[Tiernan et al. vs. Jackson.] although they admitted the receipt of it, and that the plaintiff was the person to whom the sum of three hundred pounds was directed to be appropriated. The bankers afterwards received the money on the bills, and the plaintiff brought an action for money had and received, to recover the amount of the money so appropriated to him. The court held that the action was not maintainable. Lord Ellenborough, in delivering the opinion of the court, said: "the question which has been argued before us is, whether the defendants by receiving this bill did not accede to the purposes for which it was professedly remitted to them by K., and bind themselves so to apply it; and whether, therefore, the amount of such bill paid to them when due did not instantly become, by operation of law, money had and received to the use of the several persons mentioned in K.'s letter as the creditors, in satisfaction of whose bills it was to be applied; and of course as to three hundred pounds of it, money had and received to the use of the plaintiff. It will be observed, that there is no assent on the part of the defendants to hold this money for the purposes mentioned in the letter; but, on the contrary, an express refusal of the creditor so to do. If, in order to constitute a privity between the plaintiffs and defendants, as to the subject of this demand, an assent express or implied be necessary; the assent can in this case be only an implied one, and that too implied against the express dissent of the parties to be charged. By the act of receiving the bill, the defendants agree to hold it until paid; and its contents when paid to the use of the remitter. It is entire to the remitter to give, and countermand, his own directions respecting the bill as often as he pleases; and the persons to whom the bill is remitted may still hold the bill till received, and its amount, when received, for the use of the remitter himself; until by some engagement entered into between themselves with the person, who is the object of the remittance, they have precluded themselves from so doing; and have appropriated the remittance to the use of such person. After such a circumstance, they cannot retract the consent they may have once given; but are bound to hold it for the use of the appointee. If it be money had and received for the use of the plaintiff, under the orders which accompanied the remittance; it occurs as fit to be asked, when ['hiernan et al. vs. Jackson.] ap did it become so? It could not be so before the money was received on the bill becoming due. And at that instant, suppose the defendants had been robbed of the cash or notes, in which the bill in question had been paid, or they had been burnt or lost by accident; who would have borne the loss thus occasioned? Surely the remitter K. and not the plaintiff and his other creditors, in whose favour he had directed the plication of the money according to their several proportions to be made. This appears to us to decide the question." This language has been quoted at large from its direct application, to all the circumstances of the case at bar. Here, Tiernan and Sons, before the sale and receipt of the proceeds of the tobacco, refused to hold the same for the use of Jackson; and how then could the money, when afterwards received, be money had and received to his use. If this case be law, it is in all its governing principles like the present. The case of Grant vs. Austin, 3 Price's Rep. 58, is still later; and recognises in the fullest manner the decision in 14 East, 582. That was the case of a remittance to bankers, with a request that they would pay certain amounts to persons specified in the letter. No dissent on the part of the bankers was shown. But the court held, that in order to constitute an appropriation of the money, or any portion of it in favour of the persons specified, some assent on the part of the bankers must be shown; and that the circumstances of the case did not establish it. The remitter was at the time largely indebted to the bankers; and the account between the parties was so in after broken up. It seems to us that these authorities are founded in good sense and convenience: until the parties, receiving the consignment or remittance, had done some act recognising the appropriation of it to the particular purposes specified, and the persons claiming had signified their acceptance of it, so as to create a priority between them; the property and proceeds remained at the risk and on the account of the remitter, or owner. In this view of the case, it is wholly immaterial to decide whether Tiernan and Sons had a lien on the proceeds, or not, for the balance due them; or whether the negotiations, stated in the record, created a disability on their part to assert it. VOL. V.-4 A [Tiernan ef al. vs. Jackson.] For, even supposing that they have no available lien, that is a matter which cannot be litigated in a suit at law, where the only question is, whether the plaintiff has a good right to maintain his action; whatever might be the case in a suit in equity, brought by the plaintiff to enforce his equitable claims under his assignment. The instructions given by the court decided that the assignment made to the plaintiff did, in effect, pass the legal property in the proceeds to the plaintiff, so as to entitle him to maintain the present action; or, that at all events, it constituted such a special appropriation of them, as would enable the plaintiff, as assignee, to maintain it. We are of opinion, that the court erred upon both grounds; and that therefore the judgment ought to be reversed, and the cause be remanded to the circuit court, with directions to award a venire facias de novo. In the mandate, the errors in the bill of exceptions will be specially pointed out; but as the principles involved in them are resolved into the points before stated, they need not here be particularly commented on. This cause came on to be heard on the transcript of the record from the circuit court of the United States, for the district of Maryland, and was argued by counsel; on consideration whereof, it is considered by the court here, that there was error in the circuit court in refusing to instruct the jury upon the prayer of the defendant's counsel, that the assignment made by Thomas H. Fletcher, dated the 21st May 1819, and acknowledged and delivered on the 26th May 1819, and indorsed on the copy of the invoice, as stated in the evidence, did not pass such a legal title to any part of the proceeds of the tobacco shipped by the brig Struggle, as will enable the plaintiff to support this action in his own name; and in instructing the jury that such an assignment, connected with the character of the consignment of the cargo of the Struggle to the defendants, was sufficient to enable the plaintiff to support this action in his own name. And there was error also in the circuit court, in refusing to instruct the jury, that the invoice, letter of advice, and bill of loading, taken together do, [Tiernan et al. vs. Jackson.] not constitute such a special appropriation of the cargo of the brig Struggle, or of the proceeds thereof, to the order of Thomas H. Fletcher, as will enable his assignee in this case to maintain this action in his own name, upon the assignment of May 21st, 1819. It is therefore considered by the court here, that for the errors aforesaid, the judgment of the circuit court be, and the same is hereby reversed; and that the cause be and the same is hereby remanded to the circuit court, with directions to award a venire facias de novo. THE PATAPSCO INSURANCE COMPANY, PLAINTIFFS IN ERROR vs. JOHN SOUTHGATE AND WRIGHT SOUTHGATE, DefenDANTS IN ERROR, In the caption of a deposition, taken before the mayor of Norfolk, to be used in a cause depending, and afterwards tried in the circuit court of the United States held in Baltimore, the mayor stated the witness" to be a resident in Norfolk;" and in his certificate he states, that the reason for taking the deposition is, “ that the witness lives at a greater distance than one hundred miles from the place of trial, to wit, in the borough of Norfolk." It was sufficiently shown by this certificate, at least prima facie, that the witness lived at a greater distance than one hundred miles from the place of trial. The provisions of the thirtieth section of the act of congress, entitled, “an act to establish the judicial courts of the United States," which relate to the taking of depositions of witnesses, whose testimony shall be necessary in any civil cause depending in any district in the courts of the United States, who reside at a greater distance than one hundred miles from the place of trial; are not confined to depositions taken within the district where the court is held. In all cases where, under the authority of the act of congress, a deposition of a witness is taken de bene esse, except where the witness liyes at a greater distance from the place of trial than one hundred miles, it is incumbent on the party for whom the deposition is taken, to show that the disability of the witness to attend continues; the disability being supposed temporary, and the only impediment to a compulsory attendance. The act declares expressly, that unless this disability shall be made to appear on the trial, such deposition shall not be admitted, or used on the trial. This inhibition does not extend to the deposition of a witness living at a greater distance from the place of trial than one hundred miles; he being considered beyond a compulsory attendance. The deposition of a witness living beyond one hundred miles from the place of trial, may not always be absolute; for the party against whom it is to be used may prove the witness has removed within the reach of a subpœna, after the deposition was taken; and if that fact was known to the party, he would be bound to procure his personal attendance. The onus probandi this would rest upon the party opposing the admission of the deposition in evidence. For a witness whose deposition is taken under such circumstances, it is not necessary to issue a subpoena. It would be a useless act; the witness could not be compelled to attend personally. By the act of 2d March 1793, subpoenas for witnesses may run into districts other than where the court is sitting; provided the witness does not live at a greater distance than one hundred miles from the place of holding the court. Damages to a vessel by any of the perils of the sea, on the voyage insured, which could not be repaired at the port to which such vessel proceeded after the injury, without an expenditure of money to an amount exceeding half the value of the vessel at that port, after such repairs, constitute a total loss. The rule laid down in the books is general, that the value of the vessel at the time of the accident is the true basis of calculation; and if so, it necessarily follows that it must be the value at the place where the accident occurs. The |