ABATEMENT.
AMENDMENT, 2. 3.
Questions of fact and computation in taking an account. Nixdorff v. Smith, 212.
EQUITY, 3. 4. 6. 7; SURETY, 2. 6; UNITED STATES.
EXECUTORS, &c. 4; PLEADING, 14.
1. The agent of absent owners, may libel in his own name, as agent, or in the name of
his principals. Houseman v. Cargo of the Schooner North Carolina, 15.
2. The valuation of property in a stipulation is binding in the appellate court. It is a
substitute for the property. Ib.
The deposit of earth upon a water lot below high-water mark, so as to fit it for occu-
pation and use, followed by the erection of a wharf and warehouse thereon, together
with the possession of the adjacent upland lot for more than forty years, present a
strong ground to presume a true title. Watkins v. Holman's Lessee, 174.
ASSUMPSIT, 2; LIMITATIONS, &c. 3. 4.
ADMIRALLTY, 1; PLEADING, 10.
COURTS OF UNITED STATES, 13. 16.
ALTERATION OF INSTRUMENTS.
1. An amendment in an appellate court cannot introduce a new subject of litigation.
Houseman v. Cargo of the Schooner North Carolina, 15.
2. Under the 32d section of the Judiciary Act, (1 Stats. at Large, 91,) the court may,
after a plea in abatement, allow a summons and declaration to be amended, by
striking out "administrator, &c.," and inserting "executor, &c." Randolph v. Bar-
rett, 216.
3. Motion by the plaintiff for leave to amend, after a plea in abatement, and an order
granting leave, disposes of the plea, and, as the defendant appeared only to plead in
abatement, he is then out of court, and judgment by default against him is regular,
if he do not again appear. Ib.
1. Upon a bill to enjoin a judgment at law, rendered in the supreme court, a decree
that the parties proceed to a new trial at law, is not final, and an appeal does not lie.
Lea v. Kelly, 72.
2. Upon a bill in equity by residuary legatees against executors, to recover their respec
tive proportions of the personal estate, a decree which orders a certain sum to be
paid to the complainants, and directs the executors to pay into court the proceeds of
debts due to the testator, when collected, is not final, and an appeal does not lie.
Young v. Smith, 92.
3. A proceeding under a territorial law of Florida, to obtain an assignment of dower,
is a proceeding at law, though not according to the forms of the common law; and
an appeal is not the mode of bringing the case before this court. Parish v. Ellis, 376.
4. Where some of the appellants deserted an appeal after the case was entered in this
court, the appeal was dismissed with costs, as to them, but retained as to another
appellant, who appeared to prosecute it. Todd v. Daniel, 406.
5. If a decree does not jointly affect all, but one has a several interest, he alone
may appeal. If it is joint, and one only desires to appeal, notice should be given,
in the circuit court, to the others, to become parties to the appeal; and if they neg-
lect or refuse, the circuit court should allow the appeal of the one, and pronounce
the appeal of the others deserted, and proceed to execute the decree as to them.
Ib.
6. Where an executor was removed from his trust by a decree of a competent court,
on the same day on which a decree was made against him in his said capacity, in a
circuit court of the United States; held, that neither he nor the complainant could
appeal until the administrator de bonis non, &c., was made a party. Taylor v. Sav
age, 610.
7. Though a case has been attempted to be brought here by appeal, when there was
no appellee in existence at the time the appeal was claimed, it may be remanded
with directions to make the proper parties. Ib.
8. A cause having been argued at the last term, a decree made, and a mandate sent,
the appellee, not having appeared at the present term, it appearing that the appellee
was not cited as required by the act of congress, the decree was declared void and
the mandate revoked. Ex parte Crenshaw, 46.
ADMIRALTY, 2; AMENDMENT, 1; Courts of THE UNITED STates, 5. 12;
EQUITY, 5; EXECUTION, 2.
An authority to two, to fix the value of a tract of land, and, if they cannot agree, to
choose a third," who, together with the other two, shall agree on the price," does not
require all three to agree, it appearing that the parties intended the price should be
fixed at all events; if two of the three agree and the other dissent, this is an exe-
cution of the authority. Hobson v. M'Arthur's Heirs, 241.
ARMY OF THE UNITED STATES.
1. The President has power to make and repeal rules and regulations for the govern-
ment of the army, in respect to compensation for extra services, congress not having
legislated thereon, and the secretary at war is the regular organ of the President
for publicly promulgating such rules and regulations. United States v. Eliason, 304.
2. The proviso annexed to the act of March 3, 1835, (4 Stats. at Large, 754,) prohibit-
ing extra allowances, is confined to the appropriations made by that act. Minis v.
United States, 132.
3. Under the 4th and 13th sections of the act of June 30, 1834, (4 Stats at Large, 736,
738,) a military officer performing the duties of Indian agent, could be allowed only
the compensation provided for in that act. Ib.
4. The power of the President to detach officers of the engineer corps upon civil duty,
does not prevent him from allowing them reasonable compensation therefor. Gratiot
v. United States, 106.
5. Under the army regulations of 1825, the allowance of $2 per day to an engineer
superintending the construction of a fortification, is not limited to a single allow-
ance; if he superintends more than one work, he is entitled to more than one such
allowance. Ib.
6. No allowance can be made for services which the officer was bound to perform,
though not of ordinary occurrence. 1b.
7. The United States have the right to apply moneys due to an officer for pay and
emoluments to extinguish a debt due from him to the United States. lb.
1. A debtor has a legal right to prefer one creditor over another, when the transaction
is bonâ fide, and he may elect the time of doing it, so as to make it effectual. Tomp-
kins v. Wheeler, 202.
2. A conveyance to certain preferred creditors, in trust, for the payment of their debts,
containing no conditions, may be presumed to be accepted by them. 1b.
3. The continued possession of the grantor, an insolvent debtor, is sufficiently accounted
for, by showing that the property assigned was of such a nature that he could best
manage it, and that he had faithfully managed and applied it, according to the deed
of assignment. lb.
4. A legatee, by taking from the executors an assignment of a mortgage on which was
due a sum greater than the amount of his legacy, did not make himself absolutely
responsible for the difference, but only for the use of due diligence in its collection.
Hammond's Administrator v. Washington's Executor, 478.
COURTS OF THE UNITED STATES, 15. 17. 18.; INSOLVENT, 1; PUBLIC LANDS, 25-27.
1. Though assumpsit will not lie, if the action be to enforce a claim secured by a sub-
sisting deed, yet if the contract under seal has been varied by a subsequent parol
agreement, assumpsit will lie upon this substituted contract. Fresh v. Gilson, 324.
2. Assumpsit for use and occupation does not lie, if the holding by the defendant was
adverse to the plaintiff, and the relation of landlord and tenant did not exist. Lloyd
v. Hough, 541.
AUDITOR.
JUDGMENT, &c. 2.
If negotiable paper, not at maturity, be indorsed and delivered to a bank merely for
collection, and be sent by such bank to another bank for collection, without notice
that it does not belong to the former, the latter may retain the paper and its pro-
ceeds to satisfy a claim for a general balance against the former, if that balance has
been allowed to arise and remain on the faith of receiving payment from such col-
lections, pursuant to a usage between the two banks. Bank of the Metropolis v.
New England Bank, 583.
ASSIGNMENT, 4; BANK; BILLS OF EXCHANGE, &c. 3.
BANKRUPT LAW.
COURTS OF THE UNITED STATES, 19.
BILLS OF EXCHANGE AND PROMISSORY NOTES.
1. If the United States, through their authorized officer, accept a bill of exchange,
they are bound for its payment to a bonâ fide holder for value, whatever may have
been the equities as between them and the drawer. United States v. Bank of the
Metropolis, 114.
2. A bill was drawn by a contractor, on the postmaster-general, and having been
"accepted on condition that the drawer's contracts be complied with," was dis-
counted by the defendants; Held, that, forfeitures previously incurred, and advances
previously made, were not within the condition. Ib.
3. A factor who has accepted a bill drawn by his principal, and an accommodation
drawer, and has funds of the principal in his hands when the bill comes to maturity,
is bound to apply those funds to pay that bill. He cannot sue the drawers and
maintain that he applied those funds to pay a bill subsequently drawn by his prin-
cipal alone. Brander v. Phillips, 209.
4. The bonâ fide holder of a bill of exchange who has taken it before its maturity, in
payment of a preëxisting debt, without notice of any equities existing between the
drawer and acceptor, is not affected by those equities. Swift v. Tyson, 166.
BANK; COURTS OF THE UNITED STATES, 15-18.
CONTRACT, 1; EJECTMENT, 3; FORTHCOMING BOND; PLEADING, 1. 2. 9; SureTY.
BURDEN OF PROOF.
MORTGAGE, 2; REVENUE LAWS, 2.
1. The City of Mobile v. Hallett, 16 P. 261, affirmed and applied to this case. Mobile
v. Emanuel, 505.
2. Percheman's case, 7 P. 96, affirmed and applied. United States v. Delespine's Heirs,
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