fines, penalties and forfeitures accruing to the govern- U. STATES

ment.

This fubject will perhaps receive fome elucidation from a review of the two acts of congress relative to the diftrict of Columbia.

The first fection of the first act, declaring that the laws of the two states respectively should remain in force in the parts of the territory ceded by each, was perhaps only declaratory of a principle which would have been in full operation without fuch declaration; yet it manifefts very clearly an intention in congrefs not to take up the fubject of a review of the laws of the district at that time, but to leave things as they then were, only adapting the exifting laws to the new fituation of the people.

Every remaining section of the act to the 16th, is employed on fubjects where the mere change of government required the intervention of the general legislature.

The fixteenth fection continues ftill to manifest a folicitude for the preservation of the exifting state of things, fo far as was compatible with the change of government, by declaring that nothing contained in the act fhould be conftrued to affect rights granted by or derived from the acts of incorporation of Alexandria and Georgetown, or of any body politic or corporate within the faid diftrict, except fo far as relates to their judicial powers.

This act had given to the circuit court, which it established, cognizance of all crimes committed in the district, and of all penalties and forfeitures accruing under the laws of the United States.

It was foon perceived that the criminal jurisdiction of the court could not be exercised in one part of the diftrict, because by the laws of Virginia, perfons guilty of any offence, less than murder in the first degree, were only punishable in the penitentiary houfe, erected in the city of Richmond, which punishment the court of Columbia could not inflict.

v.

SIMMS.

U. STATES

v.

SIMMS.

It was also perceived that fome embarrassment would arife refpecting the ftyle in which fuits, theretofore directed to be brought in the names of Maryland and Virginia, fhould thenceforth be profecuted. The refpective laws authorizing them, and which were confidered as having been re-enacted by congrefs, totidem verbis, directed fuch fuits to be profecuted in the names of Maryland and Virginia, refpectively. The continuance of this ftyle in the courts of the United States was glaringly improper, and it was thought neceffary to change it by exprefs provifion. These objects rendered the supplemental act neceffary, which provides, that the criminal law of Virginia, as it exifted before the establishment of a penitentiary fyftem, fhould continue in force, and that all indictments fhall run in the name of the United States; and all fines, penalties, and forfeitures, accruing under the laws of the states of Maryland and Virginia, shall be recovered with cofts, &c.

The refidue of this supplemental act changes nothing, and only fupplies provifions, required by the revolution in government, and which had been omitted in the original act.

This view of the two acts would furnish ftrong reasons for fuppofing the object of congrefs to have been, not to change, in any respect, the exifting laws, further than the new fituation of the diftrict rendered indifpenfibly neceffary; and that the fines, penalties, and forfeitures alluded to in the act, are those only which accrued by law, in the whole or in part, to government; and for the recovery of which the remedy was by indictment or information, in the name of the state in which the court fat, or by a qui tam action in which the name of the state was to be used. It can not be prefumed that congrefs could have intended to use the words in the unlimited sense contended for.

By the laws of Virginia, an officer is liable to a heavy fine for not returning an execution which came to his hands to be ferved, or for retaining in his hands money levied on fuch execution. This goes to the party injured, and on his motion the judgment for the fine is to be rendered. It would be going a great way to construe this act

v.

of congrefs as making such a fine recoverable for the ufe U. STATES of the United States; and yet, this would be the confequence of conftruing it to extend to fines and penalties accruing by law, not to government, but to individuals.

If a penalty recoverable by any individual, by action of debt, was to be confidered as defigned to be embraced by the second section of the supplemental act, ftill an action of debt in the name of the United States and of the informer, would feem to be the remedy given by the act.

The principle, reddenda fingula fingulis, would be applicable; and it would feem to the court more proper to fuppofe the qui tam action, given in this case, to be the remedy, than an indictment.

The court therefore is of opinion that there is no error in the judgment, and that it be affirmed.*

SIMMS.

FENWICK v. SEARS'S ADMINISTRATORS.

FENWICK

v.

SEARS'S

ADMINRS.

ERROR from the judgment of the circuit court An adminiftra

letters of ad

of the diftrict of Columbia, fitting at Washington, in tor, having had an action on the cafe on a foreign bill of exchange, by miniftration in the administrators of the indorsee against the indorfer.

Maryland before the fepara

The cafe, as it appears in the pleadings and bills of tion of the difexceptions, was as follows:

trict of Columbia from the original states,

Francis Lewis Taney, at Paris, in France, drew the can not, after following bill of exchange: "Paris, 5th Auguft, 1797, maintain an acthat feparation, "Sixty days after fight of this my fecond of exchange, tion in that part (firft and third not paid) pay to the order of Mr. Jo- of the district ceded by Maryland, by vir

tue of those letters of adminiftration; The court there but must take

The defendant's counsel prayed that the affirmance might be with cofls. It was fuggeted by fome of the gentlemen of the bar, that the queftion of giving cofts against the United States would be fully argued in the cafe of the United States v. Hooe, at this term fore poftponed the subject till that argument should be had. That cause however went off upon another ground without any argument on the within the difqueftion of cofts. And the court did not give any directions refpecting trict. the cofts in the prefent cafe.

out new letters

FENWICK

v.

SEARS'S ADMINRS.

Quere, whether

miffioned and

"feph Fenwick the fum of three hundred and fifty dol❝lars, for value received in account, which charge as "advised by your most obedient servt Fras. Lew. Taney." "To Mefirs. Bef. Stoddert and John Mafon, George"town, Maryland."

the acts of a notary public who This bill was indorsed by Fenwick to George Sears, of certifies himself Baltimore, and on the 30th of March, 1798, it was preto be duly com- fented for acceptance, refused, and protested in the fworn, are va- ufual form for non-acceptance, by Samuel Hanfon of SaJid, if he be muel, ftiling himself notary public for the county of duly appointed, Montgomery in the ftate of Maryland, dwelling in fworn in due George-town, in faid county, duly commissioned and fworn.

but not actually

form?

Whether, be

On the 2d of June, 1798, payment of the bill was detween contend- manded of the drawees by the fame notary, and refused, ing parties, the certificate of a whereupon, on the fame day he protested it in the usual notary public, "form for non-payment. Fenwick, the indorfer, was at that he is "duly the time of indorfing, and had been for ten years before, " and fworn," a refident of France, but in the year 1800 he came to this can be contra- country, and on the 4th of April, 1801, the plaintiffs below brought fuit against him here upon his indorsement. Whether a pro- The declaration had two counts, one upon the non-acceptance of the bill, the other for had and received.

"commiffioned

dicted?

teft for non

payment of a bill of exchange must be made on the last day of grace? Whether the reasonableness of notice be

matter of fact, or matter of Jaw?

Whether, on a count for mo

money

The defendant below pleaded,

ift. Non-affumpsit.

2d. That the plaintiffs" have not obtained letters of "administration on all and fingular the goods and chat"tels, rights and credits, which were of the said George, "at the time of his decease, to wit, at Washington counney had and re- "ty aforefaid, and this he is ready to verify, wherefore ceived, notice "he prays judgment," &c. to which the plaintiffs replied, of non-accept-❝ that the faid George Sears, the inteftate, departed this "life, in the town of Baltimore, in the county of Bal"timore, in the state of Maryland, which was at that "time his place of refidence, on the

ance, and of non-payment be neceffary to charge an indorfer who knew, at the time of indorfement, that

the drawer had no right to draw.

day of "in the year of our Lord 1800, inteftate; and after"wards, to wit, on the 8th day of November, in the year aforefaid, adminiftration of all and fingular the goods and chattels, rights and credits of the faid intef"tate, was granted to the faid John Stricker and Henry

"

v.

SEARS'S

ADMINRS.

"Payfon, in due form of law, by William Buchanan, FENWICK "register of wills for Baltimore county aforefaid; an "exemplification of the letters of administration granted "to the faid Stricker and Henry Payfon as aforefaid, duly "authenticated, is now here to the court produced; and "this they are ready to verify; wherefore, they pray "judgment," &c. To this replication there was a gene"ral demurrer and joinder; which demurrer was over" ruled by the court below.*

On the trial of the iffue in fact, five bills of exceptions were taken by the defendant's counsel.

The first stated that the defendant objected to the second bill of the set of exchange, going in evidence to the jury, unless the plaintiff firft offered evidence to account for the firft and third of exchange, and to fhew that they or either of them were not paid or passed in the course of business to some other person who ftill holds the fame, but the court over-ruled the objection, and suffered the fecond bill to be read.

The second bill of exceptions ftated that the defendant objected to the admiffion of the two protefts in evidence, because, as he alleged, Samuel Hanfon of Samuel, was not a notary public on the 30th of March, 1798, or on the 2d of June, 1798, and to prove this the defendant offered to give evidence to prove that the faid Hanson, previous to the 30th of March, 1798, had been named and appointed by the governor of the state of Maryland, by and with the advice and confent of the council of Maryland, a notary public, but that he never did take the oath or oaths prescribed for a notary public to take, until after the 3d day of June, 1798, but the court were of opinion that the evidence fo offered to prove that the faid Hanson was not a notary public, was not admissible for that purpose, and refused to let the faid evidence be given; and the protests were permitted to be read to the jury.

3d. That the defendant's counsel prayed the court to direct the jury that the protest for non-payment is not such

The jurifdiction of the feveral fates of Virginia and Maryland over the territory ceded by them to the United States, for the feat of government, ceased on the first Monday of December, 1800.