1821.

U. States

V.

Wilkins.

the contemplation of the parties. The rations then issued and deposited at the cantonment on the new road, were not provided for in the contract at a spe-. cific price; not at the price of fourteen cents, for they were not issued at any place on the old road between Nashville and Bear Creek, described in the contract; and not the price of eighteen and a half cents, for it was not sufficient that the cantonment should be in the Chickasaw and Chocktaw country, but it must also be on the road between Bear Creek and Natchez existing at the time of the contract. The case, then, falls precisely within that clause of the articles of agreement, that provides, that the price of rations delivered at any other places not specified, shall be thereafter agreed on betwixt the public and the contractor; and this is the construction originally adopted by the Government itself.

The same reasons which lead us to this conclusion, constrain us to adopt the construction, that the parties, in their contract, in referring to the Chickasaw and Chocktaw country, intended not a disputed, imaginary, or rightful boundary afterwards to be settled; but the actual reputed boundary of that country. If, then, Fort Deposit was within the reputed boundary at the time of the contract, the line as afterwards settled by the treaty at Fort Adams, though the true line, has nothing to do with the case; and the rations deposited at Fort Deposit are to be paid for at the contract price of eighteen and a half cents a ration.

The second and third questions propounded by the Circuit Court, may be shortly answered. If

1821.

U. States

V.

Wilkins.

Manner

in

which the price

there be no specific price agreed upon in the contract for rations issued at any place, the contract leaves the price to be adjusted by the Government and the contractor. It is to be the joint act of both parties, and not the exclusive act of either. If they cannot agree, then a reasonable compensation is to ed at places not be allowed; and that reasonable compensation is to be proved by competent evidence, and settled by a jury, as in common cases; and the defendant upon such a trial, is at liberty to show, that the sum allowed him by the Secretary of War is not a reasonable compensation.

be settled.

contract, is to

Defendant entitled, under the

statute, to any

credits against the U. States,

whether legal equitable, or

or

out of the same

or out of dis

tinct transac

The fourth question is, whether the defendant can be permitted to claim a credit for the sums due him, under the contract, in this suit. The answer may materially depend upon the true construction of the act of Congress of the third day of March, 1797, c. 74. providing for the more effectual settlement of tions. accounts between the United States and public receivers. The third section of that act provides, that upon suits instituted against any person indebted to the United States, judgment shall be rendered at the return term, unless the defendant shall, in open Court, make oath or affirmation, that he is equitably entitled to credits which had been previous to the commencement of the suit submitted to the consideration of the accounting officers of the Treasury, and rejected, &c. The fourth section then provides, that in suits between the United States and individuals, no claim for a credit shall be admitted upon trial, but such as shall appear to have been presented to the accounting officers of the Treasury for their

1821.

U. States

V.

Wilkins.

examination, and by them disallowed in whole or in
part, unless it shall be proved to the satisfaction of
the Court, that the defendant is at the time of the
trial in possession of vouchers not before in his
power to procure, and that he was prevented from
exhibiting a claim for such credit at the Treasury
by absence from the United States, or some una-
voidable accident. The terms of these sections are
very broad and comprehensive. The third section
manifestly supposes, that not merely legal but equit-
able credits ought to be allowed to debtors of the
United States by the proper officers of the Treasury;
and the fourth section prohibits no claims for any
credits, which have been disallowed at the Treasury,
from being given in evidence by the defendant at the
trial. There being no limitation as to the nature
and origin of the claim for a credit which may
be
set up
in the suit, we think it a reasonable construc-
tion of the act, that it intended to allow the defend-
ant the full benefit at the trial of any credit, whether
arising out of the particular transaction for which
he was sued, or out of any distinct and independent
transaction, which would constitute a legal or equit-
able set-off, in whole or in part, of the debt sued for
by the United States. The object of the act seems
to be to liquidate and adjust all accounts between
the parties, and to require a judgment for such sum
only, as the defendant in equity and justice should
be proved to owe to the United States. If this be
the true construction of the act, which we do not
doubt, the defendant might well claim a credit in
this suit for the sums due him, even if they had

grown out of distinct and independent transactions, for he is legally, as well as equitably, entitled to them. But even if this construction of the act were doubtful, upon the facts of this particular case, as far as we can gather them, we should have probably come to the same result.

This suit seems to have been brought by the United States for the money price of certain provisions received by the defendant under the articles of agreement. 'The real object of the suit is, therefore, to procure an account and settlement of that claim. It forms an item in the general account between the parties, like every other advance made by the Government to the defendant; and, independent of any statute provision, the defendant would have a right to show, that he had accounted for the value of such advance by delivering the equivalent provisions for which it was originally made. In this view, also, the fourth question might be answered in the affirmative.

The opinion of the Court will be certified accordingly to the Circuit Court of Kentucky:

1. That under the contract marked B., the defendant is not entitled to the sums disallowed in the paper D., nor to the sums specifically charged in the first and second items of the paper C., which were disallowed by the Treasury officers; but is entitled to the sum charged in the third item of the paper C., which was disallowed by the same officers, if Fort Deposit was within the reputed boundary of the Chocktaw country.

1821.

Young

V.

Bryan.

2. That the defendant is not entitled to the first and second items in the paper C., on the ground, that the place at which the rations were delivered is not specially provided for in the contract; but that he has a right to show, that the sum allowed by the Secretary of War for those rations, is not a reasonable compensation.

3. That upon such proof the defendant is entitled to a reasonable compensation for those rations, to be ascertained by the jury.

4. That the defendant ought to be permitted to claim a credit for the above sums due him in this suit.

Certificate accordingly.

(PRACTICE.)

YOUNG V. BRYAN et al.

The Circuit Court has jurisdiction of a suit brought by the endorsee of a promissory note, who is a citizen of one State, against the endorser, who is a citizen of a different State, whether a suit could be brought in that Court by the endorsee, against the maker, or not. No protest of a promissory note, or inland bill of exchange, is necessary.

ERROR to the Circuit Court of Tennessee.

This was an action of assumpsit, brought in the Court below, by the defendants in error, citizens of Pennsylvania, against the plaintiff in error, a citizen