United States v. Simms. 1 C.

arise respecting the style in which suits, theretofore directed to be brought in the names of Maryland and Virginia, should thenceforth be prosecuted. The respective laws authorizing them, and which were considered as having been reënacted by congress, totidem verbis, directed such suits to be prosecuted in the names of Maryland and Virginia, respectively. The continuance of this style in the courts of the United States was glaringly improper, and it was thought necessary to change it by express provision. These objects rendered the supplemental act necessary, which provides, that the criminal law of Virginia, as it existed before the establishment of a penitentiary system, should continue in force, and that all indictments shall run in the name of the United States; and all fines, penalties, and forfeitures, accruing under the laws of the States of Maryland and Virginia, shall be recovered with costs, &c.

The residue of this supplemental act changes nothing, and only supplies provisions required by the revolution in government, and which had been omitted in the originial act.

This view of the two acts would furnish strong reasons for supposing the object of congress to have been, not to change in any respect, the existing laws further than the new situation of the district rendered indispensably necessary; and that the fines, penalties and forfeitures alluded to in the act, are those only which accrued by law, in the whole or in part, to government, and for the recovery of which the remedy was by indictment or information, in the name of the State in which the court sat, or by a qui tam action in which the name of the State was to be used. It cannot be presumed that congress could have intended to use the words in the unlimited sense contended for.

By the laws of Virginia, an officer is liable to a heavy fine for not returning an execution which came to his hands to be served, or for retaining in his hands money levied on such execution. This goes to the party injured, and on his motion the judgment for the fine is

to be rendered. It would be going a great way to construe [* 259] this act of congress as making such a fine recoverable for the use of the United States, and yet this would be the consequence of construing it to extend to fines and penalties accruing by law, not to government, but to individuals.

If a penalty recoverable by any individual, by action of debt, was to be considered as designed to be embraced by the second section of the supplemental act, still an action of debt in the name of the United States and of the informer, would seem to be the remedy given by the act.

The principle, reddenda singula singulis, would be applicable, and

Fenwick v. Sears's Administrators. 1 C.

it would seem to the court more proper to suppose the qui tam action, given in this case, to be the remedy, than an indictment.

The court, therefore, is of opinion, that there is no error in the judgment, and that it be affirmed.

4 C. 75; 5 P. 190; 16 P. 291.

FENWICK V. SEARS's Administrators.

1 C. 259.

Though the plaintiff took administration in Maryland, before the separation of the District of Columbia, he cannot sue as administrator in the circuit court for that district.

THIS was a writ of error to the circuit court, for the District of Columbia. The defendants in error brought an action in that court on a foreign bill of exchange, as administrators of George Sears, the indorsee. Among other pleas in bar, was one, that the plaintiff's had not obtained letters of administration of the goods, &c., of Sears, in the county of Washington. The plaintiffs replied that Sears resided at the time of his death in Baltimore, died there intestate, and on the 8th day of November, 1800, administration of his effects was granted to the plaintiffs. The defendants demurred, and the circuit court held the replication sufficient. Mason, for the plaintiff, Simms, and C. Lee, for defendants.

THE COURT gave the following judgment:

[* 282 ]

It is decreed by the court that the defendants, Stricker and Payson, not having obtained letters of administration in the District of Columbia, were not competent to maintain this action; and that the circuit court of the United States in and for the said district erred in overruling the demurrer. It is, therefore, considered by the court, that the judgment of the said circuit court, on the said demurrer, be, and the same is hereby reversed, and that judgment thereon be rendered for the defendant in the originial action

15 P. 1; 4 H. 131.

Mandeville & Jameson v. Riddle. 1 C.

THOMPSON v. JAMESON.

1 C. 283.

A declaration in an action of debt, founded on a decree in chancery, for 860l. 12s. 1d., with interest from a day named, to the date of the decree, held bad on error, the clause giving interest not being noticed in the declaration.

THIS was a writ of error to the circuit court for the District of Columbia. An action of debt was brought in that court on a decree in chancery, which was for 8607. 12s. 1d., with interest at the rate of five per centum per annum, from the 8th day of March, 1795, until the day of entering the decree. The declaration omitted the clause of the decree giving interest. Many errors were assigned, but the court considering this variance fatal, gave no opinion on the other points, and reversed the judgment.

Swann, for the plaintiff.

E. J. Lee and Key, for the defendant.

[* 290 ]

* MANDEVILLE & JAMESON v. JOSEPH RIDDLE & Co.

1 C. 290.

By the law of Virginia no promise is implied in favor of an indorsee, by any but his immediate indorser; an action of assumpsit does not lie by an indorser against a remote indorser, founded on the indorsement.

THIS was a writ of error to the circuit court for the District of Columbia. The action was assumpsit for money had and received, and at the trial the plaintiff relied on a promissory note made by Vincent Gray, payable to the order of Mandeville & Jameson, by them indorsed to McClenachan, and by him to the plaintiffs below. The circuit court ruled for the plaintiffs, the defendants excepted, and the question presented upon the record was whether this action could be sustained, there being an intermediate indorser.

[* 298] *The CHIEF JUSTICE delivered the opinion of the court.

Mandeville v. Riddle. 1 C.

"The only question in this case is, whether an action of indebitatus assumpsit can be maintained by the assignee of a promissory note made in Virginia, against a remote assignor.

"The act of the Virginia assembly, which makes notes assignable, gives the assignee an action of debt in his own name against the maker of the note, but is silent with respect to the claim of the assignee against the assignor. It was therefore long a doubt whether the assignor became liable on his mere assignment, without any special agreement, for the contents of the note in the event of the insolvency of the maker. This doubt has at length been settled in Virginia, so far as to declare the liability of the assignor on such assignment; but not the amount for which he is liable. It seems to be yet a question whether he is answerable for the sum mentioned in the note, or for only so much as he received for it, provided he shall be able to prove the sum actually received. It is also a question whether the assignee can have recourse to any other than his immediate assignor.

"As the act of assembly gives no right to sue the assignor, such an action can only be maintained on the promise which the law implies from the assignment, and, consequently, can only be sustained by and against the persons to and from whom the law implies such a promise to have been made. As the assignment is made to a particular person, the law implies a promise to that person; but it raises no promise to any other. There is no fact on which to imply such promise.

"In the language of the books there is a privity between the assignor and his immediate assignee; but no privity is perceived between the assignor and his remote assignee. The implied promise growing out of the indorsement, is not considered as having been made assignable by the act of assembly, and therefore the assignee of that promise cannot maintain an action of indebitatus assumpsit on it.

*" It is, therefore, the opinion of the court that this action [ * 299 ] is not maintainable, and that the judgment ought to be reversed."

35⚫

Stuart v. Laird. 1 C.

STUART V. LAIRD.

1 C. 299.

The 6th section of the act of the 29th of April, 1802 (2 Stats. at Large, 163,) transferred the jurisdiction over forthcoming bonds given in suits pending in the courts abolished by that

act.

Congress has power to establish such inferior tribunals as it thinks proper, and to transfer pending proceedings from one such tribunal to another.

Judges of the supreme court may hold the circuit courts. Contemporaneous construction of the constitution and long practice and acquiescence have put this question at rest.

THIS was a writ of error to the circuit court of the United States for the district of Virginia. The nature of the proceeding and the facts of the case appear in the opinion of the court.

The case was argued by C. Lee, for the plaintiff, and Gantt, for the defendant.

[* 308]

The CHIEF JUSTICE, having tried the cause in the court below, declined giving an opinion.

Paterson, J., (Judge Cushing being absent on account of ill health,) delivered the opinion of the court.

On an action instituted by John Laird against Hugh Stuart, a judgment was entered in a court for the fourth circuit in the eastern district of Virginia, in December term, 1801. On this judgment, an execution was issued, returnable to April term, 1802, in the same court. In the term of December, 1802, John Laird obtained judg ment at a court for the fifth circuit in the Virginia district against Hugh Stuart and Charles L. Carter, upon their bond for the forthcoming and delivery of certain property therein mentioned, which had been levied upon by virtue of the above execution against the said Hugh Stuart.

Two reasons have been assigned by counsel for reversing the judgment on the forthcoming bond; 1. That as the bond was given for the delivery of property levied on by virtue of an execution issu

ing out of and returnable to a court for the fourth circuit, [* 309 ] no other court could legally* proceed upon the said bond. This is true, if there be no statutable provision to direct and authorize such proceeding. Congress have constitutional authority to establish from time to time such inferior tribunals as they may think proper; and to transfer a cause from one such tribunal to another. In this last particular there are no words in the constitution to prohibit or restrain the exercise of legislative power.

The present is a case of this kind. It is nothing more than the