part of the debt of the United States, they were funded by David Rittenhouse, and the interest was drawn by him. The note made by himself at the foot of the list, which he preserved, as explanatory of the whole transaction, demonstrates that he held the certificates as security against the bond he had executed to George Ross; and that bond was obligatory, not on the state of Pennsylvania, but on David Rittenhouse, in his private capacity.

These circumstances demonstrate, beyond the possibility of doubt, that the property, which represented the Active and her cargo, was in possession, not of the state of Pennsylvania, but of David Rittenhouse as an individual; after whose death it passed, like other property, to his representatives.

Since, then, the state of Pennsylvania had neither possession of, nor right to, the property on which the sentence of the district court was pronounced, and since the suit was neither commenced nor prosecuted against that state, there remains no pretext for the allegation that the case is within that amendment of the constitution which has been cited; and, consequently, the state of Pennsylvania can possess no constitutional right to resist the legal process. which be directed in this cause.

may

It will be readily conceived that the order which this court is enjoined to make by the high obligations of duty and of law, is not made without extreme regret at the necessity which has induced the application. But it is a solemn duty, and therefore must be performed. A peremptory mandamus must be awarded.

THE U. S.

V.

PETERS.

VIOLETT

V.

PATTON.

VIOLETT v. PATTON.

To constitute

it is not neces

ERROR to the circuit court for the district of a consideration Columbia, sitting at Alexandria, to reverse a judg sary that a ben- ment in an action of assumpsit, brought by Patton, efit should ac- as endorsee of a promissory note, against Violett, the crue to the endorsor. The note was made by Brooke, payable, is sufficient in 30 days, at the bank of Alexandria, to the order that something of Violett, and by him endorsed to Patton.

promisor. It

valuable flows

from the pro

misee, and that the pro

thetransaction.

on a blank

The declaration had two counts.

The first was mise is the in- upon the endorsement, and stated the making of the ducement to note by Brooke, for value received; the assignA 'blank en- ment by endorsement to Patton, (but did not state dorsement up that the assignment was for value received,) by piece of means whereof, and of the statute of Virginia, Patwith intent to ton had a right to demand and receive the money give a person from Brooke; the demand of payment from Brooke; fect a letter of his refusal and insolvency at the time of demand; credit. And if and notice thereof to Violett, whereby he became a promissory note be after liable, and in consideration thereof promised to &c.

paper

credit, is in ef

wards written

on the paper, the endorsor cannot object that the note was written after the endorsement.

pay,

The other count was for money had and received.

At the trial of the general issue, the defendant

The English below took two bills of exceptions.

statute of

Frauds requires

that the agree

The first was to the following opinions and in

ment should be structions of the court to the jury, viz.

in writing; the

statute of Vir

ginia requires

mise to be in

can be had to

That if the jury should be satisfied by the evionly the pro- dence that the defendant endorsed the note with writing. intent to give a credit for the amount thereof to Before resort Brooke with the plaintiff, and that the body of the the endorsor of note was filled up by the plaintiff before it was a promissory signed by Brooke, and that the plaintiff, upon the note in Virgi- faith of the note so drawn and endorsed, gave credit must be sued, to Brooke to the amount thereof; the circumstance if solvent; but

nia, the maker

VIOLETT
PATTON.

V.

of such endorsement being made before the body of the note was filled up by the plaintiff and signed by Brooke, is no bar to the plaintiff's recovery in this action; although the jury should be satisfied that no his insolvency other value was received by the defendant for his renders a suit against him endorsement than the credit thus given by the plain- unnecessary. tiff to Brooke. And further, that the endorsement It is a question by the defendant with the intent aforesaid, if proved, the jury whe authorized Brooke to make the note to the plaintiff ther a suit ain the form and manner in which it appears upon the gainst the ma

to be left to

ker would have face of it to be made; and that the circumstance produced the that the body of the note was in the hand-writing of money. the plaintiff, was wholly immaterial to the present

issue.

The second bill of exceptions stated, that the defendant prayed the court to instruct the jury that if they should be satisfied by the evidence that Brooke, at the time the note became payable, or at any time previous to the commencement of this action, had property sufficient to pay the debt claimed by the plaintiff, and that both he and the plaintiff lived in the town of Alexandria at the time the note becamè due, and that the plaintiff brought no suit against Brooke to recover the amount of the note, but suffered him to leave the district of Columbia, without suing him or if the jury should be satisfied that the plaintiff and Brooke have, since the note became due, both lived in the county of Fairfax, in Virginia, and have continued to reside there until the bringing of the present suit, and that the plaintiff has not brought suit against Brooke in Virginia, then the defendant is not liable in this action. But the court refused to give those instructions as prayed.

E. J. Lee, for the plaintiff in error.

1. The endorsement, being on a blank piece of paper, and delivered with intent to give credit to Brooke, but without an express authority to him to fill up the paper with a promissory note, did not authorize him so to fill it up. authorized, Patton was not.

But if Brooke was so
There does not ap-

VIOLETT

V.

PATTON.

pear to have been any communication between Patton and Violett upon the subject.

The cases of Russel and Langstaffe, Doug. 514. and Collins v. Emett, 1 H. Bla. 313. do not apply; because in those cases it appears that the body of the note was filled up by the person authorized, and who was to use it for his benefit; and because the principles of those cases are not drawn from the common law, but from the custom of merchants, which is not applicable to promissory notes in Virginia, which are there placed upon the same footing as bonds, and subject only to the same common law principles.

2. There was no consideration from Patton to Violett. The defendant in error must show a good and valuable consideration. Chitty, 9. 4 Mod. 242. 1 Strange, 674. Buller, 274. 2 Bl. Com. 445. 1 Fonb. Eq. 331, 332. 335, 336. 7 Term Rep. 350, Rann v. Hughes.

A consideration which will support an assumpsit must be either a benefit to the defendant, or a prejudice to the plaintiff; but here Violett received no benefit, and Patton no prejudice.

It does not appear that Patton gave a credit solely in consequence of Violett's endorsement. On the contrary, there was no communication between them, so that there was no undertaking on the part of Violett to Patton, except what the law implies from the endorsement; and that implication is founded upon a presumption that the endorsor received value, and can be extended no farther than the value received,

It does not appear that Patton would, not have credited Brooke without Violett's endorsement.

3. The endorsement, being in blank, was not a writing signed by him; and the undertaking being to pay the debt of another, is void by the statute of frauds of Virginia.

At common law the holder of the paper had no right to fill up the endorsement so as to make it a promise in writing. Such a right in mercantile cases is founded only on the custom of merchants. The undertaking in writing must set out the precise terms of the promise, as well as the consideration. Prec. Ch. 560. Strange, 426. 1 Atk. 13. 5 East, 10. Wuin v. Warlters. Brooke was clearly liable for this debt. And it is laid down as a principle, that if he for whose use the goods are furnished be liable at all, the promise of a third person must be in writing, or it is void. Roberts, 209. But if this is a parol promise, it must be made to appear that the credit was given to Violett alone. 1 H. Bla. 120. 2 Term Rep. 80.

4. Violett is not liable, if Brooke, at the time the note became due, and at the time the suit was brought, had property sufficient to pay the amount of the note, and Patton did not at any time bring suit against Brooke.

In Mackie v. Davis, 2 Wash. 219. it is decided that the holder of a bond must use due diligence for the recovery of the money. In Lee v. Love, 1 Call, 497. the assignee of a note must sue the maker before he can resort to the endorsor.

The case of Fenwick v. Barkesdale, decided in the court of appeals in Virginia, in October, 1803, affirms the general doctrine laid down in Mackie v. Davis, and shows that a suit is necessary, and is the only kind of diligence which is meant.

It also proves that it is not sufficient to show that the maker of the note was not able to pay all his debts; but the plaintiff must go further and show that he was not able to pay the particular debt due to him by the note.

The oath which is taken under the insolvent law of Virginia, shows what is meant by the term insol