Reports of Cases Argued and Adjudged in the Supreme Court of the United States. February Term, 1816[-January Term, 1827]

whom, or by what authority, or for what purpose or destination, and on whose account were they put on board?

32d Interrogate. What is the whole which you know or believe, according to the best of your knowledge and belief, regarding the real and true property and destination of the ship and cargo, concerning which you are now examined, at the time of the capture?

Form of the Oath to be administered to each witness.

You shall true answer make to all such questions as shall be asked of you on these interrogatories; and therein you shall speak the truth, the whole truth, and nothing but the truth. So help you God. !

BILLS OF EXCHANGE AND
PROMISSORY NOTES.

1. The courts of the United States
have exclusive jurisdiction of all 1. A letter, written within a reasonable

seizures for a breach of the laws
of the United States; and if the
seizure be adjudged wrongful, and
without probable cause, the party
may proceed, at his election, by a
suit at common law, or in the court
of admiralty, for damages for the
illegal act. Slocum v. Mayberry
et al.,

1.10

2. Under the Judiciary Act of the 20th
September, 1789, ch. 20., and the
act of the 3d March, 1803, ch. 93.,
causes of admiralty and maritime
jurisdiction cannot be removed, by
writ of error, from the circuit court
for re-examination in the supreme
court. The appropriate mode of
removing such causes is by appeal.
The San Pedro,

132.137

time before or after the date of a
bill of exchange, describing it in
terms not to be mistaken, and pro-
mising to accept it, is, if shown to
the person who afterwards takes
the bill on the credit of the letter,
a virtual acceptance, binding the
person who makes the promise.
Coolidge et al. v. Payson et al., 66
Review of the English cases on this
subject. Ib.
Law of France as to previous ac-
ceptance. Ib. note a.
4. American decisions on the same
subject. Ib. note a,
5. A demand of payment of a promis-
sory note must be made of the ma-
ker on the last day of grace; and
where the endorser resides in a dif-
ferent place, notice of the default
of the maker should be put into the
post office early enough to be sent
by the mail of the succeeding day.
Lenox et al. v. Roberts,

377

6. An action of debt will lie by the
payee or endorsee of a bill of ex-
change, against the acceptor, where
it is expressed to be for value re-
ceived. Raborg et al. v. Pey-
ton,
385

vised to her, beside the contingent
interest, might have been estima-
ted, at the time of H.'s death, at
10,000 dollars. B. subsequently di-
ed, having made a nuncupative
will, by which she devised all her
estate, "whether vested in her by
the will of her deceased husband
or otherwise," to be divided be-
tween her son and the plaintiff in
the cause, with a contingent devise
of the whole to the survivor. The
son afterwards died, and the plain-
tiff brought his bill to charge the
lands of H. with the payment of
the bond for 5,000 dollars and in-
terest, to which the plaintiff deri-
ved his right under the nuncupa-
tive will of B. By the laws of Ken-
tucky this will did not pass the real
estate of the testator, but was suffi-
cient to pass her personal estate,
including the bond. Held, that the
provision in the will of H. for his
wife, must be taken in satisfaction
of the bond, but subject to her liber-
ty to elect under the will and the
bond, and that this privilege was
extended to her devisee, the plain-
ple
tiff. Hunter et al. v. Bryant, 32

the payment of a sum secured for
separate maintenance, and, there-
fore, interest upon the bond during
the husband's life-time, was not al-

lowed. Ib.

case it was determined that the
bond was chargeable on the resi-
due of the estate, and of this, the
personality first in order. Ib. 41

CHANCERY.

1. H., in contemplation of marriage
with B., gave a bond for 5,000 dol-
lars, and interest, to trustees, to se-
cure to B. a support during the
marriage, and after the death of
H., in case she should survive him,
and to their child or children, in
case he should survive her; with
condition that if H. should, within
the time of his life, or within one
year after the marriage, whichso-
ever of the said terms should first

expire,) convey to the trustees
some good estate, real or personal,
sufficient to secure the annual pay-
ment of 300 dollars, for the sepa-
rate use of his wife during the mar-

riage, and also sufficient to secure

the payment of the said 5,000 dol- 2. Actual maintenance is equivalent to

lars to her use in case she should

survive her husband, to be paid

within six months after his death;
and in case of her death before her

husband, to be paid to their child

or children; or if H. should die 3. Under all the circumstances of the

before B., and by his will should,
within a year from its date, make
such devises and bequests as should
be adequate to these provisions,
then the bond to be void. H. died, 4. It is a universal rule of equity, that

leaving his widow B. and a son,
having, by his last will, devised a
tract of 1,000 acres of land, in the
Mississippi Territory, to his son
in fee; a tract of 10,000 acres in
Kentucky, equally between his wife
and son, with a devise over to her,
in fee, of the son's moiety, if he
died before he attained "the law-
ful age to will it away." And the
residue of his estate, real and per-
sonal, to be divided equally between
his wife and son with the same con-
tingent devise over to her as with
regard to the tract of 10,000 acres.
The value of the property thus de-

he who asks for a specific perform-
ance, must be in a condition to per-
form himself. Therefore, in a suit
for the specific performance of a
contract, by conveying lands in
Ohio, stipulated to be conveyed as
the consideration for other lands
sold in Kentucky, it was held that
the vendor, being unable to make a
title free from incumbrances to the
lands sold in Kentucky, was not
entitled to a decree for a specific
performance. Morgan's heirs v.
Morgan,

290

5. Origin of the doctrine of the Eng-
lish court of chancery as to the spe

6. Does not, in general, extend to the
enforcing of agreements respecting
personal property. Ib. note d, 303
7. Vendee not obliged to take a de-
fective title; but may elect to have
compensation, by deduction from
the purchase money, in case of a
mistake or misrepresentation as to

in trust to assignees, for the pur-
pose of liquidating its affairs, Quare,
Whether any action at law could
be maintained by the assignees, on
certain promissory notes, endorsed
to, and the property of the bank,
which had not been specially as-
signed nor endorsed to the as-
signees? Lenox et al. v. Roberts,

373

quantity or quality, or the estate of 16. However this may be, it is clear

the vendor in the property sold,
and a specific performance as to

that a suit in equity might be main-
tained by the assignees against the
parties to the notes. Ib. 376

COLLUSIVE CAPTURE.

9. How far time is material in the en-

forcing of specific performance. Ib. See EMBARGO, 8,

PRIZE, 9. 14.

an issue of quantum damnificatus,
or a reference to the master to as-
certain the damages, where a spe-
cific performance is refused, but the 1. A trustee is, in general, only suable

COVENANT.

party is entitled to damages. Ib.
note d,

305

11. In order to obtain a specific per-
formance of a contract, its terms
should be so precise as that neither
party can reasonably misunder-

in equity; but if he chooses to bind
himself by a personal covenant, he
is liable at law for a breach of that
covenant, although he describe
himself as covenanting as trustee.
Duvall v. Craig et al.

45.56

stand them. If the contract be 2. Where the parties to a deed cove-

nanted severally against their own
acts and incumbrances, and also to
warrant and defend against their
own acts, and those of all other per-
sons, with an indemnity in lands of
an equivalent value in case of evic-
tion; it was held that these cove-
nants were independent, and that it
was unnecessary to allege ege in the de-
claration any eviction, or any de-
mand or refusal to indemnify with
other lands, but that it was suffi-
cient to allege a prior incumbrance
by the acts of the grantors, &c., and
that the action might be maintained
on the first covenant, in order to re-
cover pecuniary damages. Ib. 58
3. Where the grantors covenant gene-
rally against incumbrances made
by them, it may be construed as ex-
tending to several, as well as joint
incumbrances. Ib.

See PRACTICE.

15. Where all the property of the late
bank of the United States had been
assigned, by a general assignment

4. An averment of an eviction under
an elder title is not always neces-
sary to sustain an action on a cove-
nant against incumbrances; if the
grantee be unable to obtain posses-
sion in consequence of an existing

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