The rule is not, as is sometimes laid down, that the jury is to be satisfied beyond doubt. The jury will not stop because it is possible that some other hypothesis than the prisoner's guilt may be true, or is consistent with the evidence. The only rule is this: The jury must be reasonably satisfied. In civil cases they must act from the mere preponderance of evidence. In criminal and capital cases they must act on strong probabilities. The jury must act in this as they would act in any matter of their own concerns. The mere possibility that this fire might have been occasioned by spontaneous combustion, or might have been set by accident, is no answer to strong evidence, making it probable that a particular person did it.

There is no doubt this was on the high seas, and the act was done to an American vessel owned by our own citizens. It is enough that the prisoner wanted employment, and went on board the ship as one of her crew, so that he belongs to her. The supreme court has just held the owners of the Lexington liable for the neglect of some of the men, in a large amount. To burn "wilfully" is designedly, intentionally; "corruptly is from a bad motive. It is not necessarily for gain or hire. For this trial any burning of the ship is sufficient to bring this case within the act. The jury will consider whether it is not likely that this fire was set by some of the crew. They will consider the testimony of the two witnesses, the fellowshipmates of the prisoner, whose apparent fairness approves itself. They will consider who would be likely, from threats, preparation, and previous character, to have been guilty of this offence. Who had come from the house of refuge? The captain and consul were men of sense, and the jury would consider who was charged and sent home for trial, and if it was not likely that he was the guilty one. If the jury were satisfied, from the strong probabilities of the case, that all pointed to but one person, they should make an example of him. It might be painful to discharge their duty. But if the jury found the prisoner guilty, it was doubtful whether the law could reach this horrid case. This case was infinitely worse than any crime on land. There were no alarm bells, no engines, no neighbors to help. The jury, whilst they thought of the prisoner, must think of the thirty souls on board ship on that awful night. His Honor dwelt on the case of the Caroline, the ill

fated Lexington, and others. There could be little doubt that the prisoner would never suffer the extreme penalty of the law, for the executive would undoubtedly pardon.

The jury, in a few moments, on the second ballot, agreed upon a verdict of Not Guilty.

Circuit Court of the United States, Vermont District, May Term, 1848.

THE PRESIDENT, DIRECTORS, AND COMPANY OF THE BANK OF THE UNITED STATES v. LYMAN ET AL.

Where an act of incorporation of a banking company provided that notice of organization should be given on or before a certain date, and the bank was found to be in operation afterwards under the act, it is to be presumed that it was organized as early as the time prescribed.

The bank of the United States (chartered by congress) had no power to carry on banking operations after March 3, 1836, though it continued in existence two years longer for settlement of suits, &c. But on February 18, 1836, the state of Pennsyl vania incorporated a banking company of the same name, in anticipation of the dissolution the new company having, with one exception, the same stockholders and capital, the same name and style, and the same capacity, so far as a state institution could have the capacity of a national one. On March 10, 1836, the defendants proposed "to purchase of the Bank of the United States the property of the office at Burlington, as it was upon the 2d day of March, 1836." This contract was perfected April 1, 1836. Held, that it was a contract with the new company. The acts and admissions of one of several joint contractors or promisors, are admissi ble as evidence against all, more especially if the party making the admissions, was acting as the agent of the others, and the admissions relate to acts within the scope of his authority.

If the plaintiffs' bill of particulars confines their claim to two notes, they are not at liberty to proceed upon the original consideration or cause of action.

If a note is payable to S. J., cashier, or order, &c., parol evidence is inadmissible, to prove that the bank, of which S. J., is cashier, was the real party in interest, and such a note is not evidence, in an action of money had and received, or of an account stated, brought in the name of the bank.

If the banking company, though not the payees, were the real owners of the note, and there had been an actual accounting with them, or their agents, such proceed ings might constitute sufficient evidence to support the declaration described above: but an accounting with third persons to whom the beneficial interest of the bank had been assigned in trust for specified purposes, would not.

Facts stated, from which notice to indorsers may be presumed.

Questions of evidence examined in regard to certain notes said to be included in the

contract.

In this case, a verdict was taken for the plaintiffs at a former term, subject to the opinion of the court on certain questions reserved at the trial. It appeared that the Bank of the United States, created by congress in 1816, had established a branch or office at Burlington, in Vermont, which was several

years in operation, and continued to do business until September, 1835. On the 10th of March, 1836, the defendants made a proposition in writing, "to purchase of the Bank of the United States the property of the office at Burlington, as it was upon the 2d day of March, 1836," for the sum of $141,777.87, on an estimate made separately of the real estate, the good notes and demands, and the demands forming what was called the suspended debt. The proposition was accepted on the 15th of the same month; and on the 1st of April the contract was carried into execution, by the defendants executing four promissory notes for the sum of $35,500 each, payable in one, two, three, and four years, and by their taking a conveyance and delivery of all the property, except certain bills or notes which had been paid into the office before the sale was consummated. In consequence of some of the bills or notes having been so paid, and to make up an even amount, the sum of $10,020 was paid in cash to the defendants, so as to make the exact sum of $142,000, the amount of the four notes. The other facts in the case, as well as the questions reserved, will sufficiently appear from the following opinion, which was deliv ered after presenting and reading a brief statement or synopsis transmitted by Judge Nelson, of his opinion, he not being able to be present.

Samuel S. Phelps, for plaintiffs.

Rufus Choate and Asahel Peck, for defendants.

PRENTISS, J. The declaration in this case contains two counts, one for money had and received, and the other on an account stated. In support of the counts two promissory notes were given in evidence, with several accounts current, letters of correspondence, and other documents and testimony. Out of the evidence so given, various questions have arisen, some involving the admissibility, and others the effect or sufficiency of the evidence. The questions possess different degrees of importance, both intrinsically and in their bearing upon the case; and I shall notice them in such order and manner, as will enable me to dispose of them with as much brevity and as little repetition as practicable, entering no further into the facts than may be necessary to present, fully and intelligibly, the grounds of decision upon each particular point.

1. The plaintiffs were incorporated as a banking company, by the name of the Bank of the United States, by an act of the state of Pennsylvania, passed Feb. 18th, 1836. The contract which is the origin or foundation of the principal claim in question, was made sometime after the 10th of March, and carried into execution the 1st of April, of the same year. The precise day of the organization of the plaintiffs as a banking company not being shown, it is objected that it does not appear that they were organized, and competent to act as a corporate body, at the time the contract was made. To this, it seems to me, an answer was given by the counsel for the plaintiffs, which is quite sufficient. The act of incorporation having provided, that notice of the organization should be given on or before the 3d of March then next ensuing, and the bank being found in operation afterwards under the act, it is to be presumed that it was organized as early as the time prescribed, which was of course before the making of the contract.

2. It appears that the Bank of the United States, incorporated many years before by an act of congress, although it ceased to have any power to carry on banking operations after the 3d of March, 1836, continued in existence two years thereafter, for the purpose of suits for the final settlement of its affairs, and for the sale and disposition of its estate and effects. As that company established the branch at Burlington, and was in existence at the time the contract for the purchase of the property of the branch was entered into, it is insisted that it must be taken, in the absence of direct proof showing it to be otherwise, of which it is said there is none, that the contract was made with that company; and consequently, that the plaintiffs, as to one and much the most considerable of the claims in question, are mere strangers for anything that appears, without right or interest.

But it is to be observed, that the company established by the act of Pennsylvania, was established in anticipation of the dissolution, so far as banking powers were concerned, of the company established by the act of congress—the new company, having, with one exception, the same stockholders and capital, the same name and style, and the same capacity, so far as a state institution could have the capacity of a national institution. It was the substitution of a new charter under the

The

state government in place of the old charter under the general government, so that the banking operations, which would cease under the one, might be continued, without intermission or interruption, under the new powers given by the other. Accordingly, the new company, as we have seen, was to come, and did come into existence, as an organized corporate body, before or simultaneously with the termination of the banking powers and operations of the old company; and all the estate and effects of the old company were transferred to the new. particular time of the transfer, it is true, does not appear. But it is obvious that it would naturally follow the organization immediately in order to fulfil the purpose in view; and one of the witnesses states expressly that it included the estate and effects sold the defendants. This, therefore, connected with the bringing of the action and possession of the written evidences of the debt by the plaintiffs, is sufficient and very decisive evidence that the contract was in fact made with the new company.

3. To establish several material facts in the case, various letters, acts and admissions of John Peck, one of the defendants, were given in evidence. This evidence, it is said, was inadmissible, at least so far as it concerns any of the defendants but Peck himself. The objection to it rests upon the ground, that though the defendants were joint purchasers of the property, and gave their joint notes for the price, they were not partners, at least in such a sense as to make the acts and admissions of one evidence against the others. Admitting that the defendants are to be regarded, not as partners properly and strictly speaking, but only as joint contractors or promisors, still the evidence to some purposes was undoubt edly admissible. It is a familiar rule of law that the acknowledgment of one of several joint debtors, either by word or act, is evidence to take the debt out of the statute of limitations as to all. Thus payment by one, says Lord Mansfield, in Whitcomb v. Whiting, (3 Doug. 652,) is payment for all, the one acting, virtually, as agent for the rest: and, in the same manner, he adds, an admission by one is an admission by all. This principle, however, does not extend to the creation of a new substantive obligation, or a new additional liability; nor to anything which is necessary to be done by the party claiming to perfect or give effect to a conditional or im