INDEX

OF

PRINCIPAL MATTERS.

ACTION

A note for a pre-existing debt, does not discharge the original cause of action; unless it is agreed that the note shall be taken in payment. United States Bank v. Daniels et al. 32.

APPEAL.

Nature and extent of the powers of an appellate court. Ex parte Sibbald. 488.

APPEARANCE.

1. In the case of the State of Rhode Island v. The Commonwealth of Massachusetts, the Court said, "It has been contended that this Court cannot proceed in this cause without some process and rule of decision prescribed, appropriate to the case, but no question on process can arise on these pleadings: none is now necessary, as the defendant has appeared and plead, which plea in itself makes the first point in the cause, without any additional proceeding; that is, whether the plea shall be allowed, if suffi. cient in law, to bar the complaint, or be overruled, as not being a bar in law, though true in fact." The State of Rhode Island v. The Commonwealth of Massachusetts. 656.

2. Jurisdiction.

3. The state of Massachusetts, after having appeared to process issued against her, at the suit of the state of Rhode Island, on a bill filed for the settlement of boundary, and after having filed an answer and plea to the bill, and having failed in a motion to dismiss the bill for want of jurisdiction; was, on motion of her counsel, allowed to withdraw her appearance. The Commonwealth of Massachusetts ads. The State of Rhode Island. 757.

ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. The debtor may prefer one creditor, pay him fully, and exhaust his whole property; leaving nothing for others equally meritorious. Clarke et al. v. White.

BAIL.

178.

Where bail has been fixed before the discharge of the principal under the insolvent laws, such a discharge will have no effect on the liability of the bail. If the discharge had been before the bail was fixed, it might have been a question whether the bail had been discharged under the rule laid down by the Supreme Court in the case of Beers v. Haughton, 9 Peters, 329. Lyon v. Auchincloss & Co. 239.

BILL OF REVIVOR.

A bill of revivor is not the commencement of a new suit, but is the mere continuance of the old suit. It is upon ground somewhat analogous that the circuit courts are held to have jurisdiction in cases of cross bills and injunction bills, touching suits and judgments already in those courts. Clarke v. Mathewson et al. 164.

BILL OF SALE.

1. Under the laws of Louisiana, and the decisions of the courts of that state, a mark for the name, to an instrument, by a person who is unable to write his name, is of the same effect as a signature of the name. Zacharie and Wife v. Franklin and Wife. 151.

2. A bill of sale of slaves and furniture, reciting that the full consideration for the property transferred had been received, and which does not contain any stipulations or obligations of the party to whom it is given, is not a cynalagmatic contract, under the laws of Louisiana; and the law does not require that such a bill of sale shall have been made in as many originals as there were parties having a direct interest in it, or that it should have been signed by the vendee. Ibid.

BILLS OF EXCHANGE AND PROMISSORY NOTES. 1. A bill of exchange accepted, and endorsed by citizens of Kentucky, and there negotiated, payable at New Orleans, was not, by force of the statute of Kentucky of 1798, subject to the payment of ten per cent. damages. The Bank of the United States v. Daniels. 32. >

1

2. A bill of exchange drawn in one state of the United States, on a person in another state, and payable there, is a foreign bill. Ibid.

3. Where a bill was drawn in Kentucky on a person in Kentucky, and accepted, payable in New Orleans, the acceptor is liable to the contract to the same extent as he would have been if he had accepted the bill in Louisiana. As a foreign bill, the holders were entitled to re-exchange, by commercial usage, when the protest for non-payment was made. Ibid. 4. Giving a note for a pre-existing debt, does not discharge the original cause of action; unless it is agreed that the note shall be taken in payment. Ibid. 5. Evidence. 3,4,5.

6. A party to a note entitled to notice, may waive the notice by a promise to

BILLS OF EXCHANGE AND PROMISSORY NOTES.

see it paid, or an acknowledgment that it must be paid; or a promise that "he will set the matter to rights;" or by a qualified promise, having knowledge of the laches of the holder. Reynolds et al. v. Douglass et al. 497.

BOTTOMRY.

Insurance. 7, 9, 10, 11.

BOUNDARIES OF STATES.

1. The boundary established and fixed by compact between nations becomes conclusive upon all the subjects and citizens thereof, and binds their rights; and is to be treated, to all intents and purposes, as the true real boundary. The construction of such compact is a judicial question. The State of Rhode Island v. The Commonwealth of Massachusetts. 657.

2. There can be but two tribunals under the constitution who can act on the boundaries of states, the legislative or the judicial power; the former is limited, in express terms, to assent or dissent where a compact or agreement is referred to them by the states; and as the latter can be exercised only by this Court when a state is a party, the power is here, or it cannot exist. -Ibid.

3. The Supreme Court exists by a direct grant from the people of their judicial power; it is exercised by their authority, as their agent, selected by themselves, for the purposes specified. The people of the states, as they respectively became parties to the constitution, gave to the judicial power of the United States, jurisdiction over themselves, controversies between states, between citizens of the same or different states, claiming lands under their conflicting grants, within disputed territory. Ibid.

4. No court acts differently in deciding on boundary between states, than on lines between separate tracts of land. If there is uncertainty where the line is; if there is a confusion of boundaries by the nature of interlocking grants, the obliteration of marks, the intermixing of possession under different proprietors, the effects of accident, fraud, or time, or other kindred causes; it is a case appropriate to equity. An issue at law is directed; a commission of boundary awarded: or, if the Court are satisfied without either, they decree what and where the boundary of a farm, a manor, province, or a state is, and shall be. Ibid.

5. There is neither the authority of law or reason for the position, that boundary between nations or states is, in its nature, any more a political question than any other subject on which they may contend. None can be settled without war or treaty which is by political power; but, under the old and new confederacy, they could and can be settled by a court constituted by themselves, as their own substitutes, authorized to do that for states, which states alone could do before. Ibid

6. Supreme Court of the United States.

CHARGE OF THE COURT TO A JURY.

1. The court is not bound to give any hypothetical direction to the jury, and to leave them to find a fact, where no evidence of such fact is offered, nor any evidence from which it can be inferred, M'Neil v. Holbrook. 84.

2. Where the items of an account stated were not disputed, but were admitted,

CHARGE OF THE COURT TO A JURY.

and payment of the same demanded, it was not taking the question of fact, whether the account was a stated account, from the jury, for the court to instruct the jury that the account was a stated account. Toland v. Sprague. 300.

CASES CERTIFIED FROM THE CIRCUIT COURTS OF THE UNITED STATES.

1. Where a case is certified from a circuit court of the United States, the judges of the circuit court having differed in opinion upon questions of law which arose on the trial of the cause; the Supreme Court cannot be called upon to express an opinion on the whole facts of the case, instead of upon particular points of law, growing out of the same. Adams, Cunningham & Co. v. Jones, 207.

2. The intention of congress, in passing the act authorizing a division of opinion of the judges of the circuit courts of the United States to be certified to the Supreme Court was, that a division of the judges of the circuit court, upon a single and material point, in the progress of the cause, should be certified to the Supreme Court for its opinion; and not the whole cause. When a certificate of division brings up the whole cause, it would be, if the Court should decide it, in effect, the exercise of original, rather than appellate jurisdiction. White v. Turk et al. 238.

CASES CITED.

1. The cases of the United States v. The State Bank of North Carolina, 6 Peters, 29; The United States v. Amedy, 11 Wheat. 392; 6 Cond. Rep. 362; The United States v. Fishér, 2 Cranch, 358; 1 Cond. Rep. 421; The United States v. Hooe, 3 Cranch, 73; 2 Cond. Rep. 458; Price v. Bartlett, 8 Cranch, 431; Conrad v. The Atlantic Insurance Company, 1 Peters, 439; Conard v. Nicholl, 4 Peters, 308; Brent v. The Bank of Washington, 10 Peters, 596; Hunter v. The United States, 5 Peters, 173. Beaston v. The Farmers' Bank of Delaware. 102.

2. The cases of Mary Deneale and others, Plaintiffs v. Stump's Executors, 8 Peters, 526; and Owings and others v. Kincannon, 7 Peters, 399. The Trustees of Nicholas Wilson v. The Life and Fire Insurance Company of New York. 140.

3. The cases of Morgan's Heirs v. Morgan, 2 Wheat. 290; 4 Cond. Rep. 320; and Mollan and others v. Torrance, 9 Wheat. 533; 5 Cond. Rep. 666; and Dunn v. Clarke, 8 Peters, 1. Clarke v. Mathewson et al. 165.

4. The United States v. Bailey, 9 Peters, 367. White v. Turk. 238. 5. Dubois Lessee v. Hepburn, 10 Peters, 1, Hepburn v. Dubois' Lessee. 345. 6. The decision of the Court in the case of Foster and Elam v. Neilson, 2 Peters, 254, by which grants made by the crown of Spain, after the treaty of St. Ildefonso, of lands west of the river Perdide, and which were, by the United States, declared to be within the territory of Louisiana, ceded by France to the United States, were declared void: affirmed. Garcia v. Lee. 511.

7. The cases of The State of New York v. The State of New Jersey, 5 Peters, 287; Grayson v. The Commonwealth of Virginia, 3 Dall. 320; 1 Cond. Rep. 141; Chisholm's Executors v. The State of Georgia, 2 Dall. 419; 1