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Action on Judgments, Decrees, and Recognisances.-Action of Covenant.

130. Debt is, in general, the remedy for penalties and forfeitures on statutes; and yet it is not universally so, for the remedy follows the nature of the case; and debt lies, only where, by analogy to the rules of the common law, the duty or penalty lies not in the unliquidated damages, but is capable of being reduced to a certainty. Bullard v Bell, 1 Mason's C. C. R.

243.

131. The fourth section of the act of May 15th, 1820, ch. 640, referring to the act of April 18th, 1818, ch. 352, and referring again to the revenue laws of the United States, as to the mode of suing for, and recovering penalties and forfeitures, &c., does not, by implication, adopt the seventy-first section of the collection act of the 2d March, 1799, as to the onus probandi being thrown on the claimant, on seizure under the act. The Abigal, 3 Mason's C. C. R. 331.

132. Penalties under the embargo law of 1808, ch. 8, are to be sued for within the time limited by the statute of limitations, 1790, ch. 9, and not by the act of 1799, ch. 128, sec. 88, or the act of 1804, ch. 40. U. S. v. Mayor, 1 Gallis. C. C. R. 397.

133. Where a statute, creating a forfeiture does not prescribe the mode of demanding it, debt or information will lie. Adams v. Woods, 2 Cranch, 336; 1 Cond. Rep. 408.

134. The act of 30th April, 1790, ch. 36, sec. 31, limiting prosecutions on penal statutes, extends as well to penalties created after, as before that act, and to actions of debt, as well as to informations for penalties. Ibid.

135. In an action of debt for a penalty imposed by a statute, a sum, less than the penalty imposed by the statute, may be recovered. The U. S. v. Colt, 1 C. C. R. 145.

136. Where a statute gives a right, without providing a specific remedy, the remedy may be drawn from the abundant stores of the common law. Kneas v. The Schuylkill Bank, 4

Wash. C. C. R. 106.

137. The statute relating to the settlement of accounts, prevents delinquent officers from delaying the United States by frivolous pretences, from obtaining judgments at the return terms; gives to the defendant an opportunity of obtaining the benefit of every credit to which he may suppose himself equitably entitled and which has been disallowed, passed upon by a jury; and guards the district attorney from surprise, by informing him, through the treasury department, before the trial of the credits which have been claimed, and the reasons for the rejection of them; all the provisions of this statute, regulating the institution of suits, and the recovery, by judgment, of unpaid balances, by delinquent public officers, are as much a part of their bonds as if they were recited in them; and officers and their sureties are, in contemplation of law, apprized of their provisions when their bonds are executed. The U. S. v. Hawkins, 10 Pet. 125. ACTION ON JUDGMENTS, DECREES, AND RECOG

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state. Armstrong v. Carson's Executors, 2 Dall. R. 302; Mills v. Duryee, 7 Cranch, 481; 2 Cond. Rep. 578.

139. The record of a judgment in one state, is conclusive evidence in another; although it appears that the suit in which it was rendered, was commenced by an attachment of property, the defendant having afterwards appeared and taken defence. Mayhew v. Thatcher et a.. 6 Wheat. 129; 5 Cond. Rep. 34.

140. An action at law will not lie on the decretal order of a court of equity. Hugh v. Higgs et Ux. 8 Wheat. 697; 5 Cond. Rep. 560.

141. A judgment or decree of a court can be used as evidence in another suit only as against parties and privies; and if, in the new suit, there are new parties against whom the judgment could not have been used, had it been adverse, they cannot introduce it in their favour. Baring et al. v. Fanning et al. 1 Paine's C. C. R. 549.

142. In an action upon a judgment in another state, the defendant cannot plead any fact in bar, which contradicts the record on which the suit is brought. Field v. Gibbs et al. 1 Peters' C. C. R. 155.

143. In a recognisance, the material parts of the obligation and the condition should be set forth in the body of it; so as to admit of extension, consistently with the terms of it. Dillingham v. The U. S., 2 Wash. C. C. R. 422.

144. It is essential to a breach of the condition of a recognisance, that the party who is to appear should be solemnly called before his default is entered; and in an action on the recognisance, it should be clearly proved that the party called was warned and neglected to appear. Ibid.

145. A material variance between the warrant and the recognisance set forth in the declaration, and that given in evidence, is fatal. Ibid.

ACTION OF COVENANT.

146. An action may be sustained on a covenant of seisin, although the plaintiff has never been evicted; and the declaration need not ave an eviction. Pollard et al. v. Dwight et al. 4 Cranch, 421; 2 Cond. Rep. 157.

147. A trustee is, in general, suable only in equity; but if he choose to bind himself by a personal covenant, he is liable at law for a breach thereof, although he describe himself as covenanting as trustee. In such a case the covenant binds him personally; and the addition of the words "as trustee," is but matter of description, to show the character in which he acts, for his own protection, and in no degree affects the rights or remedies of the other parties. Duvall V. Craig et al. 2 Wheat. 45; 4 Cond. Rep. 25.

148. In an action of covenant, where the matter in a deed is stated as inducement only; and where the party suing is neither a party, or privy to the deed, a prefect is not necessary. Ibid.

149. Where the parties to a deed covenanted severally against their own acts and incumbrances, and also to warrant and defend against their own acts, and those of all other persons, with an indemnity in lands of an equivalent value, in case of eviction; these covenants are

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Action of Covenant.

independent, and it is unnecessary to allege in the declaration any eviction, or any demand or refusal to indemnify with other lands; but it is sufficient to allege a prior incumbrance by the acts of the grantors, &c., and the action may be sustained on the first covenant for pecuniary damages. Ibid.

150. Where the grantors covenant severally against incumbrances made by them, it may be construed as extending to several as well as joint incumbrances. Ibid.

151. An averment of eviction under an elder title, is not always necessary to sustain an action on a covenant against incumbrances; if the grantee be unable to obtain possession, in consequence of an existing possession or seisin by a person claiming and holding under an elder title, it is equivalent to an eviction and a breach of the covenant. Ibid.

152. When in a covenant the acts stipulated to be done, are to be done at different times, the stipulations are to be construed as independent of each other. Goldsborough v. Orr, 8 Wheat. 217; 5 Cond. Rep. 412.

153. A covenant under seal to come to a settlement within a limited time, and to pay the balance which might be found due, is merely a collateral agreement, and does not operate as an extinguishment of the simple contract debt: and there being no averment that any such settlement had been made, the covenant to pay the balance did not attach upon the demand. Baits v. Peters et al., 9 Wheat. 556; 5 Cond. Rep. 675. 154. In an action on a covenant of warranty it is necessary for the plaintiff to allege in his declaration, substantially, an eviction by title paramount. Day et al. v. Chism, 10 Wheat. 449; 6 Cond. Rep. 821.

155. No formal words however are prescribed, in which this allegation is to be made; and an averment that "the said O. had not a good and sufficient title to the said tract of land; and by reason thereof, the said plaintiffs were ousted and dispossessed of the said premises by due course of law," is sufficient. Ibid.

156. Where the plaintiffs in an action of covenant declared both as heirs and devisees, without showing in particular how they were heirs, and without setting out the will, held not to be a fatal defect, on general demurrer. Ibid.

157. Such omission is cured by the 32d section of the judiciary act of September 24, 1789, c. 20. Ibid.

158. A covenant by an executor, on a conveyance of land to his testator, in his capacity of executor, "and not otherwise," is not binding on him in his individual capacity, although it may not be binding on the estate of the testator. Thayer v. Wendall, 1 Gallis. 37.

159. A covenant that the premises sold were in due form of law extended, and were taken in execution to satisfy a debt due to the testator, and that all the forms of law, relating to the setting off, &c. have been complied with, is a covenant for the regularity of the proceedings on the levy, and not for the validity of the title to the land. Ibid.

160. Covenant will not lie upon words in an

instrument inserted by way of condition or defeasance of some collateral act. U. S. v. Brown, 1 Paine, C. C. R. 422.

161. So upon a penal bond, conditioned that one should account for public money, property, &c.; covenant will not lie upon such condition. Ibid.

162. But covenant will lie upon the bond itself, in which case the breach assigned mus be the non-payment of the penalty. Ibid.

163. A covenant to pay a ground rent runs with the land, and an action of covenant may be sustained against the assignee of the original covenanter, he being in possession of the land, for the recovery of the ground rent. Hurst v. Rodney, 1 Wash. C. C. R. 375.

164. Where covenant was brought upon a penal bond given to account for public property, &c., and the breach assigned was for the nonperformance of the condition, this was, on demurrer, adjudged bad. The U. S. v. Brown 1 Paine, C. C. R. 422.

165. In Pennsylvania, according to the fractice there, the defendant in an action of covenant may plead performance, with leave to give in evidence any thing which amounts to a legal defence; and in such case he may give in evidence any thing which he may plead, or which may be a legal defence. Webster v. Warren, 2 Wash. C. C. R. 456.

166. The practice in Pennsylvania does not require that notice shall be given to the plaintiff of the real defence which the defendant intends to set up. Ibid.

167. Where there are mutual dependent covenants, the plaintiff cannot support his action for a breach, without showing a performance on his part of every affirmative covenant; and it is competent to the defendant to show a breach of such as are negative. Ibid.

168. But where the covenants are independent, the defendant cannot be permitted to avail himself of a breach of those to be performed by the plaintiff. Ibid.

169. If a breach assigned of a covenant be, that the state had no authority to sell or dispose of the lands; it is not a good plea, negativing the breach, that the governor of the state was legally empowered to sell and convey the land. Fletcher v. Peck, 6 Cranch, 87; 2 Cond. Rep. 308.

170. In an action of covenant on a policy of insurance under seal, all special matter of defence must be pleaded under the plea of covenants performed, the defendant cannot give evidence which goes to vacate the policy. Marine Ins. Co. v. Hodgson, 6 Cranch, 206; 2 Cond. Rep. 347.

171. In general a sum of money in gross, to be paid for the non-performance of a covenant, is considered as a penalty, and not as liquidated damages. Tayloe v. Sandiford, 7 Wheat. 13; 5 Cond. Rep. 210.

172. A fortiori, when it is expressly regarded as a penalty. Where, in a building contract, it was covenanted "the said houses to be completely finished on or before the 24th of December next, under a penalty of one thousand dollars in case of failure;" it was held, that this

Where an Action of Debt lies.

was not intended as liquidated damages for the breach of that single covenant only, but extended to all the covenants made by the party in the agreement: that it was in the nature of a penalty, and could not be set off in an action brought by the party to recover the price of his work. Ibid.

173. An agreement to perform certain work in a limited time, under a certain penalty, is not to be considered as liquidating the damages which the party has to pay for a breach of the covenant. Ibid.

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2. Pleadings and evidence in actions of debt........... 52 3. Detinue, 54

1. Where an Action of Debt lies. 179. Where, by mistake, fraud, or accident, the tonnage and light duties payable by law are not paid by the owner of the vessel, an actior. of debt lies against him to recover them. United States v. Hathaway, 3 Mason's C. C. Rep. 324.

180. Debt will not lie against a mere consignee of a vessel for tonnage, &c., for he has no interest or special property in her. Ibid.

174. Query, Where a man covenants to convey lands, and breaks his covenant to convey, in order to avail himself of their increased value, 181. Debt is a sum of money due by contract, and an action of covenant is brought to recover and is most frequently due by a certain and ex damages for the breach; if the value of the press agreement, which also fixes the sale inde lands at the time of trial should not be the stand-pendent of extrinsic circumstances. But it is ard of damages? Letcher & Arnold v. Woodson, not essential that the contract should be express, 1 Brockenbrough's C. C. Rep. 212. or that it should fix the precise amount to be paid. The United States v. Colt, 1 Peters' C. C

175. But it seems that where a man contracts for the sale of lands, without fraud, and it after-Rep. 145. wards appears that he had, in truth, no title to the lands when the contract was entered into, and in consequence of his want of title he refuses to convey; the standard of damages, in an action founded upon the covenant, is the value of the lands at the time of the contract entered into, and not their value at the time of trial. Ibid.

182. Debt may arise on an implied contract, as for the balance of an account stated, or to recover back money which a bailiff has paid more than he has received; and in a variety of other cases, where the law by implication raises a contract to pay. Ibid.

183. The money may not be fixed by the contract, but may depend upon something extrinsic, which may be averred; as a promise to pay so much money as the plaintiff may expend in repairing of a ship, may be sued for in this form of action, the plaintiff averring that he did ex

176. Whether the jury in such a case should allow interest upon the value of the lands at the date of the contract, must depend upon the circumstances of the case, of which they are the proper judges; and it is competent for the de-pend so much money. Ibid. fendant to give in evidence to the jury, any cir cumstances tending to show that interest should not be allowed. Ibid.

177. To avoid circuity of action, a covenant may be pleaded as a release, but it must be a covenant between those parties only; and if it contains no words of release, it shall uot be construed such, unless it gives the covenantor a right of action which will precisely countervail that to which he is liable; and unless, too, it was the intention of the parties that the last instrument should defeat the first. Garnett Ex. of Brooke v. Macon et al., 2 Brockenbrough's C. C. Rep. 185.

184. So on a promise by the defendant to pay his proportion of the expenses of defending a suit in which he was interested, with an averment that the plaintiff had expended so much, and that the defendant's portion amounted to so much. Ibid.

185. An action of debt may be brought for goods sold to the defendant, for so much as they are worth. Ibid.

186. Debt will lie for use and occupation, when there is only an implied contract, and no precise sum agreed upon. Ibid.

187. Debt may be brought for a sum capable of being ascertained; though not ascertained at the time of action brought. Ibid.

178. Action of covenant brought by the plaintiff in error, to recover the amount of certain 188. Where indebitatus assumpsit is maintainrents alleged to have been due and in arrearable, debt is also. Ibid.

upon a loan. Ibid.

190. Debt will lie for the penalty given by statute, which is uncertain, and depending on the amount to be assessed by a jury.

191. Debt will lie, in Maryland, on a promis sory note. Lindo v. Gardner, 1 Cranch, 343; 1 Cond. Rep. 328.

from the defendant since the death of his intes- 189. Debt will not lie for the interest due tate, under an indenture, by which an annual rent was reserved out of the property conveyed by the indenture, and which the grantee covenanted to pay; a clause of re-entry for non-payment of the rent being contained in the deed. By the court: It is firmly established, that on a covenant to pay rent, reserved by the deed granting real estate subject to the rent, the personal representatives of the covenantor are liable for the non-payment of the rent after an assignment, although there may be a good remedy against the assignee. The laws of Virginia have not, in this respect, narrowed down the responsibility existing by the common law in England. Scott v. Lunt's Administrator, 7 Peters, 596.

192. An action of debt will lie by the payee or indorser of a bill of exchange, against the acceptor, where it is expressed to be for value received. Raborg et al. v. Peyton, 2 Wheat. 385; 4 Cond. Rep. 173.

193. Debt lies by the payee of a note against the maker, where it is expressed to be for value received. Ibid.

Pleadings and Evidence in Actions of Debt.

194. Debt lies on every contract to pay a sum | more, or covenant and recover more than the certain.

Ibid.

195. An action at law will not lie on a decretal order of a court of equity. Hugh v. Higgs et ux. 8 Wheat. 697; 5 Cond. Rep. 560.

196. Debt lies in favour of the holder of a dishonoured bank note, against a stockholder of the bank, to recover the amount of a note, under a proviso in the bank charter, making the stockholders liable for such note in case of non-payment by the corporation. Massachusetts. Bullard v. Bell, 1 Mason's C. C. R. 243.

197. Debt is the general remedy for penalties and forfeitures on statutes, yet it is not universally so; for the remedy follows the nature of the case, and debt lies only where, by analogy to the rules of the common law, the duty or penalty lies not in unliquidated damages, but is capable of being reduced to a certainty. Ibid.

penalty. Martin v. Taylor, 1 Wash. C. C. R. 1. 206. A contract for the payment of distinct sums of money, at different times, is very much in the nature of distinct contracts; and an action of debt lies for each sum as it becomes due. Faw v. Marsteller, 2 Cranch, 10; 1 Cond. Rep. 337.

2. Pleadings and Evidence.

207. In an action of debt it is essential that the declaration shall state the demand with certainty. Wilson v. Lenox, 1 Cranch, 194; 2 Cond. Rep. 291.

208. In an action of debt on a protested bill of exchange in Virginia, for a specific sum, with damages, interest, and charges of protest, it is a fatal defect that the declaration does not state the amount of the charges of protest. Ibid. 209. In an action of debt, the judgment must

198. Debt does not lie upon any collateral undertaking, where the sum to be recovered is un-be responsive to the writ; and must, therefore, certain, and sounds merely in damages: but whenever the law upon any undertaking, either direct or collateral, gives the party a title to a determinate sum, which becomes his due absolutely, by the rules applied to the contract, an action of debt lies. Ibid.

199. By the common law, an action of debt is the general remedy for the recovery of all sums certain, whether the legal liability arises from the contract, or be created by statute: and where the debt arises by statute, an action or information of debt is the appropriate remedy, unless a different remedy be prescribed by the statute. U.S. v. Lyman, 1 Mason's C. C. R. 482.

200. A debt, to pay the duties imposed on goods, is created by their importation; and an action of debt lies in favour of the United States against the importer to recover the same, although the goods may have been smuggled. Ibid.

201. An action of debt founded on a statute, is considered as an action founded on a specialty; but it is not of equal dignity with a debt due by bond. Ibid.

202. The condition of a bond being, that the defendant should carry on the business of distilling cider brandy for seven years and three months, and keep an exact account of the quantity distilled, and deliver to the plaintiff, when demanded, one-tenth part thereof, and the defendant did carry on said business, but kept no account, and delivered nothing to the plaintiff; and it was held the plaintiff could have no action on the bond until the end of the term. Cottle v. Payne, 3 Day, 289.

203. An action of debt lies in favour of the United States to recover the penalty given by the third section of the embargo act of January 8th, 1808, for being knowingly concerned in a foreign voyage in violation of the act. U. S. v. Allen, 4 Day's Rep. 474.

204. If, in such a case, the defendant plead nil debet, and the issue be found against him, the jury and the court will fix the amount of the penalty. Ibid.

205. If an agreement contain a penalty, the plaintiff may bring debt for the same, and for no

either be given for the whole sum demanded, or exhibit the cause why it is given for a less sum. The requisite conformity between the writ and judgment may be complied with either by the pleadings, the finding of the jury, or a remittitur entered by the plaintiff, either before or after verdict, or after demurrer. Hughes v. Union Ins. Co. of Baltimore, 8 Wheat. 294; 5 Cond. Rep. 443.

210. Debt against an executor should be in the detinet only, unless he has made himself responsible personally, as by a devastavit; but an error of this kind can be taken advantage of only on special demurrer, for it is but matter of form, and is cured by the statute of jeofails. Childress' Ex. v. Emory et al. Ex. 8 Wheat. 642; 5 Cond. Rep. 547.

211. In debt for a penalty on a statute, the declaration must conclude against the form of the statute, or it will be bad on error. Cross v. U. S. 1 Gallis. 26.

212. In debt for double the value, under the embargo law of 1808, sec. 3, ch. 112, it is not necessary to allege the particular articles which compose the cargo, or that the owner was knowingly concerned in the illegal voyage. Ibid.

213. In debt for a penalty, an averment, "whereby and by force of the statutes of the United States, an action hath accrued,” it is not a sufficient averment that the act done was against the form of the statute. Ibid.

214. In judgment in a trustee process under the law and practice in the state of Massachusetts, it is no defence in a suit for the debt, if the plaintiff in the trustee process has, by neglect to comply with the local laws, put his judgment in a state of suspension, so that execution can no longer issue upon it, and it cannot be renewed by scire facias. Fowler v. Parker et al. 3 Mason, 324.

215. When debt is brought on a covenant to pay a certain sum, any variance of the sum in the deed will vitiate; but when the deed relates to matter of fact extrinsic, then, though the plaintiff demanded more than is due, he may enter a remittitur for the balance. The U. S.. Colt, 1 Peters' C. C. R. 145.

Pleadings and Evidence in Actions of Debt.

216. A declaration in debt, claiming no precise sum, is without precedent; but the demand of one sum in the declaration, does not prevent the recovery of a smaller sum, diminished by extrinsic circumstances. Ibid.

that he had not been served with process, and had not appeared in the suit in which the judgment had been awarded. It appearing from the record that there had been a general appearance by attorney, and all the pleadings were in the names of both defendants, the plea was adjudged

217. In debt, a writ to answer A B of a plea of debt of $1000 is sufficient. Guion v. M'Cul-defective. Field v. Gibbs et al., 1 Peters' Č. C. R. lough, North Carolina Cases, 78.

218. Where an action of debt has been instituted in the name of the obligor of a bond for the use of another person, without the consent of the nominal plaintiff, the proper course is to dismiss the suit, and not to render judgment for the defendant; which might, where no special breach is assigned, bar another action. Corporation of Washington v. Young, 10 Wheat. 406; 6 Cond. Rep. 163.

219. Nil debet is a bad plea in an action of debt, brought on a judgment in another state. Mills v. Duryee, 7 Čranch, 481; 2 Cond. Rep.

578.

220. A declaration in debt for £860 12s. 1d. on a decree in chancery for that sum, "with interest from a certain day to the day of rendering the decree," is fatally defective. Fenwick v. Sears' Administrators, 1 Cranch, 259; 1 Cond. Rep. 310.

221. Where the declaration in debt on a bond does not set forth the condition, the want of oyer of the condition, in a plea of performance, is fatal. The U. S. v. Arthur, 5 Cranch, 257; 2 Cond. Rep. 247.

222. In an action of debt against the endorser of a bill of exchange, under the statute of Virginia, it is necessary to aver in the declaration a protest for non-payment. Slacum v. Pomeroy, 6 Cranch, 221; 2 Cond. Rep. 351.

223. In an action of debt on a recognisance, if the declaration, in setting forth the recognisance, states it to be and appear, and answer a charge for beating one, and the recognisance was to be and appear for beating one who died, the variance is fatal. Dillingham v. The U. S., 2 Wash. C. C. R. 422.

224. In an action on a bond, if the condition is not parcel of the obligation, as if it be a money penalty, and the engagement is to deliver goods, it is not necessary for the defendant to plead encore prist. Savary v. Goe, 3 Wash. C. C. R.

140.

225. The declaration on an embargo bond demanded $20,000, and recited the statute which authorizes the United States to demand a sum not exceeding $20,000, and not less than $1000, which it averred the defendant owed and detained. The jury found a verdict for $40,000; on a motion to arrest the judgment, the declaration was held good. United States v. Colt, 1 Peters' C. C. R. 145.

226. The sum may depend on something extrinsic which may be averred, as a promise to pay so much money as plaintiff may expend in repairing a ship, which may be recovered in debt: the plaintiff averring that the sum was expended. Ibid.

227. In an action of debt brought in the circuit court in New Jersey, on a judgment obtained in Pennsylvania, one of the defendants pleaded

155.

228. A replication to a plea of the statute of limitations, which sets up two distinct answers to it, is bad for duplicity. Craig v. Brown, 1 Peters' C. C. R. 443.

229. Action on a bond executed by William Carson, as paymaster, and signed by A. L. Duncan and John Carson, as his sureties, conditioned that William Carson, paymaster for the United States, should perform the duties of that office within the district of Orleans. The breach alleged was that W. C. had received large sums of money in his official capacity, in his lifetime, which he had refused to pay into the treasury of the United States. The bond was drawn in the names of Abner L. Duncan, John Carson, and Thomas Duncan, as sureties for William Carson, but was not executed by Thomas Duncan. There were no witnesses to the bond, but it was acknowledged by all the parties to it before a notary public. The defendants, the heirs and representatives of A. L. Duncan, in answer to a petition to compel the payment of the bond, say that it was stipulated and understood, when the bond was executed, that one Thomas Duncan should sign it, which was never done, and the bond was never completed, and therefore A. L. Duncan was never bound by it: they also say, that, as the representatives of A. L. Duncan, they are not liable for the alleged defalcation of William Carson, because he acted as paymaster out of the limits of the district of Louisiana; and the deficiencies, if any, occurred without the limits of the said district. Before the jury were sworn, the defendants offered a statement to the court for the purpose of obtaining a special verdict on the facts, according to the provisions of the act of the legislature of Louisiana, of 1818. The court would not suffer the same to be given to the jury for a special finding, because it "was contrary to the practice of the court to compel a jury to find a special verdict." The judge charged the jury, that the bond sued upon was not to be governed by the laws of Louisiana, in force when the bond was signed at New Orleans; but that this and all similar bonds must be considered as having been executed at the seat of the government of the United States, and to be governed by the principles of the common law; that although the copy of the bond sued on, which was certified from the treasury department, exhibited a scrawl instead of a seal, yet they had a right to presume that the original bond had been executed according to law; and that in the absence of all proof as to the limits of the district of New Orleans, the jury was bound to presume that the defalcation occurred within the district; and if the paymaster acted beyond the limits of the district, it was incumbent on the defendants to prove the fact: Held, that there was no error

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