Bennett v. Butterworth. 11 H.

the value of the four negro slaves in suit, with six and a quarter cents damages."

And the record proceeds to state, that thereupon the plaintiff (Butterworth) by his attorney, in open court, released the said judgment for $1,200; and thereupon the court adjudged that he recover of the defendant the four negroes mentioned in his petition, and the six and a quarter cents assessed by the jury, and his costs.

It does not appear whether any direction to the jury, as to the law of the case, was asked for by either of the parties, or given by the court; we have nothing but the pleadings, confused and loose as they are, and the verdict and the judgment.

Now if any thing is settled in proceedings at law where a jury is impanelled to try the facts, it is, that the verdict must find the matter in issue between the parties, and the judgment of the court must conform to and follow the verdict.

But here the matter in issue was the property in these [* 676] negroes, and the verdict does not find that they are the property of the plaintiff or the defendant, but finds for the plaintiff their value, which was not in issue. It ought, therefore, to have been set aside upon the motion of either party, as no judgment could lawfully be entered upon it. It was a verdict for a matter different from that which they were impanelled to try.

In the next place, if any judgment could have been rendered on the verdict, it ought to have been a judgment for the money found by the jury. For the trial of facts by a jury would be of very little value, if, upon a verdict for money to a certain amount, the court could infer that the jury intended to find something else, and give a judgment for property instead of money. And lastly, when the plaintiff, in the district court released the $1,200 found by the jury, there was nothing of the verdict remaining, upon which the court could act or give judgment for either party, but the six and a quarter cents damages which the jury found in addition to the value.

The judgment is evidently erroneous, and must be reversed. And as these errors are patent upon the record, they are open to revision here, without any motion in arrest of judgment, or exception taken in the district court.

18 H. 60; 20 H. 427, 523; 21 H. 481; 23 H. 484; 1 B. 809; 1 Wal. 592; 3 Wal. 654;

6 Wal. 134.

INDEX.

ACCORD AND SATISFACTION.

PLEADING, 1. 2.

ACTION.

1. An action at law will not lie in the circuit court of the United States for Louisiana,
to recover a judgment de bonis propriis against an administrator, founded on a debt
of the intestate, and alleging mal-administration, or what would amount, at the com-
mon law, to a devastavit. McGill v. Armour, 11 H. 142....577.

2. A contract to use a patented machine during the continuance of the patent, and to
pay therefor a fixed proportion of the value of fuel saved thereby, will not support
an action until the expiration of the patent. Washington, &c. Steam Packet Co. v.
Sickles, 10 H. 419....440.

AGENT; CONTRACT; EVIDENCE, 8; FERRY, 3; INSOLVENT; Patent, 3; REVENUE
LAWS, 6. 9; SALE.

ADMIRALTY.

Appeal; Courts of the United States, 12.

ADVERSE POSSESSION.

Open and notorious adverse possession is evidence of notice of the title under which
the possession is held, so as to give validity to an unrecorded deed. Landes v. Brant,
10 H. 348....418.

JOINT TENANTS, &C.

AGENT.

An action will not lie against an agent of the Cherokee nation to recover the value of
services rendered in their removal beyond the Mississippi River; he is a public
agent of a people, in many respects to be considered as a nation, and his contracts,
in their behalf, do not bind him personally. Parks v. Ross, 11 H. 362....652.

FACTOR; INSUrance, 2.

ALABAMA.

COURTS OF THE UNITED STATES, 27; Damages, 3.

ANSWER.

An answer, which admits the fact charged in a bill, that land was entered in the name
of the respondent, but alleges it was paid for with the money of a third person, is
not evidence of this last-named fact. Mc Coy v. Rhodes, 11 H. 131....575.

APPEAL.

No appeal lies from a decree of a circuit court on an information for the forfeiture of
a vessel, which has been sold, by order of the court, for the sum of $850, though the
parties agreed on the record its true value exceeded $2,000; for the money in the
registry is the only matter in controversy. Gruner v. United States, 11 H. 163. ...
585.

COURTS OF THE UNITED STATES, 9. 12. 13. 15. 21. 22. 24. 25.

ARKANSAS.

CONSTITUTIONAL LAW, 2-4; PUBLIC LANDS, 3–6.

ASSIGNMENT.

1. Certificates of money due at the treasury of the United States, under the treaty
between the United States and Mexico, (8 Stats. at Large, 526,) bearing the indorse-
ment in blank of the payee, and acquired in good faith, and for valuable considera-
tion, by the defendant, though not on the same footing as negotiable paper by the
law merchant, are property, transferable by such indorsement and delivery, and the
defendant's title is good, as against the plaintiff, who offered no evidence to impeach
it. Baldwin v. Ely, 9 H. 580....273.

2. An assignee in trust for the benefit of creditors is not a purchaser for valuable con-
sideration. Clements v. Berry, 11 H. 398....660.

3. A question as to priority of title to a judgment, one party claiming under an assign.
ment, and the other under an execution sale. Stockton v. Ford, 11 H. 232....609.
COURTS OF THE UNITED STATES, 13; DAMAGES, 3; PATENT, 2. 3. 7.

ASSUMPSIT.
EVIDENCE, 8.

AUDITA QUERELA.
EQUITY, 1. 2.

AVERAGE.

1. If it appeared to the master that his vessel must inevitably be driven on shore, and
intentionally, for the better security of the property and persons engaged in the ad-
venture, he gave her a direction to what he supposed to be, and what proved to be,
a part of the shore where her stranding would be less injurious and hazardous, and
the vessel is totally lost, but the cargo saved, this constitutes a voluntary sacrifice of
the vessel, and amounts to a general average loss. Barnard v. Adams, 10 H. 270
....393.

2. Where the vessel is voluntarily stranded and lost, but the cargo is saved and sent to
the port of destination by another vessel procured by the master, the average is to
be adjusted and the goods valued at that port. Ib.

3. If the officers and crew continue to labor for the joint benefit of the adventure in
saving and reshipping the cargo after the vessel has been sacrificed, their wages and
expenses may be brought into the general average charges. Ib.

4. The owners of a vessel are entitled to charge two and one half per cent. upon the
amount of the general average charges which the disaster has imposed on them the
duty of collecting. 1b.

BALTIMORE AND PORT DEPOSIT RAILROAD.

TAXES, 1.

BANK.

CONSTITUTIONAL LAW, 2-4.

BANKRUPT.

A decree in bankruptcy in the district court of the United States for Louisiana, did
not affect the title of the debtor to land in Texas, which had not then been admitted
into the Union. Oakey v. Bennett, 11 H. 33....540.

BILLS OF EXCHANGE AND PROMISSORY NOTES.

1. If the drawer of a bill puts it in circulation, bearing a forged indorsement of the
name of the payee, and the drawee accepts and pays to a bona fide holder for
value, he cannot recover back the money paid; his acceptance is a conclusive
acknowledgment that he has funds of the drawer, and against him he can charge
the amount of the bill, because the drawer is estopped to deny the verity of the in-
dorsement. Hortsman v. Henshaw, 11 H. 177....590.

2. The bonâ fide indorsee of a negotiable note is not barred from recovering thereon
under the law of Mississippi, by the resale of the property which formed the con-
sideration, by the vendee to the vendor, nor by the redemption of it under a condi-
tional sale, for which the note was the consideration. Brabston v. Gibson, 9 H. 263
....136.

3. Demand on the maker of a note, payable at a bank, need not be averred or proved;
failure to make the demand, and damage therefrom, is matter of defence. Ib.
4. Where the holder of a bill inquired of a person trading at a particular place, if he
knew where an indorser resided, and he replied he resided at that place where he
traded, and it did not appear that the holder had any better means of knowledge, it
was held he had used due diligence to learn the place of abode of such indorser, and
that a notice, put into the post-office, directed to him there, was sufficient. Lambert
v. Ghiselin, 9 H. 552....256.

5. After due diligence has been used, and notice sent accordingly, the holder is not
obliged to give any further notice, though he should afterwards discover that the
notice was directed to a place where the indorser did not reside. Ib.

ASSIGNMENT, 1; DAMAGES, 3; INSOLVENT.

BLOCKADE.

INTERNATIONAL LAW, 2.

BONA FIDE PURCHASER.

EQUITY, 7.
BOND.

1. A collector of the customs cannot exempt himself from a charge by showing that
the money received by him, in payment of duties, was counterfeit. That was to his
risk. United States v. Morgan, 11 H. 154....580.

2. If cancelled treasury notes are stolen from him, he is liable, on his bond, for any ac-
tual damage sustained by the government from their loss, though he used due dili-
gence in their custody. Ib.

PLEADING, 1-3; POST-OFFICE, &c. 3.