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FULL AND ARRANGED

DIGEST

OF THE MATTERS DECIDED IN THE SUPREME, CIRCUIT AND DISTRICT COURTS

OF

THE UNITED STATES,

FROM THE ORGANIZATION OF THE GOVERNMENT OF THE UNITED STATES, 1789, TO 1847.

ABANDONMENT-(See INSURANCE.)

ABANDONMENT OF A CONTRACT FOR THE SALE
OF REAL ESTATE.

1. To sustain an implication of an abandonment of the sale of real estate, the conduct of the vendor ought to be such as to justify a reasonable man in believing that he acquiesced in the decision of the vendor to abandon the contract. It ought to be such as might reasonably influence the conduct of the vendor, and induce him to regulate his own affairs, on the presumption that he was no longer encumbered by his contract. The attempt of the vendor to sell the estate, or the unequivocal exercise of ownership over it, unaccompanied with any explanation showing that he still considered the contract binding, might be such an act. Mr. Tate's Report of the Opinion of Mr. Chief Justice Marshall, in Garrett, Executor of Brooke v. Mann et al. Circuit Court of the United States, Eastern District of Virginia, November 25, 1825. Also reported in 2 Brockenbrough, C. C. Rep. 185.

2. A right acquired by user of an incorporeal hereditament may, in like manner, be lost by disuser. The discontinuance of the use for a long period of time, affords a presumption of the extinguishment of the right. Hazard v. Robinson, 3 Mason, 272.

ABANDONMENT AFTER SEIZURE FOR AN ALLEGED

BREACH OF THE REVENUE LAWS.

If a seizure be abandoned, no jurisdiction attaches to any court, unless there be a new seizure. But to constitute such an abandonment, there must be an unequivocal act of dereliction. If after the seizure of a ship, on the allegation of a breach of the 32d section of the Act of Congress, regulating the coasting trade, and under the 50th section of the Revenue Collection Act. of 2d March, 1799, chapter 128, the master agrees to navigate her into port, under the direction of the seizor, and then to give her again into his possession, there is no abandonment of the seizure, although the persons who were em

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1. If a demandant demand against any land, more land than he holds, he may plead nontenure as to the parcel not holden; but the action shall abate only as to the parcel whereof non-tenure is pleaded, and admitted or proved. Green v. Liter, 8 Cranch, 229; 3 Cond. Rep. 97. 2. The commencement of another suit for the same cause of action in the court of another state, since the last continuance, cannot be pleaded in abatement of the original suit. Renner et al. v. Marshall, 1 Wheat. 215; 3 Cond. Rep. 546.

3. If matter in abatement is pleaded puis darrein continuance, the judgment, if against the defendant, is peremptory. Ibid.

4. Non-tenure, joint tenure, sole tenure, and several tenure, could, at common law, be only pleaded in a writ of right in abatement. The tenant, by joining in the mise, or by pleading in bar, admitted himself to be tenant of the freehold, and his capacity to take defence. Green v. Liter, 8 Cranch, 229; 3 Cond. Rep. 97.

5. If to a writ out of the circuit court for the district of Virginia, the marshal returns that the defendant is not an inhabitant of the district, the law abates the writ. Barker v. Pettit et al. 7 Cranch, 194; 2 Cond. Rep. 471.

6. A subsequent suit may be abated by an allegation of the precedency of a prior suit; but the converse of the proposition is, in personal actions, never true. Renner et al. v. Marshall, 1 Wheat. 215; 3 Cond. Rep. 546.

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Abatement by want of Joinder of Parties, or by Non-joinder of a Proper Party.

7. Variances between the writ and the decla- | tween the writ and declaration, because the ration are matters pleadable in abatement only, citizenship of the parties is stated in the latter and cannot be taken advantage of upon general only, is a frivolous plea, and will be struck out demurrer to the declaration. Duvall v. Craig et on motion. Burrow v. Dickson, 1 Overt. 366. al. 2 Wheat. 45; 4 Cond. Rep. 25.

17. A plea to the jurisdiction can be interposed only by the defendant himself in propria persona, and on oath; no attorney, proctor, solicitor, or third person, can be admitted to file such a plea. Teasdale v. The Rambler, Bee, 9.

18. A demurrer is, in its nature, a plea to the

8. A. L. brought an action of assumpsit in the circuit court; after issue, the plaintiff died, and the suit was revived by scire facias, in the name of the administratrix. While this suit was pending, the administratrix intermarried with F. A., which marriage was pleaded puis darrein con-action, and will not be considered as a plea in tinuance. Held, that the scire facias was there- abatement; though the special causes alleged upon abated and a new scire facias might be for demurrer, be matter of abatement. The issued, to revive the original suit in the name court will disregard these special causes, and of F. A. and wife, as the personal representatives considering the demurrer independently of them, of A. L., to enable her to prosecute the suit to will decide upon it as if they had been inserted final judgment, under the 31st section of the Ju-in it. Furniss et al. v. Ellis & Allan, 2 Brockendiciary Act of 1789, chapter 20. M'Coul v. Le brough's C. C. R. 14. Kamp's adm'x. 2 Wheat. 111; 4 Cond. Rep. 58. 9. In a writ of right, where the demandant describes the land by metes and bounds, and counts against the tenants jointly; the tenants, by pleading in bar, admit their joint tenancy, and lose the opportunity of pleading in abate-But in actions of general indebitatus assumpsit ment. Liter v. Green, 2 Wheat. 306; 3 Cond. Rep. 47.

10. If a suit be brought against the seizing officer for the supposed trespass, while the suit for the forfeiture is depending, the fact of such pendency may be pleaded in abatement, or as a temporary bar of the action. If after a decree of condemnation, then that fact may be pleaded as a bar. If after an acquittal, with a certificate of reasonable cause of seizure, then that may be pleaded as a bar. If after an acquittal, without such certificate, then the officer is without any justification for the seizure, and it is definitively settled to be a tortious act. Gelston et al. v. Hoyt, 3 Wheat. 246; 4 Cond. Rep. 244.

11. In an action against persons styling themselves executors, if they are not executors, the objection must be taken by plea in abatement. Childress' Executors v. Emory et al. 8 Wheat. 642; 5 Cond. Rep. 547.

12. Where the subject matter of the controversy is not within the jurisdiction of the court, the exception may be taken under the general issue, without pleading in abatement. Sonnaire et al. v. Keating, 2 Gallis. C. C. R. 325.

13. The corruption or abbreviation of a true name in an action by the use of it, when it has been commonly in use with the true name, is not cause of abatement. Gordon v. Holliday, 1 Wash. C. C. R. 285.

14. An obligor, or co-contractor, cannot be charged singly, if in due time he takes advantage of the omission to sue the other; provided he plead the omission in abatement, and thus give the plaintiff a better writ. He cannot take advantage of it on the trial. Jordan v. Wilkins, 3 Wash. C. C. R. 110.

15. Where the defendant pleads in abatement, and the issue is tried by a jury, who find against the plea, they ought to assess the plaintiff's damages; if, however, it is omitted, a venire de novo must be awarded. Hollingsworth v. Duane, Wallace's C. C. R. 51.

16. A plea in abatement for a variance be

19. The rule is, that where the declaration gives notice to the defendant of the nature of the demand, so as to enable him to plead in abatement, as in actions on bonds, or special actions, the defendant cannot take advantage on the trial.

where no such notice is given, the defendant cannot plead in abatement, the declaration not stating the precise nature of the demand. Jordan v. Wilkins, 3 Wash. C. C. R. 226.

20. The abatement of a suit in equity. is merely an interruption to the suit, suspend.ng its progress until new parties are brought before the court. Hoxie v. Carr, 1 Sumner's C. C. R. 173.

21. If a corporation established in a foreign country, sue in the courts of the United States, and war intervene, pending the suit, this is not sufficient to defeat the action. unless it appear on the record that the plaintiffs are not within any of the exceptions which enable an alien enemy to sue. Society, &c. v. Wheeler, 2 Gallis. C. C. R. 105.

22. A variance between the writ and declaration must be taken advantage of by plea in abatement. How et al. v. M'Kinney et al.,

1 M'Lean, C. C. R. 319.

23. A suit having been commenced in the court, is not abated by an attachment subsequently issued in the state court. Campbell v. Emerson, 2 M'Lean, C. C. R. 30.

2. Abatement by want of Joinder of Parties, or by Non-joinder of a Proper Party.

24. A plaintiff who has declared jointly against two defendants, as being in custody, when in fact but one of the defendants was taken on the capias, cannot abate his own action against the party not taken; unless authorized so to do by the return of the process against that party. Barton v. Pettit et al. 7 Cranch, 194; 2 Cond. Rep. 471.

25. If to a writ out of the circuit court for the district of Virginia, the marshal returns that the defendant is not an inhabitant of Virginia, the law abates the writ. Ibid.

26. If there be several tenants claiming several parcels of land by distinct titles, they cannot lawfully be joined in one writ; and if they are, they may plead in abatement to the writ. Green v. Liter, 8 Cranch, 229; 3 Cond. Rep. 89.

Abatement by Death of a Party to the Action-Time of Pleading in Abatement.

27. The principle, is that a contract made by co-partners is several, as well as joint, and the assumpsit is made by all and by each. It is obligatory on all, and on each of the partners. If, therefore, the defendant fails to avail himself of the variance in abatement, when the form of the plea obliges him to give the plaintiff a proper action, the policy of the law does not permit him to avail himself of it at the trial. 1 Peters,

C. C. R. 111–117.

28. Although one partner is not bound singly to pay a bill due from him and his partner, if, when sued, he plead in abatement the omission to join his partner in the action, yet he is not entitled, in his own name, to sue for a partner ship debt; and if he sue in his own name, the defendant may take advantage of it on a trial on the general issue. John Jordan v. John Wilkins, Junior, 3 Wash. C. C. R. 113.

29. On a joint and several bond, the plaintiff may sue one or all the obligors; but, in strictness of law, he cannot sue one intermediate member. He must sue all or none. But if such error is not taken advantage of by plea in abatement, it is waived by pleading to the merits. Minor et al. v. The Bank of Aiexandria, 1 Peters,

47-73.

30. In an action on a joint and several bond, the plaintiff may sue one, or all the obligors; but in strictness of law he cannot sue an intermediate member He must sue all or none. But if such error is not taken advantage of by plea in abatement, it is waived by pleading to the merits. Minor et al. v. The Mechanics' Bank of Alexandria, 1 Peters, 46.

or against the personal representatives of the deceased, where the cause of action survives. This is effected by the 31st section of the judi ciary act of 1782, chapter 20. Green v. Walkins 6 Wheat. 260; 5 Cond. Rep. 87.

36. In writs of error upon the judgments already rendered, in personal actions, if the plaintiff in error dies before assignment of errors, the writ abates at common law; but if after assignment of errors, the defendant may join in error, and proceed to get the judgment affirmed, if not erroneous, and may then revive it against the representatives of the plaintiff. Ibid.

37. But a writ of error, in personal actions, does not abate by the death of the defendant in error, whether it happens before or after errors assigned; and the personal representatives may not only be admitted voluntarily to become par ties, but a scire facias may issue to compel them. Ibid.

38. By the rules of the Supreme Court, if either party in real or personal actions, die pending the writ of error, his representatives, in the personalty or realty, may voluntarily become parties, or may be compelled to become parties in the manner prescribed by the rule. Ibid.

39. In real actions, the death of either party, before judgment, abates the suit. The thirtyfirst section of the judiciary act of 1789, ch. 20, which enables the action to be prosecuted by or against the representatives of the deceased, when the cause of action survives, is clearly confined to personal actions. Macker's Heirs v. Thomas, 7 Wheat. 530; 5 Cond. Rep. 334.

40. At common law, the death of a sole plaintiff or defendant, before final judgment, would have abated the suit; but if either party had died in vacation after verdict, judgment might have been entered in that vacation, as of the preceding term; and it would have been a good judgment at common law, as of the preceding

31. The principle is, that a contract made by co-partners is several, as well as joint, and that the assumpsit is made by all, as well as by each. It is obligatory on all and on each of the partners. If, therefore, in an action against one of the parties to the contract, the defendant fails to avail himself of the variance by a plea in abate-term. ment, when the form of his plea obliges him to give the plaintiff a proper action, the policy of the law does not permit him to avail himself of it at the trial. Barry v. Foyles, 1 Peters, 317.

32. Where one of two partners resident abroad, is sued here, he is not allowed to plead in abatement that his co-partner is not sued with him. Guion v. M-Culloch et al. N. Carol. Cas. 78.

33. The defendant may avail himself of the circumstance that the suit is brought in the name of one only of two partners, upon the plea of non assumpsit; but when he wishes to avail himself of the non-joinder of his own partner, as codefendant, he must plead it in abatement. Coffee v. Eastland, 1 Cooke, 159.

3. Abatement by Death of a Party to the Action. 34. The proceedings in admiralty courts are not affected by the death of a party. Such an event does not abate the suit, nor does it affect the decree. Penhallow v. Doane's Adm. 3 Dallas, 54; 1 Cond. Rep. 21.

35. In real and personal actions at common law, the death of parties before judgment abates the suit, and it requires the aid of some statutory provision to enable the suit to be prosecuted, by

But where either party dies between verdict and judgment, the statute 17 Car. 2, c. 8, enacts that it shall not be matter of error, if judgment be entered within two terms after the verdict. The judgment upon this statute is entered by or against the party, as though he were alive. But there must be a scire facias against the administrator, to revive it, before any execution can issue; and such scire facias, pursuing the form of the judgment, should be general, as a common judgment recovered by or against the original party himself. Hatch v. Eustis, 1 Gallis. 160.

4. Time of Pleading in Abatement. 41. If matter in abatement is pleaded, puis darrein continuance, the judgment, if against the defendant, is peremptory. Benner et al. v. Marshall, 1 Wheat. 215; 3 Cond. Rep. 546.

42. Variances between the writ and the decla

ration are, in general, matters proper for pleas in abatement; and if, in any case, such variances can be taken advantage of by the defendant, it is an established rule, that it can only be done upon oyer of the writ granted in some proper stage of the cause. Chirac v. Reinicker, 11 Wheat. 280; 6 Cond. Rep. 310.

Abatement of a Legacy.-Abeyance.-Abolition Society.-Absence from Duty by a Seaman. 43. After bail given and plea pleaded, the defendant cannot arrest the judgment on the ground of misnomer. Scull v. Biddle, 2 Wash. C. C. R. 200.

44. Where the subject matter is not within the jurisdiction of the court, a plea of abatement is not required, but the exception may be taken under the general issue. Missionaire et al. v. Keating, 2 Gall. C. C. R. 345.

45. A denial that one of the parties to the suit is not a citizen of the United States, and therefore the court has not jurisdiction of the case, must be the subject of a plea in abatement, and cannot be brought forward in the general answer. 1 Sumner's C. C. R. 585.

46. A suit in equity does not abate by the death of a co-plaintiff or co-defendant. If one plaintiff and one defendant survive, the suit is open for amendment. Fisher v. Rutherford, 1 Baldwin's C. C. R. 192.

47. A plea in abatement at law cannot be put in after a general imparlance, or be received when it does not give the plaintiff a better writ. Baker v. Biddle, 1 Baldwin's C. C. R. 414.

ABATEMENT OF A LEGACY.

pay

48. A testator directed his estate, after ment of his debts, to be invested in funds at interest, and then gave annuities and specific legacies, and among others, £1500 to E; and provided that if there should be deficiency in his estate, for the payment of the annuities and legacies, there should not be an abatement from any of the legacies but from the legacy to E, who was also the residuary legatee. The estate was more than sufficient, at the time of the testator's death, to pay all the debts, annuities, and legacies; but by the insolvency of the executor it became insufficient. Held, that the deficiency of one of the annuities should be made up out of the legacy to E, and should not be charged on other legacies. Silsby v. Young and Silsby, 3 Cranch, 250; 1 Cond. Rep. 516.

ABEYANCE.

1. By several statutes of Virginia, and the common law, lands purchased under their authority, became vested either directly or beneficially in the episcopal church: the minister for the time being was seized of the freehold in law or equity jure ecclesia, and during a vacancy the fee remained in abeyance, and the profits of the parsonage were to be taken by the parish for their own use. Terret et al. v. Taylor et al. 9 Cranch, 43; 3 Cond. Rep. 254.

2. When a charter is granted, and the corporation is to be brought into existence by some future acts of the corporators, the franchises remain in abeyance until such acts are done; and when the corporation is brought into life, the franchises instantaneously attach. There may be in intendment of law a priority of time, even an instant, for this purpose. Per Mr. Justice Story, Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 689; 4 Cond. Rep. 517.

ABOLITION SOCIETY OF PENNSYLVANIA. In the spirit of the laws passed by the legis lature of Pennsylvania for the abolition of slavery in that state, the legislature of Pennsylvania passed an act to incorporate a society, by the name of "The Pennsylvania Society for promot ing the Abolition of Slavery, and for the Relief of Free Negroes unlawfully held in Bondage, and for improving the Condition of the African Race." No society was ever founded for nobler objects, nor more deserving of public encouragement and approbation; but it was no part of the design or objects of this benevolent institution to protect or rescue runaway slaves from the claims of their masters. It was provided in their charter, that their by-laws, rules, orders, and regulations, enacted or to be enacted, be reasonable in themselves, and not contradictory to the constitution and laws of the state.

So far as has come to our knowledge or infor mation, this society has acted on the philanthropic principles of its institution, and none other; never interfering with the rights of property as secured by the laws. They have not infringed the condition of their charter, but pursued their legiti mate objects with untiring zeal. If they have been perverted by any honorary member, by contributing to employ counsel to prosecute a master for lawfully seizing or taking away his runaway slave; the court are well convinced that it has been equally repugnant to the feelings and practice of that society, as it would be to their charter. Johnson v. Tomkins et al. 1 Baldwin, C. C. R. 587.

ABSENCE FROM DUTY BY A SEAMAN.

1. To justify the forfeiture of a seaman's act of congress of July 20, 1790, 1 Story's Laws, wages for absence, under the provisions of the U. S. 102; United States' Statutes at large, vol. i, 131, it is indispensable that there be an entry in the log-book of the fact, of the name of the seaman, and of his having left the ship or vessel without leave. Wood v. The Nimrod, Gilpin's D. C. R. 86.

2. To justify the forfeiture of a seaman's wages for absence, under the provisions of the act of July 20, 1790, the entry in the log-book is indispensable; although the absence was permanent, and although it occurred after the arrival of the vessel at her last port of delivery. Knagg v. Goldsmith, Gilpin's Rep. 212.

3. When a seaman, who has signed shipping articles, voluntarily absents himself in a port of the United States, an entry may be made in the log-book, and his wages forfeited, according to the provisions of the act of congress of 1790; or he may be apprehended and detained in jail until the vessel is ready to proceed on her voyage, according to the provisions of the seventh section of the act. Brown v. The Maiden, Gilpin's Rep. 296.

4. When the departure of the seamen from the vessel is involuntary on their part, or with reasonable cause, or with the assent of the master.

Absence from Duty by a Seaman.-Acceptance of Bills of Exchange.-Accessary. they do not forfeit their wages. Magee v. Moss, | from their duty, are again received on board, the Gilpin's Rep. 230. forfeiture of their wages, which has been incurred, is waived. The Commerce, 1 Peters' Adm. Decis. 160.

5. To justify the seamen for leaving the vessel without the consent of the master, on account of his cruelty, and before the termination of the voyage, it must be apparent that they could not remain without great danger to their personal safety. Ibid. 228.

6. The charge for a person necessarily employed in the place of a seaman, absent without leave, is to be deducted from his wages. Small v. The Independence, Gilpin's Rep. 145.

7. The charge for a person necessarily employed in the place of a seaman, who has voluntarily absented himself, and who has been apprehended, and is detained in jail, is to be deducted from his wages. Brown v. The Maiden, Gilpin's Rep. 298.

8. Where a vessel is detained in port by the wrongful absence of a seaman, a deduction from his wages is allowed, to the amount of the loss actually sustained. Brown v. The Neptune, Gilpin's Rep. 90.

9. A seaman who returns to a vessel, after a week's absence without leave, and continues during the rest of the voyage, is to receive his wages at the rate originally contracted for in the shipping articles, unless a new contract was made. Snell v. The Independence, Gilpin's Rep.

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15. Where a mariner has incurred a forfeiture by absenting himself from the vessel, and "repents and makes an offer of satisfaction, and returns to duty in due time," that is, before the master has hired another in his place, or otherwise fairly rendered it impracticable, without injury to the owner, to receive him again, the master is bound to receive him. But all demands for damages, and contributions for losses, which warrant deductions from amount of wages, are unextinguished. Embezzlement, frauds, wilful negligences, and other misconduct, chargeable against the amount of wages demanded, remain open for inquiry and compensation. Ibid.

16. Where, by cruel treatment, seamen have been compelled to leave the ship, they do not forfeit wages. The Maria, 1 Peters' Adm. Decis. 186.

17. It is the duty of seamen to abide by the vessel as long as a reasonable hope remains. If they abandon their duty, so that it can be proved that this dereliction occasioned a final foss, or temporary damage, where their exertions would have prevented the latter, or ultimately restored the ship to safety; the seamen lose their wages, and are answerable in damages. Sims v. Mariners, 2 Peters' Adm. Decis. 393.

18. Seamen absent from a vessel, without any fault, do not forfeit wages. The Fair American, Bee's Rep. 134.

ACCEPTANCE AND ACCEPTOR OF BILLS
OF EXCHANGE.
See BILLS OF EXCHANGE.

ACCESSARY.

tral ship, carried in for adjudication by a belligerent; and a voluntary abandonment of their duty, in this respect, amounts to desertion, and 1. An accessary cannot be guilty of a greater forfeits their wages. The Elizabeth, 1 Peters' offence than his principal. The maxim is, acAdm. Decis. 128. cessorius sequitur naturam sui principalis; the 12. But where they are prevented from re-accessary follows the principal. Hence results maining on board, either by the captors or the master, or have not provisions or accommodation, and are without money or the means of subsistence, they are not chargeable with any consequences. While they remain to assist in preserving the ship, and ready to proceed on the voyage, they are entitled to their wages, and the master or owner is bound to furnish them with provisions or money for their subsistence; but with the master's consent they may return home, without prejudice to their claim. Ibid.

13. Seamen are not bound to remain with or near the ship, after an unfavourable adjudication in the lower court of admiralty of the captors, though an appeal may be entered, and the vessel remain in custody and uusold; but they are bound to wait, if required, for the first adjudication, not merely for the purpose of taking care of the property, but also of affording their testimony in the cause. Ibid.

14. Where mariners, who, having been absent

the necessity of establishing the guilt of the principal, before the accessary can be tried; for the degree of guilt which is incurred by counselling or commanding the commission of a crime, depends upon the actual commission of that crime. No man is an accessary to murder, unless the fact has been committed. 2 Burr's Trial, 440.

2. The fact can only be established in a prosecution against the person by whom the crime has been perpetrated. The law supposes a person more capable of defending his own conduct than any other person, and will not tolerate that the guilt of A shall be established in a prosecution against B. Ibid.

3. The whole reason of the law relative to principal and accessary, so far as respects the order of trial, seems to apply in full force to a case of treason committed by one body of men, in conspiracy with others who are absent. Ibid. 441.

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