received, and a count on the protest for non-payment was inserted in the declaration; the 20 per cent. damages were held recoverable. ib. 6. The holder of a bill is enti- tled to recover at the rate of exchange, at the time of notice of the protest's being given. This is the settled law in New- York. Advantages of the rule of liquidation at the par of ex- change. ib. 7. As the plaintiff in an action on a bill has a right to recover gold or silver, the measure of damages must be the value of the bill, at the time of notice of protest, in gold or silver, and not in a depreciated or fluctu- ating currency. ib.
8. The owner of a vessel sent her from New-York, consign- ed to his correspondent at Ant- werp, with directions that they should despatch her to India, furnishing the master with a letter of credit, entitling him to draw on London for 5,000 pounds. The master was in- structed if he should not have funds to purchase a cargo in India, to "extend his draw- ing." Being in want of funds, he drew, not on the house in London on whom he had drawn the 5,000 pounds, but on the consignees at Antwerp, who had obtained the letter of credit, and to whom the vessel and cargo were to return. Held, that the bills were drawn without authority, and should have been drawn on the house in London. Executors of Clement v. Dickey,
Vide UNITED STATES, 1, 2, 3. WAR.
1. Proceedings by libel were in- stituted upon a seizure of goods, and a bond given for their appraised value on the delivery of the goods to the claimant. Afterwards the li- bel was by amendment changed to an information, and the goods were condemned. On an ap- plication for an attachment against the obligors in the bond, it was held, that although the case was not regularly within the 89th section of the collection law, yet a compli- ance with the stipulations the bond might be enforced by attachment against the oblig gors. United States v. 4 part pieces of Woollen Cloth, 435. And the Court held, that it made no difference that the obligors were only sureties, and had not themselves re- ceived the goods. ib. 3. If the claimant is not a party to the bond, all the obligors are to be deemed principals. ib. 4. The bond was taken in the District Court of New-York, and under the statute dividing the District the proceedings were transferred to the Dis- trict Court of the Northern District, and by a subsequent statute to this Court, where the condemnation took place. The condition of the bond was to pay the appraised value of the goods into the District Court, if they should be con- demned in that Court: Held,
that a condemnation in this Court had the same effect to forfeit the bond. ib. 5. An alteration in the bond, made by one of the clerks of the Custom House, after its execution, for the purpose of rectifying it, but which did not affect its construction, was held to be the act of a stranger, and immaterial, and not to avoid the bond. United States v. Hatch, 336
Vide COVENANTS. DAMAGES. JAIL BONDS. INTEREST. SHE- RIFFS. SHIPS, 9-11. SURE. TIES, 12, 13, 14.
1. The risk of the lender and his right to repayment only on the safe arrival of the vessel, constitute the essential differ- ence between a bottomry and simple loan. The sloop Mary, 671 2. Marine interest is also requi- site to a bottomry loan, but if not expressed in the bond, it will be presumed to have been included with the principal. ib. 3. The jurisdiction of Courts of Admiralty over contracts de- pends principally upon their subject matter; and in cases of bottomry, it is not the abso- lute necessity of the loan that gives the jurisdiction. ib. 4. And the owner as well as the master of a vessel may pledge her by bottomry in a foreign port. ib. 5. The master of a vessel in a foreign port, acting in the cha- racter of agent, is limited in
his power, and can only pledge the vessel in case of necessi- ty; but the owner, having an absolute control over his pro- perty, may pledge her for mo- ney to purchase a cargo, and thereby create an admiralty lien. ib.
6. In November, 1822, the own- er of a vessel in Connecticut, gave a bill of sale of her in the nature of a mortgage, but was suffered to remain in posses- sion and act as absolute owner, and her register and all her papers remained unaltered. In July following, he gave a bottomry bond for money ad- vanced to purchase a cargo for the vessel in the West Indies, without notice to the lender of the mortgage: Held, that upon common law principles, the claim of the lender was to be preferred to that of the mort- gagee. ib.
1. The Court, having full power to issue commissions to take testimony abroad, when sitting as a Court of Common Law, will not entertain any pro- ceedings for such a purpose, on its equity side. Peters v. Prevost, 2. On exceptions to an answer for impertinence and scandal, Courts of Equity give the an- swer a liberal consideration, having regard to the nature of the case as made by the bill. Griswold v. Hill,
390 3. Where a mortgage is given by a debtor to his co-debtor to secure the latter against the
debt of their creditor, Equity considers the mortgagee as a trustee for the creditor; and where a judgment has been recovered, will apply the mort- gaged property in satisfaction of the judgment, or remove the incumbrance, so that it may be subjected to execution. United States v. Sturges, 525 4. The principle which governs such cases is, that the collate- ral security is a trust created for the protection of the debt, and that it is the duty of a Court of Equity to see that it fulfils the purpose for which it was intended. ib. 5. A judgment creditor who ap- plies to a Court of Equity for its aid to enforce a judgment at law, if he asks its aid to reach a chattel, must show that he has taken out execu- tion at law, and pursued it to every available extent, in or- der to show a lien upon the chattel: but if the aid is sought as to land, it is enough to show a judgment creating a lien. upon the land. 6. Although a mortgage be abso- lute upon the face of it, a Court of Equity will inquire into the real purpose for which it was given, and apply it to that use. ib. 7. It is a rule of Equity that a judgment creditor at law is en- titled to redeem an incum- brance upon land, and there- by secure his legal priority. ib. 8. The assignee of a mortgage or other chose in action, takes it subject to the same equity that it was subject to in the
9. And the rule that it is only an equity residing in the original debtor, and not the equities of third persons against the as- signor that have this effect, does not exclude a judgment creditor, claiming to redeem : He stands in the place of the debtor, and has his equity. ib. 10. An assignee who might have obtained notice, and ought to have sought it, stands in no better situation than if he had actually obtained it. 11. A mortgage was given in reality to indemnify the mort- gagee, but purporting to se- cure a sum of money payable in one year, and five years af- terwards it was assigned, the whole sum appearing from the instrument to be unpaid: Held, that the circumstances of the case should have put the as- signee upon an inquiry, from which he would have learnt the true consideration of the mortgage.
ib. 12. An objection to the equity
of the bill, which might have been taken advantage of on demurrer, is not favourably received at the hearing of the cause after answer.
TION, 2-6. 15, 16. PATENTS, 14-17. PRACTICE, 3, 4, 5. PRIORITY OF UNITED STATES.
hands of the assignor. ib. Vide AMENDMENTS, 1-9. Ju-
RISDICTION, 2-6. 11-22. MANDAMUS. PRACTICE, 1-7. REMOVAL OF CAUSES.
Vide JURISDICTION, 15, 16. 19- 22.
Vide DUTIES. FORFEITURES, 14, 15. 17, 18, 19. 24-40. IN-
Vide FORFEITURES, 1, 2. 21- 23.
COMMISSION TO EXAMINE WITNESSES.
1. The King of Great Britain granted a charter of a town in that part of the province of New-Hampshire, which is now Vermont, to be divided among the grantees, and to be held on certain conditions mention- ed in the charter. The de- fendants, who were one of the grantees, were a Society in England incorporated by a charter from the King. A scire facias was issued on be- half of the plaintiffs, requiring the defendants to show cause why a forfeiture of their right
to the lands had not been in- curred,and assigning as grounds of forfeiture a non-perform- ance of the conditions on which the lands were held, and viola- tions of their charter of incor- poration. On demurrer to the scire facias, held, that such vio- lations of their charter of in- corporation could not be thus collaterally drawn in question, but that it should be vacated by some direct proceeding for the purpose. People of Ver- mont v. Society for Propagat- ing the Gospel, 2. Among the conditions of the grant were, that the grantees, their heirs and assigns, should pay rent and cultivate a cer- tain portion of the land: Held, that no reasons of public poli- cy exempted the defendants from the performance of these conditions, and that they were within their letter and spirit. ib.
at the place appointed had CONSTRUCTION OF WRI- been rendered impossible by the separation of the countries, and that the plaintiffs should have averred that they had ap- pointed another place of pay- Iment or an officer to receive the payment, and that notice thereof had been given to the defendants.
Vide BONDS, 1-5. EVIDENCE, 5, 6, 7. UNITED STATES, 8, 9. CONTRACTS.
1. One proposed to the plain- tiffs, in the presence of the defendant, to ship them a quantity of sugars belonging to him, in the defendant's hands, on receiving an authority to draw on the plaintiffs for the amount. It was thereupon agreed, that the shipment should be made, and the au- thority given, on the defend- ant's engaging by letter to ship the sugars. The owner of the sugars accordingly wrote a let- ter, addressed to the defend- ant, desiring him to ship the sugars on board such vessel as the owner might direct, con- signed to the plaintiffs, and next day handed it to him. The defendant wrote "agreed to," under the letter, and signed his name beneath; upon which the authority to draw was given: Held, that the defendant's undertaking was an original part of the en- tire transaction, and that the consideration, moving from the plaintiffs to the owner of the sugars, which was not ex- pressed in the letter, might be proved by parol, as it did not contradict the written agree- ment; and that the underta- king of the defendant required no consideration moving from the plaintiffs to him to support it. Rabaudv. D'Wolf, 580
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