The enquirer. [volume] (Richmond, Va.) 1804-1815, 1811-12-21
FOR THE ENQUIRER.
FEDERAL CIRCUIT COURT,
Hci!! at Richmond.
EMBARGO CASE.

DIXON & OTHERS Us. THE u. STATES.
MARSHALL, G. J.-This cause comes on
upon demurrer to a declaration assigning
breaches of the condition of bond of which
Oyer had been given.
Previous to an investigation of the points
supposed to arise, it becomes necessary to-
decide how much of the writing certified by
the Clerk of the District Court is to be con-
,sidered as essentially the record now before
this Court.
BY the Attorney Of the U. S. it has been
contended that he may strike out the assign
ment Of breaches and support his Judgment
upon the declaration without that assign
nient consequently that the case is
TO be considered as if assignment of
breaches was to be found in the record.
If the demurrer should not be understood
TO confess breach of the condition of the
bond not shown by the declaration, it would
follow, that strike out the assignment of
Breaches, and there is an end of the case
If the demurrer would be construed to con-
Tess a breach of the condition, still the as
sgnment of breaches is apart of the deClara-
fion. 1t is an amendment of the declaration
and has the same effect as if originally nser
ted in it. Can it be supposed that, where n
part of the declaration discloses a fact which
is cause of demurrer, the Plaintiff, because
he can support an action without such state
ment, may strike it out and yet hold the
Defendant to his demurrer? This would
not be tolerated by any Court.
The assignment of breaches, then, is
certainly part, and very essential part of
this reIcr;.
1t is alledged by the Plaintiffs in error
that there is a variance between the bond
declared on & that exhibited on Over, which
is fatal, and of which they may avail them
selves on demurrer. That the law is, as sta
ted, readily admit but the fact of variance
cannot be conceded.
/ understand q variance to be an erroneous
description of the instrument referred to (;
that it does not appear to be the same when
produced iii evidence either Oh oyer or at the
trial.
In this case the bond represents the vessel
as licensed vessel, and the declaration "a
Vers her to have been in fact a registered
vessel. This averment in the declaration,
however. is not in that part which processes
to describe the bond. 1t is an eXtrinsic fact
which exhibits this case of a registered ves-
;sel which has given bond stating her to be
a licensed vessel. The question appears to
be, not whether the bond be enormously de-
Yscribed, but how far such bond conforms to
the statute and is binding the o or
The Plaintiffs in error allege that the bond
as void.-It is void, they say, at common law,
because the United States of America, not
being a natural but an artificial being, is in
capable at common law of becoming party
to a contract.
+. The u. S. of America will be admitted to
be corporation. But it is incidental to a
corporation to sue and to be sued, to convey
and to take property. Proper organs for con-
veying, must certainly be provided before
this power can be executed; but if it be in
cidental to this ideal being to receive, then a
conveyance to it or an obligation to it by its
proper name would seem to be valid, unless
there be no person to whom it can be deliver
ed. A claim to the obligation by the officer
authorised by law to assert that claim, would
seem to be sufficient evidence of assent to the
Contract. And if there be any person APP
pointed to transact that particular business,
a delivery to him would be good delivery.
The instances given to illustrate the positi-
on taken by the plaintiffs in error, are those
of a corporation, which has acted not by its
corporate name, or OF a corporation that has
expired; neither of which is supposed to be
the fact in this case. bond given to the
people of the United States, would undoubt-
edly be void at common law, and perhaps a
bank whose charter had expired, might no
longer be capable of sustaining action (;
but the United States OF America" is the
true name Of that grand corporation which
the American people have formed, and the
charter will, trust, long remain in full
force and vigor.
The bond it is said is also void a. COM
mon law, because made in restraint of trade
in restraint of common right.
Had there been no act of Congress prohi-
biting foreign trade, there would have been
much force in this objection. But the rule
relied on is founded OH the principle that the
obligation is hostile to the policy of the law
that it surrenders legal rights, the exercise
OF which are conducive to the general inter
est. If the case be not within this principle
it is not within the rule to which the princi-
pie has given existence. IF at the time the
policy of the law restrained trade, bond in
restraint of trade would not seem to be void
unless it extended so far as to contravene the
spirit and intention of the law.
But whatever may he the fate OF the obi &c
tions made to this instrument, as one resting
on the common law, it is contcnded not t,
conform to the statute, and therefore not t.
be supported by it.
1st. Because made payable to the Unite
States and not to the collector.
The words of the act under which this
bond is taken, requires that the bond shat
be giOen to the collector of the district fror
which she is bound to depart.
1t has been argued, with considerable force
that the terms used according TO their natura
meaning, import that the bond shall be pay
able to the collector; and this construction /
the stronger, because, in subsequent statutes
ON the same subject, the sane terms arc Oh
yiously used in the sense which the plaintiff,