a

1819.

V.

Peyton.

to sell." And in Parker v. Rule's Lessee, where a sale was declared to be invalid, because it did not ap- Williams pear in evidence, that the publications required by the 9th section of the act, had been made, the Court inferred, that they had not been made, and considered the case as if proof of the negative had been given by the plaintiff in ejectment. The question, whether the deed was primâ facie evidence, it is true, was not made in that case; but its existence was too obvious to have escaped either the Court or the bar. It was not made at the bar, because counsel did not rely on it, nor noticed by the judges, because it was not supposed to create any real difficulty.

It has been said in argument, that in cases of sales under the tax laws of Kentucky, a deed is considered by the Courts of that state, as prima facie evidence that the sale was legal. Not having seen the case or the law, the Court can form no opinion on it. In construing a statute of Kentucky, the decisions of the Courts of Kentucky would unquestionably give the rule by which this Court would be guided; but it is the peculiar province of this Court to expound the acts of congress, and to give the rule by which they are to be construed.

Judgment affirmed, with costs.

a 9 Cranch, 64.

Feb. 8th.

The EXPERIMENT.

Depositions, taken on farther proof, in one prize cause, cannot be invoked into another.

APPEAL from the Circuit Court of Massachusetts.
This was a question of collusive capture.

The Attorney General moved to invoke into this cause depositions taken, on farther proof, in the case of the George, reported ante, vol. I. p. 408.

Mr. Chief Justice MARSHALL. Original evidence and depositions taken on the standing interrogatories, may be invoked from one prize cause into another. But depositions taken as farther proof in one cause, cannot be used in another.

causes.

1

Motion refused."

a But in other respects, cases of collusive and joint captures form an exception to the general rules of evidence in prize In cases of this nature, the usual simplicity of the prize proceedings is departed from, because the standing interrogatories are more peculiarly directed to the question of prize or no prize, as between the captor and captured, and are not adapted to the determination of questions of joint or collusive capture. It is, therefore, almost a matter of course to permit the introduction of farther proof in these cases. The George, ante, vol. 1. p. 408. But this farther proof must be of such a nature as is admissible by the general rules of prize

evidence. Under what circumstances these rules permit the invocation of papers and depositions, may be seen, ante, vol. II. Appendix, note I. p. 23.

1819.

Weightman

V.

Caldwell.

(COMMON LAW.)

WEIGHTMAN V. CALDWELL.

E. B. C., having an interest in a cargo at sea, agreed with J. W. for the sale of it, and J. W. signed the following agreement in writing: "J. W. agrees to purchase the share of E. B. C. in the cargo of the ship Aristides, W. P. Z., supercargo, say at $2,522 83, at fifteen per cent. advance on said amount, payable at five months from this date, and to give a note or notes for the same, with an approved endorser." In compliance with this agreement, J. W. gave his notes for the sum mentioned, and in an action upon the notes, the want of a legal consideration under the statute of frauds being set up as a defence, on the ground of the defect of mutuality in the written contract; the Court below left it to the jury to infer from the evidence an actual performance of the agreement, the jury found a verdict for the plaintiff, and the Court below rendered judgment thereon. The judgment was affirmed by this Court.

ERROR to the Circuit Court for the District of Columbia.

This cause was argued by Mr. Jones and Mr. Key, for the plaintiff in error," and by Mr. Caldwell, and Mr. Swann, for the defendant in error.'

a They cited Wain v. Warlters, 5 East, 10. Champion v. Plummer, 1 New Rep. 252. Symonds v. Ball, 8 T. R. 151. Saunderson v. Jackson, 2 Bos. & Pul. 238. Bayley and Bo

1819.

Weightman

V.

Caldwell.

Mr. Justice JOHNSON delivered the opinion of the Court. The suit below was instituted on a promissory note by the defendant in error. Although it is, in fact, an indorsed note, and so declared on; yet it is admitted to have originated in a negociation between the maker and indorser, and whatever defence would be good as against the promisee, is admitted to be maintainable against this indorser, the indorser standing only on the ground of a security or ordinary collateral undertaker to the maker. The defence set up is the statute of frauds, not under the supposition that a promissory note is a contract within the statute, but on the ground that this note was given for a consideration which was void under the statute. The case was this: Caldwell having an interest in a cargo afloat, agrees with Weightman for the sale of it, and Weightman signs the following memorandum, expressive of the terms of their agreement: "John Weightman agrees to purchase the share or interest of Elias B. Caldwell, in the cargo of the ship Aristides, W. P. Zantzinger, say, $2,522 83, at fifteen per cent. advanced, on said amount, payable at five months from this date, and to give a note or notes for the same, with an approved indorser. JOHN WEIGHTMAN.

"Washington, May 20, 1816."

gert v. Ogdens, 3 Johns. Rep. 399. Roberts on Frauds, 113.

116.

b They cited Ballard v. Waller, 3 Johns. Cas. 60. Leonard ▼. Vredenburgh, 8 Johns. Rep. 29. Slingerland v. Morse, 7 Johns. Rep. 463. Ex parte Minet, 14 Ves. 189. Roberts on Frauds, 117. Note, 58. Ib. 121. Stapp v. Lill, 1 Camp. N. P. R. 242.

In compliance with that agreement, Weightman gives his note for the sum agreed upon, which is afterwards renewed, and this note taken, on which this action is instituted. At the trial below, Weightman's counsel moved the Court to instruct the jury, that, "If no bargain or agreement for the sale of the plaintiff's share of the said ship Aristides, nor any note or memorandum in writing, of the same, was ever signed by the plaintiff, binding him in writing to sell his said share to defendant, and if defendant did never actually receive or accept any part of said cargo, and gave nothing in earnest to bind said bargain, or in part payment, and if plaintiff has never made or tendered any written transfer or bargain of his said share to the defendant; but if the entire obligation, reciprocally binding plaintiff to sell said share, was verbal, and formed the sole,consideration for the said note, then there is no adequate consideration for the said note, and plaintiff is not entitled to recover upon said note. This instruction the Court refused to give; but instructed the jury, that, if they should be of opinion, from the evidence, that the defendant executed and delivered to the plaintiff the note upon which this action is brought, and that the said note was given in consideration of the purchase of the plaintiff's share or interest in the said cargo of the said ship Aristides, as stated in the aforesaid writing, &c., and that the said cargo was then on the high seas on its passage from France to the United States, and that the same has since arrived, and has never come to the possession of the plaintiff; that the

1819.

Weightman

V.

Caldwell.