be given that it was unfairly obtained, or that the party who gave it acted under a mistake of facts, or of his legal rights, it is open to examination & correction of any error which may be proved as resulting from such mistake. 3. If the claim of the person who gave the rect was honestly contested, and a compromised agreed on, both parties are bound.

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Tiernan vs. Andrews} The deft a mercht of Bourdeaux gave to J.A. a power of attorney, appointing him his general agent in the U.S. with a letter of introduction to the plf. giving him the same information & requesting his services when they might be necessary. By orders of deft J.A. soon after his arrival in Baltimore sold to B.C. an imperial license belonging to deft and entered into a contract with B.C. respecting the same in his own name to which he affixed his own Signature & Seal, tho it was known by B.C. that the agreement was for the benefit of deft. In consequence of some disagreement between deft & B.C. growing out of this Contract, B.C. brought an action of Covt agt J.A. for whom the plf. became bait, and afterwards surety in a Supersedeas bond, which subjected him finally <mutilated>ty of paying the damages recovered by B.C. in his action. This suit was brought to recover back this mony as so much paid for the use of the deft and at his request. Decided that the debt recovered by B.C. agt J.A. being admitted to be the debt of the deft and the plf. having brought himself into the predicament of being obliged to pay it in consequence of his Suretiship entered into at the request of the defts agent, it was mony paid at the request of the deft as well as for his use. It was objected by defts Counsel on the authority of the case of Patterson vs. Gandasequi 15 East. 62 that as the principal in this Case was known, and the security ship was entered for the agent, the plf. had elected to have his recourse agt the latter & therefore had lost his recourse agt this principal— Decided that if this were a suit by B.C. agt the deft, the principle of that case might possibly apply, but that it was inapplicable to this case as there was no room for an election which could defeat the right of the plf. to resort to the principle for whom he was substantially the surety, tho nominally he was surety for the agent.

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The above are all the cases decided which will bear abridging, and even these are I fear so obscurely stated that you may find some difficulty in understanding them. I shall be impatient to hear from you and am very truly my dear Sir yr Affect. friend

To Henry Lee Jr., May 1810

cde-admin — Mon, 11 Mar 2024 13:25:17 +0000

To Henry Lee Jr., May 1810 cde-admin Mon, 03/11/2024 - 09:25

Document Body

Know all Men by these presents that whereas Henry Lee of Stratford in the County of Westmoreland by deed bearing date the twenty eighth of January seventeen hundred & ninety eight did grant bargain & sell unto me Bushrod Washington now of Mount Vernon in the County of Fairfax all that tract or parcel of land lying & being in the County of Westmoreland on Potomack river commonly called & known by the name of Cabin point then in the possession & occupation of Mrs Mary Smith during her life containing about eleven hundred acres or thereabout together with all & singular the rights members commodities hereditaments & appurtenances to the same belonging or appertaining to have and to hold the said tract of land with the appurtenances unto me my heirs and assigns for ever to my & their only use & behoof but nevertheless with a proviso or Condition thereto annexed that if he the said Henry Lee his heirs executors & administrators should well & truly pay or cause to be paid unto me my executors administrators or assigns on or before the twenty eighth day January eighteen hundred & three the Sum of eight thousand six hundred & sixty six dollars sixty six Cents & should punctually pay to me my executors admtrs or assigns the legal interest of the sd Sum at the rate of six per Cent. per annum as the same should become due & payable then the said deed of indenture to become void, otherwise to remain in full force & virtue, as in and by the said deed recorded in the General Court of Virginia on the 13th of June 1798 reference being thereunto had will more fully & at large appear, And whereas I the said Bushrod Washington for the consideration of ten thousand & thirty four dollars twenty eights Cents to me secured to be paid by Richard B. Lee on the first day of March in the year eighteen hundred & fourteen with legal interest in the mean time, by deed tripartite bearing date the ninth of January eighteen hundred and nine executed by the said Richd B. Lee & Elizabeth his wife of the first part, I the sd Bush. Washington of the second part and Henry S. Turner, Thomas Blackburn, & Bushrod Washington Junr of the third part as by the said deed recorded in the County Court of Fairfax on the 21st of August eighteen hundred & nine reference being thereunto had will more fully & at large appear did agree and bind myself to assign unto the said Richd B. Lee the af[oresai]d mortgage on Cabin point together with all my right title interest & estate in & to the same, And whereas the said Richd B. Lee hath ordered & directed the said deed of assignment to be executed to Henry Lee Junr of Stratford the other party to these presents, Now Know ye that I the said Bushrod Washington for and in consideration of the promises as well as for & in consideration of one Cent by the sd Henry Lee Junr of Stratford in Westmoreland County to me in hand paid at & before the ensealing & delivery of these presents the reciept whereof I hereby acknowledge have granted bargained sold assigned & set over & by these presents Do grant bargain sell assign & set over unto the said Henry Lee Junr his heirs Exectrs admtrs & assigns the said recited deed of mortgage of Cabin point as also all the said tract or parcel of land called Cabin point with the promises within mentioned to be granted to me and likewise all my estate right title interest claim property & demand of in or to the same which I have or may claim of in or to the same by virtue of the said recited deed of mortgage To have and to hold the said tract of land called Cabin point, subject nevertheless to the proviso or Condition in the said deed of mortgage contained, and also the said recited deed of mortgage and all my estate right title interest claim & demand of in and to the same hereby bargained sold & assigned unto the said Henry Lee Junr his heir executors administrators & assigns to his & their proper use & behoof in as large & ample & benefecial manner to all intents & purposes as I now have or might should or ought to have and enjoy the same by force and virtue of the said recited deed of Mortgage or otherwise under & subject to all equities of redemption existing in the said Henry Lee or others In Witness whereof I the said Bushrod Washington have hereunto set my hand & affixed my Seal this [<2m#>] day of May in the year eighteen hundred and ten.