Page images
[blocks in formation]

Absent....LIVINGSTON, J. TODD, J. and STORY, J.

ERROR to the Circuit Court for the district of By making a Columbia, for the county of Alexandria, in an action of ble in a bank, note negotiadebt, by the Union Bank against Mandeville, upon his the maker aupromissory note to C. I. Nourse, indorsed to the bank.

thorizes the bank to advance on his

On the trial below a special verdict was found which credit to the states the following facts:

owner of the note, the sum expressed on

would be a

On the 15th of January, 1811, Mandeville, then and its face; and it always an inhabitant of the town of Alexandia, (in the fraud upon the County of Alexandria) for a valuable consideration bank to set up offsets against made his promissory note at the said town, payable to C. I. this note in Nourse (or order,) sixty days after date; negotiable at consequence of the Union Bank of Georgetown; payable at the Bank of any transac Potomac, in Alexandria, for 410 51.

The note was delivered to C. I. Nourse, and on the same day indorsed by him, and offered for discount at the Union Bank, where it was regularly discounted for

his use.

On the 30th of the same month, Mandeville being informed that his note had been discounted, made no objection, and said that he had funds to meet it.

The note was not paid when it became due, and was protested for non-payment.


[ocr errors]

tions between the parties.





On the 16th of the same month (the day after the date of Mandevilles note) Charles I. Nourse, for a full and valuable consideration, ex cuted and delivered to Mandeville, his note of that date, payable in 60 days for $400, negotiable at the Bank of Alexandria; payable at the Bank of Columbia, (in Georgetown.)

On the 30th of the same month, C. I. Nourse became further indebted to Mandeville by the acceptance of his order of that date, drawn at sight, and by acceptance made payable on the 16th of February following, in favor of C. Page for the use of Mandeville, for 64 dollarsneither of which has been paid. The Union Bank transacts its business in Georgetown, in the county of Washington.

On the 2d of February, 1811, Mandeville inserted an advertisement in the Alexandria Gazette, cautioning all persons against receiving assignments of any notes given by him to Nourse, as he had discounts against them.

Mandeville, in the Court below offered to sett-off the note and acceptances of Nourse, against his own note upon which the suit was brought; but upon the special verdict, the Court below rendered judgment against him for its whole amount; and he brought his writ of error.

By the laws of Virginia, in force in the county of Alexandria, the Defendant is allowed to sett-off against the assignee of a promissory note any just claim which he had against the original payce before notice of the assignment of the note.

But by the laws of Maryland, in force in the county of Washington, a promissory note, payable to order, is subject to the same rules as in England under the statute of Anne.

On behalf of the Plaintiff in error, it was contended that the note, being made at Alexandria and to be paid there, was to be governed by the laws of Virginia, and that as he held Nourse's note, before he had notice of

the assignment of his own, he had a right to offset it in MANDEthis suit.

On the other side it was said that it was immaterial by which law the note was to be governed; for it was made with a view, expressed on its face, to be discounted by the Plaintiffs; whereby the Defendant had waived any offset to which he might have a right. Besides which, upon being informed that the note was discounted by the Plaintiffs, he did not object, nor insist upon his sett-off, but sad he had funds, (meaning funds of Nourse's) to meet it, By which conduct also he waived his right to the sett-off.

Feb. 9th. MARSHALL, Ch. J. delivered the opinion of the Court as follows:

It is entirely immaterial whether this question be governed by the laws of Virginia or of Maryland By neither of them can the discounts claimed by the Plaintiff in error be allowed.

By making a note negotiable in bank, the maker authorizes the bank to advance on his credit to the owner of the note the sum expressed on its face.

It would be a fraud on the bank to set up offsets against this note in consequence of any transactions between the parties. These offsets are waived and cannot, after the note has been discounted, be again set up.

The judgment is to be affirmed with damages at the rate of 6 per cent. per annum.









Absent....JOHNSON, J. & TODD, J..

ERROR to the Circuit Court for the district of East In the treaty Tennessee, in an action of ejectment brought by of the 25th of

M'Clung's lessee against Meigs and others,

October, 1805, with the Che


& AL. ซ. M'CLUNG'S

servation of 3

miles square

lies below, and

not above the

where the U.

On the trial in the Court below, a bill of exceptions was taken, which stated the case as follows:

The Plaintiff's lessor claims the land under a grant LESSEE. from the state of North Carolina, to John Donelson, dated the 11th of July 1788, for 1500 acres lying on the rokees, the re- north side of Tennessee river, opposite to a high bluff of rocks of diverse colors. The Defendants resided on the for a garrison, the land as officers, and under the authority of the United States who had a garrison there and had erected mouth of the works at an expence of 30,000 dollars. The place where Highwassee, the Defendants resided was two miles at least above the S. have placed termination of the treaty line opposite the mouth of the the garrison. Highwassee. In 1805 the line between the United States and the Cherokee Indians was run, according to the treaty, under the direction of the Defendant, Meigs, who was an agent of the United States for that purpose; and afterwards the garrison reserve of three square miles was laid off by the direction of the Defendant, Meigs, opposite and above the mouth of the Highwassee river, making the treaty line from the three forks of Duck river to the point on Tennessee river opposite the mouth of Highwassee the lower line of said reservation, and the Tennessee river the southern line, meandering the river and reducing it to a straight line of three miles in length.

The Defendant's read a copy of a letter written by D. Smith and the Defendant, Meigs, who were commissioners on the part of the United States, at the treaty holden with the Cherokee Indians, on the 25th of October, 1805, dated at Washington, January 10th, 1806, and addressed to the secretary at war; in which they say "by the treaty with the Indians concluded at Tellico on the 25th day of October, 1805, there was reserved three square miles of land for the particular disposal of the United States, on the north bank of the Tennessee, opposite to and below the mouth of Highwassee. This reservation is ostensibly predicated on the supposition that the garrison at south west point, and the United States factory now at Tellico, would be placed on the reserve during the pleasure of the United States. But it was stipulated with Doublehead that whenever the United States should find this land unnecessary for the purposes mentioned, then it is to revert to Doublehead; provided, as a condition, that he retain one of the square miles to his own use,


and that he is to relinquish his right and claim to the other two sections of one mile square each in favor of & AL. John D. Chisholm and John Riley, son to Samuel Riley, one of the interpreters in the Cherokee nation in equal M'CLUNG'S, shares."

As it is proper that this be recognized we have made this statement for your information,

And have the honor to be, &c.


When the Defendant and the other officers of the United States went to look for the place to erect the garrison in pursuance of the reserve, they went first below the mouth of Highwassee; But it was a low and marshy country, affording no good scite for a garrison and no water or spring was to be had there.

The Plaintiff's counsel insisted that the Indian title to the land was extinguished and that he had a right to recover, and prayed the Court so to instruct the jury; to which the Defendant's counsel' objected and insisted that the Defendants were entitled to recover against the Plaintiff, because the Indian title was not extinguished; and because the land was occupied by the United States' troops, and the Defendants as officers of the United States, for the benefit of the United States, and by their direction; and because the garrison was erected on the land really reserved for that purpose by the treaty; as they insisted it was out of the land ceded that the reserve was made. That it must, by the letter of the treaty, be understood to be land reserved to the Indians, out of the part ceded, and not a reserve in favor of the United States, out of the land not ceded by the Indians; and that the term "reserve” in the treaty controlled the other expressions, "opposite "and below the mouth of Highwassee." That the United States had a right by the constitution to appropriate the property of individual citizens; and that the line run, was the true line of the reservation.

But the Court over-ruled the objections of the Defendant's counsel, and charged the jury that the land reserv



« PreviousContinue »