1804. state. He, not the owner of the goods, nor the buyer, must pay the duties to the state; and he gives the security, not the owner. It naturally follows (and so is the practice) that immediately upon a sale, the auctioneer becomes the debtor to the owner of the goods, as well as to the state. The owner does not know the purchaser, and seldom inquires for him. The knowledge, or the inquiry, would be superfluous, as the auctioneer alone possesses the power to collect, as well as to sell: it is a vested right, by operation of law, and not, in its nature, assignable. 2 Dall. 174. 1 H. Black. 81. Willing v. Roland. (1) But, it is an universal principle, that where a power is given, a duty arises. The sheriff has a power to execute a capias; and, therefore, it is a duty to do it. The coroner has a power to hold inquests; and, therefore, it is a duty to hold them.

After deliberation, the COURT were, unanimously, of opinion, that the auctioneer's bond was intended, by law, for the benefit of his private customers, as well as for securing the duties payable to the government:

And, therefore, the judgments of the Supreme Court were affirmed; and the records remitted for further proceedings. (2)

(1) Willing et al. v. Rowland et al. in the Supreme Court, 1791, before M'KEAN, Chief Justice, and RUSH and BRYAN, Justices. This was an action of assumpsit, for goods sold and delivered. The goods were sent by the plaintiffs to the store of John Mease, a licensed auctioneer, and were sold, at public vendue, to the defendants. Mease became, soon afterwards, a bankrupt; and the defendants refused to pay the purchase money to the plaintifls, insisting upon a right to set-off a debt due to them, from the bankrupt. The COURT were decidedly of opinion, that the plaintiff's could not maintain the present suit; that, by law, the right of action is vested in the auctioneer; and that the common-law rule in the case of factor and principal, did not apply to the case of a public auctioneer.

A verdict was, thereupon, given in favour of the defendant.

Bowie ard Hallowell (by the latter of whom this note is obligingly furnished) for the plaintifs, cited Com. Dig. title "Merchant." B. 81. 13 Vin. Abr. 9. Roll. Rep. 337. 2 Vern. 638. 3 Bac. 519. 2 Stra. 1182. Co. B. p. 236, 7. Bradford and M'Keun, for the defendants, who cited Bull. N. P. 130. 280. 12 Mod. 514. 5. Molloy, 466.

(2) In the case of Dallas v. Hazlehurst et al. the defendants paid the anunt of the penalty of the bond into the Supreme Court, to be disposed of, as the Court should direct. Todd, for several creditors who had not brought suits, or whose suits were subsequent in date, to Mrs Gapper's suit, asked the opinion of the Court, whether the creditors of Footman were not entitled to share in the fund, pro rata? Dallas and S. Levy urged, that upon principle and authority, the creditor first suing, was entitled to be first, and completely paid, before other creditors were admitted. The CoURT were clearly of that opinion; and Mrs. Gapper's debt with interest was, accordingly, satisfied; leaving only the surplus of the fund for other creditors.

OF

PENNSYLVANIA.

April Term 1790.

THIS

Geyer's Lessee versus Irwin.

HIS ejectment, depending in Alleghany county, was marked for trial, on the list of causes at Nisi Prius. The defendant's attorney, after looking at the papers of the opposite party, confessed judgment.

But now Lewis, producing an affidavit of a just and legal defence, moved to set aside the judgment, on the ground, principally, that the defendant was a member of the general assembly, attending his public duty at Philadelphia, at the time of marking the cause for trial, and confessing the judgment. He said, that the attorney had been compelled, either to go to trial, or to confess judgment; and that not being possessed of his client's proofs, he had preferred the latter course: but, he insisted, that, during the session of the legislature, every member was privileged against the necessity of attending to his private suits; and that, therefore, the cause had been irregularly placed upon the trial list.

Ingersoll, for the plaintiff, denied, that the legislative privilege extended to the present case; and urged, that even if it was a case of privilege, the attorney had waived it, by omitting to object at the proper time.

By the COURT: A member of the general assembly is, undoubtedly, privileged from arrest, summons, citation, or other civil process, during his attendance on the public business confided to him. And, we think, that upon principle, his suits cannot be forced to a trial and decision, while the session of the legislature continues.

But every privileged person must, at a proper time, and in a proper manner, claim the benefit of his privilege. The judges

are

are not bound, judicially, to notice a right of privilege, nor to grant it without a claim. In the present instance, neither the defendant, nor his attorney, suggested the privilege, as an objection to the trial of the cause: and this amounts to a waiver, by which the party is forever concluded.

We are, therefore, unanimously of opinion, that the judgment cannot now be set aside, or opened.

DEB

Carson versus Hood's Executors.

EBT. Plea, nil debet. The principal point in this case was, whether debt would lie against executors, on a simple contract of the testator?

Bradford, for the plaintiff, stated the rule to be, that if the executors demur to the action, they are entitled to, judgment; but, if they plead to issue, they cannot, afterwards, make the objection: and the following authorities were cited to maintain the distinction. Cro. E. 600. 557. Cro. C. 187. Cro. E. 121. 1 And. 182. Golds. 106. Leon. 165. Vaugh. 99. 1 Sid. 333. Plowd. Rep. 182. Pulm. 32. Cro. E. 435. 459. Yelv. 56. 1 Lev. 200. 1 Vent. 139. Vaugh. 97.

The COURT, being unanimously of this opinion, gave judgment. for the plaintiff: having, on a preliminary point, decided, that after a verdict, they will presume, every thing was done, at the trial, which was necessary to support the action, unless the contrary appeared upon the record. 3 Burr. 1725. 1729. 1 Wils. 225. 2 Stra. 1180.

OF

PENNSYLVANIA.

September Term 1791.

THI

Donaldson versus Means.

HIS was an action brought by the indorsee of three bills of exchange, against the indorsor. On the trial, it appeared, that the bills were drawn in April 1776, at thirty days sight, by Nathaniel Newton, on Wilt and Hobson of London, in favor of T. Armstrong, and indorsed successively by Armstrong, and by Means, the defendant; that the bills were presented, and noted for nonacceptance, on the 24th of March 1777; and that they were presented, and protested for non-payment, on the 26th of April 1777.

The question to be decided, was, whether due notice had been given to the defendant of the protest of the bills; or he had done any act, which amounted to a waiver of notice?

On this point, a letter was produced from the plaintiff to his father, dated the 10th of May 1778, advising of the protest, and inquiring where Means resided. It was proved, that the father showed this letter to Means, as soon as possible after it was received, and Means repeatedly promised to remit the amount of the bills; but the protest was not exhibited to him, and never asked for; nor was any application made to the drawer, or to the first indorsor, for payment. Another letter was produced, dated the 12th of August 1779, written by the defendant at Philadelphia, to the plaintiff at St. Eustatia, in which he mentioned, that he had received a letter of the year 1776, referring to the protested bills; expressed a hope, that they would soon be paid; observed, that for want of a protest he had not been able to get payment from the drawer; but promising, nevertheless, to pay the amount to the plaintiff, whenever it was in his power to make a remit

tance.

For the plaintiff, it was contended, 1st. That during the war, when continental money was a tender, the holder of a bill of ex

change

1791. change should not be required to pursue that strict punctuality, which might properly be exacted from him in a time of peace, and when his debt was not liable to be discharged in a depreciated paper currency. 1 Dall. 271. That notice being in fact received of the dishonoured state of the bills, it was not necessary in law to produce the bills and the protests; and that since the letter of August 1779, the plaintiff relied upon the defendant's new promises of payment. 2d. That even if a protest ought to have been transmitted, yet, as the defendant, with a full knowledge of all the circumstances, has made a new assumption, it is too late for him to take advantage of the omission in that respect. For, although want of notice may be considered, originally, as tantamount to payment; there are many cases in which the rule does not apply, or is dispensed with. As, where the drawer of a bill has no assets in the hands of the drawee; or where the drawer himself waives the right and benefit of notice. 1 T. Rep. 408, 9. Bull. N. P. 272. 276. 2 T. Rep. 713. And in the latter case, if he knows the fact, though he is ignorant of the law, he shall be bound by his waiver. Doct. and Stud. 303.

For the defendant. Independent of the special promise alleged by the plaintiff, the defendant cannot be charged on the bills of exchange; for, a protest is essential to enable any of the parties to recover against the others; and it must be exhibited. The law, in this respect, is founded on good sense. By exhibiting the protest, the holder of the bill shows, that he looks to the person, whom he addresses, for payment; and by delivering the protest, upon receiving satisfaction himself, he enables that person to pursue his remedy against those who are ultimately responsible. But 1st. There is nothing in the letter of August 1779, which can be regarded as an express, unqualified, promise. The whole letter must be taken together. It complains of a want of the protest; and its general spirit is no more, than a declaration, that "although the protest ought to have been sent, as it is presumed "to have been received, yet the holder shall not be permitted to suffer." 2d. Even regarding it, however, as a promise, it is not legally binding, if it was made under a mistake. 5 Burr. 2670. 2 T. Rep. 648. Cowp. 287. 1 P. Wms. 357. 2 Chan. Cas. 154.

By the COURT: The law upon the subject is so clear, that the whole case resolves itself into the question of fact, on which the law is to arise. If the proof is satisfactory, that the defendant, under a knowledge of all the circumstances, absolutely promised to pay, he is, incontestably, bound by his promise. But, if his engagement was of a conditional nature, that he would pay, when the protest was transmitted; or if any material fact was unknown to him at the time of making the promise, the verdict should certainly be in his favour.

Coxe, for the plaintiff.

E. Tilghman, for the defendant.

Verdict for the plaintiff.