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to compensation ; which should be at the rate of pay established for the secretary of the navy.

BERRYMAN v. THE UNITED STATES. Slave trade Distribution of proceeds of captured slaver. By the act of May 10, 1800, vessels employed in the slave trade may be seized by any of the commissioned vessels of the United States, and proceeded against in any District Court, and condemned for the use of the officers and crew of the vessel making the capture, the proceeds to be divided in the proportion directed in the case of prize. In cases of prize, the provision is that if the captured vessel was of equal or superior force to that of the captors, the whole proceeds go to the latter, but if inferior, shall be equally divided between the United States and the captors. By the act of March 3, 1849, all prize money arising from captures made by vessels of the navy is to be paid by the marshal into the treasury of the United States, and such parts as belong to the officers and crew of the vessels of the navy shall be paid to them under the direction of the secretary of the navy.

The petitioners were the officers and crew of a public armed vessel, which captured a slaver in 1848. The captured vessel was brought into New York, and proceeded against in that district, and condemned in July, 1849, and sold. It would seem that the marshal did not pay the proceeds into the treasury. In 1851, upon the application to the District Court by the present petitioners, for a decree of distribution, the case was referred to a commissioner to report the sum remaining for distribution, the persons entitled as distributees, and the sum due to each. The commissioner reported the sum to be distributed as $20,664.69; that in his opinion the United States were entitled to one half thereof, because the vessel captured was of inferior force to that of the petitioners ; that the fund must be considered as in the treasury, and would undoubtedly be paid out, by the proper authority, in accordance with the decree of distribution. The report also found the sum due to each distributee. The court confirmed the report, and ordered distribution accordingly, and the decree has never been reversed.

Held, that the decree of the District Court is final and conclusive as to all matters within the jurisdiction of that court, namely, the condemnation of the vessel; the amount of the fund ; and that it was to be considered as paid into the treasury. But that the distribution among the petitioners was by the statute left with the secretary of the navy, and the decree upon that subject was not binding. A bill was reported to pay the sum of $20,664.69 out of the treasury, to be distributed among the officers and crew of the capturing vessel, in such proportions as shall be designated by the secretary of the navy.

Notes of Cases in Vermont.

Franklin County. Supreme Court. January Term, 1857.

Hunt ADMR. v. PAYNE.

Administrator.

The administrator de bonis non, may recover in debt, or scire facias, upon judgment, in favor of former administrator, as he may sue, as administrator, upon all contracts which, when recovered, will be assets, whether made with the intestate, or with the ad. ministrator as such.

Hunt ADMR. v. PAYNE.

Evidence Condition. This is ejectment for certain lands devised to the defendants upon condition, that they maintain and comfortably support the testator's parents during life. The plaintiff gave no evidence of the non-performance of this condition, except the former recovery of the lands in ejectment in favor of the executor. And no evi. dence was given of the performance of the condition.

Held, that the former recovery must be presumed to have been for non-performance of the condition in the devise, and is sufficient primâ facie, to entitle the administrator to recover. And that after the former recovery, the defendant's estate, at law, was gone, and they could only be restored to it, by a proceeding in equity, in the nature of a bill to redeem.

MORROW v. WILLARD.

Deed - Construction. In the present case, a question was raised in regard to the division line between plaintiff's and defendant's land. Both parties derived title from the same person, who described plaintiff's land, both in the deed to him, and in the exception to the description of defendant's land.

Held, that both descriptions might be taken into consideration, in determining the division line, as part of the same transaction, although not executed at the same time, and having no other con. nection, except as coming from the same person, and intending to

define the same land, they formed a virtual estoppel upon the grantees, so far as they were intended to be identical. But if not susceptible of being made identical, then the deed of earliest date must control that of later date.

STILPHIN v. SMITH.

Railway company - Power to remove passengers.

Railway companies have the power to make and enforce all reasonable regulations in regard to the passengers, and to discriminate between fare paid in the cars, and at the stations, and to remove all persons from their cars, who persist in disregarding such regulations, in any reasonable manner, and proper place, although between stations.

But the place of removing such offenders from the cars, may be defined by statute, and a statutory requirement of existing railways, not to remove any one from the cars, except at a regular station, however much it may embarrass the enforcement of the police of the company, is still binding upon them. And a statute giving railways the power to remove offenders at regular stations, is a virtual prohibition from removing them at other points.

Bull v. Bliss.

Guaranty - Diligence. The defendant being indebted to plaintiff, transferred to him the note of a third party, with the following guaranty, “I warrant this note good and collectable for two years from date.” The defendant left soon after for California, and did not return for three or four years. The maker of the note continued good till near the close of the two years, when he ceased to have any property, by which payment could be enforced. No demand of payment, or notice of non. payment was made, or given to defendant for a long time after the expiration of the two years, and just before the commencement of the present suit.

Held, that the obligation of the guaranty was, that the maker of the note should remain good, and the note be collectable during the whole time of two years. That it was incumbent upon the plaintiff to take measures to enforce the collection during the two years, or show such utter insolvency, as to render all such efforts clearly of no avail.

But that notice of non-payment, or demand of payment of defendant, were only necessary before bringing suit, as a condition of the guaranty, and not as a matter of diligence.

VOL. IX. - NO. XI. - NEW SERIES.

53

BARTON v. BURT.

Recognizance Appeal. This is a suit upon recognizance for an appeal, the condition of which was substantially, that the appellant should prosecute the appeal to effect, and pay all additional costs, and the accruing rents of the premises in question, until final judgment, in case of failure. Judgment was given against the appellant in the Appel. late Court, and exceptions allowed, and the case transferred to the Supreme Court, and execution stayed. This judgment was affirmed in the Supreme Court. The question is whether the conusor is liable for rents while the cause was pending upon exceptions in the Supreme Court.

Held, that the judgment in the Appellate Court is not to be regarded as final, so long as the appellee is not entitled to take execution.

STREET & BURDITT v. Hall.

Conflict of laws Negotiable note, when payment. This is an action for goods sold defendant for the use of one Platt, and which, as between him and the defendant, it was Platt's duty to pay for.

The plaintiffs took Platt's note for the amount of the bill payable at the bank, and gave him a receipt of payment, in such note, describing it. The plaintiffs are merchants in the City of Troy, and the note and receipt were there executed.

Held, that the effect of the receipt must be determined by the law of New York. By that law it does not amount to payment, unless the note was paid at maturity. Nor will it operate as an estoppel upon the plaintiffs, from suing the defendant, as the receipt expresses the mode of payment, and the defendant was bound to know its legal effect, and cannot therefore urge, that it was calculated to impose upon him the belief, that Platt had paid the debt, and thus induced him to relax his efforts to collect it.

Held, also, that such note not being negotiated, and remaining in the power of the party, is no objection to a recovery against defendant, even without surrendering the note.

If the note had been negotiated, it should be surrendered before the party is entitled to execution.

BRAINARD v. CHAMPLAIN TRANSPORTATION COMPANY.

Interest, not recoverable where delay by plaintiffs. This is an action for wood delivered the defendants, in pursuance of a contract to pay as soon as the same should be measured

and certified by defendants' measurer, which was expected to be done the winter following. The plaintiffs had all their other claims for wood delivered defendants, certified and paid at the usual time. But this claim was overlooked for some three years, and when presented, the plaintiffs claimed interest on the amount from the time when it would have been paid, if properly presented, which the defendants declined to pay, paying into court money to the amount of debt and costs. The case turned upon the question of interest.

Held, that there was no delay or default on the part of de. fendants, and that they could not be compelled to pay interest. The delay seems to have been wholly owing to the forgetfulness of plaintiffs.

Haynes v. LASSELL.

Highway, discontinuance of.

Land owners have no such interest in the continuance of a pub. lic town highway, as will entitle them to notice and hearing before the selectmen, upon the question of discontinuing such highway. They have only the same kind of interest in the highway, which the public generally have. It may be greater in degree, but of the same quality. In the laying of a road, the land owners have a private interest, as it deprives them of the use of their land. But they have no such interest in the question of its discontinuance.

WATSON v. JACOBS.

Statute of frauds Debt of another. This is an action by a tailor, for the price of a coat made for some third party. After the coat was made the plaintiff declined to deliver it until the defendant became responsible for the price, and upon defendant promising to pay plaintiff for the coat, the plaintiff suffered the person originally contracting, “ to go out of the country with the coat, released of all liability.”

Held, that this imported that the original debtor was released from his liability, and that the defendant thereby became sole debtor, and that his undertaking was not therefore within the statute of frauds.

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