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Arrest.

4. No officer is entitled to the additional al- | sequence of the provisions of an act of congress lowance, unless he be a commandant at a sepa- of 3d March, 1835, all extra compensation of rate post; and then the claim must be sanctioned every kind, for which provision had not been by the executive. The allowance cannot be made by law, was disallowed. The defendant made to more than one officer at the same sta-intestate claimed that the provisions of the act tion. Ibid. of March 3d, 1835, were applicable only to the disbursing of public money appropriated by law during the session of congress in which that act was passed. Held, That the order of the war department of 14th March, 1835, took away all right to the extra allowances claimed under the prior army regulations. Ibid.

5. In the discharge of his ordinary duties, the adjutant and inspector-general has no distinct command; his duties consist in details of service, and not in active military command. Ibid. 6. An officer may be said to command at a separate post, when he is out of the reach of the orders of the commander-in-chief, or of a superior officer, in command in the neighbourhood. He must then issue the necessary orders to the troops under his command, it being impossible to receive them from a superior officer. Ibid. 7. The general order of the war department, of the 16th March, 1816, directing double rations to be allowed to officers commanding military departments, is construed to relate to the geographical sections of country into which the two divisions of the army are divided, and which were denominated "departments," and intended to designate the extent of actual command given to the officer commanding each department: it does not relate to the law of the 3d of March, 1813, "for the better organization of the general staff of the army." Ibid.

8. The duties and powers of a military officer of the United States are regulated by law, and the court will determine on those powers, looking to the laws which regulate them. U. S. v. Willard, 1 Paine's C. C. R. 539.

9. Moneys were advanced to a militia paymaster, when in the service of the United States, under the acts of congress of 20th January, and 3d of March, 1813, and charged to him in account, under the words, "pay of the army." Held, That these words were evidence of the appropriation, out of which the advances were made; but that such advances were to be disbursed to the regular troops, excluding the militia. Ibid.

10. Congress have a constitutional right to enlist minors in the navy or army, without the consent of their parents. U. S. v. Bainbridge, 1 Mason's C. C. R. 71.

11. Under the navy acts, the consent of the father is not necessary to the valid enlistment of boys in the service. Ibid.

12. An action was brought by the United States against captain Eliason, for a balance due by him as disbursing officer at Fortress Calhoun. The defendant claimed an allowance as commissions on the disbursement of large sums of money under the orders of the war

14. The power of the executive to establish rules and regulations for the government of the army is undoubted. The power to establish, necessarily implies the power to modify or to repeal, or to create anew. The secretary of war is the regular constitutional organ of the president for the administration of the military establishment of the nation; and rules and orders, publicly promulgated through him, must be received as the acts of the executive, and as such are binding upon all within the sphere of his legal and constitutional authority. Ibid. See COMMISSION BY BREVET.

ARREST.

1. An arrest cannot be made of a person attending court as a party, or as a witness. Blight's Ex'r. v. Ashley, 1 Peters' C. C. R. 41.

2. It is not a contempt of court to serve a person with a summons, while attending at the place where the court is held, as a party in a cause, or as a witness. Ibid.

3. It is a contempt of court to serve process, either of summons or capias, in the actual or constructive presence of the court. Ibid.

4. An arrest is the taking, seizing, or detaining the person of another, touching or putting hands upon him in the execution of process; or any act indicating an intention to arrest. U.Ś. v. Benner, 1 Baldwin's C. C. R. 239.

5. Where a man enters special bail for the appearance of a defendant in a civil action, he may seize his person at his pleasure, and commit him to prison; or if the principal escapes, the bail may pursue him to another state, and bring him back by the use of all necessary force and means of preventing escape. Johnson v. Tompkins et al., i Baldwin's C. C. R. 578.

6. If the slave absconds, the master may pursue him into another state and retake him, and may bind or secure him in any other way to prevent his second escape; he may arrest him department by the use of as much force as is necessary to effect his reclamation. He may enter peacefully on the property or in the house of another, taking care to commit no breach of the peace against those persons. But it is no breach of the peace to use as much force or coercion towards the fugitive as suffices for his security; as without such force, no slave could be retaken without his consent. The master may also use every art, device, or stratagem, to decoy the slave into his power. Odious as those terms may be in their application to an unlawful act, they ought

in 1834, and the years included up to 1838, u der the regulations of the war department, contained in the army regulations printed in 1821, "at the rate of two dollars per diem, during the continuance of such disbursements, provided the whole amount of emoluments shall not exceed two and a half per cent. on the sum expended." The United States v. Eliason, Administratrix, 16 Peters, 291.

13. By a subsequent regulation of the war department of 14th March, 1835, adopted in con

Arrest of Judgment.-Assault and Battery.

to be considered as far otherwise, when used for a lawful purpose. lbid.

7. If an arrest is made without a warrant from a proper officer, the person making the arrest is liable to damages to the party arrested, if he is innocent of the offence with which he is charged, and for which he has been arrested, though the person arresting him may have honestly believed the other guilty: though there was ground for suspicion, or probable cause for the arrest, he is liable for an action for the arrest, unless actual guilt appears. Ibid.

8. If a lawful warrant is directed to an officer or a private person, and he does not exceed or abuse the authority it confers, he is liable to no action, though the person described in the warrant, and arrested, is wholly innocent of the offence charged; so that while innocent men are protected from arrests by officers or private persons on their own authority, the latter are equally protected in the execution of lawful process. The same rule applies to a person arrested as a slave. Ibid. 481.

15. There is no principle of national law, nor any word in the act of congress, which justifies the arrest of a minister who waives the privilege of the diplomatic character. Ibid.

16. To subject an officer to indictment, who, under a warrant, arrests a diplomatic person, is not necessary to prove that he knew the person to be a minister at the time of the arrest. The law does not make knowledge an ingredient in the offence. Ibid.

ARREST OF JUDGMENT.

1. Where the declaration in ejectment was right, and that which had been served on the tenant in possession was wrongly entitled, the defendant having entered a plea to the declaration against him, the court refused to arrest the judgment. Huidekooper v. Burrows, 1 Wash. C. C. R. 257.

2. An averment that the defendant harboured and concealed fugitives from labour, after notice that they were such fugitives, is sufficient. Jones v. Vanzandt, 2 M'Lean, C. C. R. 612.

9. In the case of an indictment for resisting the marshal of the United States, in the execution of a warrant issued by the judge of the district court of the United States, the court said: the 22d section of the act of congress, passed on the 30th day of April, 1790, for the punishment of certain crimes, included every species of pro- 4. An averment that the slaves "escaped from cess, legal and judicial, whether issued by the the state of Kentucky, and came to the defendcourt in session, or by a judge or magistrate, ant, at Hamilton county, in the county and disacting in that capacity out of court, in the executrict aforesaid," refers to the state and district tion of the laws of the United States. The U. S. v. last above named, unless the contrary be clearly Lukens, 3 Wash. C. C. R. 335. shown. Ibid.

8. The word escaped being used in the act of congress, is the most appropriate term to be used in the declaration; but any word of equal import will be sufficient. Ibid.

10. On a count in the indictment for resisting the officer of the United States, it is necessary that the person resisting should use or threaten violence. lbid.

11. A party to a cause depending for a trial, is privileged from arrest, during the continuance of the court at which the trial will take place. Ex parte Hurst, 1 Wash. C. C. R. 186.

12. The privilege extends, not only to prevent his arrest when attending the court and when coming to and returning from it, but while he is at his lodgings. Ibid.

13. The privileges of a foreign minister, which exempt him from arrest, are not personal, nor is their violation punished as an injury to himself; if the immunity from arrest is the privilege of the sovereign who sends him, the injury is done to him in the person of his representative. The laws of nations protect the minister, that he may not be obstructed in the business of his mission; his person is as inviolable as that of his sovereign, within whose territory he is presumed to reside. The United States v. Benner, 1 Baldwin's C. C. R.

240.

14. The general law of all nations, as well as the municipal laws of each, exempt ministers from all jurisdiction or control over their persons, as long as their representative character is recognised by the government which sends or receives them; if they exercise the functions of ministers or retain that character, their exemptions attach to their office, whether they claim them or not. Ibid.

5. A declaration founded upon a statute, must conclude against the form of the statute. Ibid.

ASSAULT AND BATTERY.

1. An assault is an offer to strike, beat, or commit an act of violence on the person of another, without actually doing it, or touching his person. A battery is the touching or commission of any actual violence on the person of another, in a rude and angry manner. Johnson v. Tompkins et al., 1 Baldwin's C. C. R. 600.

2. An assault is an offer or an attempt to do a corporal injury to another, as by striking at him with the hand, or a stick, or shaking the fist at him, or presenting a gun or other weapon within such distance as that a hurt might be given, or drawing a sword and brandishing it in a menacing manner: each of these acts to be done with intent to do some corporal hurt to another. United States v. Hand, 2 Wash. C. C. R. 435.

3. Per Mr. Justice Washington. It was ar gued by the counsel for the defendant, that to constitute an assault, it must be accompanied by some act of violence. The mere taking hold of the coat, or laying the hand gently on the person of another, it is said, does not amount to the offence. It is very true, these acts may be done innocently, without offending the law. If done in friendship, and for a benevolent purpose, the act would certainly not amount to an assault. But these acts, if done in anger, or in a

Assessment.-Assets.

rude and insolent manner, or with a view to | And the said J. B. made default, whereupon this hostility, amount not only to an assault but to a case being submitted to the court, and the court battery. Even striking at a person, though no having fully heard the parties by their counsel, blow be inflicted, or raising the arm to strike, or and mature deliberation being thereon had, it holding up one's fist at him, if done in anger or is considered by the court, now here, that the in a menacing manner, are considered by the said B. H. do recover against the said J. B., the law assaults. United States v. Ortega, 4 Wash. surviving partner, as aforesaid, the sum of C. C. R. 534. thirty-four thousand four hundred and fifty-five dollars and twenty-seven cents damages, and the costs of suit taxed at sixteen dollars and fifty-two cents. To the record of this judgment, the following memorandum was annexed: Nota Bene-The above sum as ordered by the court, includes the principal and interest, from, &c., and twenty-nine dollars and twenty-two cents, charges of protest. Held, that under the laws and the practice of the courts of Rhode Island, this judgment was legal. Brown v. Van Braam, 3 Dall. 344.

4. In the case of Charles Tredwell, appellant, v. Harry Joseph, appellee, 1 Sumner's Reports, 390, the circuit court affirmed, on appeal, the decree of the district judge of the district court of the United States of Massachusetts district, giving damages for a wrongful assault of a seaman, and imprisonment. 1 Sumner's C. C. R.

390.

5. In an action of assault and battery to which the general issue is pleaded, the defendant may give in evidence his state of mind, caused by an excitement or provocation so recent or immediate as not to allow the blood to cool. Churchman v. Waddell, 1 Baldwin's C. C. R. 58, 59.

6. The legal effect of such evidence is not to excuse the defendant from paying compensatory damages, but will excuse his paying such as are exemplary. Ibid.

7. If the alleged provocation is a previous assault and battery of the son of the defendant, evidence of the transaction is not admissible; but the defendant may give in evidence the appearance of the son, and the account he gave to the defendant when he first saw him, so as to enable the jury to decide on the cause and extent of the provocation. Ibid.

ASSESSMENT.

1. Under the act of the legislature of Virginia, of December 22, 1794, property pledged to the Mutual Insurance Society, continues liable for assessments on account of the losses insured against, in the hands of a bona fide purchaser, without notice, although the property has become part of the District of Columbia. Mutual Assurance Society v. Watts, 1 Wheat. 279; 3 Cond. Rep. 570.

4. By the laws and practice of Rhode Island, where judgment is entered by default, discon tinuance, nihil dicit, non sum informatus, or on demurrer, the damages may be inquired into, and assessed by the court or by a writ of inquiry, at the discretion of the court; and where neither party demands a writ of inquiry, the record is made up as above. Ibid.

5. By the laws and practice of Rhode Island, the non-attendance of the party after plea pleaded, and before trial, is considered as a default; and the court proceed to enter judgment against him and to assess the damages, without the intervention of a jury. Ibid.

6. Where, by the state laws and practice, upon a default, damages may be assessed for the plaintiff by the court; the circuit court may, under the 34th section of the judiciary act of 1789, ch. 20, adopt the like practice. İbid.

7. Where the action is brought for a sum certain, or which may be made certain by computation, as on a bill of exchange, judgment for the damages may be entered up by the court, without a writ of inquiry. Renner v. Marshall, 1 Wheat. 215; 3 Cond. Rep. 546.

8. An agreement on the record in the court below, stating the damages to be allowed on certain alternatives, will not be regarded by the supreme court on a writ of error, but the court will award a venire facias de novo, to assess them. Lanusse v. Barker, 3 Wheat. 101; 4 Cond. Rep. 204.

ASSETS.

2. By the laws of Louisiana, questions of fact in civil causes, are tried by a court, unless either of the parties demands a jury: in an action of debt on a judgment, the interest on the original judgment may be computed and make part of the judgment in Louisiana, without a writ of inquiry, or the intervention of a jury. Mayhew v. Thatcher et al., 6 Wheat. 129; 5 Cond. Rep. 34. 3. An action was brought in the circuit court 1. During the pendency of a suit to rescind a for the district of Rhode Island, on certain bills contract for the purchase of a tract of land, on an of exchange, drawn by the defendants B. & F., allegation that there had been a fraudulent misand endorsed to the plaintiff B. H. Subsequently representation by the vendor, it was agreed that to the service of the original writ, the defendant the rents and profits of the lands should be reF. died; the other defendant B. came into court, ceived by an agent, to abide the event of the and after suggesting the death of F., pleaded suit. The supreme court affirmed the decree the general issue; and the plaintiff having like- of the circuit court, rescinding the contract, and wise suggested the death of F., prayed judgment ordering the part of the purchase-money paid by against J. B. the surviving defendant. "There the purchaser, repaid to him. The vendor of the was joinder in issue, continuance or other plead-land died, and the rents and profits which had ing; but immediately after the above prayed- been received by the agent, were adjudged to for judgment, the record proceeded as follows:" | be assets in the hands of his executor, who had VOL. I.-16

Assets.

been the receiver. Boyce's Ex'rs. v. Grundy, 9 Peters, 275.

would be conveyed as required by the bill. The court, not considering that sufficient evidence of an agreement to convey the property was given, ordered that the property should be sold, and

2. Stock held by a trustee: the holder, after an assignment, is a mere trustee, and the stock is not assets in the hands of his administrator or as-out of the proceeds that the advances made by signee. U. S. v. Cutts, 1 Sumner's C. C. R. 133. 3. An administrator has no authority to sell an estate held in trust for other purposes, to pay the debts of the intestate. Robinson v. Codman, 1 Sumner's C. C. R. 121.

the complainant should be repaid. The property sold for a sum far less than the amount expended. Held, that the balance unpaid after the sale was not a debt due by the estate of the father of the wife, and could not be claimed of his representatives, the estate being insolvent. King v. Thompson et al., 13 Peters, 128.

10. The Josefa Segunda was condemned for a violation of the laws of the United States, prohibiting the slave-trade; and by a decree, the district court of Louisiana allowed the claim of the collector, surveyor, and naval officer, who had prosecuted for the forfeiture, to a portion of the proceeds of the sale of the property condemned. This decree was afterwards reversed, and the whole proceeds adjudged to the United

4. By the laws of Connecticut, the real estate of an intestate may be sold for the payment of debts, where there is a deficiency of personal estate. The administrator, by virtue of his general authority, has no right to meddle with the real estate, but derives especial authority from the order of the court of probates, which possesses jurisdiction to direct a sale, upon a proper application, and proof of the deficiency of personal assets. The power or trust conveys no estate to the administrator. He has simply an authority; and upon the sales makes a conveyance to the pur-States, on an appeal to the supreme court. Wilchaser, to whom the estate passes, upon his entry on the land, by operation of law, so that he is under an estate of inheritance. Ricard v. Williams, 7 Wheat. 59; 5 Cond. Rep. 237.

5. An administrator is not liable to pay interest upon assets in his hands, unless under special circumstances. Dexter v. Arnold et ux., 3 Mason's C. C. R. 284.

6. The principle of marshalling assets, is this: A creditor having the choice of two funds, ought to exercise his right of election in such a manner as not to injure other creditors, who can resort to one only of those funds; but if he, in the exercise of his legal rights, exhausts that to which alone other creditors can resort, equity will place them in his situation, so far as he has applied their funds to his claim. Alston v. Munford, 1

Brockenb. C. C. R. 266.

7. In the application of this principle, simple contract creditors will be substituted for specialty creditors, but not for judgment creditors: that is, the simple contract creditors cannot charge the lands for so much of the personal funds as has been applied to the payment of debts due by judgments obtained against the ancestor. The reason is, that the writ of elegit, by virtue of which the land is charged by the judgment against the ancestor, does not issue singly against the land, but against all the chattels (save oxen and beasts of the plough); and if the chattels be sufficient, the land ought not to be extended. The judgment creditor, therefore, has not the election between two funds (as the specialty creditor has); and the principle on which assets are marshalled does not apply to the case.

Ibid.

8. Upon this principle of marshalling assets, where payments have been made by an executor, to the vendor of land purchased by the ancestor, and not conveyed to him, the lien of the vendor will be marshalled. Ibid.

9. A bill was filed, claiming a specific performance of an alleged contract to convey a house and lot in Georgetown, for the benefit of the wife of the complainant, the complainant having expended a large sum of money in improving the property, in the expectation that it

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liam Emerson, the surveyor, afterwards died; and in 1831, congress passed an act for the relief of the collector, the heirs of William Emerson, and the heirs of the naval officer; under the authority of which, the sums which had been adjudged to those officers, and which had remained in the district court of Louisiana, were, by an order of the court, paid to them according to the provisions of the law. One of the creditors of William Emerson claimed the sum so paid to his legal representatives, as assets for the payment of his debt. Held, that the payment made by order of the district court, to the minor children of William Emerson, as his legal heirs, was rightfully made; and that the same cannot be considered in their hands as assets for the payment of the debts of their father. Emerson's Heirs v. Hall, 13 Peters, 409.

11. The prosecution of the Josefa Segunda, by the officers of the customs of Louisiana, was not done under the authority of any law, or by any authority; and these acts imposed no obligation, either at law or in equity, on the government to compensate them. The claim for those services could not have been set up either as an equitable or a legal offset to any demand of the government against them, or either of them; while, under the rules of law, any specific de mand on the government which imposed on it even an equitable obligation, might be set up as an offset. Ibid.

12. Services rendered under the requirements of law, or of contract, for which a compensation is fixed, constitute a legal demand on the government. Services rendered under an authority which is casual, or in some degree discretionary, may constitute an equitable claim. No individual can be made a debtor against his will. Voluntary benefits may be conferred on him, which may excite his gratitude, or which, in the exercise of his generosity, he may suitably reward; but this depends on his own volition. It would constitute a singular item under the law of assets, to raise a charge against an individual for a benefit conferred by some voluntary act of kindness. The rule is the same, whether the

Assignees of Bankrupts.—Assignment and Assignees. General Principles.

benefit be conferred on the government or an | the United States were entitled, and which, individual. Ibid. under the treaty with Spain, were to be the subjects of compensation, passed by abandonment to the underwriters upon property which had been seized or captured. Ibid. 215.

13. A claim against a foreign government for spoliations is not of this character; the demand in such a case is founded on the law of nations, and the obligation is perfect on the offending government. Ibid.

ASSIGNEES OF BANKRUPTS.

1. The assignees of a bankrupt, in England, cannot maintain an action at law in their own name against a debtor of a bankrupt in Virginia; and the action is only maintainable in the name of the bankrupt himself. Though the right to personal property may be regulated by the laws of the domicil, as in the case of the bankrupt laws of England, and though the equitable rights of the assignees acquired under those laws, will be respected in our courts, yet, the right of action must be regulated by the law of the forum in which the suit is brought. And the transfer of a bankrupt's effects, in England, being an assignment merely by operation of law, and not by the act of party, is not such an assignment of the legal title to the assignees, as will enable them to maintain an action in their own name, in the courts of Virginia. Blane v. Drummond, 1 Brockenb. C. C. R. 62.

2. The bankrupt law of a foreign country, cannot operate a legal transfer of property in the United States. Harrison v. Sterry et al., 5 Cranch, 289; 2 Cond. Rep. 260.

3. Upon the death of an assignee, under the United States' bankrupt law, the right of action for debts due the bankrupt's estate, vests in the executor of the assignee. Richards v. The Maryland, Ins. Co., 8 Cranch, 84; 3 Cond. Rep. 45.

ASSIGNMENT AND ASSIGNEES.

4. The right to compensation from Spain, held under abandonment made to underwriters, and accepted by them, for damages and injuries, and which were to be satisfied under the treaty, by the United States, passed to the assignees of the bankrupt, who held such rights by the provisions of the bankrupt law of the United States, passed April 4, 1800. Ibid. 219. 5. A general assignment is valid for actual liabilities, as well as for debts due, if the parties so intend. Halsey v. Whitney, 4 Mason's C. C. R. 206.

6. One partner may sign and seal such an assignment for the firm, and it will bind the partnership as a release of the debt. Ibid.

7. A patentee of an invention cannot maintain a suit after he has made an assignment, for any violation of his patent, but the suit must be brought by the assignee.' Herbert v. Adams, 4 Mason's C. C. R. 15.

8. An assignment made before the patent is obtained, is good, and binds the right of the patentee. Ibid.

9. An assignment by one partner, in the name of the firm, of the partnership effects and credits, is valid. Harrison v. Sterry et al., 5 Cranch, 289; 2 Cond. Rep. 260.

10. Where bills of lading consign the property to a consignee, for sales and returns, he alone can endorse them, so as to convey the title. But subject to such an endorsement to a purchaser, the consignor may, by a legal conveyance, assign a legal title to it, so as to be good against his own creditors. D'Wolf v. Harris, 4 Mason's C. C. R. 515.

11. A parol assignment of a share in a prize is void. The Dart, 1 Mason's C. C. R. 4. 12. An assignment of goods at sea, and their proceeds, if bona fide, is sufficient to pass the 2. Assignments by debtors for the benefit of creditors. 187 legal title to the goods, and also to the proceeds; so that replevin will lie for the latter. D'Wolf v. Harris, 4 Mason's C. C. R. 515.

1. General principles.....

.Page 183

3. Effect of possession by an assignor of assigned pro.

perty, after assignment...........

4. Assignment of choses in action .......

........ 189

13. An assignment of goods and their proceeds 5. Assignment of partnership property by one partner. 191 may, in point of law, be good, though given by way of mortgage, or as security for future advances. Ibid.

1, General Principles.

1. In general, it may be affirmed, that mere personal torts, which die with the party, and do not survive to his personal representatives, are incapable of passing by assignment; and that vested rights, ad rem and in re, possibilities coupled with an interest and claim, growing out of, and adhering to property, may pass by assignment. Comegys et al. v. Vasse, 1 Peters, 213. 2. The law gives to the act of abandonment to underwriters, when accepted, all the effects which the most accurately drawn assignment would accomplish. The underwriter then stands in the place of the insured, and becomes legally entitled to all that can be recovered from destruction. Ibid. 214.

3. It is clear, that the right to compensation for damages and injuries, to which citizens of

14. An endorsement of the bill of lading is not indispensable, to perfect an assignment of goods at sea. It is sufficient, if there be a good assignment of the property by a conveyance, with apt words. Ibid.

15. A person, who, upon receiving an assignment of a share of property, for the security of a debt, agrees to comply with the contract of the assignor with a joint owner of the property, is bound to fulfil that contract, although it exceed in amount the value of the property assigned to him. Clarke's Ex'rs. v. Carrington, 7 Cranch, 308; 2 Cond. Rep. 507.

16. An assignment was made by one of the partners of a firm, but a short time before they stopped payment; and when there was much reason to believe, as well from the face of the

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