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gan, in which a writ of habeas corpus, issued to a Draft Commissioner in that State, was dismissed upon the same views herein expressed, and in which the case of Ableman vs. Booth is cited with approbation and followed.

Some inconvenience will undoubtedly result from the inability of the State Judges to give relief in this class of cases. The State Judges and local officers authorized to allow writs of habeas corpus are more numerous than the United States Judges, and more accessible; and I doubt not if the officers acting under United States authority were allowed to obey these writs by producing the body and making a proper return thereto without raising this question of jurisdiction, that it would rarely happen in this State, at least, that the State Judges would do anything needlessly to embarrass the action of the General Government. I think the Judges of this Court would unhesitatingly recognise their duty as loyal citizens to support and maintain the Constitution of the United States and the laws of Congress as the supreme law of the land, with as much fidelity as though they were in fact acting under the authority and commission of the General Government.

But while the difficulty of obtaining ready redress for this class of grievances in the United States Courts may be, as it is, matter of regret, this consideration cannot affect the question of law. As the point is here distinctly made, and the officers of the General Government having the prisoners in custody refuse to produce them in obedience to the writ, under instructions from the United States authorities, there is no other course but to dismiss these proceedings. But if it were doubtful whether the returns in these cases were sufficient to oust me of jurisdiction, as such jurisdiction could only be asserted by proceedings which would involve a conflict between the State and National Governments, I should be quite unwilling, and should hardly think it my duty, to initiate such proceedings at a time of great national peril, and when the Government is struggling for existence with a gigantic rebellion.

The attachments must be denied and the proceedings dismissed.

Supreme Court of Pennsylvania.

DE BARRY vs. WITHERS & PETERSON.

An accommodation acceptor having paid a bill for which no funds are provided by the drawer, is entitled to recover the amount from him.

The suit must be in the name of the payee to the use of the acceptor.

But if the drawer make an express promise to the acceptor to pay the debt to him, he may sue in his own name.

Semble, that this is the general rule in the United States, but in England some new consideration is required to enable the acceptor to sue in his own name.

The opinion of the Court was delivered, March 2d 1863, by READ, J.-An accommodation acceptor having paid a bill for which no funds are provided by the drawer, is entitled to recover the amount from the drawer; for the law, in the absence of any express contract, implies a contract to indemnify. But whether the action be for money paid or specially for not indemnifying the plaintiff, still it is only a chose in action which is assignable in equity, and therefore the suit must be in the name of the assignor for the use of the assignee. But as the assignee is the real owner, it would seem but just if the debtor chooses expressly to promise to the assignee to pay the debt to him, that the assignee might sustain an action against him, in his own name; and this was the view taken in the early English cases of Fenner vs. Meares, 2 W. Bl. Rep. 1269, and Israel vs. Douglass, 1 H. Bl. Rep. 239. It would seem, however, that in England the rule at present is to require the consideration of forbearance, or some other new consideration, to enable the assignee to proceed in his own name: 1 Chitty's Pl. 15; Addison on Contracts 984.

In America, however, the early English doctrine has been adopted, and this is clearly the sound rule, for it is a promise to pay to the real owner of the debt, requiring no other consideration than the fact that the debtor is morally and equitably bound to pay it to his actual creditor, and is not allowed to discharge himself by paying it to any other person. This was the decision in Massachusetts, as early as 1813, in Crocker vs. Whitney, 10 Mass. 316, and reaffirmed in Mowry vs. Todd, 12 Id. 281. In Maryland, in Allston vs.

Contee, 4 H. & J. 351, a case argued by the present venerable Chief Justice of the United States, the same doctrine was held, and reaffirmed in Barger vs. Collins, 7 H. & J. 213. So in New Hampshire Currie vs. Hodgdon, 3 N. H. 82; Thompson vs. Emery, 7 Foster 269. And in Vermont, Moar vs. Wright, 1 Verm. 57; Bucklin vs. Ward, 7 Id. 195. Such also is the law in Maine: Smith vs. Berry, 6 Shepley 122, and Nonni vs. Hall, Id. 332.

In New York, the same rule prevailed prior to the code which directs that suits shall be in the names of the real parties in interest: Compton vs. Jones, 4 Cowen 13; DeForest vs. Frary, 6 Id. 151; Dubois vs. Doubleday, 9 Wend. 317; Jessel vs. Williamsburg Insurance Co., 3 Hill 88. In the revision of Swift's Digest, Vol. 1, p. 438, the law in Connecticut is thus stated: "The assignment of a chose in action will be a good consideration for the promise of the debtor to pay to the assignee, who may maintain an action in his own name on such promise." Which is also the settled law of Tennessee: Mount Olivet Cemetery Co. vs. Shubert, 2 Head 116.

This rule, so reasonable in itself, and so consonant to our ideas of justice, decides the present case, for the only real question before us was whether the additional count disclosed a sufficient cause of action. There is nothing in the other assignment of error.

Judgment affirmed.

ABSTRACTS OF RECENT AMERICAN DECISIONS.

SUPREME COURT OF NEW YORK.1

Admissions and Declarations of a Grantor-Deed upon ConditionForfeiture of Condition-Performance.-The admissions of a grantor in a deed, against his own interest and tending to establish a sufficient consideration for the deed, he being an original party to the record and identified in interest with the plaintiffs, are admissible in evidence against the plaintiffs, as part of the res gesta: Spaulding vs. Hallenbeck.

1 From the Hon. O. L. Barbour; to appear in the 39th volume of his Reports.

In an action by the heirs of a grantor, against the grantee, to recover possession of the land, for a breach of the condition upon which it was conveyed, the declarations of the grantor, showing a performance of the condition, are admissible: Id.

Where a deed was upon the express condition that the grantee should keep, maintain, and support the grantors, and that if he failed to do so the conveyance should be void and the premises revert back to the grantors: Held, that the condition involved a forfeiture of the premises, upon a failure of the grantee to perform, and was intended as a security in the nature of a penalty for its performance. That it was a condition subsequent, and upon a failure to fulfil, the grantors had a right to reenter upon the premises: Id.

In such a case it is proper for the judge to leave it to the jury to determine whether the grantee intended, in good faith, to perform, and had substantially performed, the condition of the deed; and that a substantial compliance with the contract would save the forfeiture: Id.

Action for Damages by one in possession under a Contract to purchase— Evidence-Measure of Damages-Opinions of Witnesses.-One in possession of land under a contract to purchase, and entitled to a conveyance upon making the payments stipulated, is virtually the owner, and may maintain an action to recover damages for injuries to his interest in the property: Honsee vs. Hammond.

In such an action the plaintiff may prove the value of the premises and the cost of the buildings erected thereon, and the difference in the annual value of the property prior to, and since, the injury alleged, within the rule laid down by the authorities respecting opinions of witnesses: Id.

The difference in the value of the property, at the two periods, is the proper rule of damages: Id.

Where the owners of a tannery situated upon a stream threw tan-bark and other materials into the stream, thereby clogging the same and causing damage to the mills of the plaintiff situated lower down the stream: Held, that an action would lie for the injury, even though the damage was done by the defendants without any intent to injure, and in the usual manner in which water is used in tanneries: Id.

Assignments for the benefit of Creditors.-Section 2 of the Act of 1860, requiring an assignor, within twenty days after the date of an assignment,

to make and deliver to the county Judge an inventory of his debts and assets, and section 3, requiring the assignee, within

days after such

date, to give a bond for the faithful performance of his duties, are directory merely; and an omission to execute and deliver the assignment, and to file the bond, within the times specified, will not render the assignment inoperative and void: Juliand vs. Rathbone.

If an assignment is valid when made, and vests the title in the assignee. neither the omission of the assignor to deliver an inventory, nor any omission of duty by the assignee, in the execution of the trust, will reach back and render the assignment invalid: Id.

Actions for Tort-Waiver of Tort-Amendment.—Where, in an action for a tort in wrongfully taking and converting personal property, there is an entire failure of proof that the taking was wrongful or tortious, or that there was any fraudulent intent, the plaintiff should be nonsuited. He cannot, at the close of the case, waive the tort and recover as upon a contract: Ransom vs. Wetmore.

An amendment which will change the form and nature of the action from tort to assumpsit, cannot be asked for after the whole case is finished: Id.

Charge to Jury as to effect of Verdict.-In an action for assault and battery, the Judge charged the jury as to the effect of their verdict on the question of costs, in case they should find for the plaintiff, and refused to charge them that in arriving at the amount of the verdict they would give the plaintiff, they had nothing to do with the question of costs, or whether or not their verdict would entitle him to full costs: Held, correct: Waffle vs. Dillenbeck.

Jurisdiction as to Foreign Corporations-Assignment by Corporation--Agreement in restraint of Trade-Principal and Agent-Rights of Officers of a Corporation.-No power can be exercised by the Supreme Court, over a foreign corporation, in proceedings commenced by a stockholder, to wind up its affairs: Murray vs. Vanderbilt.

But, for the purpose of preserving the property of such corporation, for the benefit of creditors or stockholders, a Court of Equity has ample power to take charge of it, and to appoint a receiver: Id.

An appearance of a corporation, by officers of the Court, will be valid, and give jurisdiction, whether the service of process upon the officers be good or not; provided the corporation is still in existence: Id.

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