Pennsylvania. A note to be paid "in the office notes of a bank" is not negotiable by
the usage or custom of merchants. Not being a promissory note by the law mer-
chant, the statute of Anne, or the kindred acts of Assembly of Pennsylvania, it is not
negotiable by endorsement; and not being under seal, is not assignable by the act
of Assembly of Pennsylvania on that subject, relating to bonds. No suit could be
brought upon it in the name of the endorser. The legal interest in the instrument
continues in the person in whose favour it has been drawn, whatever equity another
may have to claim the sum due on the same; and he only can be the party to a suit
at law on the instrument. Irvine, for the use of the Lumberman's Bank at War-
ren vs. Lowry, 293.
2. The declaration in an action by an executor, for the recovery of money received by the
defendant, after the decease of the testator, may be in the name of the plaintiff, as
executor, or in his own name, without stating that he is executor. The distinction
is, that when an executor sues on a cause of action which occurred in the lifetime
of the testator, he must declare in the detinet, that is, in his representative capacity
only; but when the cause of action occurs after the death of the testator, if the
money when received will be assets, the executor may declare in his representative
character, or in his own name. Kane's Adm. vs. Paul, Ex. Coursault, 33.
3. An action was instituted in the Circuit Court of Mississippi on a promissory note,
dated at and payable in New York. The declaration omitted to state the place at which
the note was payable, and that a demand of payment had been made at that place.
Held, that to maintain an action against the drawer or endorser of a promissory note
or bill of exchange, payable at a particular place, it is not necessary to aver in the
declaration that the note when due was presented at the place for payment, and was
not paid; but the place of payment is a material part of the description of the note,
and must be set out in the declaration. Covington vs. Comstock, 43.
ADMINISTRATORS.
Executors and Administrators.
AGENT OR FACTOR.
Opinion of Mr. Justice Baldwin, in the case of Susan Decatur vs. J. K. Paulding, Sec-
retary of the Navy of the United States.
Opinion of Mr. Justice Baldwin, in the case of George Holmes vs. Silas H. Jennison,
Governor of the State of Vermont, et al. Appendix, No. II.
AVERAGE AND CONTRIBUTION.
1. In a case in which sovereign states, of the United States, are litigating a question of
boundary between them, in the Supreme Court of the United States, the Court
have decided that the rules and practice of the Court of Chancery should, substan-
tially, govern in conducting the suit to a final close. The State of Rhode Island
vs. The State of Massachusetts, 210.
2. In a controversy where two sovereign states are contesting the boundary between them,
it is the duty of the Court to mould the rules of Chancery practice and pleading in
such a manner as to bring the case to a final hearing on its merits. It is too im-
portant in its character, and the interests concerned too great, to be decided upon the
mere technical principles of Chancery pleadings. Ibid.
3 The state of Rhode Island, in a bill against the state of Massachusetts, for the settle-
ment of the boundary between the states, had set forth certain facts on which she
relied in support of the claim for the decision of the Supreme Court, that the bound-
ary claimed by the state of Massachusetts was not the true line of division between
the states, according to their respective charters. To this bill the state of Massa-
chusetts put in a plea and answer, which the counsel for the state of Rhode Island
deemed to be insufficient. On a question whether the plea and answer were insuf-
ficient, the Court held: that as, if the Court proceeded to decide the case upon the
plea, it must assume, without any proof on either side, that the facts stated in the
plea are correctly stated, and incorrectly set forth in the bill, then it would be deciding
the case upon such an issue as would strike out the very gist of the complainant's
case, and exclude the facts upon which the whole equity is founded, if the complain-
ant has any. The Court held: that it would be unjust to the complainant not to
give an opportunity of being heard according to the real state of the case between
the parties; and to shut out from consideration the many facts on which he relies
to maintain his suit. Ibid.
4. The plea of the state of Massachusetts, after setting forth various proceedings which
preceded and followed the execution of certain agreements with Rhode Island, con-
ducing to show the obligatory and conclusive effect of those agreements upon both
states, as an accord and compromise of a disputed right, proceeded to aver that
Massachusetts had occupied and exercised jurisdiction and sovereignty, according to
the agreement, to this present time; and then sets up as a defence, that the state of
Massachusetts had occupied and exercised jurisdiction over the territory from that
time up to the present. The defendants then plead the agreements of 1710 and
1718, and unmolested possession from that time, in bar to the whole bill of the com-
plainant. The Court held, that this plea is twofold: 1. An accord and compromise
of a disputed right. 2. Prescription, or an unmolested possession from the time of
the agreement. These two defences are entirely distinct and separated; and depend
upon different principles. Here are two defences in the same plea, contrary to the
established rules of pleading. The accord and compromise, and the title by pre-
scription, united in this plea, render it multifarious; and it ought to be overruled on
this account. Ibid.
CASES CERTIFIED FROM THE CIRCUIT COURT TO THE SUPREME
COURT.
1. Action in the District Court of the United States for the Southern District of New York,
by the United States against the defendant, for a penalty under the act of 1838, "to
provide for the better security of the lives of passengers on board of vessels propelled
in whole or in part by steam." A verdict was rendered for the United States, and
without a judgment on the verdict, the case was, by consent, removed to the Circuit
Court of the United States. In the Circuit Court certain questions were presented
on the argument, and a statement was made of those questions, and they were cer-
tified, pro forma, at the request of the counsel for the parties, to the Supreme Court,
for their decision. No difference of opinion was actually expressed by the judges
of the Circuit Court. By the Court: "The judgment or other proceedings on the
verdict ought to have been entered in the District Court; and it was altogether irre-
gular to transfer the proceedings in that condition to the Circuit Court." The case
was remanded to the Circuit Court. The United States vs. Samuel B. Stone, 524.
2. In some cases, where the point arising is one of importance, the judges of the Circuit
Court have sometimes, by consent, certified the point to the Supreme Court, as upon
a division of opinion; when in truth they both rather seriously doubted, than dif-
fered about it. Those must be cases sanctioned by the judgment of one of the
judges of the Supreme Court, in his Circuit. Ibid.
CASES CITED, AND AFFIRMED.
1. Boyle vs. Zacharie and Turner, 6 Peters, 648.
2. Eliason vs. Henshaw, 4 Wheat. 225. Carr vs. Duval et al. 77.
3. Fairfax vs. Hunter, 7 Cranch, 61. Runyan vs.
4. The Bank of Augusta vs. Earle, 13 Peters, 584.
CASES CITED, AND AFFIRMED.
5. The case of Foster and Elam vs. Neilson, 2 Peters, 254; and Garcia vs. Lee,
12 Peters, 511, which cases decide against the validity of the grants made by the
Spanish government, in the territory lying west of the Perdido river, and east of the
Mississippi river, after the Louisiana treaty of 1803, cited and affirmed. Keene vs.
Whittaker, 172.
6. The principles decided in the case of Sprigg vs. The Bank of Mount Pleasant, re-
ported in 10 Peters, 257, examined and affirmed. Sprigg vs. The Bank of Mount
Pleasant, 201.
7. Hunt vs. Rousmanier, 8 Wheat. 211. Ibid.
8. The State of Rhode Island vs. Connecticut, 12 Peters, 735. The State of Rhode
Island vs. The State of Massachusetts, 210.
9. Wayman vs. Southard, I Wheat. 10. The United States vs. Knight, 301.
10. Beers vs. Houghton, 9 Peters, 332. Ibid.
11. The cases of Owings vs. Hull, 9 Peters, 624. Percheman's case, 7 Peters, 51. The
United States vs. Delespine, 12 Peters, 655, cited. The United States vs. Eliza-
beth Wiggins, 334.
12. Kelly vs. Jackson, 6 Peters, 632. Ibid.
13. Arredondo's case, 6 Peters, 691. Ibid.
14. Kendall, Postmaster-general, vs. The United States, on the relation of Stockton and
States, 12 Peters, 527. 610. 614. Decatur vs. Paulding, 497.
15. The cases of M'Culloch vs. The State of Maryland, 4 Wheat. 422; and The Ame-
rican Insurance Company vs. Canter, 1 Peters, 542, cited. The United States vs.
Gratiot et al. 526.
CHANCERY AND CHANCERY PRACTICE.
1. A decree for a specific performance of a contract to sell lands, refused, because a
definite and certain contract was not made; and because the party who claimed the
performance had failed to make it definite and certain on his part, by neglecting to
communicate by the return of the mail conveying to him the proposition of the
vendor, his acceptance of the terms offered. Carr vs. Duval et al. 77.
2. If it be doubtful whether agreement has been concluded, or is a mere negotiation,
Chancery will not decree a specific performance. Ibid.
4. A bill for an injunction was filed, alleging that the parties who had obtained a judg-
ment at law for the amount of a bill of exchange, of which the complainant was
endorser, had before the suit was instituted, obtained payment of the bill from a
subsequent endorser, out of funds of the drawers of the bill obtained by the subse-
quent endorser, from one of the drawers. It was held, that it was not necessary to
make the subsequent endorser, who was alleged to have made the payment, a party
to the injunction bill. Atkins vs. Dick and Company, 114.
5. By a rule of the Supreme Court, the practice of the English Courts of Chancery is
the practice in the Courts of Equity of the United States. In England the party
who puts in a plea, which is the subject of discussion, has the right to begin and
conclude the argument. The same rule should prevail in the Courts of the United
States, in Chancery cases. The State of Rhode Island vs. The State of Massa-
chusetts, 210.
6. In a case in which two sovereign states of the United States are litigating a question
of boundary between them, in the Supreme Court of the United States, the Court
have decided, that the rules and practice of the Court of Chancery should substan-
tially govern in conducting the suit to a final issue. 12 Peters, 735-739. The
Court, on re-examining the subject, are fully satisfied with the decision. Ibid.
7. In a controversy where two sovereign states are contesting the boundary between
them, it is the duty of the Court to mould the rules of Chancery practice and plead-
ing in such a manner as to bring the case to a final hearing on its merits. It is too
important in its character and the interests concerned too great, to be decided upon
the mere technical principles of Chancery pleading. Ibid.
8. In ordinary cases between individuals, the Court of Chancery has always exercised
an equitable discretion in relation to its rules of pleading, whenever it has been found
necessary to do so for the purposes of justice. In a case in which two sovereign
states are contesting a question of boundary, the most liberal principles of practice
and pleading ought, unquestionably, to be adopted, in order to enable both parties
to present their respective claims in their full strength. If a plea put in by the de-
fendant may in any degree embarrass the complainant in bringing out the proofs of
his claim, on which he relies; the case ought not to be disposed of on such an issue.
VOL. XIV.-3 H
CHANCERY AND CHANCERY PRACTICE.
Undoubtedly, the defendant must have the full benefit of the defence which the plea
discloses, but, at the same time, the proceedings ought to be so ordered as to give
the complainant a full hearing on the whole of his case. Ibid.
9. According to the rules of pleading in the Chancery Courts, if the plea is unex-
ceptionable in its form and character, the complainant must either set it down for
argument, or he must reply to it, and put in issue the facts relied on in the plea.
If he elects to proceed in the manner first mentioned, and sets down the plea for
argument, he then admits the truth of all the facts stated in the plea, and merely
denies their sufficiency in point of law to prevent the recovery. If, on the other
hand, he replies to the plea, and denies the truth of the facts therein stated, he
admits that if the particular facts stated in the plea are true, they are then sufficient
in law to bar his recovery; and if they are proved to be true, the bill must be dis-
missed, without a reference to the equity arising from any other facts stated in the
bill. Ibid.
10 If a plea upon argument is ruled to be sufficient in law to bar the recovery of the
complainant, the Court of Chancery would, according to its uniform practice, allow
him to amend, and put in issue, by a proper replication, the truth of the facts stated
in the plea. But in either case the controversy would turn altogether upon the
facts stated in the plea, if the plea is permitted to stand. It is the strict and tech-
nical character of those rules of pleading, and the danger of injustice often arising
from them, which has given rise to the equitable discretion always exercised by the
Courts of Chancery in relation to pleas. In many cases, when they are not over-
ruled, the Court will not permit them to have the full effect of a plea; and will, in
some cases, leave to the defendant the benefit of it at the hearing: and, in others,
will order it to stand for an answer, as, in the judgment of the Court, may best
subserve the purposes of justice. Ibid.
11 The state of Rhode Island, in a bill against the state of Massachusetts, for the settle-
ment of the boundary between the states, had set forth certain facts on which she
relied in support of her claim for the decision of the Supreme Court, that the
boundary claimed by the state of Massachusetts was not the true line of division
between the states, according to their respecting charters. To this bill, the state of
Massachusetts put in a plea and answer, which the counsel for the state of Rhode
Island deemed to be insufficient. On a question, whether the plea and answer
were insufficient, the Court held; that as, if the Court proceeded to decide the case
upon the plea, it must assume without any proof on either side, that the facts stated
in the plea are correctly stated, and incorrectly set forth in the bill, then it would
be deciding the case upon such an issue as would strike out the very gist of the
complainant's case, and exclude the facts upon which the whole equity is founded,
if the complainant has any. Ibid.
12. It is a general rule, that a plea ought not to contain more defences than one. Various
facts can never be pleaded in one plea; unless they are all conducive to the single
point on which the defendant means to rest his defence. Ibid.
CHARGE BY THE COURT TO THE JURY.
The grantor in the deed was David Carrick Buchanan; and he declares in it that he
is the same person who was formerly David Buchanan. The Circuit Court were
required to charge the jury, that it was necessary to convince the jury, by proofs in
Court, that David Carrick Buchanan is the same person as the grantor named in
the patent, David Buchanan; and that the statement by the grantor was no proof
to establish the fact. The Circuit Court instructed the jury that they must be
satisfied from the deed and other documents, and the circumstances of the case,
that the grantor in the deed is the same person to whom the patent was issued;
and they declared their opinion that such was the fact. By the Court: The prin-
ciple is well established, that a Court may give their opinion on the evidence to the
jury, being careful to distinguish between matters of law and matters of opinion,
in regard to the fact. When a matter of law is given by the Court to the jury, it
should be considered by the Court as conclusive; but a mere matter of opinion as
to the facts, will only have such an influence on the jury as they may think it en-
titled to. Games et al. vs. The Lessee of Dunn, 322.
THE CHESAPEAKE AND OHIO CANAL COMPANY.
The legislatures of Virginia and Maryland authorized the surrender of the charter
granted by those states to the Potomac Company to be made to the Chesapeake and
Ohio Canal Company, the stockholders of the Potomac Company assenting to the
same. A provision was made in the acts authorizing the surrender, for the pay-
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