that if the Defendants were jointly interested in the RIGGS purchase, they were severally interested in the sales. In v. support of this position, they cited Watson on Partner- LINDSAY. ship, 24. 1 Vez. 242. Cowp. 449. 2 H. Bl. 298. Doug. 371. & 1 H. Bl. 37.

-

accept and pay his bills; and if they do

The facts of the case are stated in the opinion of the not, he may Court, which was delivered as follows, by

LIVINGSTON, J.

recover from them the amount of the bills and da

mages and costs of pro

test (if he has paid the same) upon a count

This was an action brought by the Defendant in error, in the Circuit Court of the United States for the district of Columbia, against William Stewart, Charles for money J. Nourse, Aquila Beall, and the Plaintiff in error, Eli- paid, laid out, and expended, sha Riggs, as co-partners, to recover from them the and the bills of amount of certain bills of exchange and damages which exchange may be given in had been drawn on them by the Defendant in error to evidence on reimburse him for certain salt which he had purchased that count. on their account, and which bills, being protested for dant produce non-payment, were afterwards paid, with damages, by in evidence a the Plaintiffs below. The Defendant, Beall, was not letter from his found-the Defendants, Nourse and Stewart, confessed to the Plainjudgment, and the other Defendant, Riggs, pleaded the tiff, the latter general issue,

If one Defen

co-defendant

may give in evidence the written decla rations of that co-defendant

the letter.

The declaration contained several counts on the bills of exchange, and two general counts, the one for to discredit money laid out, expended and paid, the other for money If, after the had and received, under which last counts a verdict was protest of the found for the Plaintiff. bills, the Plain

tiff sell the salt without

account of sales

It appeared in evidence, that some time in Novem- orders, it shall ber, 1809, Stewart and Beall, two of the Defendants below, his right of ac not prejudice wrote a letter to the Plaintiff, ordering a purchase of tion, although salt, and stating that two other persons were concerned he render no in the said order. This letter directed him to purchase to the Defen from 10 to 30,000 bushels, and authorized him to draw dants. for the amount of such purchases on the Defendants, Stewart and Beall, or on George Price and Co. of Baltimore. Purchases of salt were accordingly made by Lindsay, who from time to time apprized Stewart and Beall of the same. On the 4th January, 1810, one of the Defendants wrote to Lindsay as follows:

RIGGS

v.

LINDSAY.

" SIR,

"You will hold up what salt you may have purchas"ed, and send us a statement of your purchases. You "have no doubt received Stewart and Beall's orders, re"questing no further purchase. We shall some time hence direct you as to the disposal of the quantity purchased. In the mean time you may draw upon us, "or upon Stewart and Beall for the amount," &c.

It appears that Lindsay afterwards drew several bills of exchange on the parties who had subscribed the last mentioned letter, and who were the Defendants, in favor of certain persons therein named, including his commission for purchasing. These bills were presented to the drawers, who refused to accept or pay the same, on which they were protested and returned to Lindsay, who took them up. By the laws of South Carolina ten per cent. damages are allowed on the return of such bills under protest, and there was proof that these damages had also been paid by Lindsay. After the return of these bills and payment of them by Lindsay, he sold the salt, and the proceeds on such re-sale were stated by Lindsay's counsel at the trial to the jury, who were desired to deduct the same from his demand against Riggs, which was done, and a verdict given for the balance. There was no other evidence of the proceeds than such admission, and the Defendant, Riggs, denied that the sum stated by Lindsay's counsel was the amount thereof.

In the course of the trial, the counsel of Riggs produced a letter from Nourse to the Plaintiffs, which, as he supposed, contained a statement favorable to his client. To discredit this statement, the Plaintiff produced certain interrogatories, which had been exhibited to Nourse, with his answers, which were at variance with the letter produced by Riggs.

The first exception taken, at the trial, to the conduct of the Court, was to its admission of proof of the several bills which had been drawn by Lindsay, and protested and paid by him, and the instruction which it gave to the jury, that under the count for money paid, laid out, and expended, Lindsay might recover, not his

commissions which were included in the bills, but the ten per cent. damages, if the jury were satisfied that they had been actually paid by him.

Neither in the admission of this testimony, nor in the instructions given on it, was any error committed by the Circuit Court. As Lindsay was expressly authorized to draw, by the letter of the 4th of January, 1810, he certainly had a right to do so, and whether the Defendants accepted his bills or not, so as to render themselves liable to the holders of them, there can be no doubt that as between Lindsay and them, it was their duty, and that they were bound in law to pay them. Not having done so, and Lindsay in consequence of their neglect having taken them up, he must be considered as paying their debt, and as this was not a voluntary act on his part, but resulted from his being their surety, (as he may well be considered from the moment he drew the bills) it may well be said that in paying the amount of these bills, which ought to have been paid, and was agreed to be paid by the drawees, he paid so much money for their use. Nor can any good reason be assigned for distinguishing the damages from the principal sum, for if it were the duty of the Defendants to pay such principal sum, it is as much so to reimburse Lindsay for the damages which, by the law of South Carolina, he was compelled to pay, and which may therefore also be considered as part of the debt due by the Defendant in consequence of the violation of their promise contained in the letter which has just been mentioned.

. The second exception which appears on the record is to the admission of certain interrogatories which had been propounded to the Defendant, Nourse, with his answers to the same, having an indorsement upon same, purporting to be an acknowledgment of Nourse that the same were correct.

the

In the opinion of this Court, this paper was rendered proper evidence by the conduct of the Defendant, Riggs, who had read as evidence for himself a letter from Nourse to Lindsay, dated the 14th April, 1810, containing. as he supposed, some matters favorable to his defence. This letter having been thus produced by Riggs him

RIGGS

v.

LINDSAY.

v.

RIGGS self, it was certainly right to allow Lindsay to discredit the representations made in that letter by shewing LINDSAY. that Nourse had himself at another time given a very different account of the same transaction.

1

The other opinions of the Court below, to which exceptions were taken, may be comprised in these two; that the Court erred in thinking the Defendants jointly liable as co-partners, and that the re-sale of the salt did not destroy the Plaintiff's right of action. In both these opinions, this Court concur with the Circuit Court.

It is perhaps as clear a case of joint liability as can well be conceived. Whatever doubt there might be independent of the letter of the 4th of January, 1810, most certainly that letter puts this question at rest. Every one of the Defendants sign it, and there is now no escape from the responsibility which they all thereby incurred to the Plaintiff. Nor did Lindsay's selling the salt after he had taken up these bills, destroy his right of action against the Defendants. If he has acted irregularly in so doing, he will be liable, in a proper action, for the damages which the Defendants have sustained by such conduct, but such sale could not be pleaded or set up in bar to the present suit. Nor will the Defendant, under the circumstance of this case, be injured by the sum which the jury have discounted from Lindsay's demand, if it shall hereafter appear that as much was not allowed the Defendants on that account as ought to have been.

The judgment of the Circuit Court is affirmed, with costs.

1813.

March 9th.

the Circuit

MINTIRE r. WOOD.

Absent....WASHINGTON, J. and TODD, J.

THIS case came up from the Circuit Court for the The power of district of Ohio, upon a certificate stating that the Courts of the judges of that Court were divided in opinion upon the United States question, Whether that Court had power to issue a writ of mandamus to the register of a land-office in Ohio,

to issue the

writ of man

commanding him to issue a final certificate of purchase M'INTIRE to the Plaintiff for certain lands in that state?

HARPER, for the Plaintiff, referred the Court to the case of Marbury v. Madison, (ante vol. 1, p. 137.)

The constitution of the United States extends the judicial power to all cases in law and equity arising under it the constitution and laws of the United States.

By the 11th sect. of the judiciary act of 1789, vol. 1, p. 55,) the Circuit Courts have original cognizance of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds the value of 500 dollars, &c. And by the 14th sect. of the same act they have power to issue all writs necessary for the exercise of their jurisdiction, and agreeable to the principles and usages of law. This is a suit of a civil nature at common law, and the matter in dispute exceeds the value of 500 dollars. The writ of mandamus is necessary to the exercise of their jurisdiction, and is agreeable to the principles and usages of law. 3 Burr. 1266.

It has been de

The power given by the constitution is divided between the Supreme and the Circuit Courts. cided, that the power to issue a mandamus, in such a case, does not belong to the Supreme Court; it must, therefore, be in the Circuit Courts.

March 15th....JOHNSON, J. delivered the opinion of the Court as follows:

I am instructed to deliver the opinion of the Court in this case. It comes up on a division of opinion in the Circuit Court of Ohio, upon a motion for a mandamus to the register of the land office, at Marietta, commanding him to grant final certificates of purchase to the Plaintiff for lands, to which he supposed himself entitled under the laws of the United States.

This Court is of opinion that the Circuit Court did not possess the power to issue the mandamus moved for.

Independent of the particular objections which this case presents from its involving a question of freehold, VOL. VII.

65

WOOD.

damus, is confined exclusively to those cases in which may be ne

cessary to the exercise of their jurisdiction.