1. An action for goods sold and delivered cannot be maintained by him who received a note as conditional payment therefor, and has passed away that note. Harris v. Johnston, 311 2. If part of the goods were the sole property of D., and the residue the sole property of I., and if I. had authority from D. to sell D's part, I. may maintain an action for the whole in his own name. Id. Ib. 3. An action for money had and received will not lie for the United States against the assignees of a bankrupt, for the price of a ship sold by them as the property of the bankrupt who had taken a false oath to obtain a register; the ship not having been seized by the United States for the forfeiture before the sale and transfer. 337 United States v. Grundy & Thornburgh, 4. Quare, whether an action for money had and received will lie to establish a forfeiture for an act committed by a third person? Id. Ib. under the law of Virginia. Buddicum v. Kirk, 293 2. An attorney at law may agree to receive or waive notice, and cannot afterwards allege the want of it. Id. Ib. BANKRUPT. 3. See Collector, 2. 2. In Virginia, if the first ca. sa. be returned non est, the second may include the costs of issuing both. Peyton v. Brooke, 92 3. Costs will be allowed on the dismissal of a writ of error for want of jurisdiction, if the original defendant be also defendant in error. Winchester v. Jackson, 4. If errors are not assigned, according to the 515 rule of court, the writ of error may be dismissed with costs. General Rule, 239 5. If the plaintiff in error does not appear, the defendant inay have the writ of error dismissed with costs. Montalet v. Murray, COURT. 249 DISTRICT OF COLUMBIA. District of Columbia. United States v. More, 1. No appeal or writ of error, in a criminal case, lies from the judgment of the circuit court of the 159 2. Quare, whether the act of Congress, abolishing the fees of justices of the peace, in the District of commission when that act was passed? Id. Columbia, can affect those justices who were in Ib. 3. The plaintiff in error must file a transcript of the record with the clerk of the Supreme Court of the United States, within the first six days of the term. General Rule, 4. An executor cannot maintain a suit in the District of Columbia, upon letters testamentary grant 1. The court has the exclusive power to decide ed in a foreign country. whether a written contract be usurious. Levy v. Gadsby, 2. The court, upon a jury trial, is bound to give 181 an opinion if required, upon any point relevant to the issue. Douglass v. M'Allister, COURT MARTIAL. 298 1. The court martial of the District of Columbia has not exclusive cognizance of the question who are subject to militia duty, and its sentence is not conclusive upon that point. Wise v. Withers, 331 2. The court martial who impose a fine upon a man, not liable to militia duty, are equally trespassers with the officer who distrains for such fine. Id. DAMAGES. Ib. In estimating damages for breach of a contract to deliver flour, the jury are to ascertain the value of the flour on the day when the cause of action arose. Douglass v. M'Allister, 298 reject the evidence offered upon the special plea, it may be admitted upon the general issue. 1. If usury be specially pleaded, and the court 180 Levy v. Gadsby, 2. The court has the exclusive power to decide whether a written contract be evidence of usury. Id. 3. A report of surveyors that a vessel is unsound, lb. is not evidence that she was not seaworthy when she commenced the voyage. 187 Marine Ins. Co. v. Wilson, to the commencement of the voyage, is conclusive 4. Quare, whether such report, even if it related evidence? ld. Ib. competent witness if his testimony does not tend 5. The assignee of a pre-emption warrant is a to support the title of the party producing him. Wilson v. Speed, 283 If a false oath be taken to procure a register for United States v. Grundy et al., FREIGHT. 337 1 1. If the transcript be not filed by the 6th day of 2. If judgment below be 30 days before the sitting 3. In all cases from the District of Columbia, the JUDGE. See Court, 2. 503 1. The want of proper parties is not a good plea 4. All the rights to a testator's personal property are to be regulated by the laws of the country where he lived; but suits for those rights must be governed by the laws of that country in which the tribunal is placed. Dixon v. Ramsay, 319 insolvency, or bankruptcy; or being unable to pay all his debts, he has made a voluntary assignment of all his property, or having absconded, &c., his property has been attached by process of law. United States v. Hooe, LIMITATIONS. 73 against a creditor residing out of the state, if he 5. If the court has not jurisdiction, the officer ex-factor within the 13th section of the act of limitaecuting its process is a trespasser. 3. An agent for collecting debts merely, is not a tions of Virginia. Id. 331 lb. Wise v. Withers, JURY. KENTUCKY. LANDS. 331 1. Under the act of Pennsylvania of 3d April, 1792, for the sale of the vacant lands, &c., the grantee, by a warrant, of a tract of land lying north and west of the rivers Ohio and Alleghany, and Conewango creek, who by force of arms of the enemies of the United States was prevented from settling and improving the said land for the space of two years from the date of his warrant, but during that time persisted in his endeavors to make such settlement and improvement, is excused from making such settlement as is described in the 9th section of the act, and the warrant vests in such grantee a fee-simple. LEGACY. See Justices of Peace, 2. Court Martial, 1, 2. MISTAKE. by himself, by mistake, is bound, in equity, to 1. He who sells property on a description given make good that description. M Ferran v. Taylor, 270 perfectly immaterial by both parties at the time of 2. Quære, if the mistake be of a matter deemed the contract, and which would not have varied the bargain if it had been known, and of which both parties were equally ignorant, whether a court of equity ought to interfere? M'Ferran v. Taylor, MORTGAGE. 270 1. A mortgage of part of the property, of a collector of the revenue to his surety in his official bond, to indemnify him from his responsibility as surety on the bond, and also to secure him from although it turns out that the collector was unhis existing and future indorsements for the mortable to pay all his debts at the time the mortgage gageor at bank, is valid against the United States, was given, and although the mortgagee knew, at the time of taking the mortgage, that the mortgageor was largely indebted to the United States. United States v. Hooe, If a testator declares that a certain legacy shall abate, if the personal and real estate of which he shall die seized and possessed shall not be sufficient to pay all his debts and legacies, and if the estate if he seizes a vessel on the high seas, without probThe commander of a United States ship of war. be more than sufficient at the time of the testa-able cause, is liable to make restitution in value, tor's death, but afterwards become insufficient by means of the bankruptcy of the executor, such legacy shall abate for the benefit of the other legacies. Silsby v. Young, 249 1. A vessel belonging to citizens of the United States in the year 1799, driven by distress into a French port and obliged to land her cargo in order to make repairs, and prevented by the officers of the French government from relading her original cargo, and from taking away, in exchange, any thing but produce or bills, might lawfully purchase and take away such produce, and such voyage was not illegal, so as to avoid the insurance. Hallett v. Jenks, 210 disability upon vessels of the United States bona 2. The act of June 13th, 1798, did not impose any fide sold to foreigners residing out of the United States during the existence of that act. Sands v. Knox, NOTICE. 499 9. An assignment of debts cannot be pleaded as an accord and satisfaction to debt on bond. Id. mb. 10. Quere, whether a deputy marshal can plead in abatement that the capias was not served on him PRACTICE. 1. Notice of the time and place of taking a deposi- by a disinterested person? Knox v. Summers, 496 tion given to the attorney at law, is not sufficient under the law of Virginia. Buddicum v. Kirk, 293 2. An attorney at law may agree to receive, or to waive notice, and shall not afterwards be permitted to allege want of it. Id. lb. 3. If notice be given that a deposition will be taken on a certain day, and if not finished on that day, that the commissioners will adjourn from day to day until it be finished, and the commissioners adjourn over several intermediate days, such deposition is not taken agreeably to notice. Id. Ib. OFFICER. 1. See Appeal, 1, 2, 3. Costs, 1, 2, 3, 4, 5. 2. If statements of the case are not furnished ac cording to the rule of the court on that subject, 93 4. If usury be specially pleaded, and the court reject the evidence offered upon such a special plea, it may be admitted upon the general issue, See Justice of Peace, 2. Navy, 1. Court Martial, 2. notwithstanding it has been refused upon the spe Trespass, 1. cial plea. Levy v. Gadsby, 180 |