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James W. Downey, Executor of Samuel S. Downey, deceased, Plaintiff in error, v. Mary M. Hicks, Executrix of Joseph T. Hicks, deceased U.S. 240 (1853)

handle is hein.slavery/ussccases0231 and id is 1 raw text is: 240 SUPREME COURT. Downey v. Hicks. State of Texas, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the said Supreme Court of Errors and Appeals in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Supreme Court of Errors and Appeals, with directions to affirm the judgment of the District Court for the county of Galveston in said cause, with costs in said Supreme and District Courts. JAMES W. DOWNEY, EXECUTOR OF SAMUEL S. DOWNEY, DE- CEASED, PLAINTIFF IN ERROR, V. MARY IN. HICKS, EXECU- TRIX OF JOSEPH T. HIcKs, DECEASED. Where the declaration, in an action of assumpsit, contained the following counts:- 1. On a promissory note; 2. LindebLitatus assumpsit for the hire of slaves; 3. An account stated; 4. Quantwn vaabat for the services of slaves; 5. Wor and labor, goods sold and delivered, and money lent and advanced ; 6. foney had and re- ceived; 7. An account stated; 8: A special agreement for the hire of slaves And the defendant pleaded.- I. The general issue; 2. Stztute of limitations; 3. Pay- ment;-and the jury found a verdict for the defendant upor th tissue joined as to the within note of four hundred and fifty-six dollars, and the xhiin aecount-this verdict, although informal, was sufficient to authorize to enter a general judgment for the defendant. An objection cannot be made in this court to a release under which a witaess was sworn, unless the objection was made in the court belov, and an exception taken. Where a certificate'of deposit in a bank, payable at a futare day, was handed over by a debtor to his credito; it was no payment, unless there was an express agreement on the part of the creditor, to receive it as such; and the question, whether there was or was not such an agreement, was one of fact to be decided by the jury. The bank being insolvent when the certificate of depot it becariie due. there was no ground for imputing negligence in the collection of th.- debt by the holder, as no loss occurred to the original debtor. If the evidence showed that, after the maturity of the certificate, the driginal debtor admitted his liability to make it good, the jury should have been .,istrncted that this evidence cohduced to prove that the certificate was not taken in payment. Mr. Chief Justice Taney did not sit in this cause. THIS case was brought up, by writ of error from the Circuit Court of the United States for the Southern District of Missis- sippi. There were three bills of exceptions taken upon the trial in the Circuit Court, which extended over moie than one hundred pages of the printed record. The last one included the whole of the evidence. The substance of the case is given in the opinion of the court, to which the reporter refers the reader. It was argued by Mr. Badger, with whom was Mr. William A. Grahamjfor the plaintiff in error, and Mr. Volney B. Howard, with whom was Mr. Walker, for the defendant in error. The'argument of the counsel for the plaintiff in error, was so

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