Id.

436

to the same specific duty, without
regard to the difference of quality
and price.
37. In judicial sales, there is no war-
ranty, express or implied. The
Monte Allegre,
616. 644
38. Upon a sale by the Marshal, under
an order of Court, no warranty is
implied. Id.
645
39. Neither the Marshal, nor his agent,
the auctioneer, has any authority
to warrant the article sold. Id.

645
40. Quære, How far the Marshal is
responsible to the vendee, in his
private capacity, if he undertake
to warrant, or to do what would
imply a warranty in a private
sale? Id..

645
41. Upon an Admiralty proceeding, in
rem, where the proceeds of the
sale are brought into Court, they
are not liable to make good loss
sustained by the purcha er, in
consequence of a defect being
discovered in the article sold. Id.
648, 649

ALIEN.

1. Under the 9th article of the treaty
between the United States and
Great Britain, of 1794, it is not
necessary for the alien to show
that he was in the actual posses-
sion or seisin of the land, at the
date of the treaty, which applies
to the title, whatever that may
be, and gives it the same legal va-
lidity as if the parties were citi-
zens. The title of an alien mort-
gagee is protected by the treaty.
Hughes v. Edwards, 489.496
2. But, independent of the stipula-
tions of the treaty, an alien mort-
gagee bas a right to come into a
Court of equity, and have the
property, which has been pledged
for the payment of the debt, sold
for the purpose of raising the mo-

1. In a declaration upon a promissory
note, the omission of the place
where it is payable is fatal. Se-
bree v. Dorr, 558. 561, 562
2. By the custom of the Banks in the
District of Columbia, payment of
a promissory note is to be de-
manded on the fourth day after
the time limited for the bayment
thereof, in order to charge the en-
dorser, contrary to the general
law merchant, which requires a
demand on the third day. Ren-
ner v. Bank of Columbia, 581—
584
3. Evidence of such a local custom
is admissible, in order to ascertain
the understanding of the parties,
with respect to their contracts
made with reference to it. Id.

587

4. Cases in which evidence of com-
mercial usage is admissible, in
order to ascertain the meaning of
contracts. Id.

588
5. The declaration against the endor-
ser, in such a case, must lay the
demand on the fourth, and not on
the third day. Id.
594

6. Quære, Whether a declaration, in
such a case, not averring the local
usage, would be good upon de-
murrer? Id.
594
7. Secondary evidence of the contents

of a lost note is admissible, wher-
ever it appears that the original is
destroyed, or lost by accident,
without any fault of the party. Id.

596

8. In the case of a lost note, it is not
necessary that its contents should
be proved by a notarial copy.
All that is required is, that it
should be the best evidence the
party has it in his power to pro-
duce. Id.
597
9. To admit secondary evidence of a
lost note, it is not necessary that
there should be a special count in
the declaration upon a lost note.
Id.
597
10. Where the maker of the note has
removed into another State, or
another jurisdiction, subsequent
to the making of the note, a per-
sonal demand upon him is not ne-
cessary to charge the endorser,
but it is sufficient to present the
note at the former place of resi-
dence of the maker. McGruder
v. Bank of Washington,

C.

CHANCERY.

598

1. A bill in equity, brought to rescind
a purchase made under the decree
of this Court, in Terrett v. Tay-
lor, (9 Cranch, 43.) upon the
ground, that the title to the pro-
perty was defective, and could not
be made good by the Vestry and
other persons, who were parties
to the former suit. Bill dismissed.
Mason v. Muncaster,
445
2. Where the mortgage deed contain-
ed a defeasance that the mortga-
gor should pay the debt, accord-
ing to the condition of a bond re-
cited in the deed, by which it was
payable on a day already past, at
the time of the execution of the
deed: Held, that this circum-
stance did not avoid the mortgage
deed in equity, where it was to be
considered as a conveyance, ab-
solute at law, but intended as a

security merely, and to be treated
in the same manner as an ordinary
mortgage. Hughes v. Edwards,
489-493
3. A Court of equity looks to the
substantial object of the convey-
ance, and will consider an abso-
lute deed as a mortgage, wherever
it is shown to have been intended
merely as a security for the pay-
ment of a debt. Id.
495
4. In the case either of a legal or
equitable mortgage, the mortgagee
may pursue his legal remedy by
ejectment, and, at the same time,
file his bill to foreclose the equity
of redemption. Id.
494
5. A mortgagor cannot redeem after
a lapse of twenty years, after for-
feiture and possession by the mort-
gagee, (which period has been
adopted in equity by analogy to
the statute of limitations,) no inte-
rest having been paid in the mean
time, and no circumstances ap-
pearing to account for the neglect.
Id.
497
6. Where the mortgagee brings his
bill of foreclosure, the mortgage
will, after the same length of time,
be presumed to have been dis-
charged, unless circumstances can
be shown to repel the presump-
tion, as, payment of interest, a
promise to pay, an acknowledg-
ment by the mortgagor that the
mortgage is still subsisting, and
the like. Id:
497, 498
7. A bona fidei purchaser under the
mortgagor, with actual notice of
the mortgage, or constructive no-
tice by means of a registry, can
only protect himself, by the lapse
of time, or other equity, under
the same circumstances which
would afford a protection to the
mortgagor. Id.
499
8. Such a purchaser is not entitled to
have the value of the improve-
ments made by him deducted

9. Practice of Courts of Equity on ju-
dicial sales. The Monte Allegre,
616. 649

10. In all cases of concurrent jurisdic-
tion, the Court which first has
possession of the subject, must
determine it conclusively. Smith
v. M'Iver,

532

11. Although Courts of equity have
concurrent jurisdiction with
Courts of law, in all matters of
fraud, yet, where the cause has
already been tried and determi-
ned by a Court of law, a Court of
equity cannot take cognizance of 1.
it, unless there be the addition of
some equitable circumstance to
give jurisdiction. Id.
534
12. In such a case, some defect of

testimony, or other disability,
which a Court of law cannot re-
move, must be shown, as a
ground for resorting to a Court of
equity. Id.

534
13. In general, the answer of one de-
fendant in equity, cannot be read
in evidence against another. But
where one defendant succeeds to
another, so that the right of the
one devolves on the other, and
they become privies in estate, the
rule does not apply. -Osborn v.
Bank of the United States, 738 2.
14. Where the defendant is restrained

by an injunction, from using mo-
ney in his possession, interest 3.
will not be decreed against him.
Id.
837
15. An injunction will be granted to

prevent the franchise of a corpo-
ration from being destroyed, as
well as to restrain a party from
violating it, by attempting to par- 4.
ticipate in its exclusive privile-
ges. Id.
16. In general, an injunction will not

838

be allowed, uor a decree render- 5.
ed, against an agent, where the

CONSTITUTIONAL LAW.

The acts of the Legislature of the
State of New-York, granting to
Robert R. Livingston and Robert
Fulton, the exclusive navigation
of all the waters within the juris-
diction of that State, with boats
moved by fire or steam, for a term
of years, are repugnant to that
clause of the constitution of the
United States, which authorizes
Congress to regulate commerce,
so far as the said acts prohibit
vessels licensed, according to the
laws of the United States, for car-
rying on the coasting trade, from
navigating the said waters by
means of fire or steam. Gibbons
v. Ogden,
1. 186.
The power of regulating commerce,
extends to the regulation of navi-
gation. Id.
189
The power to regulate commerce
extends to every species of com-
mercial intercourse between the
- United States and foreign nations,
and among the several States. It
does not stop at the external
boundary of a State. Id. 193
The power to regulate commerce
is general, and has no limitations,
but such as are prescribed in the
constitution itself. Id. 196
The power to regulate commerce,
so far as it extends, is exclusively

formation, which describes, in one
count, the two distinct acts of
preparing a vessel and of caus-
ing her to suil, pursuing the
words of the law, is sufficient.
The Emily and the Caroline,

379. 381
4. Under the above act, it is not ne-
cessary, in order to incur the for-
feiture, that the vessel should be
completely fitted and ready for
sea. As soon as the preparations
have proceeded so far, as clearly
to manifest the intention, the right
of seizure attaches. 1d. 388
5. The prohibitions in the Slave Trade

Acts of the 10th of May, 1800, c.
205. [li.] and of the 20th of
April, 1818, extend as well to the
carrying of slaves on freight, as to
cases where the persons trans-
ported are the property of citizens
of the United States; and to the
carrying of them from one port to
another, of the same foreign em-
pire, as well as from one foreign
country to another. The Merino
and others,
391. 403
6. Under the 4th sec. of the act of the
10th of May, 1800, c. 205. [li.]
the owner of the slaves transport-
ed contrary to the provisions of
that act, cannot claim the same in
a Court of the United States, al-
though they may be held in ser-
vitude, according to the laws of
his own country. But if, at the
time of capture by a commission-
ed vessel, the offending ship was
in possession of a non-commis-
sioned captor, who had made a
seizure for the same offence, the
owner of, the slaves may claim:
the section only applying to per-
sons interested in the enterprise
or voyage in which the ship was
employed at the time of such cap-
ture. ld.

407
7. Under the 16th sec. of the Ship
Registry Act of the 31st of De

cember, 1792, c. 1. a transfer of
a registered vessel of the United
States, to a foreign subject, in a
foreign port, for the purpose of
evading the revenue laws of the
foreign country, with an under-
standing that it is to be afterwards
reconveyed to the former owner,
works a forfeiture, unless the
transfer is made known in the
manner prescribed by the 7th sec.
of the act. The Margaret, 421
8. The statute does not require a be-

neficial or bona fide sale; but a
transmutation of ownership, " by
way of trust, confidence, or other-
wise," is sufficient. Id. 424.
9. In a libel of information under the

10.

11.

67th sec. of the Collection Act of
1799, c. 128. against goods, on
account of their differing from the
contents of the entry, it is not ne-
cessary that it it should allege an
intention of defrauding the reve-
nue. 200 Chests of Tea, 430. 436
The term "bohea tea," is used in
the duty act in its known commer-
cial sense; and the bohea of com-
merce is not usually a distinct and
simple substance, but is a com-
pound, made up in China, of vari-
ous kinds of the lowest priced
black teas. But, by the Duty
Acts, it is liable to the same spe-
cific duty, without regard to the
difference of quality and price. Id

436
Under the 2d and 4th sections of
the act of the Sd of March, 1797,
c. 368. a certified transcript from
the books of the Treasury is evi-
dence against the defendant; and
no claim for any credit can be ad-
mitted at the trial, which has not
been presented to, and disallowed
by the accounting officer of the
Treasury, (unless in the cases ex-
cepted by the act,) although no
proceedings have been had against
the debtor, under the act of the