On an

The court held that the sum of $32,585.76, which had been awarded to Lloyd N. Rogers, as administrator of Eliza, his wife, and which was claimed and allowed under one of the interdicted deeds, and which belonged to her children, as distributees, if claimed, or received by them, would be inconsistent with their right to the legacies according to the condition of the bequest, and by the decree gave the choice to the legatees to take the legacies under the will, or the distributive shares of the fund. The court were of opinion that no claim had yet been made for the distributive shares; but that, according to the true meaning of the bequest, the legatees were not entitled to both funds, and that, for the purposes of the settlement of the estate, they should be put to their election within a time mentioned. We are inclined to think, upon the facts in the case, a claim had already been made of the fund by the legatees and those representing them, which came from the estate of the testator through their grandmother, under and by virtue of one of the interdicted deeds, and which operated to annul the legacies; but, as the views of the court 260*] *below, and the decree in pursuance thereof, lead to the same result substantially, it is unnecessary to interfere with them.

The condition upon which the legacies were to fall is very specific and explicit: that "if the said children," "or either of them, or any person or persons on their behalf or account, or in behalf or on account of either of them, as heir or heirs at law or devisees or devisee of their grandmother," "shall claim, ask, or demand, sue for, recover, or receive any part or portion of my estate, rights, or credits, either in my lifetime or after my decease, under or by virtue of certain indentures-enumerating three or under or by virtue of any other indenture," "which the said Thomas Law and E. P. Law, or E. P. Custis, meaning Mrs. Law, may have been parties, or to which any other person or persons with the said Thomas Law may have been parties, for the benefit of E. P. Law, or E. P. Custis, or her heirs; then, and in that case, the bequest, etc., shall be null and

void."

of the legacies. The legatees are forbidden to claim, ask, demand, sue for, recover, or receive any portion of the estate of the testator under these deeds, as the representatives of their grandmother.

The testator in his will had stated his fears that he had settled upon the children of his daughter-these grandchildren-more than the other grandchildren would receive from his estate, unless his property should rise in value, in which case he would make another will. This impression, doubtless, led to the stringent condition annexed to the bequest in the codicil *which was executed nearly two years [*261 later. The condition is not put upon the possession, recovery, or receipt of any portion of his estate under these deeds, but upon a claim or demand, or suit for the same; and the testator directs, if the terms of the bequest are not acceptable to the grandchildren, that his executor shall contest with them, to the utmost, their right to claim the legacies. It may well, we think, be doubted, if the judgment of the court against their claim, under these deeds, after a long and expensive litigation, can save the legacies from a breach of the condition. The very special terms of it would seem to have been intended to save the estate from any such litigation, so far as regarded the right to the enjoyment of the legacies.

An objection was taken, on the argument, to the legal effect and operation of this condition, but we entertain no doubt as to its force and validity. The condition is lawful, and one which the testator had a right to annex in the disposition of his own property. The legatees are not bound to accept the bequest, but, if accepted, it must be subject to the disabilities annexed; it must be taken cum onere, or not at all.

There are some other items of minor importance, to which exceptions have been taken, but we see no well-grounded objection to them. The decree of the court below affirmed.

*THE ATTORNEY GENERAL OF THE [*262 COMMONWEALTH OF MASSACHUSETTS, ex rel., THE ASSOCIATE REFORMED PRESBYTERIAN SYNOD OF NEW YORK, et al., Plffs. in Err.,

v.

THE PROPRIETORS OF THE MEETING HOUSE IN FEDERAL STREET IN THE TOWN OF BOSTON.

(See S. C. 1 Black, 262-266.)

Jurisdiction, when record sufficient to sustain— when not when validity of act was not drawn in question.

Where the writ of error suggests, as a foundation NOTE. What the record must show-see notes.

"

for the jurisdiction of this court, "that there was drawn in question the validity of a statute of Massachusetts as being repugnant to the Constitution of the United States, and the decision of the court was in favor of the validity of said statute,' held, that this suggestion of the writ is not supported. The decree of the court is simply that the bill be dismissed, without any reasons alleged for such The bill itself raises no such issue; it refers to the act in question only as conferring the privilege of a corporation on the defendants. It does not aver that the defendants pretend to have title to the property in question by virtue thereof; and challenge its validity.

dismissal.

The issue was not on the validity of the act, but on the construction of an original deed or agreement of the parties.

The validity of the act was not drawn in question directly by any averment of the pleadings, by the decree or any necessary intendment from other averments in the pleadings, or evidence on the rec

ord.

Submitted Dec. 20, 1861. Decided Jan. 13, 1862

IN

ERROR to the Supreme Court of the State of Massachusetts, at Boston.

This action was commenced by an information filed in the court below by the attorney general of Massachusetts. The supreme court of Massachusetts dismissed the information and the case was brought to this court.

The case is sufficiently stated in the opinion of the court and arguments of counsel.

Mr. C. Cushing, for plaintiffs in error: It is requisite, in order to maintain the jurisdiction of the court here, to show

(a) That there was a final judgment or decree in the supreme court of Massachusetts.

and positive statement, that the question was made and the decision given by the court below on the very point. It is sufficient if it be clear from the facts stated, by just and necessary inference, that the question was made, and that thus the court below must, in order to have arrived at the judgment pronounced by it, have come to the very decision of that question as indispensable to that judgment.

Armstrong v. The Treas. of Athens Co. 16 Pet. 281; Mills v. Brown, 16 Pet. 525.

So it would have to be said, if the same things appeared in the bill or answer.

In each of the several subsequent cases in which this point was before the court, either directly or indirectly, the same doctrine is announced. Such are Com. Bank of Cincinnati vBuckingham's Ex'rs, 5 How. 317, 341; Smith v. Hunter, 7 How. 738; Neilson v. Lagow, 12 How. 98; Williams v. Oliver, 12 How. 111; Grand Gulf R. R. v. Marshall, 12 How. 165; Lawler v. Walker, 14 How. 149; Maxwell v. Newbold, 18 How. 511; Christ Church v. Co. of Philadelphia, 20 How. 26; Medberry v. State of Ohio, 24 How. 413; Porter v. Foley, 24 How. 415.

Such, then, is the rule of the court-express averment or necessary intendment.

It remains to show that, although the point be not expressly averred in this record, yet it was necessarily intended on the face of the bill, answer, or decree.

2. The act of Massachusetts was directly and expressly in issue.

(c) That the supreme court of Massachusetts decided in favor of its validity.

(d) That all this duly appears in the record brought up by the writ of error.

The respondents do not deny the fact alleged, of a final judgment or decree in the case by the

supreme court of Massachusetts.

Nor can they deny that if the validity of the act were in issue, the decision was in favor thereof.

But the respondents say:

(a) That it does not appear by the record that the validity of the act was drawn in controversy, in any manner or upon any grounds

whatever.

ligious uses.

It alleges the perversion or abuse of that trust by the church or society existing in the persons of the respondents or their predeces

sors.

It prays that the trust be re-established.

moved from the administration of the trust, and It prays that the respondents may be reother trustees appointed.

In sum, it denies the right of respondents to be in possession of the property and the muniments of its title, and demands an account of the rents of a part of the premises.

(b) To all this the respondents, while making certain answers to other matters of the bill, commence their defense by saying, that "Under the said act, they are the true and sole owners of the premises occupied by them and demanded in the bill."

And that, "by virtue thereof, these defendants have ever since been in open exclusive and undisputed possession of the said premises and have exercised all the rights and acts of ownership thereto."

They do not show any other right to the possession of the property as against the relators, except claim of title by such possession, protected, as they allege, by the limitation act of the commonwealth.

(c) That act does two things, namely:

First. It incorporates "the proprietors of the pews in the Congregational meeting house, situated in Federal street."

Second. It declares that the "said corporation shall be, and hereby are deemed in law to be seised of the same meeting house, with all the

fers to the act in question, only as conferring the privilege of a corporation on the defendant. It does not aver that the defendants pretend to have title to the property in question by virtue thereof, and challenge its validity.

The answer alleges that respondents were incorporated by the act of 1805, and that, "un266] der it, they are the true and sole *owners of the premises, and that said act was passed

on the application and petition of parties who, prior thereto, were owners of pews, or tenants in common of the land and the house thereon." It is not alleged that the act "proprio vigore" devested the plaintiff's title and vested it in the corporation, but that the title was vested in the corporation at the request of the owners. The only questions, therefore, which could arise on these pleadings were, whether the persons who obtained the act of incorporation were the owners, and whether, after an adverse possession of forty years, a court of equity would interfere to disturb the possession of respond

ents.

The answer takes issue on the charge of the bill, that Little and his associates had contributed land and money to support a public charity; it averred that, on a proper construction of the original deed of the premises, the meeting house was not dedicated to a charitable use, but was erected for their common use, and held by them in proportion to the sums severally contributed; and consequently, if the representatives of these tenants in common had their rights transferred to the corporation, it was only a transfer of their rights by their consent, and for their own convenience-an enabling act, with which the complainants had no concern. The issue, then, was not on the validity of the act, but on the construction of the original deed or agreement of the parties who built the meeting house. The validity of the act of assembly of Massachusetts was not, therefore, drawn in question directly by any averment of the pleadings by the decree, or by any necessary intendment from other averments in the pleadings, or evidence on the record.

The opinion of the state court to be found in Atty. Gen. v. Federal St. Ch. 3 Gray, 1, confirms this conclusion.

The case is, therefore, dismissed, for want of jurisdiction.

99*] *JAMES O'BRIEN, Plff. in Err.,

v.

RICHARD SMITH.

(See S. C. 1 Black, 99, 100.)'

Delay in presenting check-cashier, when may

recover in his own name.

Where the plaintiff took a check on the 18th in

NOTE. What delay in presentment of check, will discharge drawer.

As between the holder and the drawer of a check a demand at any time before suit brought will be sufficient, unless it appears that the drawee has failed, or the drawer has, in some other manner sustained injury by the delay. Then he is discharged only to the extent of such loss or injury. Murray v. Judah, 6 Cow. 490; Mohawk B'k v. Broderick, 10 Wend. 306; Cruger v. Armstrong, 3 Johns. Cas. 5; Conroy v. Warren, 3 Johns. Cas. 259; Rothschild v. Corney, 9 Barn. & C. 388; Purcell v. Allemong, 22 Gratt. 743; Bell v. Alexan

the afternoon and presented It for payment on the morning of the 20th, the intervening day being gence which would have the legal effect of disSunday, held, that there was no delay or neglicharging the drawer.

in his own name.

The plaintiff, as cashier of the bank and holder of the check for the use of the bank, can recover Argued Jan. 7, 1862. Decided Jan. 20, 1862. I States for the District of Columbia.

N ERROR to the Circuit Court of the United

This action was commenced in the court below by Smith, the present defendant in error, cashier of the Bank of the Metropolis, upon a check drawn by O'Brien, plaintiff in error, on Chubb Brothers & Co., in favor of the Bank of the Metropolis. This check was given by O'Brien in part payment of an acceptance due from him at the Bank of the Metropolis. This check was given and received at the Bank of the Metropolis between 1 and 2 o'clock on Saturday, Sept.. 18, 1858. O'Brien at this time had sufficient funds in the hands of the drawee to meet the check. The check was presented to Chubb Brothers & Co. about 11 o'clock on the next Monday, and payment refused, they having failed. Chubb Brothers & Co. paid all demands upon them during Saturday, and on Monday until about 11 o'clock. The places of business of the Bank of the Metropolis, and of Chubb Brothers & Co., are both in Washington, upon the same street, about eighty feet apart. The plaintiff's evidence was to the effect that it was the usage of all banks in Washington to send out but once a day the checks upon the banks received up to the time of so sending; that the check in question was received by them on Saturday, after the regular sending out of checks for that day; that it was presented by them on Monday, at the usual hour.

The defendant gave evidence, however, that other banking houses did send out checks for collection on other banks in the neighborhood, twice a day.

The trial resulted in a verdict and judgment for the plaintiff, and the defendant brought the case to this court.

Messrs. W. D. Davidge and C. Ingle, for plaintiff in error:

Reasonable diligence was not used in presenting the check and demanding payment.

The check was received before half past one o'clock on Saturday, and was not presented until about eleven o'clock on the following Monday, on which day the drawees stopped payment. Their place of business was distant only about eighty feet from the Bank of the Metropolis. The usage is for banks to send out checks on other banks in the neighborhood, twice a day.

Where no time is specified for the payment of a check or bill of exchange, it is payable on der, 21 Gratt. 1; Stewart v. Smith, 17 Ohio St. 82; Taylor v. Sip. 1 Vroom (N. J.) 284; Little v. Phonix B'k, 2 Hill, 425; Planter's B'k v. Kesee. 7 Heisk, 200; Park v. Thomas, 13 Sm. & M. 11; Daniel v. Kyle, 1 Kelly, 304; Morrison v. Bailey, 5 Ohio St. 13; Lovett v. Cromwell, 6 Wend. 369; Matter of Brown, 2 Story, 502; Searle v. Norton, 2 M. & R. 401; Keene v. Beard, 8 C. B. N. S. 380; Hoyt v. Seeley, 18 Conn. 360.

If all the funds be lost by neglect or delay, the holder suffers a total loss. Smith v. Jones, 2 Bush,

103.

If no demand is made, and bank fails after time

demand. Admitting that, in the case of the check in controversy here, the demand might have been made on the day after it was received, if that day had not been Sunday, the custom of merchants required the demand to be made on the preceding Saturday. That this custom is applicable to all bank transactions, and is extended by analogy to the execution of all

contracts.

See Kilgour v. Miles, 6 Gill & J. 274.

Messrs. J. M. Carlisle and Badger, for defendant in error:

As to the refusal to instruct the jury to the effect that the failure to present the check received on Saturday afternoon (after the daily clearing by the usage of the banks), until Monday, at eleven o'clock, made the check an absolute payment to the plaintiff below.

This is clearly settled, on principle and authorities, to the contrary.

As to O'Brien it could only be regarded as a conditional payment; that is, if, upon presentment in a reasonable time, the check should be paid. And the presentment on Monday morning was in reasonable time. For this it is hardly necessary to refer to authorities. It is so laid down in the text books.

Story, Bills, § 419; Grant, Banking, 50 and 209, and cases cited.

Mr. Chief Justice Taney delivered the opinion of the court:

We think the decision of the circuit court was right upon both of the points raised in the argument. The authorities referred to by the counsel for the defendant in error are conclusive, and it cannot be necessary to discuss here questions which we consider as too well settled to be now open to serious controversy.

Judgment of the Circuit Court is affirmed.

it should have been demanded, the loss falls on the holder. Farwell v. Curtis, 7 Biss. 160.

Where there had been no presentment and notice, injury to the drawer is prima facie presumed. Ford v. McClung, 5 W. Va. 166; Little v. Phoenix B'k, 2 Hill, 425; Daniel v. Kyle, 1 Kelly, 304; Harbeck v. Craft, 4 Duer, 122; 2 Pars. N. & B. 71.

The drawer may, however, be bound absolutely to the payee or to any subsequent holder or indorsee, by a presentment for payment at any time before the bank closes on the next business day. Transfers do not prolong this period. A subsequent transferee, in this respect, has no advantage over the transferrer. Sy. etc. R. R. Co. v. Collins, 3 Lans. 29; 3 Kent, Com. 110; Merch.'s B'k v. Spicer, 6 Wend. 443; Nunnemaker v. Lanier, 48 Barb. 234; Kelly v. B'k, 52 Barb. 328; Cawein v. Browinski, 6 Bush. 457; Shrieve v. Duckham, 1 Litt. 192; Veazie B'k v. Winn, 4 Me. 60; Himmelman v. Hotaling, 40 Cal. 111; Simpson v. Pacific, etc. Ins. Co. 44 Cal. 139: Morrison v. Bailey, 5 Ohio St. 13; Bailey v. Bodenham, 16 C. B. N. S. 288; 111 Eng. C. L.; Boddington v. Schlencker, 4 Barn. & Ald. 752; Robson v. Bennet, 2 Taunt. 410; Rickford v. Ridge, 2 Camp. 537; Story, N. sec. 493; Story, Bills. §§ 470, 471: St. John v. Homans, 8 Mo. 382; Foster v. Paulk, 41 Me. 425; Reid v. Reid, 11 Tex. 585; Lilley v. Miller, 3 Nott. & McC. 275; Brown v. Lusk. 4 Yerg. 210; Taylor v. Young, 3 Watts, 343; Harker v. Anderson, 21 Wend. 372; Cruger v. Armstrong, 5 Johns. Cas. 5; Boehm v. Sterling. 7 Term, 423; Clark v. Nat. Met. B'k, 2 MacArthur, 249.

If check is once presented and payment tendered, the money is thereafter at payee's risk, and if bank fall thereafter, but within time allowed payee to present check, the drawer is discharged. Simpson v. Pacific, etc. Ins. Co. 44 Cal. 143. 1 BLACK.

U. S., Book 17.

JESSE HOYT, Piff. in Err.,

v.

EDWARD G. THOMPSON, Adm'r, with the will annexed of Abraham G. Thompson, Deceased, and The Long Island R. R. Co.

(See S. C. 1 Black, 518-522.) Judgment of state court, in what cases may be revised by this court-where decision of state court had no refrence to U. S. Constitution of act of Congress, this court has no appellate power.

In order to give this court the power to revise the judgment of a state court, it must appear upon the transcript, filed by the plaintiff in error, that the point on which he relies was made in state court, and decided against him, and that the section of the Constitution of the U. S. relied on was brought to the notice of the state court, and the right which he now claims here claimed under it.

Where all of the matters put in issue by the bill and answers and decided by the state court, were questions which depended for their decisions upon principles of law and equity, as recognized and administered in the state, and without reference to the construction or effect of any provision in the Constitution of the U. S. or any act of Congress, this court has no appeilate power over the judgment of the state court pronounced in such a controversy.

Argued Jan. 9, 1862. Decided Jan. 20, 1862. N ERROR to the Superior Court of the City of New York.

I

This action was commenced by a complaint filed in the Supreme Court of the State of New York, by Jesse Hoyt, the present plaintiff in error. Hoyt claimed to be the assignee of a debt of $40,000, which in its origin was due from the Long Island Railroad Company to the Morris Canal & Banking Company, and which was secured by a bond and mortgages. The main objects of the bill were, to set aside an assignment of the debt and its securities from

The

Where check is given payee on a distant bank, it is enough if he forward it by mail on next business day, and if person receiving it present for payment on next business day after he receives it. drawer must have contemplated this delay, and remains absolutely liable for this length of time. Story, notes, sec. 493; Byles, 20; Middleton B'k v. Morris, 28 Barb. 616; Moule v. Brown, 4 Bing. N. C. 266; Hare v. Henty, 30 L. J. C. P. 302; Rickford v. Ridge, 2 Camp. 537; Bond v. Warden, 1 Collyer, 583; Smith v. Janes, 20 Wend. 192.

The drawer is liable without presentment or notice if he had no funds in the bank when he drew the check, or subsequently withdrew them, or court had restrained banker from paying out money. Coyle v. Smith, 1 E. D. Smith, 300; Conroy v. Warren, 3 Johns. Cas. 259; Franklin v. Vanderpool, 1 Hall, 78; Bell v. Alexander, 21 Gratt. 6; Lilley v. Miller, 2 N. & McC. 257; Kemble v. Mills, 1 Man. & G. 757; 2 Scott, N. R. 121; 9 Dowl. 446; Valk v. Simons, 4 Mason, 113; Hoyt v. Seeley, 18 Conn. 353; True v. Thomas, 16 Me. 36; Jack v. Darrin, 3 E. D. Smith, 557; Whaley v. Houston, 12 La. Ann. 585; Purchase v. Mattison, 6 Duer, 587; Cushing v. Gore, 15 Mass. 59; Norris v. Despard, 28 Md. 491; Healey v. Gillman, 1 Bosw. 235; Lovett v. Cornwall, 6 Wend. 367; Eichelberger v. Finley, 7 Harr. & J. 381; Murray v. Judah, 6 Cow. 484; Blankenship v. Rogers, 10 Ind. 333; Valk v. Simons, 4 Mason, 113; Com. B'k v. Hughes, 17 Wend. 94; Brown, matter of, 2 Story, 502.

If holder cannot present check within the time, from removal of bank, and disturbed condition of country, he should notify drawer and offer to return check; otherwise, drawer is not liable. Peterson v. Union Nat. B'k, 52 Pa. St. 207; Martin v. Morgan, 3 Moore, 645; Thomson, Bills, 270.