By the law of Mississippi, the assignee of a chose in action may institute a
suit in his own name. When therefore an executor, having proved the
will of his testator, in Kentucky, had assigned a promissory note due to
the estate by a citizen of Mississippi; the suit was well brought by the
assignee, without any probate of the will in that state. Harper vs.
Butler. 239.
1. Where administrators, acting under the provisions of an act of assembly of
the state of Ohio, were ordered by the court, vested by the law with the
power to grant such order, to sell real estate, and before the sale was
made the law was repealed, the powers of the administrators to sell
terminated with the repeal of the law. The Bank of Hamilton vs.
Dudley's Heirs. 523.
2. The lands of an intestate descend not to the administrator, but to the heir;
they vest in him, liable to the debts of his ancestor, and subject to be
sold for those debts. The administrator has no estate in the land, but
a power to sell under the authority of the court of common pleas. This
is not an independent power, to be exercised at discretion, when the
exigency in his opinion may require it; but it is conferred by the court,
in a state of things prescribed by the law. The order of the court is a
pre-requisite, indispensable to the very existence of the power; and if
the law which authorises the court to make the order, be repealed, the
power to sell can never come into existence. The repeal of such a law
divests no vested estate, but it is the exercise of a legislative power,
which every legislature possesses. The mode of subjecting the pro-
perty of a debtor to the demands of a creditor, must always depend on
the wisdom of the legislature. Ibid. 523.
1. The declaration purported to count upon sixty-eight bills of the bank of
the commonwealth of Kentucky, and it appeared that one of the bills
had been omitted to be described, so that the declaration made out a
less sum than the writ claimed or the judgment gave. The defendants
in error, plaintiffs below, moved for leave to cure the defect by entering
a remittitur of the amount of the bill so omitted and damages pro tanto.
This Court thinks itself authorised to make a precedent in furtherance of
justice, whereby a more convenient practice may be introduced, and to
allow the party to enter his remittitur; but on payment of the costs of
the writ, if error is prosecuted no further after such amendment made.
Bank of Kentucky vs. Ashley et al. 329.
1. The act incorporating the bank of the commonwealth of Kentucky
contains a provision by which it is enacted, that the bank shall receive
money on deposit without being required to give an obligation under
seal to re-pay it. This enactment must be construed with regard to the
practice of banking, and the general understanding of mankind; and
must create a liability to the depositor by the simple act of depositing,
that is, an assumpsit in law, implied from an act in pais. The Bank
of the Commonwealth of Kentucky vs. Wister et al. 324.
2. Upon the deposit being made in the bank of the commonwealth of Ken-
tucky, the cashier gave under his hand a certificate that there had been
deposited to the credit of the plaintiffs below, $7730.81, which is
subject to their order on presentation of this certificate. The deposit
was made in the notes of the bank, and when the same were deposited,
and when demand of payment was made, the notes were passing at one
half their nominal value. When the certificate was presented to the
bank, the cashier offered to pay the amount in the notes of the bank,
but they refused to receive payment in any thing but gold or silver.
The language of the certificate is expressive of a general not a specific
deposit, and the act of incorporation is express, that the bank shall pay
and redeem their bills in gold or silver. The transaction then was equi-
valent to receiving and depositing the gold or silver; if the bank did
not so understand it they might have refused to receive it; and the
plaintiffs would certainly have recovered the gold and silver, to the
amount upon the face of the bills. Ibid. 325.
3. The bank having offered to pay the amount of the certificate in their bills,
they put their own construction on the same, and they cannot after-
wards say that the plaintiffs below should have accompanied the cer-
tificate with a check. Ibid. 326.
BANK OF THE UNITED STATES.
The charter of the bank of the United States forbids the taking of a greater
rate of interest than six per centum, but it does not declare a contract
on which a greater interest has been taken or reserved, to be void. Such
a contract is void upon general principles. Courts of justice are insti-
tuted to carry into effect the laws of a country, and they cannot become
auxiliary to the violation of those laws. There can be no civil right where
there can be no legal remedy; and there can be no legal remedy for
that which is itself illegal. Bank of the United States vs. Owens. 538.
The record contains, embodied in the bill of exceptions, the whole of the
testimony and evidence offered at the trial of the cause by each party
in support of the issue. It is very voluminous, and as no exception was
taken to its competency or sufficiency, either generally or for any par-
ticular purpose, it is not properly before this Court for consideration,
and forms an expensive and unnecessary burthen upon the record. This
Court has had occasion, in many cases, to express its regret on account
of irregular proceedings of this nature. There was not the slightest
necessity of putting any portion of the evidence in this case upon the
record; since, the opinion of the court, delivered to the jury, presented
a general principle of law; and the application of the evidence to it was
left to the jury. Pennock et al. vs. Dialogue. 15.
BILLS OF EXCHANGE.
1. Promissory notes.
2. Bills of exchange, payable at a given time after date, need not be pre-
sented for acceptance at all; and payment may at once be demanded at
their maturity. Townsley vs. Sumrall. 178.
3. It is admitted, that in respect to foreign bills of exchange, the notarial
certificate of protest is, of itself, sufficient proof of the dishonour of a
bill, without any auxiliary evidence. Ibid. 179.
4. It is not disputed, that by the general custom of merchants in the United
States, bills of exchange drawn in one state on another state, are, if
dishonoured, protested by a notary; and the production of such protest
is the customary document of dishonour. Ibid. 180.
5. If a person undertake to accept a bill, in consideration that another will
purchase one already drawn, or to be thereafter drawn, and as an in-
ducement to the purchaser to take it; and the bill is purchased upon
the credit of such promise for a sufficient consideration; such promise
to accept is binding upon the party. It is an original promise to the
purchaser, not merely a promise for the debt of another; and having a
sufficient consideration to support it, in reason and justice as well as in
law, it ought to bind him. Ibid. 181.
6. It can make no difference in law, whether the debt for which a bill of
exceptions is taken is a pre-existing debt, or money then paid for the
bill. In each case there is a substantial credit given by the party to the
drawer upon the bill, and the party parts with his present rights at the
instance of the promissee, whose promise is substantially a new and
independent one, and not a mere guarantee of the existing promise of
the drawer. Under such circumstances, there is no substantial distinc-
tion, whether the bill be then in existence, or be drawn afterwards. In
each case, the object of the promise is to induce the party to take the
bill upon the credit of the promise. Ibid. 182.
7. If the holder of a bill of exchange, at the time of taking the bill, knew
that the drawee had not funds in his hands belonging to the drawer,
and took the bill on the promise of the drawee to accept it, expecting
to receive funds from the drawer; the promise of the drawee to accept
the bill, constitutes a valid contract between the parties, notwithstand-
ing the failure of the drawer to place funds in his hands. The acceptance
of the drawee of a bill, binds him, although it is known to the holder, that
he has no funds in his hands. It is sufficient that the holder trusts to such
acceptance. Ibid. 183.
8. It is well settled, that if a bill of exchange be drawn by one partner in the
name of the firm, or if a bill drawn on the firm by their usual name and
style, be accepted by one of the partners, all the partnership are bound.
It results necessarily from the nature of the association, and the objects
for which it is constituted, that each partner should possess the power to
bind the whole, when acting in the name by which the partnership is
known; although the consent of the other partners, to the particular
< contract should not be obtained, or should be withheld. Le Roy v3.
Johnson. 197.
9. Where a bill of exchange was drawn by A., after the dissolution of his
partnership with B., and the proceeds of the bill went to pay, and did
pay, the partnership debts of A. & B, which A. on the dissolution of
the firm had assumed to pay; the holder of the bill after its dishonour
can have no claim on B. in consequence of the particular appropriation
of the proceeds of the bill. Ibid. 199.
1. The law regulating the responsibility of common carriers, does not apply
'to the case of carrying intelligent beings, such as negroes. The carrier
has not, and cannot have over them the same absolute control that he
has over inanimate matter. In the nature of things, and in their char-
acter, they resemble passengers, and not packages of goods. It would
seem reasonable therefore, that the responsibility of the carrier should
be measured by the law which is applicable to passengers, rather than
by that which is applicable to the carriage of common goods. Boyce
vs. Anderson. 155.
2. The law applicable to common carriers is one of great rigour. Though
to the extent to which it has been carried, and in the cases to which it
has been applied, its necessity and its policy are admitted; it ought
not to be carried further or applied to new cases. It has no. oeen ap-
plied to living men, and it ought not to be. Ibid. 155.
3. The ancient rule of the law of carriers, that the carrier is liable only for
ordinary neglect, does not apply to the conveyance of slaves. Ibid.
156.
CHANCERY, AND CHANCERY PRACTICE.
1. As the plaintiffs in the circuit court claimed under a conveyance made
in pursuance of a decree of a court of competent jurisdiction, the bill
ought not to have been dismissed for want of parties. The circuit court
ought to have given leave to make new parties, and on their failing to
bring the proper parties before the court, the dismission should have
been without prejudice. Hunt vs. Wickliffe. 215.
2. The Court has decided that a suit could be maintained in equity, by the
holder of an indorsed note, against a remote indorser; and upon grounds
perfectly familiar to courts exercising equity jurisdiction. The Bank
of the United States vs. Weisiger. 331.
3. It has been decided in Kentucky, that a suit at law could not be main-
tained in that state by the indorsee, against a remote indorser. The
conclusion then results from our decisions, that he must be let into
equity; for an indorsement is certainly no release to the previous in-
dorsers; and the ultimate assignee alone is entitle the benefit of their
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