Kule applied in One Hundred and Ninety-nine Barrels of Whiskey v. United States, 94 U. S. 91, 24 L. 59, and The Wanata, 95 U. S. 618, 24 L. 467.

3 Wheat. 59–77, 4 L. 333, THE NEW YORK.

Non-intercourse acts.-To excuse violation of non-intercourse law distress must be urgent and produce a well-grounded fear of loss of vessel or crew, p. 68.

Cited upon this point in Ex parte Law, 35 Ga. 311, as to degree of necessity that will excuse. See also The Eolus, 3 Wheat. 407, 4 L. 421, dissenting opinion, reiterating dissent in this case.

3 Wheat. 77, 4 L. 338, THE SAMUEL.

Practice.- Witness offered to be examined viva voce in open court in an instance cause, ordered to be examined out of court, p. 77.

Cited to this point in The Philadelphia, 60 Fed. 428, 21 U. S. App. 90.

Admiralty. In case of appeal, new testimony may be introduced.

Cited to this point in Vanderheyden v. Reid, 1 Hopk. Ch. 469, dissenting opinion; Nickels v. Griffin, 1 Wash. Tr. 396, majority denying motion to admit new proofs, p. 77.

3 Wheat. 78, 4 L. 338, THE SAN PEDRO.

Admiralty. Further proof heard and decree below affirmed. No citations.

3 Wheat. 78-101, 4 L. 338, THE STAR.

Admiralty.- Sentence of condemnation completely extinguishes original owner's title; accordingly American vessel recaptured from enemy after condemnation does not go to original owners on payment of salvage, pp. 87-90.

Miscellaneous citations.- Cited in The Revere, 2 Sprague, 119, F. C. 11,716, as an instance of condemnation because of false destination.

3 Wheat. 101-158, 4 L. 343, LANUSSE v. BARBER.

Conflict of laws.- Where a general authority is given to draw bills from a certain place on account of advances made there, the undertaking is to replace the money at that place, p. 146.

The following citing cases affirm and apply this rule: Boyle v. Zacharie, 6 Pet. 644, 8 L. 531, holding contract of suretyship entered into by consignee at New Orleans to release vessel from attach

ment and the implied contract of consignor to indemnify are Louisiana contracts; Cook v. Moffat, 5 How. 314, 12 L. 168, holding where resident of New York sold goods, and note was delivered to him there it was a New York contract; Scudder v. Bank, 91 U. S. 411, 23 L. 248, holding bill of exchange drawn and accepted at a certain place is governed by its laws; Pritchard v. Norton, 106 U. S. 139. 27 L. 109, 1 S. Ct. 114, holding a bond delivered in New York to indemnify one signing appeal bond in Louisiana, is governed by law of latter State; Mygatt v. City of Green Bay, 1 Biss. 295, F. C. 9,998, where obligation is payable at a particular place and is neces sarily sued at a place where exchange is in favor of the place of payment, party can recover real difference of exchange; Woodhull .v. Wagner, Bald. 302, F. C. 17,975, holding defendant's bond to pay where money was advanced; as also in Grant v. Healey, 3 Sumn. 525, F. C. 5,696, and Towne v. Smith, 1 Wood. & M. 136, F. C. 14,115; Jelison v. Lee, 3 Wood. & M. 377, F. C. 7,256, holding it is the value at agreed place of payment; York v. Wistar, 30 Fed. Cas. 821, where contract was that purchaser should pay in England, it was governed by laws of that country; Very v. McHenry, 29 Me. 212, holding one receiving money from person to discharge his debts is bound to discharge them at same place; Sherrill v. Hopkins, 1 Cow. 108, holding lex loci contractus governs unless it appears contract was to be performed elsewhere; First Nat. Bank of Toledo v. Shaw, 61 N. Y. 293, holding bill of lading executed in Ohio and given to one there, to secure him for drafts drawn on parties in this State, is an Ohio contract; dissenting opinion, Nelson v. Fotterall, 7 Leigh (Va.), 202, court divided as to whether bill drawn and indorsed in Virginia and sold in New York, a Virginia or New York bill; Abell v. Insurance Co., 18 W. Va. 420, holding when money is advanced, the implied contract is to replace same at place of advancement. See also note to 99 Am. Dec. 672, observing that commission merchant's account for advances made to customer in another State is governed by law of merchant's domicile. Cited, arguendo, in dissenting opinion, Livingston v. Story, 11 Pet. 412, 9 L. 770.

Distinguished in Ayer v. Tilden, 15 Gray, 184, 77 Am. Dec. 359, holding where, by contract, no interest was payable, rate at place of judgment governs; Merchants' Bank v. Griswold, 72 N. Y. 481, 28 Am. Rep. 165, holding where drafts did not specify place of pay. ment, law of place where they were drawn and discounted governs.

Guaranty - Bills and notes.- Letter specifying no place at which drafts are to be made payable, will not bind signer to acceptance of drafts made payable in another State, pp. 144-145.

Cited in Michigan State Bank v. Leavenworth, 28 Vt. 219, holding

same.

Agency. Agent with limited powers cannot bind principal when be exceeds those powers, p. 144.

Cited to this point in The Joseph Grant, 1 Biss. 197, F. C. 7,538, holding bill of lading signed in blank by master is not good against owners, even in hands of bona fide holder.

Continuing guaranty.- Definition and effect of, note, pp. 148

158.

Cited in Clagett v. Salmon, 5 Gill & J. 329, holding stipulation of amount is to limit responsibility of sureties and not to prevent party giving debtor further credit; Stafford v. Low, 16 Johns. 69, where defendant's letter was a conditional engagement to give a guaranty. Cited also in Salmon v. Clagett, 3 Bland Ch. 175.

Guaranty must have been accepted, pp. 148-158, note.

Cited in Tuckerman v. French, 7 Me. 117, holding that in continuing guaranty notice of acceptance is necessary; Lonsdale v. Bank, 18 Ohio, 142, holding where letter contains a direct promise to pay, it is an original undertaking and law on suretyship not applicable; Sollee v. Mengy, 1 Bailey L. 623, holding immediate notice of acceptance must be given to guarantor.

Guaranty.— Creditor's granting delay to debtor does not discharge surety, p. 157, note.

Cited in King v. Thompson, 3 Cr. C. C. 147, F. C. 7,807, holding that giving time after judgment does not discharge indorser.

Guaranty. Lack of notice of non-payment discharges guarantor, pp. 148-158, note.

Cited in Doylass v. Reynolds, 7 Pet. 127, 8 L. 631, holding if notice of non-payment is not given to guarantor, he is discharged.

Distinguished in Mann v. Eckford, 15 Wend. 508, where engagement of guarantor was absolute that debtor shall pay at a given day. Guaranty is construed with reference to usages of trade, pp. 148158, note.

Rule applied in Smith v. Dann, 6 Hill, 545.

3 Wheat. 159-167, 4 L. 357, HUGHES v. UNION INS. CO. Marine insurance.- Unloading of cargo causing no delay is not a deviation, and does not discharge policy, p. 164.

Cited in Jolly v. The Baltimore Equitable Society, 1 Harr. & G. 306, 18 Am. Dec. 293, holding effect of alterations of house on risks, a question for jury; Thorndike v. Bordman, 4 Pick. 484, 493, holding where policy granted liberty to touch at a certain port, the ship may take in or discharge cargo there without its being a deviation, provided no delay nor change of risk insured against is occasioned.

3 Wheat. 168-172, 4 L. 361, SWAN v. UNION INS. CO.

Marine insurance.- To justify recovery the loss must be occasioned by one of the perils insured against, and this applies where the loss arises from barratry, p. 170.

Barratry is fraud and deceit by master, committed on owners, p. 170, note.

Cited to this point in Joy v. Allen, 2 Wood. & M. 320, F. C. 7,552.

3 Wheat. 172-183, 4 L. 362, DUGAN v. UNITED STATES.

Bills and notes. One again coming into possession of a bill which he has indorsed, is prima facie owner and proprietor thereof, p. 183.

The following citing cases affirm and apply this doctrine: Cassel v. Dows, 1 Blatchf. 339, F. C. 2,502, holding subsequent indorsements for collection may be stricken out; Conant v. Wills, 1 McLean, 428, F. C. 3,087, holding payee may strike out indorsements and bring action in his own name; Hunter v. Kibbe, 5 McLean, 280, F. C. 6,907, holding acceptor coming into possession of bill entitled to recover on it; Picquet v. Curtis, 1 Sumn. 480, F. C. 11,131, holding possession by original indorser is prima facie evidence of ownership; Magruder v. McDonald, 3 Cr. C. C. 307, F. C. 8,965, holding that indorser can sue on the old consideration; Pitts v. Keyser, 1 Stew. 155, holding plaintiff producing note payable to him is presumed owner, though it is indorsed by him to another; dissenting opinion, Johnson v. English, 1 Stew. 170, majority holding indorser cannot maintain action for use of indorsee, his indorsement appearing on the note; Bryant v. Owen, 2 Stew. & P. 138, holding defendant has right to contest plaintiff's authority to sue on a note; Carroll v. Meeks, 3 Port. 229, holding where note is declared on as having been transferred by payee to plaintiff, and it shows an intermediate indorsement, it will be presumed that note has been returned to payee and by him delivered to bearer; Beal v. Snedicor, 7 Port. 528, holding plea that note has never been assigned must be verified; Earbee v. Wolfe, 9 Port. 367, holding payee indorsing in full, and afterwards gaining possession may maintain action without extrinsic proof of ownership; Herndon v. Taylor, 6 Ala. 461, admitting note in evidence though indorsed to one not connected with suit; Hunt v. Stewart, 7 Ala. 527, holding where suit is brought in name of payee for use of person to whom note has been indorsed, payee cannot maintain the action; Pickett v. Stewart, 12 Ala. 204, holding where suit is brought for use of another, indorsement of nominal plaintiff may be stricken out; Phillips v. Poindexter, 18 Ala. 585, holding possession of bill indorsed for collection is prima facie evidence of restoration; Anniston Pipe Works v. Mary Pratt Furnace Co., 94 Ala. 607, 10 So. 259, holding possession of note subsequently indorsed is prima facie evidence of ownership; Naglee v. Lyman,

14 Cal. 454, holding action may be maintained by payee, though he has indorsed, if there be proof it was indorsed for collection; Camp v. Smith, 5 Conn. 85, holding payment by indorsers does not revest in maker title of property given as security; Bond v. Storrs, 13 Conn. 416, to the same effect as the principal case; Dann v. Norris, 24 Conn. 337, holding one indorsing for collection may maintain action in his own name; Brinkley v. Going, Breese (Ill.), 367, holding payee's possession of note is prima facie evidence of ownership; Parks v. Brown, 16 Ill. 456, holding plaintiff may strike out blank indorsement; Hanna v. Pegg, 1 Blackf. (Ind.) 185, holding possession of special assignor is prima facie evidence of ownership without showing reassignment; Thompson v. Coquillard, 3 Blackf. (Ind.) 437, holding suit could be maintained in name of assignor for use of assignee; Harris v. Smith, 4 Blackf. (Ind.) 550, holding like main case; Dodd v. Noble, 5 Blackf. (Ind.) 30, holding lessor could maintain action without assignment being cancelled; Lemon v. Temple, 7 Ind. 558, holding payee's possession is prima facie evidence of ownership, though there be a special indorsement to a third party; Pilkington v. Woods, 10 Ind. 434, holding it will be presumed, that bill not paid by acceptor is owned by plaintiff, and he may strike out subsequent indorsements; McCormick v. Eckland, 11 Ind. 294, declaring that an assignment without delivery is presumed never to have been completed; Mendenhall v. Banks, 16 Ind. 286, holding payee may strike out subsequent special indorsement to third party; Sater v. Hendershott, Morris, 122, holding that because suit is instituted in name of payee for use of indorser is no evidence that payee is entitled to bring it.

Cited also and relied upon to the foregoing syllabus point in Bank of Kansas City v. Mills, 24 Kan. 610, holding settlement with indorser in possession of note discharges drawer; Bell v. Morehead, 3 A. K. Marsh. 162, holding assignor of note negotiated in bank acquiring possession is prima facie owner; Miller v. Henshaw & Co., 4 Dana (Ky.), 326, holding drawer taking up accepted bill may sue in his own name; Bank of Tennessee v. Smith, 9 B. Mon. 612, holder of bill may erase or fill up if it is indorsed in blank; Hill v. Holmes, 12 La. 98, and Hebrard v. Bollenhagen, 9 Rob. (La.) 156, holding payee may recover on note without showing retransfer; Huie v. Bailey, 16 La. 217, 35 Am. Dec. 216, holding that holder of promissory note can erase subsequent special indorsement and recover against maker and anterior indorsers; Squier v. Stockton, 5 La. Ann. 121, 52 Am. Dec. 584, holding payee in possession may maintain action on note without accounting for reacquisition; Wood v. Tyson, 13 La. Ann. 105, holding special indorser may maintain suit in his own name if indorsee be his agent; Saco Man. Co. v. Whitney, 7 Me. 260, presuming note in possession has been lawfully reconveyed; Cooper v. Cooper, 14 La. Ann. 676, holding plaintiff being payee may strike out his special indorsement; Green v. Jackson, 15 Me. 139, holding