be conditional, and the condition may be more objectionable than the punishment inflicted by the judgment. Ibid.

15. The pardon may possibly apply to a different person or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show that this, like any other deed, ought to be brought "judicially before the court, by plea, motion, or otherwise." Ibid.

16. The reason why a court must, ex officio, take notice of a pardon by act of parliament is, that it is considered as a public law, having the same effect on the case as if the general law, punishing the offence, had been repealed or annulled. Ibid.

17. As the jurisdiction of the supreme court is appellate, it must be shown. to the court that the court has the power to award a habeas corpus before one will be granted. Ex parte Milburn, 9 Peters, 704.

18. George Milburn was imprisoned in the jail of the county of Washington, upon a bench warrant issued by the circuit court of the United States for the District of Columbia, to answer an indictment pending against him for keeping a faro bank; an offence which, by an act of congress, is punishable by imprisonment at hard labour in the penitentiary of the district. He | had been arrested on a former capias issued on the same indictment, upon which he gave a recognisance of bail, with sureties, in the sum of one hundred pounds, Maryland currency, according to the statute of Maryland; conditioned to appear in court at the return day of the process, &c. He did not appear, and the recognisance was forfeited, and a scire facias was issued against him and his sureties, returnable to December term, 1833. At the same term, another writ of capias was issued against him, returnable immediately, and returned "non est inventus." At June vacation, 1834, another writ of capias was issued against him, returnable to November term, 1834, on which he was arrested, and from which arrest he was discharged on a habeas corpus by the chief justice of the circuit court; on the ground that the writ of capias improperly issued. On a return of this discharge by the marshal, a bench warrant was issued by order of a majority of the judges of the circuit court, and on which he was in custody. He applied for a writ of habeas corpus to this court, to obtain his discharge. Held, that he was properly in custody. The rule for the habeas corpus was refused. Ibid.

19. No prosecution for perjury, under the bankrupt law, can be maintained after the repeal of the law. The United States v. Passmore,

4 Dall. 372.

20. An offence against a temporary statute cannot be punished after the expiration of the act, unless a particular provision be made by law for that purpose. The Irresistible, 7 Wheat. 551; 5 Cond. Rep. 343.

21. The word "apprehended," in that clause of the act for the punishment of crimes, does not simply imply a legal arrest, to the exclusion of

a military arrest or seizure. Ex parte_Bollman and Swartwout, 4 Cranch, 75; 2 Cond. Rep. 33. 22. The fear which the law recognises as an excuse for the perpetration of a crime, must proceed from an immediate and actual danger, threatening the very life of the party. United States v. Vigol, 2 Dall. 347.

23. The law punishes the attempt, not the intention, to defraud the revenue by false invoices. The United States v. Riddle, 5 Čranch, 311; 2 Cond. Rep. 266.

24. An offer of a bribe, made in a letter directed to New York, and put into the post-office in Philadelphia, will sustain an indictment in the district of Pennsylvania. The United States v. Worrall, 2 Dall. 388.

25. A conclusion of an indictment, founded on a statute "contrary to the true intent and meaning of the act of congress of the United States, in such case made and provided," is good; and is equivalent to a conclusion "against the form of the statute in such case made and provided." United States v. Smith, 2 Mason's C. C. R. 143.

26. The circuit court has power to discharge a jury impannelled to try the issue in a criminal cause, whenever it is necessary for the purposes of justice; and there is no exception in capital cases. United States v. Coolidge, 2 Gallis. Č. C. R. 364.

27. The grand jury, having received testimony from a person not on oath, the indictment was quashed. Ibid.

28. Objections to the form and sufficiency of the indictment may, in the discretion of the court, be discussed, and decided, during the trial, before the jury; but, generally speaking, they ought regularly to be considered only upon a motion to quash the indictment, or in an arrest of judgment, or on demurrer. United States v. Gooding, 12 Wheat. 460; 6 Cond. Rep. 572.

29. In criminal proceedings the onus probandi rests upon the prosecutor, unless a different provision is expressly made by statute. Ibid.

30. Each count in an indictment is a substantive charge; and if the finding of the jury conform to any one of the counts, which, in itself, will support the verdict, it is sufficient, and judgment may be given thereon. United States v. Furlong, 5 Wheat. 184; 4 Cond. Rep. 623.

31. Though penal laws are to be construed strictly, yet the intention of the legislature must govern in the construction of penal, as well as other statutes; and they are not to be construed so strictly as to defeat the obvious intention of the legislature. The United States v. Wiltberger, 5 Wheat. 76; 4 Cond. Rep. 593.

32. The rule that a man shall not be chargea with one crime and convicted of another, may sometimes cover real guilt; but its observance is essential to the preservation of innocence. The Hoppet v. United States, 7 Cranch, 389; 2 Cond. Rep. 542.

33. In the act of April 30th, 1790, ch. 36, the description of places contained in the eighth section, within which the offences therein enumerated must be committed, in order to give the courts of the Union jurisdiction over them,

cannot be transferred to the twelfth section, so as to give those courts jurisdiction over a manslau hter committed in the river of a foreign country, and not on the high seas. Ibid.

34. In an indictment in the seventh and ninth sections of the act granting a bounty to vessels employed in the cod fisheries, (act of 29th July, 1813, ch. 34,) for making a false declaration, the indictment having stated the purport of the written paper to be, that the vessel was of the burden of 14 tons and 49-95ths of a ton; whereas the paper produced stated it to be 14 tons and 50-95ths of a ton: the variance was held fatal. United States v. Lakeman, 2 Mason's C. C. R. 229.

35. The courts of the United States have no jurisdiction, under the act of April 30th, 1790, ch. 36, of the crime of manslaughter, committed by the master upon one of the seamen on board a merchant vessel of the United States, lying in the river Tigris, in the empire of China, thirtyfive miles above its mouth, off Wampoa, about one hundred yards from the shore, in four and a half fathoms water, and below low water mark. United States v. Willberger, 5 Wheat. 76; 4 Cond. Rep. 593.

36. The supreme court has authority to issue a habeas corpus, where a person is imprisoned under the warrant or order of any other court of the United States. Ex parte Kearney, 7 Wheat. 38; 5 Cond. Rep. 225.

37. But the supreme court has no appellate jurisdiction in criminal cases, confided to it by the laws of the United States; and cannot revise the judgments of the circuit courts, by writ of error, in any case where a party has been convicted of a public offence. Hence the court will not grant a habeas corpus, where a party has been committed for a contempt adjudged by a court of competent jurisdiction. Ibid.

38. In such a case, the court will not inquire into the sufficiency of the cause of commitment. Ibid.

39. A commitment for a contempt by a court of competent jurisdiction, in the exercise of its jurisdiction, is conclusive, and cannot be inquired into in any other tribunal. Ibid.

40. An offence committed in a bay which is entirely land-locked and enclosed by reefs, is not committed on the high seas, within the purview of the act of congress of the 26th of March, 1804, ch. 40. United States v. Robinson, 4 Mason's

C. C. R. 307.

41. If many go to do an unlawful act, and one only do it, all are principals. But if they go to do a lawful act, as to visit a vessel, to ascertain her character, and all but one commit a felony, though in his presence, but without his participation; their crime is not imputable to him. United States v. Jones, 3 Wash. C. C. R. 209.

42. Fear, to excuse a person guilty of an alleged crime, must be fear of death; such a fear as a man of ordinary courage and fortitude might yield to. United States v. Haskell and Francois, 4 Wash. C. C. R. 402.

43. Laws which create crimes ought to be so explicit in themselves, or by reference to some other standard, that all men subject to their pe

naltics may know what acts it is their duty to avoid. United States v. Sharp et al., 1 Peters' C. C. R. 118.

44. On an indictment, upon the act of 16th March, 1802, ch. 9, sec. 19, for purchasing of a soldier "his arms," it must be proved that the soldier was in lawful possession of the arms, or had special bailment of them; otherwise the indictment cannot be sustained. United States v. Brown, 1 Mason's C. C. R. 151.

45. To determine that a case is within the intention of a statute, the language must authorize the construction. It would be dangerous to carry the principle, that a case, which is within the reason or mischief of a statute, is within its provisions, so far, as to punish a crime not enumerated within the statute, because it is of equal atrocity, or of kindred character with those which are enumerated. The United States v. Sheldon, 2 Wheat. 119, 121; 4 Cond. Rep. 62.

46. The discharge of the jury from giving a verdict in a capital case, without the consent of the prisoner, the jury being unable to agree, is not a bar to a subsequent trial for the same offence. United States v. Perez, 9 Wheat. 579; 5 Cond. Rep. 689.

47. The court is invested with the discretionary authority of discharging the jury from giving any verdict, in cases of this nature, whenever, in their opinion, there is a manifest necessity for such an act; or the ends of public justice would otherwise be defeated. Ibid.

48. In an indictment for a statute offence, it is sufficient if the offence is substantially set forth, though not in the exact words of the statute." United States v. Batchelder, 1 Gallis. C. C. R. 11.

49. It is not necessary, in an indictment for resisting a public officer, to set forth the particu lar exercise of office in which he was engaged, or the particular act and circumstances of obstruction. Ibid.

50. All offences within the admiralty jurisdiction are cognisable by the circuit court; and, in the absence of positive law, are punishable by fine and imprisonment. Query? United States v. Coolidge, 1 Gallis. C. C. R. 488.

51. An offence against a temporary statute cannot be punished after the expiration of the act, unless a particular provision be made by law for that purpose. The Irresistible, 7 Wheat. 551; 5 Cond. Rep. 343.

52. The proviso in the repealing clause of the neutrality act of the 20th of April, 1818, did not authorize a forfeiture under the act of the 3d of March, 1817 (which was included in the repeal), after the time when that act would have expired by its own limitation. Ibid.

53. Penal laws must be construed strictly, to bring the case within the definition of the law; but not so as to exclude a case within its words, in their ordinary acceptation. The United States v. Wilson and Porter, 1 Baldwin's C. C. R. 101.

54. On a joint indictment, it is not a matter of right to have the defendants tried separately, but is discretionary with the court. Ibid. 81.

55. The United States may challenge a juror peremptorily, in the first instance, till the pannel

56. In an indictment, laying the offence in the words of the law creating it is sufficient, as a general rule. Ibid. 119.

57. It need not state the county in which the offence was committed; it is enough if it shows that the court had jurisdiction; cases of treason are exceptions. Ibid.

66. A foreign government has no right, by the law of nations, to demand of the government of the United States, a surrender of a citizen or subject of such foreign government, who has committed a crime in his own country, and is afterwards found within the limits of the United States. It is a right which has no existence without, and can only be secured by a treaty stipulation. Case of Jose Ferreira dos Santos, 2 Brockenb. Rep. 493.

59. A pardon granted by a governor of a state, under its great seal, is evidence, per se, without any further proof. The United States v. Wilson and Porter, i Baldwin's C. C. R. 91.

60. The evidence of an accomplice cannot be corroborated by his statements at another time, unless it has been impeached. Ibid.

61. The acts of a co-defendant are evidence to show the connection between him and the prisoner in the same offence. Ibid.

62. The legislature making use of a technical law term, its meaning must be ascertained by the common law; and therefore the definition of murder must be taken from that code. The United States v. Magill, 1 Wash. C. C. R. 463.

63. All persons present at the commission of a crime, consenting thereto, aiding, assisting, or abetting therein, or in doing any act which is a constituent of the offence, are principals. The United States v. Wilson and Porter, 1 Baldwin's C. C. R. 102.

64. No act of congress confers on the United States' courts the right to summon grand juries, or describes their powers. The laws of congress have invested the courts of the United States with criminal jurisdiction; and since this jurisdiction can only be exercised through the instrumentality of grand juries, the power to direct them results by necessary implication. Hence, the powers of grand juries are co-extensive with, and are limited by, the criminal jurisdiction of the courts of which they are an appendage. Hence, too, a presentment by a grand jury in the circuit court of the United States, of an offence of which that court has no jurisdiction, is coram non judice, and is no legal foundation for any prosecution; which can only be instituted on the presentment or indictment of a grand jury, to be carried on in another court, unless that court has no right to direct grand juries. But the district courts of the United States have that power as completely as the circuit courts, to the extent of their criminal jurisdiction. United States v. Hill et al., 1 Brockenb. Rep. 156.

65. An individual is presented by the grand jury for a particular offence, and a bill of indictment for the same offence is sent to the grand jury, by the attorney for the United States, which they find a "true bill." At a subsequent term of the court, the attorney enters a nolle prosequi. 44*

have no authority to surrender the obnoxious individual, or to detain him in custody, until a formal demand for the surrender could be made by the foreign government, of the executive of the United States. Ibid.

68. Where an individual is charged with the commission of a criminal offence, and enters into a recognisance, conditioned to appear at a given day, and undergo his trial, which recognisance is forfeited by the failure of the party to appear and submit himself to the law; but the accused appears at the succeeding term of the court: the court in which the recognisance is filed, has full power to suspend (or discharge) it, for good cause shown by the accused, why he did not comply with the condition of the recognisance; the object of such a recognition being, not to enrich the treasury, but to combine the administra tion of criminal justice with the convenience of a person accused of a criminal offence, but not proved to be guilty. The United States v. . Feely, &c., 1 Brockenb. 255.

69. It has been the practice of the courts in this country, to take no notice of presentments on which the prosecuting attorney does not think proper to institute proceedings; and upon this principle, a motion to quash a presentment after a nolle prosequi entered will be overruled. Ibid.

70. Where separate trials have been ordered on a joint indictment, at the request of the pri soners, and one has been convicted, a continuance will not be granted on account of an alleged excitement caused by the trial. The United States v. Wilson and Porter, 1 Baldwin's C. c. R. 83.

71. It is no cause for a continuance that defendant has not been furnished with a copy of the indictment, and a list of the jurors, if he has not applied for them. The United States v. David Shive, 1 Baldwin's C. C. R. 510.

CUSTOM.

1. Usages among merchants should be sparingly adopted as rules of law by courts of justice; as they are often founded upon mere mistake, and in want of comprehensive views of the full bearing of principles. Donnell et al. v. Columbian Insurance Co., 2 Sumner's C. C. R. 366. 2. A usage or custom will be admitted to as

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16. The officer making the seizure should examine the goods before it is made, and not make it unless there be a reasonable cause. Ibid.

3. Held, That evidence is not admissible to vary the common bill of lading, by which the goods were to be delivered in good order and condition, the danger of the seas only excepted, by establishing a custom that the owners of packet vessels, between New York and Boston, should be liable only for damage to goods occasioned by their own neglect. Ibid.

4. Witnesses cannot be examined to prove a custom, that where insurance is made on goods, with a particular mark, those goods so marked must be on board, in order to entitle the assured to recover. Ruan v. Gardner, 1 Wash. C. C. R.

145.

5. There is no rule of law better settled than that which precludes the admission of parol evidence to contradict, or substantially vary, the legal import of a written agreement; but evidence of usage, or custom, is never considered of this character. Renner v. The Bank of Columbia, 9 Wheat. 581; 5 Cond. Rep. 691.

6. A usage which is to govern a question of right between parties, must be so certain, so uniform, and notorious, as to be understood and known by them. United States v. Duval, Gilpin's D. C. R. 356.

7. A usage, to effect the lien of workmen and material men on a vessel, must be clearly and uniformly well known and understood among the parties. Davis v. A New Brig, Ibid.

8. The usage of a department of the government, in settling its accounts, can have no effect on those of an individual, unless it is certain, uniform, and notorious. United States v. Duval, Ibid.

9. The regulations of a department of the government, in settling its accounts, are intended for general rules in the transaction of its business, but are subject to the revision of a court and jury, when they work manifest injustice to individuals. United States v. M'Call, Ibid.

10. It is the duty of an officer of the customs, on making a seizure of goods, for having been imported in violation of the revenue laws, to institute proceedings in rem in the district court. Hall v. Warren et al., 2 M'Lean's C. C. R. 332. 11. The district court has exclusive jurisdiction of forfeitures. Ibid.

12. Whether the seizure has been rightful or tortious, cannot be ascertained until the matter has been adjudged by the court. Ibid.

13. If the person making the seizure refuses to proceed in the district court, on application to that court by the owner, he will be compelled to do so, or return the goods. Ibid.

14. Should the goods be adjudged to be returned by the court, and a certificate of reasonable cause refused, it is final. Ibid.

15. There can be no justification of the act of

17. When goods are taken from the possession of the owner, and detained without reasonable cause, the officer is liable to damages to the full extent of the injury. Ibid.

1. Where the law gives a right, and a remedy for a violation of it, such violation imports damages; and in the absence of all evidence of special damages, the law presumes a nominal damage to the party. Whittemore v. Cutter, 1 Gallis. C. C. R. 478,

2. In estimating the damages sustained by a breach of the contract, the plaintiff is not to recover what he might have made had the contract been literally fulfilled. Gilpin v. Consequa, Peters' C. C. R. 85.

3. Where a judgment or decree is affirmed on a writ of error, there can be no allowance of damages, but for the delay. Cotton, Plaintiff in Error, v. Wallace, 3 Dall. 302; 1 Cond. Rep. 134.

4. In actions sounding in damages, the amount laid in the declaration gives the amount by which the jurisdiction of the courts of the United States is to be determined. Muns v. Dupont, 2 Wash. C. C. R. 463.

5. In a case where it would be difficult to ascertain the injury resulting from a breach of contract, or the sum in damages by which it might be compensated, a court of chancery will not itself ascertain such damages, nor direct an issue of quantum damnificatus. Pratt et al. v. Law et al., 9 Cranch, 456; 3 Cond. Rep. 460.

6. It is not the equity practice to direct an issue of quantum damnificatus, in any case in which the court can lay hold of a simple, equitable, and precise rule, to ascertain the amount which it ought to decree. Ibid.

7. The extraordinary expenses of vindicating the right of the plaintiff, such as counsel fees and expenses of witnesses, beyond the taxable costs, ought not to be considered in estimating damages in cases of tort. Whittemore v. Cutter, 1 Gallis. C. C. R. 429.

8. Damages for delay, amounting to eight per cent., were allowed. Colton, Plaintiff in Error, v. Wallace, 3 Dall. 302; 1 Cond. Rep. 134.

9. Counsel fees in the court below cannot be allowed as damages: where the circuit court had allowed them, the supreme court ordered the allowance to be expunged by entering a remittitur. Arcambel v. Wiseman, 3 Dall. 306; 1 Cond. Rep. 136.

13. Where the action is brought for a sum certain, or which may be rendered certain by computation, judgment for the damages may be entered by the court, without a writ of inquiry. Renner et al. v. Marshal, 1 Wheat. 215; 3 Cond. Rep. 546.

14. In an action of covenant on an agreement under a penalty, the jury, in 'estimating the damages, are not bound to give the penalty only; but if debt is brought, the plaintiff can recover no more than the penalty. Where the penalty is in the nature of liquidated damages, the stipulated sum must govern the jury in estimating the damages. Martin v. Taylor, 1 Wash. C. C.

R. 1.

15. In an action by the vendee for the breach of a contract of sale by the vendor, in not delivering the article, the measure of damages is the price of the article at the time of the breach of contract, and not at any subsequent period. Shepherd et al. v. Hampton, 3 Wheat. 200; 4 Cond. Rep. 233.

16. If the reservation of damages in the condition of a bond is only a double penalty, then interest is the legal compensation for the breach of the penalty contained in the bond. United States v. Gurney et al., 4 Cranch, 333; 2 Cond. Rep. 132.

17. In a case where it would be difficult to ascertain the injury resulting from the breach of contract, or the sum in damages by which the injury might be compensated, the court will not themselves ascertain the injury nor the damages, nor direct an issue quantum damnificatus. Pratt and others v. Law and others, 9 Cranch, 456; 3 Cond. Rep. 460.

18. Where a case was not one for vindictive or exemplary damages, the charge of the court to the jury was, that the plaintiffs were entitled to recover such damages as they had proved themselves entitled to, on account of the actual injury sustained by the seizure and detention of the goods. And in ascertaining what these damages were, the court directed them that the plaintiffs had a right to recover the value of the goods (teas) at the time of the levy, with interest from the expiration of the usual credit on extensive sales. This was in conformity to the decision of the court in the case of Conard v. Nicoll, 4 Peters' Reports, 291. Conard v. The Pacific Ins. Co., 6 Peters, 262.

19. The allowance of damages in cases of affirmance of judgments or decrees of the circuit

21. Where a statute gives the party double or treble damages, the jury may find the single damages, and the court will double or treble them. And a general verdict will be decreed for single damages, unless the contrary appears. But a verdict for the double or treble damages will be good, if so found expressly. Cross v. The United States, 1 Gallis. C. C. R. 26.

22. Where a bond with a penalty is given for the performance of covenants, although damages may have been sustained to a greater amount, yet the recovery must be limited to the penalty; especially in cases of sureties. Bank of the United States v. Magill, 1 Paine's C. C. R. 661.

23. In suits for vindictive damages, the jury have a right to decide on the amount, without the control of the court; but where they are extravagant, the court will interfere. But in other cases, where a rule can be discovered, the jury are bound to follow it; and where a sum of money has been lost to the plaintiff, by the negligence of the defendant, the amount of damages which a jury can give, is the sum the plaintiff has been thus deprived of, and no more. Walker et al. v. Robert Smith, 1 Wash. C. C. R. 152.

24. Where an interlocutory judgment is rendered on a bond, with a collateral condition, the jury, if required by either party, must ascertain the damages, if they be uncertain; and if not so, the court must; and for the sum so ascertained, and for no other, can the execution issue. The United States v. White et al., 4 Wash. C. C. R. 414.

25. An attorney is answerable in damages to a party, if, without his authority, he appears to a suit against him. Field v. Gibbs, Peters' C. C. R. 155.

26. If the marshal levies on the property of a third person, pursuant to instructions, without any abuse of his authority, he is liable only for the injury actually sustained. Ibid.

27. The general policy of the law forbids that a debtor should be subjected to all the loss arising upon his failure to fulfil a promise to pay his debt. Such breaches are so often the result of events which could neither have been prevented nor foreseen by the debtor, that interest is generally a compensation which must content the creditor. Short v. Skipwith, 1 Brockenb. C. C. R. 103.

28. An agent who, in his character of agent, collects a debt due to his principal, and retains it, by the consent of his principal, as a debtor, the consent having been given before the debt was collected, is not entitled to commissions on the amount collected. Ibid.

29. When the demand is a stale one, the