Page images
PDF
EPUB

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. HITCHсосK for the libellants.
N. SMITH and J. BACKUS for the claimants.

g 2 Gal. 350.

[blocks in formation]

AMENDMENTS AND JEO-

FAILS.

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 when 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.

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.

Vide REMOVAL OF CAUSES.

ARMY.

539

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,
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
troops, but not to the militia.

Vide STATUTES OF UNITED
STATES.

ASSIGNEE.

BANKRUPT LAWS.

ib. Vide INSOLVENT LAWS. JURIS-
DICTION, 11-14.

[blocks in formation]

BILLS OF EXCHANGE.

1. Where the endorsee of a bill
of exchange, whether as agent
or owner, returns it after pro-
test to the last endorser, the
latter may sue upon it in his
own name, and at the trial
strike out the last endorse-
ment although it be in full.
And prior blank endorsements
may be filled up at the trial so
as to correspond with the de-
claration. And where both
these were omitted to be done,
the Court on error refused to
reverse the judgment, consi-
dering it an objection of form,
and cured by the 32d section
of the judiciary act.
Jacob
Barker v. United States, 156
2. Time of presentment for ac-
ceptance between New-York
and Liverpool. The mere
lapse of three months before
presentment not evidence of
delay, especially during war.
ib.
3. Whether due notice of pro-
test was given, there being no
dispute about facts, is a ques-
ib.
tion of law.

[blocks in formation]
« PreviousContinue »