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General Principles.

apply to a case where a note is given for money, not to the firm, but to an individual member of it. Van Ness v. Forrest, 8 Cranch, Rep. 30; 3 Cond. Rep. 14.

34. If two joint owners of merchandise consign to a merchant for sale, and inform him that each owns a moiety; and if they give him separate and variant instructions, each for his own portion; each of the consignees can maintain separate actions against the consignor for a breach of his instructions. Hall v. Leigh et al. 8 Cranch, 50; 3 Cond. Rep. 26.

35. Upon the death of the assignee under the bankrupt laws of the United States, the right of action for a debt due to the bankrupt, vested in the executors of the assignee. Richards v. The Maryland Ins. Co. 8 Cranch, 84; 3 Cond. Rep.

45.

43. A corporation can appear only by attorney, under the authority of the corporation. Osborn v. The Bank of the United States, 9 Wheat. 738.

44. An action was instituted against an infant, for a tort in the conversion of a quantity of flour which had been shipped to him for sale. This should have been an action on the contract, and not being a tort, the plea of infancy was a good plea. Vasse v. Smith, 6 Cranch, 226; 2 Cond. Rep. 353.

45. On a bond payable by instalments, debt cannot be sustained until they shall all become due. Fontaine v. Aresta, 2 M'Lean, 127.

46. But if the payment be secured by a penalty, debt may be brought. Ibid.

47. Where there is no penalty, covenant is the proper action for the instalments on a bond; or assumpsit, if the instalments be due by a simple contract. Ibid.

C. R. 139.

49. The promise to pay is, to either of the promisees. Ibid.

36. A promissory note given by one member of a commercial company to another member, 48. Where a note is given to A, B, C, D, E, F, for the use of the company, will maintain an or G, either of the promisees may sue in his action at law, against the maker, notwithstand-own name. Spaulding v. Evans, 2 M‘Lean, C. ing that both partners were partners in the company, and the money, when received, would belong to the company. If the declaration be upon a joint note, and the defendant plead that the note is the separate note of one of the defendants, and was given to and accepted by the plaintiff, in full satisfaction of the debt, this plea is bad upon general demurrer; because it amounts to the general issue. Van Ness v. Forrest, 8 Cranch, 30; 3 Cond. Rep. 14.

37. If A agree, under seal, to do certain work for B, and does part, but is prevented by B from finishing it, according to the contract, A cannot maintain a quantum meruit against B, but must sue upon the sealed instrument. Young v. Preston, 4 Cranch, 239; 2 Cond. Rep. 98.

38. Whenever a man may have an action on a sealed instrument, he is bound to resort to it. Ibid.

39. A several suit and judgment against one of two joint makers of a promissory note, is no bar to a joint action against both on the same note. Sheehy v. Mandeville, 6 Cranch, 258; 2 Cond. Rep. 362.

40. The whole of a joint note is not merged in a judgment against one of the makers on his individual assumpsit, but the other may be charged in a subsequent joint action, if he pleads severally. Ibid.

41. In an action of debt on a judgment obtained against the defendants, in the Court of Common Pleas of Philadelphia County, one of the defendants pleaded that he had not been served with process, and had not appeared in the suit in which the judgment had been entered. On demurrer to this plea, it appeared from the record of the judgment, that there had been a general appearance by attorney, and that the pleadings had been entered by him for both defendants. The court overruled the demurrer. Field v. Joel Gibbs & Martin Gibbs, Peters' C. C. R. 155.

42. An attorney who enters an appearance in a suit, without authority, is answerable in damages, for the injury he may have thereby occasioned to the parties. Ibid.

50. The acceptance of a bill is evidence that so much money was due by the acceptor to the drawer, under the money counts. Benjamin v. Tillman, 2 M'Lean, C. C. R. 213.

51. If the plaintiff fail to prove the special contract, he may recover on the general counts. Ames v. Le Rue, 2 M‘Lean, 216.

52. If, after verdict and before judgment, the defendant dies, and his administrator becomes a party to the suit, and judgment pass against him and execution thereon, and is returned unsatis fied; on a scire facias against the administrator, he may well plead no assets, or insolvency, for he had no time to plead such plea in the original action. Hatch's Executors v. Eustis, 1 Gall. C. C. R. 160.

53. In an action for a penalty, the declaration described two penal offences, and a verdict was returned for one penalty-Held, that the verdict was good. Smith v. The United States, 1 Gallis.

261.

54. A note for a pre-existing debt does not discharge the original cause of action, unless it be agreed that the note shall be taken in payment. United States' Bank v. Daniels et al., 12 Peters, 32.

55. The defendant in an action in the circuit court had, with others, received the proceeds of a joint and several promissory note discounted for them at the Bank of the Metropolis; and this note was afterwards renewed for them by their attorney, under a power of attorney author. izing him to give a joint note; but he gave a joint and several note, the proceeds of which the attorney received, and appropriated to pay the note already discounted at the bank. The interest of the sum borrowed was paid out of the money of the parties to the note. Held, that although the power of attorney may not have been executed in exact conformity to its terms, and may not have authorized the giving of a joint and several note; a question the court did not decide; yet the receipt of the proceeds

Parties to the Action, and Pleadings in a Writ of Right.

of the rote by the attorney, and the appropria- | sented at the place for payment, and was not tion thereof to the payment of the former note, paid; but the place of payment is a material was sufficient evidence to sustain the money part of the description of the note, and must be counts in the declaration. Moore v. The Bank set out in the declaration. Covington v. Comof the Metropolis, 13 Peters, 302. stock, 14 Peters, 43.

ACTION BY WRIT OF RIGHT.

1. Parties to the action, and pleadings in a writ of right.. . Page 45 2. Evidence in the action ...... 3. Verdict and judgment...

of Right.

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56. A mortgage was executed by D. G., as the agent of the Union Steam Mill Company, conveying to the mortgagee certain lands in Rhode Island, with a woollen mill and other buildings, with the machinery in the mill. D. G. was and had been the general agent of the company, and as such had made all purchases 1. Parties to the Action, and Pleadings in a Writ and sales for the company; and the mortgage was executed by him, with the consent and authority of the persons who, at the time of its execution, were members of the company. The machinery and other movables had been taken in execution by the marshal of Rhode Island, under an execution issued on a judgment obtained after the mortgage against the company. The court held, that although the mortgage was not valid as the deed of the corporation, it was sufficient to convey a title to the mortgagee in the machinery; and that he could maintain an action of replevin for them against the marshal. Anthony v. Butler, 13 Peters, 423.

57. Pennsylvania. A note to be paid "in the office notes of a bank" is not negotiable by the usage or custom of merchants. Not being a promissory note by the law merchant, the statute of Anne, or the kindred acts of assembly of Pennsylvania, it is not negotiable by endorsement; and not being under seal, is not assignable by the act of assembly of Pennsylvania on that subject, relating to bonds. No suit could be brought upon it in the name of the endorser. The legal interest in the instrument continues in the person in whose favour it has been drawn, whatever equity another may have to claim the sum due on the same; and he only can be the party to a suit at law on the instrument. Irvine, for the use of the Lumberman's Bank at Warren, v. Lowry, 14 Peters, 293.

58. The declaration in an action by an executor, for the recovery of money received by the defendant, after the decease of the testator, may be in the name of the plaintiff, as executor, or in his own name, without stating that he is executor. The distinction is, that when an executor sues on a cause of action which occurred in the lifetime of the testator, he must declare in the detinet, that is, in his representative capacity only; but when the cause of action occurs after the death of the testator, if the money when received will be assets, the executor may declare in his representative character, or in his own name. Kane's Adm. v. Paul, Ex. Coursault, 14 Peters, 33.

59. An action was instituted in the circuit court of Mississippi on a promissory note, dated at and payable in New York. The declaration omitted to state the place at which the note was payable, and that a demand of payment had been made at that place. Held, that to maintain an action against the drawer or endorser of a promissory note or bill of exchange, payable at a particular place, it is not necessary to aver in the declaration that the note was due when pre

60. At common law, a writ of right will not lie except against the tenant of the freehold demanded. Green v. Liter, 8 Cranch, 239; 3 Cond. Rep. 97.

61. If there are several tenants, claiming several parcels of land by distinct titles, they cannot lawfully be joined in one writ; and if they are, they may plead in abatement of the writ. Ibid.

62. If the demandant demands against any tenant more land than he holds, he may plead non-tenure to the parcel not holden; but the writ shall abate only as to the parcel whereof non-tenure is pleaded and admitted, or proved. Ibid.

63. At common law, in many instances, if the party demanded more in his writ than he proved to be his right, he lost his action by the falsity of his writ. But under the statute of Kentucky, to amend process in chancery and common law, the party may recover although he prove only part of the claim in his declaration. This statute, however, does not enable the plaintiff to join parties in an action who could not be joined at common law; as, for instance, to join and recover against several tenants, claiming by distinct and separate title. Ibid.

64. At common law, non-tenure, joint tenure, sole tenure, and several tenure, were good pleas in abatement to a writ of right; but they could be pleaded only in abatement; for the tenant, by joining in the mise, or pleading in bar, admitted himself to be tenant of the freehold, and that he had capacity to defend the suit. Ibid.

65. The act of Virginia of 1786, reforming the mode of proceeding in writs of right, did not vary the rights or the legal predicament of the parties as they existed at common law. It did not change the nature and effect of the pleadings; and notwithstanding that act, the tenant shall still have the benefit of the ordinary pleas in abatement. It enabled him to give in evidence any matter under the general issue which would have been good if specially pleaded; but this is confined to matters in bar. Ibid.

66. Under that act, the tenant may, at his election, plead any special matter in bar, or give it in evidence on the mise joined; the act is not compulsive, but cumulative. Ibid.

67. Although tenants, claiming different parcels of land by distinct titles, cannot be joined in a writ of right, yet if they omit to plead in abatement, and join in the mise, it is an admis

Pleadings and Evidence in a Writ of Right.

sion that they are joint tenants of the whole, and the verdict, if for the demandant, for any parcel of the land, may be general, that he hath more mere right to hold the same than the tenant; and if of any parcel for the tenants, that they have more mere right to hold the same than the demandant. Ibid.

68. In a writ of right, where the demandant describes the land by metes and bounds, and counts against the tenants jointly, the tenants, by pleading in bar, admit their joint tenancy, and lose the opportunity of pleading a several tenancy. Liter et al. v. Green, 2 Wheat. 306; 4 Cond. Rep. 129.

69. Where a writ of right is brought against two jointly, the defendants cannot plead in addition to the mise or general issue, that neither the plaintiff nor his ancestor, nor any other under or from whom he derived his title to the premises were ever actually seised or possessed thereof, or of any part thereof. It amounts to the general issue. Ibid.

70. Assuming, that at common law a writ of right patent may be brought against divers tenants who held their lands severally, and that the demandant may count against them generally; this doctrine does not apply to writs of right close, as the writs of right used in the United States are; and if the doctrine did apply, and if the demandant should, in such a case, count against all the tenants jointly, and the tenants should plead to the merits, it would, for all purposes of the suit, be an admission of the joint tenancy. Liter v. Green, 2 Wheat. 306; 4 Cond. Rep. 129.

71. The statutes of Kentucky, requiring that when several tenements are demanded, the contents, situation, and boundaries of each should be inserted in the count, has not affected the rule, and that the statute supposes the several tenements are held by the same tenants. Ibid. 72. The summons in the writ of right patent is a several process against each tenant for the land severally held by him, and in this respect is exactly what the original precept is in the writ of right close. Ibid.

73. A plea in a writ of right that neither the plaintiff nor his ancestor, nor any one under or from whom he derived his title to the premises demanded, was ever actually seised of the land, or any part thereof, is bad, as it amounts to the general issue. Ibid.

74. The allowance of additional pleas, before the mise to be pleaded in a writ of right by the tenant, is a matter of discretion with the court, and cannot, if refused, be assigned for error. Ibid.

2. Evidence in the Action.

75. In order to support a writ of right, it is not necessary to prove an actual entry under title, or actual taking of esplees: a constructive seisin in deed is sufficient. Green v. Liter, 8 Cranch, 239; 3 Cond. Rep. 97.

76. A better subsisting title in a third person, is no defence in a writ of right; that writ brings into controversy only the mere rights of the parties to the suit. lbid.

77. In a writ of right the tenant cannot give

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in evidence the title of a third person, with which he has no privity; unless it be for the purpose of disproving the demandant's seisin. Green v. Watkins, 7 Wheat. 27; 5 Cond. Rep. 218.

78. When the demandant shows no seisin by a pedis possessio, but relies wholly on a constructive actual seisin, in virtue of a patent for the land as vacant land, it is competent for the tenant to disprove that constructive seisin, by showing that the state had previously granted the same land to other persons with whom the tenant claims no privity. Ibid.

79. The mise joined in a writ of right necessarily involves the titles of both parties to the suit, and also a comparison between them; it is consequently the right of each party to give any fact in evidence which defeats the title of the other. Seisin by deed, or by construction of law, is indispensable to enable the demandant to maintain his suit; the tenant may therefore show in his defence that the demandant had no such actual seisin, for the seisin of the tenant, which is admitted by bringing the suit against him, is sufficient for the tenant, until the demandant can show a better title." Ibid.

80. In a writ of right the tenant may, on the mise joined, set up a title out of himself and in a third person. If any thing which fell from the court in the case of Green v. Liter, 8 Cranch, 229, can be supposed to give countenance to the opposite doctrine, it is done away by the expla nation given by the court in Green v. Watkins, 7 Wheat. 31. It is there laid down that the tenant may give in evidence the title in a third person for the purpose of disproving the demandant's seisin: that a writ of right does bring into controversy the mere right of the parties to the suit; and if so, it by consequence authorizes either party to establish by evidence, that the other has no right whatever in the demanded premises; or that his mere right is inferior to that set up against him. Inglis v. The Trustees of the Sailor's Snug Harbour, 3 Peters, 133.

81. It is no objection to a recovery on a writ of right sued against several tenants who join in the mise, that divers of the tenants had no title to certain parcels of the premises described in the writ, but claimed under a third person having the legal title to the same. Such proof could not be given in evidence on such issue, but would be good only on a plea in abatement of non-tenure. Green v. Liter, 2 Wheat. 306; 4 Cond. Rep. 129.

82. Actual seisin or seisin in deed, is, at the common law, necessary to maintain a writ of right. Green v. Liter, 8 Cranch, 229; 3 Cond. Rep. 97.

83. The act of the legislature of Virginia has not dispensed with the necessity to prove actual seisin, in writs of right. Ibid.

84. Actual seisin, or seisin in deed, may be not only an entry under title and perception of esplees; but there may also, by construction of law, be an actual seisin in other cases, which shall be sufficient for all the purposes of the action in legal intendment. Ibid.

85. An entry is not always necessary to give an actual seisin, or seisin in deed, for if the land

Verdict and Judgment in a Writ of Right.—Actions on Statutes.

be in lease for years, courtesy may be without entry on the land, or even receipt of such, and yet courtesy depends on actual seisin. Ibid.

86. Taking of esplees is but evidence of seisin; and a seisin in deed, once established, either by a pedis possessio, or by construction of law, the taking of esplees is a necessary in

ference of law. Ibid.

87. Wherever there exists a union of title and seisin in deed, either by actual entry and livery of seisin, or by intendment of law, there the esplees are knit to the title, so as to enable the party to maintain a writ of right. Ibid.

88. Perception of profits, or, as it is technically called, taking of esplees, is not absolutely necessary to support a writ of right. The taking of esplees is not a traversable averment in a count. Ibid.

89. A conveyance of waste or vacant lands gives a constructive actual seisin to the grantee without actual entry, so as to enable him to maintain a writ of right. Green v. Liter, 8 Cranch, 229; 3 Cond. Rep. 97.

90. In Kentucky, a patent is the completion of the legal title of the parties, and it is the legal title only that can come in controversy in a writ of right. Ibid.

91. A better subsisting adverse title in a third person, is no defence in a writ of right. The writ brings into controversy only the mere rights and titles of the parties to the suit. Ibid.

92. When the demandant in a writ of right has the first patent for the land, and the tenant afterwards obtains a patent for the same land, under which he enters and obtains the first possession, and the demandant afterwards enters and obtains possession under his first grant of the land, not included in the second grant; the demandant has the better legal title; and his seisin presently, by virtue of his patent, gives him the best mere right to the land; and a fortiori, to that not included in the actual close of the second grantee, for the demandant has, by construction of law, the eldest seisin, as well as the eldest patent. Ibid.

93. A copy of a survey of the demanded premises, is proper evidence to the jury in the trial of a writ of right. Green v. Liter, 2 Wheat. 396; 4 Cond. Rep. 129.

94. Where the demandant proved an actual seisin, by a pedis possessio, the tenant cannot be permitted to prove a superior outstanding title, since it does not disprove the demandant's seisin. Green v. Watkins, 7 Wheat. 27; 5 Cond.

Rep. 218.

95. When the demandant relies for proof of seisin solely upon the constructive actual seisin, in virtue of a patent from the state, of vacant lands, the tenant may show that the land had been previously granted by the state; for that divests the title of the state, and disproves the demandant's constructive seisin. Ibid.

96. A writ of right brings into controversy only the titles of the parties to the suit, and is a comparison of those titles; and either party may therefore prove any fact which defeats the title of the other, or shows it never had a legal existence, or has been parted with. Ibid.

3. Verdict and Judgment.

97. Where the jury in a writ of right found "that the demandant hath more mere right to hold the tenements as he hath demanded them, than the tenants or either of them have to hold the respective tenements set forth in their re spective pleas, they beg parcels of the tenements in the count mentioned," it was held that this verdict being certain to a common intent was sufficient. Liter v. Green, 2 Wheat. 306; 4 Cond. Rep. 129.

98. In a writ of right on the mise joined on the mere right, under a count for the entire right, a demandant may recover a less quantity than the entirety. Inglis v. The Trustees of The Sailor's Snug Harbour, 3 Peters, 135.

99. A verdict against several tenants sued jointly, that the demandant hath more mere right to hold the tenement, as he hath demanded, than the tenants, or either of them, have to hold the respective tenements set forth in the respective pleas, they being parcel of the tenement in the count mentioned, is certain to a common intent, and good, the mise having been joined by the tenants severally, as to the tenements held by them as parcel of the demanded residue. Green v. Liter, 2 Wheat. 306; 4 Cond. premises, without assuming any thing as to the Rep. 129.

100. Upon the mise joined, the demandant is entitled to recover in the suit, though the tenants give proof that they claim their several tenements under distinct and several titles; for this is matter pleadable in abatement only. Ibid.

101. Where the tenants are jointly sued, and there is a joint verdict against them in a writ of right on the mise severally joined by them, the judgment should be a joint judgment, as well for costs as for the land. Ibid.

ACTIONS ON STATUTES.

102. An action of debt founded on a statute, is considered as an action founded on a special ty; but it does not follow that the debt is of equal dignity with a debt due by a bond. U.S. | v. Lyman, 1 Mason's C. C. R. 482.

103. An action of debt will lie for a penalty given by a statute, which is uncertain, and dependent on the amount to be assessed by a jury. U. S. v. Colt, 1 Peters' C. C. R. 145.

104. An action of debt lies in favour of the United States to recover the penalty given by the 3d sect. of the embargo act of 9th January, 1808, chap. 112, for being knowingly concerned in a foreign voyage in violation of that act. U.S. v. Allen, 4 Day's Rep. 417.

105. In an action of debt for a penalty on a statute, the declaration must conclude against the form of the statute, or it will be bad on error. Cross v. The U. S. 1 Gallis. C. C. R. 26.

106. In debt for double the value under the 3d sect. of the embargo act of January 9th, 1808, chap. 112, it is not necessary to allege the particular articles which compose the cargo, or that the owner was knowingly concerned in the illegal voyage. Ibid.

107. In debt for a penalty, on an averment

Actions on Statutes.

"whereby and by force of the laws and statutes | of the United States, an action hath accrued," it is not a sufficient averment that the act was done contrary to the form of the statute. Ibid. 108. Where by mistake, fraud, or accident, the tonnage and light duties payable by law are not paid by the owner of the vessel, an action of debt lies on the statute to recover them. The U.S. v. Hathaway, 3 Mason's C. C. R. 324.

109. The statute of the 5th of June, 1794, chap. 226, sect. 3d, prohibiting the fitting out any ship, &c., for the service of any foreign prince or state, to cruise against the subjects, &c., of any foreign prince or state, does not apply to any new government, unless it has been acknowledged by the United States, or by the government of the country to which such state belonged; and a plea which sets up a forfeiture under that act, in fitting out a ship to cruise against such new state, must aver such recognition, or it is bad. Gelston et al. v. Hoyt, 3 Wheat. 246; 4 Cond. Rep. 244.

110. A plea under this statute, need not state the particular state, or prince, by name, against whom the ship was intended to cruise. Ibid.

111. A plea justifying a seizure and detention by virtue of the 7th sect. of that act, under the express instructions of the president of the United States, must aver that the naval or military force of the United States was employed. That section was not intended to apply, except to cases where a seizure or detention could not be enforced by the ordinary civil power, and there was no necessity, in the opinion of the president, to employ naval or military power for this purpose. Ibid.

112. A plea alleging a seizure for a forfeiture, as a justification under a statute, should state not only the facts relied upon to establish the forfeiture, but aver that thereby the property became actually forfeited, and was seized as forfeited. Ibid.

113. In an information on the 3d sect. of the embargo act of 9th January, 1808, in not unloading and giving bonds, the time of receiving notice of the act at the port where the offence was alleged to have been committed, and also the notice to unload, were material, and traversable. The Bolina, 1 Gallis. C. C. R. 75.

114. In such an information it was held not sufficient to allege, that notice was given "to discharge the cargo, or give bond according to the law in such case made and provided;" the nature of the requisition should have been stated, and to whom the notice was given, that the court might judge of its sufficiency. Ibid.

115. If a declaration on a penal statute do not conclude against the form of the statute, it is a fatal omission in error; the allegation, "whereby and by force of such act," is insufficient. Sears v. The U. S. 1 Gallis. C. C. R. 257.

116. In a declaration on a penal statute, it is not necessary to refer to the statute giving the remedy, as well as to that creating the offence and giving the penalty. Ibid.

117. Nor is it necessary, on such declaration, to aver the uses to which the forfeiture is to be applied. Ibid.

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118. A conclusion of a declaration, in an action of debt, for a penalty under a statute, and against the law in such case made and provided, is not a conclusion against the form of the statute, and is bad on error. Smith v. The U. S. 1 Gallis. 261.

119. If two penalties are described in one count, and one penalty only sought, the declaration will be supported after verdict. Ibid.

120. In debt, for double the value of the vessel and cargo, under the third section of the embargo law of 1808, it need not be averred in the declaration, that the vessel and cargo had not been, and could not be, seized for the offence. Ibid.

121. If the declaration for a statute penalty conclude against the form of the statutes, where the suit is on a single statute, it is good in error. Renwick v. The U. S. 1 Gallis. C. C. R. 263.

122. The original writ was sued out in the name of the United States of America, but the verdict was returned, and judgment rendered, for the "United States," and not for the United States of America. This is clearly amendable. Sears v. The U. S. 1 Gallis. C. C. R. 260.

123. A court of error may amend an error apparent upon the face of the record, if there be sufficient to amend by. Ibid.

124. A declaration upon the sixty-sixth section of the collection act of March 2d, 1799, ch. 128, alleging that the goods entered, were not received according to the actual cost of the same, at the place of exportation, with design, &c., is bad in error. The offence created by the section, consists in making an entry on an invoice, below the actual cost of the goods, with design, &c., and it is immaterial how fraudulent the invoice may be, if the entry be made according to the actual cost. Goodwin v. The U. S. 2 Wash. C. C. R. 493.

125. An information for a statute forfeiture should conclude against the form of the statute, or at least refer to some subsisting statute, authorizing the forfeiture. The Nancy, 1 Gallis. C. C. R. 67.

126. A mere conclusion of an information against the form of a statute, will not cure the defect of material averments, to show that a forfeiture has accrued. Ibid.

127. Sufficient matter must be alleged to show that the act done was within the prohibition of the statute. Ibid.

128. It is not sufficient to withdraw a case from the express prohibitions of one section of an act, that already the same offence is punished by a different section. If the wording of both sections clearly embrace the same case, which is to be held nugatory? There is no principle at law which authorizes the rejection of either. The forfeiture must be deemed correlative in such cases, unless the legislature has made some direct exception. The Industry, 1 Gallis. C. C. R. 114.

129. If a suit on a statute be in the name of the United States of America, and the verdict find that the defendant is indebted to the United States, without the words, "of America," it is sufficient. Sears v. The U. S., 1 Gallis. C. C. R. 257; Smith v. The U. S., 1 Gallis. C. C. R. 261.

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