The national Republican. [volume] (Washington City [D.C.]) 1866-1870, 1868-10-29

SUPREME CouRT-GESERAL TERM.-All the
Justices sat In bdnc yesterday and transacted
the following business
ATTORNEY ADNITTrD


!. SUPREME CouRT-GEsEnAL TERM.-All the
Justices sat IN bdnc yesterday and transacted
the following business;
: ATTORNEY ADMITTED,
On motion OF NJ. Thompson, Mcssrs. ASH
ford, Mcpherson and Thorn son were appoint.
ed committee to examine the qualifications
pc bar OF this court
~ Samuel Il. Waite VS.. Gideon l.. Walker.
Circuit Court. where II was frst reported for
| this paper II is an action of assumpsit by
the holders OF FIVE accepted bills Of exchange,
J. Hull upon q. l.. Walker, the defendant, in
favor Of Lot Chamberlain, and BY him en-
dorsod in blank. None OF the bills OF ex-
| change were stamped, hut II appeared that
| they were the consideration paid for n steamer
which HUI had purchased, and were secured
This mortgage authorized the venders 10, in
case the drafts were not paid rs they respect
iycly matured take possession of the vessel
| OF the drafts had matufed, but before the ma
no.y % ne two Others the plaintiff took
She had been libelled for repairs at Al zoo, and
carried her to New York, where she was sold
for $500; The plaintiff consented that this
be credited upon the drafts, and 1t was done.
The appellee, Mr.. Walker, pro Sc, contended
ihns on ne triH the plaintiff had offered the
excluded by thc Court until the plantifproved
that the bills were secured by duly stamped
mortgage, and offered the mortgage In evil
dcnce to prove the stamp only; that the de-
PENDANT objected to the reception of the mort
gage because 1t could not be given In evidence
Tor one purpose only, and also because the
subscribing witnesses were not called TO prove
the execution of 1t. That the mortgage could
not be given In evidence under declaration
which set out the notcs only, and made no
mention of the mortgage; that the Court was
wrong In ovcrruling this objection; that the
acceptance was void under the statute, the
note being to pay the debt OF third party;
that the drafts were void in the plaintiffs
hands so soon as he took the vessel out of the
a. hp nf n
mortgage Hull was to keep the vessel until all
the drafts were due; that the sale Of the yes
days notice to Hull, aud not at public auction,
but ~ private sale, so that the Defendant was
full sale against the drafts sued on.
Mr.. Davidge, for the appellant urged that
II was nocrror in the tourt to allow the I'm.
stamped drafts to be given In evidence after it
had been shown that they were secured by
stamped mortgage. The fact that the vessel
had been advertised for sale was proved prom
brought out by the defendants cross exam
nation. Second. That the doctrine OF recoup-
much less Of collateral torts, and whenever
relied on must be specially pleaded, "r the
plaintiff must be notified oil the counter claim,
Third. Tho defendant being no party TO the
sale, has nothing whatever to do with the
doctrine Of rccoupment. Fourth As to the
allegation that the private sale OF the vessel
was violation OF the mortgage, the Court had
charged that the sale OF the vessel was wholly
to that part OF the chargci It therefore could
not be considered here.
TnG DECISION or THE COURT.
Judge Cartier thought 1t was evident that
the result Of the trial below had done great
injustice to the defendant. The exceptions
which came up were not such as enabled this
Court to move in the perfect line OF technical
law, but the right of appeal had been given TO
prevent Injustice being Ionci ana as mere h n
low, this Court would set that trial aside and
grant a new one.
Judge Wylie thought that the power to sell
did not come into existence until the whole
five drafts fJf 5000 had become due; and even
If he had doubt on the subject he would not
against the defendant below. In selling the
vessel the parties who sold, not only did not
against it. He gave the defendant neither
public notice or private notice, and they sold
her at their own peril. As 1t was the vessel
these parties had sold the vessel to Hull for
q ,OJJ and gotten Walkers acceptance thereon,
vessel Tor 1000. 1t was an atrocious proceed:
ing, and ono which equity would notice and
remedy. But It is said this Court cannot no
tlce this aspect OF the case, because there Is
no special exception bringing up this view OF
the case. Now the tc ord showed that in re-
iusing the plaintiffs. the Court below gave
that rclunalin HE general charge TO the jury,
and In that charge the Judge specially alludes
to the defendants PRAYER IN regard 10 ms ms
sale OF the vessel, &c, could not be considered
by the Court in this case. This was error,
and could be cOnblucFeu hh ONef-tultui hb 'ht
record 81 God, the more especially as there was
general exception to the whole change by
the defendant. He found enough in the record
to enable him heartily to concur Ia the oplh-
ion of the Chief Justice.
Judge Olin held that when the iFst three
notes came due and were not paid, the vessel
mortgagCd WAS forfeited and liable to he sold
On notice and compliance with the other con
ditons. lie could not hold with Judge Wyllc
that the charge OF the Judge below was to
be considered MS an answer to the speclnt
prayers Of the defendant, and That ON general
execution to the change that certain portions
could he taken out and considered specih-
cnlIy excepted to, SO as to enable this Court
to override a. The case here was simply
whether the Judge erred IN the matter OF en-
ccptiona which are taken To his opinion. In
this he could sec no error though there might
be error In some part Of she Judges charge TO
the Jury. lie did not think personal notice OF
the sale was necessarily an advertisement OF
other public notice would be sufficient.
The Court set aside the judgment below,
and ordered new trial on the defendants
paying costs.
Adjourned