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ANNE บ.

March 1, 1809, was not in force, unless by virtue SCHOONER of the president's proclamation of November 2d, 1810. That proclamation is not set forth in the libel, so that the act done does not appear by the libel to be contrary u.STATES. to law. The libel ought to have stated that France had before the 2d of March, 1811, so revoked her edicts as that they ceased to violate the neutral commerce of the United States; and that the president had declared it by his proclamation. This is not like the revival or continuance of a law by a law; but when the revival of a law is to depend upon a matter of fact, the libel ought to state the fact, that the Court may judicially know whether the law be revived or not.

STORY, J. This Court has decided at this term that the act of March 1, 1809, was in force in February, 1811.

C. LEE. If that point has been decided it was when I was not present, and shall forbear to make any further observations; but if it had not been decided, I should have adduced the new evidence communicated to congress by the late documents to show that in March, 1811, the Berlin and Milan decrees were not repealed, and that the repeal did not take place till the 28th of April.

JOHNSON, J. That point was considered in the case of the Aurora. (Ante p. 382.)

JONES, contra.

The cases of the Hoppet and the Aurora have settled all the points in this case, except the omission to state in the libel the president's proclamation. The Court can take notice of the law, and therefore can notice the proclamation authorized by that law.

JOHNSON, J. That point was decided in the Aurora.

JONES. Then as to the objections to the form of the libel. This is not a case in which the Appellant could plead not guilty, and put the United States upon the proof of every thing alleged. But he is to put in his claim upon oath, like an answer to a bill in Chancery,

v.

SCHOONER All that is necessary in the libel is to state, generally, ANNE the grounds on which the forfeiture is claimed. By referring to the law it is made certain. It is clear, by V.STATES. the terms of the law alluded to in the libel, that the goods must have been of British growth or manufacture; and such was the proof in the case.

The doctrines relative to indictments at common law do not apply to the case.

March 16th....MARSHALL, Ch. J.

The sentence of the Circuit Court, in this case must be reversed for the defects in the libel, for the reasons stated in the case of the Hoppet.

Sentence reversed, and the cause remanded with leave to amend the libel.

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ven two bonds for his official conduct at dif

This case was submitted to the Court without arguferent periods ment, and and with dif ferent sureties,

a promise by

DUVALL, J. delivered the opinion of the Court as

the supervisor follows:
to apply his
payments ex-
clusively to the
discharge of
the first bond,
although some
of the pay-
ments were

In this cause the opinion of the Court is required on a single point. The facts are these:

The supervisor of the revenue, for the district of for money col- Ohio, in due form of law appointed John Arthur collec

after the se

tor of the revenue for the first division of the first sur- U. STATES vey of the said district. Arthur, on the 25th day of ช. August, 1797, together with the Defendants, his sureties, JANUARY executed a bond to the United States, in the penalty of & PAT$ +000, with condition that Arthur should truly and TERSON. faithfully execute and discharge all the duties of said offie according to law. The supervisor, for greater se- lected and paid curity to the government, was in the habit of renewing cond bond was the commission, and renewing the office bond; and on given, does the 23d day of March, 1799, Arthur executed another not bind the United States, bond to the United States with Robert Patterson surety, and does not in the penalty of $ 6000 with this condition, that if the amount to an said John Arthur has truly and faithfully executed and the payments application of discharged, and shall continue truly and faithfully to ex- to the first ecute and discharge, all the duties of said office, and shall also render and settle his accounts according to law, then the obligation to be void," &c.

Arthur proceeded to make the collections, and from the commencement of his duty to the 30th of June, 1802, was charged with the collection of $ 30,584 99 1-2. On the settlement of his account in the year 1803, he was in arrear $16,181 15 1-2. and suits were instituted on each of the bonds. The pleadings were the same in both actions. There was a plea of performance to which the Plaintiffs reply and allege, as a breach of the condition, that the Defendants have failed to collect and pay over the revenue arising within his district, &c. and are in arrear to the United States, &c. on which issue was joined. Pending the suits Arthur died; and they were prosecuted to judgment against the sureties only.

The supervisor kept one general account only against the collector. On the trial the Plaintiff's exhibited, on their part, the general account between them and the Defendant on which the balance, as beforementioned. is $16,181 15 1-2. They also exhibited the balance appearing to be due by terminating the account with the period when Arthur gave the second bond at the time,his first commission was revoked, which was $ 6,483 59 1-2.

The Defendants, to support the issue on their part, offered the deposition of a witness who proved that James Morrison, the late supervisor of the revenue, informed him that Arthur had paid a sufficient sum to dis

bond.

v.

U. STATES charge the bond first given, and that what he had paid should be so applied. After reading the deposition, the JANUARY Plaintiffs introduced the supervisor himself to contra& PAT- dict the Defendants witness. In his testimony he adTERSON. mits that the payments made by Arthur if applied to

the first bond would discharge it; and that he might have frequently told January and others, that the w le of the bond would be paid off, if the payments made by Arthur were appropriated exclusively to its discharge; and that he himself had entertained the opinion that they ought to be so applied. To repel the testimony of the supervisor and to support that of their witness, the Defendants produced a clerk in the supervisor's office, who proved" that the Defendant, January, several "times called at the office of the supervisor on the sub"ject of his bond, expressed his-uneasiness about its remaining out and his desire to get it up. That the "supervisor assured him that Arthur had paid enough to "discharge that bond, and that he might make himself

easy; but refused to give up the bond because he thought "that such bonds ought to remain as vouchers in his "office.

The Plaintiffs, on this state of the case, moved the Court to instruct the jury, that the promise of the supervisor as to the application of the payments in discharge of the bond, was not of itself an appropriation of the payments, unless it was followed by some act of appropriation. The Court over-ruled the motion, and, at the instance of the Defendants, instructed the jury that if they believed that the supervisor had made the election and promise as proven, it was a declaration of his election how the payments made by Arthur should be applied; and that whether a formal entry, in the books of their appropriation, corresponding with that election, were made or not, was immaterial, and that the jury ought to consider the application as made.

To the opinion of the Court thus given, the Plaintiffs excepted, and this Court must now decide as to the correctness of the opinion of the Court below.

The law, with respect to the application of particular payments when the debtor owes distinct debts, has long

since been settled. The debtor has the option, if he U. STATES thinks fit to exercise it, and may direct the application 2. of any particular payment at the time of making it. If JANUARY he neglects to make the application, the creditor may & PATmake it; if he also neglects to apply the payment, the TERSON. law will make the application.

In this case a majority of the Court is of opinion that the rule adopted in ordinary cases is not applicable to a case circumstanced as this is; where the receiver is a public officer not interested in the event of the ́suit, and who receives on account of the United States, where the payments are indiscriminately made, and where different sureties, under distinct obligations, are interested. It will be generally admitted that monies arising due, and collected subsequently to the execution of the second bond, cannot be applied to the discharge of the first bond, without manifest injury to the surety in the second bond: and vice versa, justice between the different sureties can only be done by reference to the collector's books, and the evidence which they contain may be supported by parol testimony, if any in the possession of the parties interested.

The Court is of opinion that the Circuit Court erred in the opinion given, and that it be reversed.

Judgment reversed.

THE UNITED STATES v. PATTERSON.

1815.

March 16th.

Absent....TODD, J.

THIS was also a writ of error to the Circuit Court, A debtor of for the district of Kentucky.

the United States, who puts evidence

The case was submitted without argument, and Du- of debts due VALL, J. delivered the opinion of the Court, as follows: to the hands

to himself, in

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