his hands. These powers exercised by the federal
government cannot be questioned. It has the pow-
er of prescribing under its own laws, what kind of
security shall be given by its agents for a faithful
discharge of their public duties. And in such cases
the local law cannot affect the contract, as it is
made with the government; and, in contemplation
of law, at the place where its principal powers are
exercised.
Duncan's Heirs v. The United States,

ADMINISTRATION OF ASSETS-5.

may maintain a suit in the admiralty to enforce his right. But, as to repairs or necessaries in the port or State to which the ships belong, the case is gorerned altogether by the local law of the State; as no lien is implied unless it is recognized by that law. But if the local law gives the lien, it may be enforced in the admiralty. ld. (Ib.) 700 4. The services in this case were performed in the port of New Orleans, and whether this was (435) 739 within the jurisdiction of the admiralty or not, depends on the fact whether the tide in the Mississippi ebbs and flows as high up the river as the port of New Orleans. The court considered themselves authorized judicially to notice the situation of New Orleans, for the.purpose of determining whether the tide ebbs and flows as high up the river as that place; and being satisfied that although the current of the Mississippi at New Orleans may be so strong as not to be turned backwards by the tide, yet the effect of the tide upon the current is so great as to occasion a regular rise and fall of the waters; New Orleans may be properly said to be within the ebb and flow of the tide, and the jurisdiction of the admiralty prevails there.

1. The executor or administrator cannot discharge his own debt in' preference to others of superior dignity; though he may give the preference to his own over others of equal degree. In some of the States this rule would not apply, as there is no difference made in the payment of debts between a bond and simple contract debt.

Page v. Lloyd et al.,

(304) 134

2. Robertson was domiciliated at Norfolk, in Virginia, and there contracted a debt on bond to T. He was also indebted to the Union Bank of Georgetown, in the District of Columbia, on simple contract. He died intestate at Bedford in Pennsylvania, leaving personal estate in the city of Washington, in the District of Columbia, of which administration was there granted. By the laws of Maryland all debts are of equal dignity in administration; and by the laws of Virginia, where R was domiciliated, debts on bond are preferred. The assets in the hands of the administrator were insufficient to discharge the bond and simple contract debts. Held, that the effects of the intestate, in the hands of the administrator, are to be distributed among his creditors according to the laws of Maryland, and not according to the laws of Virginia. Smith, Administrator, v. Union Bank of Georgetown,

ADMIRALTY-5:

(518) 212

Over the subject of seamen's wages, the admiralty has an undisputed jurisdiction in rem, as well as in personam; and wherever the lien for the wages exists and attaches upon the proceeds, it is the familiar practice of that court to exert its jurisdiction over them, by way of monition to the parties holding the proceeds. This is familiarly known in the cases of prize, and bottomry, and salvage; and is equally applicable to the case of wages. The lien will follow the ship, and its proceeds, into whose hands soever they may come by title or purchase from the owner.

Sheppard et al. v. Taylor et al.,

ADMIRALTY-.

(675) 269

1. A libel was filed in the District Court of the United States for the Eastern District of Louisiana against the steamboat Planter, by H. and V., citizens of New Orleans, for the recovery of a sum of money alleged to be due to them, as shipwrights, for work done and materials found in the repairs of the Planter. The libel asserts that, by the admiralty law and the laws of the State of Louisiana. they have a lien and privilege upon the boat, her tackle, &c., for the payment of the sums due for the repairs and materials, and prays admiralty process against the boat, &c. The answer of the owners of the Planter avers that they are citizens of Louisiana, residing in New Orleans; that the libelants are also citizens, and that the court have no jurisdiction of the cause. Held, that this was a case of admiralty jurisdiction.

Peyroux et al. v. Howard et al., (324) 700 2. By the civil code of Louisiana, workmen employed in the construction or repairs of ships or boats enjoy the privilege of a lien on such ships or boats, without being bound to reduce their contracts to writing, whatever may be their amount; but this privilege ceases if they have allowed the ship or boat to depart without exercising their rights. The State law, therefore, gives a lien in

this case.

Id.

(1.) 700 3. In the case of The General Smith (4 Wheat., 438; S. C., 4 Peters's Condensed Reports) it is decided that the jurisdiction of the admiralty in cases where the repairs are upon a domestic vessel, depends upon the local law of the State. Where the repairs have been made or necessaries furnished to a foreign ship, or to a ship in the ports of a State to which she does not belong, the general maritime law gives a lien on ships as security; and the party

ld.

(Ib.) 700 5. In order to the decision whether the admiralty jurisdiction attaches to such services as those performed by the libelants, the material consideration is whether the service was essentially a maritime service, and to be performed substantially on the sea or tide-water. It is no objection to the jurisdiction of the admiralty in the case, that the steamboat Planter was to be employed in navigating waters beyond the ebb and flow of the tide. In the case of The Steamboat Jefferson, it was said by this court that there is no doubt the jurisdiction exists, although the commencement or termination of the voyage may happen to be at some place beyond the reach of the tide.

Id.

(Ib.) 701

6. Some of the older authorities seem to give countenance to the doctrine that an express contract operates as a waiver of the lien; but it is settled at the present day that an express contract for a stipulated sum is not of itself a waiver of a lien; but that, to produce that effect, the contract must contain some stipulations inconsistent with the continuance of such lien, or from which a waiver may fairly be inferred.

ld.

7. See jurisdiction.

(Ib.) 701

ADMIRALTY AND AMIRALTY PRACTICE- 8.

1. A libel was filed in the District Court of Maryland for salvage service performed by the libelant, the master and owner of the sloop Liberty, and by his crew, in saving certain goods and merchandises on board of the brig Spark, while aground on the bar at Thomas's Point in the Chesapeake Bay. The goods were owned by a number of persons, in several and distinct rights; and a general claim and answer were interposed in behalf of all of them by Jarvis and Brown (the owners of a part of them); without naming who, in particular, the owners were, or distinguishing their separate proprietary interests. This proceeding was doubtless irregular in both respects. Jarvis and Brown had no authority, merely as co-shippers, to interpose any claim for other shippers with whom they had no privity of interest or consignment; and several claims should have been interposed by the several owners, or by other persons authorized to act for them in the premises; each intervening in his own name for his proprietary interest, and specifying it. If any owner should not appear to claim any partic ular parcel of the property, the habit of courts of admiralty is to retain such property, or its proceeds, after deducting the salvage, until a claim is made, or a year and a day have elapsed from the time of the institution of the proceedings. And when separate claims are interposed, although the libel is joint against the whole property, each claim is treated as a distinct and independent proceeding, in the nature of a several suit, upon which there may be a several independent hearing, decree and appeal. This is very familiar in practice in prize causes and seizures in rem for forfeitures, and is equally applicable to all other proceedings in rem, whenever there are distrinct and independent claimants. (4) 846

Stratton v. Jorois et al.,

2. The District Court decreed a salvage of onefifth of the gross proceeds of the sales of the goods and merchandises, and directed the same to be sold

GENERAL INDEX.

accordingly. The salvage thus decreed was after-
wards ascertained upon the sales to be, in the
aggregate, two thousand seven hundred and twen-
ty-eight dollars and thirty-eight cents; but no for-
mal apportionment thereof was made. From this
decree an appeal was interposed in behalf of all the
owners of the goods and merchandises to the Cir-
cuit Court: but no appeal was interposed by the
libelant. The consequence is, that the decree of
the District Court is conclusive upon him as to the
He cannot, in the
amount of salvage in his favor.
Appellate Court, claim anything beyond that
amount, since he has not, by any appeal on his
part, controverted its sufficiency.

Stratton v. Jarvis et al.,

(4) 846 3. Although no appportionment of the salvage among the various claimants was formerly directed to be made by any interlocutory order of the District Court, an apportionment appears to have been in fact made under its authority. A schedule is found in the record containing the names of all the owners and claimants, the gross sales of their property, and the amount of salvage apportioned upon each of them respectively. By this schedule the highest salvage chargeable on any distinct claimant, is nine hundred and six dollars and seventeen cents, and the lowest, forty-seven dollars and sixty cents, the latter sum being below the amount for which an appeal, by the Act of 3d of March, 1803 (ch. 93), is allowed from a decree of the District Court in admiralty and maritime causes. Id.

(lb.) 846
4. In the appeal here, as in that from the District
Court, the case of each claimant having a separate
interest, must be treated as a separate appeal, pro
interesse suo, from the decree, so far as it regards
that interest; and the salvage chargeable on him
constitutes the whole matter in dispute between
him and the libelants: with the fate of the other
claims, however disposed of, he has and can have
nothing to do. It is true that the salvage service
was in one sense entire; but it certainly cannot be
deemed entire for the purpose of founding a right
against all the claimants jointly, so as to make
them all jointly responsible for the whole salvage.
On the contrary, each claimant is responsible only
for the salvage properly due, and chargeable on
the gross proceeds or sales of his own property, pro
rata. It would otherwise follow that the property
of one claimant might be made chargeable with the
payment of the whole salvage; which would be
against the clearest principles of law on this sub-
ject. The district and circuit courts manifestly
acted upon this view of the matter, and their de-
crees would be utterly unintelligible upon any
other. Their decrees, respectively, in giving a cer-
tain proportion of the gross sales, must necessarily
apportion that amount pro rata upon the whole
proceeds, according to the distinct interest of each
claimant. This court has no jurisdiction to enter-
tain the present appeal in regard to any of the
claimants, and the cause must for this reason be
dismissed. The District Court, as a court of orig-
inal jurisdiction, has general jurisdiction of all
causes of admiralty and maritime jurisdiction,
without reference to the sum or value of the mat-
ter in controversy. But the appellate jurisdiction
of this court and of the circuit courts depends
upon the sum or value of the matter in dispute be-
tween the parties, having independent interests:
(lb.) 846
Id.
5. Nothing is better settled, both in England and
America, than the doctrine that a non-commis-
sioned cruiser may seize for the benefit of the gov-
ernment; and if his acts are adopted by the govern-
ment, the property, when condemned, becomes a
droit of the government.

Carrington et al. v. The Merchants'
Insurance Company,
AGENT 6.

AGREEMENT-6.

1. An agreement by the president and cashier of the Bank of the United States that the indorser of a promissory note shall not be liable on his indorsement, does not bind the bank. It is not the duty of the cashier and president to make such contracts: nor have they the power to bind the bank, except in the discharge of their ordinary duties. All discounts are made under the authority of the directors, and it is for them to fix any conditions which may be proper in loaning money.

Bank of the United States v. Dunn, (51) 316 2. After a suit was instituted in the Circuit Court of the United States of Maryland, by citizens of Louisiana against a citizen of Maryland, the defendant obtained the benefit of the insolvent laws of the State. A judgment was afterwards confessed by the defendant in favor of the plaintiff for a sum certain, and by consent of the parties a memorandum was entered of record: "This judgment is subject to the legal operation of the defendant's BY THE COURT: The sole effect of this agreement discharge under the insolvent laws of Maryland. is to save to the party whatever rights he ma claim from the legal operation of the insolvent laws of the State of Maryland. It neither admits their validity nor varies any rights of the plaintiffs, if they Boyle v. Zacharie & Turner, are entitled to them.

AGREEMENT-8.

(635) 527

1. N. stipulated in certain articles of agreement to transport and deliver by the steamboat Paragon to R. a certain quantity of subsistence stores, supposed to amount to three thousand seven hundred barrels, for the use of the United States; in consideration whereof R. agreed to pay to N., on the delivery of the stores at St. Louis, at a certain rate per barrel, one half in specie funds, or their equivalent, and the other half to be paid in Cincinnati, in the paper of banks current there at the period of the delivery of the stores at St. Louis. Under the agreement was the following memorandum: "It is understood that the payment to be made in Cincinnati is to be in the paper of the Miami Exporting Company or its equivalent." The court erred in refusing to instruct the jury that the plaintiffs could only recover the stipulated price for the freight actually transported, and that they were entitled to no more than the specie value of the notes of the Miami Exporting Company Bank, at the time that payment should have been made at Cincinnati. The specie value of the notes, at the time they should have been paid, is the rule by which such damages are to be estimated.

Robinson v. Noble's Administra-
tors.

(181) 910

2. The plaintiff, the owner of the steamboat, was not entitled under the contract to recover in damages more than the stipulated price for the freight actually transported. If R. had bound himself to deliver a certain number of barrels and had failed to do so, N. would have been entitled to damages for such failure; but a fair construction of the contract imposed no such obligation on R.

ld.

(Ib.) 910

3. There is no pretense that R. did not deliver the whole amount of freight in his possession, at the places designated in the contract. In this respect, as well as in every other, in regard to the contract, he seems to have acted in good faith. And he was unable to deliver the number of barrels supposed, either through the loss stated, or an erroneous estimate of the quantity. But, to exonerate R. from damages on this ground, it is enough to know that he did not bind himself to deliver any specific amount of freight. The probable amount (495) 1021 is stated or supposed in the agreement, but there is no undertaking as to the quantity. Id.

Where an agent received the amount of a debt due on a judgment on which an execution had issued, and immediately paid it over to the principal, although a verbal notice was given to him by the defendants when the money was paid that it was intended to sue out a writ of error to reverse the judgment, which was afterwards done, and the judgment reversed, the agent was not held liable to repay the money.

Bank of the United States v. The
Bank of Washington,

AGENT AND PRINCIPAL-5.

See Principal and agent.

ALIEN AND ALIENAGE-6.

Lessee of Levy v. M'Cartee,

(lb.) 910

1. Under the laws of New York, one citizen of the State canno inherit in the collateral line to the other, when he must make his pedigree or title (102) 334 through a deceased alien ancestor. 2. That an alien has no inheritable blood, and can neither take land himself by descent, or transmit (8) 299 land from himself to others by descent, is common learning. (lb.) 334 ld. 3. The case of Collingwood v. Pace (1 Ventris's Rep.,413), furnishes conclusive evidence that by the 1119

APPEAL-8.

1. See admiralty and admiralty practice. 2. A party may, after an appeal has been discussed for informality, if within five years, bring up the case again.

Yeaton et al. v. Lenox et al.,

(123) 889 3. In the Circuit Court of Alexandria, in 1817, several suits were brought against sundry individuals who had associated to form a bank, called The Merchants' Bank of Alexandria. The proceedings were regularly carried on in one of them, brought by Romulus Riggs; and a decree was pronounced by the court, from which the defendants appealed. On a hearing, the decree was reversed and the cause remanded for further proceedings, in conformity with certain principles prescribed in the decree of reversal. It appears that decrees were pronounced in all the causes, though regular proceedings were had only in the case of Romulus Riggs. Appeals were entered in these cases from the decrees of the court. Under such circumstances, the court can only reverse the decree in each case for want of a bill.

Mandeville et al. v. Burt et al.,

(256) 936 4. The whole business appearing to have been conducted in the confidence that the pleadings in the case of Romulus Riggs could be introduced into the other causes, the cases were remanded to the Circuit Court, with directions to allow bills to be filed, and to proceed thereon according to law. (Ib.) 936

Id.

APPEARANCE-6.

At January Term, 1831, an order was made giving the State of New York leave to appear on the second day of this term and answer the complainants' bill; and if there should be no appearance, that the court would proceed to hear the cause on the part of the complainants, and to decree on the matter of the bill. On the first day of the term, a demurrer to the complainants' bill was filed, which was signed "Green C. Bronson, Attorney-General of New York." No other appearance was entered on the part of the defendants. BY THE COURT: The demurrer filed in the case by the Attorney-General of New York, he being a practitioner in this court, is considered as an appearance for the State. If the AttorneyGeneral did not so mean it, it is not a paper which can be considered as in the cause, or be placed on the files of the court. The demurrer being admitted as containing an appearance by the State of New York, it amounts to a compliance with the order of the court.

The State of New Jersey v. The Peo-
ple of the State of New York,

APPROPRIATION—5.

(323) 414

1. In Virginia the moneys arising from the sale of personal prperty are called legal assets, in the hands of an executor or administrator; and those which arise from the sale of real property, are denominated equitable assets. By the law, the executor or administrator is required, out of the legal assets, to pay the creditors of the estate, according to the dignity of their demands, but the equitable assets are applied equally to all the creditors in proportion to their claims. Legal and equitable assets were in the hands of an administrator, he being also a commissioner to sell the real estate of a deceased person; and by a decree of the Court of Chancery he was directed to make payment of debts due by the intestate out of the funds in his hands, without directing in what manner the two funds should be applied. Payments were made under this decree to the creditors by the administrator and commissioner, without his stating or in any way making known whether the same were made from the equitable or legal assets; a balance remaining in his hands, unpaid to those entitled to the same, the sureties of the administrator, after his decease, claimed to have the whole of the payments made under the decree credited to the legal assets, in order to obtain a discharge from their liability for the due administration of the legal assets. Held, that their principal having omitted to designate the fund out of which the payments were made, they could not do so.

3. There may be cases where no indication having been given as to the application of the payit. But it cannot be admitted that in such cases ment by the debtor or creditor, the law will make the payment will be uniformly applied to the extinguishment of a debt of the highest dignity. That there have been authorities which favor such an application, is true; but they have been controverted by other adjudications. Where an administrator has had a reasonable time to make his elechim, it is too late to do so after a controversy has tion as to the appropriation of payments made by arisen. And it is not competent for the sureties of the administrator to exonerate themselves from responsibility by attempting to give a construction to his acts which seems not to be given by himself. (lb.) 82

Id.

4. Page was indebted, at the time of his decease, to Patton, three thousand pounds and upwards, which was covered by a deed of trust on Mansfield, one of Page's estates. The executors of Page refusing to act, Patton, in 1803, took out administration with the will annexed, and gave securities for the performance of his duties. Patton made sales of the personal estate for cash, and on a credit of twelve months, and received various sums of money from the same; he made disbursements in payment of debts and expenses for the support and ed. ucation of the children of Page, and in advance to the legatees. He kept his administration accounts in a book provided for the purpose, entering his receipts and disbursements for the estate, but not bringing his own debt and interest into the account. In 1810 he put the items of his account into the hands of counsel, and requested him to introduce the deed of trust "as he might think proper:" and an account as administrator was made out, in which the principal and interest of Patton's debt was entered as the first item. Afterwards, in the same year, by order of court, the real estate was sold, and Patton received the proceeds of the same. Held, that the sum due under the deed of trust to Patton should be charged on the funds arising from the sale of the real estate; and that having omitted to retain from the proceeds of the personal estate the sum due to him by Page, Patton could not afterwards charge the same against the legal assets, being the fund produced by the personal estate. Page v. Lloyd et al., (304) 134

ARBITRAMENT AND AWARD-8.

that

1. In the Circuit Court of the County of Washington, Linthicum instituted an action of covenant on articles of agreement, by which Lutz covenanted that Linthicum should have peaceable possession of a certain house in Georgetown, and ‘retain and keep the same for five years. Linthicum was evicted by Lutz before the time expired. The articles were spread upon the record, by which it appeared that they were made by and between John Lutz, of, &c., and agent for John M'Pherson, of Fredericktown, in the State of Maryland, on the one part, and Otho M. Linthicum, of Georgetown, &c., of the other part ;" and it is witnessed, the said John Lutz, agent as aforesaid, has rented and leased, &c.," the premises to Linthicum; and on the other hand, Linthicum covenants to pay the rent, &c., as stated in the declaration. There was no covenant in the lease by Lutz for quiet enjoyment as stated in the declaration, but the latter was founded upon the covenant implied by law in cases of demises. The articles concluded with these words: "In witness whereof, we, the said John Lutz and O. M. Linthicum, have hereunto interchangeably set our hands and seals, day and date above. John Lutz, agent for John M'Pherson [L. S.]. O. M. Linthicum (L. s.]." The defendant Lutz pleaded performance without praying oyer, and issue was joined. Afterwards, the parties by consent agreed to refer the cause; and accordingly, by a rule of court, it was ordered that "William S. Nicholls and Francis Dodge be appointed referees between the parties aforesaid, with liberty (160) 82 to choose a third person; and that they, or any 2. Where debts of different dignities are due to a two of them, when the whole matter concerning creditor of the estate of an intestate, and no spe- the premises between the parties aforesaid in varicific application of the payment made by an ad- ance being fairly adjusted, have their award in ministrator is directed by him; if the creditor ap- wiriting under their hands, and return the same to plies the payment to either of his debts by some the court here; and judgment of the court to be unequivocal act, his right to do so cannot be ques-rendered according to such award, and to be fina PETERS 5, 6, 7, 8.

Backhouse et al. v. Patton et al.,

U. S. Book 8.

71

1121

ITORS-7.

between the said parties." The referees so named, | ASSIGNMENT FOR THE BENEFIT OF CREDon the 28th of January, 1833, chose John Kurtz the third referee; and afterwards, on the same day, made their award in the following words: "We, the subscribers, appointed arbitrators to settle a dispute between Otho M. Linthicum and John Lutz, in which the executors of the late John M'Pherson of Frederick, are interested, do award the sum of eleven hundred and twenty-nine dollars and ninety-three cents, to be paid to the said Linthicum in full, for all expenses and damages sustained by him, in consequence of not leaving him in quiet possession of the house at the corner of Bridge and High streets, in Georgetown (the demised premises), for the full term of the lease for five years. Any arrear of rent due from Linthicum, to be paid by him." Signed by all the referees. Judgment was given by the Circuit Court for the full amount of the award so made, and costs.

Lutz v. Linthicum,

(165) 904 2. The articles purport to be made by Lutz, and to be sealed by him; and not to be made and sealed by his principal. The description of himself, as agent, does not, under such circumstances, exclude his personal responsibility. But this very liability was necessarily submitted to the referees, and came within the scope of their award. Id. (lb.) 905 3. It was objected to the award that it was uncertain, not mutual and final; that it does not state whether the money is to be paid by Lutz or the executors of M'Pherson; that it does not find the arrears of rent due, and to whom due; that it does not appear to be an award in the cause; that the award and the proceedings thereon are not according to the laws of Maryland; that the appointment of the third referee ought not to have been made until after the other two referees had met and heard the cause and disagreed thereon. The court held all these objections invalid.

ld.

(Ib.) 905 4. Without question, due notice should be given to the parties of the time and place for hearing the cause by the referees; and if the award was inade without such notice, it ought, upon the plainest principles of justice, to be set aside. But it is by no means necessary that it should appear upon the face of the award that such notice was given. There is no statute of Maryland whose laws govern in this part of the district, which requires such facts to be set forth in the award. If no notice is in fact given, and no due hearing had, the proper mode is to bring such facts not appearing on the face of the award before the court, upon affidavit and motion to set aside the award. But, prima facie, the award is to be taken to have been regularly made, where there is nothing on its face to impeach it.

ld.

1. It is not necessary to the validity of a deed of assignment for the benefit of creditors that creditors should be consulted, though the propriety of pursuing such a course will generally suggest it, when they can be conveniently assembled. But be this as it may, it cannot be necessary that the fact should appear on the face of the deed. Brashear v. West, (608) 801 2. That a general assignment of all a man's property is, per se, fraudulent, has never been alleged in this country. The right to make it results from the absolute ownership which every man claims over that which is his own. (Ib.) 801

Id.

3. An assignment was made by Francis West to certain trustees of all his property, giving a preference to particular creditors; who were to be paid their claims in full, before any portion of the property assigned was to be divided among his other creditors. BY THE COURT: The preference given in this deed to favored creditors, though liable to abuse, and perhaps to serious objections, is the exercise of a power resulting from the ownership of property which the law has not yet restrained. It cannot be treated as a fraud.

ld.

(lb.) 801 4. The assignment excluded from the benefit of its provisions all creditors who should not within ninety days execute a release of all claims and demands on the assignor of any nature or kind whatsoever. BY THE COURT: This stipulation cannot operate to the exemption of any portion of a debtor's property, from the payment of his debts. If a surplus should remain after their extinguishment, that would be rightfully his. Should the fund not be adequate, no part of it is relinquished. The creditor releases his claim only to the future labors of his debtor. If this release were voluntary, it would be unexceptionable. But it is induced by the necessity arising from the certainty of being postponed to all those creditors who shall accept the terms, by giving the release. It is not therefore voluntary. Humanity and policy both plead so strongly in favor of leaving the product of his future labors to the debtor, who has surrendered all his property, that in every commercial country known to the court, except our own, the principle is established by law. This certainly furnishes a very imposing argument against its being denied. The objection is certainly pow erful, that it tends to delay creditors. If there be a surplus, the surplus is placed in some degree out of the reach of those who do not sign the release, and thereby entitle themselves under the deed. But the property is not entirely locked up. A court of equity, exercising chancery jurisdiction, will compel the execution of the trust, and decree what may remain to those creditors who have not acceded to the deed. Yet the court are far from being satisfied that upon general principle, such a deed ought to be sustained.

Id.

ld.

(Tb.) 802

(Tb.) 905 5. The statute of Maryland requires that notice of an award shall be given to the party against whom it is made, by a service of a copy, three days before judgment is moved; and judgment is not to be entered but on motion and direction of the court. It was alleged that a copy of the award was (lb) 801 not delivered. BY THE COURT: How that may 5. Whatever may be the intrinsic weight of obhave been we have no means of knowing, for noth-jections to such assignments, they seem not to ing appears upon the record respecting it, and have prevailed in Pennsylvania. The construction there is no ground to say that it ought to constitute which the courts of that State have put on the any part of the record, or that is properly assigna- Pennsylvania statute of frauds, must be received ble as error. It is matter purely collateral, and in in the courts of the United States. pais. If no such copy had been delievered, the proper remedy would have been to take the objection in the court below upon the motion for judgment, or to set aside the judgment for irregularity, if there had been no waiver, or no opportunity to make the objections before judgment. But in the present case suflicient does appear upon the record to show that the party had full opportunity to avail himself of all his legal rights in the court below. The cause was referred at November Term, 1832 ; pending the term, to wit, on the 18th of January, 1833, the award was filed in court; the cause was then continued until the next terin, viz., the fourth Monday in March, 1833; at which time the parties appeared by their attorneys, and upon motion, and after argument of counsel, judgment was entered. We are bound to presume, in the absence of all evidence to the contrary, that all things were rightfully and regularly done by the court, and that the parties were fully heard upon all the matters properly in judgment. (lb.) 905

ld.

ARKANSAS TERRITORY-7.

6. The assignment transferred to the assignees a debt due to the assignor by the complainant. The complainant filed a bill against the assignees, claiming to set off against the debt assigned to them the amount of a judgment obtained by him against the assignor after the assignment. BY THE COURT: If subsequent to the assignment being made, and before notice of it, any counter clits be acquired by a debtor to the assignor, these claims may, unquestionably, be sustained. But if they be acquired after notice, equity will not su~ tain them. If it were even true, that they might have been offered in evidence in a suit at law brought in the name of the assignor, he who neglected to avail himself of that advantage, cannot, after judgment, avail himself of such discount as plaintiff in equity.

ld.

ATTACHMENT-5.

(lb.) 802

1. A sheriff, having a writ of foreign attachment issued according to the laws of New Jersey, pr ceeded to levy the same on the property of the de See construction of statutes of the United States. fendant in the attachment. After the attachment