UnitedStates V. Morris. judged for the plaintiff: for B. is no party to the 1825. deed, and therefore can neither sue nor release it. But it is an equitable trust for him, and suable in the Chancery, if A. will not let him have part of the money: and the book of Edw. III. cited, that he might release in such case, was denied to be law." Since there must be a power of releasing somewhere, and the officers could not do it, the power must reside in the United States, and the remission is such a release." Cases have been cited on the other side, in which Courts of law have taken notice of equitable interests, and have permitted them to be pleaded or replied, so as to protect them. All these cases proceed on the ground of fraud and collusion, which cannot be charged here. As to Bottomley v. Brook, and Rudge v. Birch, they are said by Mr. Maryatt, in Schooley v. Mears, to have been overruled in the Exchequer, in the case of Lane v. Chandler: and in Wake v. Tinkler, Lord Ellenborough says, "I am much more inclined to restrain than to extend the doctrine of these cases." And Bailey, J. says, "we have nothing to do in this case with any other than legal rights." So in Bakerman v. Radenius, Mr. Erskine (arguendo) states a case before Lord Mansfield, where an action was brought in the name of a nominal plaintiff by persons benefi a Offly v. Warde, 1 Lev. 235. S. C. 2 Keb. 333. b Bayley v. Lloyd, 7 Mod. Rep. 250. c Cited in 1 Term Rep. 621, 622. d 7 East. Rep. 153. e 7 Term Rep. 662. United States V. Morris. 1825. cially interested, for whom he was a trustee. At the trial, the defendant produced a release from the plaintiff, which Lord Mansfield held to be conclusive; but said the Court of Chancery, upon application, would make the trustee pay the principal, the debt, if well founded, and the costs of suit. And Lawrence, J. cites a case from Salkeld," where Lord Holt said, that if the plaintiff in ejectment, who is considered only as a trustee for the lessor, released the action, he might be committed for a contempt of the Court : "but he did not say the release would not defeat the action." So, in Paine v. Rogers, where the tenant, a nominal plaintiff, having given a release to the plaintiff, the Court, on application of the landlord, ordered it to be given up; clearly, because if used it would defeat the action. And in Legh v. Legh, the obligor of a bond, after notice of its being assigned, took a release from the obligee, and pleaded it to an action brought by the assignee, in the name of the obligee. The Court, on motion, set the plea aside, Eyre, C. J. saying, "the only question is, whether the assignee must not seek relief in a Court of equity." Clearly showing, as the whole case does, that the plea could not be replied to at law. But why should the custom-house officers be entitled to maintain this action in the name of the United States, notwithstanding their release, and having no possible interest in the result? pro United States V. Morris. Why should they have the benefit of not being 1825. liable to costs for a false action? They are not assignees of the United States, if that would tect them. There can be no assignment of a test. The injury by the Marshal's return is directly to themselves, and the United States have barred themselves from regarding it as an injury to them by the remission. The right to sue in the name of another only existed where the action would not lie in the name of the party actually interested. But, in every case where the unlawful act of one person does an injury to another, an action on the case lies for the injury. Can the United States, who are not injured, sustain this action? If they could, is such a right of action assignable? Here, however, is no actual assignment; and it can only be considered as analogous to the assignment of a chose in action. But how can the real plaintiffs entitle themselves to the damages recovered in the name of the United States, without such assignment? The law only gives them half the forfeiture or proceeds. How, then, can they, notwithstanding the release or remission by the United States, recover, in their name, damages which they are not legally entitled to participate in? and do so for their own benefit, when, if they have sustained damages, they may sue in their own name? And this brings us to consider some of the special causes of demurrer. The replication is a departure from the declaration, not only by not bringing forward matter pursuant to it, and fortifying it, but by bringing forward matter showing 1825. United States V. Morris. no right of action in the plaintiffs, and showing, that if it exists any where, it exists in third persons; and that this matter was known, and might be made available, before action brought. Departure is defined to be, "when the second plea containeth matter not pursuant to his former, and which fortifieth not the same, and, therefore, it is called decessus, because he departeth from his former plea." Thus, where the defendant pleads in bar a lease for fifty years made by a corporation; plaintiff replies, that it was made while a former lease was in existence, and shows the statute 21 Hen. VIII., and that the lease for fifty years was void; not setting forth the proviso making such leases good for twenty-one years. Defendant, in his rejoinder, pleads the proviso of the statute 21 Hen. VIII., which makes such leases good for twenty-one years. Held, that this pleading of the proviso was a departure, because it neither goes with, nor enforces the bar before. So, in a præcipe quod reddat, the tenant pleads, that the land was devised to him, and the plaintiff replies, that the devisor was an infant; to this the defendant says, that, by the custom, infants may devise; and, per Curiam, this is a departure, for he ought to have pleaded the special matter first. So, in Doctr. Plac. 124. per Keble, nota, where general matter is pleaded, and where the special matter might have been a Co. Litt. 304. a. Doctr. Plac. tit. Departure, (119.) b. Fulmarston v. Stuard, Dyer, 102. b. 103. a. c Doctr. Plac. 123. 37 H. VI. 5. United States V. Morris. pleaded at the commencement, the party, after- 1825. wards, shall not maintain the general matter with the special matters. And if the defendant justifies by distress for rent, and the plaintiff replies, that he used and sold them, to which the defendant rejoins, that he sold the distress pursuant to the statute 2 W. & M., it will be a departure; for it should have been alleged so at first." Defendant, in a plea, justified taking cattle damage feasant, and afterwards rejoined, that they were taken surcharging the common; held to be a departure; and one of the reasons was, that the surcharge might have been pleaded first, because the defendant then knew the plaintiff's right. So, when a man, in his former plea, pleadeth an estate made by the common law, in the second plea, regularly, he shall not make it good by an act of parliament. So, when, in his former plea, he entitleth himself, generally, by the common law, in his second plea he shall not enable himself by a custom, but should have pleaded it at first. As to the third cause of demurrer, the statute only enables the issuing of a writ of execution to another District, upon judgments "obtained for the use of the United States." The present judgment was obtained in their name, but for the use of other parties. It is contended, that if the judgment was for the use of the United States, the execution need not be so. But the privilege |