Reports of Cases Argued and Determined in the Circuit Court of the United States for the Second Circuit

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The sloop Mary.

security; and this principle is sanctioned by Mr. Justice Story in the case of the Jerusalem, who lays it down as an established rule, that a second bottomry bond, although posterior in time, has priority of claim.

The present case, however, does not require the adoption of so broad a principle. The adversary claim here is not founded upon a bottomry bond, but upon a bill of sale in the nature of a mortgage, and which would not create any valid lien as against a subsequent bona fide purchaser or incumbrancer, without notice. William H. Young was permitted to remain in possession, and to act as the absolute owner of the sloop; the register, and all her papers, standing in his name, and without any endorsement, showing any incumbrance upon the vessel : Daniel Young is therefore chargeable with negligence, in permitting William to appear as absolute owner, and thereby putting it in his power to impose upon a foreign creditor, who should advance money upon the security of the vessel. Upon the principles of the common law, as well as of equity, the claim of Daniel Young must be postponed to that of the libellant.

The decree of the District Court must accordingly be reversed, and a decree entered, that the proceeds of the vessel be paid over to the libellant towards satisfaction of his claim.

S. P. STAPLES and I. J. HITCHCOCK for the libellants.
N. SMITH and J. Backus for the claimants.

§ 2 Gal. 350.

AMENDMENTS AND JEO.

FAILS.

9. A judgment was entered in

the District Court of the Nor-
thern District of New York,
sitting with Circuit Court pow-
ers, in January, 1824, the re-
cord filed and execution issu-
ed. In September of the same
year it was removed by error
into the Circuit Court, and in
January following, the District
Court allowed the record to
be amended by inserting in the
declaration the averments of
citizenship, and of the value
of the property in dispute,
which were essential to juris-
diction : Held, that the amend-
ments were irregular, and that
this Court would not receive
them after the original record
had been sent up. ib.

Vide BILLS OF EXCHANGE, 1.

APPEARANCE.

1. The Circuit Courts, on appeal

from the District Courts, have
power by the 32d section of
the judiciary act, to allow any
amendments of defects in form
occurring in the Court below,
which could have been amend-
ed there, or to disregard them
in giving judgment. Smith v.
Jackson,

486
2. But this power does not ex-

tend to defects in substance. ib.
3. Such defects may however be

amended in the District Court,
on terms. This power more
extensive than any given to

the English Courts. ib.
4. But the amendments must be
made before final judgment.
And this is agreeable to the

state practice in such cases. ib.
5. An omission of the averment

of citizenship is a defect in
substance, not cured by ver-
dict, and which cannot be

amended after judgment. ib.
6. So of the averment of the va.

lue of the property in dispute
when necessary to give juris-
diction.

ib.
7. Amendments at common law

were for trivial errors, and
where there was something to
amend by Anciently they
could be made only during the
term wben the error occurred
in the record ; afterwards they
were allowed at any time pen-
ding the suit; but never after
final judgment.

ib.
8. Confusion and contradiction

in the English cases arising
upon the various statutes of
amendments and jeofails. ib.

Vide Removal of Causes.

ARMY.

1. The duties and powers of a
military officer of the United
States are regulated by law,
and for the Court to deter-
mine. United States v. Wil.
lard,

539
2. Monies were advanced to a

militia paymaster, under the
acts of Congress of 20th of
January and 3d of March,1813,
and charged to him in account
under the words “pay of the
army:" Held, that these
words were evidence of the
appropriation out of which
the advances were made, and
not that such advances were

to be disbursed to regular BANKRUPT LAWS.
troops, but not to the militia.

ib. Vide INSOLVENT Laws. JURIS-

DICTION, 11-14.
Vide STATUTES OF UNITED
STATES.

BILLS OF EXCHANGE.

ASSIGNEE. : 1. Where the endorsee of a bill

of exchange, whether as agent
Vide CHANCERY, 8–12. Assign or owner, returns it after pro.
MENT.

test to the last endorser, the

latter may sue upon it in his
ASSIGNMENT.

own name, and at the trial

strike out the last endorse-
Vide PRIORITY OF UNITED ment although it be in full.
STATES, 1--16. Ships, 12

And prior blank endorsements
-17.

may be filled up at the trial so

as to correspond with the de-
ASSUMPSIT..

claration. And where both

these were omitted to be done,
Vide Action, 2. Bills Of Ex the Court op error refused to
CHANGE. CONTRACTS. PRI•

reverse the judgment, consi-
ORITY OF UNITED STATES, 5 dering it an objection of form,
16.

and cured by the 32d section

of the judiciary act. Jacob
ATTACHMENT.

Barker v. United States, 156

2. Time of presentment for ac-
Vide Bonds, 1–4.

ceptance between New York

and Liverpool. The mere
ATTORNEY.

lapse of three months before

presentment not evidence of
Whether an action can, in any delay, especially during war.
case, be brought for an indivi-

ib.
dual in the name of the United 3. Whether due notice of pro-
Stales, by any attorney other test was given, there being no
than the District Attorney, he dispute about facts, is a ques-
refusing to bring it ? Quere. tion of law.
The United States v. Thomas 4. Whether 20 per cent. dama-
Morris.

209 ges cap be recovered in an ac-

tion for the non-acceptance,
BAIL.

but not the non-payment of a
bill ? Quere.

ib.
Vide Sheriffs. 5. But where the action was

commenced on the non-accep-
BANK OF UNITED STATES.

tance of the bill, and after its

non-payment, but before no-
Vide SURETIES, 12, 13, 14. . tice of non-payment had been

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Reports of Cases Argued and Determined in the Circuit Court of the United ...