Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRBT DEAN OF THE SCHOOL By bis Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS CORNELL UNIVERSnV LIBRARY © » Cornell University S# Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924068531338 KEPOBTS OF CASES SBOXTED JmD TiimrTinmnm m THE CIKCTJIT COURTS UNITED STATES. COU^CTED AND AIINOTATED BT ALBEET BEUISTNER. Voluine 1. SAN FEANCISCO: SUMNER WHITNEY & CO. 1884. Copyright, 1884, By ALBEKT BKUNNEE. PKEFACE. The object in preparing this collection of cases has been to place before the profession, in a compact and accessible form, the decisions of the U. S. Circuit Courts, which are constantly- cited in the Federal Digests, and treatises upon U. S. Courts, and which have not been published in the regular series of reports. Frequent inquiries at our Law Libraries for such cases have shown the necessity for a collection of this nature. It has been the endeavor of the editor to include all the cases (except decisions on Bankruptcy and Revenue Law), which have been decided in Circuit. Courts throughout the United States, and VH^h.^a^' been^rinted in law Magazines, Peri- odicals, etc.; from ftie date of the earliest decisions to time of the publication of the Federal Reporter, which latter purports to include all Circuit Court Cases- decided since its inception. The Bankruptcy Cases in these courts are extremely volumin- ous, of little or no value at present, and most of these cases will be found in the Bankrupt Register. The decisions relative to Revenue Law are of special interest only to a very few, and are to be found collected in the Internal Revenue Record. The cases comprising this collection, containing many valu- able decisions on Federal Law, have been taken from the Law Periodicals, Magazines, and States Reports, current at the time when the decisions were rendered, many of which volumes are now out of print, and rarely found even in the most complete public libraries. The result of such a collection is in effect to complete the series of Circuit Court Reports, and to present in connection with the already published volumes of Circuit Court cases, easy access to any decision rendered by the Circuit Courts (with the exception above stated), which may be cited or referred to. There have been added to the cases, notes and references showing the citations thereto, and the effect of such cases in subsequent decisions. Albeet Bexjnneb. San Feancisoo Law LrBBAET, August, 1884. TABLE OF CASES REPORTED. FAQE, Adams, Codrington v., 21 LawEep. 586 650 AUen, Bond v., 2 Mart. (N. C.) 83 3 Allen, United States v., 4 Day, 474 94 AndeTson, United States v., 1 Oooke, 143 202 Andrews, United States v., 5 City H. Eeo. 120 422 Anonymous, 3 Day, 308 74 Anonymons, 2 Hayw. 378 29 Atlantic Uutaal Fire Insurance Co., Smith v., 12 Law Bep. 408 573 Badger v. Orr, 7 Law Bep. 465 537 Baily, Shepherd's Lessee v., 1 Cooke, 369 242 Baird, Danham t., 1 Law & Eq. Eep. 391 18 Baker, Simm's Lessee t., 1 Cooke, 146 203 Barker, Smith v., 3 Day, 280 52 Barker, Smith v., 3 Day, 312 78 Barry, Ex parte, 7 Law Eep. 374 533 Barry, McAlister v., 2 Hayw. 290 24 Bascom v. Lane, 4 Am. L.J. 193 318 Bass, United States v., 4 City H. Eec. 161 418 Bass' Lessee t. Dinwiddie, 1 Cooke, 130 190 Baxter v. Biays, 4 HaU L. J. 276 254 Bayless, Manufacturers' 4 Farmers' Bank v., 1 West. L. Mo. 356 8 Beard's Lessee T. Talbot, 1 Cooke, 142 201 Biays, Baxter v., 4 HaU L. J. 276 254 Biays, Wesley v., 4 Hall L. J. 275 254 Bigelow, Tuckerman t., 21 Law Eep. 208 631 Bilson T. Manufacturers' Ins. Co., 7 Am. L. Beg. 661 290 BisseU V. Horton, 3 Day,' 281 53 Black V. Holbrook, 18 Law Eep. 89 , 588 Blackwell, Patton AErwin's Lessee v., 2 Over. 114 125 Blakemore, Estill v., 1 Over. 373 100 Bond V. AUen, 2 Mart. (N. C.) 83 3 Boston Belting Co., Day v., 16 Law Eep. 330 585 Bowen v. KendaU, 23 LawEep. 538 704 Bowers, Webb v., 11 LawEep. 84 554 Branton's Admr., Teasdale v., 2 Hawy. 377 28 Breckenridge, DaUum's Lessee v., 1 Cooke, 152 210 Brewer, Clum v., 21 Law Eep. 390 635 Brown v. Hartford Fire Insurance Co. 21 Law Eep. 726 663 Brown, Perry Manuf. Co. v., 9 Law Eep. 542 547 Browne, Patton & Erwin's Lessee v., 1 Cooke, 126 185 Buchanan, Butledge's Lessee v., 1 Cooke, 363 237 vi Table of Cases Eepoeted. Buck V. Cobb, 9 Law Bep. 545 550 Burr, United States v., 2 Wheel. C. C. 573 493 Burrow V. Dickson, 1 Over. 36G 101 Burton v. Salter, 21 Law Bep. 148 CCS Bush's Heirs v. Williams, 1 Cooke, 360 234 Carothers, Patton & Erwin's Lessee v., 1 Cocke, 143 207 Carson's Lessee, OoTcten v., 1 Cooke, 152 » > 208 Champlin v. TiUey, 3 Day, 303 , 71 Chapels, United States v., 2 Wheel. C. C. 205 444 Chase, Clarke v., 21 Law Bep. 394 038 Childs v. Somerset & K. E. E. Co. 20 Law Bep. 501 593 Clark T. Lawrence, 21 Law Bep. 392 037 Clark, Smith v., 3 Am. L. J. 15G 345 Clarke v. Chase, 21 Law Bep. 394 638 Clayton's Ex'r v. Grubb's Admr. 2 Hayw. 378 SO Clum T. Brewer, 21 Law Bep. 390 635 Oobb, Buck v., 9LawEep. 545 550 Cobb V. Haydock, 4 Day, 472 91 Cobb, Howard v., 3 Day, 309 75 Codrington v. Adams, 21 Law. Bep. 5S0 650 Codwise v. Gleason, 3 Day, S 33 Codwise v. Gleason, 3 Day, 12 40 Coffee V. Eastland, 1 Cooke, 159 216 Collector of Charleston v. Gilchrist, 1 Hall L. J. 429 249 Commercial & I'armers' Bank, Lowry v., 3 Am. L. J. Ill 331 Conception (Schooner) , Consul of Spain v., 2 Wheel. C. 0. 507 497 Consul of Spain v. Schooner Conception, 2 Wlieel. C. C. 597 497 Cook's Lessee v. Hunter, 2 Over. 113 12S Cooper, Patton & Erwin's Lessee v., 1 Cooke, 133 IDS Corrie, United States v., 23 Law Bep. 145 688 Cottle T. Payne, 3 Day, 289 89 0uri7 T. Eoulstone, 2 Over. 110 121 Dallum's Lessee v. Breckenridge, 1 Cooke, 152 210 Danforth, Hunt v., 22 Law Bep. 74 G78 Darst V. Duncan, 2 Law Bep. 246 , 521 Day T. Boston Belting Co. 16 Law Bep. 839., • 585 toeliesseline, Elkison, t., 2 Wheel. C. C. 56. 431 Demeritt v. Exchange Bank, 20 Law Bep. 603 598 Denison, Miohaelson t., 3 Day, 294 63 Dexter v. Sullivan, 14 Law Eep. 455 , , 585 Dickson, Burrow v., 1 Over. 366 101 Dickson, Simms' Lessee v., 1 Cooke, 137 193 Dinwiddle, Bass' Lessee v., 1 Cooke, 130 190 Dobbins, Watson v., 1 Cooke, 359 233 Dougherty's Heirs v. Edmiston, 1 Cooke, 134 194 Douglass, Mathews' v., 1 Cooke, 136 196 Dudley, Grahann v., 1 Cooke, 533 228 Duncan, Darst v., 2 Law Eep. 246 521 Dunham, United States v., 21 Law Eep. 691 653 Dunham v. Baird, 1 Law & Eq. Eep. 391 18 Dunlopv. West, 2 Hayw. 343 27 Eastland, Coffee v., 1 Cooke, 159 21^ Edmiston, Dougherty's Heirs v„ 1 Cooke, 13i 191 Table of Cases Repoeted. vii Edwards v. Nichols, 3 Day, 16 : 43 ElkisouT. Dfcliesseline, 2 Wheel. C. C..56 , 431 Estill V. Blakemove, 1 Over. 273 100 Evans V. Eobinson, 1 Car. Law Eep. 209 400 Exchange Bank, Demeritt v., 20 Law Eep. 606 598 Tarmers' & Mechanics' Bank v. Stickney, 8 Law Eep. 151 543 Fisher t. The Sybil, 6 Hall L. J. 509 271 Frink, United States v., i Day, 471 90 Gates V. Johnson, 21 Law Eep. 279 633 Gibson v. 'Williams, 2 Hayw. 281 19 Gilchrist v. Collector of Charleston, 1 Hall L. J. 429 249 Gill V. Jacobs, Hall L. J. 117 268 Gilmour, Minge v., 1 Car. Law Eep. 31 383 Gleason, Codwise v., 3 Day, 3 33 Gleason, Codwise v., 3 Day, 12 40 Goddard v. The Tangier, 21 Law Eep. 12 602 Gordon, Carson's Lessee v., 1 Cooke, 152 208 Gorham V. Mister, lAm. L. J. 539 327 Goulding, Palyart t., 2 Mart. (N. C.) 78 2 Graham t. Dudley, 1 Cooke, 353 228 Greenleaf, Stuart v., 3 Day, 311 77 Grubb's Admr. v. Clayton's Ex'r, 2 Hayw. 378 30 Guion v. McCullough, 2 Mart. (N. C.) 78 1 HallT. Sullivan E. E. Co. 21 Law Eep. 138 613 Hamilton, Jones t., 2 Hayw. 291 : 24 Hamilton, Matter's Ex'r, t., 2 Hayw. C40 '. 27 Hamilton, Sandei-s v., 2 Hayw. 22G, 282 20 Hamilton v. Simms, 2 Hayw. 291 25 Hare, United States T., 2 Wheel. C. C. 283. 449 Hartford Ins. Co., Brown v., 21 Law Eep. 720 663 Hartshorner. Sanford, 3 Day, 279 51 Harrcy, United States v., 8 Law Eep. 77 540 Haydock, Cobb v., 4 Day, 472 91 Hayton t. Wilkinson, 1 Hall L. J. 2C0 247 Henderson's Lessee t. Long, 1 Cooke, 128 188 Hewson, United States t., 7 Law Eep. 3C1 532 Hill, Polk's Lessee v., 2 Over. 118 126 Hitchen v. Wilson, 4 Hall L. J. 275 253 Hodges, United States v., 2 Wheel. C. C. 477 465 Holbrook V. Black, 18 Law Eep. 89 588 Holtsclaw, United States v., 2 Hayw. 379 31 Horton, Bissell v., 3 Day, 281 53 Howard v. Cobb, 3 Day, 309 75 Hulburtv. Squires, 1 West. L. Mo. 443 13 Humphries' Co. Ct., Spragginsv., 1 Cooke, ICO 218 Humphreyville Copper Co. v. Sterling, 1 West. L. Mo. 126 S Hunt V. Danforth, 23 Law Eep. 74 678 Hunter, Cook's Lessee v., 2 Over. 113 125 Hutchings, United States v., 2 Wheel. C. C. 543 489 Hynes v. Patton's Lessee, 1 Cooke, 356 231 Jacobs, Gill v., 6 Hall L. J. 117 2G8 Jacobson, United States v., 2 City H. Eeo. 131 410 viii Table of Cases Reported. James Wells, The, United States v., S Day, 21)6 65 Jewett, Rogers v., 22 Law Bep. 339 683 Johnson, Gates v., 21 Law Eep. 279 633 Jones, Hamilton v., 2 Hayw. 291 24 Jones T. Smith, i Hall L. J. 276 255 Jones, United States v., 2 Wheel. C. C. 451 462 Jones V. Walker, 2 Hayw. 291 25 Jordan, Smith t., 21 Law Eep. 204 627 Jordan, Teasdale v., 2 Hayw. 281 19 Jordan v. Union Mutual Fire Ins. Co. 21 Law Eep. 83 608 Keffer, Newman v., 33 Pa. St. 442 502 Kendall, Bowenv., 23 Law Eep. 538 704 Lane, Bascom v., i Am. L. J. 193 348 Lawrence, Clark v., 21 Law Eep. 3D2'. 037 Lawrence, Stoycl v., 3 Day, 1 31 Lesterv. Stanley, 3 Day, 287 58 Lewis' Exrs., v., 2 Hayw. 346 27 Lockman, United States v., 11 Law Eep. 151 554 Lofton, Tatum's Exrs. v., 1 Cooke, 115 175 Long, Henderson's Lessee v., 1 Cooke, 128 188 Lonsdale Co., Moies v., 21 Law Eep. 058 655 Lowry v. Commercial &, Farmers' Bank, 3 Am. L. J. Ill 331 Malebran, United States v., 5 City H. Eec. 122 426 Manufacturers' & Farmers' Bank v. Bayless, 1 West. L. Mo. 356 8 Manufacturers' Ins. Co., Bilson v., 7 Am. L. Beg. 661 290 Maiia Josepha, The, 2 Wheel. C. C. 600 500 Marsh, MuiTay v., 2 Hayw. 290 22 Mathews v. Douglass, 1 Cooke, 136 196 Matilda, United States v., 4 Hall L. J. 478 258 MeAlister v. Barry, 2 Hayw. 290 24 McCuUough, Guion v., 2 Mart. (N. C.) 73 1 McElrath v. Mcintosh, 11 Law Eep. 399 559 McGaughey, Preston v., 1 Cooke, 113 I74 Mcintosh, McElrath v., 11 Law Eep. 399 559 Mclver's Lessee v. Eeagan, 1 Cooke, 366 240 MoLane, Murray v., 2 Car. Law Eep. 186 405 Michaelson T. Derason, 3 Day, 294 63 Middlesex, The, 21 Law Eep. 14 605 Minge v. Gilmour, 1 Car. Law Eep. 34 383 Mixter, Gorham v„ 1 Am. L. J. 539 327 Moies, Lonsdale Co. v., 21 Law Eep. 658 655 Morel, United States v., 13 Am. Jur. 279 373 Murphey, Wilkings v., 2 Hayw. 282 21 Murray v. Marsh, 2 Hayw. 290 22 Muiray v. McLane, 2 Car. Law Eep. 183 405 Mutter's Exrs. v. Hamilton, 2 Hayw. 346 27 Myers, Boberts v., 23 Law Eep. 396 698 Newman v. Keffer, 33 Pa. St. 442 502 Nichols, Edwards v., 3 Day, 16 43 Niphon's Crew, 13 Law Eep. 266 577 Norwood, Thompson's Lessee v., 1 Cooke, 346 221 Nugent, Ex parte, 1 Am. L. J. 107 296 Table op Cases Repobted. ix Orr V. Badger, 7 Law Kcp. 465 537 Palyartv. Goulding, 2 Mart. (N. 0.) 78 2 Fannell, Searcy t., 1 Cooke, 110 172 Parker, Kule'g Lessee v., 1 Cooke, 365 239 Patton V. Blackwell, 2 Over. 114 125 Pattonv. BrowD, 1 Cooke, 12G 185 Patton V. Carothei-3, 1 Cooke, 148 207 Pattonv. Cooper, 1 Cooke, 133 193 Pattonv. Hynes, 1 Cooke, 356 231 Patton V. Eeily, 1 Cooke, 119 180 Payne, Cottle v., 3 Day, 289 59 Peck V. ■Williamson, 1 Car. Law Sep. 53 398 Pendleton v. Phelps, 4 Day, 476 95 Perry Manuf. Co. v. Brown, 9 Law Bep. 542 547 Petrel, The Scow, 18 Law Bep. 185 ." 589 Piieli>s, Pendleton v., 4 Day, 476 95 Phelps, United States v., 4 Day, 469 89 Polk's Lessee V. Hill, 2 Over. 118 126 Polk's Lessee v. Bobertson, 1 Over. (I5G 103 Polk's Lessee v. Windel, 2 Over. 433 168 Porter, United States v., 3 Day, 233 54 Preston v. McGanghey, 1 Cooke, 113 174 Bead, Simms v., 1 Cooke, 345 219 Beagan v. Mclver, 1 Cooke, 366 240 Beeside, Ex parte, 7 Law Bep. 448 571 Beily, Patton & Erwin's Lessee v., 1 Cooko, 119 180 Boberts v. Myers, 23 Law Kep. 3DG 698 Boberts, Stump v., 1 Cooke, 330 224 Bobertson, Polk's Lessee v., 1 Over. 45G 103 Bobertson, Wilson v., 1 Over. 404 109 Bobinson, Evans v., 1 Car. Law. Bep. 209 400 Bonlstone, Cun-y v., 2 Over. 110 121 Bogers v. Jewett, 22 Law Bep. 339 683 Bale's Lessee v. Parker, 1 Cooke, 365 239 Bntledge's Lessee v. Buchanan, 1 Cooke, 363 237 Salter v. Burton, 21 Law Bep. 148 623 Sanders v. Hamilton, 2 Hayw. 22G, 282 20 Sanford, Hartshome v., 3 Day, 270 51 Sawyer's Lessee v. Shannon, 1 Over. 4G5 Ill Schroeder, Smithv., 21 Law Bep. 739 672 Searcy v. Pannell, 1 Cooke, 110 172 Shannon, Sawyer's Lessee v., 1 Over. 4G5 Ill Shepherd's Lessee V. Baily, 1 Cooke, 369 242 Simms v. Baker, 1 Cooke, 146 205 Simms v. Dickson, 1 Cooke, 137 193 Simms, Hamilton v., 2 Hayw. 291 25 Simms v. Bead, 1 Cooke, 345 219 Skinner, United States v., 2 Wheel. C. C,232 446 Smith v. Atlantic Mutual Fire Insurance Co. 12 Law Bep. 408 573 Smith V. Barker, 3 Day, 280 52 Smith V. Barker, 3 Day, 312 78 Smithv. Clark, 3 Am. L. J. 15G 345 Smith, Jones v., 4 Hall L. J. 276 255 Table op Cases EeporteD. Smith V. Jordan, 21 Law Rep. 204 627 Smith V. Sohroeder, 21 Law Eep. 739 672 Smith, United States T., 6 Dane Abr. 718 430 Smith, United States v., 4 Day, 121 82 Somerset & K. E. B. Co., Childs v., 20 Law Erp. 531 593 Spragginav. Humphries' Co. Ct. 1 Cooke, ICO., 218 Squires, Hulburt v., 1 West. L. Mo. 413 13 Stanley, Lester v., 3 Day, 287 58 Sterling, Humphreyyille Copper Co. v., 1 West. L. Mo. 126 3 Stickney, Farmers' & Mechanics' Bank v., 8 Law Bep. 161 543 Stoyel V. Lawrence, 3 Day, 1 31 Stuart V. Greenleaf, 3 Day, 311 77 Stump V. Roberts, 1 Cooke, 350 • 224 Sullivan, Dexter v., 14 Law Eep. 455 585 Sullivan V. Sullivan, 21 Law Eep. 531 642 Sullivan E. E. Co., Hall v., 21 Law Eep. 138 613 Sybil, The, Fisher v. , Hall L. J. 509 274 Taberv. United States, 2 Law Eep. 298 523 Talbot, Beard's Lessee v., 1 Cooke, 142 201 Tangier, The, Goddard v., 21 Law Eep. 12 602 ■Tatum'sExr. v. Lofton, 1 Coolse, 115 175 Teasdale v. Branton's Admr, 2 Hayw. 377 28 Teasdale v. Jordan, 2 Hayw. 281 19 Thompson's Lessee v. Norwood, 1 Cooke, 340 221 Tillcy, Champlin v., 3 Day, 803 71 Travers, United States v., 2 Wheel. C. C. 492 467 Tnckerman v. Bigelow, 22 Law Eep. 208 631 Ulysses, The, 5 Law Bep. 241 529 Union Mutual Pire Insurance Co., Jordan v., 21 Law Bep. 81 608 United States v. Allen, 4 Day, 474 94 United States v. Anderson, 1 Cooke, 143 202 United States v. Andrews, 5 City H. Eeo. 120 422 United States v. Bass, 4 City H. Eeo. 161 418 United States v. Burr, 2 Wheel. C. C. 573 , 493 United States v. Chapels, 2 Wheel. C. C. 205 444 United States V. Corrie, 23 Law Eep. 115 686 United States v. Dunham, 2rLaw Bep. 591 653 United States v. Fi-ink, 4 Day, 471 90 United States v. Hare, 2 Wlieel. C. C. 283. 449 United States v. Harvey, 8 Law Eep. 77 510 United States v. Hewson, 6 Law Eep. 361 532 United States v. Hodges, 2 Wheel. C. C. 477 465 United States V. Holtsclaw, 2 Hayw. 379 31 United States v. Hutohings, 2 Wheel. C. C. 543 489 United States V. Jaoobson, 2 City H. Bee. 131 410 United States T. The JameS Wells, 3 Day, 296 65 United States v. Jones, 2 Wheel. C. C. 451 462 United States v. Lockman, 11 Law Eep. 151 554 United States v. Malebran, 5 City H. Bee. 122 426 United States y. Matilda, 4 Hall L. J. 478 , 258 United States v. Morel, 13 Am. Jur. 279 373 United States V. Phelps, 4 Day, 469 89 United States V. Porter, 3 Day, 283 54 United States v. Skinner, 2 Wheel. C. C. 232 446 Table op Cases Repoeted. United states V. Smith, BDane Abr. 718 430 United States v. Smith, 4 Day, 121 82 United States, Taber v., 2 Law Eep. 298 523 United States v. Travers, 2 Wheel. C. C. 492 467 United States v. Winn, 1 Law Eep. 63 519 United States V. Wood, 2 Wheel. C. C. 325 456 Vining's Lessee V. Wooten, 1 Cooke, 127 187 Walker, Jones v., 2 Hayw. 291 25 Watson V. Dobbins, 1 Cooke, 359 233 Webb v. Bowers, 11 Law Eep. 84 554 Wesley t. Biays, 4 Hall L. J. 275 254 West, Diinlop v., 2 Hayw. 346 27 Wilkings V. Murphey, 2 Hayw. 282 21 Wilkinson, Hayton v., 1 Hall L. J. 2C0 , 247 Williams, Bush's Heirs v., 1 Cooke, SCO 234 Williams, Gibson v., 2 Hayw. 281 19 Williamson, Peck t., 1 Car. Law Eep. 53 •. 398 Wilson, Hitchen v., 4 Hall L. J. 275 253 Wilson, Bobertson v., 1 Over. 464 109 Windel, Polk's Lessee v., 2 Over. 433 168 Winn, United States v., 1 Law Eep. 63 519 Wood, United States t., 2 Wheel. C. C. 325 456 Wooten, Vining's Lessee v., 1 Cooke, 127 187 Young Sam, The, 20 Law Eep. 608 600 CASES ARGUED AND DETERimED IN THE CIRCUIT COURTS OF THE UNITED STATES. GUIOlSr V. M'CULI.OUGH et al. [tr. S. Circuit Court, District of North Carolina, 1791.— 2 Martin, 78.] Weit Ef Action of Debt — Fobm of. — A writ in debt "that they answer unto him of a plea of debt of one tliousand dollars," held good on a demurrer to a plea in abatement that the writ did not run in the debet and detinet. Action on a bond. The writ was filled up, "that they answer unto him of a plea of debt of one thousand dollars" (the penalty of the bond) : plea in abatement because the writ did not run in the usual form, "in the debet and detinet": general demurrer. Graham, for the plaintiff. Slade, for defendants. Ieedell, J., and Sitgeeaves, J., notwithstanding the pointed authority produced by Slade, overruled the plea. They held the writ was deemed sufficient because it agreed with the ac eiiam clauses inserted in actions of debt in the bill of Middlesex, according to the English practice, {Page v. Farmer, 2 Murpli. Eep. 288 ; S. C. 1 Car. L. Kepos. 278.) Bbun. C. C — 1. Palyaet v. Goulding. PALYART V. GOULDING. [U. S. Circuit Court, District of Nortli Carolina, 1792. — 2 Martin, 78.] PjUiiies — JoTKDEB OF NoN-EESiDENT PAETNEKa. — A firm in Karyland gave its promissory note to A. signed in the name of a firm, and A. sued one of the partners alone, relying on the Act of 1789. (See 1 Ker. Stat. eh. 31, J 89.) Held, that he might do so, as that act did not affect the contract, hut only extended the remedy. The defendant and his two brothers carried on business as merchants in the State of Maryland, under the firm name of John Goulding & Brothers, and in the year 1791 gave the plaintiff the promissory note on which this action was brought, for a debt of the said partnership, signed John Goulding & Brothers, the style of the firm. The defendant (being the only partner in this State) was sued alone; he pleaded in abatement to the action that this contract was entered into in the State of Maryland, and that the other partners who were living and not named ought to be made defendants. To this plea there was a general demurrer. Graham, in support of the demurrer, relied wholly on the fifth section of the act of Assembly of this State. (1789, 57, 688.) Woods and Martin contended that this case came within the rule of lex loci, and that to allow this act the operation insisted on for the plaintiff would substantially alter the contract. But Patterson, J., took a distinction between the contract and the rempdy, and observed that the contract remained the same, notwithstanding this act, and that the remedy only was extended. And SiTGEEAVES, J., accordante. A respondeas ouster was awarded. HUMPHREYVILLE COPPEE Co. V. STERLING. BOND V. ALLEN et al., Ex'es., etc. [U. S. Circuit Court. District of North Carolina, 1796 2 Martin, 83.] Limitations — CoNSTBUCTioN of Statute — Tlie fourtli and fiftli sections of the Act of 1879, 1 Eev. Code, oh. 308 (see 1 Eev. Stat. ch. 65, ? 12), limiting the time within which suits are to be brought against executors and administrators, must be taken together, and the defendant to entitle himself to the benefit of the fourth most show that he has complied with the requisites of the fifth section. On exception taken to the defendant's plea, grounded on the fourth section of 1789, 23, 677, respecting the limitation of time for bringing suit against administrators and executors. The Court, Patterson, J,, and Sitgreaves, J,, held that the fourth and fifth sections of that act must be taken together; that the defendant ought to have entitled himself to the benefit of the fourth section, by showing he had complied with the requisites in the fifth ; and as this was not set forth, the plea was overruled. (See Blount v. Pmierfield, 2 Hayw. 161 ; McIAn V. McNamara, 2 Dev, & B. Eq. 82; 8alter v. Blmmt, 2 Dev. & B. Eq. 218.) Badger, for the complainant. Baker, for the defendant. THE HUMPHEEYYILLE COPPER CO v. J. M. & E. T. STERLING. [XT. S. Circuit Court, District of Ohio, 1859. —1 West. L. Mo. 126.] CoBPOBATioNS — Genkbal Powebs — Pbesujcpiion. — It is a well-settled principle, that a-corporatiou has only such powers as are specifically granted, and such as are necessary for carrying the former into efiect ; and that these powers can be exercised only for the purposes contemplated by its charter or act of ineorporar tion. But it may borrow money or deal in credits, or become a party to nego- tiable paper, by purchase or otherwise, in the transaction of its legitimate business, if that is a convenient mode of conducting it, unless expressly prohibited. And the legal presumplion, until the contrary is shown, is that its acts of that kind are done in the regular course of its authorized business. CoxsTEucTioif OP Statutes — State Laws is Otheb States. — The statutes of one State or country, when they become the subject of adjudication in another State or country, are to receive the same construction that is given them in the courts of the former, where that construction is made to appear. 4 HUMPHEEYVILLE CoPPER Co. V. STEELIlfG. Banney, Backus & Noble, for plaintiif. Kdly & GHswold, for defendants. The facts in this case are fully stated iu the opinion of the court, delivered by WiLLSON, J. — This is an action of assumpsit against the defendants, as makers of two promissory notes of two hundred and iifty dollars each. The notes were dated and executed at Cleveland, Nov. 1, 1853, and payable respectively in one and two years, to the order of T. Dwight, and by him indorsed. The plaintiif is a corporation, organized under a general statute of the State of Connecticut (passed in May, 1857), which authorizes the formation of joint stock corporations, etc. The one hundred and ninety-sixth section of this law provides that " any number of persons, not less than three, who, by arti- cles of agreement in writing, have associated or shall associate according to the provisions of this chapter,, under any name assumed by them, for the purpose of engaging in and carrying on any kind of manufacturing, mechanical, mining, or quarrying business, or any other lawful business, and who shall cor:«ply with the provisions of this chapter, shall, with their successors or assigns, constitute a body politic and corporate, under the name assumed by them in their articles of association." It is also provided in the one hundred and ninety-eighth section of the same act that " the purposes for which every such corporation shall be t^*'' established, shall be distinctly and definitely specified by the stockholders in their articles of asso- ciation, and it shall not be lawful for said corporation to direct its operations or appropriate its funds to any other purpose." The plaintiif, by written articles of association, obtained a legal existence and a name as a corporation under this law, on the 5th day of January, 1849. Its declared purposes are set forth in the second article of the association. This article de- clares, "the object and business of said corporation, and the business for which it is established, is the refining of metal and the manufacture of rolled copper and brass and other metals and articles manufactured therefrom ; and the buying and selling of other articles of trade and merchandise, and generally to do all HUMPHREYVILLE CoPPEE Co. V. STERLING. 5 acts connected with or incident to said business, or the prosecu- tion of the same." The right of recovery here is resisted upon the grounds that the plaintiff had no power to make the contract whereby it became the holder of the notes in question, and that, hence, the notes in the possession of the plaintiff as indorsee are void, and the defendants discharged from liability. The testimony of Timothy Dwight (the payee of the notes) in relation to their negotiation and transfer, is that on the 1st of September, 1854, he sold the one that first became due to the plaintiff, for cash, and received its full value, which at the time was the face of the note and interest, less discount. At a subse- quent period, and before its maturity, he negotiated the other note for a valuable consideration, and indorsed the same to "William Cornwell. Cornwell testifies that he received this last note of Dwight in 1855, and in payment of a pre-existing debt, and that before the note matured he transferred it to the plaintiff for a monied consideration, he at the time being indebted to the plaintiff. This is the substance of the evidence introduced by the defend- ants. This defense brings to its aid no equitable considerations. It is not pretended that the debt, evidenced by these notes, has been paid, or that it is not justly due to somebody. Nor is it denied that these nrites were duly indorsed to the plaintiff, and fall value paid for them. The question presented is strictly a legal one, and involves the inquiry of the power and capacity of the plaintiff to contract and thereby become the lawful owner of this commercial paper. The principle is well established and of universal application that a corporation has no powers except those specifically [i»8] granted, or such as are necessary for carrying into effect the powers expressly granted. Or, as Mr. Angel illustrates the principle, "if the object of a corporation is to insure property, it cannot exercise the power of acting as a banking institution." And when a corporation is not in any degree restricted or cur- tailed as to the mode of doing its business, its powers, whether expressed or implied, can only be exercised to effect the purposes for which they were conferred by the legislature. And yet an 6 HUMPHREYVILLE COPPBR Co. V. STEELING. express authority is not indispensable to confer upon such an institution the right to borrow money, to deal on credit, or become drawer or indorser or acceptor of a bill of exchange, or to become a party to any other negotiable paper. It is sufficient if it be implied, as the usual and proper means to accomplish the purposes of the law of its creation ; and these implied pow- ers are incident to all corporations created for manufacturing, mining, or mechanical purposes, when not expressly prohibited in their charter or by a general law of the State. The presumptions of law arising in favor of the contracts of a corporation are well defined by numerous well adjudged cases. The doctrine is this : " If a corporation is authorized to raise money on promissory notes for a particular purpose, or if, as is frequently the case with other thau banking institutions, it may receive notes in the course of its proper business, evidence may by admitted in the one case in favor of the corporation, and in the other against it to impeach the notes, by showing they were issued for another purpose, or received in the course of business improper or forbidden to it. As in ordinary cases, 'ut res magis vcdeat quam per eat,' the presumption is always in favor of the validity of the contract; or, in other words, it will be presumed that the debt was due, or the note or other security given in the lawful course of business, until the contrary is shown." (Angell & Ames Corp. 242; H. Hill Rep. 442.) The real inquiry, then, or rather the material question for determination, is whether the negotiation and transfer of the notes to the plaintiff was an act which falls under any legal prohibition. The transaction, upon a careful consideration of the proofs in the case, was clearly a purchase of the paper by the plaintiff. There is no evidence that this corporation ever kept an office of discount and deposit, or Avas at any time engaged in a busi- ness foreign to the objects specified in its charter, t*®*^ Hence, the legal j)resumption is that the notes were purchased for a legitimate purpose, in the absence of proof to the contrary ; and it certainly requires no forced construction of the law to declare the transaction appropriate and needful in the ordinary business affairs of the company. The plaintiff's location and place of business were in Con- HUMPHEEYYILLE COPPEE Co. V. STERLING. necticut. Its chartered powers (as declared by the articles of association), comprise the refining of metals — the manufacture of rolled copper and brass and other metals, and articles manu- factured therefrom, and the buying and selling of other articles of trade and merchandise. Suppose the company, in its business operations, found it necessary to purchase brass in Boston, or copper in Cleveland, two well-known markets for those commodities ? Can it be urged that it could not purchase a bill of exchange on Boston at a premium, or a certificate of deposit on Cleveland at a discount, in order to place its funds where they were re- quired for use? And if drafts and certificates of deposit could be bought for such an object, why not promissory notes? We can discover no difference of principle in the two cases, as the object to be attained is the same in both. The necessities of trade, in a country so widely extended as our own, have brought into use various modes of effecting the exchanges between different and distant localities; and it is accomplished in most instances by the purchase and sale of commercial paper. This corporation, then, has done no more in the purchase of the notes in question than was authorized by its charter, or more than its declared purpose of doing, as expressed in the second article of its association. And as the transaction itself stands unimpeached by any proof, the presumption of law is that the notes were obtained by the company as an incident to its business and in the legitimate prosecution of the same. But it is urged by counsel that the weight of authority is against the capacity of the plaintiff to purchase these notes by way of discount, and maintain suit upon them. At first view there would seem to be force in the objection. In the cases of The People v. Utica Ins. Co. 15 Johns. 358, and The Utica Ins. Co. v. Scott, 19 Johns. 1, this question was fully discussed. The court there held an insurance company incapable of discounting a promissory note, and consequently unauthorized to bring suit upon it as indorsee. The note there was adjudged void. [130] These decisions of the courts of New York and the sub- sequent adjudications of those courts upon the same question, 8 Manuf. & Faemees' Bank v. Bayless. turned entirely upon the restraining act of the State, which act declares, "that all notes and securities for the payment of money or the delivery of property, made or given to any such associa- tion, institution, or company not authorized for banking purposes, shall be null and void." And it has been properly held that this act could not be evaded by making the note payable to individ- uals, the corporation claiming as indorsee. We cannot well see how the New York courts could have decided otherwise under this prohibitory law. In the case of the New York Fire Insurance Company v. Ely, 5 Conn. 560, the Supreme Court of Connecticut followed the line of decisions Dreviously marked out and defined by the courts of New York. The insurance company in that case was a corporation, char- tered by the legislature of New York ; and not only was it re- stricted in its powers by express terms in its charter, but it was also subject to the disabling statute of that State. Its charter being a legislative enactment of New York, it was to be governed in its construction and in the interpretation of its powers by the judicial decisions of the state of its creation. We see nothing in the doctrine of these authorities (cited by the defendant's counsel), to change or vary the principle of law which obtains in, and which in our opinion governs this case. We are satisfied that the notes were purchased by the plaintiff in the prosecution of its legitimate business, and that the trans- action was lawful by virtue of the statute of Connecticut, and of the general power contained in the second article of the com- pany's organization, viz., to do all acts connected with or incident to said business, or the prosecution of the same. Judgment will be rendered for the amount of the notes and interest, in favor of the plaintiff. MANUFACTURERS' & FARMERS' BANK OF WHEELING V. BAYLESS. 1 U. .8. Circuit Court, matniot of Ohio, 1859. —1 West. L. Mo. 356. ] State Exemption Laws — Homesteads.— State exemption laws apply to proooss iasued from the federal courfs. The homestead of the head of a family is exempt from sale on a judgment rendered by a court of the United States in the same manner as upon a judgment of a State Court. Manuf. & Faemees' Bank v. Bayless. ExECDTioN — Homestead Exemption Laws.— Where a portion of the defendant's lands, on wliioh is situated a dwelling-house far exceeding the value of the homestead entitled to exemption, is subject to a mortgage nearly equal to the value of that portion of his lands, and the defendant lias another parcel, on which is a dweUing occupied by part of his family, of a value within the limits of the statute exemption, he is entitled, upon his request, to have the latter set off and exempted from sale on execution. S. J. Andrews, for the motioa. Paine & Wade, opposed. WiLLSON, J. — A motion is made to set aside the appraisal in this case, and the reason assigned is that the defendant, at the time of the levy and appraisal of the land de- scribed in f*^'^ the marshal's return upon the execution, was the head of a family, and that he and his family then resided upon the upper tract of land included in said appraisal, and which was and is known as the Milh^ille farm. That the defendant, prior to the making of said appraisement, demanded of the deputy marshal under whose direction said levy and appraisal were made, to set off and assign to said defendant a homestead in the said Millville farm, which the said deputy marshal refused to do, but caused said appraisal to be made without reference to the homestead exemption claimed by said defendant. This motion presents two questions for our consideration : — 1. Upon an execution issued from the United States Circuit Court in Ohio, and where the marshal, in executing the writ, levies upon land, has the defendant the right to the homestead exemption, provided for by the Ohio Statute of 23d March, 1850? And, 2. If the State law in this particular is applicable, then, is the defendant in this case entitled to its benefits The first section of the State law of March 23, 1850, pro- vides that from and after the 4th day of July, 1850, the homestead of each head of a family shall be exempt from sale ' on any judgment or decree rendered on any cause of action after the taking effect of the act ; provided, that such homestead shall not exceed five hundred dollars in value. (Swan's Stat. 511.) The third section of the Act of Congress of May 10, 1828,, declares " that writs of execution and other final process issued on judgments and decrees rendered in any of the courts of the 10 Manuf. & Farmers' Bank v. Bayless. United States, and the proceedings thereupon, shall be the same, except their style, in each State, respectively, as are now used in the courts of such State, saving to the courts of the United States in those States, in which there are no courts of equity, with the ordinary equity jurisdiction — the power of prescribing the mode of executing their decrees in equity by rules of court ; provided, however, that it shall be in the power of the courts, if they see fit in their discretion, by rules of court, so far to alter final process in said courts, as to conform the same to any change which may be adopted by the legislatures of the respective States for the State courts." (Vol. 4 U. S. Stat. 281.) The first section of this act expressly adopts the mesne process and modes of proceeding in suits at common law, then existing in the highest State court, under the State laws, "***^ which it has been held included all the regulations of the State laws as to bail, and exemptions of the pa'tty from arrest and imprison- ment. In regard, also, to writs of execution and other final process and proceedings thereupon, the third section declares they shall be the same as were then used in the courts of the State. There can be no question that the provisions contained in this section relating merely to executions and modes of proceeding after judgment are exceptions to the thirty-fourth section of the Judiciary Act of 1789, which enjoins upon the federal courts the adoption of State laws as rules of decision in certain cases. They are exceptions, because nothing is left for implication, as Congress has legislated directly upon the subject-matter. The law is express that executions and the proceedings thereupon shall be the same as were used in each State on the 10th of May, 1828, conferring, however, upon the federal courts the power, in their discretion, by rules, to so alter final process in said courts as to conform the same to any change which might be adopted by the legislatures of the respective States for the State courts. It has accordingly been urged with some plausibility, that inasmuch as there was no homestead exemption law in force in Ohio, on the 10th of May, 1828, the subsequent enactment could have no binding obligation in the execution of process from the federal courts, unless those courts should by rule adopt Manuf. & Faemees' Bank v. Bayless. U such law ; and that as this court has adopted no rule upon the subject, the defendant cannot claim its benefits. This is not a question upon the mode of proceeding upon an execution. It does not involve the inquiry how the levy upon real estate should be made, and the duties of the marshal as to the mode of appraisal, advertisement, and sale. But the question here goes directly to a rule of property. It relates not to the proceeding, but to the property proceeded against. As an incident to sovereignty, the State of Ohio, through its legislature, has not only the power to declare what shall consti- tute a valid title to real property, but also the mode of alienation of such property. It certainly has power to change a rule iu the common law in the matter of divesting title, as was done by the Act of February 28, 1846, in relation to the interest of husbands in the estates of their wives. It can, by a law of limitation, de- termine when a judgment shall cease to have any legal effect, and by a like law it can deny '"^"^ to the lawful owner the right to recover the possession of his land. And so it can exempt from legal process to the head of a family, a homestead, as provided in the Act of March 28, 1850. This law of exemption has a direct operation upon property, and has as much force as the law which gives effect to a title in fee simple when obtained by deed. It confers a right which it is not iu the power of Con- gress by legislation, nor within the province of the federal courts, by rules, to divest. This question comes clearly within the principle of the case of Ross d al. V. Duval et al. 13 Peters, 45, where it was held by the Supreme Court of the United States that the act of the legislature of Virginia in 1792, to regulate proceedings in judg- ment, was substantially and technically a limitation on judg- ments, and was not, therefore, an act to regulate process. It was declared to be a limitation law, establishing a rule of prop- erty, and under the thirty-fourth section of the Judiciary Act, affording a rule of decision for the courts of the United States. This was but a reaifirmance of the principle established by the Supreme Court in the case of Green v. Lessee of Neal, 6 Peters, 291. But were this a question of practice merely, we should incline to recognize the provisions of the State law, even in the absence 12 Manuf. & Faemebs' Bank v. Bayless. of a rule of- court upon the subject. It is far preferable to yield to than encroach upon State laws, especially in enforcing remedies upon contracts entered into with reference to these laws. And it is administering justice in the true spirit of the Constitution and laws of the United States to conform, as nearly as practicable, to the administration of justice in the courts of the States. We therefore hold, on principles of law as well as upon con- siderations of comity, that on execution issuing from this court the party whose land is seized is entitled to the benefits of the homestead exemption, in the manner and to the same extent that is secured to the judgment debtor under the law of the State. It only remains to consider the evidence touching the defend- ant's right to a homestead exemption in the property levied upon by the marshal in this case. All the testimony submitted is comprised in three affidavits, to wit, that of J. M. Rickey (the deputy marshal who made the levy), of J. B. Bayles (the defendant), and of Jefferson Stringer (one of the appraisers). [3«o] j^ appears from this testimony that at the time of the levy and appraisal of the Millville farm, so called, the defendant demanded a homestead therein to be exempted and set off to him for that purpose, and that this demand was refused by the mar- shal. It further appears that the defendant was carrying on the farm himself, and a part of his family, with his household furniture, was in the occnpation of the house sought to be dis- charged from appraisal and sale. His other real estate, as the evidence shows, was mortgaged for about its full value, and the mortgage was executed by himself and wife; and that the dwelling-house upon encumbered land was far too valuable to constitute the homestead allowed by the statute. This evidence clearly shows the defendant to be entitled to a liomestead exemption in the land levied upon, and which was appraised without recognition of his right under the local law. The appraisal is accordingly set aside. HuLBUET V. Squires. 13 HULBUET V. SQUIRES. [U. S. Circuit Court, District of Ohio, 1859. — 1 West. L. Mo. 443.] Payment of Note Held by Bank fob Collection, What CoNSirruTES. — Wliere one of three maimers of a promissory note, payable at tlie office of a banlviug association, tlilrteen days before the note became due, deposited with the company at their office a sum of money sufficient to meet the note, and received from the cashier a certificate of credit for that sum, " to pay your note to " the payees named in the note, and the banls failed on the day the note fell due, having, from the time of the deposit up to the day of failure, constantly more than sufficient funds on hand to pay the note ; and after the deposit of the money, and before the note became due, it was deposited with the company, who held it up to the day of failure, with authority to receive payment upon it, but no farther application of the money deposited had been made to its payment. Seld, that the note remained unpaid, and that the makers were liable upon it to the payees. Paine & Wade, for plaintiff. S. B. & F. J. Prentiss, for defendant. The facts in this case are stated in the opinion of the court, delivered by WilIjSOX, J. — This case was tried by a jury, and a verdict rendered for the plaintiffs. The defendants have moved for a new trial upon the following assigned causes: — 1st. That the verdict was against the evidence. 2d. That the verdict was against the law. 3d. That the court erred in refusing to charge the jury as requested by the counsel for the defendants. [444] ^}jg plaintiffs, upon the trial, produced in evidence a promissory note, of which the following is a copy: — "MoNKOEViLLE, Ohio, May 9, 1857. " $600. Six months after date, for value received, we jointly and severally promise to pay to the order of Hulburt, Sweetzer & Co., at the office of the Norwalk Savings Company, six hundred dollars, with interest. f "Douglass Squiees, Signed-! "John Claey, ("Lewis Zahu." And thereupon the plaintiffs rested their cause. The facts disclosed by the defendants' testimony were that the 14 Htjlburt v. Squiees. note in suit was the last of three notes of equal amount, bearing the same date, payable at the same place, and given by the defendants in the settlement of one and the same transaction. Each of the two first notes, which severally matured on the 12th of July and the 12th of September, 1857, was sent by the holder to the Norwalk Savings Company for collection, and re- ceived by it before maturity. It appears that these two notes were paid by the defendants, who deposited sufficient money 'with the Savings Company for that purpose, comprising a de- posit on the 30th of June, and one on the 8th of July, 1857, as applicable to the first note, and another on the 11th of Septem- ber, 1857, as applicable to the second. The note in suit matured on the 12th of November, 1857. The plaintiffs indorsed it over to C. L. Latimer, treasurer of said Savings Company for collection, who received it a day or two before it fell due. Just before its receipt by him, to wit, on the 30th day of October, 1857, one of the defendants made a deposit with said Savings Company, and took from it the following paper : — "Office of Norwalk Savings Company, 1 "Norwalk, Ohio, Oct. 30, 1857. j "Mr. D. Squires — Dear Sir: We credit you this day six hundred and eighteen dollars, to pay your note to Hulburt, Sweetzer & Co. — $618. Yours truly, " [Signed] J. S. Cole, Cashier." On the 12th of November, 1857, the very day on which this note became due, the Norwalk Savings Company failed, and at which time Latimer indorsed and delivered over the note to the Bank of Norfolk for collection. And it further appeared in evidence that from the 30th of October to the 12th of November, the Savings Company had continuously on hand cash means more than sufficient to pay the note. [445] Upon this evidence the court instructed the jury in sub- stance that when a note is payable in a specified time, the law neither gives the maker the right to pay, or imposes on the holder the obligation to receive and apply the money in dis- charge of the note before its maturity. That when the relation of principal and agent exists, the conduct of the agent in all Htjlbuet v. Squires. 15 matters pertaining to his employment within the scope of his authority is conchisive upon his principal ; and that in this case, if that relation existed between Squires and the Savings Com- pany, and the latter failed to apply the money of its principal in its possession to the discharge of the note, then there was no payment, and the plaintiff ought to recover. The material question presented by this motion is whether, under all the circumstances of the case, this note was paid by the defendants' deposit of the six hundred and eighteen dollars with the Norwalk Savings Compauy. It is claimed by the counsel for the defendants that inasmuch as before and on the day of the maturity of the note it was in the hands of the Savings Company, with authority to receive payment upon it, and the money to pay it also in the possession of said company, that the duties growing out of this condition of things implies payment of the note, and that then and there- after the company held the note as the agent of the defendants, and the money as the agent of the plaintiffs. This position of counsel cannot be maintained. Before the note was received by the Savings Company for collection, the defendant Squires deposited the money with that institution to his own credit, and this credit was so entered upon the books of the company. Squires controlled the money, and although he constituted the company his agent, to dispose of the fund for a specific object, yet until that disposition was made he not only controlled the money but could also revoke the agency. The original parties to the note, by making it payable at the office of the Savings Company, did not create that institution the agent of either of them. The company was not, by virtue of the contract of the parties, the agent to pay, or the agent to receive payment. The makers of the note were not required to place funds in the possession or under the control of the Savings Company to meet their obligation. When the paper matured they had a right to go to the place of payment, either in person or by an agent, tender the amount due, and take up and cancel the evidence of indebtedness. If the note was [**«] not then and there ready to be delivered up on such tender of payment, the effect would have been to stop the accumulation of interest, and in case of suit upon the note the maker could 16 HULBUHT V. SqTTIRES. plead the tender, bring the money into court, and be discharged from further liability. It is a principle of law, well settled by a course of uniform decisions, that the maker of a promissory note has not the right to pay, nor is the holder obliged to receive payment before the note matures. This money was deposited with the Savings Company before the note came into its possession, and there could be no legal implication of payment, especially as at that time the company was not in fact the agent of the plaintiffs and by them authorized to receive the money on their account. But it is said, this company had held for collection the two previous notes, and upon those notes had received payments before they became due, and that to this conduct of the com- pany the plaintiffs never objected, but on the contrary ratified and approved it by their reception of the money thus paid. Such, however, was not the proof. The evidence simply estab- lished the fact that money was deposited for the purpose of paying those two notes ; but whether it was received and applied in payment of the paper before maturity did not appear. And had it so appeared, it would not, in our opinion, have been con- clusive of a course of dealing between these parties that would have changed a rule of law governing their rights and duties in the premises. The three notes were all negotiable commer- cial paper. They came to the place of payment through differ- ent channels, and were indorsed by different parties. There was nothing on the notes to indicate their uniform ownership, or that they belonged to the plaintiffs to whose order they were originally made payable. If there had been a course of dealing understood and acted upon by these parties, by which the defendants were accustomed to pay like notes belonging to the plaintiffs at the Savings Company's oifice before they fell due, there would be force in the presumption that like authority was granted to pay this note in the same way. This course of dealing, however, the proof failed to establish; On the contrary, it is clear the defendants acted upon no such understanding in making the deposit, as in that case they would have paid the money to the credit of the plaintiffs and talien up the note, or obtained an acquittance therefor from the company. HuLBTJET V. Squires. 17 [447] -pjjg gjjgg presented then is simply this : The defendants deposited money witli the Norwalk Savings Company to their own credit, with which they intended to pay this note when it should fall due. Now, it cannot be disputed that immediately upon the credit being given upon the books of the Savings Company, that institu- tion became debtor to the depositor; and that it was not thereafter competent for the company, as agent for the plaintiffs, to pay the note by a transfer of this credit on its books to the plaintiffs. Such a transaction Avould have been nothing more than the simple case of the agent " writing off" money due from him to the debtor, by way of discharging the debt due from the debtor to the agent's principal. It is well settled by authority that such a transfer of credit cannot be made by an agent. • Russdl V. BangUy, 4 Barn. & Aid. 398, was the case of a policy of insurance delivered to an agent to adjust the loss and collect the money from the underwriter. The agent adjusted the loss, and being himself at the time indebted to the under- writer, charged him with the amount of the loss in account, and credited the assured. The agent having failed before accounting to his principal, the question was whether, in fact, the debt was paid. Chief Justice Abbott in that case held the general rule of law to be, that if a creditor employs an agent to receive money of a debtor, and the agent receives it, the debtor is dis- charged as against the principal; but if the agent, instead of receiving money, " writes off" money due from him to the debtor, then the latter is not discharged. That decision was in accordance with the prirlciple established in the leading case of Todd V. Reed, where it was held that the agent of the assured was only entitled to receive payment in money; and that the attempt to pay the debt of one person with the money of another could not be sanctioned. The same principle was again affirmed in the late case of Underwood v. NiohoUs, 33 Eng. L. & Eq. 321. This doctrine is well settled and established in England, and is not contravened by any decision of the courts in the United States. We are therefore of the opinion that in its charge to the jury the court committed no error, and that the verdict rendered was in accordance with the law and the evidence. Judgment upon the verdict. 18 Dunham v. Baied. DUNHAM V. BAIED. [U. 8. Circuit Court, District of Pennsylvania, 1875. — 1 Law & Eq. Eep. 391.] 4 Removal op Cause to Fedeual Cocet — Act or Maboh 3, 1875. — On a petition fur removal of a cause from a State court, no action of the State court upon either petition or bond is required by the Act of March 3, 1875 ; it is for the United States court to determine the sufficiency of the latter. Motion to dismiss suit for want of jurisdiction. The suit was originally brought in the District Court of Philadelphia County in 1874, and after issue joined was trans- ferred to the court of common pleas. On June 12, 1875, about a year after the commencement of the suit, a petition to remove to the Circuit Court of the United States for the third circuit was presented by the defendants, citizens of Pennsylvania, who alleged that the plaintiffs were citizens of Connecticut. A rule to show cause why the petition should not be granted was discharged. On July 26, 1875, a petition to the Supreme Court was granted for a rule to show cause why a writ of per- emptory mandamus should not issue to the judges of the court of common pleas, directing them to proceed no further with the cause, and to permit it to be removed to the Circuit Court of the United States. This rule was made returnable in January, 1876. In August, 1875, a bond was filed by the defendants in the Common Pleas No. 3, conditioned as required by the act of Congress, supra, but no action was ever taken approving this bond. A certified copy of the record was on September 1st filed in the Circuit Court, whereupon the plaintiff moved to dismiss the suit for want of jurisdiction. McKennan, J. — The petition was filed in time, and no action of the State court was required by the Act of the 3d March, 1875, upon either petition or bond; it was for the United States court to determine the sufficiency of the latter, and upon a care- ful perusal of the Judiciary Act of the 3d March, 1875, the court is of opinion that its provisions were intended to be co-extensive with the powers conferred upon the judiciary in section 2, sub- section 1, article 3, of the Constitution of the United States. The petition for removal was not filed too late in the State court as it was presented in the term succeeding that in which the act was passed. Gibson v. Williams. 19 GIBSON ET AL. V. WILLIAMS, Heie of Williams. [U. S. Circuit Court, District of North Carolina, 1803.— 2 Hayw. 281.] Heeb — Liability fob Debts of Anoestoe. — If an heir pay debts of his ancestor, so much of the land which descended to him, as is equal to such payments, shall be deemed to have been purchased by the heir. The surplus of such land shall be charged to him at its value at the time he sold it ; not what it was worth at the time it descended to him. The heir is not liable to other creditors of the ancestor for interest on such surplus. This was a sdre facias to subject him to the payment of a debt recovered against the executor of Wm. Williams, his ances- tor. He pleaded that he had nothing by devise, and as to what he had by descent, that he had in 1796 mortgaged the lands descended, to certain creditors of his ancestor for eighteen hun- dred dollars, and had paid bond debts besides to the value of the lands. It appeared he had in 1801 sold the equity of redemption, and these questions arose as to the value above the debts paid for his ancestor — first, shall he pay interest for the surplus? and it was held by Maeshall and Potter, judges, that he should not; secondly, as to the value, shall it be esti- mated at its worth at the death of the ancestor, or at the time of the mortgage, or at the time of sale in 1801? Pee Cubiam. — So much of the lands, as the money secured by the mortgage was worth, shall be deemed to have been pur- chased by the heir, by payment of the debts of the ancestor ; the surplus of the land shall be estimated at its worth at the time of sale in 1801. It must not be valued at its worth at the time of descent to the defendant, for the intermediate profits are a rec- ompense for the expenses incident to holding the land, such as taxes and the like. Verdict and judgment accordingly. TEASDALE v. JORDAN, Administeatoe in Right of the Wife of Beanton. [U. S. Circuit Court, District of North Carolina, 1803 2 Hayw. 281.] Pleading — Aemihistbatoe — Failtoie of Assets. — An administrator maybe per- mitted to amend by adding a plea where judgments have been obtained to the amount of the assets in his hands since he first pleaded. 20 Sanders v. Hamilton. This cause being called for trial Woods moved to add a plea and stated that since the defendant pleaded, judgments had been obtained against him to the amount of the assets in his hands. And by Marshall, Chief Justice, to which Potter, Justice, assented ; it is in the discretion of the court to permit the addi- tion of a plea at any time before the trial ; and the court will admit the plea where the justice of the case requires it. And the plea now oifered is such an one as justice requires the admis- sion of. It would be a monstrous position that when judg- ments, after plea, had taken away all the assets, the executor or administrator should, notwithstanding, be compelled to answer the debts first pleaded to. The plea was added. ^ SANDERS V. HAMILTON. [U. S. Circuit Court, District of North Carolina, 1802-3.— 2 Hayw. 226, 282.] Ikdemnitt — Measube of Damages. — A. sold to B. a negro, and agreed that if B. would defend a suit brought against him for the negro, he, A., would make good the damages sustained. Upon the negro's being recovered from B. it was held that he was entitled to recover from A. in damages the value of the negro at the time of the reooveiy, and not the present value. Evidence — Epfeot op Judgment as. — In this case it was held further that the rec- ord of the recovery againt B. by a third person was not evidence against A. of such third person's title ; but was evidence to show the fact of B.'s eviction, and the amount of the damages. [sao] Marshall, Chief Justice. — It is said Hamilton war- ranted the wench from whom descended the slaves afterwards recovered by Streeter from Sanders. The record of that recov- ery is now offered to be read to prove Streeter's title. I am of opinion that as Hamilton Avas no party to that suit, nor privy, it cannot be read to prove Streeter's title; it may, however, to show that Sanders was evicted. And it was accordingly read for that purpose only. [a8»] rpjjg declaration stated that Hamilton's agent had sold a negro for Hamilton to Sanders, who was sued for the increase ; in consideration whereof, and that Sanders had promised he would defend the suit, Hamilton promised that if judgment should be obtained against Sanders, he, Hamilton, would make WiLKINGS V. MUEPHEY. 21 good the damages; that Sanders did defend the suit, and had judgment against him. One question upon the trial was, how the damages should be assessed ; whether according to the pres- ent value of the negroes, or of the value when recovered. Marshall, Chief Justice. — The jury should assess damages according to the value at the time of recovery ; for supposing he was to have the present value, he should bear the loss in ease of the death of the negroes, or other loss since the judgment; and besides, the plaintiff's demand arises immediately upon the recovery, and is not to be influenced by after circumstances. In the progress of this cause it was moved that the record of the recovery between Streeter and Sanders should be read. Per Curiam. — It may be read to prove that there was a recovery and the amount of damages, but not to prove that Streeter had title, because Hamilton was not a party or privy. A juror was withdrawn, and the plaintiff's counsel moved for leave to add a count, which the court said was necessary, to arrive at the merits, but would not admit the amendment except upon the condition of paying all the costs to this time. He accepted of these terms, and made the amendment. "WILKINGS V. MURPHEY, Administrator, etc. [U. S. Circuit Court, District of North Carolina, 1803.— 2 Hayw. 282.] T.TMTTATTnv — New Peomise BY Administatoe — EFFECT OF.— Wlietlier an admis- sion of a debt of the intestate by an administrator, where the intestate has been dead more than three years, will take the case out of the Statute of Limitations, q'iwre ? Assumpsit— JorNTEB of Counts. — A count upon the intestate's promise, and upon that of the administrator to pay the debt of the intestate, may be joined. Plea, the act of limitations; replication, that the intestate assumed, and the evidence offered was that the administrator promised within three years. It was objected that such evidence was not that which the replication offered, and therefore should not be received. To this it was answered that an admission of the debt by the administrator takes the case out of the act; and there is no other way of giving the evidence to the 22 MUBRAY & MUEEAY V. MaESH & MaESH. jury but under a replication such as this. If the replication should state a promise of the administrator, that would be a departure from the declaration, which states a promise of the intestate. And you cannot in the declaration join a count founded on the promise of the administrator with that against the intestate. Such counts cannot be joined, the judgments upon them being different; the plaintiff's counsel cited 4 T. 347; H. Bl. 108, 110; e cawtra, was cited H. Bl. 104. Marshall, Chief Justice. — I doubt whether an admission of the debt by the administrator will take the ease out of the act of limitations; for the admission presupposes a promise made within three years, and how can this be when the intestate has been dead ten years? If it were true that an admission of the debt did take the case out of the act, and it could not be given in evidence at all unless allowed of upon such a replication, I should think that a strong argument for admitting the evidence. But the premises are not correct; it is not true that a count upon the intestate's promise, and upon that of the administrator to pay the debt of the intestate may not be joined ; the contrary is directly proved by the case cited from H. Bl. 104, where the administrator upon an insimul computasset and promise thereon was held liable de bonis-testatoris. The other cases cited, which state that he is bound de bonis propriis, are where neither the consideration nor the promise arose after the death of the intestate, and in the time of the administrator; here the prom- ise was on a consideration arising in the time of the intestate. The cases are reconcilable. The verdict founded on the admission of the evidence was set aside, and leave given to the plaintiff's counsel to add a count, the plaintiff paying costs up to this time. MURRAY & MURRAY v. MARSH & MARSH. [U. S, Circuit Court, District of North Carolina, J803. — 2 Hayw. 290.] EviDEKOE— DisoHABGED Bankbdpt Indohseb Ag WITNESS.— A bankrupt who in- dorsed a note before liis banltruptoy, and who has obtained his certificate, is a good witness for tlie indorsee. MUEEAY & MUEEAY V. MaESH & MaESH. 23 Eeooeds of United States Coubts — What Sotticient as. ^ — A record of the pro- ceedings against a bankrupt, attested by the clerk of the District Court is good evidence, the act of Congress not requiring the certificate of tlie presiding judge in the case of records from United States Courts. Witness — Ihtekest as a DisquaIiIficatios. — If the objection to a witness on account of interest arise from proof made by the objector, the witness cannot discharge himself of the objection by any matter sworn by himself; it must be removed by proof drawn from some other source. Depositioks — Requisites to. — Depositions which do not show, either in the cap- tion or body of them, between what parties they were taken cannot be received. NoHsriT — ScKPBisE AS A Geouhd roit Setting Aside. — If a plaintiff supposing himself ready, press a trial, and it is found on the trial that the testimony he re- lied on cannot be given in evidence as he expected, and he be nonsuited, the allegation of sui'prise shall not prevail to set aside the nonsuit. Pee Cueiam. Maeshall, Chief Justice, and Pottee, Judges. — Loomis and Tillinghast assigned to the plaintiifs the note sued on, which was made by the defendants, and afterwards became bankrupts, and obtained a certificate. And now Loomis is offered as a witness for the plaintiffs. He is a competent wit- ness, for he is by the certificate discharged of all debts provable under the commission, and his indorsement to the plaintiffs ren- dered him liable to them, so as to make their demand provable against him; secondly, the record of the proceedings against them, attested by the clerk of the District Court, without any certificate of the presiding judge, is good evidence; for the act of Congress relates to certificates in case of officers of the several State.s, not to those of the United States ; thirdly, if the objection to a witness arises from proof made by the objector, the witness cannot discharge himself of the objection by any matter sworn by himself; it must be removed by proof drawn from some other source; fourthly, depositions, not specifying the parties between whom they are taken, in the caption, nor naming them as parties in the body of the deposition, cannot be received ; fifthly, if a plaintiff supposing himself ready, press for trial, and it is found on trial that the testimony he relied on cannot be given in evidence as he expected, and he be nonsuited, the alle- gation of surprise shall not prevail to set aside the nonsuit. Note.— Eeoobds or United States Codbts do not require the judges' certificate ; such provisions apply only to certificates of State officers. ( United States v. Wood, 2 Wh. Cr. Cas. 326.) Witness Incompetent from Interest.— Interest being proved the witness cannot be examined at all, nor the objection be removed by his oatli ; the objection must be discharged by other proof. ( The Watchman, 1 Ware, 235, citing case in text.) Depositions, Eequisites or. —See Waskem v. Diamond, Hemp. 701, 24 Hamilton v. Jones. McALISTER et al. v. BARRY et al. [U. S. Circuit Court, District of North Carolina, I80S.— 2 Hayw. 290.] Equity — Feacd as Gbound tob Setting Aside Costvevancb. — Misrepresentations and obtaining a bargain, in cuusequence tliereof, disadvantageouB to the party complaining, is a ground in equity for setting aside a conveyance, although the party imposed on were of sound urderstanding, and had time enough to detect the falsehood before he made the contract. But the grantee shall be allowed for improvements made on the estate. Per Curiam. — Misrepresentations, and obtaining a bargain in consequence thereof, disadvantageous to the party deceived by them, is a ground in equity for setting aside the conveyance, although the party imposed on were of sound understanding, and had time enough to detect the falsehood before he made the contract. In this case the debts due from the testator were rep- resented to his legatees to be very large, and likely to fall upon the estate in remainder devised to them ; and it was concealed from them that a fund was provided by the testator for pay- ment of his debts. The conveyance must be set aside, but the grantee shall be allowed for the improvements made on the estate. Note. — See Boyce v. Grundy, 3 Peters, 210. HAMILTON V. JONES et al. [U. S. Circuit Court, District of North Carolina, 1803. — 2 Hayw. 201.] Scire Facias agaikst Heih — Eights of Innocext Vendee. — A scire facias issued against an heir to have cxucution of tlie lands of the deceased, but before the scire facias issued the heir sold tlie lands, and it was held that the purchaser from the heir miglit, in the name of the heir, be permitted to plead to the scire facias that the executor had assets. This was a scire facias against the heirs and devisees of John Jones, deceased, to have execution against the lands descended or delivered to him, of a judgment obtained against the execu- tors upon a plea of fully administered, found for the executors. After the test of the scire facias, but before the issuing of it was known to Peter Arrington, he purchased a share of the lands from one of the defendants, who being served with the scire facias would not plead thereto. Arrington alleged there were personal assets much more than sufficient to pay the debt. Jones & "Wife v. Walker. 25 MAJiSHALL, Chief Justice. — The seller impliedly gave power to the vendee to plead such pleas in his name as were necessary for the defense of the land ; and should a plea be now put in by Arrington in the name of the vendor, I would not consent to strike it out. Whereupon Arrington put in the plea of personal assets in the hands of the executor, enough to satisfy the judgment. And he put in the name of the vendor in open court. HAMILTON V. SIMMS. [U. S. Circuit Court, District of North Carolina, 1803. — 2 Hayw. 291.] Heik— Liability foe Debts of Ancestoe. —If the heir.iu an action against him on the bond of his ancestor, plead nothing by descent or devise, and it be found against him, judgment shall be de bonis propriis. Pee Curiam. — This is a debt upon bond against the heir of the obligor; and if the plea of nothing by descent or devise be falsified by verdict, the judgment will be de bonis propriis of the heir or devisee. And it will not help the defendant if the jury should find the value of the land on such issue, for still the court would give the judgment against the defendant injure pro- prio for the whole debt. Thereupon this plea was by consent withdrawn, and the lands devolved to the defendant in remain- der set forth in a new plea. JONES & WIFE V. WALKER et al. [TJ. S. Circuit Court, District of North Carolina, 1803.-2 Hayw. 291.] Admiralty Couet— Effect of Appeal feom. — An appeal from an inferior court of admiralty takes the cause from that court, and it can no longer act in such cause ; but it stiU retains power to take care of the goods seized, which are the subject of the suit, and to that end may order a sale of such as are likely to perish. Depositions— To Pbote Acts of Coubt not on Eecoed. — Where the records of an admiralty court appear to have been loosely and carelessly kept on slips of paper, depositions may be read to prove that an order for the sale of property was made in a cause. 26 Jos^ES & "Wife v. "Walkee. Decree in Admiralty — Who Bodnd by. — All persons are bound by a decree in admiralty on the jjoint then in controversy. But those who become interested by a purchase, under orders and proceedings of a court of admiralty are not bound by a decree as to right of property between libelants and claimants. Per Cueiam. — An appeal from an inferior court of admi- ralty takes the cause from that court, and such court can no longer act in it. But it still, retains power to take care of the goods seized, which are the subject of the suit ; and to that end it may order a sale of such goods as are likely to perish. What raised the greatest doubt with us was the uncertainty whether the goods in question were sold by order of the court. The pro- ceedings show that after the appeal the now plaintiif was ordered to pay for salvage one third in value of the property by a certain day, or otherwise an order of sale should issue. Then it appears that the counsel for the claimant procured a postponement of the sale till the 4th of February. It appears also, by a deposition of the marshal, that he sold by order of the court. And it ap- pears by other depositions '*"*' that the papers of this court were kept very loosely, on slips of paper, which were often removed from the oiRce, as applied for by individuals. From all these circumstances we have concluded that the evidence is in favor of the order of sale. Then if the court ordered a sale, those who purchased under it should be protected ; and the defendants are those persons. It was argued that all the world are parties to a prize cause in the admiralty, and are affected by a decree in the appellate court. This should be understood with some restriction. Upon the publication made of the suit depending, in order that all persons interested may come in and defend, all persons are bound by the decree pronounced upon the point then in controversy. But there is no controversy between the libel- ants or claimants, and those who afterwards became interested by a purchase, under orders and proceedings of the court in the cause between the libelant and claimants. Such intervening persons are not bound by a decree made between the libelants and claimants in the appellate court. The defendants are enti- tled to retain the property they have purchased, although the decree of the appellate court declared it to belong to the claimant. V. Lewis's Executors. 27 DUNLOP & CO. V. WEST, The Maeshal. [U. S. Circuit Court, District of North Carolina, 1805. —2 Hayw. 346.] Shemiff — Liability fob Neglect to Sell afteb Execution. — Where a sheriff after seizing property on execution neglects to sell it, he is liahle in damages. Per Curiam. — If the sheriff or marshal seizes property in execution, and neglects to sell it, and is sued for his neglect, the plaintiff shall recover damages to the amount of what the prop- erty would have produced had he sold it. MUTTEE'S EXECUTORS v. HAMILTON. [U. S. Circuit Court, District of North Carolina, 1805.— 2 Hayw. 346.] Injunction to Stat Tbial. — Where a cause is ready for trial, an injunction will not he granted so as to stay the trial. Pee Curiam. — We will not grant an injunction so as to stay trial, or entering up judgment; therefore this cause now ready for trial shall not be postponed, although the bill in equity which has been read for obtaining an injunction may contain matter enough to warrant the granting it. LEWIS'S EXECUTORS. [U. S. Circuit Court, District of North Carolina, 1805. — 2 Hayw. 346.] LiMiTA ticks- Kdnning OF STATUTE DuEDto Wak.— The Statute of Limitations was suspended during the continuance of the war as to alien enemies disqualified to sue in our courts. Pee Curiam. — The Act of 1715, whilst it was unrepealed, was suspended from its usual operation by the acts disqualifying British adherents to sue in our courts. It did not begin to operate '**'^ as to such persons till the end of the war, and then if the seven years were not completed before it was repealed Ijy the act of 1789, no bar could ever be operated under it. Lewis, the testator, died in 1780; between the end of the war and 1789 were not seven years. The demurrer to the plea, stating these facts, and relying upon the Act of. 171 5, must be allowed. Plea held good. 28 Teasdale v. Administeatoes of Beanton. TEASDALE v. THE ADMINISTRATORS OF BRANTON. [U. S. Circuit Court, District of North Carolina, 1805.— 2 Hayw. 377.] Tebdict — Pbesdmptiox or Judgment rnoM. — If upon the plea of md tlel record the record produced shows a verdict, but no judgment entered thereon, the court will presume, according to the loose practice in this State, that there was a judgment entered pursuant to the verdict, and pronounce that there is such a record. rLEADiNG — Administbatoe — Peesonai. LIABILITY. — After a confession of assets a judgment to he levied de bonis testatoris, and a return of tmlla hona, a scire facias to the executor or administrator to subject him de bonis propriis is the proper course, and will issue on suggestion of a devastavit. Pleading — Replication to Plea of Judgment and no Assets. — If an adminis- trator plead judgment and no assets uUra, replication thereto may be either md tiel record, or assets idlra, or per fraudem, or any other fact properly triable by jury. There was a verdict against the administrator upon the plea of fully administered — judgments, etc. Execution issued, and was returned nulla hona. This scire facias issued to show cause why the plaintiff should not have judgment to be levied de bonis propriis. The defendant pleaded nul tiel record, no devastavit returned or found — judgments. Replication to the plea of nul tiel record, and demurrer to the other pleas. The record pro- duced showed the verdict; no judgment had been regularly entered. The scire facias after stating the verdict went on and stated that judgment was rendered accordingly. Pee Cueiam. — We must presume according to the loose practice of this State that there was a judgment entered pursuant to the verdict, and therefore we must say there is such a record. As.to the demurrer, for that no devastavit is returned or found : to be sure by the English practice no scire facias lies against the executor to subject him de bonis propriis, till a devastavit is found upon a scire fieri inquiry, and returned. An action of debt, however, will lie upon suggestion of a devastavit, and the practice in this State has been to issue a scire facias upon s^ch suggestion. And as every defense can be made to the scire facias which could be made .to the action, there can be no good reason for adjudging the scire facias improper. If the scire facias here be considered in lieu of scire fieri inquiry in England, it possesses advantages far above the English mode • for here it is to be executed in court, and under the direction of Anonymous. 29 the court ; whereas the other is in the county before a jury. With respect to the demurrer to the plea of judgments and no assets ultra, that was pleaded in the original suit; but the defendant's counsel say a replication thereto, denying the judg- ments, is nultiel record; and the record shows that the jury said there were no such judgments ; therefore the plea has not been tried, and if so, no judgment can be presumed ; for the court ought not to enter judgment when any one plea remains untried. The answer is, the t*'*^ replication may be either nul tiel record, or assets ultra, or per fraudem, or other matter of fact; and such replication was properly triable by jury; and an irregularity committed by the clerk in entering the verdict will not raise a presumption that the judgment was not given upon the verdict. If there was such a judgment, that estops the defendant from using any plea which he did or might have pleaded prior to that judgment. The demurrer therefore must be allowed. ANONYMOUS. rU. S. Circuit Court, District of North Carolina, 1805.— 2 Hayw. 378.] Intebest — ; Liability of Bail fob. — In a scire /acios against bail, interest is not allowed on the judgment rendered against the principal. Per Ctjeiam. — This is a scire /acios against bail, and the plaintiff's counsel urges that he is entitled, against the bail, to interest upon the judgment against the principal. We are of opinion he is not so entitled ; for the judgment upon the sdre facias is that the plaintiff have execution against the bail of the judgment against the principal. The very same execution therefore issues against the bail as issues against the principal; and consequently damages arising after the judgment cannot be included. (Cases cited, Salk. 208; Strange, 807; 2 Raym. Ld. 1532; Com. Dig., Bail; R. 10.) 30 Geubb's Administeator v. Clayton's Executor. GEUBB'S ADMINISTRATOR v. CLAYTON'S EX- ECUTOR. [U. S. Circuit Court, District of North Carolina, 1805. — 2 Hayw. 378.] Dismissal op Action — Effect of. — A dismissal of a bill, except upon the merits, is no bar to a subsequent bill for the same cause. Limitation to Action by Cbeditoe of Deceased Person. — If there be no adminis- trator of a deceased creditor to bring suit, the Act of 1789 requiring creditors in the State to bring their actions within three years cannot operate as a bar. Pee Curiam. — This cause was instituted formerly in "Wil- mington Superior Court. The Act of 1715 was pleaded, and thereupon a case was made and stated for the court of confer- ence, who decided that the said Act of 1715, chap. 48, § 9, was in force. The plaintiff's counsel then replied to the plea, and after the replication the whole bill was dismissed on their motion ; that is to say, on the motion of the plaintiff's counsel. The suit was then instituted in this court, and the defendant's counsel have pleaded the former dismission in bar. We are of opinion that was not a dismission upon the merits considered of and decided by the court, and therefore that the plea in bar is not good. There is also another plea in bar, namely, the Act of 1789, chap. 23, § 4, by which it appears that this suit was not commenced within three years from the qualification of the executors, though there was an administrator of Grubb in Eng- land. Now as there was no administrator in this country, there was no person in being who could demand the debt, of course no creditor to be barred. The words of the act are: "The creditors of any person deceased, if they reside without the liniits of this State, shall within three years from the qualifica- tion of the executor or administrator, exhibit and make demand, etc., and if any creditor shall hereafter fail to demand and bring suit for the recovery, etc., he shall forever be debarred," etc. The f"'"' plaintiff, therefore, is not within the body of the act. We need not consider whether an exception shall be allowed of, which is not expressly mentioned in the act. Stoyel v. Lai^tience & Adams. 31 THE UNITED STATES v. HOLTSCLAW. [U. S. Circuit Court, District of Nortli Carolina, 1805 2 Hayw. 379.] Expert Evidence — Proof of Haxdwkiting. — The signatures of the president and cashier of a bank may be proved by persons who never saw them write, but whose business has made them conversant with bank bills; and the judgment of persons well acquainted with bank notes is sufBoient to determine whether a note be genuine or forged. Pee Cueiam. — The objection made by Mr. Seawell that no one shall speak as to the handwriting of the president and cashier of the bank, but one who has seen them write, or has been in the habit of receiving letters from them in a course of correspondence, is not a sound one. These signatures are known to the public, and persons who have been in the habit of dis- tinguishing the genuine from the counterfeit signature, and conversant in dealings for bank bills, are as Avell qualified to determine of their genuineness, as persons who in private corres- pondence have received letters from the person whose hand- writing is in question. Moreover, it is determined by the skillful whether a bill be genuine, not only by the signature, but also by the face of the bill, and by the exact conformity of the devices which are used for the detection of counterfeits, to those in true bills. We are of opinion that the judgment of persons well acquainted with bank paper is sufficient evidence to deter- mine whether the one in question be genuine or otherwise. ISAAC STOYEL v. JOHN LAWEENCE and TIFFANY ADAMS. [U. S. Circuit Court, District of Connecticut, 1807. — 3 Day 1.] Pbocess — Sebvice afteb Eetoen Dav. — An execution after the expiration of the time within which it is made returnable, is of no force, and an arrest under it is a trespass. Present, The Hon. Pieepont Edwaeds. This was an action of trespass for false imprisonment. Plea, not guilty. 32 Stoybl v. Lawrence & Adams. On the trial it appeared that one Job Smith had obtained a judgment, before the Windham County court, against the plaintiff, and had taken out an execution, dated the 13th of May, 1804, returnable according to law/ On the 25th of August, 1804, Lawrence was deputed by the sheriff of Windham County to execute it. On the 31st of July, 1805, Lawrence, with the assistance of Adams, arrested the plaintiff, by virtue of that execution, and kept him in confinement one or two days, when he paid the execution and was released. The only question f*' in the case was whether the execution gave the officer any authority to make the arrest. IngersoU, for the plaintiff, contended that the time within which the execution was returnable having expired, it became a dead letter, and that the arrast under it was a trespass. Daggett, for the defendants, contended that the time limited for the return of an execution is only for the benefit of the creditor. When that time is expired the officer becomes liable to him. But with regard to the debtor it makes no difference. His indebtedness is the same till the execution is satisfied. He may be taken at any time. The right of the creditor to renew his execution at pleasure shows that the limitation is in his favor. Further, an officer may justify under a process which is either irregular or erroneous, provided it be not absolutely void. In the following cases it was holden that though the process was irregular, yet it was sufficient for the sheriff to make the arrest, and therefore he was liable for an escape : Howard v. Pitt, 1 Salk. 261; Shirley v. Wright, 1 Salk. 273; 2 Salk. 700; 2 Ld. E,aym. 775; OgneU v. Paston, Cro. Eliz. 165; and Bushels Case, Cro. Eliz. 188. A capias ad satisfaciendum, made return- able at a day which falls out of the term is not void, but only liable to be set aside, upon motion, for irregularity. {Campbell V. Camming et a.l. 2 Burr. 1187.) In this State an execution after the return day is not more irregular than the executions in the cases cited. The reason why, in England, an execution may ' By statute " all writs of execution shall be made returnable within sixty days, or to the next court (in case sixty days are remaining between the date of the execu- tion and the next court) , at the election of him that prays it out," (1 Stat. Con. tit. 63, 0, 1, i 10.) CODWISE ET AL. V. GlEASON ET XL. 33 not issue after the expiration of a year and a day, without a scire facias, is that the court concludes, prima facie, that within that time the judgment is satisfied. Here, a scire facias to obtain execution is unknown; but in lieu of it we take out an alias, and if the judgment has been satisfied the debtor is entitled to an audita querela. IngersoU, in reply, said there was a material difierence '"' be- tween an execution in England after a year and a day, and an execution here which has run out. In the former case the ofiicer does not know but that the execution had been stayed by a Avrit of error, in which case it would be good ; it is good upon the face of it; and he ought not to be hurt for executing it. But in the latter case the execution is bad upon the face of it. He knows that it can give him no authority. Edwaeds, J., after remarking to the jury that the case depended upon a mere question of law, directed them to find for the plaintiif. The execution, he said, gave the officer no authority whatever, and consequently formed no defense. A verdict was found for the plaintiff accordingly. GEORGE CODWISE, Jr., PETER LUDLOW and JAMES CODWISE v. CHAUNCEY GLEASON, ELIJAH (iOWLES, JONATHAN COWLES, GAD COWLES, SETH COWLES, and MARTIN COWLES. [U. S. Circuit Court, District of Connecticut, 1807.— 3 Day, 3.] JxjEisDioTioN — Citizenship EasENHAL to. — An action in fovor of the indorsee of a promissory note, a citizen of one State, against the indorsor, a citizen of a different State, may he brought before the Circuit Court of the United States though the maker and payee of such note are citizens of the same State. In the writ the plaintiffs were described as being " all of the city and county of New York, in the State of New York, and citizens of said State of New York, late (viz., on or about the 1st of March, 1796, and for a long time before and since) mer- chants in company"; and the defendants as being "all citizens of the State of Connecticut, resident in said State," and as being Bbun. 0. c — 3. 34 CODWISE ET AL. V. GlEASON ET AL. "lately, viz., on or about the 1st day of March, 1796, and for a long time before and since, merchants in company," etc. The declaration alleged "that on or about said 1st day of March, 1796, the defendants possessed a certain paper writing, purporting to be a promissory note, payable to them, the defend- ants, by one Erastus Gay, in the words and figures following, viz: — '*^ "On the 1st day of October next I promise to pay Gleason & Cowles, or order, at the Hartford bank, nine hundred and forty-five dollars, value received, in the city of said Hart- ford, this 14th day of November, 1795. "$945. Eeastus Gay." "And afterwards, viz., on or about the said 1st day of March, 1796, the defendants (being so possessed of such paper writing, and the said sum of nine hundred and forty-five dollars being unpaid), did by their indorsement, by them made on said paper writing, by their said firm of Gleason & Cowles, order and appoint the contents of the said* paper writing (being the said sum of nine hundred and forty-five dollars), to be paid to the plaintiffs, for value received, according to the tenor of said paper writing, by their indorsement thereon signed with their said names." The plaintiffs then averred "that on the 1st day of October, 1796, and also on the 3rd day of the same month of October, at the uttermost convenient time of said days, at said Hartford, they showed and exhibited said paper writing and indorsement at said Hartford bank (being the place where said note was payable as aforesaid), and then and there, on said both days, de- manded payment of the aforesaid sum of nine hundred and forty-five dollars, according to the tenor of said paper writing, and the indorsement thereon; but said Erastus Gay neglected to pay the same ; and neither the same nor any part thereof hath ever been in any way paid, and said Erastus hath ever refused and still refuses to pay the same. Whereupon the plaintifife, on the 4th day of October, 1796, gave notice of the premises to the defendants, and required of them payment of the said sum of nine hundred and forty-five dollars, mentioned in said paper writing; and afterwards, viz., on the 31st day of October, 1796, the plaintiffs caused an action to f*^ be commenced on said CoDwiSE ET Ai.. V. Gleason et al. 35 papei- writing, in the name of the said Chauncey, Elijah, Jona- than, Gad, Seth, and Martin, against the said Erastus Gay, by writ of that date returnable to the city court, holden within and for the city of Hartford, in the county of Hartford, on the second Tuesday of December, 1796 ; and said writ was duly served and returned to said city court. And in the declaration in said action it was and is alleged that the said paper writing was a promissory note, under the hand of the said Erastus, by him well executed, within the limits of said city of Hartford, and that thereby the said Erastus promised the said Chauncey, Elijah, Jonathan, Gad, Seth, and Martin, by their said name of Gleason & Cowles, for value received, to pay to them at the said Hartford bank (which then was and is in said city of Hart- ford), the said sura of nine hundred and forty-five dollars, on the 1st day of October next after the date of said writing; and that the said Erastus had never in any way performed the said promise. And such proceedings were had in the said action, that the same, by divers legal removes, came regularly before the Superior Court holden at Hartford, within and for the county of Hartford, on the second Tuesday of February, 1797, when and where said parties to said action appeared therein before said court, and the said Erastus pleaded thereto, that he did not assume and promise in manner and form, as in said declaration was alleged ; on which plea issue was then and there joined, and said action, by legal continuances, came before the Superior Court holden at Hartford, on the third Tuesday of Feb- ruary, 1803, when and where the said parties to said action appeared therein before said court, and with their evidence and exhibits and by their counsel, were fully heard before said court and the jury attending said court, on the issue joined in said action, which issue being then and there by said court committed to said jury, said jury found a verdict thereon that the said Erastus did not assume and promise, in manner and form, as in said declaration was t*^ alleged, which verdict was then and there returned to and accepted by said court ; and thereupon it was, by said court, at their said term, considered and adjudged that the said Erastus did not assume and promise, in manner and form as the plaintiifs had alleged, and that he should recover of the said Chauncey, Elijah, Jonathan, Gad, Seth, and 36 CODWISE ET AT. V. GlEASON ET AL. Martin his costs of said suit, allowed and taxed at sixty-two dollars and ten cents, as by the files and records of said court, ready in court to be produced, appears ; and in prosecuting said suit, the said Codwise, Ludlow & Co. incurred great charges and expenses, amounting to the sum of two hundred dollars, of which the defendants aforesaid, viz., on the 1st day of March, 1803, had notice." The plaintiffs further stated "that the said Erastus Gay never did, in and by the aforesaid paper writing (purporting to be a promissory note as aforesaid), assume and promise, for value received, to pay to them, the said Chauncey, Elijah, Jonathan, Gad, Seth, and Martin, the sum of nine hundred and forty-five dollars therein mentioned, nor any part thereof; and said paper writing never was the promissory note of said Erastus. But the plaintiffs received said paper writing as indorsees thereof as aforesaid ; and paid therefor the full amount of the said sum of nine hundred and forty-five dollars as aforesaid, believing it to have been the promissory note of him the said Erastus, and believing that the said Erastus, in and by said paper writing, assumed and promised, for value received, to pay to the said Chauncey, Elijah, Jonathan, Gad, Seth, and Martin, the said sum of nine hundred and forty-five dollars, according to the tenor of said paper writing, and the defendants indorsed and assigned the same as aforesaid, as and for a good and valid promissory note, payable to them by the said Erastus according to the tenor thereof. t'''^ "And by means of the premises the defendants became liable to pay to the plaintiffs the aforesaid sum of nine, hundred and forty-five dollars (specified in said paper writing), and the lawful interest thereon from and after the said 1st day of Octo- ber, 1796, and also the aforesaid charges and expense of prose- cuting the aforesaid suit against the said Erastus Gay; and being so liable the defendants, in consideration thereof, after- wards, viz., on or about the 1st day of March, 1803, at said Hartford, upon themselves assumed, and to the plaintiffs prom- ised to pay to them the said sum of nine hundred and forty-five dollars, and said interest thereon, and the aforesaid charges and expense, within a reasonable time afterwards, when they should be thereto required. But the defendants, and each of them, CODWISE ET AL. V. GlEASON ET AL. 37 their assumption and promise aforesaid not regarding, have never paid to the plaintiffs or either of them the aforesaid sum of nine hundred and forty-five dollars, and the interest thereon, and said charges and expense, or any part thereof, though they have been often by the plaintiifs thereto required, and though a reasonable time for that purpose hath long since elapsed." The damages were laid at three thousand dollars. The defendants pleaded in abatement that Erastus Gay, named in the plaintiff's declaration, who made and executed the note on which, etc., was at the time he executed said note, and ever since has been, an inhabitant of Farmington, in the district of Connecticut, and the note was executed at Hartford in said district; and that said Gleason & Cowles, the defendants to whom said note was made payable, were at the time of making said note, and ever since have been, inhabitants of said district of Connecticut and there residing ; and at the time of indorsing their names on the back of said note, the defendants were, and ever since have been, inhabitants of said district of Connecticut, and there residing ; and that the defendants indorsed their names on said note at ^^^ said Hartford, and there delivered said note to Peleg Sanford, then of said Hartford, since deceased, and thereby assigned said note to said Sanford. The plea concluded by alleging that this court had not jurisdiction of this action, and praying judgment that it should be dismissed. To this plea there was a demurrer and joinder in de- murrer. Goodrich and Griswold, in support of the plea, relied upon the following clause of the 11th section of the act to establish the judicial courts of the United States : " Nor shall any district or circuit court have cognizance of any suit to recover the con- tents of any promissory note, or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange." (Stats. U. S. V. 1, pp. 55, 66 ; Swift's ed.) It appears from the declaration that the note which is the foundation of this suit was made in Connecticut, and that the maker and payees belonged to Con- necticut. If this note had not been assigned, it is clear that no suit could have been brought to recover its contents before this 38 CODWISB ET AL. V. GLEASON ET AL. court. The restrictive clause of the act, therefore, is applicable to this case, and is decisive against the jurisdiction. Daggett and JE. Perkins, contra. The plaintiffs in this case are citizens of 'New York, the defendants of Connecticut. This court has jurisdiction unless the defendants can bring their case within the restrictive clause of the 11th section of the judiciary act. The limitation of the general jurisdiction of the court is to be construed strictly. But that clause is not applicable, either in its letter or spirit, to this case. The suit ^"^ is not brought to recover the contents of any promissory note or other chose in action. In the first place the declaration states expressly that the writing in question never was the promissory note of Erastus Gay. It, indeed, purported to be, but in truth was not. Edwakds, J. — The consideration that the note is stated not to have been a valid one, will not have much weight with the court. In the next place, if the note had been genuine and valid, still this suit might be sustained in this court.. The defendants, by the assignment, entered into a new contract with the plaint- iffs for the breach of which the present action is brought, not for the non-payment of the note by the maker. The contract between the maker and payee, and that betw jn the indorsor and indorsee, are distinct and essentially different, To the latter the restrictive clause of the act does not extend. The reason of the law is that where a man enters into a con- tract of which this court has not jurisdiction, he shall not after- wards be subjected to its jurisdiction on account of such contract, by the acts of other persons. But this reason is applicable only to the case of che maker. But it may be said that if the plaintiffs recover in this case the rule of damages will be the contents of the note. Admitting this, it does not follow that this case is within the restrictive clause. It is surely too much to say that the clause extends to every case where the plaintiff, if he prevails, will recover the same amount with the contents of the note. Suppose a note executed by A. to B., both citizens of Connecticut. C, a citi- CODWISE ET AL. V. GlEASON ET AL. 39 zen of Massachusetts, enters into a contract with A. by the terms f**^ of which he is to pay and take up A.'s note. It will not be contended that the clause in question would deprive the Circuit Court of jurisdiction over this contract; and yet if C. were to sue upon it and recover, the rule of damages would be the contents of A.'s note. Or, suppose C. in the case put should tortiously take the note from B., and B. should bring trover for it and recover; the rule of damages would be the amount of the note, but might not the Circuit Court have jurisdiction? But we deny that the rule of damages in the case before the court will be the contents of the note merely. The rule of damages will be the damages sustained by the breach of the contract implied by the indorsement, which may include the expenses of protest, of a suit against the maker, etc. At any rate the damages are not necessarily the precise amount of the note, which is sufficient for our purpose. 2. The averments in the plea are insufficient. It is not alleged that the original parties to the note were not citizens of different States. If they were citizens of different States, then a suit might have been prosecuted in this court before any assign- ment was made, and of course the statute has no bearing upon this case. Again, the plea is defective, as it does not show what court has jurisdiction. Edwards, J. — I have no doubt as to the jurisdiction of the court in this case ; but I am not prepared to give a formal opin- ion on a point of this importance, at this time. My opinion will be that the plea in abatement is insufficient. It appears to me that the argument in favor of the jurisdiction is irresistible. On a subsequent day his honor delivered an elaborate opinion on this point, but the reporter heard only '**' a part of it, and was not at that time in a situation which admitted of his taking any minutes. The case was afterwards continued to the next term for trial on the merits. Note. Jiibisdiction — Citizenship Essential to. — It ia settled by the declsiona that in an action by an indorsee against an indorsoi of a note or bill, if they are citizens of different States, this citizenship is sufficient to give jurisdiction though the maker and payee be citizens of the same State. (See 6'o^ee t. Planter^ Bk. of 40 CODWISE ET AL. V. GlEASON ET AL. Term. 13 How. 183 j Hvans v. Gee, 11 Peters, 80 j Young v. Bryan, 6 Wheat. 146 ; Mottan T, Torrance, 9 Wheat. 537; Campbell v. Jordan, Hemp. 534; tiaylor v. Johnson, 5 McLean, 448; Dennison y. Limed, 6 McLean, 496.) GEOEGE CODWISE, Jk., PETER LUDLOW, and JAMES CODWISE v. CHAUNCEY GLEASON, ELI- JAH COWLES, JONATHAN COWLES, GAD COWLES, SETH COWLES, and MARTIN COWLES. [U. S. Circuit Court, District of Connecticut, 1808.— 3 Day, 12.] PbomissobS Note— LlABiLiTr or ImioBSOii. — Though a note is void as against the maker, it may be good against an indorsor, in favor of an indorsee, who took it relying upon tlie indorsement. The contract made by indorsement extends io all future indorsees, even where notes are not negotiable. Present, the Hon. Beockholst Livingston and Pieepont Edwaeds. This case was argued on a plea in abatement at the last term ; a respondeas ouster was ordered ; and the case continued to this term for trial on the merits. The declaration having been already stated at length, it may be sufficient to refer to that statement (ante, p. 3), without repeating it here; but the case will be better understood by a statement of the following facts, in addition to those which appear on the declaration : — Erastus Gay made a contract for a title to some Georgia lands with Peleg Sanford and another person, according to the terms of which he was obliged to give them a note for nine hundred and forty-iive dollars, f*"^ payable at the Hartford bank, with a good indorsor. To comply with this contract Gay induced Gleason & Cowles to indorse the note in 'question, and after it was so indorsed he delivered it to Sanford. It was then sold to Timothy Burr, but without any indorsement; and by him it was again sold to Codwise, Ludlow & Co. for goods, and with- out any indorsement by Burr. It was afterwards indorsed by Codwise, Ludlow & Co. and sent to John Dodd of Hartford for collection, and by him indorsed and lodged in the bank. As it was not paid when it became due, demand was made of Burr as well as of Gay, and Gleason «S; Cowles. After the note was CODWISE BT AL. V. GlEASON ET AL. 41 taken from the bank, the names of Codwise, Ludlow & Co. were erased, they having been entered,merely for the purpose of collection. The suit in the name of Gleason & Cowles against Gay failed on the ground of fraud, and consequently of want of consideration in the contract to comply with which the note was given. An action was then brought against Burr by Codwise, Ludlow & Co., in Avhich they claimed to recover of him as hav- ing sold, and thus become responsible for the note. His defense was that though he sold, he did not warrant the note, but that it was received by the plaintiffs entirely at their own risk. That suit also failed, and the present action was immediately com- menced. On the trial, after all the material facts alleged had been either admitted or proved, the counsel for the defendants oifered evidence to prove, first, that this indorsement was not intended to give a general credit to the note; and aecondly, that the plaintiffs were, in reality, remote indorsees. Daggett, for the plaintiffs, objected to the testimony. This indorsement by Gleason & Cowles needs no explanation. It admits of none. No evidence as to the intention ^'^*^ of the parties can alter the legal nature of the instrument. This note appears to have been sent into the world under the sanction of the names of Gleason & Cowles, So merchants would univer- sally understand it, and so courts will consider it. LmNGSTON, J. — Evidence that Gleason & CoAvles indorsed the note and gave it back to Gay, in order to give him credit ; and that they never negotiated it may have some important bearing on the case. Perhaps the same fraud which procured the note to be given was used in obtaining the indorsement; and if so it may be properly laid before the jury. The evidence may, therefore, be heard. In the argument of the case, Ingersoll and Oriswold, for the defendants, contended: — 1. The plaintiffs cannot recover because the note has been decided by a competent tribunal to be void. The indorsement mtist of course be void. The indorsement is in the nature of 42 CODWISE ET AL. V. GlEASOKT ET AL. security, and where notes are not negotiable it can be viewed in no other light. It is th^ same thing, then, as if Gleason & Cowles had signed this note with Gay, as his sureties. And it must be acknowledged that a surety cannot be holden when the obligation of his principal is void. 2. From the testimony which has. been let in, it appears that the plaintiffs are remote indorsees, and the defendants never indorsed the note to them. There is no privity of contract between the plaintiffs and defendants. To decide that upon these facts the defendants are liable to the plaintiffs would be giving to an indorsement all the efficacy which it has where notes are negotiable. On this principle, an indorsor can alter the nature of an instrument, ^^^^ and make that negotiable which was not so in its creation, which is absurd. Daggdt, for the plaintiffs. 1. The contract of the indorsor is, in every case, that the sum contained in the note shall be paid when due, and for his pay- ment he pledges himself to be responsible. It makes no differ- ence whether the note is not paid by the maker because he is unable, or because the instrument is void, or on account of any other impediment in the way of collection. Let the cause of failure of payment be what it may, the indorsor is liable. If the note is forged the indorsor is still holden ; and in a suit against an indorsor it is not necessary to prove the handwriting of the maker. 2. Nor is the contract made with the next indorsee only. It extends to all future indorsees. An indorsement in blank is a letter of credit to the whole world ; and every man who trusts to it can recover of the indorsor. This principle is clearly illus- trated and supported by the case of Bussel v. Langstaffe, Doug. 614, where Lord Mansfield declared that the defendant, by indorsing blank copper-plate checks, gave a letter of credit for an indefinite sum ; and that it did not lie in his mouth to say the indorsements were not regular. Indeed, this is a direct authority to both points, for it not only decides the general lia- bility of indorsors on account of having given their names to the world, but declares further that the indorsor is holden though the paper indorsed was, at the time, a mere nullity. Edwards v. Nichols. 43 Livingston, J., directed the jury that as to the first point, though he had had doubts, they were almost entirely removed. If a note were forged, the indorsement would bind the man who made it. f**' The second point he declared not to have altered the decision of the case from what it would have been, if the plaint- il& were the only indorsees, and the defendants the only persons through whose hands the note had passed. Gleason & Cowles gave the weight of their names to the world, and must be responsible to every man who trusts to the note relying on their credit, as every subsequent indorsee must be supposed to do, from the nature of the transaction. The case is, therefore, clearly with the plaintiffs on both points. A verdict was accordingly found for plaintiffs to recover $1,599.20 damages. HON. PIEEPONT EDWARDS v. JOHN NICHOLS. [U. S. Circuit Court, District of Connecticut, 1808.— 3 Day, 16.] Book Accotott — Assumpsit fob — Parties as Witnesses in. — Assumpsit will lie for articles or services commonly charged on book. The declaration may be for labor and services performed generally. In such action the parties cannot be permitted to testify. Citizenship — How A.lleged. — If a party is described as a citizen of the district of New York, he is sufficiently described as a citizen of the State of New York. This was an action of indebitatus assumpsit. In the writ the plaintiff was described as " of the city, county, and district of New York, a citizen of said district," and the defendant as " of Waterbury, in the county of New Haven, and district of Connecticut, a citizen of said district." The first count of the declaration alleged "that on the 30th day of June last past, at New Haven, in said district of Con- necticut, he the defendant was indebted to the plaintiff in the sum of seven hundred dollars, for divers labors and services before that time done and performed by the plaintiff for the defendant at his, the defendant's, special instance and request; and the defendant, at said New Haven, immediately afterwards, viz., on the 30th day of June last past, in consideration of 44 Edwaeds v. Nichols. f ' being indebted to tlie plaintiff as aforesaid, assumed upon himself, and to the plaintiff faithfully promised to pay to him the aforesaid sum of seven hundred dollars^ in a reasonable time thereafter, when thereto requested by the plaintiff." The second count stated a quantum meruit for seven hundred dollars, for labors done and services performed. The third count claimed five hundred dollars for so much money laid out, disbursed, and expended by the plaintiff for the use of the defendant, and at the defendant's special instance and request. The fourth count was as follows : "Also for that at New Haven aforesaid, on the 30th day of June last past, in consideration that the plaintiff had before that time, at the special instance and request of the defendant, done and performed divers labors and services for one Samuel C. Alcox of Wolcott, in the county of New Haven, he, the defendant, at said New Haven, on or about said 30th day of June, 1805, assumed upon himself and to the plaintiff faithfully promised to pay him therefor, as much as said services rendered and performed as aforesaid were reason- ably worth ; and the plaintiff further avers that said services so rendered and performed were reasonably worth the sum of sixty dollars." The fifth count alleged that the defendant was indebted to the plaintiff in the sum of fifty dollars, for services before that time rendered to Alcox by the plaintiff, at the special instance and request of the defendant, and that being so indebted he promised etc. The sixth count was for fifty dollars in money, laid out by the plaintiff for the use of Alcox, at the special instance and request of the defendant. f**^ The common averments were inserted at the close. Plea, non assumpsit. When this case came on for trial the counsal for the defendant moved for a continuance of the case until the next term of the court, on account of the sickness of the defendant, who was then in the State of New York, and unable, as was stated, to attend the trial. Livingston, J.— You must be sensible that the sickness of _ Edwards v. Nichols. 45 a party, or his inability to attend the trial, is no legal cause for a continuance. IngersoU and Staples, for the defendant, stated that Nichols was a competent witness in this case ; that they wanted his tes- timony, and on that ground moved for a continuance. They insisted that though this action is assumpsit in form, it still comes within the meaning of our statute, which permits the party to testify in book-debt actions. The words of the statute are " that in all actions on book debts that shall be tried by a jury, the jury shall well weigh and consider the credit of the parties or any other persons interested," etc. (1 Stat. Conn. tit. 25, c. 1, § 2.) This action is brought for charges made on book, and ordinarily sued for in the form of action described in our statutes as book-debt actions ; but whether sued for in this form or not, the same rule of evidence must be adhered to in order to satisfy the meaning of the statute. They also urged that the Statute of Limitations of book debts had been construed to extend to actions of assumpsit. But the words of this statute, "that all such book debts as are now out^ standing," etc., can with no more propriety be extended to such actions than the words of the other statute. t**^ Daggett and Bristol, for the plaintiff. The privilege allowed by our statute that the parties should be permitted to testify in their own case is mutual ; and it is confined to the action denominated book debt. The practice adopted in our State courts has never extended the privilege to any other form of action. It was a fundamental principle of common law that no man should testify in his own case ; and the statute which gives the privilege in question, being in derogation of the common law, is not to be extended by con- struction. This is true in all cases, but ought to be inviolably adhered to when the principle of common law invaded by a statute is a rule of evidence so important as the one under consideration. It has been said that the Statute of Limitations regarding book debts is applicable to actions of assumpsit, and has been so applied. This is true where the action of assumpsit is brought 43 Edwaeds v. Nichols.. to recover the value of articles or services commonly charged on book. But this depends on the phraseology of the Statute of Limitations which declares, with certain exceptions, "that all book debts shall not be recoverable after six years." (1 Stat. Conn. tit. 25, c. 2.) The limitation, therefore, applies to the subject-matter of this action, and the statute substantially declares that whatever may be the remedy or the form of action adopted for the purpose, still no book debt shall be recovered after six years. But the statute authorizing courts to receive the testimony of the party himself, gives the privilege only in the particular form of action which we call book debt. Livingston, J. — If Nichols were present, he could not tes- tify in this case under your statute ; there is no reason, therefore, for the continuance of the case. r»o] ipjjg jjg^^ jjjjy ^jjg gg^gg game on for trial. As it was con- ceded by the counsel for the plaintiff that the demand in question was for services performed as an attorney and counsellor at law, and for disbursements in several cases in which he had been thus employed, IngersoU and Staples urged an objection to the admission of any testimony to support the declaration, for the following reasons : — 1. An action of assumpsit will not lie to recover the value of such articles delivered or such services performed as are the proper subject of charge on book. The remedy in such cases is by action of book debt, and by that only. This remedy has grown up with the State of Connecticut, and has had an import- ant influence upon our modes and habits of business. All persons taking it for an established position that they can support their charges by their own testimony, have become negligent of procuring and preserving other evidence. It must be very pernicious to this community, therefore, that this ancient privilege and one so much relied upon should be taken away at the choice of one party, who must be supposed to know his advantages, and that the other party should be obliged to defend himself, deprived of the accustomed mode of substantiating his charges and payments. It is, in short, no less than taking from parties that testimony to which, from long and perhaps universal usage, they think themselves entitled. Edwards v. Nichols. 47 Besides, in our action of book debt the defendant has the opportunity of setting off all his charges against those of the plaintiff, and if they exceed the plaintiff's, of recovering his bal- ance and costs. (1 Stat. Conn. tit. 25, c. 1, § 3.) This is cer- tainly a very beneficial provision, both as it prevents litigation and expense, and as it is a security that one party shall not gain an undue advantage over the other. Such a provision ought not to be defeated, nor are the forms of action by which it is secured to be rashly invaded. [ai] 2_ The declaration is too general. It ought to have stated, particularly, the labor done and services performed in order that the defendant may come prepared to repel the claim. Here it is not even hinted in what capacity or character the plaintiff acted while performing these services, nor is the nature of the services at all mentioned. Our courts have decided that indebitatus assumpsit shall not be supported by a general promise to pay the plaintiff all the defendant owed him. The promise must have a particular reference to the very debt sued for, and must not be capable of an application to other debts. The plaintiff does not offer to prove any promise to pay the particu- lar items, but only a general acknowledgment of the debt. Indeed, if he did offer particular testimony, it could not be gone into on the general counts. 3. The counts which declare upon the services performed for Alcox, and the moneys paid to him, are within the statute of frauds and perjuries, as the promise of the defendant is an engagement to pay the debt of another. It is admitted that in one of these counts the allegations are made with sufficient particularity. Daggett and Bristol, for the plaintiff. 1. On the same principles that the oath of the party has not been allowed in this case, the action of book debt itself, being an anomaly in our law, ought not to be extended by construction ; much less ought it to be so construed as to defeat the remedies afforded by the common law. The statute respecting book debts has not prohibited a resort to the common law remedy in all proper cases, and consequently all other modes of redress remain 48 Edwards v. Nichols. the same as they were before that statute. A statute giving a new remedy does not take away a remedy furnished by the common law, unless it be expressly taken away ; but in all such cases the statute and common f**^ law remedies are concurrent. Thus, it was never imagined that the statute giving threefold damages for cutting trees on another's land (1 Stat. Conn. tit. 165, c. 1, § 1) had abolished the remedy by trespass at the com- mon law. But the statute regulating book debts does not profess to give the form of action ; it merely regulates the action by allowing the parties to testify, and enabling the defendant to recover if the balance is in his favor. It is probable the form of book debt had been adopted in practice long before the statute was made. Nor are we to forget that this action is in derogation of the common law, and a direct invasion of the established rules of evidence. As to the objection that the defendant is deprived of his oath, it may be answered that the plaintiff is deprived of the same advantage, and it is as likely to be an inconvenience to him as to the other party ; and as he pursues a common law remedy, he must establish his claim by common law proof. This objection, in a more specious form, was originally made to all actions of assumpsit where debt on simple contract might be brought at the common law. The reason then assigned was that this action took away the defendant's wager of law, and thus bereaved him of the benefit which the law gave liim. (4 Co. Eep. 92.) Yet the court held in Slade's case that assumpsit was a proper remedy though it deprived the defendant of his wager of law. 2. It was unnecessary to state with more particularity the services performed. If the plaintiff is able to show that any services which could come under these allegations have been performed by him for the defendant, he, on the t**] other hand, must come prepared to show that these services have been paid for or discharged, or that some good and legal reason exists why they should not be remunerated. If anything further than this general averment is required, how particular mtist the plaintifi. be? Must he show the days, houjrs, and minutes he has been employed, or must he state the number of cases in which he was Edwards v. Nichols. 49 retained, the several terms which intervened, the consultations had or arguments made? This would swell the record to an insupportable and endless prolixity. Neither precedent nor authority can be cited in support of the doctrine advanced. No cases in this State can be cited where great particularity has been held to be necessary. It is the constant course of practice here to make general averments as in the present case. In England, and by the Supreme Court of errors in this State, actions precisely like this have been held maintainable- It may be well to observe here, since the action of book debt is so zealously advocated by the counsel for the defendant, that no form of action used in our courts of justice is more general than that of book debt; nor is it possible to conceive of any form more general. It simply demands that the defend- ant render to the plaintiff such a sum, which he owes by book. But lest any inconvenience should result to the defendant, or he should be taken by surprise, the court may order the plaintiff to furnish him seasonably with oyer of his account, which must be a more accurate specification of his demand than any declara- tion can be supposed to afford. This has been voluntarily done in the present case for more than eighteen months. 3. The counts applicable to the services rendered, and the money paid to Alcox, allege that they were performed at the special instance and request of the defendant, and we offer to prove that request, and the services performed '**' in consequence of it. The undertaking of Nichols, then, is an original under- taking to pay for those services, and not collateral to any contract or obligation of Alcox. The counsel for the defendant, in reply, commented upon the words of the statute, " in all acts on book debts," which seemed to imply that different actions might be brought for articles and services commonly charged on book. Since, however, this action has been decided by the court not to be an " action on book," by the exclusion of the defendant's oath, no evidence ought to be admitted to substantiate a book-debt claim. To this it was answered by the counsel for the plaintiff that the words " actions on book debts," had been always understood to mean the same as "actions o/book debts." Bbtoi. c. C— 4. 50 Edwaeds v. Nichols. Livingston, J., after requesting to hear the statute read, observed : . From the reading of the statute I am convinced that this action is well brought, and that assumpsit and the book- debt action are concurrent remedies. As to the legality of permitting parties to testify in the action of assumpsit, on the ground that it is an action on book, I have doubts with respect to the correctness of my decision yesterday. I am far from certain that the party ought to be excluded, and I hope that no inconvenience wUl result to the defendant in this case from the decision. I think the objection that the declaration is too general can- not prevail. In the English practice and our own, declarations as indefinite as this may be found, though it is usual to declare for services rendered as an attorney, physician, mechanic, etc. Very little particularity is demanded in assumpsit, except in the count for money had '**' and received, where more exactness and precision is required. This is open for discussion, however, in a future stage of the case. The evidence was admitted, and the jury found a verdict for the plaintiff for the amount of his account. Upon a motion in arrest. Iingeraoll and Staples took two exceptions. 1. The declaration is too general. The same arguments were relied on to support this position that have been stated in the objection to the testimony. 2. It does not appear by the record that the plaintiff is a citizen of the State of New York, or the defendant a citizen of the State of Connecticut. That this should appear is absolutely necessary; and this court has, without motion, ordered a case to be erased from the docket on discovering that the parties did not appear to be citizens of different States. Daggett and Bristol, contra. The first exception comes too late after verdict, when every promise alleged in the declaration is taken to be an express promise, or even a promise in writing, if necessary to sustain the verdict. Hartshoene v. Sanfoed. 51 But an allegation of work and labor generally, without set- ting out what sort of labor, or in what manner it was performed, is good and agreeable to numerous precedents in the books of forms. Some doubt was formerly entertained on this point, but the question has been long since put at rest. (Carthew, 276 ; 1 Vent. 44; Sid. 425.) The best pleaders have latterly adopted '*®^ this mode, as the plaintiiF would be restricted in his proof if the declaration were more special. 2. The plaintiff and defendant are well described as citizens of the States of New York and Connecticut. The plaintiff is alleged to be a citizen of the district of New York, and the defendant a citizen of the district of Connecticut. By the act of Congress to establish the judicial courts of the United States, vol. 1 U. S. Laws, 48, the United States are divided into dis- tricts ; and the States of New York and Connecticut are respect- ively constituted districts of the same name. The same terri- torial limits, as well as the same body politic are, therefore, described by the terms district of Connecticut, as if the word "State" had been used. The district and State of Connecticut are synonymous and co-extensive, and the parties are described as citizens of the States of New York and Connecticut, by language perfectly definite and certain. LiyiNGSTON, J., overruled the motion in arrest, and ordered judgment to be entered. EHINELANDSE HAETSHORNE et al. v. PELEG P. SANFORD ET AL. [U. S. Circuit Court, District of Conneoticnt, 1808. — 3 Day, 279.] GuABDiAH — Motion fok Appointment of. — A motion for the appointment of a guardian to an infant party must be in writing, and must state the name of the person proposed, and his consent to he appointed. Present, Hon. Beockholst Livingston, Associate Justice of the Supreme Court of the United States, and Hon. Pieepont Edwaeds, District Judge for the District of Connecticut. 52 Smith v. Baekee. Bristol moved ore tenus for the appointment of a guardian to Peleg P. Sanford, one of the defendants, who was a minor. Livingston, J. — This motion is too loose. Whenever there is an application for the appointment of a guardian, even pro hoc mae, it must be by a petition in writing, therein naming the person proposed, and stating his consent to be appointed. Motion denied. NATHAN SMITH v. JACOB BAEKER. [tJ. S. Circuit Court, District of Oonneoticnt, 1808. — 3 Day, 280.] Apwdatot fob ContinuAhce— ExTBmsio Evidence not Admissible to Explaiit. —All affidavit in support of a motion to put off a cause for the absence of a witness cannot be explained by matters extrinsic, Ooddard, in support of a motion for a continuance of this cause, read an aifidavit of the absence of a witness- Daggett, contra, contended that there had beeu negligence in procuring the attendance of the witness. Goddard was about to make some remarks in explanation^ when lie was interrupted by Livingston, J. — When an affidavit is relied upon the court will not go out of it. I shall, therefore, decline hearing any we tenus explanation. The name of the witness must always be disclosed in the affi- davit unless there are circumstances to show that the party, without any fault of his, was unable to learn his name. Hereafter when a cause is ready for trial no application for a continuance will be successful unless upon an affidavit conform- able to the English practice. His honor remarked upon the inconveniences of putting off a cause ready for trial in this court, and said the English courts, and the courts in those States which follow the English practice, were growing mote strict upon this subject. BiSSELL V. HORTON. 53 BENJAMIlSr BISSELL et al v. ELIHU HOETON. [U. S. Circuit Court, District of Connecticut, 1808. — 3 Day, 281.] Citizenship — What Constitdtes. — In an action for ejectment of lands in Con- necticut, of which tho defendant had disseised the plaintiff eighteen months before, and continued in possession, part of the plaintiffs were described as citizens of Vermont, and part as citizens of Connecticut, and the defendant was described as a citizen of New ¥ork, dwelling in Connecticut, Held, that the plaintiff were not citizens of Vermont, nor the defendant a citizen of Now York, within the Constitution and laws of the United States, and that the cause, therefore, was not within the jurisdiction of this court. This was an action of ejectment for lands in Hebron, in the State of Connecticut, alleging that the defendant ousted the plaintiffs of the demanded premises- eighteen months before the commencement of the action, and had ever since remained in possession. Dana and Gilbert, of counsel for the defendant, moved to erase this cause from the docket on the ground that from the description of the parties it did not appear to be within the jur- isdiction of the court. The plaintiffs Avere described thus: "Benjamin BLssell, late of Hebron, in the county of Tolland, in the State of Connecticut, now of Saint Johnsbury, in the county of Caledonia, in the State of Vermont, a citizen of the State of Vermont, Abel Bissell, Hezekiah Bissell, Elijah House, Francis Norton, John Thompson Peters of said Hebron, and Asa Willey, late of said Hebron, now of Ellington, in the county of Tolland aforesaid, citizens of the State of Connecticut." The defendant was described as follows: "Elihu Horton of Greenfield, in the county of Saratoga, in the State of New York, a citizen of the State of New York, now dwelling in said Heb- ron. To support the jurisdiction it ought to appear either that the plaintiffs are citizens of Vermont and the defendant a citizen of Connecticut, or that the plaintiffs are citizens of Connecticut and the defendant a citizen of New York. The first part of the alternative is not true, for all the plaintiffs except one are described as residing in Connecticut, and are averred to be citizens of Connecticut. The second part of the alternative is equally groundless, for it is averred that the defendant is now dwelling in Hebron, in this State. 54 United States v. Porter. [28a] J y_ Peters, contra, insisted that as the defendant was expressly averred to be a citizen of New York, he must be so considered, notwithstanding his residence in Hebron at the time of commencing the suit. He might be transiently dwelling there, without any determination to remain there permanently. It will be admitted that he is still a citizen of New York, unless he has become a citizen of Connecticut; but a transient residence here will not make him such. The word "citizens," within the intent and meaning of the Constitution and laws of the United States, in regard to this subject, has reference to such persons only as have the rights of freemen, and are eligible to civil offices, within the district where they dwell. But it does not appear that the defendant has any such rights and qualifications in this State. Livingston, J. — The rights of suffi-age and eligibility to office are of no weight in the decision of this point, it is to be determined on other grounds. ' The plaintiffs are partly in Ver- mont and partly in Connecticut. They are not, therefore, citi- zens of Vermont within the Constitution and laws of the United States. "With regard to the defendant it is admitted that he now resides in Connecticut, and has resided here during the time in which he has been in possession of the demanded premises, which clearly evinces a determination in him to remain here permanently. Per Curiam. — Let the cause be erased from the docket. Note. Jukisdiction — Citizenship Essential to. — See Piquet v. Swan, S Mason, 49, criticizing case in text, Case of Sewing Machine Gompanies, 18 Wall. 580, citing the same. UNITED STATES v. JOSEPH PORTER. [U. S. Circuit Court, District of Connecticut, 1808.— 3 Day, 283.] Evidence — Contkaot in Wbitino— How Pkoved. — Where a party states u, con- tract which from evidence exhibited on the trial appears to have been in writing, he must either produce it or show that it is not in his power to produce it ; otherwise, no proof of its execution or contents will be received. Indictment — MATEniAL Allegations in must be Peoved. — An allegation in an indictment which is not impertinent or foreign to the cause must be proved, though H prosecution for the same offense might be supported without such allegation. United States v. Poetee. 55 This was an indictment charging "that before, on, and ever since the 1st day of February last, the public highway from the city of New York, on the road through Danbury, Litchfield, and Farmington, and from thence to Hartford, by force of the several acts of the Congress of the United States relating to postoffices and post-roads was made, and still is, a post-road designated for the transportation of the public mails of the United States ; and during all the period from and after the 1st day of December, in the year 1806, until the 1st day of April, in the year 1807, certain persons were, in virtue of the provision of the said several acts of the said Congress of the United States, authorized, employed, and bound by contracts lawfully made by and with the postmaster-general of the United States, to transport and carry the said public mails of the United States from the said city of New York to the city of Hartford, and from thence back to said city of New York, on the route through Danbury, Litchfield, and Farmington; that on the 31st day of January now last past, in a certain four-wheeled carriage for that purpose provided, and drawn by four horses, they, the said persons so as aforesaid by the said post- master-general authorized and employed, were, in compliance with and fulfillment of their said engagements, transporting a public mail of the United States from the city of New York to said city of Hartford, one Isaac Kellogg, a mail carrier, lawfully employed, and sworn to a faithful discharge of his said duty as such, as the laws of the said United States require, then having the care and charge of the said mail, carriage, and horses, so as aforesaid used, and employed in the transportation of said public mail ; that at Farmington aforesaid, on the 31st of January and 1st '***' of February now last past, Joseph Porter of Farming- ton aforesaid, being not ignorant of but well knowing all the facts hereinbefore stated, with intent unlawfully and wilfully to obstruct, retard, hinder and stop the passage of said public mail of the United States, then and there, with force and arms, did seize and stop said horses and carriage in which said mail was then deposited; and with like force and arms, violence and strong hand, did seize the said Isaac Kellogg, then having the care and charge of said public mail, transported as aforesaid, and then in the act of driving and guiding said horses, and 56 United States v, Porteb. transporting said mail in the public highway, and on said post- road, on the route aforesaid ; and said driver, horses, and car- riage, with said public mail, did stop and forcibly drag said mail carrier from said carriage, and then, at Farmington afore- said, him, the said mail carrier, with said public mail of the United States, and horses and carriage used in transporting the same, did knowingly and wilfully obstruct, stop, and detain for a long time, to wit, for the space of more than fifteen hours ; contrary to the form, force, and effect of the act of Congress of the United States in such case made, and then in force, entitled ' an act to establish the postofBce of the United States.' " (Stats. U. S. vol. 4, p. 605.) The District Attorney and Woloott, for the prosecution. Goodrich, Daggett and Dwighi, for the defendant. The defendant pleaded not guilty, . The district attorney offered a witness to prove the contract with the postmaster-general for the transportation of the mail, stated in the indictment. He was sworn and was about to tes- tify to the terms of the contract, when Livingston, J., inquired if it was in writing ? The witness answered, yes, t**'*J Daggett, for the defendant, objected to any parol evidence of this contract, insisting that the writing itself ought to be pro- duced. The District Attorney said it was in the hands of one Ely of New York, who refused to give it up, and we could not compel him to produce it. Livingston, J., said Mr. Attorney had shown that it could be produced ; he had named the person who had it, and stated where he lived. Mr. Attorney ought to have compelled Ely to attend and produce the contract. Nothing is clearer than that proof of the contents of a writing cannot be received, unless it be shown that it could not be produced. United States v. Porter. 57 Per Curiam. — The evidence offered is inadmissible. Wolcott, for the prosecution. "We shall take this ground, that the allegation in the indictment of a contract with the post^ master-general is mere surplusage, and consequently that no proof of it is necessary. The words of the statute are, "that if any person shall knowingly and wilfully obstruct or retard the passage of the mail, or of any driver or carrier, or of any horse or carriage carrying the same, he shall, upon conviction, for every such offense, pay a fine," etc. (Section 3, Stats. U. S. vol. 4, p. 506.) That the mail should be carried in pursuance of a contract with the postmaster-general is a qualification not found in the statute. The mail is, in fact, carried on some of the most important routes in the United States, without any previous contract. It is so carried between Baltimore and Philadelphia, and between the city of Washington and New Orleans. There cannot be a doubt whether if the mail be obstructed on these routes the penalty shall accrue. If we prove all that is necessary to subject the f®®*^ defendant, there must be a verdict against him whether other matters stated in the indictment be proved or not. Daggett, in reply. This allegation is not impertinent matter; it is in no sense foreign to the cause. The obstruction contem- plated by the statute is of a mail carried by the direction and under the authority of the postmaster-general. The indictment sets forth the manner in which such direction was given, in which such authority was derived. Now, though this allegation be more particular than it was necessary it should be, yet having been made it must be proved. This is the rule even in civil cases. (Bristow v. Wright, Doug. 665.) It applies more strictly in criminal cases. Edwards, J., was of opinion that no prosecution for obstruct- ing the passage of the mail could be supported without showing a written contract with the postmaster-general. Livingston, J., inclined to think that an indictment might be so framed as to subject the defendant without proof of a written contract ; yet as this indictment states a contract which 58 Lester v. Stanley. is not impertinent or foreign to the cause, he was clearly of opinion that it ought to be proved. The court will be more strict, he added, in requiring proof of the matters alleged in a criminal than in a civil case. The District Attorney rose and said he would enter a noUe prosequi. Livingston, J., observed that the defendant was entitled to a verdict of acquittal if he wished it. The defendant's counsel said he wished for a verdict. [asT] Livingston, J., then addressed the jury thus : No evidence at all being adduced against the defendant, it will be your duty, without leaving your seats, to find a verdict of not guilty. The jury immediately found a verdict accordingly. Note. Isdictment, Material Allegations is. Must be Pboved. — See State V. Stehhins, 29 Conn. 471 ; United Utatcs v. Braum, 3 McLean, 23i ; citing case in text approvingly. TIMOTHY LESTER v. FEEDERICK STANLEY. [U. S. Circuit Court, District of Connecticut, 1808. — 3 Day, 287.] Jdby — Sepaeation afteh Case Submitted akd befobe Vebdict. — If the jury separate after a case is committed to them, and before they have agreed in a verdict and afterwards return a verdict, it will be set aside. After this case had been committed to the jury, and they were about to retire, Livingston, J., remarked that he under- stood it had sometimes been the practice with juries in this State to separ,ate while they had a case under consideration. The rule of the common law requires them to be kept together until they have agreed on a verdict; and on looking at the statute we do not perceive that that varies it. The statute, indeed, appears to have been made in affirmance of the common law. The words are explicit : "And when the court have committed any case to the consideration of the jury, the jury shall be confined, under the custody of an officer appointed by the court until they Cottle v. Payne. 59 are agreed on a verdict." * If they separate before, and after- wards return a verdict, it will be set aside. ■* Tit. 6, oh. 1, § 11, This clause waa passed as early, at least, as 1702, for it appears in the edition of the statutes published that year, and has not since under- gone the slightest variation. The courts for many years afterwards were astute to enforce a compliance with the injunction it contains. In the case of Cyprian Nicolls Y. Joseph Whiling, t***! before the Superior Court in Hartford County, September Term, 1711, the parties having been heard and the issue committed to the jury, in the evening Bichard Skinner, a constable and officer of the court, was charged to go out with them and attend them under this confinement, until they should have agreed on their verdict. The court then adjourned until the next morning, when the officer came into court and gave information that the jury on the preceding evening, before they had agreed on any verdict, broke loose from their confinement, or in other words went out of the room to whioli he had conducted them, each one where he pleased. Upon which the officer was ordered to command their attendance in court forthwith. They accordingly appeared, acknowledged the fact, and offered their several excuses. Some of them said they thought it their duty to stay until they were agreed, and were willing to do so, but their fellows left them. Others alleged the carelessness of the officer as a palliation of their offense. The result was as follows, which I choose to give in the words of the record : — "The court having considered the matter, the disorder of the jury in the liberty they have taken to scatter and disperse before they had agreed on any verdict, which is directly contrary to the law, and a great prejudice to the administration of justice in many respects, are unanimously of opinion not to receive any verdict made after the separation, either while they are so separate, or whensoever they can convene again. It is, therefore, resolved that the money they received of the plaintiff be returned to the plaintiff, which was accordingly done in court. And resolved that this action be continued to the next Superior Court to be holden in Hartford, the third Tuesdi.y in March next, where it shall have a trial." E. Note. Jury — Sepakation before Tebdict. — Bee Howard v. Colib, 3 Day, 310 ; BurriU v. I'hiUips, 1 Gall. 360. GEANT COTTLE v. STEPHEN PAYNE. [U. S. Circuit Court, District of Connecticut. — 3 Day, 289.J ACTIOK ON Bond— EiOHT, When Acoktjes, — The condition of a bond being that the defendant should cany on the business of distilling cider brandy for seven years and three months, and keep an exact account of the quantity distilled, and deliver to the plaintiff when demanded one tenth part thereof, and it appearing that the defendant did carry on said business, but kept no account and delivered nothing to the plaintiff; it was held that the plaintiff could have no right of action on the bond until the end of said term. Patment — Pbesumption from Lapse of Time. — Payment of a bond will not be presumed from lapse of time alone within a shorter period than twenty years ; but where the demand is a stale one, the plaintiff will be held to strict proof of the amount of damages which be is entitled to recover. Costs— When Taxed against Plaintiff.— The court, in the exercise of their discretion, will not tax costs against a prevailing plaintiff, except where he must have known that he was not entitled to recover five hundred dollars. 60 Cottle v. Payne. This was aa action of debt on bond dated the 17th of April, 1780, the condition of which was that Payne should carry on the business of distilling brandy from cider, and should continue to do so for seven years and three months from the date of the bond, and should keep an exact account, during that term, of all brandy or other spirits distilled from cider by him, or on his account, or should deliver to Cottle, when demanded, one tenth part of all such brandy or other spirits distilled from cider, free from expenses. The declaration averred that Payne did carry on the business for the term above specified, but kept no account and had delivered no brandy or other spirits. A special demand was alleged on the 20th of June, 1806. The action was commenced on the 10th of June, 1807. The defendant pleaded full payment. This plea was traversed and issue joined thereon. The counsel for the defendant stated that they should rely ujjon the lapse of time in support of the plea. By our Statute of Limitations no action can be sustained on any bond, bill, or note for the payment of money only, unless brought within sev- enteen years (Stat. Conn. tit. 101, c. 1, § 3); but as this bond was given for the performance of certain collateral acts, the statute does not attach upon it. The length f*"*^ of time in this case is such that payment is to be presumed at common law. The counsel for the plaintiff then introduced proof of the situation and circumstances of the parties to repel the presump- tion arising from lapse of time. It appeared that the plaintiff was a poor man ; that soon after the execution of the bond he went out of the State, and was absent several years ; that when he returned the defendant did not know him at first, though on hearing his name he recollected him. The defendant was a man of large property. A special demand was proved, as stated in the declaration. As to the amount of damages, it was proved that the defend- ant had carried on the business of distilling cider brandy for several years ; but no specific quantity was proved to have been distilled except in one year. It was shown, on the other hand, that during some part of the period in question there was no cider to be had. Cottle v. Payne. 61 T. S. WUliams and Trumbull, for the plaintiff, contended, — 1 . That to raise the presumption that a bond has been paid, there must be a lapse of the full period of twenty years from its becoming forfeited, unless there be other circumstances which do not ajipear in this case. (Colsell et al, v. Budd d al. 1 Camp. 27.) 2. That this bond did not become forfeited until the expira- tion of seven years and three months from the date ; and from that time until the demand was less than nineteen years, and less than twenty years until the commencement of the action. 3. That the lapse of even twenty years affords only a pre- sumption of payment that may be repelled, which '*"*' in this case has been done by showing the plaintiff's absence from the State, and his inability, from that circumstance, and his poverty, to institute and carry on a suit. Very slight evidence is suffi- cient for this purpose, (Peake's Ev. 25, 3d London edition.) Daggett and Goddard, for the defendant, contended, — 1 . That in England the period of time within which a bond shall be presumed to be satisfied is not invariably fixed at twenty years, but may be eighteen or nineteen years. (Oswald d al. v. Legh, 1 Term Eep, 272.) 2. That by the terms of the condition the defendant was to keep an exact account of the brandy distilled in each year. But he kept no account whatever. The condition was therefore broken and the bond forfeited at the end of the first year, which was more than twenty years before the commencement of the action. 3. That from the situation and circumstances of the parties, which had been proved, the presumption of payment was rather strengthened than rebutted. The defendant was a man of prop- erty, and abundantly able to pay. If the plaintiff was poor he stood in greater need of his money, and was more likely to call for it. 4. That in this State payment ought to be presumed after the lapse of seventeen years, in analogy to cases within the statute. Thus it has been held that an equity of redemption shall be barred after fifteen years' possession by the mortgagee, in anal- 62 Cottle v. Payne. ogy to the statute limiting the right of entry into lands. (Smith V. SUnner, 1 Day, 124.) Livingston, J. — This is an action of debt on bond, the con- dition of which is that the defendant should distil '*"*' cider brandy and keep an account thereof for seven years and three months, and deliver one tenth part thereof to the plaintiff. The defendant pleads payment generally, and relies altogether upon the lapse of time since the date of the bond. In England payment is presumed in twenty years, but this rule is controlled by courts of justice where the presumption of payment is opposed by other circumstances. But in Connecticut, as the legislature have acted on this subject, and fixed a term after which bonds of a certain description shall not be enforced, it deserves serious consideration whether the rule is to be extended to cases not within the statute. Upon this point, however, the court deem it unnecessary to express an opinion. For in our view of the case the plaintiff had no right of action for his part of the brandy distilled until the expiration of the term of seven years and three months, which was in July, 1787; though, had the defendant distilled no brandy at all, perhaps the plaintiff might have sustained an action at the end of the first year, as such neglect would have been a breach of the condition. But if twenty years had elapsed since the cause of action accrued, we think the circumstances disclosed by the plaintiff are such as to remove any presumption of payment. [Here his honor commented minutely upon the evidence.] Though the plaintiff, upon strict principles of law, is entitled to recover, it is difficult to estimate the damages. The demand is, indeed, a stale one. The plaintiff calls upon the defendant after a great lapse of time, for an account of the brandy he has made; yet it cannot be expected that the defendant should have kept such an account until this time. No inference is to be made against t*"*^ him for not producing it now. He had good reason to believe he never should be called upon. He would have been justified even had he destroyed it. Under such cir- cumstances, it is incumbent upon the plaintiff to prove the quantity distilled. During one year the plaintiff has furnished some dcAa, from which an estimate may be made; in no other MicHAELsoN V. Denisox. 63 year is there any. The jury have no right to supply this want of proof by conjecture, or to calculate that he distilled as much in other years as in this, especially when it appears that in some of these years there was no cider. Daggett inquired whether the rule of damages should be the value of the brandy at the time of the demand, or at the time the right of action accrued ? Per Cueiam. — The brandy was to be delivered on demand. The value at the time of the demand, therefore, is to furnish the rule. Verdict for the plaintiff for $69.21. Daggett moved that costs be allowed the defendant, under the twentieth section of the first judiciary act. (Stats. U. S. vol. 1, p. 61.) Pee Cueiam. — The court will not exercise their discretion to tax costs against a prevailing plaintiff, except where he has knowingly brought forward an unfounded claim, or, in other words, where he must have known that he was not entitled to five hundred dollars damages. In this case the plaintiff might naturally and fairly suppose he was entitled to recover more than five hundred dollars. Motion denied. Note. Costs — Taxation against Pbevaiuno Plaintiff. — See Greene y. Sate- man, 2 Wood. & M. 359. Payment — Peesumption feom Lapse of Time. — See Sox v. S'ostmasier-General, 1 Peters, 318. CHAELES MICHAELSON v. ABEL DENISON et al. [tr. S. Circuit Court, District of Connecticut, 1808, — 3 Day, 294.] JuEisDicTioN— Alien, Who is — Federal courta do not acquire jurisdiction of a case because one of the parties is a subject of a foreign power; such subject may still be a naturalized citizen. The party must be stated to be au alien in express terms. ABMIBALTY — COBPOEAL PUNISHMENT — ElOHT OF MASTEB OF VESSEL TO ADMIN- ISTEE. — The master of a vessel has a right during the voyage to punish mari- ners by corporal chastisement for disobedience to his reaBonable commands for insolence and other offenses. MiCHAELSON V. DeNISON. This was an action of assault and battery. After the declaration was read, Livingston, J., inquired on what ground the cause was brought before this court. Was it because the plaintiff was an alien? He was not so described in the declaration. The description was, "Charles Michaelson, of Bass End, in the Island of St. Croix, a foreign subject, viz., a subject of the King of Sweden." By the Constitution of the United States the judicial })ower may extend to cases between citizens- of a State and foreign subjects; but Congress, in the provision of the judiciary act under that clause, have restricted it to cases in which " an alien is a party." He must be stated to be an alien, in express terms. . It is not sufficient that the description be such as to imply it. This court will take nothing by implication. Besides, it is a non sequUur that because a man is a subject of a foreign power he is an alien; he may be at the same time a naturalized citizen of this State. Staples, for the plaintiff, moved for leave to amend. Livingston, J., at first said he did not see how a court not having jurisdiction could make any order in the cause. But upon its being stated that an amendment had been allowed, at the last term, under similar circumstances, he remarked that the court had not committed itself on the point ; and after a short consultation between the judges, the motion was granted upon payment of costs. [1195] Qjj ^}jg ^.j-jg^i j^. appeared that Denison, one of the defends ants, was the master of a vessel, and the plaintiff his mariner ; and that the beating complained of consisted in the punishment inflicted by the former upon the latter, for disobedience of orders, insolent language, and personal violence. The plaintiff's counsel contended that the master has no right to inflict corporal punishment for insolent language, nor for disobedience to orders, not relating immediately to the manage- ment of the vessel, nor, indeed, for past offenses of any kind. Livingston, J., in summing up, after taking notice of the weapon, which was not dangerous, the mode of punishment, which was not unusual, and the degree which, however severe •was less than sufficient to reduce the plaintiff to submission, United States v. The Brig James Wells. 65 recognized the right of the master, during the voyage, to correct a mariner for disobedience to any reasonable commands, and for insolence and other oifenses. The punishment, in its nature, is not limited to confinement, corporal chastisement being often necessary and proper; and as to its extent, depends upon the circumstances of the case, the aggravation of the offense, or the continuance of the disobedience. This is a salutary authority and ought to be maintained. Without it, it would be impossible to navigate our vessels. Verdict for the defendants. Staples and Wales, for the plaintiff. Ingersoll and N. Smith, for the defendants. Note. JtmiSDioTiONAL Facts — How Set Forth. —Jurisdietion depending on character of parties must be positively averred on the record. (See Bei-lin v. Jones, 1 Woods, 639, citing case in text.) Jurisdictional facts may be permitted to be shown by amendment. (^Woolridge v. McKerma, 8 Fed. Eep. 679, citing case in tert.) Chastisement fok Disobedience — Kioht oe Master op Vessel to Admdjis- TEK. — See Fuller v. Colby, 3 Wood. & M. 13, 14; Buddmgton -n. Smith, 13 Conn. 336 ; citing approvingly the case in text. UNITED STATES v. The Beig JAMES WELLS AND Cargo. [0. B. Circuit Court, District of Connecticut, 1808. — 3 Day, 296.] Embargo Act — Condemnation Under. — The homeward bound cargo of a vessel having proceeded to a foreign port in contravention of the Act of Congress of the 9th of January, 1808, supplementary to the general embargo act, is not liable to condemnation. On a libel against the vessel for having thus proceeded, necessity arising from stress of weather, and the condition of the vessel is no defense. Appeal from the District Court. This was a libel founded on an alleged violation of the act of Congress approved the 9th of January, 1808, supplementary to the general act laying an embargo on all ships and vessels in the ports and harbors of the United States. The brig of which Stephen Griffiths -was claimant was charged with proceeding to a foreign port or place, contrary to the provisions of said acts, Bbun. c. c — 5. 66 United States v. The Brig James Wells, and was condemned by the decree of the District Court. The cargo, of which the claimants were, Jesse Hurd of eighty pun- cheons of rum, N. G. Eutgers and B. Seaman of three hundred and twenty-six bags of coffee, and J. H. Eawlins & Co. of forty- seven hogsheads and fourteen barrels of sugar, and five hogs- heads of rum, was restored. On the opening the cause it appeared that the cargo libelled was the return cargo of the vessel from the West Indies. Daggett, for the claimants, contended that the embargo law did not authorize a condemnation of this property. Though the vessel went out in violation of the embargo, the claimants are entitled to a restoration of the return cargo. Wohott, contra, LiviNGSTOiir, J. — I have a strong impression that the pro- visions of the act apply only to the cargo carried out. In a case like this, nothing is to be taken against the claimants by implication. The most express words would f*"'''^ be necessary to include the homeward-bound cargo. But Congress have said nothing about it. We cannot supply any omission. The in- tention of the act was to prevent exportation. I am ready to say that those parts of the decree restoring the cargo ought to be affirmed. Proceed to the vessel. The cause was conducted by the District Attorney and Wolcott, on the part of the United States ; and by Daggett, and Bristol, for the claimants. The evidence, so far as it is material to the present purpose, is recapitulated in the opinion of the court. Livingston, J. — This is a libel against the Brig James Wells, for proceeding to a foreign port in contravention of an act of Congress. Admitting the fact, the claimant interposes a plea of necessity, and contends that although he may have violated the letter, he is not within the spirit and meaning of the law. Whether such matter can form a good defense here, is a question of considerable magnitude. To interpret a statute by its equity, or to say cases are without its spirit, although within its express letter, is at all times a delicate and difficult office. It is making, instead of expounding, laws. It often sets in IjTsriTED States v. The Bkig James Wells. 67 array against the rigorous provisions of an act, the feelings of a single judge who may not always have firmness enough to enforce them, if he be at liberty to mitigate their severity when they may be supposed to bear hard upon a particular case. He, besides, destroys that certainty in laws which is a property so much desired, and must ever constitute one of their chief ex- cellences. Even when this mode of interpretation may be indulged, it should be strictly confined to cases which could not, from their nature or the infrequency of them, be supposed to have been foreseen by the legislature. But when the necessity or vis major which is relied on, arises from circumstances which were too obvious to have escaped ^*"*i the most ordinary capa- city, but which, notwithstanding, are not found to form an exception from the general provisions of the law, a court may perhaps say per quam durum, sit ita lex seripta est. When to this is added that another tribunal is erected and referred to by these very laws, invested with full power to relieve in cases of accident, etc., unintentional and innocent infractions, it can hardly be doubted but that the courts of the United States are designedly excluded in all cases of this nature from every equity of interpretation whatever, and that for a mitigation of their rigor recourse must be had elsewhere. Without, however, deciding how far a defense of this nature be admissible, where the act is silent as to any exception, the court will proceed to examine whether in point of fact the claim is supported. A more unpleasant office cannot devolve on a judge than to be called on to determine both the law and the fact, in a penal suit between the government and a fellow citi- zen. But whatever his feelings as an individual may be, and of these I should never wish to divest myself, he must not lose sight of those solemn sanctions he is under, to administer with strict impartiality the laws of his country. In these every man has an interest, and to permit those who violate them to pass with impunity is an injury to such who, from principle or from any other motive, make them the rule of their conduct. The fact alleged in the libel being admitted, it will not be denied that the necessity on which the claim is founded should be made out in a manner to leave no reasonable doubt that it produced the violation complained of. The onus lying on the 68 United States v. The Beig James "Wells. claimant, his proof should be strong and satisfactory. If any- thing short of this be admitted, laws, however salutary, may be easily transgressed and their penalties avoided. [3»o] rj^jjjg ^ggggj gj^jjg^ fj,Qjjj ]vjg^ York on the 26th of Feb- ruary of the present year, bound on a voyage to St. Mary's, in Georgia. She was new, and without encountering any extraor- dinary bad weather, or meeting with any accident, we find her in a very few days bearing away for the West Indies. For this / conduct no other reason is assigned but her leaky condition. Of this fact there is probably not much doubt; but that the danger arising from this circumstance was so imminent as to justify the act, is not so clearly established. It is true, that those on board must, prima facie, be the best judges of the necessity, which may exist for changing the course of a voyage ; and where no circumstances arise to impeach their testimony, they will be entitled to and receive full credit. But where every one of the parties may possibly be implicated in heavy penalties, it camiot be regarded as a Avant of charity to listen to their allegations with some caution. The master, it is con- cluded, is in this predicament, and it may well be doubted whether all the other hands are not subject to the same penalties. If so a very strong inducement existed in them all to give a high coloring to the transaction. But without detracting from their credit on account of their participation in it, and their possible liability, it is not easy to believis that on account of the leak which they describe, a real necessity intervened for leaving the continent. Vessels in a more leaky condition than this one is described to have been in, have sometimes traversed the ocean, encountered considerable storms, and arrived in safety. There is too much reason, therefore, to think that unless some strong temptation to depart from the tract of the original voyage had presented itself, more serious and successful efforts would have been made to reach St. Mary's. This surmise is much strength- ened by the voyages performed by other vessels at the same season of the year, and on parts of the ocean not very distant from this brig. Neither has it escaped f*""^ the attention of the court, that after bearing away, the winds and weather for a long time were very favorable to have made an attempt to reach the destined port ; for whatever necessity may have produced at the United States v. The Brig James Wells. 69 time a determination to go to the West Indies, if a reasonable prospect, such as moderate weather and favorable winds shprtly after, presented, of reaching the continent in safety, it ought to have been embraced ; and if the cargo were found to be greater than the vessel could bear, there can be no hesitation in saying that part of it ought to have been sacrificed, if not the whole, in preference to landing it in a foreign country in direct violation of a public law, which could have been done without forfeiting the penalty of the bond which had been given to land it in the United States. This is an argument which was not urged by the counsel for the United States, but has considerable influence with me in the judgment I am about to give. It is not pre- tended that this vessel, if relieved of part or the whole of her cargo, might not have returned to the United States. The underwriters, if insurance had been made to St. Mary's, would have been liable; and if uninsured, the owner should have borne the loss himself rather than have gone to a foreign port. If this view of the subject be correct, there is an end of every justification arising from necessity. The carrying of the cargo to St. Bartholomews then becomes a voluntary act, which nothing could justify, but being driven there by a sudden and severe tempest, which did not leave time or opportunity to throw it into the sea. But if this were not a duty, there are other circumstances which render it difficult to believe that this was not a concerted plan to evade the embargo laws. There is no evidence to show what was the value of flour at St. Mary's. It is a fair infer- ence, therefore, that the cargo was chosen for a West India market, where the embargo '*"^^ would necessarily produce a scarcity of that article. We also find the owner on board as supercargo, which is not very usual in coasting voyages. He carried with him, also, notes payable in the West Indies ; and although those may have been duplicates, it is not very custom- ary, whatever may be the practice on land, to take such papers to sea. Nor is it very conclusively made out that there was a necessity to dispose of the cargo at Gustavia ; and although the sale at that port constitutes no part of the present offense, it is some evidence of the quo animo; for if repairs had been the Drily object of going there, the cargo would have been retained 70 United States v. The Brig James Wells. and brought back unless prevented by some compulsion or force on the part of government. It is also impossible to evade the very forcible circumstance of the holes which were bored in this vessel. On this subject, as well as on every other, the court has listened with great pleasure to the very ingenious remarks of the claimants' counsel; and although it felt desirous that the impressions which were unavoidably made, when this occurrence and some others were first mentioned, should be removed, it cannot say that the manner in which they have been accounted for has had that effect. The secrecy with which these holes were made, the place chosen for the purpose, the instrument made use of, the manner in which they were closed, the mode of fastening the plugs, with the anxiety discovered to prevent a discovery previous to the first trial, and the chance by which the disclosure was at last made, render it very difficult to believe that their design was such as is now pretended, or any other than to produce a leak, which was to furnish the means of defense against a prosecution which it was foreseen would take place on the return of the vessel to the United States. I take no notice of the erasures in the log-book, because it is possible they may have been made bona fide; and it '***^ appears from the witnesses that from the winds which prevailed the vessel might very well have been where she was, when it was determined to bear away. But taking all the testimony and circumstances together, I am com- pelled with every inclination to come to a different result, to believe that the claimant has altogether failed in showing such a necessity as would, under an express exception in the statute, have justified him in going to a foreign port. The judgment of the court, therefore, is that the decree of the District Court condemning the Brig James "Wells be affirmed. Champlin v. Tilley. 71 CHRISTOPHER GIBBS CHAMPLIN, as Executor OF Christopher Champlin, v. JAMES TILLEY and WILLIAM TILLEY. [U. S. Circuit Court, District of Connecticut, 1809.— 3 Day, 303.] Foreign ExEonroBS and Abuinistiiatobs — EioHTis and Powebs of. — Letters testamentary issued under the authority of one State are not available in another. But if to an action brought by an executor, on a cause of action arising iu the lifetime of the testator, the defendant plead the general issue, the plaintiff cannot he required on the trial to produce any letters testamentary. Evidence — Admissibility of Letteks to Deny Paetneeship. — In an action against A. and B. as partners on a contract executed iu the partnership name, A. suffered a default, and B. pleaded the general issue ; held, that letters written by A. in the partnership name could not be read in evidence by B. to show that he was not a partner with A. Pabtnekship — Book Accocnt as Evidence of. — In such case an account hook containing entries made by A. and B. may go to the jury as evidence of a partnership. Joint Contbaot — Effect of JunaMENT on. — In an action on a joint contract against two, wliere one has suffered a default and the other has obtained a verdict, judgment must be entered up for both. Present, Hon. Beockholst Livingston, Associate Justice of the Supreme Court of the United States, and Hon. Pieepont Edwards, District Judge of the District of Connecticut The plaintiff in his declaration stated " that at New Port the defendants, by said William Tilley, purchased of said deceased a quantity of hemp, to be manufactured at their rope factory in New London, on a credit of four f***^ months, and to secure payment thereof the defendants, at said New Port, by said William Tilley, one of said firm and company, and then joint mechanic and trader with said James Tilley as aforesaid, made, executed, and to said deceased, then in full life, delivered a certain writing or promissory note, in the words and figures following, viz : — "We, William Tilley & Company, of New London, promise to pay Christopher Champlin of New Port, or his order, within four months from the date hereof, five hundred and eighty dol- lars, value received. Witness our hands, New Port, January 31st, 1804. "William Tilley & Co. "Witness, George G. Whitehorne." When the cause came on for trial, William Tilley, who had failed and absconded, was defaulted ; James Tilley, the father of 72 Champlin v. Tilley. William, and a man of property, appeared and pleaded non assumpsit. Daggett, for the defendants, called upon the plaintiff's counsel for evidence that the plaintiff was executor to the deceased. He said that unless this were shown there was no propriety in pro- ceeding any farther in the cause. He stated, at the same time, that no letters testamentary issued by any authority out of the State of Connecticut could be admitted as evidence before the courts of this State, according to the decision of the Supreme Court of Errors, at their last session in Hartford. {Vide, Riley V. RUey, 3 Day, 74.) Goddard, for the plaintiff, replied that he was somewhat sur- prised by the motion, though he apprehended t**^^ that the defendant was too late with it, and 1;hat advantage ought to have been taken by plea in abatement, as the want of lawful appointment to be executor is a disqualification to sue in this case. LrviNGSTON, J., having inquired whether there was a profert of letters testamentary, was answered in the negative and that it was not common in our practice to make sucJi a profert, the mere naming the plaintiff as executor being considered as suffi- cient to enable the defendant to plead ne ungues executor. His honor then observed that, it must undoubtedly be good law that letters testamentary should be used only within the jurisdiction under which they were issued, and that he should have no doubt, in a proper stage of the proceeding, as to requir- ing the production of such letters issued under the authority of the State of Connecticut; and he did not see but the plaintiff in this case must produce his claim to the character of executor, if the defendant required it. At the request of the plaintiff's counsel, the question was per- mitted to rest till afternoon, as he wished to look at authorities, that he might be able to show that the defendant was too late in his motion. This was assented to by the court. At the opening of the court in the afternoon, Goddard proceeded to show that on a plea of 7wn assumpsit. Champlin v. Tilley. 73 when the case is entered upon before the jury, it is too late to call for letters testamentary. He cited as in point, Peake's Ev. 342, last edition, and Marsfield v. Marsh, 2 Eaym. Ld. 824. t*""l Daggett, in reply, stated that in Edwards v. StapMon, Cro. Eliz. 551 ; Browning v. Fuller, Cro. Jac. 299 ; and Outts v. Bennett, Cro. Jac. 400, it was decided that a profert of letters testamentary is matter of substance. The reason of these decis- ions must be because the plaintiff may be called upon to prove them to be legal and genuine. The court said that they were satisfied by the authorities read by Mr. Goddard that the plaintiff could not be called upon in this stage of the proceeding to prove his claim to the character of executor. Livingston, J., said that he was of a different opinion in the morning, but was convinced by the authorities. As to the cases read by Mr. Daggett from Cro. Eliz. and Cro. Jac, it might well be matter of substance that profert of letters testa- mentary should be made; that the plea of Tie ungues executor may be tendered, while, nevertheless, the plaintiff could not be compelled to prove himself executor on trial to the jury. In the course of the trial to the jury, the counsel for the defendant read several letters from the testator, Christopher Champlin, to the defendant, from which it appeared that the testator did not consider the defendant, James Tilley, as a mem- ber of the firm of William Tilley & Co. In one of these letters, six other letters purporting to be written by William Tilley & Co., and promising payment, were enclosed; and with them, the note on which this action was brought. The counsel for the defendant were proceeding to read these enclosed letters ; but an objection being made, The Court said that the letters, whether written by William Tilley or not, were entirely irrelevant ; though '*"'' the letters of the testator were good evidence to prove that he did not suppose James Tilley to be a partner. An account book was produced by the plaintiffs to prove that James Tilley was connected with his son William in business. In this book two entries were found in the handwriting of 74 Anonymous. James Tilley, many in the hand of William Tilley, and some in the hand of other persons. The counsel for the defendant objected to reading to the jury any charges made in the hand of William Tilley. By the Couet. — The book must goto the jury, as it has been proved, and indeed conceded, that James Tilley made a few entries in it. The jury are to decide whether the book, as it is, amounts to any proof of partnership. The jury found a verdict for the defendant. His counsel then moved that judgment should be entered up for both defendants, though one of them had been defaulted. The Court said this was the correct mode of proceeding ; for if the jury had found that one defendant assumed and promised, and the other did not, judgment must have been entered up for both, the declaration being founded on a joint promise only. Note. Pabties — Objection to, When Mcst be Made. — Any objeotion to the character of the parties must be made, if at all, at an early stage in the cause ; it is of a preliminary nature and cannot be raised on the general issue. (See West Winsted Sav. Bk. v. Ford, 27 Conn. 289 ; lAtchfield Bank v. Church, 29 Conn. 148, citing case in text.) As to foreign administrators and executors as parties, and their rights and powers, see Curtis v. Smith, 6 Blatchf. 547 ; Sobart v. Gonnectiout Turn. Go. 15 Oonn. 147, where case in text is cited. ANONYMOUS. ' [U. S. Circuit Court, District of Connecticut, 1809. —3 'Day, 308.] AFriDAvrr fob Contdtoance — Admissibiuty op Counteb-affidatits After an affidavit in support of a motion for the continuance of a cause, on the ground of the absence of a material witness has been made, the opposite party may make a counter-affidavit stating any circumstances that render it impossible or improbable that the evidence of the witness can be obtained within a reason- able time; but such counter-affidavit must not deny the materiality of the evidence. On motion for the continuance of this cause, the party made an affidavit stating the absence of Joseph Howland, Jr., a material witness, and that he hoped to procure the testimony of the witness at the next court. A counter-affidavit was filed, stating that Joseph Howland, Jr., was gone to foreign parts ; that he expected to have no fixed Howard v. Cobb. 75 residence, and that he did not expect to return within two or three years. The CoxjET would not continue the cause, and took th^ opportunity to observe that there was manifest utility in counter-affidavits, as Avas evident from the present instance. They said, however, that counter-affidavits should not deny the materiality of the evidence expected from the witness, but might state any circumstances that rendered it impossible or improb- able that his testimony could be procured within a reasonable time. Edwards, J., said that the English practice was lame in this respect ; that it threw great power into the hands of a party, and that this court was perfectly free to establish a better practice. He added that the whole English practice of admitting affidavits was modern. Note See Hyde v. StcUe, 16 Tex. 454, citing case in text. STEPHEN HOWARD v. JEDUTHAN COBB. [U. S. Circuit Court, District of Connecticut, 1809.— 3 Day, 309.] Evidence — Peomissort Note — ArmssiBiLrrY of Admissions of Joint Makee. — In an action upon a promissory note executed by A. and B. jointly, brought against B. only, after the bankruptcy of A., under the laws of the United States, it was held that tlie admissions of A. were evidence against B. JuET — Sepaeatjon Afteb Submission of Case and Befoee Vekdict. — If the jury separate after a case is committed to them, and before they have agreed in a verdict, and aftei-wards return a verdict, it will be set aside. But neither the jurors nor the officer to whose care they were committed can be compelled to testify to the fact of such separation. This was an action on a joint note signed by Ashbel Stanley and Jeduthan Cobb, hut was brought against Cobb only, it being alleged that Stanley, since the execution, had become a bankrupt under the laws of the United States. The defendant pleaded a discharge in full to Stanley. On this plea issue was joined, it being contended by the plaintiff that the discharge was forged. Daggett, for the plaintiff, offered the declarations of Stanley 76 HowAED V. Cobb. in evidence to prove that he had acknowledged the debt to be due long after the discharge purported to have been executed, ^ Goddard, for the defendant, objected to the admission of this evidence, ou the ground that as Stanley was absolved from the payment of this note by his certificate, he could be examined as a witness; and therefore his declarations could not be proved. By the Couet. — If Cobb should be compelled to pay this note, he could compel Stanley to indemnify him (it had been stated by the counsel on one side, and assented to on the other, that Cobb signed the note only as surety for Stanley) as it would be a debt accruing after the bankruptcy of Stanley. His declar- ations, therefore, may be proved. The plaintiff obtained a verdict. [aio] -pjjg defendant moved in arrest of judgment. The prin- cipal ground was that the jury had separated and mingled with the inhabitants of New Haven before they had agreed upon a verdict. The fact was not conceded, though the counsel for the plaint- iff stated that this had been the general practice in Connecticut; that juries had always separated when they pleased. Ooddard, for the defendant, called upon one of the jury as a witness to establish the fact of such separation. The Couet informed the juror that he should not be com- pelled to answer, as it was a misdemeanor in him, but that he might answer if he pleased. The juror declined answering. The deputy-marshal to whose care the jury had been com- mitted was then called. The Couet said that he could not be compelled to answer unless he pleased. He declined. The counsel for the defendant then proposed to wait until the rest of the jury should come in, observing that perhaps some of them would be willing to testify. The Couet said that they would not wait a moment in such a case as this. Stuart v. Geebnleaf. 77 [311] '•j^jjg counsel for the defendant then offered to prove the declarations of the jury, as evidence of the fact in controversy. The Court said they would not hear such declarations. They expressed, however, a clear opinion that judgment must have been arrested if it had been proved that the jury separated before they had agreed upon a verdict. The statute of this State (tit. 6, c. 1, § 11), they considered so explicit and impera- tive that it could not be evaded, let the practice be ever so universal against it. In the next case the coiirt appointed an officer to take care of the jury, and charged him not to suffer them to separate until they had agreed in a verdict, nor to speak to them except to ask them if they were agreed. Note. Declahations of a Joint Contractob, are admissible regarding the joint debt. (Bound v. Lathrop, i Conn. 339, citing above case.) KOBERT STUAET & HAMILTON STUAET v. DAVID GREENLEAF. [U. S. Circnit Court, District of Connecticut, 1809. — 3Day, 311.] Eyedence — Indoksemeht of Note Befobe MATURmr.— Burden of Proof.— Whether in an action by an indorsee of a negotiable note against the maker, a discharge by the payee shall be available as a defense until it be shown by the maker that the receipt was given before the indorsement was made. This was an action by the indorsees of a promissory note against the maker. The note was made in the State of New York, and was, by the laws of that State, negotiable. It was payable to John I. Staples & Son, and by them indorsed to the plaintiffs. The defendant offered in evidence two receipts, signed by John I. Staples & Son, for two hundred dollars each, which he contended ought to be allowed in part t*^*' on the note, unlesb the plaintiffs could prove that it was assigned to them before the receipts were given. The plaintiffs contended that the onus probandi lay upon the defendant; that every indorsed note was presumed to have been indorsed the day it was made, or at any rate before it became due, unless the contrary were shown. 78 Smith v. Baekeb. And of this opiuion was Livingston, J. Edwards, J., was of a contrary opinion, and strenuously contended that the onus probandi lay upon the plaintiffs. It afterwards appeared that the case was with the plaintiffs on other grounds. Daggett & Bristol, for the plaintiffs. The Distnct Attorney, for the defendant. Note. Indoesement of Note — Peesumption as to. — It is a legal presumption that the indorsement of a note was antecedent to its becoming due. (JPettis T. Westlake, 3 Scam, 538, citing case in text.) NATHAN SMITH v. JACOB BARKER. [U. S. Circuit Court, District of Connecticut, 1809. — 3 Day, 312.] Taeianoe Between Allegation and Proof — Effect or. — Where the declaration alleged an undertaking in consideration of a contract entered info, by the plaintiff to build a ship, and the evidence was of a contract to finish a ship partly built, it was held that the variance was fatal. Amendment of Declaration — When Allowed. — A declaration may be amended in any stage of the trial, before the case is actually committed to tlie jury. The declaration was as follows : " That before the 8th day of February, 1806, the plaintiff had entered into a certain contract with the defendant to build him a ship, which, on said 8th day of February, was building, the same not being finished ; and the defendant, on said 8th day of February, in consideration of the plaintiff's building said ship, and the sums which would become due to the plaintiff for building said ship pursuant to said con- tract, t"**^ and in part payment thereof made, executed, and delivered to the plaintiff his certain writing or note, in the fol- lowing words, to wit : 'Dollars, five hundred. Whereas Nathan Smith is building a ship for me on the contract, for which I shall have to pay him a considerable amount, when said contract is completed, I hereby agree to pay said Nathan Smith, or order, five hundred dollars, as soon as that amount shall become due per said contract. Jacob Barker'; as per said note which, M'ithout date, was in fact executed and delivered at New York on said 8th day of February, now ready in court to be shown, Smith v. Baekee. 79 will fully appear. And the plaintiff says that he did afterwards complete and finish said ship according to contract, and said Slim of five hundred dollars became due to the plaintiff in the month of May, 1806, when said ship was completed and finished, and to the defendant delivered, and by him received; which sum of five hundred dollars the defendant hath never paid, nor any part thereof, according to the tenor of said writ- ing, but the same is now justly due. Whereupon the plaintiff says that by reason of the premises, and by force of said writing, the defendant, on or about the first day of May, 1806, after said ship was completed and delivered to the defendant, became justly indebted and liable to pay him said sum of five hundred dollars, and being so liable and indebted, the defendant did afterwards, on said 1st day of May, in consideration thereof, assume upon himself, and to the plaintiff faithfully promise," etc. The plea was non assumpsit. The plaintifi^, to make out his case, read in evidence the fol- lowing contract: "New London, 26tli of October, 1805. I agree to finish the ship I am now building at Stonington, in about one month, in a workmanlike manner, with patent wind- lass, flush decks, etc. (particularly specifying the manner in which the decks, hull, masts, '*^*' etc., were to be made), when I agree to sell her to Jacob Barker at thirty dollars per ton, carpenter's tonnage, payable one thousand dollars cash in all next month, pay my drafb at sixty days for five hundred dollars, one hundred dollars of prime flour in New York at the market price, two thousand five hundred dollars in six months after the ship is completed, and the other half in merchandise, at the market price, such articles as I may want. If, however, the ship don't suit C'aptain G. Barney, the said Barker is to take only one half of her at the above rates, and these payments to be in proportion. "Nathan Smith. "Jacob Baekbe." Goddard and Cleavdand, for the defendant, insisted that the contract proved was not the same with that described in the declaration. First, the consideration is not the same. The declaration 80 Smith v. Baekee. states the contract to be for the building of a ship. The consid- eration of the contract proved is the finishing and selling of a ship to Barker. Secondly, the declaration states that the money was due on the 1st of May. The proof is that it was not due until Novem- ber, six months afterwards. Thirdly, the contract proved says that the ship, when finished, was to be sold to Barker. But on this point the declaration alleges nothing Daggett, in reply, observed, — First, that the consideration stated in the declaration, to wit, the building of the ship, was taken from the words f*-^^^ of the note on which, etc. As the note recites the consideration, we are correct in taking the description of the contract which the note has given. Secondly, that the money is proved, as we contend, to have been due, as stated, on the 1st of May. This is a question of fact which the jury must determine. Thirdly, that if the declaration is defective for want of more allegations, advantage may be taken of such deficiency by motion in arrest, but it is no variance. Livingston, J. — It is the opinion of the court that the con- sideration alleged is so different from the one proved that we Qannot let it go to the jury. The consideration alleged is the building of a ship. The consideration proved is the finishing of the ship Mim, already built in part, and the selling it to the defendant. Every one knows that to build a ship for another is an essentially different thing from finishing one partly built, or selling one finished. This ship was Smith's, while she was building, till she was finished, and till she was sold and deliv- ered. Without deciding any other points which have been made,^ we are of opinion that none of the proof offered with respect to the contract in this case can go to the jury. The plaintiff then moved to amend. * Several other points of law were made by counsel in the course of the trial ; hut as no decision was had upon them, it was not thought best to state them par- ticularly in this report of the case, E. , Smith v. Baekee. 81. This was objected to on the part of the defendant^ on the ground that it was too late. The Court said that the plaintiff could amend in any stage of the trial if the case had not been actually committed to the [310] rpjjg declaration was accordingly amended by inserting and declaring upon the contract above recited. Then there was inserted a letter from the defendant to the plaintiff, dated No- vember 21, 1805, in which the defendant concludes to take the whole ship, and introduces a Captain Waterman as his agent, to superintend the finishing of the ship. Then it was averred that Waterman did superintend the finishing and rigging of the ship ; and that the defendant, on the 8th day of February, 1806, in pursuance of the contract, executed the note on which, etc. The plaintiff then introduced an averment that he finished the ship in all respects as specified, sold her to the defendant on the 30th of April, 1806, and delivered her with a bill of sale to Waterman, as the agent of the defendant; that Waterman received the ship, and made an indorsement upon the contract in the following words: "Received the ship of Captain Nathan Smith, agreeable to the within contract; and I, as attorney to Jacob Barker, do discharge said Smith from all demands that said Barker has by law or equity, for not delivering her before; as witness my hand this 30th day of April, 1806. " D. Wateeman, attorney for J. Barker." The plaintiff then averred that by said writing of the 8th of February, 1 806, the defendant assumed and promised to pay the plaintiff, or his order, five hundred dollars, as soon as that amount should become due by said contract ; and that on the 30th of April, 1806, said sum was due from the defendant to the plaintiff by said contract, and by the completion, delivery, and sale of said ship. [ai'T] j^fter the declaration had been thus amended, it was agreed by the counsel to submit the case to the same jury who had heard the evidence adduced in the former stage of the trial. LiviNGSTOJr, J., in his charge to the jury said that the con- tract now stated in the declaration was that Smith should finish Beot. 0. 0.— 6. 82 United States v. Smith. the ship Miza ia a workmanlike manner, and sell her to Barker in about one month. The defendant had objected that this con- tract was not complied with, because the ship was not built in a workmanlike manner. Little proof had been adduced by the defendant to this point, and he considered it as not much insisted on by his counsel. As to the time, it was proved that the ship was not delivered till after six months had elapsed. Nobody could consider this as the fulfillment of a contract to deliver in about one month. But it was insisted for the plaint- iif that whatever breach of contract there has been on his part, all advantage to be derived from it had been waived expressly by the defendant. But this note was to become payable when the sum of five hundred dollars should become due on the con- • tract. If the contract was not complied with, this note could not have become due. The court were decidedly of opinion that if Barker had expressly waived all exceptions arising from want of fulfillment of the contract by writing under hand and seal, yet this note would never have become due. The plaintiff thereupon suffered a nonsuit. NoTB. Amendment op Deolaeation, When Allowed. — Amendments at any stage are within the discretion of the court. (Tiernan v. Woodi-uff, 5 McLean, 140, approving above case.) Tawance Between Allegation and Pboof. — See Stone v. Laiorence, i Cranch C. C. 12, citing case in text. THE UNITED STATES v. JOHN SMITH. [U. 8. Circuit Court, District of Connecticut, 1809. — i Day, 121.] Witness — Pabty to Okime — When Compelled to Testify In an action of debt to recover the penalty given by the Act of Congress of May 10, 1800, for transporting slaves from one foreign port or place to another, a parti- ceps crimmts, after the expiration of two years from the commission of the offense, witlioht any prosecution against him being commenced, may be com- pelled to testify against the defendant, though such witness has been out of the jurisdiction of the United States a considerable part of the two years. A fleeing from justice within tlie proviso to tlie United States Statute of Limitations for crimes does not necessarily import a fleeing from prosecution begun, Tkanspoetation of Pebsons for Pubposes op Slaveby, What Constitdtes— The offense within the Act of Congress of May 10, 1800, consists in transporting per- sons from one foreign country to another, with a view to their being sold as slaves ; and the offense is complete when the vessel arrives at the place of desti- nation, whether the slaves are sold or not. United States v. Smith. 83 Depositions— Admissibility in United States Coubts. — Where the certificate of a magistrate taking a deposition, stated it to have been written in his presence, without saying by whom, and it appeared also that the substance of it k-id been reduced to writing by the deponent ten days before at a different place when the magistrate was not present, it was held that such deposition was inadmissible in the United States courts. Present Hon. Pieepont Edwards, District Judge for the District of Connecticut. [Judge Livingston was prevented from attending this term, in consequence of an injury received by a fall.] [lai] This ^ag an action of debt to recover double the value of the interest which the defendant had in certain slaves, trans- ported in the brig Heroine, whereof the defendant was sole owner and master, from Africa to Havanna, and there sold by the direction of the defendant, and for his benefit, contrary to the provisions of the Act of Congress of May 10, 1800. Stat. U. S. V. 5, p. 167, 170. The first section of that act is as follows : " That it shall be unlawful for any citizen of the United States, or other person residing within the United States, directly or indirectly, to hold or have any right or prop- erty in any vessel employed or made use of in the transportation or carrying of slaves from one foreign country or place to another, and any right or property be- longing, as aforesaid, shall be forfeited, and may be libelled and condemned for the use of the person who shall sue for the same ; and such person transgressing the prohibition aforesaid shall also forfeit and pay a sum of money equal to double the value of the right or property in such vessel, which he held as aforesaid ; and shall also forfeit a sum of money equal to double the value of the interest which he may have had in the slaves, which at any time have been transported or carried in such vepsel, after the passing of this act, and against the form thereof." The action was commenced t^**' March 31, 1808. The trans- portation and sale of the slaves were thus alleged in the declara- tion : " That while said vessel remained on said coast of Africa, to wit, after the first day of December, 1805, and before the first day of April then next following, by direction of said John Smith, and for his use, the crew of said vessel did forcibly seize, carry on board said vessel, and there confine more than one hundred of the natives of Africa, a foreign country, with intent them to transport, and sell and dispose of as slaves in some for- eign country. And afterwards said vessel, pursuant to the previous advice and direction of said John Smith, did sail from said coast of Africa having on board more than one hundred of the said inhabitants and natives of Africa, destined to the port of Havanna, a foreign port and place in the dominions of the King of Spain, at which port said vessel arrived before the 1st 84 United States v. Smith. day of June, 1806. And the said United States further declare that after the 1st day of April, and before the 30th day of June in the year last mentioned, and within two years next before the date of this writ, by the previous advice and direction of said John Smith, and for his use and benefit, at Havanna aforesaid, one hundred of said inhabitants and natives of Africa, so as aforesaid, by said John Smith, caused to be taken and transported to the place last mentioned, were there sold and dis- posed of as slaves, and at a price not less than one hundred dol- lars for each of said Africans, amounting in the whole to ten thousand dollars, against the form, force, and effect of the sev- eral acts of the Congress of the United States in such cases made, and then in force." The declaration then concluded thus : " By means whereof, and by force of the statutes afore- said, f***^ the said John Smith hath forfeited and become liable to pay a sum or money equal to double the value of the interest which he then had in said slaves so transported in said brig Heroine, whereof said John Smith was sole owner, from Africa to Havanna aforesaid, and there sold as aforesaid, for the benefit of said John Smith, amounting to twenty thousand dollars." The defendant pleaded not guilty. The District Attorney Huntington and Peters, for the United States. Goodrich, Daggett, Mosely and Dwight, for the defendant. On the trial the District Attorney, Huntington, for the United States, offered "William Mills, one of the crew of the brig Her- oine, as a witness to prove that the defendant was owner of the slaves mentioned in the declaration. « Daggett, of counsel for the defendant, objected to his being sworn, on the ground that his testimony would implicate him- self, and subject him to fine and imprisonment. The second section of the Act of May 10, 1800, declares " that it shall be unlawful for any citizen of the United States, or other person residing therein, to serve on board any vessel employed or made use of in the transportation or carrying of slaves from one foreign country or place to another"; and provides that "any United States v. Smith. 85 such citizen or other person voluntarily serving as aforesaid, shall be liable to be indicted therefor, and on conviction thereof shall be liable to a fine not exceeding two thousand dollars, and be imprisoned not exceeding two years." (Stat. IT. S. v. 1, p. 168.) A prosecution has already been commenced against the witness for serving on board the defendant's vessel during the voyage in question. Any facts within the knowledge of this witness which will subject the defendant will also show that the witness is guilty. The District Attorney replied that he had entered a nolle pro- sequi on the prosecution against the witness, and the time for institutiug a new prosecution has elapsed, the offense having been committed more than two years ago. ^ *** ' Further, the only point to which we propose to direct the testimony of the witness is, that John Smith was owner of certain slaves. To establish that point will not implicate the witness. Nothing is more common in criminal trials than to call upon a partieeps eriminis to testify. Edwards, J. — That is where the witness does not object. But here the witness does object. The District Attorney observed further that the witness came here voluntarily, and agreed to testify. He ought not now to surprise us by refusing to testify. It would be hard on the part of the United States if he were permitted to conduct in this manner. Edwards, J. — That is of no consequence. The only ques- tion is whether he can be compelled to testify to what may implicate himself, because two years have elapsed since the transaction. The District Attorney then insisted that the lapse of two years after the offense was committed without any prosecution is unquestionably a complete bar, and cited Adams, q. t, v. Wood, 2 Cranch, 336. The witness is now as secure from the penalties of the statute as though he had never committed the offense. 86 United States v. Smith. Daggett, for the defendant. The United States Statute of Limitations has a proviso expressly excepting persons fleeing from justice from its operation. The latter clause of the thirty-second section of the Act of Congress of April 30, 1790 (vol. 1, p. 114) , is as follows : " Nor shall any person be prosecuted, tried, or punished for any offense not capital, nor for any fine or forfeiture under any penal " statute, unless the indictment or information for the same shall be found or insti- tuted within two years from the time of committing the offense, or incurring the fine or forfeiture aforesaid." Then follows this proviso: "Provided that nothing herein contained shall extend to any person or persons fleeing from justice." It appears [***J that this witness has been out of the United States a considerable part of the time since the transaction took place. [This had been previously stated, and admitted by the counsel for the United States.] Now, a fleeing from justice is nothing more than avoidance, a going out of the jurisdiction to avoid prosecution. So the construction has been as to fugitives from justice from one State into another. But at any rate the witness will be jeopardized by testifying, and this is sufficient to excuse him. If prosecuted for this offense he must plead the Statute of Limitations. The attorney for the United States may then reply over a fleeing from justice. This he will attempt to support by showing that the witness has actually been without the jurisdiction of the United States. Will not this jeopardize him? The Statute of Limitations never purges the offense. Nothing but a pardon will afford the offender complete security. The case of Bollman, on Burr's Trial was referred to: the question there was whether Bollman was bound to accept the pardon. But without the pardon it was admitted that he could not be called upon to testify. Peters, for the United States, contended that a fleeing from justice within the proviso of the statute must be a fleeing from a prosecution begun. Edwabds, J. — That point Avas decided otherwise by Ch. J, Ellsworth in the case of Isaac "Williams. He said it made no difference whether a prosecution was commenced or not. Goodrich stated that in Williams' case the offender had simply been in a foreign country, and it was considered as a fleeing from justice. United States v. Smith. 87 Edwaeds, J. — I am prepared to give my opinion on the point, but if the jury should find a verdict against the defendant I will give him an opportunity to move ' **" ' for a new tibial, and have the opinion of Judge Livingston. It appears to me that the witness is prima facia protected from prosecution by the Statute of Limitations. The answer comes from him. He says he is not protected because he has fled from justice. But he ought not to make his fleeing from justice (his own crime) a ground for withholding his testimony. At the same time the court will take care that the witness be not entrapped. The attorney will not be allowed to say now that the prosecution is barred, and thus obtain his testimony, and afterwards bring for- ward a prosecution, and say that it is not barred, because the witness has fled from justice. The witness must testify. In the course of the trial the district attorney offered the deposition of Thaddeus R. Austin. It appeared that the sub- stance of this deposition had been copied by the deponent from another paper which he had written at Suffield about ten days before. The certificate of the magistrate who took the deposition was as follows : " Personally appeared the above-named Thad- deus E.. Austin of Suffield, in the State of Connecticut, and being duly cautioned, made oath to the truth of the above depo- sition by him subscribed, and written in my presence," etc. Daggett objected to the admission of this deposition on the ground that it was not taken as the act of Congress requires. The 30th section of the Judiciary Act (vol. 1, p. 69), provides, that every person deposing shall be carefully examined, and cautioned, and sworn, or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given, after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence. This testimony was not reduced to writing t**'' by the magistrate taking the deposition, nor by the deponent in his presence. Pders, contra. Edwakds, J.— The provisions of the act of Congress relative to the taking of depositions are very important, and ought to be 88 United States v.' Smith. adhered to strictly. This deposition cannot be read. The ques- tion is not a new one. In England the lord chancellor has refused to admit depositions taken as this was. The transportation of the slaves from Africa to Havanna, as stated in the declaration, was clearly proved by the evidence adduced on the part of the United States. It appeared that the vessel arrived at Havanna more than two years before the com- mencement of the suit; but it did not appear that the slaves were actually sold until some time within the two years. Goodrich & Daggett contended that the offense charged in this declaration is complete when the vessel arrives ; and her arrival takes place when she is moored. It is not necessary that the slaves should be landed or sold. The District Attorney and Peters, contra, insisted that in order to constitute the offense in question the persons transported must be sold as slaves; if they are transported for the purpose of col- onization, or any other purpose than to be sold as slaves, it is no offense. But at any rate, they must be landed before the offense is complete. It does not appear that these slaves were landed more than two years before the commencement of the suit. If the defendant relies upon the Statute of Limitations for his pro- tection it belongs to him to show this, which he has not done. ri«8] Qoodrich, in reply, observed that it clearly belonged to the United States to prove the offense committed within two years from the commencement of the suit ; otherwise there could be no recovery. There is a manifest distinction between this case and that where a debt is admitted by the defendant, and claimed to be barred by the Statute of Limitations. Edwards, J. — That part of the case which rests upon the Statute of Limitations is extremely clear. My opinion is, and so I shall charge the jury, that the offense consists in transport- ing persons from one foreign country to another, with a view to their being sold as slaves; and as soon as the vessel arrives at the place of destination the offense is completed, whether the slaves are sold or not. It is incumbent on the attorney for the United States to show an offense committed within two years • United States v. Phelps. 89 and as this has not been done, there must be a verdict for the defendant. The jury found accordingly. Note. Pabty to Crime, When Compelled to Testify. — When the prosecution ia barred by the Statute of Limitations, a particeps criminis may be compelled to testify ; he is not privileged. ( Weldon v. Burch, 12 111. 37C ; v , 5 Cranch C. C. 119, approving case in text.) Depositioks Under United States Laws. — Depositions taken under United States statutes must be in strict conformity therewith, {Shanwiker v. Beading, i McLean, 240, citing case in text. ) THE UNITED STATES v. STILES PHELPS. [U. S. Circuit Court, District of Connecticut, 1810.— 4 Day, 469.] Ihdictmest — Varluioe Between Pkoof and Chime Changed.— Where in a prose- cution for resisting an officer of the customs the indictment improperly describes the office, the variance is fatal. Present Hon. Bkockholst Livingston, Associate Justice of the Supreme Court of the United States, and Hon. Pibepont Edwaeds, District Judge for the District of Connecticut. This was an indictment for assaulting Edward Cheese- borough, an inspector of the customs for the district of New London, duly appointed and sworn, knowing him to be such inspector, while executing the duties of his said office, under the direction of Jonathan Palmer, surveyor of the customs for said New London district, and for forcibly resisting him, the said Edward Cheeseborough, in the execution of his duty in said office. The District Attm-ney, in support of the indictment, oifered in evidence a warrant under the hand of Jonathan f*'®' Palmer, surveyor of the port of Stonnington, for the appointment of Cheeseborough as inspector of the customs. Daggett (with whom were Goddard and Billings), for the prisoner, objected to this evidence, on the ground that the law requires the inspector to be appointed by the collector, and rec- ognizes no other mode of appointment. 90 United States v. Feink. The CouET said the indictment must be strictly proved. The Attorney then observed that the surveyor had a right by law to appoint assistants in the execution of his office, and that it was penal to resist such an officer thus appointed ; and con- tended that Cheeseborough was an officer of this description, and that the warrant of the surveyor was admissible to prove his appointment in this point of view. The CouET acquiescied in the position that the surveyor might nominate assistants, and that it would be penal to resist them in the execution of their office ; but if a man is prosecuted for such an offense, the indictment must describe the assistants in their real character and capacity. Here Phelps is prosecuted for resisting an inspector of customs, an officer known and described in the law. It does not appear that Cheeseborough was appointed to that office ; and although he might have held another office, and how penal soever it might be to resist him, it is clear that this indictment cannot be supported. If Phelps be guilty of any crime it is that of resisting an assistant of a sur- veyor ; but he is charged with a different crime. No other evidence being offered. The CouET directed the jury to find the prisoner not guilty, which they did without retiring from their seats. THE UNITED STATES v. DANIEL FEINK. [U. S. Circuit Court, District of Connecticut, 1810. — 4 Day, 471.] Witness — Absence of, When Giiound fob Continuino Cadse. — Where a witness in a public prosecution having been summoned, and his fees tendered to him, refused to attend, the prosecutor moved to put ofif the trial in order to afford time for a caputs ; the court ruled that the trial must proceed, unless the prose- cutor would make affidavit that he could not, in his opinion, safely try the cause without the attendance of the witness. This was an indictment similar to the one stated in the preceding case. Peleg Palmer, of Stonnington, a witness in support of the indictment was summoned last September, and his fees tendered. He now refused to attend. Cobb v. Haydock. 91 The District Attorney moved for a delay of the cause in order to afford time for a capias. Livingston, J., said the trial must go on, and the party migiit apply for an attachment, or bring an action for damages. Such was the rule in England and in New York, The District Attorney stated that it was usual in Connecticut to delay a cause to afford time to bring in a witness. Edwards, J., coming in at this time, it was ruled by the court, after a short consultation, that the trial must proceed, unless the District Attorney would make affidavit that he could not, in his opinion, safely try the cause, without the attendance of Palmer. More witnesses are usually summoned than are necessary, and it would be unreasonable to put off a trial on account of the absence of a Avitness who was not essential, or who could state nothing further than other witnesses in court. Motion denied. JEDUTHAN COBB v. HENRY HAYDOCK & SON. [0. S. Circuit Court, District of Connecticut, 1810. — i Day, 472. J Set-off — Joint Debt Against iNDivronAL Debt. — Where a judgment has been obtained against one of two joint makers of a promissory note, by an indorsee thereof, the former cannot, either at law or in equity, set off a note given by the payee to him individually. This was a bill in chancery praying for a set-off. The case, as it appeared from the bill and answer, was as follows: "The respondents recovered judgment before this court, at this term, against the complainant in a suit in the name of Stephen Howard, brought on a promissory note for $1,016.68, executed by the complainant and Ashbel Stanley, dated the 24th of February, 17P6, payable to Howard on the 1st of October following, with interest after six months. On the 22d of December, 1795, the respondents sold goods to Howard to the amount of 371?. 9s. lOd. New York currency, on credit; and on the 26th of April following they received 92 Cobb v. Haydock. from him said note in payment, it being agreed that the surplus should be paid in goods at that time, which were accordingly delivered. Stanley was present at this transaction. One of the respondents asked him if the note was good, and would be paid, to which he answered in the affirmative, observing that he was as willing to pay it to them as to any one. Soon after the assignment of the note the respondents directed their clerk to give notice to the complainant, which they believe was done without delay. The complainant, however, denied having received notice of the assignment until October, 1796. On the 24th of March, 1796, Howard being justly indebted to the complainant in the sum of 100/. lawful money of Conneo ticut, to secure the payment thereof gave his promissory note for that amount, payable to the complainant on demand, with inter- est after fourteen months. On the 1st of April, 1796, Howard became insolvent, f*'*' and absconded, having never paid any part of this note. Stanley is a certificated bankrupt, and the complainant has no remedy at law that will be available. The respondents, at the time they received the note first men- tioned, had no knowledge of Howard's indebtedness to the com- plainant, or that he had ever given him a note as above stated. They avowed their intention to sue out execution on the judg- ment against the complainant. The bill therefore prayed the court, as a court of chancery, to decree the said sum of lOOZ., and interest may be set off and applied in part satisfaction of said judgment, and to grant an injunction for a stay of proceedings. J. T. Pete'rs, for the complainant, contended that the court ought to decree a set-off in this case, on the principle that an assignee takes a note subject to the same equity to which it was subject in the hands of the assignor. Haydock & Son had no more right here than Howard would have had if he had retained the note. In that case there could not have been a question as to the complainant's right of set-off. The case of Mitchell v. Old- field, 4 Term E,ep. 123, was cited. Daggett, for the respondents, said that a note executed in Connecticut, and negotiated in New York, might, in the State Cobb v. Haydock. 93 of New York, be sued in the name of the assignee. {Lodge v. Phelps, 1 Johns. Cas. 139.) Stanley told Haydock & Son at the time of the assignment that the note was due, and he was willing to pay it. The dec- larations of Stanley are to be imputed to Cobb. The acknowl- edgment of one co-partner saves a debt out of the Statute of Limitations. ( Whitcomb v. Wliiting, Doug. 652.) Set-offs are made only in case of mutual debts between the same parties. This is true in chancery as well as that law. (JSx parte Ockenden, 1 Atk. 237.) [*T4] jf J \iaYe a note against B. and afterwards execute a note payable to him or order, that he may sell it and raise money, and yet neglect to deduct my own note against him, it is more equitable for me to pay the note thus sold, than for the assignee to lose it. Livingston, J., delivered the opinion of the court. In deciding this cause we shall have no reference to the case of Lodge v. Phe/ps. Who has the greatest equity to this money, Cobb, or Haydock & Son? The note in question is a joint note against Cobb and Stanley. Before receiving an assignment Haydock & Son consult Stanley, and are assured that the note will be paid. Haydock & Son then sell their goods on the spe- cific security of this note. Cobb stands in a different situation. He trusted to the personal security of Howard. The equity of the case is most clearly in favor of Haydock & Son. But if this case were to be decided at common law the result would be the same. Here is a joint note against Cobb and Stanley. Howard's note to Cobb alone could not have been set off at law against the note of Cobb and Stanley to him, if no assignment had been made. The note of "Howard is not reduced to judg- ment, and therefore the case of Mitchell v. Oldjkld does not apply. Bill dismissed with costs. 94 United States v. Allen. THE UNITED STATES v. ROBERT ALLEN. [U. S. Circuit Court, District of Connecticut, 1810. — 4 Day, 474.] Penalty Undeb Embabgo Act — Hecovebaele in Action of Debt. —An action of debt will lie in favor of the United States to recover the penalty given by the embargo act, for being knowingly concerned in a foreign voyage in violation of that act. If in such action the defendant plead nil debet, and the issue be found against him, the jury, and not the court, arc to fix the amount of tlie penalty. This was an action of debt brought to the District Court, alleg- ing that the defendant was master of the schooner Amazon, was concerned in fitting her out, and that by his procurement she escaped without any clearance '*'"•' or permit, and departed from the port of New Haven, and proceeded to a foreign port, con- trary to the provisions of the embargo acts, particularly the first supplementary act, approved January 9, 1808, and demanding the penalty of $20,000. The defendant pleaded nil debet, and the jury found a general verdict that " the defendant doth owe," without assessing dam- ages. On this verdict the court assessed damages, and rendered judgment for the amount against the defendant. An appeal being taken to this court, Staples, for the appellant urged a reversal of the judgment below on two grounds: — 1. That an action of debt is not sustainable in this case. (Peake's Ev. 272; 1 Chitty on Plead. 105.) 2. That if sustainable, the jury, and not the court, ought to have assessed the damages. The District Attorney, conira. Livingston, J. — This penalty may be recovered as under the collection law. The eighty-ninth section of that act (Stat. U. S. vol. 4, p. 427) authorizes a civil action only to recover the penalty for a breach. The word " suit " implies ex vi ter- mini, a civil action. No part of the collection law contemplates an indictment. The difficulties suggested are real, but the stat- ute has prescribed this course. It has been held by the Circuit Court in Vermont and in Virginia that the district attorney had no option, but was obliged to bring an action of debt until the enforcing law passed. Till then he was obliged to proceed by suit, and there is no suit adapted to the case but debt. Pendleton et al. v. Phelps et al. 95 As to the other point, his honor said, he chose keep the case suh jvdiee until the next term, and learn the practice in Vig- ginia and New York, where similar actions had been brought. He added, at the same time, f*'*^ that he had an opinion of his own, which was, that the jury ought to have assessed the damages. At the next term the judgment of the District Court in this case was reversed, one of the grounds of reversal being that the jurj' ought to have assessed the damages. Note. Action of Debt— Penalties and Fokfeitukes Kecotehable by. — The action of debt will lie at the snit of the United States to recover the penalties and forfeitures imposed by statutes. (StockiceU v. United States, 13 Wall. 543 ; Walsh V. United States, 2 Wood. & M. 34G, citing above case.) ISTATHANIEL PENDLETON, RICHARD L. HALLETT, PHILIP RHINELANDER, WILLIAM RHINELAN- DER, RICHARD HARTSHORN, WILLIAM KEN- YON, JOSEPH LINDLEY, JOHN DELAFIELD, ED- WARD LAIGH, Petitionees; TIMOTHY PHELPS, JOHN BULKELEY, PELEG P. SANFORD, ELIAS SHIPMAN, NATHAN BEERS, Respondents. [V. S. Circuit Court, District of Connecticut, 1810. — 4 Day, 476.] Statute or Limitations — Claim Against Estate of Deceased Pabtnee, When Babbed by. — A claim against tlie estate of a deceased partner, accruing in con- sequence of the insolvency of the surviving partner, after the Statute of Limita- tions had run upon the claims against such estate generally, is not barred, though not exhibited within the period limited by the statute. This was a petition in chancery. The circumstances stated in the bill, so far as they are necessary to understand the point decided, were as follows: In February, 1801, Peleg Sanford and Timothy Phelps, merchants in company, under the firm of Phelps & Sanford, applied to the petitioners to make insurance on the freight of the schooner Betsey, from New York to St. Jago de Cuba. The policy was valued at $4,000, and the amount was underwritten, in different proportions, by the peti- tioners. The schooner sailed from New York, and after arriv- ing in sight of her destined port, was captured and carried into Jamaica. The owners immediately made an abandonment, 96 Pendleton et al. v. Phelps et al. which the underwriters accepted, and paid for a total loss. The vessel and cargo were libelled in the vice-admiralty court of Jamaica, and, upon trial, a restoration of the property was decreed, the owners first giving bond to abide the event of a rehearing in the English admiralty court, to which the captors appealed, and from which the appeal was dismissed, and the sentence below confirmed. Pending the appeal, a dispute arose between the underwriters and the insured, respecting the liability of the f*''^'^ former to contribute to the expenses of the trials, and their right to receive freight, pro rata itineris per acti, stated at sixteen seventeenths of the voyage insured. The matter was submitted to arbi- trators, who awarded that the underwriters were entitled to a pro rata freight, upon payment of a proportionable part of the expense consequent upon the captor, in case the sentence of the vice-admiralty court should be confirmed. The petitioners," in pursuance of the award, paid their proportion of the expenses incurred by reason of the capture. The arbitrators made their award in February, 1803. In April, 1804, the sentence of the vice-admiralty court was confirmed. Peleg Sanford died in April, 1802, abundantly solvent, hav- ing made a will, in which the respondents, Shipman and Beers, were named executors, who accepted the trust, and caused the will to be proved and approved. Shortly after the decision in favor of the ship and cargo the petitioners commenced actions against Phelps, as surviving partner of the firm of Phelps & Sanford, to recover freight for that part of the voyage per- formed before the capture. It was agreed that all the causes should abide the event of a single trial, which eventually resulted in favor of the plaintiff. In 1806 Phelps became bankrupt, and obtained an act of insolv- ency in his favor, the claim of the petitioners remaining wholly unsatisfied. Peleg P. Sanford is now sole heir to the estate of Peleg Sanford, deceased. The petition sought relief against the heir and executors in consequence of the insolvency of Phelps, the surviving partner. To this bill there was a demurrer, under which the respond- ents relied upon the Statute of Limitations of this State against the claim stated in the bill, which provides that any persons not Pendleton et al. v. Phelps et al. 97 being inhabitants of this State shall have liberty to exhibit their claim against an estate which shall not be represented insolvent, at any time within two years after publication of notice; the same f*'*' statute having previously limited a shorter time for the exhibition of claims generally. (Stat. Conn. tit. 60, c. 1, § 23.) For the petitioners it was contended that they were not cred- itors of Sanford at the time of his decease, or within two years after. They were not creditors, either in law or in equity, until the bankruptcy of Phelps. There was, therefore, no necessity of exhibiting this claim to Sanford's executors within the two years specified in the statute. The term " claim," as it is there used, is synonymous with the word "debt," and imports a right to demand money out of the estate of the deceased. But can it be said that a person who has no such existing right, and perhaps never will have, is a creditor, or has a claim which must be exhibited within a limited time? Commissioners cannot report on future contingent claims. The estate of a deceased person is in certain cases to be sold for the payment of debts ; but it can- not be sold to pay contingent claims. The cases in the English books which show what claims may be proved under a com- mission of bankruptcy will illustrate our law, and confirm the position for which we contend. {TuUy v. Sparkes, 2 Strange, 867; Croolcshank v. Thompson, 2 Strange, 1160; Hockley v. Merry, 2 Strange, 1043 ; Goddard v. Vanderheyden, 3 Wils. 262 ; S. C. 2 Bl. Kep. 794; Ex parte Adney, Cowp. 460.) The case of Backus V. Cleveland, Kirby, 36, decided in this State is more directly in point. If at the expiration of the tfl^o years the petitioners had released all claims and demands whatsoever, it would have been no bar to this claim. There was no antecedent debt or duty, and therefore a release would not bar it. {Hoe's Case, 5 Co. 71 ; Hancock v. Field et al, Cro. Jac. 170; Belcher et TJx. v. Hud- son, Cro. Jac. 222; Whitton v. Bye, Cro. Jac. 486; Port^ v. Philips, Cro. Jac. 623; Cage v. Acton, 1 Eaym. Ld. 618.) The counsel for the respondents contended that the claim ought to have been exhibited to Sanford's executors f*'"l within the two years. The estate of Sanford was solvent, and when this is the case the law does not require claims to be proved to the executor. He pays such as he pleases, being liable on his Bkun. C. C — 7. 98 Pendleton et al. v. Phelps et al. bond for any abuse of his trust. But in case of an insolvent estate, the commissioners, who are the officers of the court of probate, decide on all claims presented to them, and their decis- ion is conclusive. In solvent estates the creditor is required only to exhibit his claim; in insolvent estates he must prove his claim. The object of the bond given by the heirs to refund (Vide Stat. Conn. tit. 60, c. 1, § 17) is to furnish means of payment for claims which the executor may have improperly rejected. In cases of insolvency it is the object of our system to bring estates to a final settlement. It is no reason for not presenting a claim that the amount is uncertain. Such must necessarily be the damages for breach of covenant, and in many other cases. (Jones v. Woodhull, 1 Root, 298.) The cases cited from the English books are all on the prin- ciple that the claims could not be sworn to, and by their statutes of bankruptcy no claims can be sworn to unless they are certain and liquidated. Our rule in regard to the estates of deceased persons is different. Unliquidated claims, as well as liquidated, may be exhibited against the estate of a person deceased. The case of FUly v. Brace, 1 Root, 507, was cited. [Edwaeds, J. — Before the case of FiHy v. Brace, the Superior Court had decided otherwise, though manifestly contrary to British authority. Livingston, J., said, that the only question here was, whether the petitioners were creditors of the estate of Sanford. There must be, within the two years, a claim, so that the claimant may be termed a creditor. It is of no consequence whether the claim be liquidated or not.] At law there is no claim against a deceased partner; t**"J but in equity both partners owe the debt, and also their representa- tives. The remedy is indeed against the surviving partner only; but there is no rule of law which limits the debt to him. It is correct in a court of equity to say that Sanford, or his represen- tatives, owed the whole of this money. Further, the money paid in this case was for a consideration which happened to fail. There was never any foundation for the payment of this money. The underwriters ought never to have paid it. The vessel ought never to have been condemned. Pendleton et al. v. Phelps et al. 99 There was, therefore, an equitable right to recover this money out of Phelps & Sanford when the vessel was condemned in the West Indies, The arbitrators decided that there was a claim against Phelps & Sanford under certain contingencies, which contingencies actually happened. The petitioners could have made a claim. They might have exhibited their claim if they had not proved the amount precisely ; and this would have been sufficient to save the case out of the statute. It is the policy of our laws that all claims should be limited. The Statutes of Limitation are favorably regarded in our courts. Livingston, J., asked if this claim was not barred by statute, would it ever be barred by our common law? The counsel for the respondents answered in the negative. Livingston, J., delivered the opinion of the court. After stating the case, as it appeared from the bill, he observed that the only question was whether the petitioners were creditors of the estate of Sanford in such a sense as to require the exhibition of their claim within the two years limited by the statute. It is the opinion of this court that they were not. It would have answered no purpose for the petitioners to have exhibited a demand t***'against Sanford's heirs. There is no case in Eng- land, or in this country, in law or equity, of pursuing the effects of a deceased partner while the surviving partner is solvent. Phelps was solvent during the whole two years claimed as the term of limitation. This is different from the case of a demand payable at a future period. It was here impossible to know that there would ever be a demand against Sanford, as it could arise only in con- sequence of Phelps' insolvency. This was an event not to be foreseen or calculated upon. The executors could not withhold property from heirs and devisees for such an uncertain demand. There is some force in the argument derived from the section of the statute requiring heirs to give a bond to refund in case of future creditors. This is like the case of a covenant of war- ranty, on which a claim may never arise. It is said that after a claim is discovered it must be presented 100 Estill v. Blakemoee. like other claims, in two years. But there is no force in such an argument. There is no law of that sort. The demurrer is overruled, and let the bill stand for an answer. Note. Estate op Deceased Paetner — Liabilitt for Paenekship Debts. — The estate of a deceased partner is under no liability for partnership debts, while the surviving partner is solvent. {Troy I. -VETANCE — Hegisthation OF, Necessaey TO Pass Leoal ESTATE. — Eegistratiou of a deed of conveyance is necessary to pass the legal estate to the grantee. Deed — ExECunou of, How Peoved. — The execution of a deed can only be proved by the subscribing witnesses. To prove the execution by authentication before a judge, his certificate must show where and in what capacity ho acted. 186 Patton & Erwin's Lessee v. BROwiir. In this cause the same questions arose precisely which did in the preceding case. The court was full, which was the reason why the counsel for the plaintiffs stirred them again. All the points were very fully spoken to by Dichinson and Cooke, for the defendant; and by Whiteside and £eoJc, for the plaintiffs. Todd, J. — I at first thought that the deed might be read in evidence without registration. I formed that opinion from a view of the Virginia statute on the same subject and the decis- ions upon it. Upon an investigation, however, I discover that there is no provision similar to the fourth section in the statute of Virginia in relation to the validity of the deed between the parties, and as to creditors and subsequent purchasers incor- porated in the statute of North Carolina, passed in 1715. By this statute registration is made expressly necessary preparatory to the passing of the legal estate to the grantee. Every deed, therefore, should be registered, because without this previous act the legal estate does not pass by the deed. The words of the act are plain upon this subject, and the necessity of a conformity to them cannot be dispensed with. The certificate of Judge Haywood is insufficient. It does not show the capacity or State in which he acted. Perhaps if it had appeared from the certificate that it was done in North Car- olina the probate might be viewed as legally taken and authen- ticated, f**''^^ But upon this point I give no opinion, as such a case is not now before the court. It is sufficient now to say that it does not show where it was done. As registration is necessary to vest the legal title in the grantee, much need not be said as to the other probate. It is barely the oath of a person who proves the handwriting of the subscribing witnesses and of the grantors, the witnesses and one of the grantors being dead. The act of assembly under which this deed could have been proved recognized no other mode of proof but the subscribing witnesses. These requisitions cannot be dispensed with. M'Nairy, J., concurred, and the deed was rejected. The plaintiffs were nonsuited. Vining's Lessek v. "Wooten. 187 VINING'S LESSEE v. WOOTEN. [U. S. Circuit Court, District of Tennessee, 1812.— 1 Coolie, 127.] Witness— Inoompetenoy rEOM Interest, How Peoved. — Interest of a witness for the purpose of proving liis incompetency to testify cannot be shown by hearsay evidence or declarations out of court. The plaintiff produced as a witness one William Chism. The counsel for the defendant objected that he was incompetent, and produced a witness who proved that he had heard Chism say if the plaintiffs gained the land he would get six hundred and forty acres of it. It was objected by Dickinson, Haywood, and Cooke, for the plaintiffs, that the interest could not be established from any- thing he had been heard to say on the subject. Whiteside, for defendants. Todd, J. — His interest cannot be proved in this way. It would be nothing more than hearsay evidence, which shall not affect the plaintiff. You may prove him incompetent from acts, or from facts that are capable of being seen and judged of; but you cannot show his interest by anything he has said. It might be that he would say a thing ^''■^^^ of that kind barely to prevent a party from having the benefit of his testimony. M'Nairy, J., said he was not perfectly satisfied with the opinion of hLs brother Todd. The objection to the introduction of the witness upon a division of the court would fail ; it was, therefore, unnecessary for him to give any opinion upon the subject, but he said it would seem strange, at first view, that if a witness should say that he was to have five hundred dollars of the income to be recovered by the plaintiff, this should not render him incompetent. The acts and facts spoken of may exist only in the knowledge of the witnesses and the party. Note. Deciabations-of a Witness as to his interest are not admissible to prove ;us incompetency to testify. (See Erickaon v. Bell, 53 Iowa, 631, citing case in text.) 188 Henderson's Lessee v. Long. HENDERSON'S LESSEE v. LONG. [U. S. Circuit Court, Diatriot of Tennessee, 1812.— 1 Cooke, 128.] Desoeiption in Gkant— Adjacent Constbued. — Adjacent does not mean adjoin- ing, it Bignifies convenient, near to, or in the neighborhood. Geant— Calls ih Entky. — A call in an entry may be made good by description, though the object called for is not notorious, SuBTEY, How Made Whebb Calls aee Indefinite Where the calls in an entry arc indefinite the surrey should be made either in a square or an oblong. The plaintiff claimed under the elder grant. The defendant, for the purpose of showing his claim of title produced in evi- dence a grant younger than that of the plaintiff, and the follow- ing entry, which was the foundation of it: — " Samuel Long enters five thousand acres on the south side of Duck River, in Green County, beginning at General Green's southwest corner, and running south and east for quantity. 27th October, 1783." The plaintiff then produced the following entry, upon which his grant was founded, older in date than the entry of the defendant: — "Alexander Martin enters two thousand acres, lying on the first large creek running into Duck River on the south side, below General Green's survey, including a lick on the creek known by the name of Prewitt's Lick, near the center of a sur- vey. 18th October, 1783." This entry was made under a particular law of North Caro- lina, which directed that Martin's land t'^*'*' should lie adjacent to the military boundary line. It was surveyed ten or fifteen miles from the boundary. Several witnesses proved the notoriety of the large creek spoken of in the plaintiff's entry ; and some testimony was intro- duced in relation to the notoriety of Prewitt's Lick. General Green's survey was proved to have been notorious before the date of the plaintiff's entry. Whiteside, for plaintiff. Haywood, for defendant. By the Court. — The North Carolina legislature authorized Alexander Martin, under whom the lessor of the plaintiff derives Henderson's Lessee v. Long. 189 title, to enter two thousand acres of land adjacent to the military boundary. It does not seem to the court that the legislature intended, by this expression, to compel Martin to adjoin the line. Adjacent, strictly speaking, does not mean adjoining ; it means that it shall be in the neighborhood, or convenient, or near to the place mentioned in the act. The act did not make a location of the land ; it only in substance required that when it was made it should lie near to the military line. If the jury should be of opinion that Prewitt's Lick was notorious at the time the entry of the plaintiff was made, the entry is good. And besides, it may be remarked that a call in an entry may be made good by description as well as notoriety. If objects are called for by description, and that description is insufScient, the entry then can only be made good by establishing the notoriety of the object. But if the description is good, and is such as will reasonably lead a subsequent locator to the object, the entry is good, although the object may not be notorious. Upon this idea suppose we discard altogether that part of the entry which mentions the name of the lick; will not the entry still be good? There is but one lick proved to be upon the creek. General Green's survey was well known, and the creek was well known. These are called for in the entry as a descrip- tion, which may lead to ascertaining the place where Martin made his entry. It seems to the court that a subsequent enterer could, with reasonable diligence, having this description before him, have found the lick ; and when he found the lick he would have known i^***' that it was the place where the entry had been made. It has been objected that the plaintiff's survey is made in an oblong, whereas it ought to have been made in a square. We believe that the law authorized surveys to be made either in a square or oblong wheg the calls were indefinite. If there should be a call, seeming to exclude the idea of an oblong figure, then it ought to be surveyed in a square. In this case the survey is in an oblong, including the lick in the center, and we believe there can be no legal objection to it. 190 Bass' Lessee v. Dinwiddie. BASS' LESSEE v. DINWIDDIE. [V. 8. Circuit Court, District of TenneBsce, 1812. — 1 Cooke, 130.] OoouPANOT — Qdestion OF FACT— STATUTE CoNSTBUED. — Ocoupancy is a question of fact for the jury. No person can claim the privileges of au occupant under the statute unless he has actually settled on land claimed. OooupANT Law — Taliditi op. — The occupant law of this State, so far as it violates the compact with other States by giving preference to its citizens over those of the other States, is void. Title — Oldest Gbant as Evldence op. —The oldest grant is conclusive evidence of title at law, except iu the single case of an elder legal entry. The plaintiff is a citizen of North Carolina, and claimed the land in controversy by a grant, older in date than that under which the defendant claims. To obviate that the defendant produced in evidence an entry made on the 3d day of August, 1807, of an occupant claim, under the law of 1806, which was prior to the date of the plaintiff's grant. The plaintiff then produced an entry upon a military warrant made the 5th day of August, 1807. The oiSces for receiving and making entries were opened on the 3d day of August, 1807 ; but it appeared that no entry had been made until the 5th day of August, except as to occupant claims. The holders of warrants were obliged to have them listed, and then drew for priority of entry which was not done as to occupant claims. The compact between North Carolina and Tennessee contains the following provision : — " That in the entering and obtaining titles to lands, no pref- erence shall be given to the citizens of the State of Tennessee over citizens of any other State, claiming 1*"^^ under North Car- olina; nor shall any occupancy or possession give preference in entering or obtaining titles so as to injure or take away the right of any person now claiming by entry, grant, or otherwise, under North Carolina." This compact was ratified in the year 1804. The section of the occupant law of 1806, under which the defendant made his entry, is as follows: — " That any person or persons who may have seated him, her, or themselves on any vacant and unappropriated land within the jurisdiction of this State, and who were in actual possession of the same at and before the 1st day of May in the present Bass' Lessee v. Dinwiddib. 191 year, such person or persons shall be entitled to a preference of entering the same for three months after the first Monday in June next, upon any good and valid warrant." Testimony was introduced to show an actual settlement at and before the 1st day of May, 1806; but this point was contro- verted by other evidence. The cause was very fully spoken to by DicM^ison, for the plaintiff, and by Haywood, for the defendant. By the Couet. — The question of occupancy is a question of fact to be determined by the jury. One thing, however, is cer- tain, that unless the occupant was seated on, and in actual pos- session of, the premises at and before the first day of May, 1806, he was not as such entitled to make his entry. The privilege given was intended in favor of the actual settler, and before any person can claim the extension of it to him he must show that he comes within the law. But it has been argued by the counsel for the defendant that his entry is good, independent of the occupant law. To this it may be replied that he can no otherwise claim. At the opening of the ofiice the holder of a warrant, desirous of making an entry, was to have it listed, and then draw for priority of entry. This was not necessary upon the warrants which were to be entered as occupant claims, nor was it done in the case of the defendant's warrant. This was a preference allowed to the occupant claimants '■'**^ over the common holder of a warrant. It also appears that the first entry made upon the listed war- rants was on the 5th of August, two days after the defendant's entry. And besides, the entry upon the face of it expresses it to be an occupant claim. From hence it follows that the claim of the defendant must be viewed as an occupant claim. It has been contended that the claim of the defendant is void, being derived from an act of assembly expressly violating the compact. The court are also of this opinion. The compact expressly declares that the State of Tennessee shall give no preference to her own citizens over the citizens of any other State deriving title under North Carolina. The object of this was to place all claimants upon the same footing, and not to permit a fair and bona fide holder of a warrant to be postponed 192 Bass' Lessee v. Dinwiddie. in favor of a citizen of Tennessee. The State of Tennessee has no power to perfect grants for land unless what is derived from the compact. If this be the case, how stand these claims? Both plaintiff and defendant hold warrants which they wish to enter. One of them is a citizen of North Carolina, and the other a citizen of Tennessee. The legislature of Tennessee pass a law declaring that an occupant who actually settles upon the land shall have a preference in entering the same at any time within three months from the first Monday in June, 1807. By virtue of this law the occupant enters the land at a time when the other holder of the warrant cannot make an entry because of the preference given to the occupant who is necessarily a citi- zen of Tennessee. Is this not giving a preference to the citizens of Tennessee over the citizens of any other State? There can be no doubt of it ; and therefore the law in such respect is void. It may be ajso remarked that this cannot be called an act of the legislature in its sovereign capacity. The power to make any law on the subject is derived from a marked and designated authority. This authority cannot be exceeded, or the act will be void. An attempt is made to liken this case to that of Ghilerist v. Nixon. Without attempting to f-^**' show all the distinctions that exist, we will remark that in that case both the entry and grant of Ghilcrist was of an elder date than that of Nixon. The real ground the court went upon in determining in favor of Ghil- crist was that we would not permit the consideration of the grant to be inquired into in a court of law. We were of opinion that the oldest grant was conclusive evidence of the title at law, except in the single case of an elder legal entry. That was not the case there, because Ghilcrist's grant was older than Nixon's entry. We were of opinion, under these circumstances, that the consideration of that grant could not be inquired into. That case, therefore, is not similar to the present. Note. Belation Between Eldeb Legal Entey akd Later Gbant. — See Donegan v. Taylor, 6 Humph. 503, citing case in text Patton & EKWiiif's Lessee v. Cooper. 193 PATTON & ERWIN'S LESSEE v. COOPEE. |U. S. Circuit Court, District of Tennessee, 1812. — 1 Cooke, 133.] Ejectment — Bbootebt in Action of. —In an action of ejectment plaintiff may recover less than he declares for, but he cannot recorer more than prayed for. Deed — Effect of Eeoisteatioij of. — The registration of a deed vests the legal estate in the grantee, as of the date of the deed, and relates back to that time. The plaintiflfe produced in evidence in support of their title a deed from John G. Blount and Thomas Blount to David Allison, which had been proved and registered as to John G. Blount, but not proved as to Thomas Blount. The proof and registration were after the commencement of the suit, and the demises laid in the declaration. It was objected by Dickinson and Ooohe for the defendant that this deed could not be viewed as the deed of both the grantors when only proved as to one ; and that therefore as the plaintiffs had brought suit for the whole of the land they ought not to recover; as, if they did recover, it could only be an undivided moiety. It was also objected that the suit had been brought and the demises laid in the declaration long previous to the registration of the deed; and that inasmuch as no interest passed to the grantee until registration, the plaintiffs had commenced their suit before they had any legal title. Whiteside, for the plaintiffs. [134] gy ^.j^g CouET. — It is true this deed can only be read as the deed of John G. Blount, and that in consequence thereof the whole cannot be recovered in this action ; but it is equally true that an undivided moiety may. If the plaintiff declares in ejectment for the whole he may recover a part ; or if he declares for a part he may recover less. The rule is that he may recover less though he cannot recover more than he declares for. (2 Hayw. 150, 222; 1 Burr. 326; Eunn. Eject. 104; 1 Johns. Cas. 101.) But it is further objected that the deed has been registered since the demises laid in the declaration. To this we will reply, that although a deed does not pass the estate to the grantee until registration, yet, when it is registered, it relates back to the time Bbun. c. c — 13. 194 Dougherty's Heies v. Edmiston. of the execution ; and the grantee in such a case is considered as having been seized from the beginning. (2 Hayw. 287, 288 ; 1 Bac. Abr. 277, 278; Cro. Car. 217; Cro. Jac. 52; 2 Com. Dig. 65, 66.) The ease in 2 Show. 207, is perhaps founded upon the par- ticular bankrupt laws of England ; but be that as it may, it is a single case, and is not supported by any other decision. It is directly in opposition to the whole current of principles upon this subject. We are therefore of the opinion that the deed may be read as the deed of one of the grantors, and that the plaintiff can recover an undivided moiety. DOUGHERTY'S HEIRS v. EDMISTON. [U. S. Circuit Court, District of Tennessee, 1812. — 1 Cooke, 13i.] GkAnt to Deoeased Pebsou — Eights of Heirs Uhdee. — By tlie common law nothing passes to the heirs under a grant to a deceasisd person ; but under the statute an entry and grant in the name of a deceased person, founded on a removed warrant, will pass the land to the heirs, if the entry be in the lifetime of the grantee. The plaintiffs' ancestor, George Dougherty, made an entry in 1784, upon which a warrant issued. A law was passed by the State of North Carolina providing that if any person should lose the land which they should enter, the person so losing it might remove f**^^ his warrant to any other vacant and unap- propriated land. The land first entered by Dougherty in 1784, from some cause or other, could not be held; in consequence of which, upon the aforesaid warrant, another entry was made, after the land office opened, in 1807, upon which, in the same year, a grant issued. This last entry, and the grant thereon, was made in the name of George Dougherty, who was proved to have died many years before. The legislature of North Carolina made a provision that if any person made an entry and then died, his heirs should inherit the land, although the grant might issue in the name of decedent. DOTJQHEETY^S HeIES V. EdMISTOJST. 195 The question was, whether any interest could pass to the heirs of George Dougherty under these circumstances? It was argued at length by Haywood and Whiteside, for the plaintiffs ; and by Dickinson and Cooke, for the defendant. Todd, J. — It cannot be questioned but that at common law a grant to a deceased person passed no estate to his heirs ; or in other words, nothing passed by the grant. But the legislature of North Carolina, supposing this principle to operate inconven- iently, in the year 1779 passed a remedial law on the subject, and declared that where a man made an entry, and then died before a grant issued, the estate should pass to his heirs, although the grant issued in his name after his death. The warrant which authorized the entry in 1807 was founded upon a previous entry made in 1784, during the lifetime of George Dougherty. If that entry had been directly carried into a grant in the name of Dougherty, although after his death, yet the estate would have passed to his heirs under the Act of 1779, before alluded to. This would have been the fact if the first entry had been special ; but it was not special, and therefore it was re-entered in 1807. Shall not this last entry relate back to the first? Not in such a manner, I admit, as to make the claim, in point of priority, good from 1784, but for the purpose of bringing it within the Act of 1779. [isejrpj^g Act of 1779 should be construed liberally. It is a remedial law, and should be construed so as to advance the remedy and suppress the mischief. I am of opinion that this case comes fairly within the spirit and meaning of it. I do not consider the entry made in 1807 entirely as an original entry, but rather as a re-entry. And there is the less difficulty in giv- ing this construction, as no inconvenience results from it, and because it works no injury to any person. M'Naiey, J., accorded with the opinion of Judge Todd as to the Act of 1779 being remedial. He, however, very much doubted whether the grant could pass any estate to the heirs of Dougherty. He said he would acquiesce in the opinion, though he was far from being satisfied. 196 SiMMs' Lessee v, Dickson. MATHEWS V. DOUGLASS. [U. S. Circuit Court, District of Tennessee, 1812. — 1 Cooke, 136.] iNJuucnoN, When Gbamted. — An injunction will not be granted during the ppn- dency of an action unless the parties asking relief in equity Avill confess judgment at law. Douglass brought an action at law against Mathews, and filed his declaration, to which Mathews demurred. During the pendency ctf the action at law, and indeed before the demurrer had been determined, Whiteside-, on behalf of Mathews, and upon a bill filed for that purpose, moved the court for an injunction. Dieldnson, on behalf of the plaintiff at law, objected to an injunction being granted unless the complainant would confess a judgment. By the CouET. — An injunction generally operates as a release of errors; but if it be granted as this case now stands it will not so operate here. Suppose the injunction is granted to stay the proceedings at law, and ultimately there would be a decree against the complainant? He may still go on, and if the dec- laration is defective prevent the recovery of f*"'^ the claim, or at least delay it, without any pretence founded in justice. And besides, should the demurrer be decided ag-ainst him, he might prosecute a writ of error. We, therefore, will not grant the injunction unless the complainant will confess a judgment at law. And it was done accordingly. SIMMS' LESSEE v. DICKSON. [IT. S. Circuit Court, District of Tennessee, 1812.— 1 Cooke, 137.] Ghant— NoTOBiETY OF Ob-tects CALLED FOB IN Ehtry. — Notoriety will cure a defective description in an entry, and in case of conflicting rights will be sufB- cient, if such notoriety is established before the date of the conflicting entry. In this case both plaintiff and defendant claimed under grants from the State of North Carolina. The grant under which the lessors of the plaintiff claimed title was dated in 1792, and was SiMMs' Lessee v. Dickson. 197 of an older date than the grant of the defendant. The defend- ant produced in evidence an entry made on the 23d day of October, 1783, in the following words : " Jonathan Greaves enters three thousand acres of land lying on the north side of Duck River, on the first creek above Spring Creek, beginning on said river three quarters of a mile below the mouth of said creek, running north and east for quantity." Upon which entry a grant issued in 1795, containing the fol- lowing description of the land : " Beginning on the north side of Duck River, on the said river, about three quarters of a mile below the mouth of the first creek above Spring Creek, at a beech, runnuig thence north," etc. The grant then describes the boundaries. Spring Creek was proved to be notorious as early as Feb- ruary, 1784; and the witnesses who proved this notoriety also stated that a Mr. Drake, since dead, told them it had been named by himself and another man in the summer of 1783. It did not appear that any person except those two men had ever been on Spring Creek at or before the entry of f^**^ Greaves was made. The creek has been called Spring Creek ever since. There was no proof that the corners and lines called for in the defendant's grant could be found or were in existence. The defendant also produced a plat of survey upon which the grant issued, describing the land in the same words used in the grant. The cause was argued by Hayes and I}lokinson, for the plaint- iff, and Cooke and Whiteside, for the defendant. Todd, J. — The first question which presents itself is as to the notoriety of Spring Creek. "Whether it possessed sufficient notoriety is a question of fact to be determined by the jury ; but it may not be amiss to make some observations upon the subject of notoriety. Let it first be observed that the oldest grant cannot be set aside but by a special entry previously made. What is a special entry? Nothing more than an entry which truly describes the objects for which it calls. Upon examining the North Carolina land law it will be found that nothing is said about notoriety. It has been introduced by the courts for the purpose of aiding 198 SiMMs' Lessee v. Dickson. an entry otherwise defective. The object of the legislature was that every entry should be so made as to afford to a subsequent locator a reasonable opportunity of finding the land first located. This, no doubt, was the point of view in which the legislature of North Carolina considered the subject. But it happened in a great many instances that the locator in describing the land used a defective description. This, of course, made the entry void, unless something else appeared to remedy the defect. Under the influence of these considerations the courts of justice have very properly determined that, in the case of a defective description, the entry will still be good if the objects called for in the entry were notorious, that is, generally known by persons conversant in that section of the country. Thus we see that the whole doctrine of notoriety has been [139] introduced for the purpose of aiding an entry, and we ought to be cautious how we permit it to work a destruction. When we speak of notoriety we do not thereby mean that the object is known to all the world. It is intended only to con- vey the idea that the object was known by the name specified in the entry, to persons generally who lived or were conversant in the section of the country where the object existed. Where notoriety becomes necessary to be proved, the material matter to establish is, was this object generally known by the name men- tioned in the entry, to persons conversant in the part of the country where the land is supposed to lie? If this question is affirmatively ascertained the notoriety of the object is established. It seems not to be questioned but that Spring Creek was suf- ficiently notorious before the commencement of the plaintiff's claim ; and it has been argued that although the creek was not generally known at the time the defendant's entry was made, still the entry is good, if it acquired notoriety before the adver- sary claim originated. Upon this point I wish to be understood as giving no opinion. I determined against this argument in Kentucky, in the case of Idggett v. Marshall; but the ground of that determination was that such was the settled doctrine in the State courts. If it had been a case res integra I am not pre- pared to say that a similar decision would have been made. In this State, so far as I know, the question is not understood as settled either Avay; so that it may be taken up and decided upon SiMMs' Lessee v. Dickson. 199 principle. But I repeat tliat I do not wish to be understood as giving an opinion upon the point positively, though I confess that I am strongly inclined to the idea that if the object called for becomes notorious before the conflicting entry is made the purposes of the law are satisfied. (Hardin, 71.) As to the word " about," used in the grant, I am of opinion that it does not make the land uncertain. It has always been determined that the word "about" signifies in an entry or grant "at," unless something can be shown to evidence a contrary intention. If a grant '***' calls to begin " about a mile from Nashville," giving the course, but giving no other description of the beginning, the beginning should be precisely at the eud of the mile. Or suppose, as in this case, the grant calls to begin "on Duck River about three quarters of a mile below the mouth of the first creek above Spring Creek, at a beech." Now if the beech can be found that must be the place of beginning ; but if the beech cannot be found, then the beginning must be at the end of three quarters of a mile, meandering the river from the mouth of the creek. If two objects are called for in the grant as the means of identifying the land, one of them mutable, and the other immutable, viz., a tree and the mouth of a creek, and the tree can be found and identified, but the mouth of the creek cannot, yet the grant would be held sufficient, for the land is legally identified. Surely the principle upon which such adjudi- cations have been made will operate at least as fully in a case where the mouth of the creek is established and identified, although the tree cannot be found. It is therefore my opinion that the beginning mentioned in the grant is well enough described. It may be also remarked that in the construction of the word " about " the decisions have not been single. The same rule has been applied to the expression "near"; and so a call to run eastwardly has been adjudged to mean due east, unless there be some object which can be found to control the course. Similar decisions have been made in relation to all such doubtful expressions. As to the call for the tree I will barely add that perhaps one never was marked. If such be the fact the omission was the fault of the surveyor, and should not prejudice the grantee. 200 SiMMs' Lessee v. Dickson. It is suiRcient if he can show enough of the objects called for in the grant to identify the land. M'Naiey, J., concurred with Judge Todd in the opinion which he delivered. Upon the subject of subsequent notoriety- he added : The whole object of either description or notoriety is to enable a subsequent locator who uses reasonable industry to find t**^^ the land first located, and thereby prevent an interfer- ence. My opinion, decidedly, is that if the objects called for are notorious at the time the entry is made, or become so before any person else makes an entry, the object of the law is complied with. It is refining too much to say that the entry shall be void, although it acquires the qualities of a good entry before the creation of other rights. What right has the second enterer to complain? He cannot say that he has been deceived; he cannot say to the first locator, " Your entry is void, because the objects called for in it were not notorious; by which means I was deceived, and induced to make an entry which inter- feres with your claim." He cannot say this if the objects were notorious before he made his entry ; because, in that case he could not be deceived or misled. Suppose an entry to have been made a great many years ago, calling for the French Lick, but before it was known to a sufficient number of people to give it notoriety. It is known that at this day no place in West Tennessee is more notorious. If an entry were now to be made so as to interfere with the first entry, will any person pretend to say that it would hold the land ? The object of notoriety is to give notice ; and if this notoriety is acquired before the making of the second or subsequent entry, every purpose for which notoriety has been deemed necessary is answered. In short, I am clearly of opinion that if an entry possesses the quality of a good entry before the creation of other rights, it is valid, although the objects called for were not notorious at the time the entry was made. Verdict for the defendant. Note. Lakd. — ErrECT of Notoeiett of Objects Called Fon in Ektby. — See McMillan v. Claxton, i Hayw. 279, citing above case. Beard's Lessee v. Talbot. 201 BEARD'S LESSEE v. TALBOT. [U. S. Circuit Court, District of Tennessee, 1812.— 1 Cooke, 142.] Evidence — ■ Hearsay Adioissible to Prove Boundaries. — Hearsay evidence ia admissible for the purpose of proving boundaries, ancient land marks, pedigree, and prescription. In the course of the trial of this cause it became necessary for the defendant to show where Julias Sanders and others crossed Elk River in 1781, it being the place of beginning called for both in the entry and grant of the defendant. The defendant introduced a witness, Joseph Greer, to prove what Alexander Greer told him had been said by Julias Sanders upon that subject. Both Sanders and Alexander Greer were dead. It also appeared that, at the time the statement was made by Sanders to Alexander Greer, another person was present, to wit, a man by the name of Waldin. It did not appear that Waldin was dead, or that the defendant could not get his testimony, Haywood and Whiteside, for plaintiff. Hayes and Cooke, for defendant. By the Court. — It was determined in the case of Athol v. Ashburnham that, for the purpose of proving a pedigree, a wit- ness might detail what another had told him he heard a third person say on the subject, both these persons being dead. (Bui. N. P. 295.) If that determination be law, and the court have no reason to doubt it, the evidence now offered is admissible. We admit that every remove which is made from Julias Sanders renders the testimony weaker, but it is still competent. The object is to prove where Sanders crossed Elk River. No doubt exists but that this may be done from evidence of what persons now dead have been heard to say. The same rule applies to all cases of pedigree, prescription, or ancient, land marks. If Alex- ander Greer were living and present it would be competent for him to prove what Sanders had said ; and he being dead, Joseph Greer may be permitted to prove what Alexander told him had been said by Sanders. It is equally '***^ competent, though weaker, testimony. The reason why, in cases of pedigree, pre- scription, and ancient boundary, the party may prove what per- 202 United States v. Anderson. sous, then dead, have been heard to say when living is, that in such cases the party claiming the benefit of the evidence shall not be deprived of it by the death of the witness if he can in anywise show what knowledge the witness had on the subject. What he has been heard to say is pretty strong evidence of what he knew. But it has been objected that the defendant ought to produce Waldin, as he is now living. Perhaps Waldin's statement would be more satisfactory, but that does not render the evi- dence offered inadmissible. It might be contended, with .the same propriety, that evidence direct of what Sanders has said would not be admissible testimony, because other persons were along with him when he crossed Elk River^ who are now living, and capable of being produced. Let the witness be examined. Note. Ancient BorNDAiiiEa may be Pkoved by Reputation, and hearsay evi- dence is admissible for that purpose. {See Lamar y. Minter, 13 Ala. 39; BUeyv. Griffin, 16 Ga. 149; McGloud v. Wynatt, 2 Cold, 165; citing above case.) THE UNITED STATES v. ANDERSOK [U. S. Circuit Court, District of Tennessee, 1812.— 1 Cooke, 143.] Habeas Cokpus — Enlistment of Minobs in the Aemt. — The enlistment in the army of a minor without the consent of his parent is a ground for discharge, on habeas corpus, at the instance of the parent. This was a writ of habeas corpus, directed to Colonel Ander- son, requiring him to bring up the body of Zebedee Bigby, alleged to be in his regiment and under his command. The application for the habeas corpus was made by George Bigby, the father, in a petition setting forth that the said Zebedee was under the age of twenty-one years, and had been enlisted without the consent of the father, master, or guardian. The facts set forth in the petition were well supported by affidavits. Upon the investigation of this case two questions f***^ arose : first, Whether this court had a right to discharge the soldier until an application had been fruitlessly made to the secretary of war? and secondly, Whether he could be discharged, as the application was not made by him, but by his father? The son United States v. Anderson. 203 was about eighteen years of age, and there was no proof that he wished to leave the service of the United States. Hayes and Mordgomery, for the applicant. Whiteside and Cooke, for the defendant. M'Naiey, J., (absent Todd, J.) — The first objection taken by the defendant's counsel in this case is that where a man of any age has signed the enlistment, taken the oath, and been mustered in, no judge has a right to interfere by habeas corpus to discharge him until the war department has improperly refused. The Constitution of the United States, art. 1, § 9, declares "that the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it." Congress could not pass a law vesting the war department with a power which would in effect suspend the writ of habeas corpus. The judges, by law, are vested with the power to issue writs of habeas corpus in all cases where citizens are illegally confined. Men constrained to enlist by force, or enlisted under the age of twenty-one, without the consent of their parents, masters, or guardians, are illegally confined. They are not regularly soldiers, not having been properly and legally enlisted, and are therefore entitled to their discharge upon a writ of habeas corpus. In this case the proof is clear that the son is under the age of twenty-one years. It is next insisted that the habeas corpus issued improperly, the application having been made by the father and not the son, and that, therefore, the writ should be quashed. To support this idea the defendant's counsel have cited 6 Term Rep. 497 ; 7 Term Rep. 745; Cowp. 672. In the first case cited the apprentice was twenty-two years of age. The court, in giving their opinion, founded it not only on the apprentice being [145] of sufficient age to judge for himself, but also because he wa.s over the age of eighteen, under which, by the statute of Anne, apprentices could not be impressed. The plain infer- ence, that if he had been under the age of eighteen the impress- aaent would have been illegal, and the apprentice would have been restored to his master upon a writ of habeas corpus. The case in 7 Term Rep. 745, is expressly decided on the 204 United States v. Andekson. authority of the first case. It is not stated what was the age of the apprentice, but as the court refer to the former case, it is fair to suppose he was over the age of eighteen. The case in Cowp. 672, is a writ of habeas corpus directed to the commanding officer of a man-of-war, on board of which the two persons intended to be brought up were acting in the capac- ity of common sailors, but not as prisoners. The court said that if the men were served with subpoenas they might have been willing to attend, and that they could not be brought up as prisoners without their consent. The court cannot conceive that the case has any analogy to the one now before it, except in the general words used by the court "that they can never be brought up as prisoners against their consent." The court surely never intended this expression to extend to the cases of , idiots,/emme coverts, minors under the age of discretion, or even to minors under the age of twenty-one who are confined expressly against law. On the other side, the counsel in support of the habeas corpus have cited 1 Burr. 339; 1 Strange, 579; 2 Strange, 982; 2 Burr. 1334; 1 Strange, 641; 1 Burr. 542, 606; 2 Burr. 115; 1 Burr, 687; 3 Burr. 1434; 3 Bac. Abr. 5, 6, 15. Without referring particularly to those cases it may be remarked that they go to show a writ of habeas corpus may issue at the instance of persons other than the one confined. A hus- band is entitled to this writ in favor of his wife, a guardian in favor of his ward, and, of course, a father for his infant son. It seems to be granted that the writ may issue at the instance of the father in favor of an infant of tender years, viz., under the age of fourteen ; but that, after that age, t***^ the child is deemed by law to have discretion enough to apply for a habeas corpus if one is necessary. This presents to the court the principal diffi- culty, if any exists. But in none of the cases produced does it appear that the person detained was enlisted against an express statute requiring the consent, in writing, of the parent, master, or guardian, previous to the enlistment; and from the strictest examination I have been able to give these cases I feel confident that, had the impressments been made directly against a positive law which required the co-operation of the parent, master, or guardian to make the impressment legal, the writ of habeas SiMMs' Lessee v. Bakee. 205 corpus might have issued at the instance of persons acting in either of those capacities as the case might happen to be. In the case before me the illegality entirely consists in the want of consent of the parent in writing, and it is obvious that Congress did not intend the minor should have any discretion, eitlier as to enlistment or discharge. The whole matter is entirely a concern of the father. Let him be discharged. Note. Fedekai. Codbts hate Juhisdiction on Habeas Cohpus to inquire into a contract of enlistment, and to discharge minora enlisted in tlie army unlawfully or without consent of parents, without any application being first made to any other department of the government. (In re McDonald, 1 Low. 105 ; In re Keeler, Hemp. 309 ; MoCcmologue's Case, 107 Mass. 171 ; approving and following case in text.) SIMMS' LESSEE v. BAKEE. [U. S. Circuit Court, District of Tennessee, 1812.— 1 Cooke, 146.] Gbant— Natdiial Objects in a Calx. Govekn.— A call in a grant or entry for distance gives way to a call for a natural object or bounda'-y, and the party must go to the natural boundary, though it vary both course and distance. This was an action of ejectment brought to recover possession of a tract of land. The plaintiff produced a grant, dated the 15th of July, 1793, from the State of North Carolina, calling for five thousand acres of land, " lying on both sides of the south fork of Duck Eiver, beginning on the north bank of the river, where the lower line of a survey made for John G. Blount and Thomas Blount crosses the same." The survey of the Blounts was made on the 25th day of August, 1792, calling for five thousand acres of land, "on both sides of the two main forks of t**'^ Duck River, beginning opposite the mouth of the Wartrace fork, at a black walnut, plum tree and hickory; running thence west eight hundred and ninety- four poles to a hackberry ; thence south eight hundred and ninety- four poles to a stake, crossing the river ; thence east eight hundred and ninety-four poles to a stake; thence north eight hundred and ninety-four poles, crossing the south fork of Duck Eiv€r, to the beginning." 206 SiMMs' Lessee v. Bakee. The beginning corner to the survey of the Blounts was well established, but no actual survey ever had been made ; nor had there been an actual survey of the land claimed by the plaintiff. The line, in the survey of John G. Blount and Thomas Blount, calling to run south eight hundred and ninety-four poles to a stake, crossing the river, by actual survey stops one mile and eight poles short of the river. The grant of the plaintiff calls to begin where this line crosses the river. The material question before the court was, whether John G. and Thomas Blount had a right to extend their south line beyond the distance called for to the river? DicMnson, Whiteside and Hayes, for the plaintiff. Grundy and Cooke, for the defendant. M'Naiey, J. (absent Todd, J.) — The cases produced by the plaintiff have not been answered particularly by the counsel for the defendant. They seem to rely more upon the reason of the case than upon authority. It is not necessary for me to say what would be my opinion, were this a case res integra. It is sufficient that the question has been long settled, both in this State and North Carolina. If the calls in an entry or grant are for a given course and dis- tance, this course and distance must be pursued ; but if there be also a call for a marked tree, or a natural boundary, the party must go to the tree, or natural boundary, although it may vary from both course and distance. The natural boundary called for in this case is Duck River; and although the distance given falls short of i^***' the river one mile and eight poles, yet, under the influence of the principle just mentioned, the grantees have a right to extend their line as far as the river. The call for cross- ing Duck River evidently shows that it was the intention to run at least to the bank on the opposite side of the river ; and as the distance called for has given out, the line must there stop, as there is nothing to which it can be attached to extend it beyond this point. What would be the opinion of the court in a case Avhere there was an excessive surplus is not now necessary to be stated, as this is not so great as many cases where the rule has been adhered Patton & Erwin's Lessee v. Caeothees. 207 to. Indeed, so far as my knowledge on the subject extends, no instance has occurred where the courts have been guilty of a departure from the rule. I am, therefore, of opinion that John G. Blount and Thomas Blount, or those claiming under them, have a good legal claim, by virtue of their grant, as far as the river. "Wherever this line crosses the river is the place where the plaintiff is to begin, which renders his place of beginning certain. (1 Hay w. 252 ; 2 Hay w. 160.) PATTON & ERWIN'S LESSEE v. CAEOTHEES. [TJ. S. Circuit Court, District of Tennessee, 1812. — 1 Cooke, 148.] Oldest Gbant, Conclusiveness op. — The oldest grant is evidence of title at law, and can only be defeated by producing an older entry coupled with a grant. After the lessors of the plaintiff had gone through with their evidence, the defendant produced an entry made in the name of Jean Donaldson, covering the land in dispute. It appeared from the entry books, that this entry had been transferred to John Donaldson. The defendant then produced a grant, in the name of John Donaldson, covering the land in controversy. The grant did not upon its face show what entry it was founded on, and no plat and certificate of survey was attached to it or produced. The plat and t***^ certificate of survey always shows the date and number of the entry, and the name of the enterer. The plaintiff's counsel objected to this grant being read as evi- dence to the jury, because it did not appear that it issued upon the entry made in the name of Jean Donaldson. Whiteside, for the plantiff. Grundy, Haywood and Cooke, for the defendant. By the Couet (absent Todd, J.). — The grant cannot be read as evidence. The grant to the lessors of the plaintiffs is older in date than this grant; their claim can only be defeated by pro- 208 Caeson's Lessee v. Goeden. ducing an entry, older than their grant, coupled with a grant. An older entry is produced ; but it does not appear that this entry ever has been carried into a grant. The entry will not do without the grant, nor the grant withouf the entry; and noth- ing appears to show that they ought to be attached to each other. The plat and certificate of survey ought to have been produced, from which it would have appeared, upon what entry the grant issued. As it stands, it cannot be read. CHAELES S. CAESON'S LESSEE v. DAVID GOEDEN. [U. S. Circuit Court, District of Tennessee, 1812. — 1 Cooke, 149.] liASD — Appkopbiation of, What Constitdtes.— An actual settlement and survey is necessary to constitute an appropriation of lasd. The plaintiff produced in evidence an entry made upon a mili- tary warrant, the 10th day of May, 1809; a survey of the entry made the 9th day of August 1809, and a grant thereon, dated the the 8th day of January, 1811, covering the land in controversy. The defendant's was an occupant claim, under the law of 1807; to support which, he produced a survey dated the 2d day of September, 1808 ; an entry made in pursuance of the survey, on the 1st day of December, 1810. It was admitted that the defendant lived within the t*^"^ bounds of both the claims ; and that on the 12th day of September, 1807, he was seated on and in actual possession of the land in dispute. Upon the trial, two questions were agitated — 1 . As the entry of the plaintiff was older than either the grant or entry of the defendant, whether the defendant's previous sur- vey and right of occupancy had so appropriated the land that it could not be entered. 2. Whether the legislature of Tennessee had authority to pass the law of 1807, giving a preference to occupants, as against claims founded upon military warrants. The land lies within the military reservation. The cause was argued by Dickinson for the plaintiff, and by Whiteside for the defendant. ('Aeson's Lessee v. Goeden. 209 M'NAmY, J. (absent Todd, J.) — For the purpose of showing that the legislature of Tennessee were unauthorized to pass the occupant law of 1807, the counsel for the lessors of the plaintiff have relied upon the Cession Act, which contains these words : " The lands laid off, or directed to be laid off, by any act or acts of the general assembly of this State, for the officers and soldiers thereof, their heirs and assigns respectively, shall be and enure to the use and benefit of said officers, their heirs and assigns respect- ively." (Hayw. Eev. 165.) It is contended that this clause in the Cession Act, connected with the compact between this State and North Carolina, prohibited this State from passing the Act of 1807. The compact before alluded to authorizes the State of Tennes- see to issue grants in such cases only as could have been done by North Carolina under the Cession Act. The compact also declares that in entering and obtaining titles to lands, no preference shall be given to the citizens of Tennessee over the citizens of any other State, claiming under North Carolina; "nor shall any occupancy or possession give preference in entering and obtaining titles, so as to injure or take away the right of any person claim- ing by entry, grant, or otherwise, under North Carolina." [lai] rpjjg i^^ Qf 1307 provides, that it shall be lawful for any person, who was seated on any vacant and ungranted land, on the 12th day of September, 1807, to have a preference for the terra of two years to enter the same, provided such person caused it to be surveyed within nine months after the passing of the act, which was on the 2d day of December, in that year. I do not believe that the reservation of the land, in this sec- tion of country, can be considered alone as an appropriation. The lands still remain vacant, until the application of a warrant to some particular spot. The holder of a warrant has only a floating claim, and cannot be considered as having an appropria- tion, unless he goes on to designate by survey, etc., the locality of the particular tract he wishes to affix his warrant to. Under this view of the case I cannot but believe that the State of Tennessee had a right to pass the law in question. The next question which occurs is, whether the survey and right of preference of the defendant so appropriated the land as to render it not liable to be entered by the plaintiff's military warrant. Bktjh. c. C — 14. 210 Dallum's Lessee v. Breckeneidge. The entry laws, under which the plaintiff's entry was made, only authorize the entering of vacant and unappropriated land. When an actual settlement has been made in pursuance of the Act of 1807, and the enterer has gone on to make a survey, I do not consider the land as being vacant, within the true sense and meaning of the entry laws. I am therefore of opinion that although the plaintiff has produced an entry, older in date than the entry of the defendant, yet as the defendant's right of prefer- ence existed, and his survey was made when the plaintiff had only a warrant, not located anywhere, the land was from thence no longer vacant, and consequently not subject to be entered by the plaintiff. Whether the entry of the plaintiff, under those circumstances, can be declared void in a court of law is perhaps doubtful. I am inclined to think it cannot. But this is not made a question in the cause. It seems to be admitted that if in any court (issj ^jjjg -yyould be the result, a verdict at law may pass against him. "Verdict for the defendant. DiLLUM'S LESSEE v. BEECKENRIDGE, etc. [V. S. Cii'cuit Court, District of Tennessee, 1812.— 1 Coolse, 152.] Geant— NoTOniETY OF Objects Caixed foe, Neoessaby. — The calls in an entry to be valid must be for some notorious object, or for some point with reference to a notorious object, so as to lead a, person using reasonalDle diligence to the place located. . PiiAT AKD SUBVEY TO EXPLAIN CALLS IN GnANT. — For the purpose of showing mistake in the calls of a grant, resort may be had to the plat and certificate of survey. This was an action of ejectment brought to recover a tract of land on the south side of Duck River. The lessor of the plaintiff, claimed under a grant from the State of North Carolina, dated the 7th day of April, 1790, calling for five thousand acres, " lying on the south side of Duck River, on both sides of Fountain Creek, adjoining Thomas Gill and Elijah Robertson's two tracts, numbers 1043 and 1045, beginning on Gill's northeast corner, at a red oak, walnut, and poplar; thence Dallum's Lessee v. Beeciceneidge. 211 north thirty-five chains and twenty-five links to a poplar, Rob- ■ertson's line, of number 1,043; thence west with said line forty- six chains to a red oak, Robertson's corner ; thence north with said survey to William Gilbert's corner, in all two hundred and eighty-five chains and fifty links to an ash ; thence west one hun- dred and sixty chains and seventy-five links to a stake ; thence south one hundred and twenty-two chains to a stake in said Robertson's line of number 1,045 ; thence east, with said line, six- teen chains to a stake, Robertson's corner; thence south with said survey one hundred and ninety chains and seventy-five links to an ash ; thence east one hundred and ninety chains and seventy- five links to the beginning." The plat and certificate of survey, attached to the grant, con- tained the same courses and distances ; and the third line calls to run "north with said survey to William Gilbert's corner, and with said Gilbert's survey, in all two hundred and eighty- five chains and fifty links, to an ash." [133] Jfo marked lines and corners were proved to exist, except where the calls run with other surveys ; nor did it appear that any actual survey was made. If the plaintiff was bound to stop at William Gilbert's corner, it would be far short of the two hundred and eighty-five chains and fifty links, and would not produce an interference with the defendants. But by doing so' the plaintiff would not get his quantity of land, nor would he comply with a great many calls in his grant, as it respected the places where he was to adjoin, and run with Robertson's claims, by running the full distance of two hundred and eighty-five chains and fifty links, without regard to Gilbert's corner, he would comply with every call of the grant. Gilbert's corner is an ash, hickory, and beech ; and the ash is marked as a corner on the south, east, and west sides. Gilbert's corner, at the other extremity of the line, is an ash, hickory, and dogwood. The defendant produced in evidence a grant of a younger date than that of the plaintiff, covering the land in dispute. He also produced an entry, for five thousand acres, upon which the grant issued, calling to lie on the south side of Duck River, on Lytle's Creek, beginning at a tree marked L. D, and running up 212 Dallum's Lessee v. Breckeneidge. the creek, so as to include a tree marked A. B. for complement. Lytle's Creek was proved to have been notorious at the date of the entry, but the existence of the trees was not shown. Grundy, Whiteside and Hayes, for the plaintiff. We contend that the plaintiff has a right to run his whole dis- tance called for, without regard to the corner of Gilbert. No rule is more universally settled than that if there be one incon- gruous or inconsistent call in an entry or grant, it shall be dis- regarded, or so construed as to give eificacy to the claim, provided by doing so consistency is produced in the rest of the calls. The grant calls to run " north to Gilbert's corner, in all two hundred and eighty-five chains and fifty links." If the court and jury should be of opinion that we must stop this line at the corner of Gilbert, the consequence will be that scarcely any subsequent call in the grant can be complied ^^^^"^ with ; whereas, by continu- ing the course the full distance, consistency will everywhere prevail. But abandoning this idea for the present, let us inquire whether the grant is not sufficiently certain in another point to authorize the construction for which we contend ? It is evident that it was not intended to stop at the corner, or wherefore the expres- sion " in all, two hundred and eighty-five chains and fifty links?" This expression is never used, except where it applies to more than one part of a line running the same course. If the object was to terminate the line at the corner of Gilbert, the words would have been, "to Gilbert's corner, two hundred and eighty- five chains and fifty links"; but when "in all" is added, it evi- dently follows that Gilbert's corner is only spoken of as being on the line which is to run that distance, viz., "to Gilbert's cor- ner, and from Gilbert's corner, in all two hundred and eighty- five chains and fifty links." Should there be, however, any difficulty upon this part of the subject, we have no hesitation in believing that we have a right to resort to the plat and certificate of survey, to ascertain what land was intended to be granted. It does not follow that in all cases, the words of the grant are to be pursued ; because if it can be shown, even by parol evidence, where the survey was made, that will control the grant. The land really surveyed is that to Dallum's Lessee v. Breckeneidge. 213 which the claimant is entitled; and therefore if the person claiming can show where the survey was made, by proving lines and corners of the survey, although the grant may not corres- pond with them, yet the calls in the grant shall yield. The reason for this is obvious, and will even apply to cases where the certificate of survey corresponds with the grant. No man shall be injured by the act of officers, over whom he has no con- trol. If then a survey is made for a certain piece of land, but the surveyor in making out his certificate is guilty of a mistake as to either course, distance, or object, which mistake is still con- tinued in the grant, yet the party prejudiced will not be injured by such error, and he will have a right to claim and hold his land as really surveyed. (Tay. Rep. 116; 1 Johns. 495; 2 Hayw. 347; 1 Hayw. 378; Hardin, 369.) [155] j|. follows, therefore, that these mistakes of the surveyor or secretary will not prejudice the claimant; and that they may be rectified, upon a trial in ejectment, by parol proof. We would then ask whether the case now under consideration is not infin- itely stronger than any other produced ? Here we do not rely upon parol proof, but we exhibit record evidence of the particu- lar place where this land was surveyed, and where it was intended to lie. If the calls in a grant include, by course, distance, or object, more land than was really surveyed, if the error cau be shown either by proof of the existence of marked lines and cor- ners, or by the production of the plat and certificate upon which the grant emanated, the person claiming title under a grant thus circumstanced can only hold in conformity with the survey. No person denies but that where marked lines and corners can be shown they will conclusively designate the land appropriated ; and upon what principle is this idea bottomed ? It is upon the principle that the survey, being that act which alone can author- ize the emanation of the grant, shall be the criterion by which to ascertain the land really intended to be conveyed by the State. The superstructure cannot stand upon a broader or other ground than its foundation. If, then, to ascertain this point parol proof has and can be admitted, it would seem to follow that a kind of testimony much less exceptionable cannot be rejected. The parol proof is to show where the lines and corners are; and surely the certificate of the surveyor, acting in an official capacity, 214 Dallum's Lessee v. Beeckeneidge. and which is also matter of record upon its being returned to the office of the secretary of State, is much higher and better evidence. DicUnson and Haywood, for the defendants. Before we enter into an examination of the cases produced by the counsel for the lessor of the plaintiff, it will be necessary to consider a preliminary question. The decisions relied on were not made in this State, nor in any State where similar laws exist upon this subject. They recognize the principle that a claimant to land, if a mistake exists in the f*'^®^ grant, may resort to parol proof, for the purpose of showing the land really surveyed. The reason why courts have proceeded in this way may be as is eon- tended on the part of the plaintiff. Perhaps cases may occur where justice cannot be done, unless some such mode of redress is attainable. In this State the legislature have pointed out the mode of redress, which can be sought by the party injured. There exists an express statutory provision, declaring that where there shall be a mistake committed, either by the surveyor or the secretary of State, the person injured by such error may, upon application to the Circuit Court, by way of petition, have the error corrected, and his grant so amended, as to be as it would have been if no mistake or error had happened. If the legislature conceived that these matters could be corrected by the respective judicial tribunals in the country, upon the trial of the cause in which the mistake occurred, it was surely useless to pass this statute. It would seem that the legislature intended to remedy an evil, not otherwise remediable. The right which courts of j ustice have to interfere in sucli cases, where no statute has passed on the subject, is, to say the best of it, rather an assumption of power, intended to be exercised for good purposes. So soon, therefore, as the legislature prescribe a complete and ample mode of redress, that mode alone should be pursued. The case now under consideration comes within the act of Assembly. The plaintiffs allege that the secretary in making out the grant deviated from the plat and certificate of survey, by omitting, in the third line, the words " and along with his sur- vey." If the fact be so, it was an easy matter to remedy the ^mission, by adopting the course which the legislature have pre- Dalltjm's Lessee v. Beeckeneidge. 215 scribed. This is neither the place nor the occasion to ask redress. But if M'B are mistaken in this point, still we are safe upon another. The only cases where the party has been admitted to exhibit testimony for the purpose of varying the calls in the grant were where a marked line could be shown, evidencing thereby, '*■*'''' conclusively, where the survey was in fact made. The gentlemen have not nor cannot produce a solitary decision where such a course has been pursued, except in the case of an actual survey. (1 Hayw. 22, 378.) In the present instance no actual survey ever was made ; and it cannot be that the calls in a grant can be corrected by showing a survey in idea. The plat and certificate of survey ought not, therefore, t« be received as evidence, to vary the calls in the plaintiff's grant. Yiewing the subject in this light, and believing, as we do, that the plaintiff must resort alone to his grant to ascertain the land to which he has a legal title, no great difficulty exists. It is a well-settled rule, that where a marked line, or corner, or tree, or natural boundary, is called for, the line must run to such object without regard to either course or distance. (2 Hayw. 3, 75, 139, 160, 183, 353.) The call, therefore, in the plaintiff's grant, to run " with Eobertson's line to the corner of "William Gilbert," must terminate at the corner of Gilbert, although the distance mentioned is not completed. By running in this way no interference will be occasioned with the defendants. M'Naiey, J., (absent Todd, J.) — I feel no sort of difficulty upon the questions arising out of the evidence in this cause. The defendant's entry can be of no avail ; not only because it wants notoriety, but because the objects called for want identity. To make an entry good, both these things must concur and exist. In general a call for a tree is not good ; and indeed it never can be a good call, unless there is something else in the entry leading the subsequent locator so near to the place where the tree is, that it will not be imposing an unreasonable degree of trouble on him to make search for it. Every valid entry must contain such a degree of notoriety as to the objects called for or such a description in relation to a notorious object as will lead a subsequent inquirer, who uses reasonable diligence 216 Coffee v. Eastland. and industry, to the place f-'^*^ located. The first call in this entry is that the land shall lie on the south side of Duck River. This is a good call to show the part of the country where the land lies. The next call, to wit, on Ljd;le's Creek, is still bring- ing you nearer to the place. The entry then calls to "begin at a tree marked D. L." This tree is not shown, nor is it estab- lished where the tree stood, if it ever existed. In this point of view the entry is void for want of identity. If the tree could be shown, perhaps, as the creek is only six miles long, it would not be unreasonable to require a subsequent locator to search for it. But upon this point no opinion is given ; it is not necessary that one should be given. It seems to me that the grant of the plaintiff is sufficiently intelligible upon the face of it, without resorting to the plat and certificate of survey. It is undoubtedly true, as has been argued by the counsel for the defendant, that in general when an object is called for in a grant, the line must terminate at that object, whether it be a tree, marked line, or natural boundary, unless there be something else in the grant evidencing that the object is not called for as a termination of the line. In this case the use of the expression " in all " shows that the grantee did not intend to stop at the corner of Gilbert. Where then must he stop? Surely at the end of the distance. But if this should be doubtful the question is disrobed of all its difficulty by resorting to the plat and certificate of survey, which I have no hesitation in saying may be done. It is admitted, and very properly admitted, that if a mistake is alleged to exist in the calls of the grant, parol proof may be introduced to show where the lines were actually run ; and the reason is much stronger in favor of the admission of the plat and certificate of survey. Verdict for the plaintiff. JOHN COFFEE v. THOMAS EASTLAND. lU. S. Circuit Court, District of Tennessee, 1812—1 Cooke, 159.] Pleading— NoN-JomDEB op Paetnek, How Alleged.— If one of two partners be sued upon a partnership demand, he must plead the matter in abatement and set out the names of the partners ; defendant may take advantage of the non- joinder for the first time on the general issue. Coffee v. Eastland. 217 Partnership — Non-Joinder of Partner in Suit bti. — Where one of two partners brings a suit upon a partnership demand, the defendant may take advantage of it at the trial of the cause. This was an action of assumpsit brought by Coffee against Eastland to recover the price of locating five thousand acres of land. It appeared that the plaintiff and John Drake had entered into a partnership to locate lands, whereby the profits were to be equally divided between them. And it was also proved that to the location for the making of which this action is brought the names of John Coffee and John Drake were subscribed. On the part of the plaintiff evidence was introduced to show certain promises made by the defendant to him, with a view not only of supporting the action upon the merits, but also to estab- lish that the plaintiff was the only person entitled to make a claim upon the defendant. Grundy, Dickinson, and Cooke, for the defendant, moved the court to instruct the jury that the action could not be supported, inasmuch as it was brought in the name of Coffee alone. And they cited 1 Esp. 116; 1 Saund. 291,/. Whiteside and Hayes, contra, endeavored to show that the evidence did not amount to proof of the existence of a partner- ship, particularly as it applied to the location in question. M'Naiey, J., (absent Todd, J.) — It is a question of fact for the determination of the jury whether a partnership existed between the plaintiff and Drake ; but if they find the partner- ship to have existed it follows that Coffee alone cannot maintain the present action. It is no objection that advantage for the first time is taken of the partnership upon the plea of non- assumpsit, and upon the trial of the cause. The plaintiff declares upon a promise made to himself, if it turns out in evi- dence that the promise Avas made to him and another, f*"*^ it cannot be said that the defendant assumed upon himself "in manner and form as the plaintiff in declaring hath alleged." As to the mode of taking advantage of a partnership in an action of assumpsit the rule is this : If one of two partners be sued upon a partnership demand he must plead the matter in 218 Speaggins v. CouifTY Court op Humphries. abatement, and set out the names of the partnerSj so that the plaintiff may, if need be, sue them altogether. But if one of the two partners brings a suit upon a partnership demand, the defendant may take advantage of it at the trial of the cause; for he may not know until it comes out in evidence that the fact is so. Verdict for the defendant. SAMUEL SPRAGGINS v. THE COUNTY COURT OF HUMPHRIES. [U. S. Circuit Court, District of Tennessee, 1812. —1 Cooke, 160.] Bemoval op Cause, Compellable by Mandamus. — A mandamus will lie io enforce the removal of a cause from a State to a federal court. Hezekiah Johnson commenced a caveat in the court of pleas and quarter sessions for the county of Humphries against Sprag- gins, to prevent the emanation of a grant for eighty-one acres of land. Spraggins appeared and filed his petition, praying that the cause might be removed for trial to this court. The petition stated that he was at the time of filing it a citizen of the State of Louisiana, and was at the commencement of the suit a citizen of the territory now composing that State. It also alleges that the matter in dispute was of more value than five hundred dollars. The allegations in the petition were supported by proof; and every other requisite of the act of Congress was offered to be complied with; but the county court overruled the motion made by Spraggins, and refused to permit the removal of the cause to this court. Cooke, on behalf of Spraggins, produced the record, f***' and thereupon moved this court for a mandamus directed to the county court of Humphries. And after argument on the part of the applicant, — M'Nairy, J., (absent Todd, J.)— When this subject wag first agitated I felt inclined to believe that this court had not SiMMs' Lessee v. Read. 219 the power to issue a maudamus iu such a case as the present. But I am now clearly satisfied that the power exists. By the act of Congress passed on this subject this court have a right to the cause. The law has placed such causes precisely in the same situation as if this court had original jurisdiction of them ; and, therefore, as the county court was bound, upon the case being properly made out, to remove the cause upon application to this court ; and as I see that this application lias been made and improperly refused, I can have no hesitation in granting the mandamus. It is a legal privilege which the defendant pos- sesses to have his cause tried here ; but if the State court ille- gally and unjustifiably refuses the transmission of the suit, and this court refuses by mandamus to aid the applicant, will he not be remediless? And no principle is clearer than that where the law has given a clear right, and no remedy exists, the respective courts will interfere by mandamus, and see that justice and law is administered. (4 Burr. 2186; Hardin, 172; 3 Burr. 1267- 1660.) In one point of view this may be considered as in the nature of an appeal to this court. And it is well settled that where the inferior jurisdiction refuses an appeal allowable by law, a manda- mus will lie. (1 East, 686.) But, independent of all this, the fourteenth section of the act of Congress in question expressly provides that this court shall have power "to issue all writs and other process necessary for the exercise of its jurisdiction." To maintain the jurisdiction of this court in the present instance it is necessary to issue the writ of mandamus. Note. Makdamus to Compel Eemoval of Cause. — The doctrine laid down in this case that a mandamus will lie to compel the removal of a cause from a State to a federal court ia severely criticised and denied, the courts holding that no man- damus is necessary for such purpose, and therefore nu jurisdiction ia acquired to issue the writ, (See Fisli v. Union Pac. By. Go. 6 Blatchf. 397 ; Hough v. Wealern Tramp. Co. 1 Bias. 428.) SIMMS' LESSEE v. JAMES EEAD. [U. S. Circuit Court, District of Tennessee, 1813.— 1 Cooke, 345.] Deed — Eeqistbation, Where Eequieed. — Eegistration of a deed or conveyance of land lying in several counties is sufficient, under the statute of registration, if made in either of the counties. 220 SiMMs' Lessee v. Read. The land in controversy was granted in 1790 by the State of North Carolina to Stockley Donelson, and by him conveyed to David Allison. The plaintiff claimed under a deed executed by Joshua B. Bond, attorney in fact for Allison. The power of attorney under which Bond conveyed was acknowledged in 1797 before Hilary Baker, mayor of the city of Philadelphia. In 1810 it was proven in the court of common pleas for the county and city of Philadelphia, by the oath of one of the sub- scribing witnesses, and shortly afterwards registered in the county of Bedford. Part of the land authorized by the po\rer of attorney to be conveyed lies in the county of Bedford ; but the tract now in dispute lies in the county of Giles, where no registration ever was made. Haywood, Balch, and Choke, objected to the power of attorney being admitted as evidence, unless other proof of its execution was produced. The acknowledgment before the mayor of Phil- adelphia could not authorize a registration, because at that time there was no law in force authorizing powers of attorney to be registered. The first law that passed on that subject was in 1805. Neither, they said, could the subsequent probate mend the matter because the proof had been by but one subscribing witness, when the general registration law passed in 1807 required all deeds, powers of attorneys, etc., to be proved by two at least. The same act requires that it should be registered in the " county or counties " where the land lies. It is true a part of the land authorized to be conveyed lies '**"' in Bedford, but the particular tract now in dispute does not. It would seem to be a fair construction of this clause that the power of attorney should be registered in every county where any of the land lies. WhUeside, Dickinnon, and Hayes, replied that the Act of 1811 recognized the registration of powers of attorney, and other instruments of writing, where they had been before acknowl- edged before any judge, mayor, etc. It would, therefore, be unnecessary to say anything about the probate before the com- mon plea.s. Thompson's Lessee v. Noewood. 221 The Act of 1809 requires all deeds, powers of attorney, etc., to be registered in the county where the land, or a part thereof, lies. This is considered as clearly dispensing with the necessity of a registration in every county. By the Couet. — We do not think it necessary to give an opinion upon the question which has arisen out of the probate before the court of common pleas, because we are of opinion that the Act of 1811 is sufficient to authorize the registration under the acknowledgment made before the mayor of Philadelphia in 1797. We do not conceive that there was any necessity to register the power of attorney in the county of Giles. The true object of the probate and registration is to show that there has been a due execution of the deed ; this is as well done by a registration in any as all of the counties. Where a deed of conveyance is for several tracts of land lying in different counties we consider that it will be sufficient to register it in any one of them. THOMPSON'S LESSEE v. NORWOOD. [V. S. Circuit Court, District of Tennessee, 1813.— 1 Cooie, 346.] Land — Subvei Equal to Entht. — A survey is placed on the same footing as an entry by the Tennessee Act of 1807. OcccpATioN — Entby, When BINDING. — An occupation entry made without an occupancy to justify it is good, except as against persons wlio entered their claims as soon as the preference in favor of occupants ceased. This was an ejectment brought to recover a tract of land lying in Franklin County. The plaintiif derived his title under a grant from the State of Tennessee '**'^ to William Bean, dated the 8th day of December, 1808, upon an occupant entry made on the 3d day of August, 1807. The defendant claimed under a grant from the State of Ten- nessee, dated the 28th day of May, 1812, founded upon an occupant entry made the 3d of July, 1811, in pursuance of a previous survey of the 9th of March, 1808. It was admitted that William Bean was not an occupant at the time he made his entry, and it was also admitted that at the time Norwood made his survey he was in the actual occupancy. 222 Thompson's Lessee v. Nohwood. Whiteside, for the plaintiff, insisted that the right of occu- pancy of William Bean could not be contested by verbal testi- mony after it had passed the proper officer. When application is made to make an occupant entry proof must be exhibited to the surveyor of the actual occupancy, and his act ought to be considered as not controvertible by verbal testimony. In this case, however, it will not be very material whether the act of the surveyor can be impeached or not, inasmuch as the title of the defendant is not so situated as to enable him to do it. Admitting that Bean was not an actual settler, yet he may be viewed in the same light as the holder of a common warrant, and as such, his entry will be a good one against all subsequent enterers. Norwood has no right to complain ; the land had been previously appropriated, and whether by an actual occupancy or not, was to him perfectly immaterial, because Bean had a right to make his entry as the holder of a common warrant long previous to the date of the entry made by Norwood. To enable this court to go beyond the grant there must be some previous title existing in the defendant, and that title, where he has the youngest grant, must be by an elder legal entry. In the present instance both the entry and grant of the defendant are of a younger date than the grant to the plaintiff. There is then no title existing in the defendant to enable him to inquire about the plaintiff's title beyond the date of his grant. [348] Qooke, for the defendant, said that two questions arose in the cause : First, could the defendant resort back to his survey as the origin of his claim ; and secondly, whether by doing so he could avail himself of the want of occupany on the part of Bean. It has been determined in this country that the person hold- ing under the youngest grant cannot in a court of law contest the right of his adversary, unless by producing a legal entry of an older date than the grant of his adversary. The principle, how- ever, can only apply to such of our land claims as arise under those parts of the land law which speak of the entry being the beginning of the title. Under the general land law and the occupant law of 1806, an entry was the first thing to be done by a claimant exhibiting a wish to appropriate any particular spot of ground; but by the occupant law of 1807, under which the Thompson's Lessee v. Norwood. 223 defendant's claim originated, the entry is only a secondary act ; the first is the survey. From the provisions of the law of 1807 the occupant is first to make a survey of the land as ail evidence of his disposition to appropriate it as an occupant; and at an after period he is to make his entry in pursuance of the survey, and apply his warrant. Upon the same principle therefore that in other cases permission is given the party having the youngest grant to rely also upon his entry in a court of law, the defendant in this case ought to be permitted to go back with his title to the survey. This being of an older date than the grant to Bean, the inquiry then properly occurs with respect to the validity of the previous entry upon which that grant is founded. Bean's entry upon the face of it appears to be upon an occu- pant claim. It is admitted that he was not an occupant ; and inasmuch as when a claim is made under the provisions of a statute those provisions ought strictly to be pursued, it would seem that Bean's entry is wholly illegal. And such was the opinion of this court in the case of Bass' Lessee against Din- widdie, decided at last term. By the Court. — We do not consider that the act of the sur- veyor f***^ in permitting the entry to be made is conclusive evidence of the right of occupancy on the part of Bean. If it were so, an imposition upon that officer which might be easily effected in a case where the proceeding is wholly ex parte could not aftersvards be detected. This the court are not disposed to tolerate. It is a general rule that the person claiming under the young- est grant cannot in a court of law impeach the grant of his adversary except by showing an elder legal entry. But it has been urged by the counsel for the defendant that under the law of 1807 a survey is placed upon the same footing. The court are inclined to think that as between two occupants the position contended for is correct. The survey is an appropriation of the land, and will stand good against any subsequent claim whether by survey or by entry. But in this case we are of opinion that although the defendant may have a title at law originating with the date of his survey, still he cannot be permitted to contest Bean's right of occupancy. 224 Stump v. Robeets. llad the survey of Norwood beeu made after the date of Bean's entry, and at a time when none but occupants could enter, the question would have been of a different description. When the office opened in 1807 the common holders of warrants were obliged to have them listed, and draw for priority of entry. This was not the case with respect to occupant claims. These were entitled to be entered before the others. If under such circumstances a man should claim to be an occupant, and make his entry as such, when in truth he was no occupant, he could not hold the land in opposition to an entry made by the com- mon holder of a warrant as soon as the obstruction created by the occupant preference was removed. In this case the survey of Norwood was not made until the 19th of March, 1808, long after the obstruction alluded to had ceased to exist. To him it was perfectly immaterial whether Bean entered as an occupant or not. We are therefore of opinion that Bean's entry as it regards Norwood's claim is to be considered as a good one, upon the ground of his being the holder of a warrant, who in some shape f**"' had a right to make an entry without attending to the question of occupancy. The case of Bass' Lessee against Dinwiddle is widely distin- guishable from this. There the entry of Dinwiddle was made when none but occupants had a right to enter; and the entry of Bass was made only two days afterwards, the moment the obstruction enacted by the occupant preference was removed. STUMP V. EOBEETS. lU. S. Oirouil Court, Diatriot of Tennessee, 1813. —1 Coolie, 350.] ■Witness— What Ihtekest will Disqualoty. —A witness, though he be interested, if his interest is equal either way, is competent to testify. Bailmest— What Title Passes by Sale of. — A sale by a bailee of personal property intrusted to his care does not pass the title to the same, on the rule that no man can part with a better interest than he has. This was an action of trover to recover the value of a negro man named Dave. It appeared in evidence that the negro in question had been purchased by the plaintiff of William Eoberts, one of the Stump v. Egberts. 225 defendant's sons, who had executed to the plaintiff a bill of sale therefor. "Whereupon the defendant introduced the son to prove that Dave viras the property of the defendant, and that he had been sold without any authority from him. Dickinson, for the plaintiff, objected that William Roberts, the son, was not a competent witness because of his interest in this suit; and also upon the ground that he should not be per- mitted to destroy his own deed or prove his own turpitude. , (2 Bac. Abr. 584; 2 Term Eep. 63; 4 Term Rep. 678.) But it was answered by — Whiteside and Cooke,, for the defendant, that he was not so immediately to be a gainer or loser by the event of the suit as to exclude the testimony, particularly as his interest was equal. (1 Peake's Ev. 102; 1 Hen. & M. 154; 2 Call, 232; 1 Strange, 35; 1 Term Rep. 164; 4 Term Rep. 480.) Neither can he be excluded upon the ground of his being estopped by his own deed. That rule only applies to papers of a highly commercial character, and even then '***' the rflle has been much relaxed. (7 Term Rep. 604; 1 Peake's Ev. 128; 1 Hen. & M. 154.) Todd, J. — There is a great clashing in the decisions upon what shall and what shall not exclude a witness; but I consider the present question settled by the modern adjudications. The case of Jourdan v. Lashbrook, 7 Term Rep. 604, in principle settles both the objections that have been made to the admission of the testimony of William Roberts ; and when I add to this the determination of the court of appeals of Virginia, 1 Hen. & M. 154, and a decision of the Supreme Court of Connecticut reported by Day, I feel prevented by precedent from declaring this witness to be incompetent. But I am perfectly satisfied that these cases have been properly adjudged. The witness offered has an equal interest each way ; and I can see no solid reason nor any good authority for saying that he shall be estopped from giving evidence by his own deed. This is not one of those cases where such a rule ever obtained. M'Nairy, J. — I feel a considerable aversion to the admis- sion of the evidence offered, principally upon the ground that a Brot. C. C — is. 226 Stump v. Roberts. witness ought not to be permitted to show his own turpitude. I am not satisfied that the testimony ought to be received, nor do I feel any conclusive opinion either way, but I am most inclined to reject it. Objection overruled by a division of the court. The defendant then proved by the witness aforesaid and other testimony that the negro in question belonged to him ; that in the year 1808 "William Roberts, who then resided near Nash- ville, wrote to his father who lived near Lexington, in Ken- tucky, to send him Dave to assist him in making powder, and that he would pay his father Dave's hire, Dave was sent accordingly; and on the morning he started the defendant's wife proposed to the defendant that Dave should be given to William, but he refused. The negro remained about two years in the possession of William before he sold him to the plaintiff, during which time he was generally considered as the property of Wil- liam Roberts, but some persons f'^*' had heard him say that Dave belonged to his father, Dichinson urged that, as between the father and an innocent purchaser without notice, it ought to be presumed that this was a gift to the son (1 Hayw. 97; 2 Hayw. 72), and that upon the general doctrine of bailment the right of the defendant was divested. The son had a special property in the negro, and might have sued any person in his own name for a violation of that property. And if he could sue any person who trespassed upon his possession, there can be no reason why he might not sell ; because a recovery against a third person of the value of the negro would be as much a divestiture of the defendant's title as a sale. (2 Blackst. Com. 449, 452; 2 Saund. 47, note b.) But it was answered by the defendant's counsel that when a man parts with a limited qualified property in a thing, he does not thereby part with the general right of ownership; and that a mere breach of trust by a bailee could not deprive the real owner of his right. Stump stands in the same situation with William Roberts upon the ground that no man can part with an interest which he has not, and because a purchaser buys the title of the vendor. (Hardin, 531.) Todd, J. — How far a bailee may dispose of property Stump v. Roberts. 227 intrusted to his care has frequently been a matter of doubt. My own opinion is that it will not confer upon him the right to sell. When one man hires or loans his property to another he does not part with his right to it, nor will his title be injured by any sale which may be made by the bailee. It is so understood in the country generally ; because no man when he hires or loans his property, either to make profit thereby, or from a spirit of accommodation, imagines that by doing so he is liable to forfeit his claim altogether, if the person to whom he hires or loans it chooses to act dishonestly. It would be most absurd to sup- pose that if the real owner parts with a limited, qualified, and conditional right to his property, a subsequent purchaser, through the means ^^^^^ of a breach of trust on the part of the bailee, can divest him of the thing so intrusted altogether. If , such were the law no man would be safe, and it would at once sap the foundation of all spirit of accommodation. The proper inquiry, therefore, will be, was this a gift? If the jury believe it was, then the sale to Stump is legal, and will vest him with a good title. But if from the whole of the evi- dence the jury should be of opinion th-it Dave was hired or loaned to William Eoberts, the title of the defendant cannot be considered as divested by his sale to the plaintiff. (Hardin, 531.) It is true as has been argued by the counsel for the plaintiff, that where a father sends property to his son or son-in-law, and says nothing about the way in which he is to have it, the law will presume it to be a gift; but the presumption only holds in the absence of proof showing a contrary intention. M'Naiey, J. — The question presented to the consideration of the court is a new one, and possesses considerable difficulty. As a general rule it is unquestionably true that the possession of personal goods is to be considered as evidence of title ; and it seems to me that, except in cases where the possession has been acquired by fraud or felony, a purchase bona fide made of the person in possession will confer upon the purchaser a good title. This opinion, however, is expressed with considerable hesitation, and I am by no means clear that it is correct. I entertain no decided opinion upon the question. The jury found for the defendant. 228 Graham's Lessee v. Dudley. GRAHAM'S LESSEE ^. DUDLEY. [U. S. Circuit Court, District of Tennessee, 1813.— 1 Cooke, 353.] Land— Entky, When Takes Eefect. — An entry takes effect from its date, and not from its place on the entry taker's book. Calls in Entby, Kepuokance Between. — Of two calls in an entry repugnant to each other, and both eq^ually notorious, the general call must give way and the locative call be adhered to. In support of the title of the lessor of the plaintiff he pro- duced a grant from the State of North Carolina to William Mebane, dated the 14th day of f»=*' March, 1787, for seven thousand two hundred acres of land, and a deed from Mebane to him dated the 1st day of October, 1790. The defendant claimed' under a grant from the State of North Carolina dated 31st day of December, 1793, and an entry made the 20th day of December, 1783, in the name of John Read, calling for " three thousand eight hundred and forty acres lying on Little Harpeth, beginning above Absalom Tatum's line, and up said river on both sides for complement." The entry is No. 160, and stands on the seventh page of the entry book. The plaintiff then produced an entry, alleging it to be the one upon which his grant issued, dated the 7th day of February, 1784, calling to lie "on Harpeth, adjoining Absalom Tatum's line above." This entry was for five thousand two hundred acres, and stands on the first page of the entry taker's book. It appeared in evidence that in the month of February, 1783, Absalom Tatum, Isaac Shelby, and Anthony Bledsoe> did, in pursuance of an appointment by the State of North Carolina, run the military line, and that for this service they were entitled to receive five thousand acres of land. That the commissioners kept a record of their proceedings in a book in which was entered the claims of the guards as well as their own, under a belief at that time that no other entry need be made; and that this book remained in this country, where a general knowledge existed that it contained such entries, for several years, when it was burned by the Indians. It also appeared that Tatum, when he run what is called the western line, the commissioners having divided into three parties, made known his intention to locate his five thousand acres at or near the ten-mile tree, where the line crosses West Harpeth. Graham's Lesske v. Dudley. 229 The claim was notorious at and before the 20th day of Decem- ber, 1783, as any object in the country. At that time also West Harpeth was notorious, and so was Little Harpeth. Tatum had no other claim in the country. In the spring of 1783 the legislature of North Carolina made provision that the commissioners, guards, etc., should make their entries in the pre-emption '***' office of Davidson County, in pursuance of which Tatum, on the 5th day of February, 1 784, entered his five thousand acres, calling to begin " west of the ten-mile tree, and to run south and north and east for quan- tity, so as to include the creek," meaning "West Harpeth. Evi- dence was introduced to prove that the entry thus made was a copy of the one previously made in the commissioner's books. In the progress of the cause three questions arose: — First. Whether the entry took effect from the date, or from the time it was put upon the books. In the latter case the plaintiff had the oldest entry. Second. Whether the call for Little Harpeth could be rejected as surplusage. Third. Whether a call for Tatum's line before it had any legal existence was a good call. WliUeside, Bech, and Haywood, for the plaintiff. Dickinson and Cooke, for the defendant. By the Court. — By a law which passed in the spring of 1783 the holders of warrants were authorized, after the first day of the following October, to make their locations. At that time no book was required to be kept in which the entries were to be made; nor did any law pass making it necessary until some time in June, 1784. In the mean time a great many locations were made and deposited with the surveyor. When the law passed requiring a book to be kept, these locations were for- warded in the lump by the surveyor to the person whom he had appointed to keep the books. They were then entered in the entry book without any regard to their respective dates ; so that he who made the first location, and deposited it first Avith the surveyor, may stand second on the entry book. We consider it a matter of fair legal inference that the date of the location is 230 Graham's Lessee v. Dudley. the time it was placed with the surveyor; and that it takes its effect from that time, and not from its place on the book of the entry taker. If, then, the entry of Read is good in other respects, the defendants must prevail. Read's entry calls for Little Harpeth and Tatum's line. It is impossible to comply with both these calls, as they are utterly repugnant to each other. Which then shall be rejected ? We conceive that where '*^®^ there are two calls in an entry repugnant to each other, the one general and the other locative, and both equally notorious, that the general call ought to be rejected as surplusage, and the locative call adhered to, under a well-known principle that such a construction ought to be given to an entry, that, if possible, it may live rather than perish. We are, therefore, of opinion that the call for Little Harpeth may be rejected. The principal difficulty, however, is about the call for Tatum's line, even although the other call be rejected. At the time Read made his entry Tatum had no legal claim anywhere. A general knowledge that Tatum had a claim somewhere in the neighborhood would not be giving sufficient locality to it to authorize a man to call to adjoin it. If a particular spot becomes notorious as the claim of Tatipm, so that it can be cer- tainly identified, although in fact he has no claim there, then a call to adjoin it will be good, and special enough ; but we do not conceive that a call to adjoin a claim, the lines of which can- not be identified, or a line which has no legal existence, notwith- standing these uncertainties may be removed before the making of the adversary entry, will be sufficient. If the jury should be of opinion that Tatum's claim as to locality and identity was notorious in the country before the 20th day of December, 1783, the time when Read made his entry, they will find for the defendant; otherwise they will find for the plaintiff. Patton's Lessek v. Hynes, 231 PATTON'S LESSEE v. HYNES. lU. S. Circuit Court, District of Tennessee, 1813. —1 Cooke, 356.] Statute op Limitations — Title op Adverse Possession. - To obtain the benefit of the Statute of Limitations under a plea of seven years' possession in Tennes- see, the claimant must have color of title. This was an ejectmeut brought to recover possession of lot No. 23, in the town of Nashville. [3511 rpj^g plaintiff gave in evidence a deed from the commis- sioners to Abednigo Llewallen, dated the 8th day of July, 1785, for the lot in question. It was then proved that Abednigo was dead ; and that Shadracli Llewallen was his heir at law. A deed was exhibited from Shadrach to Francis May, dated the 30th day of August, 1810; and also a conveyance from May to the lessor of the plaintiff, dated the 31st of October, 1810. The defendant also claimed title under Abednigo Llewallen, and exhibited in proof a deed from "William T. Lewis, dated in 1805 ; a deed from Joel Lewis to "William T. Lewis, dated in 1802; a deed from Josiah Love to Joel Lewis, dated in 1793 ; and a deed from John Montgomery to Josiah Love, dated in September, 1789. The defendant, and those under whom he claims, have been in possession of the lot ever since the month of February, 1793. Testimony was introdnced in behalf of the defendant for the purpose of showing that Abednigo Llewallen had sold the lot to Montgomery ; but it was admitted that no deed of convey- ance could be produced. Testimony was also introduced, with a view of proving the deed purporting to be from Montgomery to Love a forgery. Whiteside, for the plaintiff. Dickinson and Haywood, for the defendant. Todd, J., (absent M'Naiey, J.)— There are two questions arising in this case : — First, "Whether the jury have a right, from length of posses- sion and other circumstances, to presume a deed from Llewallen to Montgomery. This is a proposition so entirely depending on matters of fact that it is difficult to give any clear and satis- 232 Patton's Lessee v. Hynes. factory opinion upon it. At present, however, I have no hesi- tation in saying that where a person has been in possession for the length of time mentioned in this case, and can also intro- duce circumstances to prove a sale by the original owner, it may be left to a jury to presume that there was a conveyance, and that it has been registered. But even then the chain of title in [358] ^]jg present case would be defective, if the jury should be of opinion that the paper puporting to be a deed from Mont- gomery to Love is a forgery. Second. The second question arises upon the Statutes of Limitation. The Act of 1715 declares that "no person or per- sons, nor their heirs, which hereafter shall have any right or title to any lands, tenements, or hereditaments, shall thereunto enter and make claim, but within seven years next after his, her, or their right or title shall descend or accrue; and in default thereof, such person or persons so not entering or making default shall be utterly excluded and disabled from any entry or claim thereafter to be made." The Act of 1797, upon which the plaintiff's counsel relies as a repeal of that of 1715, provides that in all cases where any person or persons shall have had seven years' peaceable posses- sion of any land by virtue of a grant, or deed of conveyance founded upon a grant, and no legal claim, by suit in law, shall be set up to the said land within the above time, then and in that case the person so holding possession as aforesaid shall be entitled, etc. I do not consider that the Act of 1797 repeals that of 1715; but when they are both taken together the result will be that a naked possession, by a mere trespasser for the term of seven years, will be no bar to a recovery sought by the original legal owner. At the same time I wish It understood as the opinion of the court that a regular chain of conveyances in due form from the original grantee, is not required to authorize the statute to be a bar. The land must first be appropriated, and . then, to protect the possession of a defendant, he must have had that possession seven years, peaceably, under a color of title. To constitute a color of title there need not be a regular chain of conveyances. If the possession has been taken in such a way as to authorize a belief that the possessor imagined he was Watson v. Dobbins. 233 occupying his own property, that will be color of title. What will amount to this must depend upon the particular circum- stances of the case; but it has always been understood that possession under a deed will be sufficient, f*^®^ Upon this principle the case of Sawyer v. Shannon, in this court, was decided ; and I have no disposition to disturb it. It is of the utmost consequence that our decisions in regard to real property should be uniform. Under this view of the case it will not be at all material whether the deed from Montgomery was forged or not, as there has been possession under a deed admitted to be genuine for twenty years. WATSON & M'lVEE v. DOBBINS. [U. S. Circuit Court, District of Tennessee, 1813. — 1 Cooke, 359.] Deed — Eeoistratiok, Sufficiency of. — Eegistration of a deed in tlie county in which one of several grantees resides is not sufficient in North Cai-ohna under the Act of 1788. The plaintiff relied on a grant to Martin Armstrong from the State of North Carolina, and a deed from him by his attorney in fact, to one of the lessors of the plaintiff, dated in February, 1797. This deed was proved and registered in Davidson County, in 1798, and afterwards registered, to wit, in 1812, in the county of Giles, where the land lies. At the date of this deed and the first probate and registration thereof, the land lay in the Indian boundary. Watson, to whom the deed was made, resided in North Carolina, east of the Cumberland Mountain. The defendant claimed under a deed from Martin Armstrong, dated in the year 1802, to the heirs of Alexander Dobbins. It was proved in July, 1804, before the county court of Davidson, and in September following was registered in the same county. In 1811, after the commencement of this suit, but before the last registration of the deed to Watson, the deed under which the defendant claimed was also registered in the county of Giles. Proof was introduced going to show that at the date and 234 Bush's Heies v. Williams. first registration f*""^ of the deed, David Dobbins, one of the heirs of Alexander Dobbins, resided in Davidson County. Dickinson, for the plaintiff. Whiteside and Cooke, for the defendant. By the Court. — The registration of the deed from Arm- strong to Watson, in Davidson County, was certainly illegal; but the subsequent registration in Giles was well enough, and will confer upon the grantee a legal title to the land conveyed by the deed, to take effect from the date, unless the deed to the heirs of Dobbins, which has in the mean time been executed and registered, can be made to prevent it. The Act of 1807, which revives the right of registering deeds situated similar to this of Watson's, expressly secures the right of subsequent purchasers and creditors, where they have caused their deeds to be registered in the time and manner prescribed by law. Under the provisions of this act, and those of a similar import of a subsequent date, if the registration of the defend- ant's deed in Davidson County be good, in consequence of the residence of one of the grantees in that county, as it was regis- tered in proper time, the defendant will be entitled to recover. The Act of 1788, c. 24, § 5, declares that all lands entered in the office of John Armstrong, west of Cumberland Mountain, may be registered in the county in which the proprietor of said land may reside. In this case there are several grantees, some of whom were, at the date of the first probate and registration, residents of North Carolina, one only lived in Davidson. The court are, therefore, inclined to the opinion that the registration was not sufficient in the county of Davidson, and the grantees have not attempted a registration under any law but that of 1788. BUSH'S HEIRS v. WILLIAMS et al. [U. S. Circuit Court, District of Tennesaee, 1813.— 1 Cooke, 360.] Tax Sale— Owtteb, How Bound et.— In order to bind the owner by a tax sale the land muat have been proceeded against in the name of the real owner, or by such a description as will clearly identify it. Bush's Heirs v. "Williams. 235 This was an action of ejectment for a tract of I''"'-^ land lying in the county of Smith. The plaintiff introduced a grant from the State of North Car- olina to William Bush, the ancestor of the present lessors, for the land now in controversy, and proved that the defendants were in possession at the time of the service of the declaration in ejectment. The defendants claimed the land under a sale for the revenue tax, to John C. Hamilton, by the order of the county court of Smith. The record stated that at the June term, 1806, William Douglass, late sheriff and collector of the revenue tax for the year 1803, reported to that court that there were two thousand five hundred and sixty acres of land belonging to William Bush's heirs, upon which the tax of 1803 had not been paid, and that there was no goods or chattels out of which he could make the amount. The court thereupon ordered that the land should be advertised, once in the Gazette of the public printer, and twice in the Gazette published in the district where the land lay; and the record further showed that publication was accordingly made. Grundy and OooJce, for the plaintiffs, argued that the record ought not to be received as evidence : — First. Because the heirs of William Bush were not named in the proceedings, nor was any description given of the land to supply that defect. Second. Because the report to the county court of Smith was made by the late sheriff and collector, whereas it ought to have been made by the one in of&ce at the time the report was made ; and,- — Third. Because the record showed that publication had been made in the Gazette of the public printer but once, when the law requires that it should be made twice. Haywood and Whiteside argued for the defendants that there was no necessity to name the heirs. The tax is a lien upon the land, and the real owners of it knowing the tax ought to be paid, should have come forward and prevented the sale by a payment of what was due. A scire facias may issue against 2S6 Bush's Heies v. Williams. persons without naming them, nor otherwise referring to them, except by description, as against the f"**^ executor of A., without naming' him. So it may issue against terre tenants. (5 Com. Dig. 3 L. a.) As to the other two objections, which refer only to matters which should have been done before the judgment was entered up, no serious difficulty can exist. The matter before the county court was that over which they had jurisdiction, and consequently it is to be presumed that all the steps required to be taken before rendering the judgment were regular, and it is not competent to show the contrary. By the Cotjet. — In every part of the proceedings in this case the land has been described thus : " William Bush's heirs, two thousand five hundred and sixty acres." The heirs of Bush are not named, nor is any description of the land given. Before the Act of 1803 it was necessary that all lands should be reported in the name of the true owner ; but as evident incon- venience arose from this, in consequence of the difficulty of ascertaining who that was, it was provided by the act referred to that the report and proceedings need not be in the name of the true owner, provided such a description was given of the land as would enable him to know, upon seeing a publication of the proceedings, that it belonged to him. The description required by law is not given in this case; nor is there such a reference to the owner as will supply the defect. No man can be bound by proceedings to which he is not a party, and to make him a party he must be named. A scire facias against heirs generally, without naming them, would not be good; at all events they would not be bound by the judgment upon it, unless the sheriff were to return scire fed, and name them ; a return of two nihils would not answer. The same remark will apply to proceedings against terre tenants. (2 Tidd's Prac. tit. Scire Facias.) Upon this ground alone, laying the other objections aside for present, the court is clearly of opinion that the judgment con- demning the land to be sold is absolutely void. But the court is far from believing that the other objections are not well founded. It is true that after the judgment most Rutledge's Lessee v. Buchanan. 237 of the preliminary steps which '***J the law requires are pre- sumed to have been taken; but this presumption wholly fails if the record itself shows that they have not been taken. If the record is silent as to who made the report, it may be presumed that it was made by the proper officer; but if it shows clearly that it was made by a person having no authority to act, the case is materially changed. Presumption will supply the omission in one case, but in the other there is nothing left to presume. The report ought to have been made by the sheriff in office at the time ; he wa* the only person who had a right to return that the owner had not any goods and chattels to satisfy the tax ; and consequently the only person who could legally make the report. A report made by the late sheriff is no more than if made by any other individual. And the court consider that to give the county court jurisdiction the report should have been made by a proper person; if that was not done the judgment is void. The same opinion will apply to the want of a legal publica- tion in the Grazette of the public printer. RUTLEDGE'S LESSEE «. BUCHANAN. [U. S. Circuit Conrt, District of Tennessee, 1813. — 1 Cooke, 363.] GsANT — StTEVEY Necessaey TO EsTABLisDMEKT OF. — To establish a grant there nrast be an actual survey or such a description, with reference to natural objects or other lines capable of identification, as will lead to the place called for. The plaintiff procured a grant for the land in controversy from the State of Tennessee, dated in the year 1,808, and proved the defendant was in possession at the time of the service of the declaration in ejectment. The defendant then introduced as evidence a grant to himself for the same land, from the State of North Carolina, of a date long anterior to that relied on by the plaintiff. The defendant's grant called to begin " on a sycamore, running thence," etc. No actual survey was ever made. For the purpose of proving the beginning called f*"*' for in the grant the defendant offered in evidence an entry made in his name, upon which the grant was founded, calling to begin at a 238 Rutledge's Lessee v. Buchanan. "sycamore marked I. T. — A. B." And further, that before the making of the entry the sycamore tree had been marked with these letters by a company of locators, with a view of calling for it in an entry to be made for the defendant. Grundy and Trimble, for the plaintiff. Whiteside, Hayes, and Haywood, for the defendant. By the Court. — The evidence offered is not admissible. To establish a grant there must be an actual survey, or such a description in the grant itself as will lead to the place called for. In this case there is no actual survey, no marked lines or comers were ever made for the survey; nor is any object called for so distinguishable from other objects as to make it certain, what particular spot is to be fixed on as the beginning. A tree may have been marked as the beginning of an entry, and an entry may afterwards have been made calling for the tree so marked ; but still, unless the grant in calling to begin at a tree so describes that tree as for it to be certain it was the one intended, evidence of the marking of the tree and making of the entry is not admissible to support the grant. Such a descrip- tion or reference is not given in this case. And the court is further of opinion that in all cases where there has been no actual survey the grant cannot be good unless it contains a good description of the land in reference to natural objects, such as watercourses, mountains, etc., or to other lines capable of identi- fication. The call to begin on a tree will not do., unless the tree possesses some peculiar qualities distinguishing it from other trees, which qualities must be described in the grant. Nor is it competent in this case for the defendant to prove the marking of this tree for a location. Marked lines and corners made for a location and not for the survey cannot be given in evidence to support the calls in the grant, unless they are referred to by the certificate of survey. Taking all the case together the court is decidedly of opinion that the marking of a tree for the beginning of a location is not competent evidence to prove the f''"'^ corner called for in a grant, unless by some expression in the grant it is evident that the tree which it calls for is the one marked for the location. Rule's Lessee v. Parker. 239 RULE'S LESSEE v. PARKER. [U. S. Circuit Court, District of Tennessee, 1813.— 1 Cooke, 365.] Tax Title— Requisites of. — To support a title under a tax sale a strict compli- ance with the statute is requisite, and where the reputed owner is proceeded against as though ho were occupier, the sale is illegal. A grant issued to one Grant, Avho conveyed to the plaintiff. The land in question was sold for the direct tax as the property of Grant, and purchased by Smith and Bradford. They sold to Parker, and the collector made him a deed. Many objections were made to the title derived under the sale for the direct tax ; but the points upon which the cause turned will be seen in the following opinion of the cojirt: — Whiteside, for the plaintiff. Haywood and DiGldnson, for the defendant. By the Cotjrt. — This is a proceeding by which a man's property is' to be taken from him without the interference of a court, and not in the common course of law. It is a summary and an extraordinary proceeding. Whoever claims title under it must show that he has complied-with all the requisites which the law has prescribed in order to guard against fraud and imposition. The advertisements required by the act to precede a sale ought to be proved to have been made, so as to satisfy a jury that they were made. Circumstances indicative of the fact may be received at this distance of time; and some such circum- stances have been given in evidence in the present case, such as the production of one gazette, in which the advertisement appears. But there is one objection which the court deems fatal. The surveyor's book describes the land and its situation, and states Grant to be the reputed '^*""' owner. The collector's book states him to be the occupier or possessor, and it is proved that Grant lived in Kentucky. Had it appeared upon the col- lector's book that he was only the reputed owner, there would have been a publication as directed by the Act of 1798, c. 92, § 11, as well as the publication required by the thirteenth sec- tion. It is indeed argued by the counsel for the defendant that the publication is only requisite in the case of an unknown per- 240 M'Ivek's Lessee v. Reagan. son, whose personal property is intended to be seized by tlie col- lector for raising the taxes due, and is only preparatory to such • seizure. I am of opinion, however, that it is equally necessary in the case of a person who is known, but is the resident of another State or country ; and that in the case of an absentee both advertisements are necessary, as directed by the eleventh and twelfth sections of the Act of 1798. As. to the objection that a demand by the collector ought to have preceded the sale that could not be, for the reputed owner was not in the collec- tion district. Nor does the court perceive the weight of the objection as to sending a statement of the taxes due to the col- lector of the district where Grant resided. The district spoken of in the act meant one in the State, and under the care and superintendence of the same supervisor as the district from whence it must be sent. Verdict for the plaintiff. Note. — This case went to the United States Supreme Court on a writ of error, and the judgment of this court was affirmed. (See 9 Cranch, 64.) M'lVER'S LESSEE v. EEAGAN. [U. S. Circuit Court, District of Tennessee, 1813.— 1 Cooke, 366.] Statute of Limitatioss — AnvEnsE Possession or Land. — No claimant is entitled to the protection of the Statute of Limitations, under a plea of seven years' possession, without he entered under color of title. The plaintiff relied upon a grant from the State of North Carolina to Stokeley Donelson and "William Tyrrill for forty thousand acres of land, dated in January, 1795. lae.ri q^ ^j^g ^^^ q£ ^j^g defendant a grant was introduced covering the land in contest from the State of North Carolina to John Mebane, dated in the year 1800. The defendant had no legal title under that grant; but he had been in possession of the land for more than seven years before the commencement of this suit; and it was endeavored to be shown that he took pos- session of it with the consent of Mebane. The beginning corner of the land called for in the plaintiff's grant was, until the year 1806, within the Indian boundary,- M'lvEli's Lessee v. Reagan. 241 but that part of the land on which the defendant resided was not. Seven years did not elapse between the extinguishment of the Indian title and the commeacement of the present action. Two questions arose in argument: — First. "Whether the act of Congress which prevented the run- ning of lines and making of surveys within the Indian boundary did not prevent the Statute of Limitation from attaching until after the extinguishment of the Indian title. Second. Whether the defendant had such a title as would authorize him to avail himself of the Statute of Limitations. Whiteside and Trimble, for the plaintiff. Gnmdy, for the defendant. M'Naiey, J., delivered his opinion as follows: — First. The act of Congress relied upon by the plaintiff is in the following words : " If any citizen or other person shall make a settlement on auy lands belonging, or secured, or granted by treaty with the United States to any Indian tribe, or shall sur- vey, or attempt to survey such lands, or designate any of the boundaries, by marking trees, or otherwise, such offender shall forfeit a sum not exceeding one thousand dollars, and suffer imprisonment not exceeding twelve months." In construing the statute of seven years' possession it has always been understood that it can never apply, nor commence running, until the person against whom it is to operate, or those under whom he claims, is invested with a legal title. Until that time, in legal language, no entry or claim could be made. [308I j^jjj j|- jg equally clear that if the law imposes a legal dis- ability to bring suit the statute will not apply until the disability is removed. So, if in this case the act of Congress had pre- vented M'lver from prosecuting his claim, I should be of opinion that he ought not to be at all affected by the possession of the defendant. But I do not consider that this was the case. The object of the act was to prevent a disturbance with the Indians, arising from persons going on their lands and marking trees, and making surveys, with a view to procure titles ; but if a corner had been marked before the passage of the act, it surely could not have been intended that the owner might not go upon Bbun. 0. C — 16. 242 Shepherd's Lessee v. Baily. the land to examine for the corner, and collect such other proof as would enable him to establish his beginning. And, indeed, if there should be any doubt upon that point I consider that under the third section of the act a license might have been pro- cured from the governor upon a proper application for that pur- pose. Inasmuch, therefore, as there was no legal disability to commence suit in proper time, and as, at most, the act only threw some impediments in the way of procuring testimony, the court is of opinion that the first proposition ought to be deter- mined for the defendant. Second. It will not be necessary for the court to say much upon the second proposition. A naked possession will not authorize the defendant to avail himself of the statute. There- fore, if the jury should be of opinion that the defendant took possession of the land in contest, as a mere trespasser, without any authority from Mebane, they ought to find for the plaintiff; but if, on the other hand, it appears that the defendant for seven years next before the commencement of the present action was in possession of the land with the consent or approbation of Mebane, the verdict ought to be for the defendant. The jury will determine this matter from the evidence now before them. Yerdict for the defendant. Note. — This case waa taken to the United States Supreme Court on a writ of error, and the judgment of this court affirmtd. (See 2 Wheat. 25.) SHEPHEED'S LESSEE v. BAILY. [U. S. Circuit Court, District of Tennessee, 1813. — 1 Coolce, 369.] Laotj — SuBTET, Ho-w Made Wheke Calls in Entry Indeftnite. — If the calls in an entry be indefinite, the survey must be made in an oblong or a square. If the call be for land to lie on a creek, the survey must be made so as to give an equal quantity of land on each side of it. The plamtiff introduced a grant from the State of North Carolina to John Haywood, for five thousand acres of land, dated the 20th of December, 1791, describing the land in con- test as follows : " On the waters of Richland Creek, a branch of Elk River, on a small creek which the commissioners and guard came down on their return from Elk River, the day before, they Shepherd's Lessee v. Baily. 24S encamped on the north side of Richland Creek, beginning on the bank of said small creek at a white oak, one mile above a large spring; thence west eight hundred and ninety-four poles to a mulberry; thence north eight hundred and ninety four poles to two dogwoods ; thence east eight hundred and ninety- four poles to a stake; thence south eight hundred and ninety- four poles to the beginning. Evidence was also introduced to prove the notoriety and iden- tity of the small creek and spring; but it appeared that no actual survey had ever been made. The defendant claimed under a grant to Stokeley Donelson, issued by the State of North Carolina, for five thousand acres, on the 17th of June, 1790. The plaintiff, for the purpose of giving his title effect beyond the date of the grant to Donelson, introduced the following entry: "25th October, 1783. John Haywood enters five thou- sand acres on the waters of Richland Creek, between said creek and Elk River, on a small creek falling into Richland Creek, which small creek the commissioners and guard came down on their return from Elk River the day before they encamped on the north bank of Richland Creek, including a large spring about two miles from the mouth of said small creek, beginning on the bank of said small creek, one mile above said spring, run- ning doAvn said small creek for complement." It appeared that the small creek from the spring t*'**' to its mouth run north 47 west ; from a point on the bank of the creek one mile above the spring to the spring is north 87 west; and from the spring with the meanders of the creek to its mouth is seven hundred and seventy poles. The land described in the grant is wholly north of the point of beginning. If the point of beginning had been the center of the base of the survey, by no legal shape to be given to the survey would it include the land in question ; nor if the survey were made in a square or oblong, to the cardinal points, and down the creek, making the creek the center of the survey, so far as it extended, would the land claimed by Donelson's grant be included. The principal points relied upon were that the entry under which the plaintiff claims was not sufficiently special to avoid an elder grant. That the creek "which the commissioners and 244 Shbphebd's Lessee v. Baily. guard came down" at a particular period, is not sufficiently- described. It acquired no notoriety by that circumstance, and if it were capable of identity it would be imposing too much trouble on a subsequent locator; and that the grant of the plaint- iff does not cover the same land described in the entry, should the entry be deemed special. Haywood, Balah, and Trimble, for the plaintiff. Whiteside, Cooke, Grundy, and Hayes, for the defendant. M'l^AiRY, J., delivered the following opinion to the jury: — The plaintiff has introduced a grant for the land in question, but of a younger date than the grant under which the defendant claims. To make his title overreach that of the defendant he has had recourse to his entry; but to effect this the entry must be special, and for the same land included in the grant. We have no statute describing in undoubted terms what shall be a special entry. I consider that to constitute a special entry the objects called for should be notorious, or sufficiently described in rela- tion to notorious objects. To give an entry the effect sought to be given to the one in question, it is necessary it should desig- nate with reasonable certainty the precise land intended to be appropriated, and that the description contained in the entry must quadrate with that contained in the grant. [STi] rpj^jg ^gg involves a question of much importance, and upon which I am reluctantly now compelled to give an opinion, seeing there have been different notions on the subject. Is the entry special for the land included in the survey? To give the construction contended for in support of this entry would be to destroy it altogether. If such a construction be given to an entry that it may include two or more different places with equal certainty, it cannot be good for either. Sup- pose an entry calls to include the French lick. Now if a survey can be made upon it, to include the lick in any part of the tract, can it be pretended that the entry Is special for any place? If it were so, might not all the land around the lick which coidd be included by the sweep of a survey in an oblong or square, made to include the lick at one extremity, be alternately claimed Shepherd's Lessee v. Baily. 245 and occupied, and at last surveyed in any direction to the cardi- nal points, according to the caprice of the owner or surveyor? This is not what I understand by requiring an entry to be special. It is important to give such a construction to an entry as that it shall prevail rather than perish. To give this cer- tainty to the entry in question, the expressions "lying on the creek," and " running down the creek for complement," must be construed to mean that the land shall be equally on both sides of the creek. A survey to correspond with this entry must run from the point of beginning on the creek, so far north and south as will, the general course of the creek having been first ascertained, include, as nearly as may be, an equal quantity of laud on both sides of the creek, either in an oblong or square ; for in this case neither form will affect the defendant. It is not now necsssary to decide the right of the owner or surveyor to survey in a square or oblong at their options ; but I incline to believe that if by running an oblong the survey would interfere with a grant previously obtained, the entry would not be a special one for any land beyond the extent of the square, unless the entry by the expressions used in it indicated a con- trary mode of surveying. It appears '"'''*' to me that this is the only possible way to construe entries having only general calls so that they may be deemed special. To illustrate this principle I will suppose that the point of beginning was the notorious call in the entry. That it then called to run down the creek for complement ; and that the gen- eral course of the creek was due west ; according to some decis- ions of the State courts the surveyor might make a survey running along north and west, or south and west. This con- struction, in my opinion, is the strongest possible argument that the entry is vague, and can hold land nowhere; because you cannot tell whether the land claimed by the entry is to lie on the north or south of the creek. But adopt the construction which I have given, and there is some reason for sajang that the entry is special; so in a general call, to include a notorious object, place that object in the center of a square or oblong, and it is with much plausibility we decide it to be a special entry. But to permit the owner or surveyor to place the notorious object in any part of the survey, and permit the survey to be made in 246 Shepheed's Lessee v. Baily. a square or oblong at his option, is the very essence of vagueness. In the case now under consideration the survey begins at the point of beginning called for in the entry, and runs west and north, including the creek and spring, with only a small part of the land on one side of the creek ; and yet according to the con- struction contended for, to wit, to include the calls of the entry in any part of the survey, the survey might have been run as far north from the point of beginning as would have included the spring and creek, and then run west and south, taking most land on the south side of the creek. To allow such an option would be in effect to make the entry wholly uncertain, and, therefore, not good for any land. I cannot conceive any of the ill consequences growing out of the principles here laid down which have been surmised by some of the bar. It is not a matter of interest to society in gen- eral, or to the government, whether A. or B. owns a particular piece of property. But it is of the last importance that which- ever '"'''''J of them is entitled to it by law and equity should own and possess it. No decision contrary to the one now given is recollected to have taken place in this court ; and it is believed that this is in perfect harmony with the spirit of the different acts of the legis- lature on that subject ; and especially with that part of the law which enacts that all grants obtained for land which was previ- ously or first specially located or entered, shall be void and of no effect. This very provision must have been made by the legis- lature on the equitable principle that the first enterer of the land had an equitable right founded on his special entry which had given notice to the after grantee, and that, therefore, he was a mala fide purchaser. They surely did not intend that the first enterer of a well-described or notorious object should have an equitable claim to three or four times the quantity of land con- tained in his entry. Hayton v. Wilkinson. 247 AMOS HAYTOlSr v. JAMES J. WILKINSON. [U. S. Circuit Court, District of Mainland, 1808.— 1 Hall L. J. 260.] Discharge is Insolvency — Eiohth of Bail Undeb. — Bail is not, by virtue of a discharge of the principal under a State insolvent law, entitled to have an exon- eretur entered on the bail-piece ; the discharge must bo brought before the court by plea. Certificate or Discharge in Insolvency, ErPEOi of. — A certificate of discharge in insolvency is not conclusive evidence that the discharge was duly obtained. This was a motion for a rule to show cause why an ex(y%eretur should not be entered upon the bail-piece. The defendant had been discharged under the insolvent law of this State, enacted November, 1805, by the court of Calvert County in May, 1808. The present action was instituted in the year 1806 by the plaintiff, a British subject, and residing in England. He was not returned by the defendant as a creditor. It did not appear that he had received any notice of the defend- ant's intended application for the benefit of the insolvent law, nor that he had any agent or attorney in this country. The debt was contracted in England. The district attorney, Mr. Stephens, by whom this motion was made, contended, — 1. That a certificate of discharge under the insolvent law of Maryland will operate to bar an action instituted by a British creditor, ia the courts of justice of this county, to recover a debt contracted in England; and 2. That a rule to show cause why an exoneretur should not be entered upon the bail-piece is a proceeding uniformly f**'^' adopted in England, and still more strongly supported by the insolvent law of Maryland. As our insolvent laws do not require the assent of foreign creditors, not residing within the United States, nor having agents duly authorized to act for them, he said it was evidently the intention of the legislature that a discharge, which was regularly obtained, should extend to such claims, otherwise the law would operate with peculiar hard- ship upon the unfortunate debtor. By compelling him to assign all his effects to a trustee, for the use of his creditors, the law deprives him of the means of satisfying the claim. The law has promised him relief against his creditors, but 248 Hayton v. Wilkinson. what relief does he enjoy, if his discharge do not operate as a bar to this action? All the former cases on this subject are, as to the effect of a discharge, obtained in one country on an action instituted in another where the debt was contracted. They, therefore, do not decide this point. Here the court is to decide upon the effect of a discharge obtained under the laAvs of its own State. The ques- tion is, whether our own laws or those of England are to be pre-eminent. Lord Kenyon, actuated by a principle which might at least be called contracted and narrow, has decided that a discharge under our insolvent law of 1787 does not bar suit, commenced in Great Britain by a subject of that country, on a cause of action accruing there. (Smith v. Buchanan, 1 East, 6.) So too in New York a similar adjudication has been made. (Van Baugh V. Van Arsdaln, 3 N. Y. T. R. 154.) But in Pennsylvania a debtor who had been discharged by our laws was protected by an exonerelur. (Miller v. Hall, 1 Dall. 229 ; Thompson v. Young, 1 Dall. 294 ; Donaldson v. Chambers, 2 Dall. 100; Harris v. Mandeville, 2 Dall. 256; and a full review of question in East's Reports, ubi supra, 4 Durn. & E. 192, and Cowp. 824.) Our case is very different. We claim the benefit of our own laws in our own State. However it may be contended, that the plaintiff never gave his assent to this law, and that therefore [zas] jjjg claims should not be affected. It is a sufficient answer to say that he comes voluntarily into your courts to demand jus- tice, and he must be content to receive it according to the regula- tions which are prescribed to you by the legislative power. In the construction of contracts the lex looi where they are executed is observed, but in applying a remedy for a breach, you must be governed by the laws of the place where the suit is brought. The counsel then read an extract from 2 Huberus B. Tit. 3, pp. 1, 26, translated in 3 Dall. 370, note, on the effect of contracts made in one country and attempted to be enforced in another; and, on the effect of foreign judgments, Judge Washington's opinion. (Hall L. J. p. 192.) If the principal were to be brought into court in discharge of Gilchrist v. Collector of Charleston. 249 his bail, he would be entitled to a release on common bail. The effect of this application is no moi-e. It is doing the same thing and waiving an idle and nugatory ceremony. Chase, C. J. — This is a question about which much diversity of opinion prevails, and I understand that different decisions have been made in the different States. It is a point which is of great consequence to foreign creditors particularly, and therefore it ought to receive a more solemn deliberation than can be had in a mere side-bar motion. The party should have every opportunity to put facts in issue, and courts will generally endeavor to have facts submitted to a jury. A discharge may be obtained in an improper manner. The certificate is not conclusive. It may be inquired into. This very case shows the necessity of inquiring into it. The defend- ant was bound to give a true list of all his creditors, but we do not find the plaintiff's name among them. Justice requires that the property should be divided among all the creditors; but a foreign creditor is not within the law. He cannot claim a dividend, nor can he even come in to allege fraud in prevention of the discharge. Is it honest, then, that a plaintiff so circumstanced should be precluded from every means of recovering a debt? [263] j^gj. ^.jjg defendant plead this discharge, if he wish to rely upon it. I certainly cannot consent to enter an exoneretur. HousTOif, Justice, thought it unnecessary to give any opinion on the effect of the record of the discharge. The proper course would be to bring it before the court under a plea. Upon this ground alone he agreed with the Chief Justice, to overrule the motion. EX PARTE ADAM GILCHRIST et al. v. THE COL- LECTOR OF THE PORT OF CHARLESTON. [U. S. Circuit Court, District of South Carolina, 1808. — 1 Hall L. J. 429.] MiNDAsrus TO CoLLECTOK OP THE PoBT TO Geant Cleaeance. — The Circuit Court haa power to issue a mandamus to a. collector, commanding him to grant a clearance. 250 GiLCHEIST V. COLLECTOK OF CHARLESTON. Constitutional Law— Ihstkuotions of Executive, Legauty of.— All instruc- tions from the executive, which are not supported by law, are illegal and no inferior officer is bound to obey them. A motion was made by Mr. Ward for rule on the collector to show cause why a mandamus should not be issued against him, to compel the granting of clearances for the ship Resource, More- ton ; ship Two Follies, Wilder ; ship Navigator, Bowden ; ship Rising States, Anderson; and ship Lousia Cecilia, Fowler, founded on the following affidavit : — " Adam Gilchrist and J. S. Barker, of Charleston, merchants, being severally sworn according to law, depose, that the Ameri- can register ship Resource arrived from a foreign voyage in the port of Charleston about six months since, owned one half by the deponent, J. S. Barker, residing in Charleston, and the other half by American citizens residing in Baltimore ; that the deponent representing the owners aforesaid, apprehensive that the bottom of the ship might, by her being detained here during the embargo, be totally destroyed by worms, did for that reason determine on sending her to Baltimore and regularly advertised for freight to said port of Baltimore; that having obtained the promise and actually engaged the freight f***! of about six hundred bales of cotton, it became requisite to ship either ballast or heavy freight, so as to enable the said ship to be navigated with safety ; the ballast not being obtainable, these deponents, about three Aveeks since, agreed to carry to Baltimore about two hundred barrels of rice, freight free, and that the same was shipped by permit from the custom house, and under the inspection of a revenue officer about two weeks since ; that on application for a clearance of the said ship and her cargo to Simeon Theus, collec- tor of the port of Charleston, duly commissioned and authorized to exercise and perform the duties of said public office of collec- tor of the port aforesaid, he hath refused to grant a clearance to said vessel and cargo, alleging that although he hath no suspicion that the clearance demanded is to cover an ostensible voyage to Baltimore, or to infringe or evade the existing laws relative to the embargo, and although he admits that the said ship was laden previously to his receipt of the act of Congress, respecting the embargo, under date of the 26th April, ult., yet that he is bound to refuse such clearance, under the directions of the executive of Gilchrist v. Collector op Charleston. 251 the United States, -wliich he conceives he i.s bound to obey ; that these deponents have just right under the law to obtain from said Simeon Theus, collector as aforesaid, the clearance so with- held and refused to be granted. "Adam Gilchrist, "J. Sanford Barker. "Sworh before me this 24th of May, 1808. "John Ward, Q. U." Upon the return of the rule the defendant showed the following cause : — United States, South Carolina District, Federal Circuit Court. Ex parte Simeon Theus, Esquire, Collector of the Port of Charleston. Rule to show cause why a mandamus should not issue, requir- ing him to grant clearances of certain vessels. Simeon Theus, collector of the port aforesaid, on whom a copy of the above rule has been served for cause, showeth : — [43X] a "Yh&t in and by a certa,in act of Congress of the said United States, passed the 25th day of April, 1808, it is, in the eleventh section thereof, amongst other things, enacted : ' that the collectors of the customs be, and they are hereby respectively authorized, to detain any vessel ostensibly bound with a carge to some other port of the United States, whenever, in their opinion, the inten- tion is to violate or evade any provisions of the acts laying an embargo, until the decision of the President of the United States be had thereupon.' Also, that in and by a certain circular letter from the treasury department of the United States, dated the 6th of May, 1808, and addressed to the said Simeon Theusj as col- lector aforesaid, he is instructed as follows : [Here follows the circular instructions of Mr. Gallatin.] That the said Simeon Theus, collector as aforesaid doth not detain the vessels as afore- said, under the act aforesaid, because in his opinion there is no intention in the parties aforesaid to violate or evade any of the provisions of the acts laying an embargo, but that he detains them under the instructions he has received in the letter afore- said, and which as a public officer he thinks he is bound to obey. That being unwilling, on the one hand, to injure individuals, and, on the other, equally so, to commit a breach of his duty, he submits the question to the court, upon the cause above shown. "Simeon Theus, Collector." 252 Gilchrist v. Collectoe of Charleston. The case was then submitted without argument. Johnson, J. — "The affidavit, upon which this motion is founded, states that the ship Resource is ballasted with one hun- dred and forty barrels of rice, under a load of cotton, and is destined for the port of Baltimore. The collector, in his return to the rule, acknowledges that he believes the port of Baltimore to be her real destination ; and that, if he had no other rule of conduct but the eleventh section of the act supplementary to the embargo act, he would not detain her; but urges in excuse, for refusing her a clearance, a letter from the secretary of the treas- ury. It is not denied that if the petitioners be legally entitled to a clearance, this court may interpose its authority, by the writ of f*"*' mandamus, to compel the collector to grant it. The only questions, therefore, will be whether the section of the act alluded to authorizes the detention of the vessel ; and if it does not, Avhether the instructions of the President, through the secretary of the treasury, unsupported by act of the Congress, will justify the collector in that detention. On the latter question there can be no doubt. The officers of our government, from the highest to the lowest, are equally subjected to legal restraint; and it is confidently believed that all of them feel theuLselves equally incapable, as well from law as inclination, to attempt an unsanc- tioned encroachment upon individual liberty. In the letter alluded to, Mr. Gallatin speaks only in the language of recom- mehdation, not of command ; at the utmost the collector could only plead the influence of advice, and not the authority of the treasury department in his justification. " In the act of Congress there is no ambiguity. The object is to prevent evasions of the embargo act, by vessels which sail ostensibly for some port in the United States, when their real destination is to some other port or place. The granting of clearances is left absolutely to the discretion of the collector; the right of detaining in cases which excite suspicion is given him, with a reference to the will of the executive. Congress might have vested this discretion in the President, the secretary of the treasury, or any other officer, in which they thought proper to vest it ; but, having vested the right of granting or refusing in the collector, with an appeal to the President only in case of HiTCHEN V. Wilson. 253 refusal — the right of granting clearances remains in him unimpaired and unrestricted. " It does not appear to us that the instructions from the treas- ury department are intended to reach this case. The recommen- dation not to grant clearances on shipments of provisions appears by the context to be restricted by two provisoes, evidently pointed at by the reasons assigned for that recommendation. First, if intended for a place where they are not wanted for consumption, or we suppose, where supplies of the same article can be had from the State or neighborhood '^^^^ in which such place is sit- uated. Secondly, for a port that usually exports that article. Now Avith regard to the article of rice, it is impossible to say how much the city of Baltimore will want for its consumption, as they have no internal supplies, and as the three southern States alone are exporters of that article. Shipments of rice from Bal- timore to Charleston might create suspicion, but not such ship- ments from Charleston to Baltimore. We are of opinion that the act of Congress does not authorize the detention of this ves- sel. That without the sanction of law, the collector is not justi- fied by the instructions of the executive, in increasing restraints upon commerce, even if this case had been contemplated by the letter alluded to ; but that from a temperate consideration of that letter, this case does not appear to come within the spirit and meaning of the instructions which it contains." A mandamus was ordered accordingly, commanding the col- lector to grant a clearance to the Resource. BENJAMIN HITCHEN et al. v. WILLIAM WILSON & SONS. [U. S. Circuit Court, District of Maryland, 1812. — 4 Hall L. J. 275.] Seamen's Wages. — Where a veaeel had been captured and condemned, and pend- ing an aj)peal was restored, held, that the seamen were entitled to full wages. This was a libel for wages. The vessel had been captured and condemned. Pending the appeal she was restored to the under- writers, to whom she had been abandoned upon a compromise. The defendants were willing to pay the seamen's wages, after 254 Baxter v. Biays. deducting the expense of recovering the property. But the Dis- trict Court decreed full wages ; and the sentence was affirmed in this court. JOHN WESLEY et al. v. JAMES BIAYS. [U. S. Circuit Court, District of Maryland, 1812.— 4 Hall L. J. 275.] Seamen — Wages op, DuBraQ Detention or Vessel. — Where a vessel is captured and finally acquitted, seamen are entitled to full wages, including the time of detention, even though the master offered to discharge them and send them home and they refused. Libel for wages. The vessel was captured and sent in for adjudication. The master oifered to discharge the seamen and find passages home for them, but they refused to quit the ship. She was condemned ; but upon appeal the decree was reversed. The vessel then prosecuted her voyage and returned to Balti- more. The District Judge decreed wages for the whole time, including the delay at the port, where the vessel was sent in for adjudication, which sentence was affirmed by this court. BAXTER V. BIAYS. [U. S. Circuit Court, District of Maryland, 1812.— 4 Hall L. J. 276.] Bail — Subbendeb of Pbincipal. — Bail cannot surrender their principal before a judge at his chambers. Biays was bail for one Merrihu. After the scire facias issued, and within the time allowed by the rule for a surrender of princi- pal, Biays surrendered Merrihu before Houston, J., during vaca- tion, who ordered an exoneretur to be entered. But by Dm^AL, C. J. — There is no law authorizing a surrender before a judge at his chambers, nor is there any rule of court to that effect. It was once attempted before Judge Hanson and refused. Jones v. Smith. 255 JONES ET AL. V. SMITH AND BUCHANAN. [U. S. Circuit Court, District of Maryland, 1812. —4 Hall L. J. 276.] SHTPprao Aktioles — Constbuction of Contract. — Where shipping articles pro- vided that a vessel should proceed to Batavia, and tlienco if required to ports beyond the Cape of Good Hope, held, that an extension of the voyage to Japan does not violate those articles. Captuke of Vessel — Seamen's Eights to Waoes. — Where a vessel after unload- ing at one port proceeds thence and is captured, the seamen are entitled to wages to the time of unloading at such port. Libel for seamen's wages. The libelants were shipped in December, 1807, on board the ship Rebecca, for a voyage from Baltimore to Batavia, and thence, if required, to one or more ports beyond the Cape of Good Hope, and back to Baltimore. On the 18th of May, 1808, the vessel arrived at Batavia, and completed her unlading 3d June. Ou the 27th April, 1809, she sailed thence for Japan, in the employment of the Dutch govern- ment. On the 24th May she was captured by the British and sent to Bombay, where she was condemned, on the 3d January, 1810, as being Dutch property, and as infringing the orders in council for the prevention of trade in enemies' ports. There were three descriptions of claimants. 1st. The admin- istrators of seamen who died at Batavia. 2d. Those who died after leaving Japan and before the capture. 3d. Those who returned to Baltimore. For the Libelants. It is true that where a voyage is broken up the seamen lose their wages ; but this is a principle of law which should apply to them with as little rigor as possible. When a voyage is divisible into many parts, the seamen are entitled to each part as soon as it is performed. That part is an [arn entire voyage, though a loss may happen afterwards. This is a mitigation of the former rule, by which seamen were made insurers of the voyage. In contracts of freight, if the charterer does any act by which the goods or vessel are lost, he must never- theless pay the whole freight. So in insurance, if a deviation be committed the insurer is discharged. In this case, the long delay at Batavia was a deviation, and consequently a termination of the first voyage. What reason was there for such a delay ? If the seamen could be kept there one year, their articles would hold them there half a century, or any indefinite term. Batavia was 256 Jones v. Smith. held out as the chief port, the terminus ad quern; and the ports " from thence" were to be visited in continuation of that voyage. The voyage to Japan was a new voyage, and entirely out of the usual course of business. The taking on board a Dutch gov- ernor and Dutch property was an increase of the peril, because it subjected the vessel to suspicion and condemnation, and it would be very unreasonable to make the seamen incur a hazard which was never communicated to them. For the Respondents. The whole contract respecting bills of exchange arises from legal implication ; not a word is inserted by legal implication. So it is in the mariner's contract; every sea^ man knows what his contract binds him to do. It is immaterial if he is ignorant of his duty, for the law will not believe him. What benefit has the own6r derived if the mariner perform but a part of the voyage. Here the owners lost the whole voyage, and the court is called upon to apportion the contract. The vessel was at Batavia during the operation of the embargo, and the seamen subsisted at the expense of the owners. If the seamen had been brought home they would have been idle. The law of insurance may safely be allowed to apply to this case. The stay at Batavia was not only reasonable but abso- lutely necessary, by reason of the embargo. It is absurd to con- tend that seamen are entitled to know what shall be the operations of a voyage. Such a doctrine is practically pernicious to the State, and destructive of all commercial enterprise. If the sailing from Batavia be a new contract, where is it? Whether that new contract arise from implication or record is immaterial ; for that voyage, if it be called a new voyage, was entirely broken up by the capture. Scott, Brice, and Harper, for libelants. Purviancc & Pinhney, for respondents. [s»8] DuY^L^ Q^ j_ — This is a case depending on the terms of the shipping article. The voyage was to commence at Balti- more, and proceed to Batavia; thence, if required, to one or more ports beyond the Cape of Good Hope, and back to Baltimore. The terms of the articles are plain, and must have been clearly understood by the parties. There is a difference of opinion as to Jones v. Smith 257 the effect of the voyage from Baltimore to Batavia; the differ- ence commences there. On the one hand, it has been contended that the extension of the voyage to Japan was not justified by the articles, and that the ship was engaged in an unlawful com- merce ; on the other, that it was in pursuance of the terms of the articles, and that that commerce was lawful. The court have no doubt on this point. It appears to them to be within the letter and spirit of the shipping articles, and that there was nothing in the voyage repugnant to the principles of neutral rights. The condemnation at Bombay under the orders in council cannot be regarded by this court. This court denies the legality of the orders in council, which are founded on the prostration of the principles of neutral rights and in their decisions they will respect only the general law of nations. The only question about which a doubt can arise is, as to the time when the claim of the mariners for wages, whilst at Batavia, shall cease. The court think it a case in which they ought to exercise a discretion, more particularly as the vessel waited at Batavia for some time for instructions. They are of opinion, and so order, adjudge, and decree, that the mariners be paid to an intermediate day between the 3d day of June, 1808, the time when the vessel was unladen, and the 27th April, 1809, the time of her sailing from Batavia, that is to to say, until the 15th November, 1808. That the representatives of the mariners who died before that day receive wages until the time of their decease; and of them who died afterwards, receive in common with the survivors, until the 15th November, 1808. Note. Seamek's Wages, When Deemed to be Eabned. — See Pitman v. ffooper, 3 Sum. 298, approving above case ; and Bronde y. Haven, Gilp. GOi, oriticiB- ing the same. Eebn. C. C — 17. 258 United States v. Matilda. THE UlSriTED STATES, on Behalf and for the Use OF THE OwNEES, OFFICERS, AND CeEW OF THE PRI- VATE Armed Ship General Armstrong, Whereof John Sinclair was Master and Commander, v. THE SCHOONER MATILDA AND HER CARGO, Thomas Jerkins, Master. [C S. Circuit Court, District of North Carolina, 1813.— 4 Hall L. J. 478.1 Equity Rules in Admiralty Coubts. — Tlie equity rule requiring two witnesses, or one witness, and corroborating circumstances to overcome the denial in the answer, is not recognized in admiralty courts. This was a libel in the admiralty, .seeking the condemnation of the Matilda and her cargo as lawful prize ; and was filed and heard in the District Court at Wilmington, at May term, 1813. The libel charges, among other things, that the schooner Matilda, being a vessel of the United States and belonging to citi- zens thereof, did depart from the port of Newbern since the 11th of March last, with a cargo of shingles, scantling, and corn, bound for some British port in the West Indies, to M'it, some port in Antigua, Montserat, St. Christophers, Nevis, or the Vir- gin Islands, with an intention on tlie part of the master and owners of disposing of the cargo to the inhabitants (being British subjects) of some of said islands. That on the 5th of April, 1813 (the day of captiire), in lat. 26 deg. 39 min. north, long. 68 deg. 17 min. west, the Matilda was sailing under a British license which authorized the importation of said cargo from the United States into the said British Islands. A claim and answer was put in by Thomas Jerkins, the mas- ter, and one third owner of the schooner and cargo, and by Moses Jarvis, for himself and his partner Sylvester Brown, owners of the other two thirds, all citizens of the United States. They f*'"' state among other things, that tlie schooner and cargo were seized about the 5th of April, 1813, by the General Arm- strong, on the high seas, while said schooner was proceeding from the port of Newbern, North Carolina, to the island of St. Bar- tholomews, in the West Indies ; that she was regularly cleared for said voyage; that they, the claimants, had given bond, accord- ing to law, that she should not proceed to an enemy's port ; that she was at the time of seizure in the direct course to St. Bar- United States v. Matilda. 259 tholomews; that they, the claimants, had no intention of pro- ceeding to an enemy's port, or of having any commercial intercourse with the enemies of their country ; that said claim- ants had coffee lying at St. Bartholomews, which they were desirous to bring home, and which partly induced the prosecu- tion of said voyage ; that the schooner was boarded and taken by the crew of the ship, and the master, Thomas Jerkins, ordered on board the ship, the said crew being in possession at that time of no other papers from the Matilda, as claimants know of, than the regular documents of the vessel, and a letter from Jarvis and Brown to Jerkins ; that on the 5th day after the capture, two men opened Jerkins' trunk, and having searched his pocket-book, found therein two papers, commonly known as British licenses, which were procured by Jarvis and Brown, from American citi- zens, and were intended to protect the MatiMa from British cruisers on her said voyage to St. Bartholomews ; that at the time of capture the seamen of the General Armstrong were in a state of revolt, mutiny, and rebellion, the captain of said ship being confined to his cabin and his authority usurped — and they submit whether a capture thus made can be good prize. To this claim and answer is annexed the aifidavit of the claimants Jarvis and Jerkins, declaring the facts to be true. The evidence was in substance as follows : A license signed by H. Elliott, governor of the British leeward Charibee Islands, at Antigua, the 22d of January, 1813, to be in force from the date thereof to the 30th June next. This license expresses to be issued by virtue of an order in council, of October 26, 1812. It is granted to Daniel Multhrope, and permits a vessel being unarmed, and not less than one hundred tons burthen, and bear- ing any flag except that of France, etc., to import into any of the ports of Antigua, Montserat, St. Christophers, Nevis, and the Virgin t**"^ Islands, from any port of the United States, a cargo of staves and lumber, live stock, etc., and every kind of provis- ions whatsoever, beef, pork, butter, salted, dried and pickled fish excepted, without molestation, on account of hostilities existing between his majesty and the United States, notwithstanding the said ship and cargo may be the property of any citizen or inhab- itant o£,said States, etc., and that the master of said vessel shall be permitted to receive his freight and return with his vessel and 260 United States v. Matilda. crew to any port of the United States not blockaded, with a cargo consisting of rum and molassesj and of any other goods and com- modities whatsoever^ except sugar, indigOj cotton, wool, coffee, and cocoa; upon condition that the niame and tonnage of the vessel, and the name of the master shall be indorsed on the license at the time of the vessel's clearance from the port of land- ing. This license was indorsed in the following words by the claimant Jarvis, viz. : " Thomas Jerkins, master of the schooner 3Iatilda, burthen one hundred and fourteen and eighty-two ninty- fifths tons, with a cargo of scantling, shingles, corn, and necessary stores, jSTewbern, North Carolina, March 11, 1813." Another license, agreeing in all respects with the last men- toned, except that this gives permission, in addition to the former, to touch at St. Bartholomews on the outward and homeward voyage to and from the British Islands. This is not indorsed, but both bear number forty-six, and are intended probably as a set of licenses. A letter from Jarvis and Brown, Written at New- beruj March 11, 1813, addressed to Thomas Jerkins at Wal- lace's Channel, states, that since writing the letter which covers the bills of lading, the mail brought the news of the adjournment of Congress, and that the Senate had put a death-wound on the license bill, and the bill to prohibit the neutral trade Avas also killed by the same house, so that we are now in the same situa- tion with respect to commerce as we were before the session com- menced. As the non-importation law is still in force, should you think of returning with produce, you will guard against your own government." The Matilda had a regular clearance from Newbern, bound for St. Bartholomews, dated 11th March, 1813. The bill of lading at Newbem, written by said Jarvis, agrees with the cargo before stated, and bears even date with the clear- ance ; but in the bill of lading the vessel is said to be " bound for '***! the "West Indies." The list of seamen was regular, and so was the register. The President's commission to the General Armstrong is in the usual form, and of date, the 23d November, 1812. The ship is therein stated to belong to John Everingham and John Sinclair; and authority is given to John Sinclair, captain, and David Pearce, lieutenant of said ship, and the officers and crew thereof, United States v. Matilda. 261 to subdue aad take any British vessel, etc. ; aud the said John Sinclair is further authorized to detain, seize, and take all vessels and effects, to whomsoever belonging, which shall be liable according to the law of nations and the rights of the United States as a power at war, and to bring the same into some port of the United States, in order that due proceedings may be had thereon. William Livingston, a witness for the libelants, swore, that on the 5th of April last, the Matilda was brought to by the General Armstronff ; that Jerkins was ordered on board the ship, and his papers demanded, upon which he delivered the register, clear- ance, bill of lading, and list of seamen aforesaid; that he, the witness, being then sailing master of the ship, declared he would send the schooner into port, to which Jerkins replied that he had not seen all his papers, and pulling two more out of his pocket gave them to this witness, which proved to be the indorsed license, and the letter from Jarvis and Brown to Jerkins as aforesaid ; that a few days after he searched Jerkins' trunk, and found therein the indorsed license aforesaid, and that he com- manded the ship at the time of said seizure. Upon his cross- examination, he declared that Captain Sinclair was confined to his cabin by some part of the crew as he understood ; that it is not common for the sailing master to have command of the ship when the captain is on board ; that Sinclair, Everingham, and others, were owners of the ship ; that Captain Sinclair authorized him to act as sailing master; that Sinclair did not seize or assent to the seizure of the Matilda. James Johnston, another witness for the libelants, deposed that the General Armstrong arrived at the port of Wilmington on the 16th of April, and the Maiilda on the 19th; that Captain Sin- clair put him on board the Matilda, in the port of Wilmington, to take an inventory of the effects, and to dispossess the mutineers ; [482] ^jj^^ jjg ^y^g gj,g^ lieutenant of the ship, and held possession of the schooner under the authority of Captain Sinclair, and upon his cross-examination said, at the time of the capture. Cap- tain Sinclair was confined in his cabin, and that he, the witness, was confined in the ward-room with liberty to go on deck, but to have no communication with the crew ; when Jerkins came on board, he, the witness, was ordered out of the ward-room on the 262 United States v. Matilda. forecastle by William Livingston, sailing master, and then com- mander, but was not to communicate to Jerkins the state the ship was then in; that on the 18th March, while the captain and he were together in the cabin, the doors were shut on them, and they confined by the master's mate and others of the crew, he saw Jerkins' trunk afttr it was open, heard that they had gotten another license, but did not see it. Charlas A. Lewis, also sworn on behalf of the libelants, declares that at the time the Matilda was brought to, the General Armstrong was under British colors ; he was in the ward-room of the ship when Jerkins came on board ; heard Livingston ask him for his papers, saw Jerkins deliver some papers to Livings- ton, and upon the threat of the latter to send the schooner into port. Jerkins seemed confused, and said, "I have more papers that you have not seen," and took out of his pocket and delivered to Livingston the indorsed license and the letter aforesaid. Captain John Sinclair, a witness for the claimants, deposed, that on the 18th March, he was dispossessed of the command of the ship by William Livingston and other officers and crew ; that Livingston, who was then under arrest for misdemeanor, took the command of the ship the same night, without authority from him, and continued in command until after the capture, and that the capture was made without his privity or consent; he was the commander and part owner of the ship; he delegated f>ower to Everingham to do in the subject of the capture as he might think proper, as agent for the owners, and the said agent has carried on the proceedings; that he would not from his knowledge of the general character of Livingston believe him on oath. He appointed Livingston sailing master when he first came on board, and continued him in that command until the 22d February, Avhen he arrested him for disobedience of ordere ; that he put an officer on board the Matilda to divest those of '***' the command who had captured her without his privity or consent, and to keep possession of her on account of the ship, until it should be determined to whom she might of right appertain. The two licenses and the letter were delivered to the collector of the port of Wilmington, previous to the arrival of the Matilda. United States v. Matilda. 263 Upon this evidence it was argued for the libelants, that the overt act of sailing under a British license was evidence of trading with the eneray according to the tenor of the license ; and that the trading with the enemy was an act, for which, by national law, the vessel and cargo so taken in delieto were confiscable, and Vattel was relied upon as furnishing the rule of decision in cases of such trading. It was further intended that the law of nations prohibiting intercourse and dealing with an enemy is not abrogated by the act of Congress on the subject of licenses, as was decided in Pennsylvania by Judge Petees, in the case of the Tulip. For the claimants it was argued that there has been no act committed; no trading with the enemy, nor any other act vio- lating the rules of general public laAV ; for at most, the evidence proves nothing more than an intention to proceed to an enemy's port; and it is contrary to every principle of law and justice to punish a man for his imaginations. The Matilda was in the road to St. Bartholomews, and had not so much as deviated from her course, so as to lay the foundation for the inference that her real destination was an enemy's port. (Term E,ep. 85; Park on Ins. 114.) But it was not, in fact, the intention of Jerkins to proceed to a British port — his real destination was St. Bartholomews, as declared by the claimants on oath. No evidence has been adduced to repel this positive declaration, except the feeble presumption arising from the mere possession of the license, which is completely answered by the rule that every man is presumed to be innocent until the contrary appear. It was also contended that the mutiny of the crew disabled them from making lawful capture, and rendered them obnoxious to a law which affixes the punishment of death to such an offense, and as the commissioned officers were divested of their command by force and wrong, their assent to the capture could not be presumed ; nay, the contrary was expressly proved. [484] ipj-jg argument being closed, and the object of counsel having been stated to be that of obtaining an immediate decision of this court, and of taking the case thence by appeal to the Circuit Court, so as to have a hearing at the ensuing term, the judge proceeded to deliver his opinion. He remarked on the novelty and importance of the question, that it was important 264 United States v. Matilda. not only as to the amount of property at stake, but was of vast importance in principle and consequences. He glanced at the difficulties he felt in deciding some of the points in the cause ■without the aid of authorities or of time to reflect. For these reasons he approached the case not without some distrust of his Own judgment; but' felt much relief from the assurance that the case would undergo an investigation in a superior tribunal ; for this reason he thought it not very material how he should decide. He felt it his duty, however, as the case had been argued, to meet the question, and briefly to state the reasons which occurred at the moment to influence his decision. As to the objection that the act of trading was not complete, he had no hesitation in saying that, according to the current of decisions, particularly in cases of blockade, where the principle is the same, the oflense was complete if the real destination was an enemy port ; for this is not the case of a mere will or intention to proceed to such port, which, without some overt act, would not be punishable; but there .was an actual sailing and proceed- ing on the voyage, thereby carrying that intention into efiect ; and the point at which the vessel was arrested affords no grounds unfavorable to the presumption that she was bound to one of the British licensed ports, because she was in the road as direct for one of those as for the neutral port. The question of fact, then, is this : Was the Matilda really bound to a British port with a cargo? The judge felt himself bound by the evidence to say that she was ; according to the well-known rules in the court of admiralty, that where a suspicion of guilt is created by the possession of documents, it is expected that the possessor will explain away such suspicion by proof; and where such suspicion is applicable to the charge in the libel, it is prima fade evidence of the facts contained in the allgation, and casts the burden of proof on the party charged. Now, he remarked, the possession of the licenses and the letter of advice, unexplained by evidence, is proof to my '**"! mind that the vessel was prose- cuting the voyage she was permitted to do by the license. It is true the American papers were all regular, and so they must have been to obtain a clearance. Nothing should be inferred from thence, because every man, whether his designs be honest or otherwise, would use the same precaution ; and no man would United States v. Matilda. 265 furnish evidence against himself in a way not at all necessary to the execution of his unlawful designs. The British cruisers know that vessels of the United States must conform to our municipal regulations ere they are permitted to depart. As to the letter, it bears evidence of some unlawful purpose, for if the real object was a la'wful trade, it is difficult to assign a reason for the additional caution, "guard against your own government." The captain was already apprised of the failure of the license bill, and of the existence of the non-importation act. The object, indeed, might be to import British produce from a neutral port, which, though unlawful, does not fall under the present charge ; or, it might be to import from a British port, and to touch at St. Bartholomews, and there obtain a neutral clearance, so as to guard against this government. The latter supposition very well accords with the licenses. Upon the question of iaw, whether the act of Congress of the 6th July last, upon a subject now under consideration, is cumu- lative on the prohibitions of international law, or whether it operates as a repeal or abrogation of those prohibitions, the judge expressed much doubt, but yielded to the opinion which had been given by Judge PETEEfj in the case of the Tulip, that the act of Congress is but cumulative. The only remaining point to be noticed, said the judge, is one of great importance, and, to the court, of serious difficulty, because I entertain much doubt on it, and have not the aid of books in forming my opinion ; it h the question which grows out of the mutiny of the crew of the privateer. From what has been said, it would seem that the schooner and her cargo are confisca- ble ; but it does not necessarily follow that because the property is forfeitable to the United States, the libelants shall take the benefit of such forfeiture. The President's commission was the authority under which the capture was made ; this commission authorizes John Sinclair '***' the captain, to seize, etc., but the evidence is that the cap- tain, at the time of capture, was, by the violence of the crew, put in close confinement and deprived of all command and authority over the ship. As, therefore, the authority was usurped by others, and the vessel navigated against the will of the captain, all acts done by the crew during such usurpation must be pre- 266 United States v. Matilda. sumed to have been done against his will ; or, at any rate, not with hLs assent either express or implied. The libel is filed in the name of the United States for the use of the owners, officere, and crew of the ship. Had it been in the name of the crew only, according to the truth of the case, the objection then woulfl have " been, that you have departed from the commission, which was their authority to seize. And taking the case as it stands, it appears a little awkward for the United States to sanction an act that necessarily springs^ from another which they have said by the legislature shall be punished with death. The crew in a state of munity made the capture; mutiny is punished with death. And is it competent for the captain to contradict the fact, and now allege that he made the capture, or that it was made by his assent? Or shall he now give a right to himself by relation, and make valid that which was unlawful at the time ? The court inclines to a negative answer. What vests the right in the captors ? Surely the prize act, and there it will be seen the right is vested in the owners, officers, and crew of the vessel by whom the capture is made. Upon this point the court adjudged that the evidence did not support the allegation, and therefore dismissed the libel, but did not decree the restoration of the property. An appeal was immediately obtained and the case brought up to the Circuit Court at this place, where it was argued at considerable length at the last term, before the Chief Justice of the United States, and two points were made : 1st. Was the Matilda bound to an enemy port? 2d. Did the conduct of the crew of the ship affect the right of the libelants in the present proceeding ? It was con- ceded that if the Matilda was really bound to a British port, the offense was complete. But it was contended that there was no evidence of such fact, except a vague inference to be deduced from the mere possession of the license; for as to the witnesses, it was said they were interested in the distribution of '**''^ prize, and therefore incompetent. (4 Eob. Rep. 68 ; 5 Rob. Rep. 307.) That the presumtion such as it was, in favor of the libelants, was answered by the positive oath of Captain Jerkins, who was a competent witness ; and that the licenses were intended as a fraud upon the enemy, a practice which is always permitted. Upon the second point the counsel for the claimants relied United States v. Matilda. 267 upon 2 Rutherford's Inst. 564; 3 E,ob. Eep. 160-184; Mar- ten's; 2 Azuni, 254-362; and Brown C. & Ad. Law, 461. The counsel for the libelants took a survey of the evidence, and endeavored to show by fair inference the unlawful purpose of the claimants. He admitted that the claim and answer as sworn to by Captain Jerkins should be taken as though the cap- tain had been examined on interrogatories. Upon the second point he introduced and relied upon as conclusive authorities. Brown's C. & Ad. Law, 281, 282, 453, and 8 Term. liep. 224. The Chief Justice asked if Captain Jerkins was a competent witness, and being auswered by the libelants' counsel that he was, he was clearly of opinion that the charge against the schooner had no foundation. He remarked upon the regularity of the ordinary papers, he thought the letter of advice contained no evidence of criminal intent, but rather the contrary. He stated the question to be, whether the claimants intended a voyage to an enemy port or not. But he saw no evidence of such intention, save that of the license ; that it was common and not at all improper to carry papers to deceive the enemy; that the carrying of the license- was to enable them to prosecute a voyage to a neu- tral port under the protection of the license ; and that the evi- dence of Captain Jerkins cleared the case of all doubt by stating the real object, and positively denying the inference drawn from the license. Here the libelants' counsel called the attention of the Chief Justice to the fact that Jerkins was part owner of the schooner and her cargo, a circumstance not recollected when the concession was made. The Chief Justice immediately replied that he was interested and of course incompetent. The counsel for the claimants then argued that this answer should be received as an answer in chancery is ; and if so, the answer is to be taken as true until it be disproved. The Chief Justice admitted the rule in the court of chancerj', as to the negative matter of an answer, but not in a case where it asserts a '***' right affirma- tively in opposition to the complainant's demand ; but he took this distinction between a case in chancery and a case in admii'- alty ; in the former, the complainant calls upon the defendant to purge liis conscience and disclose facts, and by this appeal to his conscience the complainant makes the answer evidence; in the latter case no such demand or appeal is made. 268 Gill v. Jacobs. The Chief Justice then said that the case was very different from what he conceived of it under the evidence of Jerkins; and expressed a willingness to let it lie over for further proof if the libelants had a prospect of obtaining any ; but being told they had not, he said he was still of the same opinion, and affirmed the decree of the District Court. He also decreed the restoration of the property, but without damages. He gave no opinion upon the second point. Note. Effect of E^niTY Bules in Admibalty Coubis. — See Stetson t. Jordan, 1 Ware, 388, approving case in text. GILL, CANONGE & CO. v. LEVI JACOBS. lU. S. Circuit Court, District of South Carolina, 1816.— 6 Hall L. J. 117.] State Insolvent Law, Effect of Dischabgb TJndeb.^A discharge under a State insolvent law does not entitle a defendant, in the custody of the United States courts on mesne process, to be released on common bail, Dkayton, District Judge. ^ This was a case of habeas corpus, in which a motion was made to discharge defendant on common bail, he being in the marshal's custody on mesne process issuing from this court, with an order for bail. The plaintiffs are citi- zens of Philadelphia; and the debt to a considerable amount (upwards of six thousand dollars) was contracted with them there. The defendant having been arrested by process, issuing from the State court of common pleas, has been discharged by the same authority, under the insolvent debtor's act of this State, passed in the year 1759. He therefore contends he should be enlarged on giving common bail, as he has been arrested since he was so discharged. On the part of the plaintiffs it is urged they were not parties to this discharge, not having due notice; nor were they parties to the record. That they have not agreed to receive any portion of the dividends, and, therefore, they ought not to be delayed, or prevented having due relief, under the laws of the United States and the practice of this court. The case before me being strictly a mercantile contract will be considered as referring to those laws which relate to com- merce and merchandise. As respects their principles, it is con- Gill v. Jacobs. 269 tended there is a difference between a bankrupt and an insolvent debtor; as the first becomes so by omissions and commissions, as well as by compulsory process ; whereas, the latter is so situ- ated, by the eifects of a suit at law, and by taking the benefit of an insolvent debtor's act thereupon, for regaining his liberty. [118] rpjjjg (Jigtinction, and the discharge obtained in the State court, appears to be the general grounds on which the argument seems to rest. For bankrupts being exclusively concerned in trade and merchandise, in buying and selling in gross, or by retail ; dealing in exchange and in other acts of necessary com- mercial intercourse ; it seems but reasonable they should be pro- tected and controlled by laws more especially for themselves, and which the practice of civilized nations is in the habit of ordaining. Hence a bankrupt law may be very different from an insolvent debtor's act, as a bankrupt law relates to the inter- est of merchants and traders; whereas, an insolvent act relates to the general interest of society. If, then, this distinction of interest prevail, can it be said the distinction of rights does not also prevail? By the eighth section, first article, of the United States Con- stitution, Congress have a right "to regulate commerce with foreign nations, and among the several States," also to establish "uniform laws on the subject of bankruptcies throughout the United States." The power, then, of maldng bankrupt laws no longer remains with the several States ; it is vested in the United States government. And how far a transient merchant, indebted in Philadelphia, can plead in this Circuit Court for the district of South Carolina a discharge under the insolvent debtor's act of South Carolina, obtained in the State court, against a suit instituted in this court, is the question which is now before me. On this point, involving the rights of the United States and individual States, I feel myself delicately situated in deciding the contending claims. More especially, as one of the particular reasons for calling into existence the present Constitution of the United States was to equalize the commerce and trade, and the rights and privileges of the American and other merchants and traders throughout the Union, and with foreign nations. Unless, then, the question be considered as having this grand object in view, the merits of this case will be carried back to where they 270 Gill v. Jacobs. would have been before the passing of the Constitution. The lex lod and lex fori of the several States would be brought under special consideration, as having more controlling powers than I think ought to be admitted at this day. Each State would then by such reasoning be deemed to authorize discharges of insolv- ency according to its own laws, and in mercantile concerns; not f**"^ by uniform laws resting on the same principles, and promoting the same ends, but sometimes conflicting in points of justice and expediency not only with themselves but with the United States, and the principles of their superintending government. On the 4th of April, 1800, a bankrupt law was passed. It was limited to the term of five years; and from thence to the end of the next session of Congress thereafter, and no longer. It then expired, and there has never been since any bankrupt law in the United States. AVhat were the reasons which influ- enced Congress not to revive that act, or not to pass a new one, is not for me to say. Although it would appear that the difier- ent decisions which take place in the courts of the United States, and in those of the individual States, afford some grounds for the reconsideration of a bankrupt law; as well as the great inconvenience resulting from the want of one to which parties are occasionally subjected, by vexatious suits in different States of the Union against insolvent debtors, after they have obtained insolvent discharges in one of the States. In passing the bank- rupt law it is evident Congress looked towards bankrupt mer- chants and traders especially, as respecting the insolvent act of State authorities. For in the sixty-first section of the bankrupt law (Laws United States, v. 5, p. 81), it is expressly enacted that this act shall not " repeal or annul, or be construed to repeal or annul, the laws of any State now in force, or which may be hereafter enacted, for the relief of insolvent debtors, except so far as the same may respect persons who are or may be clearly within the purview of this act." It is said, however, this act has expired ; it does not thence follow that the reasons which gave rise to the exception do not still exist. And so far it does not come within the rule of cessante rcdione, cessat et ipsa lex. If, then, they do exist, I see not why for national and commercial purposes this court should not give them a consid- Gill v. Jacobs. 271 eration, although they be not engrafted into a bankrupt law. Under this impression it would seem the distinction taken by the defendant's counsel between a bankrupt law and an insolvent debtor's act has not been improperly introduced. Among the great features of government, population and credit are to be ranked. As to the population, Congress has equalized that by acts of naturalization throughout the United States ; but having no bankrupt law, the credit as to provisions for bankrupts, f**"^ and for securing the rights of their creditors, has not been so equalized, resting at present upon the insolvent acts of individual States, and the discretion and decisions of courts having cognizance. It hence results that foreigners and citizens of different States will look to the government of the United States for some general system, as either emanating from their laws or from their courts; and more particularly when they commence suits in the courts of the United States. The obligation is, therefore, the more imposing upon these courts, having this high responsibility to carry all such suits into effect in as uniform a manner as possible, so far as their authorities will permit, agreeably to the rights and just expectations of individuals, and the confidence so reposed in the United States government. It is urged, this court is bound in this case by the thirty- fourth section of the Judiciary Act (Laws of the United States, V. 1, p. 74) ; but I do not see for what reason, as I think it can be made to appear the meaning of that section as contended for does not at present apply. By that instrument it is enacted " that the laws of the several States, except where the Constitu- tion, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decisions in trials at common law in the courts of the United States where they apply." As it is not necessary on the present occasion to give an opinion respecting the discharge of an insolvent debtor against the debt itself, I shall not do so, but will confine myself to that part of the State act which enacts that the discharged debtor shall not be liable to be sued, impleaded, or arrested for a twelve month after his discharge. (Grimke's Laws of South Carolina, 249, § 2.) Can it be said this part of that act applies? Does it not 272 Gill v. Jacobs. impair the security of the contract between Jacobs, the defend- ant, and Gill, Cononge & Co., the plaintiffs? and if it do, is it not in direct opposition to the Constitution of the United States? These are important questions, -which should be well considered before a decision take place. As to any inconvenience which may arise to the defendant under arrest, it remains with him- self to give bail and be liberated from his confinement; if he cannot or will not this court is obliged to perform its duties in the premises, however desirous it may be to relieve bis personal necessities. And in doing so, I cannot but say that were the present motion to be f***^ sustained, and the defendant admitted to common bail, the security of the plaintiffs would be much weak- ened and perhaps might be forever lost. For the State court is in possession of his schedule and property, given up upon his dis- charge, said by no means to be equal to the payment of his debts allowed in that court. Of course the defendant has nothing to rest his suit upon in this court but the defendant's person or security for the same, without which the defendant might abscond to whatever quarter of the world he pleased, thereby weakening, if not forever nullifying, his creditor's just demands. The reasoning of Judge Washington, in the case of Golden v. Prinoe, 3 "Wash. C. C. 313, and of Judge Stoey, in Gallison's Reports, 374, el seq., strengthen my opinion on this head. As to the cases cited from the 1st and 2d Dallas, 100, 231, they are between State authorities, and in my opinion do not apply any more than the insolvent act of this State may be said to apply to the present case. Whenever the final discharge is brought before this court in bar of this suit, and at a proper stage of the pleadings, it will be time enough to consider its bearing character as to discharging the debt. By the eleventh section of the Judiciary Act (Laws of the United States, v. 1, p. 55), the Circuit Court has cognizance where an alien is a party, or a suit is between a citizen of the State where the action is commenced and a citizen of another. This gives authority to the Circuit Court to maintain the action, and is an implied contract between the United States and the parties concerned that it shall be so maintained. But if a State law be allowed to come in with a sweeping effect as a bar to the action, confidence is at an end, and the court is at the mercy of Gill v. Jacobs. 273 a State authority. (1 Gall. 382.) Upon this principle the impropriety of the motion in this incipient stage of the suit, and before the return of the writ, is, in my opinion, apparent, insomuch as to induce a court to be on its guard how it allows the claims of an individual under an arrest, when a little time and a regular practice would better conduce to justice and the end proposed. Besides, by the laws and practice of this court, a defendant cannot take the benefit of the insolvent acts until after judgment obtained (Laws of United States, v. 4, p. 123; Laws of United States, v. 5, p. 6) ; whereas in the State court he has the benefit of them on mesne process before judgment obtained. This marks a difference between the practice of 11**] the United States courts and the State courts as to cases of solvency, which is of importance iu this inquiry. It conse- quently results that the security of the creditor in the court of the United States is greater than in the courts of this State, as he has a longer time to search out cases of fraud against his debtor, and is thereby the better enabled to provide for his own security before the debtor can be liberated or discharged under insolvent debtor acts. Upon the whole, without touching any other contested points of the argument (deeming it unnecessary in the opinion I am about to give), the case appears to me to resolve itself into this : That by the Constitution of the United States the individual States have given up their i-ights of legislating as to commerce and bankruptcy; that this right is now solely in possession of the United States government, which, through its laws and judiciary, is bound to watch over and superintend the same; that no bankrupt law existing at this time does not affect the main question, because the right in government still remains to enact one, or to repose its confidence in the judiciary as to their decision respecting the same, in relation to the State laws; that the courts of the United States by admitting defendants to the benefit of the State insolvent acts, under the superintending and contracting power of the laws of the United States now existing, can and do promote the due ends of justice as relating to bankrupts. But it must be remembered all this is done under the authority of the United States and not under that of State authorities, although in doing so the insolvent acts of the Bbun. c. C — 18. 274 Fisher v. The Sybil. States are referred to as rules of decisions in cases when they apply, as declared by the thirty-fourth section of the Judiciary Act. Under these impressions I do not think that by insolvent discharges from the courts of this State the insolvent debtor's acts of this State should be allowed to suspend or weaken the lien of process in this court, in the manner contended for in tiais case. It would be an interference between creditors and debtors, and certainly would tend to impair the obligation of contracts. FISHER ET AL. V. THE SYBIL. [U. S. Circuit Court, District of South Carolina, 1816,-6 Hall L. J. 509.] SALVAaB, Amoxjmt or. — Liberal cojnpens»tion must always be made in case of salvage, not only with a view to the value and danger of the tiling saved, but for the general interest in promoting exertions in such cases. Johnson, J. — If ever there was a case in which the claim- ants on a libel for salvage were thrown upon the protection of a court, this is one. There is not a witness to anything that occurred on the ocean who is not interested in increasing the compensation. Even Dangerfield, the master, to extricate him- self from damages and censure, finds his interest coincide with those of the libelant in making out a justification for abandon-^ ing the vessel. However the witnesses may differ in represent- ing the merits of each other, they all, with the exception of one (I mean the Indian seaman Francis), concur in making this out a case of great distress and complete abandonment. The prac- tice of this court permits the individual in such a case to exhibit his own merits on his own oath, and it is but too evident that most of the salvors have attached much importance to the idea that this is a case of derelict, and that the salvage in such a case must necessarily consist of a large proportion of the goods saved. It is only in the contest for the distribution of this proportion that they disagree, and each one showing too strong a disposition to present himself as the hero of the adventure. Their advocates also have ably and ingeniously argued that cases of derelict .are cases in which the salvors are peculiarly Fisher ?. The Sybil. 275 entitled to a liberal reward ; that the courts have manifested the most striking liberality in such cases, generally giving one half, sometimes as far as three fifths, never less than one third. The property libelled being of considerable amount, near one hun- dred thousand dollars in value, it becomes very material to the salvors to maintain this doctrine. But whoever looks into the history of the law of salvage will find it to be, as now acknowledged in admiralty courts, com- paratively of modern origin. Even the meaning of the term " derelict " is now materially varied from what it was originally, ''**"' and the idea that the salvor is entitled to anything like a dejurc compensation has long since been exploded. In the lan- guage both of the civil and common law, derelict as applied to chattels, meant a thing voluntarily abandoned, so that the first finder became the rightful possessor, if he reduced it into posses- sion. Such were the boTia vacantia of the civil law, in which, in a state of nature, it is evident, whether the thing be found on sea or land, that the individual would acquire an absolute and exclu- sive interest ; but in a state of society, whether he should take it wholly to himself or to the use of his sovereign, or what portion of it he should retain, and with whom divide the residue, must necessarily depend upon the provision of positive law. The bar- barous notions in which originated the droit de Bris of Fi-ance, and the royal privilege of wreck in England, have long since (among the rulers, if not among the people of those countries) given way to tlie progress of moral, intellectual, and commercial improvement. But there is reason to think that wreck and derelict were anciently confounded. It is perfectly natural for the inhabitant of a sea coast, whose subsistence perhaps from his earliest recollection has been drawn from the ocean, to consider whatever is cast up by the sea as a bounty from Providence to the first finder. But the possessor of the soil would also put in his claim, and either exclude the casual trespasser, or insist that the bounty was sent to himself, and confer on the finder a portion or compensation only as a gratuity. Such at this day is the law of England, with regard to the property of a pirate or enemy cast away on the coast. It is not so easy to find a satisfactory reason for the idea Avhich too certainly has prevailed, that a ship- wrecked mariner may be treated as a shipwrecked enemy. Yet 276 Fisher v. The Sybil. in the history of navigation, we may find an apology, if not a justification, for this barbarous notion. The first nautical expeditions were certainly equipped for the purposes of war or plunder. The coasts of France and Great Britain were long infested and devastated by the '***^ cruisers of Norway and Denmark. If then every vessel that appeared threatened plunder, slavery, and bloodshed, it was natural to con- cider every vessel that was wrecked as an enemy on whom heaven had executed vengeance. The benign spirit, which relig- ion has breathed into modern ethics, would assign to an enemy in misfortune the treatment of a friend, but death, plunder, and slavery may have been sanctioned by retaliation, and was cer- tainly the law of the victor in that day. I can scarely admit the disgraceful supposition that afterwards as commerce extended, and the eyes of men became opened to the necessary distinction bet ffeen wreck and derelict, the cruel purpose of removing a claimant or a witness could have operated to expose the lives of shipwrecked persons, but there is too much reason to infer from the laws which have been passed for their protection, that some protection was necessary. In the laws of Oleron (31st art.) it is asserted that this often happened; and as late as the year 1798, in a case which occurred before Sir William Scott (the Aguila) we find a magistrate alleging on oath, that the plundering of a wreck is customary on that part of the coast of England where he resided. For the modern acceptation of the word " derelict" we may very safisly take the definition of Sir Leoline Jenkins, as given us by Sii- W. Scott : "Boats or other vessels (or, he may have added, any goods washed overboard at sea, or floated away from land) forsaken, or found on the seas, without any person in them, of these the admiralty has but the custody, and the owner may recover them in a year and a day." And such the form of the libel usually filed in such cases declares it to be, to wit, " found floating to and fro on the high and open seas." Such goods are in the first instance pronounced derelict in the restricted sense of the word, to wit, abandoned from fear or necessity. But after the year and day they are considered as pure derelict, as having been absolutely and voluntarily abandoned, so that the sum or portion reserved in the registry of the court becomes a droit of the admiralty. If t°**l there is anything in the law of salvage Fisher v. The Sybil. 277 which distmguishes the ease of a salvor of derelict, in the modern acceptation of the term, from any other salvor, I have never been able to discover it. "Whether we refer to the reason of the thing, or to adjudged cases, the court appears to possess an equal lati- tude of discretion in all cases of salvage, and rewards either by adjudging a compensation in ratio or in number, as it think rea- sonable. One general rule, and that alone appears to run through all the cases, and that is " the compensation must be liberal, and that too not only with a view to the value and endangered state of the thing saved, the risk incurred, the skill and labor bestowed, but with a view to the general interests of commerce in promoting exertions in such cases, and to the interests of man- kind in rewarding and promoting generous and magnanimous actions. The court undertakes to direct not only the justice but the generosity of the claimant. However, the ancient idea that wreck and derelict was the property of the crown may have been exploded in modern times, it is very certain that something like that idea has been preserved in the adjudication between salvors and claimants, as to the quantum which each shall retain of the thing saved. Such unlimited discretion has always been assumed, as looks very much like acting under the principle that oujus est dare ejus est disponere. That it is not a mere case of quan- tum meruit is universally allowed; and why the court should prescribe a rule to the generosity of the claimant under any other idea is difficult to discover. For the same reason it is that a compensation has been awarded to an apprentice boy instead of his master, and hence perhaps also such liberties are taken with the reasonable, rules of evidence as suffer parties to make out their case upon their own affidavits, as they do in some measure in prize cases, which are certainly boons of the government. If the case of derelict, according to the modern acceptation of the term, be considered, with a view to the reason of the thing, there will be found to be in it no ground necessarily attaching to it a superior claim to all other compensation. '''*'*' It is very easy to conceive a case which cannot come within the definition of derelict, which would rally all the best feeling of the heart around it in support of a reference. Take the case of a vessel whose crew is sick, or exhausted, or devouring each other for food ; or take the case of a vessel without boat, on fire, or stranded, 278 Fisher v. Thk Sybil. with her whole crew on board, and in danger every moment of going to pieces, where not only the vessel, but the lives of the crew are saved. In a case of pure derelict, as of a pirate, where the court knows at the time of adjudication that the residue must be adjudged a droit, and where, of course, it is a mere bounty to the government as well as to the individual, it may very well be conceived that the court would be very liberal in awarding sal- vage ; but when the party himself, the original owner, puts in his claim, and sets up the plea of misfortune, the case is widely different; and traces of this distinction will be found to exist in the ancient sea laws of Europe. Sir W. Scott, in the case of the Aquila, in considering the question whether a moiety could be claimed dejure by a salvor, has said that he could find no trace of such a right in the Consolato del Mare. As applicable to the case of derelict, according to the modern meaning, this eminent judge is unquestionably right ; but the modern meaning was not probably attached to the word when those laws were compiled, for they are of great and no ascertained antiquity. But in the case of pure derelict, where the other moiety is to be given to the lord and the poor, the one moiety is by the Consolato del Mare given to the salvor (c. 252), and hence probably originated the English rule which appears to have existed in a remote period, that the thing saved should be divided by moieties betAveen the salvor and the king. But by the laws of Oleron, which are of the highest authority in this court of any of the ancient systems, all persons were required to aid and assist in saving shipwrecked goods, " and that without any embezzlement or taking any part thereof from the right owners ; but, however, there may be a remuneration or consideration for salvage to such as take pains '^^*J therein according to right reason, or good conscience, and as justice shall appoint." (Article 29.) This article probably laid the foundationof the jurisdiction which this court is now exercising. In the 45th article of the second frag- ment of the law of Rhodes it is enacted " that if a ship be sur- prised at sea with whirlwinds, or be shipwrecked, any person saving anything of the wreck shall have one fifth of what he saves." Although this article does not say what is to be done with the residue, yet it evidently relates to a case of restoration, «s appears by the next or 46th article, according to which, "if FisHEE V. Thk Sybil. 279 any one find a boat which has broken loose from a ship and drifted to sea, and preserves it safe, he shall restore everything as he found it, and receive one fifth as a reward." Although the counsel in the Aquila argued that one half was the usual and favorite salvage in case of derelict, yet unless they meant to con- fine themselves to voluntary or to total abandonment, it would rather seem that (in ancient times at least) one fifth was the favorite proportion in cases like the present, or even stronger cases. For shipwrecked effects found on the high sea or " fished up out of the bottom of it," the ordinance of Louis XIV. allowed a third to the salvor, the remainder to be restored to the owners. (§ 45, art. 1, § 27.) If then we compare the ancient sea laws with modern decisions, we find that, except in case of pure derelict, they were hardly as liberal as the courts of admiralty are at the present day ; and modern liberality has, I fear, been too much exerted, from a want of attention to the distinction between cases, where the residue becomes a droit, and those in which it is restored to the original owner. I cannot think the argument a sound one that salvage in fact falls upon the underwriter who has been paid for the risk ; for the spes reeuperandi is one of the perquisites of the insurer, and which combines with others to enable him to underwrite at a less premium. Nor can I admit that the compensation to the salvor must be in a certain ratio to the thing saved, or that that ratio is not to be diminished from relation to the amount. [515] -pj^g question to be decided by the court is always one to which no fixed rule can be assigned. How shall the salvor be compensated, is this inquiry. And how is it possible to produce uniformity in the decisions of courts, where the judges are to act on circumstances endless in their variety and combinations, and of which any two men may take different views ? Or how is it possible to detach the mind from considering the amount saved both with a view to increasing the compensation as to the claim- ant on the one hand, and diminishing it as to the salvor on the other? As to the question whether it shall be in proportion or in numero; if the judge, knowing the value of the thing saved, is unrestricted in fixing the compensation, it is immaterial to bind him down to the fixing of it by way of ratio, since it is so easy to bring it to numerical precision. It is true that it has been most 280 Fisher v. The Sybil. usual for courts to adjudge in proportion ; but the reason of that is evident. Courts of justice, perhaps, more than any other con- stituted bodies, will receive a tone in their proceedings from the mores majorum. At a time when commerce was carried on by actual exchange of merchandise, it would have been the most ample and natural mode of compensation to make an actual divis- ion of the thing saved, if susceptible of division. But at the present day, money, the medium of commerce, expresses the value and all the subdivision of property with a more convenient pre- cision, as it is the standard by which the mind is accustomed to compare the value of things. That such a practice should have prevailed is easily accounted for from this cause. It is evident that whenever a legislative power undertakes to affix a compen- sation by way of salvage, it can only do so by assigning a pro- portion to the salvor. This is done in all the ancient systems of sea laws ; and this very naturally led to the practice of assign- ing a proportion for salvage in the adjudications of the admi- ralty courts. But under the practice of modern times and the laws of Oleron, I hold an admiralty court to be at large to decree compensation either numerically or by ratio, as it deems proper. But could I be induced f''**^ to attach any importance to the idea of derelict abstractly considered, I should not adjudge this to be a case of derelict even on the modern acceptation of the term. The vessel was not found derelict upon the ocean, and when she Avas deserted by her crew, all the witnesses prove an express abandonment of her to Mr. Fisher, or the ship's company of the Margaret, "There she is, make what you can of her," Her actual state of distress then, and the merits and compensation of the respective salvors shall govern my decision, without attach- ing any technical importance to the epithet by which her state may most correctly be designated. And here while the practice of this court permits each claimant to make the most of his merits on his own affidavit, it is impossible for the mind to detach itself from the conviction, that the testimony of any man is to be received with due caution, where he swears in his own behalf. And we are naturally led to the consideration of those facts, con- cerning which there can be no dispute, and those parts of the testimony of each witness which have no immediate bearing upon his own interests, as furnishing the best grounds to form an opin- FisHEE V. The Sybil. 281 ion upon. As to the state of the vessel, the case furnishes satis- factory evidence on all points except two leaks. The main and mizzen masts were gone, with all their rigging and most of their spars, and in going overboard they had carried with them a part of the bulwark. The long-boat, at the time of the abandon- ment, though leaky, was fit for use. Afterwards it appears to have been materially injured. Water and provisions she had in abundance, and a ship's company consisting of sixteen persons, all of whom, except one or two (perhaps three) were fit for duty. Her foremast and bowsprit, with all their rigging, were perfect ; and the hull of the vessel new, staunch, and strong, so much so that a ship-carpenter of great skill and experience says, "the men ought to be hanged who would have deserted her." Her nautical instruments were in sufficient preservation, her reckon- ing accurate, and they were at the time of meeting not above three hundred miles from our coast, not '^^'''^ above four hundred from Norfolk, where the vessel was owned, and about the same distance from Philadelphia and New York, where her cargo was owned. The wind was tolerably fair for the first port, and there was little difficulty in making any port in the whole extent of the American Atlantic coast. On the state of her leaks the evi- dence is various and contradictory. When they took possesteion of her, Fisher says she had four feet water in her hold ; Jones makes it only thirty or forty inches. Fisher says she made eigh- teen inches per hour, whereas in port she did not make above seven ; but on this point there are three facts in which all con- cur : first, that four hands pumped her dry before twelve at night ; second, that only seventy-three bales of her cargo were damaged, and those so little as to sell for above twenty cents per pound ; third, that the leaks did not cause the abandonment, for they were known when the ship first hailed the Margaret, at which time the captain of the Sybil expressed no idea of abandon- ing her. Some of the witnesses, indeed, say that on hailing a second time, Dangerfield declared they had sprung a fresh leak. But Dangerfield in his protest says nothing of the kind, and he would not then have omitted it had it been true. I therefore conclude that the leaks did not very greatly endanger her safety. We now come to the very material cause of the abandonment. 282 Fisher v. The Sybil. to wit, the state of the rudder ; and this, indeed, was the only- cause, for the protest and the evidence show that before this dis- covery, the captain was so far from, intending to abandon her, that he only requested a supply of cordage and sails from the brig, and upon being informed that they could not spare any, he made sail away on his course. On this point the evidence is also various and contradictory. Dangerfield in his protest alleges that it hung together only by a few splinters ; but this is a gross exaggeWtion. The rudder must have been injured in the gale, and the vessel had been nearly two days working with it in that condition, when she fell in with the Margaret. Besides, the ship-carpenters who have examined it in port agree that it required but little skill, labor, f^-*-*^ or risk to mend it. Captain Todd thinks that any gentleman then in the court-room could have mended it, and several other witnesses agree that it was a very poor apology for abandoning the ship. To this we may add what is very well known, that the loss of a rudder is by no means fatal, as a ship may be steered by her sails or by a cable, or by means of both in co-operation. I now come to the most disagreeable part of this case, to examine the respective merits of the salvors, and first of Fisher. This gentleman claims salvage on account of personal services , on account of being the owner of the Margaret, and on account of the freight of her cargo, and the sum awarded him by the District Court would amount to more than twenty thousand dollars. I have pondered long upon the merits of Mr. Fisher, not uninfluenced by a reluctance at differing very widely from the opinion of the District Court, or of underrating the services of any man, especially of one of such high pretensions. But really no effort can bring my mind to place this salvor on a pre-emi-' nent footing of merit. I look in vain throughout his conduct to discover one trace of magnanimity or disinterestedness. Noth- ing appears in it but selfishness. He first claims a very high salvage from the owners, and then in the spirit of monopoly finds some pretext or other for excluding his fellow adventurers from sharing the golden harvest. I am far from cherishing the Utopian notion, that pure disinterestedness is to be expected from man. But salvage is not a compensation for what we do for ourselves, but what we do for others. And the man who in Fisher v. The Sybil. 283 tlie prosecution of selfish views can forget what is due from man to man, I will not add from a brother sailor in a state of distress, come with a bad grace into this court to lay claim to that liberality which is the acknowledged meed of gallantry and generous sentiments. The compensation of such a one should be limited to mere quantum meruit. I am led to apply these remarks to Fisher from the following considerations, drawn from his own testimony. 1. It is in evi- dence that Fisher was bred a shipwright, and his skill, dexterity, and ^^'^^^ exertions as such form a chief ground of his claims to compensation. It is also in evidence that when the Sybil approached the Margaret the second time, Fisher came on board, and he and Dangerfield went into the cabin and examined the state of the rudder through the windows. Upon being then con- sulted expressly with regard to the rudder, he told the captain, to Tise his own words, "that it was in an extremely bad state." Now the contrary of this has been expressly proved, and he him- self proved it by repairing it the next day. That he was igno- rant of its actual state, and of the means and facility of repairing it Kinnot be supposed, whether we consider his skill as a ship- wright, or his readiness to go on board immediately and take charge of her with only four men. Then what did moral duty point out as the conduct to be pursued by him on that occasion? Not surely to increase the alarm of the captain by magnifying his danger, but to point out the means by which it could be repaired, and tender his assistance in repairing it. Doing other- wise looks too much like a premeditated design to take advan- tage of the fears, ignorance, and imbecility of the captain, to get possession of the ship. But after getting possession of her and putting on her the partial refitment with which she reached this port, if he had in his subsequent conduct shown that he was at all influenced by considerations drawn from a view to the inter- est of the owner, this would have operated to remove the unfav- orable impression which his conduct respecting the rudder was calculated to produce. Instead of which we find, that when he was but three hundred miles from the American coast he bore away for Jamaica, distant at least one thousand miles, at a time when those seas are much more exposed to the danger of tempest- uous weather than the north coast of the United States. I do 284 FrsHEE v. The Sybil. not deny that he was justifiable in doing this, for after being in possession of the vessel, they had a right to judge for themselves how far keeping company with the Margaret outweighed all other considerations, but if in their decision as to their course the interest of the owners gave way to personal '****' considerations, this certainly lessens their right to demand compensation from those owners. And as the vessel was sufficient to have made the voyage to the United States alone, no one can doubt that the interest of the owners was pretermitted in the attempt to go to Jamaica. I consider Mr. Fisher for these reasons, as a salvor who had nobody's interest in view but his own, and as entitled to compensation in proportion to the incidental advantages result- ing to the owners. And here may it not be asked, had the owners any cause to rejoice that the Sybil fell in with the Mar- garet f Would it not have been for their interest that the ship had not encountered her or any other vessel at sea? She was competent to make the voyage to the United States in all human probability, and they might then have repaired her, earned her freight, and escaped the payment of salvage. Certainly no ser- vice was rendered them by taking out the crew. And had not the crew been taken out, possessing as they did the competent means of saving their lives, in the eifort to do so they would have saved the property. In one view, therefore, Mr. Fisher may be considered as the innocent cause of doing the owners material injury. But it will not do to act upon that view of the case, for the cause of humanity forbids that the captain of the Margaret should have refused on any ground to take the crew of the Sybil on board when requested. It is therefore a case of salvage, but not a case of the highest order. And as no one could have left the Margaret without Fisher's permission, I certainly consider him as the dwc facti, and as such ranked above all the salvors, But he cannot lay claim to the credit of having either navigated or commanded the Sybil, or having even discharged the duties of a mate on board of her. As to the individual merits of the sal- vors, it is not necessary to remark very particularly on the evidence respecting them. Jones evidently was master and navigator on board the Sybil. However, Fisher may have been his superior on board the Margaret, he certainly ranked his former owner on board the Sybil. The whole crew received and Fisher v. The Sybil. 285 acknowledged him ^^^^^ as captain. Eice appeared to have acted as next in command, and to have enjoyed an acknowledged superiority. Beech, the landsman, a character always sneered at on board ship, did his best, and deserved much credit for having volunteered among the first, not a little in my opinion from a consideration of the doubts and fears which may reasonably be expected to attend a landsman in such an undertaking. With regard to the six colored seamen who belonged to the original crew of the Sybil, some' questions of considerable nicety and diffi- culty arise. First, whether they are to be regarded as salvors, or referred to their original contract with the ship. Second, whether, if considered as salvors, they shall themselves receive their compensation, or it shall be adjudged to Fisher, or if not to him, to the whole ship's company of salvors. Fisher claims the whole, under an agreement which he sets up as having been entered into by these men to navigate the Syhil for twenty-five dollars per month. It appears that the day after they took pos- session of the Syhil they hailed the Margaret and inquired if any of the Sybil's crew who were then on board the Margaret " would volunteer " (that was the expression) on board the Sybil. These six men then came on board the Sybil; no agreement was made while yet in the Margaret, but after they are on board the Sybil they make this agreement, which is set up by Fisher. I omit here, as I have omitted all along, to make any reference to the evidence of Francis, as I could wish, if possible, to avoid giving weight to any man's testimony except where it makes against himself, or his interests are unaffected by the consequences. But I confess I feel a strong moral repugnance at admitting the claim of Fisher, so far as it is founded upon the services of these men. That he who claims twenty thousand dollars compensation, and who without the aid of these men could not have earned one cent of it, should be enriched, whilst they, who never, according to Rice's testimony, voluntarily quitted the ship, and who returned to it expressly as volunteers should be put off with scarcely enough to buy them a suit of clothes, carries with it f"*®' something very inconsistent with moral propriety, and I acknowledge that it is with pleasure I lay hold on any ground to get rid of the neces- sity of making such a decree. The case affords two sufficient grounds. First. It is acknowledged that they were called upon 286 Fisher v. The Sybil. to enter as volunteers, and under that idea they came on board the S]/bil. No agreement for wages was made on board the Mav' garet, and whether a parol agreement was made before the written agreement or not, still it was not made till they were in a situa- tion in which every seaman feels that he is not a free agent. The confirmatory agreement made after their arrival in port is liable to the same objection, and I here explicitly acknowledge that I am not satisfied with the fairness of the one or the other. But there is another ground of objection. Whatever may have been Fisher's situation on board the Margaret, when he entered on board the Sybil, associated with four others, their emigration was complete, and they assumed new relations, although they could not have quitted the Margaret without Fisher's consent, yet neither could he without their congent have forced them to quit her. When, therefore, they entered on board the Sybil, they had their rights as well as Fisher, and he could no more lessen their compensation as salvors for his own benefit, than they could his. The agreement, therefore, with the black seamen, if it operated to deprive them of their claim as salvors, enured to the benefit of the company of salvors ; but they set up no claim under it, and acknowledge that it was not explained- to these seamen that they were to forfeit their claim to salvage. But here another question arises : Are these seamen, as relates to the owners, to be at liberty to depart from their original relation, and assume the new one of salvors? One thing only can sanction such a departure, and that is, they have not been in default. Their captain, against their will as Rice testifies, obliged them to quit the Sybil, and he could not afterwards control them to prevent their assuming this new relation. They were freed from their original contract, and at liberty to act for themselves ; I shall therefore adjudge them entitled to a '***^ compensation by way of salvage. But what is to be done with regard to Perry? He is clearly proved to be an absconded slave, and his owner has lost his services for sev- eral years. To this I reply, that whatever may have been my decision, had lie been at the time hired out for tlie benefit of his owner, since he was in fact a runaway, his master must receive his compensation, and not himself One more question remains to be disposed of. The ship had proceeded six hundred miles on her way to Jamaica, when Jones and the crew, without the con- FisHEE V. The Sybil. 287 sent and against the will of Fisher, altered their course in the night, and made for this port. Fisher contends that this was an act of mutiny, which worked a forfeiture of the rights of all concerned in it. But it appears to me that this deviation was the iirst unquestionably correct act done by the company of the salvors. Jones was unexceptionably the master, and even if we view Fisher as the owner, which is the highest grade to which he can pretend, his station at sea is inferior to that of the master. There could not be a mutiny then where the master headed the opposition. The ship's company had a right to alter the course for the good of all concerned, and more especially to make an alteration so materially beneficial to the owners of the vessel and cargo. It was the first instance in which Fisher's interest had given way to those of the owners, and this was violently opposed by him. Besides, if this forfeiture had occurred, it would not have been to the benefit of Fisher, but of the owners, and it would be absurd to adjudge that a cause of forfeiture which clearly tended to their benefit. In the course of the argument, the case of the Blaireau was often cited; and that case was very justly considered as the best standard for governing our decision in this. I readily receive it as such, and think, that when compared with that, the merits of this case are strikingly inferior. First. The amount saved was only about two thirds the present amount. Second. The attempt to save the Blaireau was universally acknowledged to be attended with great danger, almost desperate, such was her '***! leaky and shattered state; here the danger is universally allowed to have been but inconsiderable, as the loss of the masts, in fact, in some measure diminished it. The distance navigated there is stated to have been three thousand miles; true or false is immaterial, if the court were under the influence of that impression. In this case the vessel was not navigated above twelve hundred. If the owners' interests had been considered, it need not have been navigated above four hundred. Whether the Blaireau was derelict or not, I have before declared technically immaterial, but I should think it unavailing to contend that Tooles being on board could diminish the merit of the salvors. To the merit of saving the property was added the more important considera- tion of saving human life. Finally, it has been contended that 288 FisHEE V. The Sybil. the owners of the ship in this case ought to be allowed their freight and general average, principally on the ground of the salvors having precipitated a sale of vessel and cargo, so as to deprive the owners of an opportunity of tendering salvage and proceeding on their voyage. If precipitating the sale is any ground of complaint, it is obvious that it can only be made against the District Court, and not against the salvors. I am fully aware that great and unnecessary loss to owners may be produced in such cases, as salvage can as well be ascertained by appraisement as by sale. But if a court has been unadvisedly led to order a sale in such a case, it is as against the salvors, damnum absque injuria. Freight and average can with no propriety be charged upon salvors, as both the freight and average are equally the result of the efforts in saving the ship and goods. That claim, therefore, must be wholly rejected. Upon the whole, I shall decree to the salvors the one fourth of the net proceeds of vessel and cargo, and hesitate while I do so, under an apprehension that I have given too much. This will amount to more than twenty-one thousand dollars ; of this sum let four hundred be paid to the pilot-boat Opposition, and in the distribution of the balance, I adjudge one third to the Margaret, her freight, cargo, and crew. The t**^^ remaining two thirds to be divided into twenty-four parts, and distributed as follows : To Fisher, eight parts; to Jones, six parts; to Rice, three parts; to Beach, one part ; to the five free seamen, and the owner of Perry, the slave, each one part. In distributing the one third assigned to the Margaret, let the sum be also divided into twenty-four parts, sixteen of which are to be divided amongst the owners of the vessel, cargo, and freight, according to their relative value; in which distribution let the vessel be valued at three thousand dollars, the freight at four thousand, and the cargo at the rate which Fisher himself fixes the value in his testimony, valuing those articles to which he does not testify at the advance proved by him on others. The reason for adopting this mode of fixing the value of the cargo is this : The result is unfavorable to Fisher, but he cannot murmur at it, as it is founded on his own testi- mony, and Johnson, the owner, being on board, and having con- sented to the undertaking, is certainly entitled to salvage. In PHnxiPs V. Ins. Co. of Pennsylvania. 289 distributing the remaining eigbt shares of the MargareCs third, it is right that Darrel, the second mate of tlie Sybil, should par- ticipate. He Avas entered mate to the Margaret, and, what I attach more importance to, he appears to have been desirous of remaining by his own ship. Kennedy is also entitled to some distinction in this division. Let "Wilson then have three parts, Darrel one part and a half, Kennedy one part, and the balance be equally distributed among the remainder of the Margaret's crew. The balance of the proceeds must be distributed among the claimants according as they shall prove interest. The claims of freight and average, even as between vessel and cargo, I wholly reject, as the abandonment put an end to the contract, and I consider the salvage paid by the freighters as a substitute for both freight and average. The decree of the District Court (that decree awarded fifty per cent salvage) is thus revised, and annulled so far as it is inconsistent with this decree, and the register will report to this court such evidence relative to inter- est, as '***^ will enable it to make a final order of distribution, after paying all costs, which are to be charged upon the entire amount of the sales. As to the specie, which it appears was taken from the Sybil and saved in the Margaret, I think it not necessary to make any observations respecting it, as it does not appear to me to be at all subject to our jurisdiction. Had anything improper been done respecting it, Ave should liave enforced such terms upon the salvors as would have been consistent with equity and good conscience; but nothing with this view apjiears to require tlie interference of this court. Note. — On a writ of error to tho United States Supreme Court, the decision in the above case was affirmed. (See 2 Wheat, 98.) 290 BiLSON V. Manuf. Ins. Co. BILSON V. MANUFACTURERS' INSURANCE CO. [U. S. Circuit Court, District of Pennsylvania, 1859.— 7 Am. L. Eeg. 661. j Insdbaijoe — AasiQNMEKT or Policy. — Under a clause in afire insurance policy that the liability of the insurers should cease upon assignment of the policy witliout their consent, held, that an assignment to a mortgagee from whom the insurers subsequently received the premium for a renewal was by such act ratified by them ; but a subsequent conveyance of the fee by the mortgagor to the mort- gagee would avoid the policy. A transfer to the mortgagee as collateral security, with the assent of the insurers, would not convert the contract into a new one ou his interest. The opinion of the court was delivered by Cadwaladee, J. — The defendants insured the plaintiff in fifteen hundred dollars against loss by fire, on a building in Baltimore, for one year from the 14th of March, 1856. The policy provided that the defendants' liability should cease in case of a total or partial assignment of the policy, without their consent in writing indorsed upon it; and also declared that the policy should become void in case of any transfer, or termina- tion of the interest of the insured (meaning interest iu the building or subject of insurance), either by sale or otherwise. It contained a provision that the risk not being changed, the insurance might be continued for such further time as might be agreed upon; the premium for the renewal being paid, and its payment indorsed, or a receipt for it given. [««»! The plaintiff, on the 12th of September, 1856, sub- scribed, on the back of the policy, an assignment of all his title and interest in it, to William Conine. This party's interest was under a mortgage of the premises insured, executed by the plaintiff, to secure the payment of a debt greater in amount than the sum insured. This assignment was made by filling up, in a fair hand, and subscribing, a blank form printed in large type. Conine and the plaintiff resided in Baltimore, where the defendants had a resident agent, through whom the above-men- tioned insurance and the renewal mentioned below were effected. On the 14th of March, 1857, the defendants renewed the insurance for another year. Their agent's receipt for the pre- mium for this renewal was indorsed upon the policy directly under the above-mentioned assignment. This assignment was in such visual juxtaposition that the agent could not have failed to BiLsoN V. Manuf. Ins. Co. 291 see the whole of it, when he subscribed the receipt, without an extraordinary want of attention to what was before him for inspection. It was proved that Conine had paid this premium for the renewal of tlie insurance; and there seemed to be no reason to doubt that he was the person for whose benefit the insurance was intended by the parties in Baltimore to continue in force. After this renewal the plaintiff, by a deed, of which the existence was not made known to the defendants, for a pecuni- ary consideration in addition the mortgage debt, conveyed the equity of redemption of the premises insured to the mortgagee, Conine, absolutely in fee. After the plaintiff's interest had been thus entirely divested, the building was, before the end of the second year, consumed by fire. The loss thus incurred was of an amount greater than the sum insured. The defendants at the trial objected to the plaintiff's recovery, on the ground that his assignment of the policy to Conine hav- ing been made without the written consent required by the policy had annulled the insurance. On this point the court instructed the jury that the evidence would justify them in find- ing that the defendants' agent, when he renewed the insurance, was aware of the existence '""*^ and contents of the assignment, which was then, in effect, exhibited to him, adding, that if the jury should so find, the act of renewal included, sufficiently, the consent required by the policy. The jury found a verdict for the plaintiff. The court is of opinion that, upon the point on which the instruction was given the verdict was right, and that the instruction, as to this point, was not erroneous. But the court is also of opinion that this is not the point on which the decision of the case properly depends. The question of interest in the insurance as distinguished from that of interest in the subject of insurance was alone considered at the trial. The difficulty in sustaining the verdict arises from the fact that the conveyance of the equity of redemption by the plaintiff to Conine changed entirely the interest on the subject of insurance. As the previous mortgage debt had in amount exceeded the sum insured, Conine's acceptance of this convey- ance might, possibly, not have modified substantially his interest 292 BiLSON V. Manuf. Iks. Co. in the insurance, as it would have been retained by him if the defendants had approved of the conveyance. But be this as it may, the conveyance converted his interest in the subject of insurance from that of a mere security for a debt into an abso- lute, exclusive ownership; and at the same time determined en- tirely the plaintiff's interest in the subject. Though attention may not have been particularly directed at the trial to the effect of this change of interest, the defendants, if it entirely discharged them from liability, ought not to be deprived of the benefit of it on a motion for a new trial. Another point which has been taken on behalf of the defend' ants is, that though an action of assumpsit, at the suit of Conine, had been sustainable upon the act of renewal as a con- tract with him, the present action of assumpsit by the papty originally insured, who, on the renewal was neither the prom- isee nor the party to whom the loss was to be paid, cannot be sustained. If the decision in Il,Uou v. The Kingston Mutual Inmrwnce Company, 1 Seld. 406, were law, there could, upon the facts of the present case, have been a recovery in an action at the suit of Conine. That case was adjudged by the court of appeals of New York in 1851. Three partners, owning a mill, in which they conducted '*"*' their joint business, held a policy of insurance on it against fire, which, like the policy now in ques- tion, contained a provision that it should become void if the property insured was alienated by sale, or otherwise. The pol- icy was assigned by the parties insured, with the assent of the insurers, to secure a mortgage on the mill for a debt of less amount than the sum insured. One of the partners insured, on afterwards retiring from the business, conveyed his interest in the mill to the other tM'o owners. It was destroyed subse- quently by fire. Two points were decided : the first, that this conveyance by one partner to the others had, except as to the mortgage, annulled the insurance; tjie second, that the mort- gagee was, nevertheless, to the amount of the mortgage debt, entitled to the benefit of the insurance. The decision of the first point, that, where partners are insured, an assignment by one of them to the others annuls the contract of insu :ance as between them and the insurer, has been BiLSON r. Manuf. Ins. Co. 293 questioned in a subsequent extrajudicial dictum of the same court. (3 Smith, 412.) But the decision on this point lias been followed in a direct adjudication by the Supreme Court of Pennsylvania, in the recent case of The 1/yooming County Mut- ual Insurance Ck>. v. Finley. In this case the court said, " that a sale by one partner to the other is within the prohibition, cannot be doubted. There is no exception in its favor in the instrument; and the terms used give no reason to imply any." These terms were the same as in the New York case. The partner who, Avithout the consent of the insurer, conveys his interest in the subject of insurance to his co-partners gives them, from thenceforth, an exclusive dominion and control where he had, previously, the right of participating in any control or dominion that could have been exercised. He thereby ceases to be a protector of tlie property insured against fire from fraud, or from any other cause for which the personal identity of a party insured can be material to an insurer. The decision on this point, therefore, aj»pears to have been founded in sound legal reason. On the second point the decision was founded on the assumed reason that the approval by the insurers of the assignment of the policy to the mortgagee had constituted a distinct and inde- pendent f"*^' contract by them, with him, entitling him to the benefit of the insurance, in such a manner that his interest was not liable to be affected by subsequent acts or omissions of the party originally insured. On this point the decision has been overruled by the court of appeals of New York in the recent cases of Grosvenor v, Atlantic Mutual Insurance Company, and The Buffalo Steam Engine Works v. The Sun Mutual Insurance Company, 3 Smith, 391, 401, 414. As the law of New York is now settled, the assignment of a policy of insurance against fire to a mortgagee, with the assent of the insurer, merely gives to the mortgagee the right of requiring that the amount insured shall, to the extent of the mortgaged debt, be» paid to him whenever it would afterwards have been recoverable by the mortgagor if no such assignment had been made. The approval of the assignment by the insurer does not convert his former coiitract of insurance into a new one for the independent insur- ance of the mortgagee. Unless the mortgagor could have re- 294 BiLsoN V. Manuf. Ins. Co. covered, if no assignment had been made, there can be no recovery of the insurance by or for the mortgagee. Therefore, a subsequent alienation of the equity of redemption by the mort- gagor, made before any loss by fire, without the consent or approval of the insurer, annuls the insurance as to both mort- gagor and mortgagee. The cases reported in 7 Casey, 430, 8 Cush. 133, 136, 137, and 10 Cush. 352, 353, show that a like doctrine on the subject prevails in Pennsylvania and in Massachusetts. In 16 Peters, 501, 502, Judge Story, in delivering the opinion of the Supreme Court, said that if "a mortgagor procures a policy on the prop- erty against fire, and he afterwards assigns the policy to the mortgagee with the consent of the underwriters (if that is re- quired by the contract to give it validity) as collateral security, that asssignment operates solely a.s an equitable transfer of the policy, so as to enable the mortgagee to recover the amount due in case of loss. But it does not displace the interest of the mortgagor in the premises insured. On the contrary, the insur- ance is still his insurance, and on his property, and for his account. And so essential is this that if the mortgagor should transfer the property to a tliird person, without f"**"^ the consent of the underwriters, so as to divest all his interest therein, and then a loss should occur, no recovery can be had therefor against the underwriters, because the assured has ceased to have any interest therein, and the purchaser has no right or interest in the policy." Consequently, if in the present case the conveyance which divested the plaintiff's interest had been to another person than the mortgagee, the insurance would, from the date of such con- veyance, have been to all intents and purposes at an end. The authorities define so clearly the rule of decision, and the prin- ciple from which it is deduced, that we 'would not be at liberty to consider the convenience or expediency of the rule, or to inquire into probabilities of justice, or injustice, in the result of its ordinary application. The comparative magnitudes of the mortgage debt, and the sum insured, cannot affect the question of the application of the rule. Nor can its application be affected by the circumstance that the person to whom the absolute conveyance in fee has been BiLSON V. Manuf. Ins. Co. 295 made was the same party to whom the policy had been previ- ously assigned with the assent of the insurers. If the question depends upon the change of interest, not the insurance, but in the subject of insurance, these distinctions cannot be attended with any material difference. We have seen that the approval by the defendants of the assignment of the policy to Conine, though a recognition of him as the substitute of the plaintiff to receive the payment of a loss, had not been a dispensation with any former condition of the contract as to a change in the owner- ship of the subject of insurance. In two of the cases which have been cited the transfer by a partner to his co-partners of his interest in an insurance of property of their firm had intro- duced no new person as a party insured. The doubt in those cases did not arise from the identity of the person, but from the identity of the character of the interest which, by the transfer, had been changed as to the remaining partners in proportion, but not in kind, though it had been absolutely determined as to the retiring partner. In the present case, not only Avas the plaintiff's interest, and with it his protective dominion and control, forever determined by the '*"'^ conveyance in question, but this dominion and con- trol were irrevocably vested in Conine, by whom they could not previously have been exercised, and the character of whose interest was thus entirely changed. His personal identity as mortgagee was, therefore, so far as the reason of the rule is con- cerned, immaterial. The case thus appears to be completely covered by the au- thorities. They show that there could not be a recovery of the insurance in an action at the suit of either Conine or the present plaintiff. The verdict must, therefore, be set aside, and a new trial ordered. Geier, J. — I fully concur with my brother Cadwalader in all his views as above expressed. 296 Ex Parte Nugent. EX PAETE JOHN NUGENT. [U. S. Circuit Court, District of Columbia, 18i8. — 1 Am. L. J. 107.] Contempt— CouKT Sole Judge of itb Own,— Tlie Senate and House of Bepre- sentatives of the United States, as well as any court, is the sole judge of ita own contempts; and in case of commitment for contempt no other boily or court can have a right to inquire directly into the correctness or propriety of the commitment, or to discliai-ge the prisoner on habeas corpus. Wakrant of Commitment, Fobm of. —The warrant of commitment need not set fiirth the particular facts which constitute the alleged contempt. PowEK TO Punish fob Cohtempt. — The Senate of the United States has power to punish for contempts of its authority in cases of which it has jurisdiction; and an inquiry who, if any person, had violated the rule of the Senate which requires that all treaties laid before them should be kept secret until the Senate should take off the injunction of secrecy, is a matter within the jurisdiction of tlie Senate. United States Senate- Eight to HoiiD Secket S; ssioxs. — The Senate of the United States has a right to hold secret sessions whenever in its judgment the proceedings shall require secrecy, and may pronounce judgment in secret session for a contempt which took plaoo in secret session. The petition for the writ of habeas corpus stated that the said John Nugent was held in custody and close confinement by Robert Beale of the city of Washington, without any authority or warrant of law; and that the said Robert Beale has refused to exhibit to the petitioner the authority, if any, under which he pretends to hold him, and to give him a copy thereof, and to discharge him from custody, etc. [108] 'pjjg ^yj,j^; Qf habeas corpus was thereupon issued by the court on the 3d of April, 1848, returnable on the 4th. The return stated that " the said Robert Beale holds the office of sergeant-at-arms of the Senate of the United States; that the said Senate is and has been long before the arrest of the said John Nugent holding its regular sessions ; that certain proceed- ings were had before the said Senate in executive sessions, whidi said proceedings are, by the rules and orders of said Senate, had in secret session, and which the respondent cannot, without violation of his official oath and duty, divulge or make public. That this respondent as such sergeant-at-arms has received from the Hon. G. M. Dallas, Vice-President of the United States and President of the Senate, a warrant, by Avhich he is ordered and directed, authorized and required to take into his custody the body of the said John Nugent, and him safely keep accord- ing to the terms of said precept or warrant. That in obedience Ex Parte Nugent. 297 to the order and command of the said Senate of the United States this respondent, as in duty bound, has arrested and now holds the body of the said John Nugent in legal custody, and now produces and exhibits to the court now here the said order, precept, and warrant, as the cause of the caption and detention by him as aforesaid of the body of the said John Nugent, as part, of this his return." This return was accompanied by the warrant as follows: — "United States of America. " To the Sergeant-at-Arms of the Senate of the United States, Robert Beale. " Whereas, John Nugent, having been summoned, and having appeared at the bar of the Senate, and having been sworn as a witness, he answered the following interrogatories : — "1. Have you any connection Avith or agency for the propri- etors of the newspaper published in the city of New f**'^ York, and called the New York Herald f If yea, state what is that connection or agency. " 2. Do you know that an instrument purporting to be a copy of the treaty between the United States of America and the Mexican Republic, with the amendments made by the Senate thereto, and the proceedings of the Senate thereon, was published in that newspaper? Declare. " 3. Do you know by whom tbe copy of the instrument, with the amendments thereto and proceedings thereon in the last pre- ceding interrogatory specified, was furnished to the editor or publishers, or any agent of the editor or publishers, of the said newspaper called the New York Herald? If yea, declare and specify such person or persons. " 4. Did you copy the parts purporting to be amendments of the treaty yourself for the purpose of sending them to the editor of the New York Herald., or for any other purpose? If you answer in the negative, then s&j if you know by whom they were copied. " 5. Where, at what place or house, and at what time were the said amendments of the treaty copied ? " And having refused to answer the following interrogatories : " 6. Whffl-e, in what place or at what house, and at what time did you first receive a printed copy of the confidential document 298 Ex Parte Nugent. containing the treaty, the President's message, and also the other confideutial Jocumeuts printed iu the Hercddf • " 7. In answer to the third interrogatory you have stated that you furnished the papers (therein referred to) to the editor of the New York Herald. State from whom you received the said treaty with Mexico with the amendments and the said portion of the proceedings of the Senate. " 8. In your answer to the fourth interrogatory you state that the amendments there referred to were communicated '^**^ to the Herald in your handwriting. Did you copy the same, and from whom did you procure the original from which you copied the same? " 9. You say in answer to the last question that you decline to answer the same, because you cannot answer it with accuracy. State why you cannot answer it with accuracy. Is it because you do not recollect the facts inquired of? " 10. What portion of the facts do you not recollect with accuracy, is it as to the person from whom you obtained the papers, or either of them referred to? "11. State from whom you received the treaty. " 12. State from whom you received the documents. " 13. State from Avhom you received the proceedings of the Senate heretofore inquired of. "14. Was the copy of the treaty you forwarded to the Herald a printed copy ? " has, by so refusing, committed a contempt against the Senate ; and has by the Senate been ordered into the custody of the sergeant-at-arms, there to remain until the further order of the Senate. " These are therefore to authorize and require you, and you are hereby authorized and required to take into your custody the body of the said John Nugent, and him safely keep until he answers the said interrogatories, or until the further order of the Senate of the United States in this behalf; and for so doing this shall be your sufficient warrant. "Given under my hand this thirty-first day of March, in the year of our Lord one thousand eight hundred and forty-eight. "G. M. Dallas, " Vice-President of the U. S. and President of the Senate, Ex Parte Nugent. 299 " xVttest : "ASBUEY DiCKEXS, "Secretary of the Senate of the United States." t***^ Cranch, C. J., delivered the opinion of the court. Upon this return of the habeas corpus the principal questions are: — Has the Senate of the United States jurisdiction and power to punish contempts of its authority? And if so, AVhether this court upon this habeas corpus can inquire into the question of contempt, and discharge the prisoner? The jurisdiction of the Senate in cases of contempt of its authority depends upon the same grounds and reasons upon which the acknowledged jurisdiction of other judicial tribunals rests, to wit, the necessity of such a jurisdiction to enable the Senate to exercise its high constitutional functions — a necessity at least equal to that which supports the like jurisdiction M^iich has been exercised by all judicial tribunals and legislative assemblies in this country from its first settlement, and in England from time immemorial. That the Senate of the United States may punish contempts of its authority seemed to be admitted by the prisoner's counsel, provided it be in a ease within their cognizance and jurisdiction; but whether admitted or not, such is the law as laid down by the Supreme Court of the United States in Anderson v. Dunn, 6 Wheat. 224; and in Kearney's Case, 7 Wheat. 41. Kearney's Case was a petition to the Supreme Court of the United States for a habeas corpus to the marshal, D. C, to bring up the body of J. T. Kearney, who was committed by the Circuit Court, D. C, for contempt in refusing to answer a question in a criminal cause. Mr. Justice Story, in delivering the opinion of the court after citing Brass Crosby's Case with approval, said (in p. 44) : " So that it is most manifest from the whole reasoning of the court in this case that a writ of habeas corpus was not deemed a proper remedy where a party was committed for contempt by a court of competent '■'■'■*^ jurisdiction, and that if granted the court could not inquire into the sufficiency of the cause of com- 300 Ex Parte Nugent. niitmcnt. If, therefore, we Avere to grant the writ iu this case it would be applying it in a manner not justified by principle or usage ; and we should be bound to remand the party, unless we were prepared to abandon the whole doctrine, so reasonable, just, and convenient, which has hitherto regulated this important subject." The same law vras declared by the court of common pleas in the year 1771, in Brass Crosby's Case, 3 Wils. 188, in which (in p. 201) Ld. Ch. J. DeGrey said : " Perhaps a contempt in the House of Commons, in the chancery, in this court, and in the court of Durham may be very different, therefore we cannot judge of it ; but every court must be sole judge of its own conr tempts. Besides, as the court cannot go out of the return of this writ, how can we inquire into the truth of the fact as to the nature of the contenpt. We have no means of trying whether the lord mayor did right or wrong," And in p, 202 he says : " There is a great difference between matters of privilege com- ing incidentally before the court and being the point itself directly before the court. The counsel at the bar have not cited one case where any court of this hall ever determined a matter of privilege which did not come incidentally before them. But the present case differs much from those which the court will determine, because it does not come incidentally before us, but is brought before us directly, and is the whole point in question ; and to determine it we must supersede the judgment and deter- mination of the House of Commons, and a commitment in execution of that judgment." Mr. Justice Gould, in the same case, p. 203, said : " I en- tirely concur in opinion with my Lord Ch. J. that this court hath no cognizance of contempts or breach of privilege of the House of Commons. They are the only t*-'*' judges of their privileges." And in p. 204 he says : " When matters of privi- lege come incidentally before the court, it is obliged to deter- mine them to prevent a failure of justice. The resolution of the House of Commons is an adjudication, and every court must judge of its own contempt." Mr. Justice Blackstone, in the same case, said : " I concur in opinion that we cannot discharge the lord mayor. The present case is of great importance because the liberty of the Ex Parte Nugent. 301 subject is materially concerned. The House of Commons is a Supreme Court, and they are judges of their own privileges and contempts, more especially with respect to their own members. Here is a member committed in execution by the judgment of his own House. All courts, by which I mean to include the two Houses of Parliament and the courts of Westminster Hall, are uncontrolled in matters of contempt. The sole adjudication of contempts, and the punishment thereof in any manner, belongs exclusively, and without interfering, to each respective court. Infinite confusion and disorder would follow if courts could, by writ of habeas corpus, examine and determine the contempts of others. This power to commit results from the first principles of justice, for if they have power to decide they ought to have power to punish ; no other court shall scan the judgment of a Superior Court, or the principal seat of justice. As I said before, it would occasion the utmost confusion if every court of this hall should have power to examine the com- mitments of the other courts of the hall for contempts ; so that the judgment and commitment of each respective court as to contempts must be final and without control." This case of Crosby was decided by the court of common pleas in the year 1771, and, as Mr. Justice Story said in delivering the opinion of the Supreme Court of '***^ the United States in Kearney's Case, p. 43, settled the law upon that point. It must be remembered that the case of Crosby was upon habeas corpus, and the court could not give relief without assailing the judg- ment of the House of Commons directly, and revising that judg- ment; but when the judgment of contempt comes before the court inddentally or collaterally its correctness may be ques- tioned, as in cases where it is pleaded in justification, as was done in the case of Anderson v. Dunn, 6 Wheat. 204. The law as stated by the court in Crosby's Case was the law of the land both in this country and in England before our revolution, and has so continued to the present time. In the case of Stockdale v. Mansard, for a libel, the defendant pleaded in justification an order of the House of Commons to print and publish the report of the inspectors of prisons, which contained the supposed libel. To this plea the plaintiif de- marred, and assigned for causes : " That the known and estab- 302 Ex Parte Nugent. lished laws of the land cannot be superseded, suspended, or altered by any resolution or order of the House of Commons; and that the House of Commons, in Parliament assembled, can- not by any resolution or order of themselves create any new privilege to themselves inconsistent with the known laws of the land; and that if such power be assumed by them there can be no reasonable security for the life, liberty, property, or character of the subjects of the realm." The case was learnedly and elaborately argued in the year 1837, and decided in 1839 by the court of Queen's Bench. One of the questions raised in the argument Avas whether the House of Commons had the right to assume the authority to settle its own privilege, and to be the sole judge of its existence and extent. In p. 20 the Attorney-General Campbell said: Another and ''■^'^ a summary remedy might have been adopted; that the House, having confidence in the ti-ibunals of the country, deems it expedient to refer the case to the consideration of the court in the ordinary course of justice, thereby giving to the plaintiff an opportunity either of denying that the act was done under the alleged authority, or of showing that the authority has been exceeded. In p. 22 he says : " Here [i. e., upon demurrer to the plea of justification under the order of the House of Commons] the question of privilege is directly raised, and cannot, therefore, be inquired into by a court of common law." And again he says, in p. 23 : " The most frequent cases in which the privilege of the Houses of Parliament has come in question directly have been cases of habeas corpus on commitments by them, and there the courts of common law have disclaimed jurisdiction. So the question would arise directly if an action of trespass of false imprisonment were brought for such a commitment, arid wherever it might be sought to overrule an act done by either House and justified by its authority. The present," he says, "is a case of that description. If the complaint appears on the record to be made against an act of one of the Houses, so that the court is called upon to say whether the privilege alleged in justification belongs to the House or is usurped, the point of privilege arises directly, whether raised by the declaration or by Ex Paete Nugent, 303 any subsequent pleading. With a question of privilege raised incidentally the court must deal as it best can. In such a case necessity may require that the existence of the privilege should be examined into ; but the necessity which makes the rule points out its limit. Where an act of either House is complained of no such necessity can exist. Here an adjudication has been made on the very point, and by a court of exclusive jurisdic- tion, and such an adjudication is binding." t^*"' So much of the argument of the attorney-general in the case of Stockdale v. Hansard seemed necessary to be stated that the opinion of Ld. Ch. J. Denrhan might be understood. The attorney-general contended, first, that when the question of privilege came directly before the court it could not inquire into it ; and second, that in the case then before him it did come directly in question. In support of the first proposition he cited the following cases, all of which were cases of habeas corpus : — 1. Sir Robt. Rye's Case, cited in 5 How. St. Tr. 948. 2. Lord Shaftesbury's Case, 6 How. St. Tr. 1269; S. C. 1 Mod. 144 ; 3 Keb. 792, in which Sir Thomas Jones, Justice, said : " The cases where the courts of Westminster Hall have taken cognizance of privilege differ from this case; for in those it was only an incident to a case before them which was of their cognizance, the direct point of the matter now is the judgment of the lords. This court can neither bail nor discharge the earl." Wylde, Rainsford, and Twisden, Justices, concurred. 3. Captain Streater's Case, 5 How. St. Tr. 366. 4. The Protector and Captain Streeter, Style, 415. 5. Regina v. Raty, 2 Eaym. Ld. 1105, in which eleven of the twelve judges agreed that the court of Queen's Bench had no jurisdiction in the case of parliamentary coftimitment, and could not discharge the jjrisoner. But in that case, — Holt, C. J., who was the dissenting judge, said, in p. 1114: "As to what was said that the House of Commons are judges of their own privileges, that they are so when it comes before them. And as to the instances cited where the judges have been cautious in giving any answer in Parliament in matters of privilege of Parliament, he said the reason of that was because the members knew probably their own privileges better than 304 Ex Parte Nugent. the judges; but when a matter of privilege comes in question in Westminster '**'' Hall the judges must determine it, as they did in Bunion's Case." 6. Alexander Murray's Case, decided in B. E. anno. 1751, 1 Wils. 299, upon habeas corpus, in which "Wright, J., said: " The House of Commons is undoubtedly a high court, and it is agreed on all hands that they have power to judge of their own privileges ; it need not appear to us what the contempt was, for if it did appear we could not judge thereof." Dennison, J., added : " This court has no jurisdiction in the present ease. We granted the habeas corpus not knowing what the commit- ment was; but now it appears to be for a contempt of the privi- leges of the House of Commons. What those privileges (of either House) are we do not know, nor need they tell us what the contempt was, because we cannot judge of it." 7. Brass Crosby's Case, 2 Black. W. 754, upon habeas cor- pus, in which the counsel of the prisoner contended that the offense stated in the warrant of commitment was no contempt, and that that court had a right to judge of the privileges of the House of Commons, and was often obliged to take notice of them incidentally, as in Mr. Wilkes' Case. But the court said : "They never discharge persons committed for a contempt by any Supreme Court. That the law has intrusted to these the power of judging of their own contempts." In the case of Alderman Oliver-, 2 Black. W. 768, which was the same in its circumstances with that of Lord Mayor Crosby, a habeas corpus was sued out in the court of exchequer, and a like judgment was given by the unanimous opinion of the barons. 9. In Hex v. Fowler, 8 Term Rep. 314, Lord Kenyon said: " We were bound to grant this habeas corpus ; but having seen the return we are bound to remand the defendant to prison, because the subject, belongs ad aUud examen." f^^®^ And Gross, J., said: "That the adjudication of the House on a contempt was a conviction, and the commitment in consequence execution; that every court must be sole judge of its own contempts; and that no case appeared in which any court of Westminster Hall ever determined a matter of privilege which did not come incidentally before them." 10. In Eex v. Hobhouse, 2 Chit. 207, the commitment was Ex Parte Nugent. 305 by the House of Commons for a contempt in publishing a libel. The court said : " The cases of* Lord Shaftesbury and Hex v. Paty are decisive authorities to show that the courts of West- minster Hall cannot judge of any law, custom, or usage, and consequently they cannot discharge a person committed for a contempt of Parliament. The power of commitment for con- tempt is incident to every court of justice, and more especially it belongs to the high court of Parliament ; and therefore it is incompetent for this court either to question the privileges of the House of Commons, or a commitment for an offense which they have adjudged to be a contempt of those privileges." 11. In Bwrddtv. Colman, 14 East, 163, the action was for false imprisonment, and the defendant, an officer of the House of Commons, pleaded the order of the House in justiiication and was acquitted. The case was taken up to the House of Lords, where it was held that the complaint was answered, and that the warrant of commitment would have sufficed on a return to a habeas corpus. 12. In the case of Stockdale v. Hansard, 9 Ad. & E. 1 ; 36 Com. L. Rep. 74, Denman, C. J., said: "But as to these pro- ceedings by habeas corpus it may be enough to say that the present is not of that class, and that when any such may come before us we will deal with it as in our judgment the law may- appear to require." [110] ^gain, in the same case, p. 79, 37 Com. L. Rep., Den- man, C. J., says: "But even supposing this court would be bound to remand a prisoner committed by the House for a con- tempt, however insufficient the cause set out in the return, that could only be in consequence of the House having jurisdiction to decide upon contempts. In this case we are not trying the right of a subject to be set free from imprisonment for contempt, but whether the order of the House of Commons is of power to protect a wrong-doer against making reparation to the injured man." Again, Denman, C. J. (in p. 82), in the same case, said: "The other concession [of the attorney-general] to which I allude is that when matter of privilege comes before the courts, not directly but incidentally, they may, because they must decide it. Otherwise, said the attorney-general, there must be a Pbdn. c. c— ao. 306 Ex Parte jSugent, failure of justice. And such has been the opinion even of those judges who have spoken' with the most profound venera- tion of privilege. The rule is difficult of application." In the same case {Stoclcdale v. Hansard, p. 93, 36 Cora. L. Eep.) Littledale, J., says: "But it is said that the question of the privilege of the House of Commons comes directly before the court upon the pleadings, and that, therefore, upon all authorities, it is quite clear it is not competent to this court to inquire into the question of privilege; and it is said that it is in effect the same case in principle as Burdett v. Abbot, 14 East, 1, and that it was there held that the defense being founded on the order of the House to do the thing complained of, raised the question of privilege directly, and that the court could not investigate the legality of that order. But this differs very materially from Burdett v. Abbot. That was an action against the speaker himself for an act done by him in the House. The act done by him was to commit an individual whom the House adjudged to be '***^ guilty of a contempt to the House, and who had been for that ordered to be taken into custody, and there was a specific order of the House as to the particular thing to be done; but this case is altogether different; these defendants are not members of the House, but agents employed by them. The plaintiff is a perfect stranger to the House. He has been guilty of no insult or contempt of the House, and there is no order of the House applicable to him. He stands, therefore, in the situation of a stranger to the Houtie, complaining of persons who are not members of the House, but merely employed to distribute their papers. Lord Ellen- borough, in the course of his judgment, says (14 East, 138), that independently of any precedents or recognized practice on the subject, such a body as the House of Commons must, a priori, be armed with a competent authority to enforce the free and independent exercise of its own proper functions, whatever those functions may be. But yet when he comes to the sum- ming up the points for the consideration of the court, and gives the first part of his judgment, he says, first, that 'it is made out that the power of the House of Commons to commit for contempt stands upon the ground of reason and necessity, independent of any positive authority upon the subject; but it Ex Paete Nugent. 307 is also made out by the evidence of usage and practice, by legis- lative sanction and recognition, and by the judgments, of the courts of law, in a long course of well-established precedents and authorities.' (14 East, 158.) I admit that it is very diffi- cult to draw the line between the question of privilege coming directly before the court and where it comes incidentally ; the shades of difference run into one another. The decisions and dicta of the judges who have said that the House of Commons are the only judges of their own privileges, and that the courts of common law cannot be judges of the privileges of the [isi] House of Commons, are chiefly where the question has arisen on commitments for contempt, upon which no doubt could ever be entertained but that the Plouse arc the only judges of what is a contempt to their Plouse generally, or to some indi- vidual member of it ; but no case has occurred where the courts or judges have used any expressions to show that they are con- cluded by the resolution of the House of Commons in a case like the present." Again, in p. 94, 36 Com. L. Rep., he says : " There is no doubt about the right as exercised by the two Houses of Parliament in regard to contempts or insults offered to the House, either ■\vithin or without their walls, and as to any other thing which may appear to be necessary to carry on and conduct the great and important functions of their charge. In the case of commitments for contempts there is no doubt but that the House is the sole judge whether it is a contempt or not, and the courts of common law mil not inquire into it. The greatest part of these decisions and dicta, where the judges have said that the Houses of Parlia- ment are the sole judges of their o'svn privileges, have been where the question has arisen upon commitments for contempt, and as to which, as I have before remarked, no doubt can be entertained. " But not only the two Plouses of Parliament, but every court in "Westminster Hall are themselves the sole judges whether it be a contempt or not'; although in cases where the court did not profess to commit for a contempt, but for some matter which by no reasonable intendment could be considered as a contempt to the court committing, but a ground of commitment palpably and evidently unjust and contrarv to law and natural justice, 308 Ex PAETiB Nugent. Lord Ellenborough says that in the case of such a commit- ment, if it should ever occur (but which he said he could not possibly anticipate as ever likely to occur), the court must look at it, and act upon it, as justice may require, from whatever court it may profess to have proceeded." [183] ji^^gain, Littledale, J., in p. 102, says : " I therefore, upon the whole of this case, again point out what Lord Ellen- borough Very much relied upon in his judgment in Burdett v. Abbot, 14 East, 158, when he said that 'it is made out that the power of the House of Commons to commit for contempt stands upon the ground of reason and necessity, independent of any positive authorities upon the subject ; but it is also made out by the evidence of usage and practice, by legislative sanction and recognition, and by the judgments of the courts of law in a long course of Avell-established precedents and authorities.' But in the case now before the court (Stookdale v. Hansard) I think that the power of the House of Commons to order the publica- tion of papers containing defamatory matter does not stand on the ground of reason and necessity, independent of any positive authorities on the subject. And I also think that it is not made out by the evidence of usage and practice, by legislative sanc- tion and recognition in the courts of law, in a long course of well-established precedents and authorities." In the same case (Stockdah v. Hansard), p. 107, 36 Com. L. Rep., Patterson, J., said : " It is indeed quite true that the members of each House of Parliament are the sole judges whether their privileges have been violated, and Avhether thereby any person has been guilty of a contempt of their authority; and so they must adjudicate on the extent of their privileges. All the cases respecting commitments by the House, mostly raised upon writs of habeas corpus, and collected in the arguments and judg- ments in Burdett v. Abbot, 14 East, 1, establish, at the most, only these points that the House of Commons has power to commit for contempt ; and that when it has so committed any person, the court cannot question the propriety of such commit- ment, or inquire whether the person committed had been guilty of a contempt of the House ; in the same manner t^*"' as this court cannot entertain any such questions if the commitment be by any other court having power to commit for contempt. In Ex Parte Nugent. 309 such instances there is an adjudication of a court of competent authority in the particular case, and the court which is desired to interfere not being a court of error or appeal cannot entertain the question whether the authority has been properly exercised. " In order to make cases of commitment bear upon the present, some such case should be shown in which the power of the House of Commons to commit for contempt under any circum- stances Avas denied, and in which this court had refused to enter into the question of the existence of that power. But no such case can be found, because it has always been held that the House had such power; and the point attempted to be raised in the cases of commitment has been as to the due exercise of such power. The other cases which have been cited in argument relate generally to the privileges of individual members, not to the power of the House itself acting as a body ; and hence as I conceive has arisen the distinction between a question of privi- lege coming directly or incidentally before a court of law. It may be difficult to apply the distinction. Yet it is obvious that upon an application for a writ of habeas corpus by a person committed by the House, the question of the power of the House to commit, or of the due exercise of that power, is the original and primary matter propounded to the court, and arises directly. Now as soon as it appears that the House has com- mitted the person for a cause within their jurisdiction, as, for instance, a contempt so adjudged by them to be, the matter has passed in rem jvdicatam, and the court, before which the party is brought by writ of habeas corpus, must remand him. But if an action be brought in this court for a matter over which the court has general jurisdiction, as, for instance, for a libel, or for an assault and '***^ imprisonment, and the plea first declares that the authority of the House of Commons, or its powers, are in any way connected with the case, the question may be said to arise incidentally. The court must give some judgment; must somehow dispose of the question. I do not, however, lay any great stress on this distinction. It seems to me that if the question arises in the progress of a cause, the court must of necessity adjudicate upon it, whether it can be said, in strict propriety of language, to arise directly or incidentally." 310 Ex Parte Nugent. In the same case (StocMcde v. Hansard, pp. 121, 122), Cole- ridge, J., said : " I know it will be said that in many of the cases alluded to the question of privilege has arisen incidentally- only, and that in such ex necessitate the courts have interfered. In what sense " incidentally " is here used has been often asked, and never, as yet, satisfactorily answered. In what sense a greater necessity exists in one case than the other has not been made out. The cases of habeas corpus are generally put as instances where the question arises directly. Let me suppose the return to state a commitment by the speaker under a resolu- tion of the House ordering the party to capital punishment for a larceny committed, it will hardly be said that a stronger case of necessity to interfere could be supposed ; and yet it must be admitted on the other hand the question of privilege or power [between which the argument for the defendants makes no dif- ference] would arise directly. A case, therefore, may be sup- posed in which it would be necessary to interfere, even when the so doing would be a direct adjudication upon the act of the House. It should seem, then, that some other test must be applied to ascertain in what sense it is true that the House can alone declare and adjudicate upon its own privileges. " I venture Avith gredt diffidence to submit the view which I have taken of these embarrassing questions, not as ^'^^^^ claiming the suspicious merit of novelty, but as one which will at least remove all difficulties in theory, and be found, I believe, not inconsistent with the general course of authorities. I say gen- eral course, for during so long a series, carried through times so different in political basis, and between such parties as either House of Parliament on one side and the courts of law, indi- vidual judges, or litigant suitors on the other, it would be quite idle to expect that any one uniform principle should be found to have invariably prevailed. " In the first place I apprehend that the question of privilege arises directly wherever the House has adjudicated upon the very fact between the parties, and there only. Wherever this appears, and the case may be one of privilege, no court ought to inquire whether the House has adjudicated properly or not. But whether directly arising or not, a court of law, I conceive, must take notice of the distinction between privilege and power ; Ex Parte Nugent. 311 and where the act has not been done within the House (for of no act there done can any tribunal, in my opinion, take cogni- zance but the House itself), and is clearly of a nature transcend- ing the legal limits of privilege, it (the court) will proceed against the doer as a transgressor of the law. " To apply these principles to the case in which, on the return to a habeas corpus, it appears that the House has committed for a contempt in the breach of its privileges, I subscribe entirely to the decisions, and I agreee also with the dicta which, in some of them, this court has thrown out on supposed extreme cases. In every one of these cases the House has actually adjudicated on the very point raised in the return, and the committal is in execution of its judgment. In all of them the warrant or order has set out that which, on the face of it, either clearly is or may be a breach of privilege ; or it has contented itself with stating the party to have been guilty of a contempt, without t**"^ speci- fying the nature of it, or the acts constituting it. Brass Q'osby's Case, 3 Wils. 188, is an instance of the former ; Lord Shaftesbury's, 1 Mod. 144, of the latter. The difference between the two is immaterial on the present question, which is one of jurisdiction only. Although, in the case of an inferior court over which this court exercises a power of revision and control even in matters directly within their cognizance, it will require to see the cause of committal in the warrant ; yet with regard to courts of so high a dignity as the Houses of Parliament, if an adjudi- cation be stated generally for a contempt, as contempts are clearly within their cognizance, a respectful and a reasonable intendment will be made, that the particular facts on which the committal in question has proceeded warranted it in point of jurisdiction ; for (that being assumed) the propriety of the adjudi- cation would, of course, not be inquired into. But in both cases the principle of the decision is that there has been an adjudica- tion by a court of competent jurisdiction. Thus in the former De Grey, C. J., says : ' When the House of Commons adjudge anything to be a contempt, or a breach of privilege, their adjudi- cation is a conviction, and their commitment in consequence is execution ; and no court can discharge or bail a person that is in execution by the judgment of any other court. The House of Commons, therefore, having an authority to commit, and that 312 Ex Parte Nugent. commitment being an execution, the question is, what can this court do? It can do nothing when a person is in execution by the judgment of a court of competent jurisdiction. In such case this court is not a court of appeal.' And in the latter, in which the main contest was on the generality of the order of the lords, Rainsford, C. J., says (1 Mod. 158): 'The commitment in this case is not for safe custody, but he is in execution on the judgment given by the lords for the contempt ; and therefore if he be bailed he will be delivered f***^ out of execution, because for a contempt in facie curice there is no other judgment or execution.' " The same principle will explain and justify the observations which have been made by different judges from time to time •vyith regard to supposed cases, even of direct adjudication; and if it should appear that the vice alleged against the proceeding is not of improper decision, or excess of punishment, but a total want of jurisdiction,^ in other words, where it is contended that either House has not acted in the exercise of a privilege but in the usurpation of a power, — it cannot be doubted that the same judges Avho were most cautious in refraining from interfering Avith privilege, properly so called, would have asserted the right of the court to restrain the undue exercise of power. The fact of adjudication then has no weight, because the court adjudging had no jurisdiction. Many such instances have been referred to in the argument. I pass over the luminous and, as I think, the still unanswered judgment of Lord Holt in Regina v. Petty, 2 Raym. Ld. 1012 (and the judgments, etc., cited p. 39), which is bottomed on this principle ; but I Avill cite by way of illustra- tion the dicta of Lord Kenyon and Lord EUenborough, whom I select not only for their pre-eminent individual authority, but also because I can cite from their judgments in cases in which they were, with a firm and favorable hand, upholding the just privileges of the commons. And it is satisfactory to see that the distinction was even then present to their minds. " Lord Kenyon, in Hex v. Wright, 8 Term Kep. 29C, after saying ' this is a proceeding of one branch of the legislature, and therefore we can inquire into it,' immediately qualifies the gen- eralty of that remark by adding : ' I do not say that cases may not be put in which we would inquire whether or not the House Ex Partk Nugent. 313; of Commons were justified in any particular measure; if, for instance, they ^''^^^ should send their sergeant-at-arms to arrest a counsel here who was arguing a case between two individualo, or to grant an injunction to sta,y proceedings here in a common action, undoubtedly wo should pay no attention to it.' In each case here supposed there would have been a direct adjudication upon the very matter, and m each there would have been a claim of privilege; but the facts Avould have raised the preliminary question, whether privilege or not. Into that inquiry Lord Kenyon would have felt himself bound to enter, and when he had satisfied himself that there was no such privilege, the fact of jiu-isdiction would have become, immaterial. " So in the most learned and able argument of Holroyd, in Burddt V. Abbot, 14 East, 128, when he had put a case of the speaker issuing his warrant, by the direction of the House, to put a man to death. Lord EUenborough interposed thus : ' The question i:i all cases would be whether the House of Com.-^ mons were a court of competent jurisdiction for the purpose of issuing a warrant to do the act. You are putting an extrava- gant case. It is not pretended that the exercise of a general jurisdiction is any part of their privileges. "Where that case occurs (which it never will), the question would be Avhether they had general jurisdiction to issue such an order; and no doubt the courts of justice would do their duty.' This case again supposes an adjudication ; but can language be more clear to show the undoubting opinion of that great judge that it would have been still open to this court to inquire into the jurisdiction of the House. And can any one seriously believe tliat the fact of a previous declaration by the House that they had such jurisdiction would have been considered by him as shutting up that inquiry. " Again the same principle relieves me from all difaculty as to cases where, at first sight, the question appears to arise directly, but where, still, the court of law would '***^ have to determine the case before it upon facts already directly adjudi- cated upon by the House. Such was the celebrated case of Burddt V. Abbot, 14 East, 1, in the decision of which I most heartily concur. There the action was trespqss quare dausum Sregit and assault and false imprisonment ; but the defense was 314 Ex Parte Nugent. a procedure iu executiou of a sentence of the House of Com- mons. If that sentence were pronounced by a competent court, it warranted all that was done. The only question that could be made upon any principle of law was the competency of the adjudicating court ; and the competency of the House to commit for a contempt being not seriously doubted, there was a direct adjudication, into the propriety of which this court would not inquire. It could not inquire into it without trying over again what has already been decided in the House; i. e., whether Sir Francis Burdett had been guilty of a contempt ; but this would have been contrary to the plainest principles of law." In the case of The Sheriff of Middlesex, 11 Ad. & E. 273; S. C. 39 C L. R. 80, a motion was made for a habeas corpus to the sergeant- at-arms of the House of Commons to bring up the bodies of "William Evans, Esq., and John "VYheeltou, Esq., with the day and cause of their being taken and detained, etc. The writ was issued, and the sergeant-at-arms returned that he took and still detains the said William Evans and John "Wheelton, by virtue of the following war- rant, under the hand of the speaker of the House of Com- mons. "Whereas, the House of Commons have this day resolved that William Evans, Esq., and John Wheelton, Esq., sheriff of Middlesex, having been guilty of a contempt and breach of the privileges of this House, be committed to the custody of the sergeani^at-arms attending this House. " These are therefore to require you to take into your f**"' cus- tody the bodies of the said William Evans and John Wheelton, and them safely keep during the pleasure of this House; for which this shall be your sufficient warrant. " Given under my hand the 21st day of January, 1840. " Charles Shaw Lefevee, Speaker. " To the sergeant-at-arms attending the House of Commons." The return being filed, the counsel for the prisoners contended that the return was bad on these grounds : — First. That there was in fact no legal cause for the commit- ment; that the court may inquire into this by the statute of 56 G. 3, ch. 100, which enacts " that where any person shall be confined or restrained of his or her liberty (othenvise than for Ex Parte Nugent. 315 some criminal or supposed criminal matter, and except persons imprisoned for debt or hj process in any civil suit), a judge shall, on proper complaint, award a habeas corpus; and that in all cases provided for bj the act, although the return to the habeas corpus be sufficient in law, it shall be lawful for the judge before whom it is returnable to examine into the truth of the facts therein set forth, by affidavit or by affirmation, etc., and to do therein as to justice shall appertain." And the counsel of the prisoners contended that " if the court may inquire into the truth of the facts, it is shown here on affi- davit that the sheriff is committed for having acted in the law- ful execution of process, and that the proceeding of the House of Commons is in opposition to the judgment delivered In Stock- dale V. Hansard, 9 Ad. & E. 1 ; S. C. 3(5 E. C. L. E. 13, which, until reversed on appeal. Is the law of the land." Secondly (in p. 84). The counsel of the prisoners contended that " the return is bad because It does not state the facts on which the contempt arises," and they said (p. 84) "there are only three precedents of parliamentary commitments ^^^^^ Avhich have been supported where no grounds were set forth. The first is in Streaier's Case, 5 How. St. Tr. 365, which from the absurdity of the reasons by which the commitment was upheld cannot be considered of any weight. The next occurs in the JEarl of Shaftesbury's Case, 4 How. St. Tr. 1260; S. C. 1 Mod. 144, which was decided in bad times, and is not a precedent by which any subsequent decision can be supported. The proceedings of the House of Lords against the earl were by the House itself declared unparliamentary, and ordered to be vacated in the journals that they might never be drawn Into precedent. (6 How. St. Tr. 1310.) The third instance, and the only one since the Revolution, was In Alexander Murray's Case, 1 Wils. 299. There, indeed, two of the judges, one of whom relied on the case of Lc/rd Shaftesbury, said that ' if the contempt had been speci- fied, this court could not judge of It'; but the third, Foster, J., appears to have relied upon the circumstance of the contempt being committed In the face of the House; and the particular point now in question does not seem to have been taken at the bar. In more modem cases the grounds from which the con- tempt was deduced have always been stated. It was so in Brass 316 Ex Parte Nugent. Crosby's Case, 2 Black. W. 754; S. C. 3 Wils. 188, though De Grey, C. J., said there, as appears from 3 Wils. 203, that a return stating the breach of privilege generally would be suffi- cient J but he seems to ground that opinion entirely on the Earl of ShaftesliMry's Case. In Bex v. Flower, 8 Term Eep. 314, the warrant was special ; so were those in 8ir Francis Burdens Case, 14 East, 1. Lord EUenborough there intimated that a commitment stated to be tor a contempt of either House gener- ally would be sufficient ; but the opinion is thrown out obiter, and he seems to consider Lord Shaftesbury's Case an authorf^ for such a form. In the case of Burddt v. Abbot, 5 Dow, 165, 199, in the House of Lords, Lord Eldon t^**^ put it to the judges ' whether, if the court of common pleas having adjudged an act to be a contempt of court had committed for the con- tempt under a warrant stating such adjudication generally, and the matter came before the King's Bench on return to a habeas corpus setting forth the warrant, that court would discharge because the particular facts and circumstances of the contempt were not set forth'; and the judges answered in the negative. But in the case supposed the common pleas would be a court of record acting according to the known course of the common law ; the House of Commons is not such a court, or so acting; and the common pleas in the case supposed would be punishing for a contempt of court. The House of Commons here professes only to commit for a contempt of the privileges of that House, without showing what are the privileges which are supposed to be infringed. If the House may declare its own privilege as the common-law courts declare that law, it should, at least, when it punishes for a breach of privilege, point out the privi- lege violated, so that the law on that subject may be known in future. In the judgment of Yaughan, C. J., in Bushell's Case, Vaughan, 135, 137, it is said that the writ of habeas corpus commands the day and the cause of the caption and detaining of the prisoner to be certified upon the return, which if not done the court cannot possibly judge whether the cause of the com- mitment and detainer be according to law or against it. There- fore the cause of the imprisonment ought, by the return, to appear as specifically and certainly to the judges of the return as it did to the court or person authorized to commit, else the Ex Parte Nugent. 317 return is insufficient. The House of Commons, then, like other jurisdictions that exercise the power of committing, may be required on habeas corpus to show the particular grounds. And were it otherwise the Houses of Parliament might, at any time, ^'***' punish offenses against the property, or servants of individual members, under the name of contempts, as was done formerly. That the court Mould not now suffer this practice to pass unquestioned, though the contempt might be alleged gen- erally on a return to a habeas corpus, appears from several pass- ages in the judgment of Lord Denman, C. J., in Stockdale v. Hansard, 9 Ad. & E. 116, 124, 147; 36 E. C. L. Eep. 31." No one Esppeared in support of the return. Lord Denman, C. J., said : " I think it necessary to declare that the judgment delivered by this court last Trinity Term in the case of Stockdale v. Hansard, 9 Ad. & E. 1 ; 36 E. C. L. Rep. 13, appears to me in all respects correct. The court decided there that there was no power in this country above bang questioned by law." And (in p. 87) he said: "The only question upon the present return is whether the commitment is sustained by a legal warrant." After stating and overruling some minor objections he says (in p. 87) : " The great objection remains behind, that the facts which constitute the alleged con- tempt are not shown by the warrant. It may be admitted that words containing this kind of statement have appeared in most of the former cases ; indeed, there are few in which they have not." In Brass Crosby's (2 Black. W. 754; S. C. 3 Wils. 188), Sir Francis Burddt's (14 East, 1), and Mr Hohhouse's (2 Chit. 207) cases, words were used showing the nature of the contempt. In the Earl of Sliaftesbury's Case, 6 How. St. Tr. 1269; S. C. 1 Mod. 144, the form was general ; and it was held unnecessary to set out the facts upon which the contempt arose. That case is open to observation upon other grounds, but I think it has not been questioned upon this. In Regina v. Paty, 2 Raym. Ld. 1105, three of the judges adopted the doctrine of that case to the extent of holding that the court could not inquire ti«4] jjj^.Q jjjg ground of the commitment, even when expressed in the warrant. Holt, C. J., differed from them on that point ; but he did not question that where the warrant omitted to state 318 Ex Paete Nugent. facts the cause could not be inquired into. In Murray's Case, 1 Wils. 299, which has been often referred to and recognized as an authority, the warrant was in a general form. There is, per- haps, no case in the books entitled to so great weight as Burdett V. Abbot, 14 East, 1, from the learning of the counsel who argued and the judges who decided it, the frequent discussions Avhich the subject underwent, and the diligent endeavors made to obtain the fullest information upon it. The judgment of Lord Ellenborough there, as it bears on the point now before us, is remarkable. He says : " If a commitment appeared to be for a contempt of the House of Commons generally, I would neither in the case of that court, or of any other of the Superior Courts, inquire further ; but if it did not profess to commit for contempt, but for some matter appearing upon the return which could by no reasonable intendment be considered as a contempt to the court committing, but a ground of commitment palpably and evidently arbitrary, unjust and contrary to every principle of positive law or natural justice, I say that in case of such a commitment (if it ever should occur, but which I cannot pos- sibly anticipate as ever likely to occur) we must look at and act upon it as justice may require, from whatever court it may pro- fess to have proceeded." Bayley, J., as well as Lord Ellen- borough, appears in that case to have been of opinion that if particular facts are stated in the warrant and do not bear out the commitment, the court should act upon the principle recog- nized by Lord Holt in Regina v. Pcd,y; but that if the warrant merely state a contempt in general terms, the court is bound by it. That rule was adopted by this court in Rex v. Sobhouse; and in the late case '^^^^ of Stockdcde v. Hansard, 9 Ad. &, E. 1 ; 36 E. C. L. Eep. 13, there was not one of us who did not express himself conformably to it. In the passages Avhich have been cited from my own judgment in that case as showing that if a person were committed for a contempt in trespassing upon a member's property, the court would notice the ground of com- mital, I always supposed that the insuificient ground should appear by the warrant. The Earl of Shaftesbury'' s case has been dwelt upon in the argument as governing the decisions of the courts on all subse- quent occasions ; but I think not correctly. There is sometliing Ex Parte Nugent. 319 in the nature of the Houses themselves which carries with it the authority that has been claimed; though in the discussion of such questions, the last important decision is always referred to. Instances have been pointed out in which the Crown has exerted its prerogative in a. manner now considered illegal, and the courts have acquiesced ; but the cases are not analogous. The Crown has no rights which it can exercise otherwise than by process of law and through amenable oificers ; but representative bodies must necessarily vindicate their authority by means of their own ; and those means lie in the process of committal for contempt. This applies not to the Houses of Parliament only, but as we observed in Burdett v. Abbot, 14 East, 138, to the courts of justice which, as well as the Houses, must be liable to continual obstruction and insult if they were not intrusted with such powers. It is unnecessary to discuss the question whether each House of Parliament be or be not a court; it is clear they cannot exercise their proper functions without the power of protecting themselves against interference. The test of the authority of the House of Commons in this respect, submitted by Lord Eldon to the judges in Burdett v. Abbot, 5 Dow, 199, was whether if the court of common pleas had adjudged an act to be a contempt of ^^^'^^ court, and committed for it, stating the adjudication generally, the court of King's Bench on a habeas corpus setting forth the warrant would discharge the prisoner because the facts and circumstances of the contempt were not stated. A negative answer being given, Lord Eldon, with the concurrence of Lord Erskine (who had before been adverse to the exercise of jurisdiction), and without a dissenting voice from the House, affirmed the judgment below. And we must presume that what any court, much more what either House of Parlia- ment, acting on great legal authority, takes upon it to pronounce a contempt, is so. It was urged that this not being a criminal matter the court was bound by the statute (56 G. 3, e, 100) to inquire into the case on affidavit. But I think the provision cited is not appli- cable. On the motion for a habeas cor})us there must be an affidavit from the party applying; but the return, if it discloses a sufficient answer, puts an end to the case ; and I think the pro- duction of a good warrant is a sufficient answer. Seeing that, 320 Ex Parte Nugent. we cannot go into the question of contempt on affidavit nor disr cuss the motives which may be alleged. In the present case I am obliged to say that I find no authority under wliich we are entitled to discharge these gentlemen from their imprisonment. Littledale, J., concurred and said : " If .the warrant returned be good on the face of it, we can inquire no further. The principal objection is that it does not sufficiently express the cause of commitment; and instances have been cited in which the nature of the contempt was specified. But the doctrine laid down in Burdelt v. Abbot, 14 East, 1; 5 Dow, 1G5, in this court and before the House of Lords, sufficiently authorizes the present form. If the warrant declares the grounds of adjudica- tion, this court in many cases will examine into their validity; but if it does not we cannot go into such an inquiry. Here we [la?] must suppose that the House adjudicated with sufficient reason, and they were the proper judges." Williams, J., said (in p. 90) : " It was a startling admission in the argument which has been addressed to us that for the last century and a half there have been precedents in favor of this commitment. Recognized precedents have the force of decisions by which courts and judges individually must hold themselves bound. I do not think this court can suffer any loss of author- ity by so acting in the present case; but whatever may be the consequences we must overlook it when there is an ascertained rule of law before us. If the return in a ease like this showed a frivolous cause of commitment, as for wearing a particular dress, I should agree in the opinion expressed by Lord Ellen- borough in Burdett v. Abbot, where he distinguishes between a commitment stating a contempt generally and one appearing by the return to be made on grounds palpably unjust and absurd. Then the only point in this case is whether there be on the war- rant an adjudication in form of commitment for contempt, which the court according to precedent is bound to recognize. The only real question is whether we can interfere, because the ground of commitment is not particularly stated. On this point it is sufficient to cite the judgment of De Grey, C. J., in Brass Orosby's Case, which is referred to with approbation by Lord Ellenborough in Bwrdett v. Abbot, 14 East, 1, 148." Coleridge, J. (in p. 91), says : " I come to my present conclu- Ex Paete Nugent. 321 sion with great regret when I consider the cireumstances, but with confidence to its justice. As to the former case of StocJc- dale V. Hansard, 9 Ad. & E. 1 ; 36 E. C. L. Rep. 13, so far as regards the general positions there laid down, I most entirely agree in them, and remain of the same opinion as when it was decided. I formed that opinion with great pains and labor, and a candid attention f**®^ to the arguments. The material ques- tions here are whether the return is not bad for not disclosing the particular grounds of the commitment, and whether it is open to an answer by aifidavit; or if it be so, whether there is any case made by the affidavits. Now, first, it is too late to contend that the generality- of statement in the warrant is any solid objection. It appears by precedents that the House of Commons have been long in the habit of shaping their warrants in that manner. Their right to adjudicate in this general form in cases of contempt is not founded on privilege, but rests upon the same grounds on which this court, or the court of common pleas, might commit for a contempt without stating a cause in the commitment. It is contended that affidavits may be received to explain the facts returned. But the return states simply an adjudication of contempt. There is nothing in the affidavits referred to which controverts the fact of such an adjudication ; and if the House had jurisdiction to make it, we can no more inquire by affidavit whether they came to a right conclusion in doing so, than we could in the case of a like adjudication by the court of common pleas. These gentlemen must therefore be remanded." These cases and authorities, we think, show conclusively that the Senate of the United States has power to punish for con- tempts of its authority in cases of which it has jurisdiction; that every court, including the Senate and House of Eepresentives, is the sole judge of its own contempts; and that in case of the commitment for contempt in such a case, no other court can have a right to inquire directly into the correctness or propriety of the commitment, or to discharge the prisoner on habeas cor- pus; and that the warrant of commitment need not set forth the particular facts which constitute the alleged contempt. tiaoj There were many cases cited in the argument to" show that when the question of privilege or contempt came incident- Bicnif. C. C 21. 322 Ex Paete Nugent. ally before the court, the court would and must decide it; but those cases have no bearing upon this, which is a ease of habeas corpus, where it is admitted on all hands that the question of contempt is brought directly before the court. But if upon this point it should be thought that the majority of the judges of this court have (as it is suggested) stated the principle too broadly in respect to the conclusive effect of a judgment of contempt, and if it should be deemed necessary that it should appear in the return of the habeas corpus that at the time of the supposed contempt the Senate were acting in a mat- ter of which they had jurisdiction, we all think it does suffi- ciently appear in the return that the Senate were, at that time, engaged in a matter within their jurisdiction; to wit, an inquiry whether any person, and who, had violated the rule of the Senate which requires that all treaties laid before them should be kept secret until the Senate should take off the injunction of secrecy. This appears by the interrogatories propounded to the witness (the prisoner) as stated in the return, and by the recital in part of the answers of the witness to a part of those interrogatories. But it has been contended, also, in argument that the power of the Senate to punish for contempts is confined to their authority over their own members. It is true that by the Constitution, art. 1, § 5, " each House may determine the rules of its proceeding, punish its members for disorderly behavior, and with the concurrence of two thirds expel a member." But it says nothing of contempts. These were left to the operation of the common-law principle, that every court has a right to protect itself from insult and con- tempt, without which right of self protection they could not discharge their '^**' high and important duties. It is not at all probable that the framers of the Constitution, by giving an express power to the Senate to punish its members for disorderly behavior, and even to expel a member, intended to deprive the Senate of that protection from insult which they knew very well belonged to and was enjoyed by both Houses of Parliament and the legislatures of the former colonies and now States of this Union. The provision of the Constitution may have been intended to remove a doubt whether a member of the Senate, Ex Parte Nugent. 323 appointed by and responsible to a State legislature, could be guilty of a contempt to a body of which he himself was a mem- ber ; or it may have been intended to apply only to such dis- orderly behi^vior as did not amount to a contempt of the House ; or to remove a doubt whether the Senate had power to expel a member. But whatever may have been the intention, we think the provision does not justify an inference that their power to punish for contempts can be executed only upon members of the Senate. On this point Mr. Justice Johnson, in delivering the opinion of the Supreme Court in the case of Anderson v. Dunn, 6 Wheat, said (in p. 225) : " It is certainly true that there is no power given by the Constitution to either House to punish for contempts, except when committed by their own members ; nor does the judicial or criminal power given to the United States in any part extend to the infliction of punishment for contempt of either House, or any one co-ordinate branch of the govern- ment. Shall we therefore decide that no such power exists? It is true that such a power, if it exists, must be derived by implication, and the genius and spirit of our institutions are hostile to the exercise of implied powers. Had the faculties of man been competent to the framing of a system of government which would have left nothing to implication, it cannot be doubted that the effort M'ould have been made ^^^^^ by the framers of the Constitution. But what is the fact? There is not in the whole of that admirable instrument a grant of powers which does not draw after it others not expressed, but vital to their exercise; not substantive and independent, but auxiliary and subordinate. The idea is Utopian that government can exist without leaving the exercise of discretion somewhere. Public security against the abuse of such discretion must rest on responsibility and stated appeals to public approbation." And again (in p. 226) he says: "But if there is one maxim which necessarily rides over all others in the practical applica- tion of government, it is that the public functionaries must be left at liberty to exercise the powers which the people have intrusted to them. The interests and dignity of those who created them require the exertion of the powers indispensable to the attainment of the ends of their creation ; nor is a casual con- 324 Ex Paete Nugent. flict with the rights of particular individuals any reason to be urged against the exercise of such powers. The unreasonable murmurs of individuals against the restraints of society have a direct tendency to produce that worst of all despotisms, which makes every individual the tyrant over his neighbor's rights. That the ' safety of the people is the supreme law ' not only com- ports with but is indispensable to the exercise of those powers in their public functionaries, without which that safety cannot be guarded. On this principle it is that courts of justice are universally acknowledged to be vested by their very creation with powers to impose silence, respect, and decorum in their presence, and submission to their lawful mandates, and as a corollary to this proposition to preserve themselves and their officers from the approach and insults of pollution. It is true that the courts of justice of the United States are vested by express statute provision with power to fine and imprison for contempts ; but it does not follow from, this circumstance that they could not have exercised that power without the aid of the statute, or not in cases, if such should occur, to which such statute provision may not extend ; on the contrary, it is a legist lative assertion of this right, as incidental to a grant of judicial power, and can only be considered either as an instance of abundant caution, or a legislative declaration that the power of punishing for contempt shall not extend beyond its i^***^ known and acknowledged limits of fine and imprisonment." Again the same judge (in p. 228) says the alternative of deny- ing this power "leads to the tota,l annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy may meditate against it. This result is fraught with too much absurdity not to bring into doubt the soundness of any argument from which it is derived. That a deliberative assembly, clothed with the majesty of the people and charged with a care of all that is dear to them, com- posed of the most distinguished citizens, selected and drawn together from every quarter of a great nation, whose delibera- tions are required by public opinion to be conducted under the eye of the public, and whose decisions must be clothed with all that sanctity which unlimited confidence in their wisdom and Ex Parte Nugent. 325 purity can inspire, that such an assembly should not possess the power to suppress rudeness or repel insult is a supposition too wild to be suggested." And again (at p. 232) : " But it is argued that the inference, if any, arising under the Constitution is against the exercise of the powers here asserted by the House of Representatives, that the express grant of power to punish their members respectively and to expel them by the application of a familiar maxim raises an implication against the power to punish any other than their own members. This argument proves too much ; for its direct application would lead to the annihilation of almost every power of Congress. To enforce its laws upon any subject without the sanction of punishment is obviously impossible. Yet there is an express grant of power to punish in one class of cases and one only, and all the punishing power exercised by Congress in any cases, except those which relate to piracy and offenses against the laws of nations, is derived from implication. Nor did the idea ever occur to any one that the express grant in one class of cases repelled the assumption of the punishing power in any other. " The truth is that the exercise of the powers given over their own members was of such a delicate nature that a .constitutional provision became necessary to assert or communicate t^**' it. Constituted as that body is of the delegates of confederated States, some such provision was necessary to guard against their mutual jealousy, since every proceeding against a representative would indirectly affect the honor or interests of the State which sent him. In reply to the suggestion that on this same foundation of necessity might be raised a superstructure of implied powers in the executive and every other department, and even minis- terial officer of the government, it would be sufficient to observe that neither analogy nor precedent would support the assertion of such a power in any other than a legislative or judicial body." It was also contended in argument that although the Senate might hold secret sessions, they could not in secret session pun- ish a man for a contempt. The court, however, cannot perceive any reason why the Senate should not have the same power of punishing contempts in secret as in open session. In the early 326 Ex Paete Nugent. years of this goverument the sessious of the Senate were always secret. The Constitution of the United States, art. 1, § 5, requires that " each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy." The journal cannot be kept secret unless the proceedings themselves be kept secret. Hence, each House has a right to hold secret sessions whenever in its judgment the proceedings shall require secrecy. The necessity of the power to hold secret sessions, especially of the Senate, is so obvious that no argument in its favor is required by the court. The Senate besides being a branch of the legislature is the executive council of the President, and stands in intimate com- munion with him in regard to all our foreign diplomatic rela- tions. Nothing, therefore, can be more proper than that all executive sessions of the Senate, and all confidential communica- tions relating to treaties, should be with closed doors and under the seal of secrecy. Hence, the standing rule of the Senate (No. 38) requires that all confidential communications made by the President of the United States to the Senate shall be, by the members thereof, kept secret ; and all treaties which may be laid before the Senate shall also be kept secret until the Senate shall, by their resolution, take off the injunction '-"^^^^ of secrecy. And by the standing rule of the Senate (No. 39) " all informa- tion or remarks touching or concerning the character and qualifi- cations of any person nominated by the President to office shall be kept secret." By the fortieth rule of the Senate, " when acting on confidential or executive business, the Senate shall be cleared of all persons except the secretary, the principal or executive clerk, the sergeant-at-arms and door-keeper, and the assistant door-keeper." By the forty-first rule of the Senate, " the legis- lative proceedings, the executive proceedings, and the confiden- tial legislative proceedings of" the Senate shall be kept in separate and distinct books." These rules were established under the power given to the Senate by the Constitution of the United States, art. 1, § 5, " to determine the rules of its proceedings," and are therefore until repealed as obligatory as if they had been inserted in the Con- GrOEHAM V. MiXTEE. 327 stitution itself J so that it is not only the privilege but the duty of the Senate to hold its executive sessions in secret. No odium therefore can attach to the Senate frOmthe circumstance that the judgment for contempt was pronounced in secret session upon a transaction which took place in secret session. It could not have been done otherwise. The offense must be punished in secret session, or go unpunished, leaving the Senate exposed to all sorts of insults in the discharge of their solemn constitutional duties. After an anxious and careful consideration of the whole case, the court is unanimously of opinion that the Senate of the United States has power, when acting in a case within its juris- diction, to punish all contempts of its authority; and that the prisoner having been committed by the Senate for such a con- tempt, and being still held and detained for that cause by their officer, this court has, upon the habeas corpus, no jurisdiction to inquire further into the cause of commitment, and must remand the prisoner. Prisoner remanded. CHESTER GORHAM v. WILLIAM MIXTER et al. [U. S. Ci/Euit Court, District of Massachusetts, 1848.— 1 Am. L. J. 539.] Intbisoement of Patent, What Constitute8. — A patent for a combination has not been infringed unless defendant has used, constructed, and operated it in substantially the same way as under the patent ; to change the form and obtain a new manner of operating, or to obtain a new and useful result, is subject to a patent. This was an action on the case for an alleged infringement of a patent for "an improvement in the machine for pressing palm-leaf hats." The defense set up was: First. That defendants had not infringed ; or, in other words, that the machine used by them was substantially different in its construction and mode of opera- tion from the machine described in plaintiff's specification of claim in his letters patent. Second. That plaintiff was not the original and first inventor of the machine patented; but that 328 GOEHAM V. MiXTEE. the same was known and used prior to his supposed invention thereof. [s*o] rpjjg plaintiff made application in the autumn of 1839, and obtained his letters in March, 1840. The history of the art of pressing in this commonwealth, so far as it is known to witnesses, was traced from 1830 to the trial. In 1830 the machine in general use had three blocks for the hat, with a lever and a flat to each, and the pressing of the rim, crown, and top of the hat was performed separately, at three successive operations on the respective blocks, by removing the hat from block to block. These blocks were attached to revolving shafts, which were moved by hand or other power, as circumstances dictated; and the levers to which the pressing flats were attached were arranged and the pressing done by hand. In 1832 the plaintiff made an attempt to improve upon the old machine. He constructed a machine in which hut one block was used, and made an angular flat to fit the side and top of the hat at the same time, thereby pressing the whole hat without removing it from the block. It did not appear in evidence, however, that by this arrangement the whole hat was pressed at one operation, without a change of flats. A similar machine to the last, though somewhat improved in its structure, was shown to have been put in operation in 1834 by one Brown, of Dana, Massachusetts, used for a time, and abandoned. Also, one Charles Rice, of Boston, testified for the defense that in 1835 he constructed a machine of the same general char- acter, using one lever and one flat; that in 1836 he added the second lever and flat, making the two answer the purpose of three flats ; and in 1838 he added the third lever and fourth flat. In this machine the block shaft was turned and the levers operated by hand, but the whole hat was pressed without changing flats. IS**] In ig37 the plaintiff invented and put in operation a machine with one block, three levers, and the same number of flats, by which the hat in all its parts was pressed by one operar tion. The shaft was moved by water-power, and the levers to GOEHAM V. MiXTEE. 329 which the flats were appended were fastened by a catch, so as to press uppn the hat while it revolved in connection with the shaft, thus dispensing with the power of the operator, and in a measure acting automatically. In the machine patented by the plaintiff four flats, two for the rim on opposite sides, one for the side of the crown, and one for the top are attached to a sliding frame, which by means of a lever is brought to and removed from the hat block at pleasure. The hat is placed on the block with a table for the rim on a vertical rotating shaft. After the hat is placed the sliding frame is brought forward by means of the lever, bringing all the flats to their relative and proper position over and against the hat. Then another lever is disengaged from a catch, which permits a weight to act upon a third lever, which in its turn acts upon the vertical shaft surmounted by the hat, and brings the hat in con- tact with the flats while the shaft revolves, and thus the press- ing is performed. Aft«r being thus put in motion no further attention from the operator is required until the hat is suffi- ciently pressed. One man can operate three or four machines at the same time, pressing from twelve to fifteen hundred hats per day, while on the old hand machine one man could ordinarily press but five hundred a day. . This machine, and what the plaintiff contended were modifi- cafions of it, came into general use soon after its construction, and superseded all that had gone before. The defendants claimed that the modification used by them was an original invention of one Paul Hildreth, formerly of Petersham, made subsequently to plaintiff's invention and patent. [S48J -jijjjg ^^g denied by the plaintiff, who insisted that it was taken from his machine, with alterations and modifications, for the purpose of evading the patent ; but under the ruling of the court it was immaterial as affecting plaintiff's right of recovery, whether an original invention or otherwise, being subsequent in point of time to plaintiff's invention and patent. The point most strenuously urged by the defendants was that their machine differed substantially from the one patented by plaintiff, and on this point, under the ruling of the court, the case turned. 330 GOKHAM V. MiXTEE. The question arose what plaintiff had claimed and patented, whether a machine as a machine, new in its structure as a whole, or merely a new combination of old parts; and if a combination merely, whether a combination effected by any mechanism, or a combination effected by the means, and operating in the particu- lar manner described in his specification of claim. If the latter, the question of priority of invention was disposed of, for it was not pretended that any prior machine contained the same com- bination, constructed and operating in the same way. But it was contended on the part of defendants that if this construction were given to the claim, they did not infringe, as some of the elements of combination in their machine were con- structed and operated substantially different from corresponding elements in plaintiff's. On the question of identity of machines, the plaintiff called as experts Thomas Blanchard and R. H. Eddy of Boston, and the defendants called C'harles M. Keller of New York City. Rufus Choate and H. E. Smith, for plaintiff. B. R. Curtis and Cyrus Oummings, for defendants. Speague, J., charged the jury that the plaintiff had claimed and patented a combination, constructed and operating as described in his specification, and to that he was limited; that to constitute an infringement, the defendants '**"^ must have used the same combination, constructed and operating substan- tially in the same way; that if they had used only two of the three elements of combination, it was not an infringement. Nor was it an infringement if any one or all their elements of combination were constructed and operated substantially different from plaintiff's. Yet a mere change in form or proportion, or a substitution of mechanical means or equivalents, in any one or all the elements, producing the same result, would not constitute a substantial difference within the meaning of the patent law. Nor would it be a defense, that they had added to the combination, or any element thereof, and made improvements, provided they used plaintiff's combination, constructed and operating substantially in the same way. LowRY V. Commercial & Farmers' Bank. 331 Such additions and improvements, though meritorious, gave them no right to appropriate what belonged to another without making compensation. It was for the jury to say, in view of the evidence, under the instructions of the court, and from an inspection of the models before them, whether the defendants' machine did in fact contain the combination claimed and patented by plaintiff, constructed and operating substantially in the same way. The jury returned a verdict for the plaintiff, and assessed damages at $1,110, $510 of which was for use of machines, and $600 for counsel fees. MAEIA LOWRY v. THE COMMERCIAL & FARMERS' BANK OF BALTIMORE et al. [U. S. Circuit Court, District of Maryland, 1848.— 3 Am. L. J. 111.] Bank Stock — Thanstek in Btieaoh of Tkust — Eights of Tbansfeeee in Good Faith. — A transferee of bank stock to whom a new certificate is issued, taking the same in good faith and without notice, is not affected in his title because Iiis assignor, in making the transfer, was guilty of a breach of trust. Bank — Liabilitt roii Fbacdclent Tbansfee op Stock by Executoe. — Where a bank, having notice that stock is held by a person as executor, permits him to transfer it in violation of his trust under the will, the bank will be liable for the stock to the person entitled under the will, it being bound to look to the executor's title before permitting such transfer. Present, Taney, C. J., and Heath, J. Taney, C. J., delivered the opinion of the court. Talbot Jones, of the city of Baltimore, died in the year 1834, having first duly made his last will and testament, and appointed his sons Samuel Jones and Andrew D. Jones his executors, to whom letters testamentary were granted in the same year. The testator died possessed of a large amount of property of different kinds, and owned at the time of his death two hundred and eighty-two shares of stock in the Commercial and Farmers' Bank of Baltimore, standing in his name on the books of the bank. The dividends upon this stock is the matter in dispute. The testator, by his last will, bequeathed in trust for the 332 LowEY V. Commercial & Farmers' Bank. complainant during her life, in the following words : " I order and direct that my executors hereinafter named, or the survivor or acting one of them, shall receive the dividends from time to time, declared and made payable on my stock in the Commercial and Farmers' Bank of Baltimore, in trust, that '*^*^ the said dividends shall be paid over or remitted by my executors, or the survivor or acting one of them, to my sister, Maria Lowry, now or lately of Dublin, in Ireland, during her natural life, and after her decease to her daughter, Mary Lowry, should she survive her mother, during the lifetime of the said Mary." And in the succeeding clause of the will this stock, together with other property, and also the general residue of his estate, is bequeathed to Samuel Jones and Andrew D. Jones, and the survivor of them, and the heirs, executors, and administrator of such survivor, in trust, for sundry persons named in the will, in certain proportions therein mentioned, "subject to the devise of the dividends (on this stock) to his sister and daughter, as aforesaid." In 1839, upon a bill filed in the chancery court of the State by some of the parties interested in the partition of the property bequeathed in the last-mentioned clause of the will, a decree was passed directing among other things that Samuel Jones and Andrew D. Jones should hold these two hundred and eighty-two shares of stock in trust, to pay the dividends to Maria Lowry during her life, and after her death to be divided as mentioned in the decree. Mary Lowry, the daughter, died before the decree was made. In this proceeding Maria Lowry, the complainant, was made a defendant, and the bill taken pro confesso agaiast her upon publication in the usual form. But process was never served upon her, nor did she appear or answer, nor had she any inter- est whatever in the suit. By the decree Wm. B. Norman, Josiah Jones, and Emily J. Albert are entitled to this stock upon the death of Mrs. Lowry; and on that account, it has been supposed to be advisable to make them parties in the case before the court. After the death of Talbot Jones, Samuel Jones carried on business oh his individual account, in the name of Talbot Jones & Co. ; and the transactions in the name of Talbot Jones & Co., LowRY V. Commercial, & Faemers' Bank. 333 mentioned in these proceedings, are the transactions of Samuel Jones on his own individual account. The stock in question continued to stand on the books of the Commercial and Farmers' Bank, in the name of Talbot Jones, until May 4, 1842, when it was transferred to the Merchants' Bank by Samuel Jones, the other executor not joining in the transfer. This transfer, it appears, was made as security for a loan obtained by Samuel Jones from the Merchants' Bank on his own private account, under his mercantile style and name of Talbot Jones & Co. ; and the money being afterwards paid, the stock was transferred by him to the bank, under the same name and style, on the 17th of June in the same year, and on the 20th of the same month transferred by him as Talbot f***' Jones & Co., to himself and Andrew D. Jones, as executors of Talbot Jones. On the 20th of August following, Samuel Jones, signing his name as acting executor, again transferred this stock to the Merchants' Bank, which continued to hold it as a pledge for sundry loans of money made from time to time to Talbot Jones & Co., until the 11th of December, 1846, when it was trans- ferred to a broker, and sold to pay a note which fell due on the 4th of that month, and had been protested for non-payment. Talbot Jones & Co., that is to say Samuel Jones, stopped pay- ment in September, 1846, and in January, 1847, petitioned for the benefit of the insolvent laws of this State. It is admitted on all hands that he is utterly insolvent and unable to pay any part of the dividends due to the complainant. After the last transfer to the Merchants' Bank the dividends were either paid to its orders in favor of Talbot Jones & Co., or were drawn by the bank and paid over to him, with the exception of the last dividend, which fell due before the stock was sold. This is yet in the hands of the bank, except the sum of $39.48, which has been paid out of it for taxes on the stock. Notwithstanding the transfer of the stock in 1842, the amount of the dividends were regularly paid over to the complainant by the executors until November, 1845; but the dividend declared at that time has not been paid to her, nor any of those subse- quently declared. She had no notice of the transfer of this stock until October, 1846, after the last of the loans above men- tioned had been made by the Merchants' Bank. And on the 334 LowKY V. Commercial & Farmers' Bank. 8d of December following (the day before the note became due), she gave the bank notice of her claim. When the stock was first transferred by Samuel Jones to the Merchants' Bank, a certificate was issued by the Commercial and Farmers' Bank in the following words : — "No. 707. Commercial and Farmers' Bank OF Baltimore, May 4, 1848. " This is to certify that the Merchants' Bank of Baltimore is entitled to two hundred and ninety-two shares in the capital stock of the Commercial and Farmers' Bank of Baltimore, on each of which thirty dollars have been paid, but which have since been reduced by Act of Assembly to twenty dollars a share; transferable at the said bank only personally or by attorney. " 292 shares. Trueman Cross, Cashier." This certificate was delivered by Samuel Jones to the Mer- chants' Bank when he obtained the first loan, and was re-deliv- ered to him when the money was paid and the stock transferred to Talbot Jones & Co. A similar certificate was again issued by the Commercial and Farmers' Bank when the second transfer was made to the Merchants' Bank, and was retained by it until the stock was transferred to the broker to be sold, as herein- before mentioned. This is a summary statement of the facts, so far as they are [114] jjjaterial to the decision of the case. It is very clear that the money due to the complainant has been grossly misapplied, and the, question is whether she is entitled to relief against the banks or either of them. Samuel Jones is undoubtedly liable; but as he is admitted to be insolvent, she can obtain no redress from him. As concerns the Merchants' Bank, we see no ground upon which it can be held liable beyond the amount of dividends remaining in its hands. It does not appear that the bank, when it accepted the pledge of this stock, or when it made its loans, had any reason to suppose that the stock had ever been held by Talbot Jones, or that it was transferred to the bank by Samuel Jones as one of his executors. In order to obtain the loan upon the pledge of this stock, Samuel Jones did nothing more than produce the certificate of the Commercial and Farmers' Bank showing that two hundred and eighty-two shares of stock had LowEY V. Commercial & Farmers' Bank. 335 been transferred to the Merchants' Bank. But the certificate did not show by whom it had been transferred, nor to whom it had previously belonged ; and according to the usual course of business, the presumption was that it belonged to Samuel Jones himself. The Merchants' Bank appears to have acted under that impression, for when the first loan was j)aid and the lien of the bank thereby released, it transferred the stock to him indi- vidually, by the name of Talbot Jones & Co., and not to the executors of Talbot Jones. It is very true that the instrument of transfer upon the books of the Commercial and Farmers' Bank showed it to have been made by Samuel Jones in his character of executor; and in general a party must be presumed to have notice of everything that appears upon the face of the instrument under which he claims title ; but a transfer of stock cannot in this respect be likened to an ordinary conveyance of real or personal property. The instrument transferring the title 'Is not delivered to the party. The law requires it to be written on the books of the bank in which the stock is held. The party to whom it is transferred rarely, if ever, sees the entry, and relies altogether upon the certificate of the proper officer of the bank stating that he is entitled to so many shares ; that is to say, that so many shares have been transferred to him by one who had a lawful right to make the transfer. The case of Davis v. The Bank of England, is a strong one on this head. The three per cent con- solidated annuities, created by the English government, were made payable at the Bank of England, and transferable at the bank in the manner pointed out by law. A large amount of these annuities which belonged to the plaintiff in that case, and stood in his name, were transferred under a forged power of attorney. The property did not pass by this transfer, yet the court held that subsequent bona fide purchasers f^'^*^ from the fraudulent transferee, whose name had been registered in the books of the bank as the owner, were entitled to recover from the bank the amount of dividends falling due on these annuities, although the bank was also liable to the true owner of the stock whose name had been forged. In the case now before the court, the executor had a legal capacity to make the transfer, and the legal title to the stock 336 LowRY V. Commercial & Farmers' Bank. passed to the Merchants' Bank; and as it paid a valuable con- sideration, and had no notice, actual or constructive, of any violation of trust upon which the transfer could be impeached in equity, it had a right to sell the stock for the payment of the note for which it was pledged, and to make to the purchasers a valid title. A different rule would render the right of every purchaser of stock in a bank insecure or liable to doubt, and greatly impair its value, and would, moreover, seriously disturb the usages of trade and the established order of business in relation to this subject in a manner highly injurious to the community; for purchasers always rely on the certificate of the bank in which it is held as conclusive evidence of the ownership. Most com- monly the purchase is made through a broker, and the buyer does not know who is the seller or who makes the transfer. The certificate of the bank tells him that he is entitled to so many shares, and he pays his money upon receiving the certificate without further inquiry. It would be unjust and inequitable to charge the stock in his hands with any equitable encumbrance or trust, however created, which was not known to him at the time he paid his money. As respects the Commercial and Farmers' Bank, the claim of the complainant rests upon different grounds-. By the charter of the bank (like, that of every other bank incorporated by a law of this State), the stock is transferable at the bank only, and according to such rules as shall be established by the president and directors. It cannot therefore be trans- ferred without the supervision of the officer designated for that purpose by the bank. The corporation is thus- made the cus- todian of the shares of stock, and clothed with power to estab- lish rules sufficient to protect the rights of every one interested from unauthorized transfers. It is a trust placed in the hands of the corporation for the protection of individual interests,' and like every other trustee, it is bound to execute the trust with proper diligence and care, and is responsible for any injury sus- tained by its negligence or misconduct. Upon this principle the bank was held liable for an improper transfer of its' stock in the case of the Farmer^ and Mechanio^ Bank and Others v. Way- man and StookeU, decided in the court of appeals of this State LovvEY V. Commercial & Faemers' Bank. 337 at the December term, 1847, and the t*^"^ case of Davis v. The Bank of England, hereinbefore referred to, where government stocks were made transferable on the books of the bank, was decided upon the same ground ; and as the corporation appoint the officers before whom the transfers must be made, it is respon- sible for their acts, and must answer for their negligence or defaults whenever the rights of a third person are concerned. (^Hodges v. The Planters' Bank of King George's County, 7 Gill & J. 306, 310.) Undoubtedly the mere act of permitting the stock to be transferred by one of the executors furnishes no ground for complaint against the bank, although it turns out that this exec- utor was by the act of transfer converting the property to his own use ; for an executor may sell or raise money on the prop- erty of the deceased in the regular execution of his duty, and the party dealing with him is not bound to inquire into his object nor liable for his misapplication of the money. Such is the doctrine in the English courts, and would seem to have been the law of this State previous to the Act of Assembly of Decemoer session, 1843, ch. 304, and the transaction now before us took place before that act went into operation. But it is equally clear that if a party dealing with an executor has at the time reasonable ground for believing that he intended to misapply the money, or is in the very transaction applying it to his own pri- vate use, the party so dealing is responsible to the persons injured. The cases upon this subject are numerous, and it would be tedious to refer to them particularly. They are, for the most part, collected and commented on in the case of McLeod V. Brummond, 17 Ves. 152, and of Field v. Sohieffelin, 7 Johns. Ch. 150. It is very true that in the case before us the pledge of stock was not made to the Commercial and Farmers' Bank, nor did it loan the money to the executor; but a party is not made liable because he pays or advances money for property of the deceased, but because by doing so, when he has a reasonable ground for believing that the executor means to misapply it, he knowingly assists him in committing a breach of his trust. In this case the rights of the stockholders and of persons interested in its stock were placed by law under the guardianship and protection Beun. 0. c— aa. 838 LowEY V. CoMMBECiAL, & Faemees' Bank. of the bank, so far as concerned the transfers on their books. The stock could not be transferred, could not become the legal property of another person without the permission of the proper officers of the corporation (see Union Bank v. Laird, 2 Wheat. 393) ; and if these officers, at the time of the transfer, had reason to believe that the executor, by the act of transfer, was convert- ing this stock to his own use in violation of his duty, then the bank, by permitting the transfer, knowingly enabled the ex- ecutor to commit a breach of his '**'^ trust, and upon principles of justice and equity, is as fully liable as if it had shared in the profits of the transaction. The object of the executor could not have been accomplished without the co-operation of the bank in permitting the transfer to be made on its books. The question then is, had the bank at the time of the transfer aetual or constructive notice that the executor was abusing his trust, and applying this stock to his own use. The bank by its answer denies that it knew anything of the contents of Talbot Jones' will, or of the bequest to the complain- ant, and there is no proof of actual notice. But it did know that this stock was the property of Talbot Jones at the time of his death, for it so stood upon its own books, and as the transfer was made by Samuel Jones as his executor, the bank must of course have known that Talbot Jones left a will, and although it may not have had actual notice of the contents of the will, yet as it was dealing with an executor in his character as such, the law' implies notice. This is the doctrine in the English courts of chancery. (4 Madd. 190.) And the rule appears to stand upon still firmer ground in this State. For here it is settled that every person has constructive notice of a deed, for real or personal property, where it is duly registered according to law. In England the weight of authority is perhaps to the contrary; now, in Maryland, every will of real or personal property is required to be recorded; and if third persons are bound at their peril to take notice of a registered deed when there is nothing to lead them to inquiry, the obligation must be still stronger upon one who is dealing with an executor concerning the assets of the deceased. For his character of executor, of itself, gives actual notice that there is a will open to inspection upon the public records. LowRY V. CoiiMERCiAi^ & Faemees' Bank. 339 The bank, therefore, was bound to take notice of the will when this transfer was proposed to be made by one of the exec- utors. It was negligence in the bank not to examine it ; and if it was ignorant of its contents, and of the specific bequest of this stock, it was its own fault. It must be dealt with as if it had possessed actual knowledge that the stock in question was specifically bequeathed by the testator, and was not by the will to be transferred, or in any manner disposed of by the executors during the lifetime of the complainant ; and that it was the duty of the bank during that time to pay the dividends to them in trust for the complainant; undoubtedly this stock, although thus specifically bequeathed, was yet liable to be sold, if neces- sary, for the payment of the debts of the testator. And if the bank did not know, or had no reasonable ground for supposing that the executor was misapplying the assets, it would not be responsible, notwithstanding its implied knowledge of the will. [118] jgj,^. ^i^en the second transfer (under which the stock was finally sold), was made to the Merchants' Bank, the circum- stances then within the knowledge of the Commercial and Farmers' Bank, were abundantly sufficient to satisfy any rea- sonable mind that Samuel Jones was using this stock for his private purposes. For this transfer took place on the 20th of August, 1842. The bank at that time knew that Talbot Jones had been dead eight years, that he died rich, and that the time had long before elapsed within which the law of Maryland requires an estate to be settled up by an executor or adminis- trator. It appeared by their own transfer books that on the 4th of May preceding, the same stock had been transferred by Samuel Jones to the same bank, the other executor, although he resided in town, not being a party to the transfer; that on the 17th of June, in the same year, it was transferred by the Mer- chants' Bank to Samuel Jones in his individual right, under the name of Talbot Jones & Co., and by him restored to the estate of the testator a few days afterwards, by a transfer to himself and the other executor. And when, after these transactions, all appearing on the books of the bank, he came again without his co-executor, to transfer it a second time to the Merchants' Bank, could the officers of the Commercial and Farmers' Bank doubt the purposes for which the second transfer was made? Familiar 340 LowEY V. Commercial & Faemees' Bank. as they must have been with the usual course of business in banks, and the usage of loaning money upon hypothecation of stock, could they have failed to see that Samuel Jones was mis- applying the assets of the testator, and pledging this stock for his own individual benefit? Indeed the bank, in its answer, does not deny it, but on the contrary, impliedly admits it. For the answer states that if the president had known that the trans- fer was about to be made by Samuel Jones, he -^pould have pre- vented it. Now the bank is equally chargeable for the neglect or omission of duty by the officer to whom it had committed the superintendence of the transfers of stock, as it is for the neglect or omissions of its president; and such officer is also equally chargeable with implied notice of the will of Talbot Jones, and equally bound to refuse the transfer when he saw that Samuel Jones was using this stock in violation of his trust as executor. And if the circumstances above mentioned were not sufficient to satisfy the bank officer beyond all reasonable doubt, that he was so using them, yet they were certainly sufficient to create strong presumptions against him, and to make it the duty of the officer to inquire before he allowed the transfer to be made; and if he neglected to make the inquiry when the fact could have been so easily ascertained, and either from negligence or design, without inquiry, enabled the executor to convert the stock to his own use, the bank is responsible for this negligence. [iio] There is another circumstance, also, which ought of itself to have created strong doubts in the mind of the transfer officer of the bank. By the Act of Assembly of Maryland of 1798, c. 101, sub. c. 8, § 3, it is in the power of the executor to procure an order of sale from the orphans' court, whenever a sale shall be necessary. It is true that in the case of Allmder V. Riston, 2 Gill & J. 86, the opinion of the court would seem to have been that, notwithstanding the act of Assembly, an as- signment by an executor for his own debt Avould be valid against the creditors of the estate unless there was collusion with the executor. But the case was not decided on that point ; nor does the opinion of the court apply to an assignment of property specifically bequeathed ; nor was that point in the case, or raised in the argument. But, however that question shall be ulti- mately decided, it may, we think, be safely asserted that in LOWKY V. COMMERCIAI. & FaEMERS' BaNK. 341 practice, under this law, there has been no instance in Maryland since its passage in which an executor, acting fairly and bona fide, has undertaken to sell or pledge personal property specific- ally bequeathed without a previous order from the orphans' court. And the proposition of Samuel Jones, one of the two executors (the other not uniting in the transfer), to transfer this stock, so long after the death of a wealthy testator, without first obtaining an order from the court to justify him, must have satisfied any man of common experience in business that he was grossly abusing his trust. In South Carolina, under a law very similar in its provisions, it has been decided that the sale of such property by an executor is void, unless made by the authority of the court. (4 Dess. 522.) And we think there are strong reasons to support that decision. The cases referred to in relation to transfers of government stocks by the Bank of England do not apply to this case. They are collected in 1 Danl. Ch. Practice, 202, margin ; and they all turn upon the meaning and policy of the acts of Parliament, by which the management of the public stocks and annuities were given to the Bank of England. It is with reference to the duties imposed by these acts of Parliament that the court say that the Bank of England is not bound to take notice of a trust affecting public stock standing on its books, and must look only to the legal estate. But this opinion cannot influence the de- cision of this case, because the privileges and obligations of the bank must be determined by its own charter, differing widely in its terms and its object from the English acts of Parliament. Certainly none of the English cases convey the idea that, upon general principles of law, a bank is not bound to notice a trust of its own stock, and must look only to the legal estate. For a bank or any other corporation is bound by the same obligations, moral and legal (wliere '*®"^ the rights of third parties are con- cerned), that apply to the case of an individual, unless it is explicitly exempted by law. And if an individual who confed- erates with an executor, and assists him in defrauding his cestui que trust, is liable to the party injured, there can be no reason why a bank which knowingly enables an executor to convert the property of the cestui que tnist to his own private use should not be equally responsible. And the difficulties to which the Bank 342 LowEY V. Commercial & Farmers' Bank. of England would be subjected, if bound to take notice of trusts in the government stocks, and which are strongly stated by the chancellor, in the case of Hartiga v. Tlie Bank of England, 3 Ves. 58, are altogether inapplicable here. For, putting aside the immense difference in amount and character between the government stock of England and the stock of this bank, a chancery suit can never be necessary in this State for the pro- tection of the bank, when stock bequeathed in trust is required to be sold for the payment of debts ; because, under the Act of 1798, an order for the sale by the orphans' court, which could at any time be obtained in a summary way, without delay and without expense, would protect the bank from all responsibility, and occasion no delay or embarassment in the payment of debts and settlement of the estate. The case, then, is this : The will of the testator in effect di- rected that this stock should not be sold or transferred during the lifetime of the complainant; and the dividends during that time should be received by his executors and paid over to the complainant. One of these executors proposes to transfer this stock in order to raise money on it for his private purposes; and the officers of the bank, knowing the purpose for which it was transferred, or with circumstances before them sufficient to create a strong presumption that such was the intention of the executor, and therefore sufficient to put them on inquiry, permit the transfer, and certify that the transferee is entitled to the stock. Relying on this certificate, the Merchants' Bank was induced to loan its money upon it ; and having no knowledge that it ever belonged to Talbot Jones, or had been transferred by his executor, the stock cannot be followed in its hands, or the hands of those to whom it afterwards sold it, and charged with the trust created by the will. The executor is insolvent, and there is, therefore, no effectual remedy against him. Ought the loss to be borne by the complainant, who has committed no fault, and been guilty of no negligence, or by the Commercial and Farmers' Bank? The established principles of equity seem to require that the loss should be borne by the party by whose . negligence or misconduct it was occasioned. The bank not only enabled the executor to perpetrate the wrong by permitting the transfer, but co-operated in it by certifying that f*"*^ the title LowEY V. CoMMEECiAL & Farmees' Bank. 343 of the transferee was good. Justice, therefore, requires that it should bear the loss. The only remaining question is the nature of the relief to be administered by the court. In order to do substantial justice it is evident that the decree must be directly against the bank, as Samuel Jones is admitted to be utterly insolvent. The complainant's claim is for dividends only. She has no property in the stock which belongs to the defendants, William B. Norman, Josiah Jones, and Emily J. Alberts, in certain pro- portions, who will be entitled to the dividends after the death of the complainant. Yet if there were no difficulty on the score of jurisdiction, the court would, according to the practice of the courts of chancery, proceed to dispose of the whole matter in dispute, and decree as to the stock, and the balance in hand in the Merchants' Bank, as well as the dividends. But the jurisdiction of this court is founded upon the fact that the com- plainant is an alien. It has no jurisdiction in the controversies between the defendants, as they all reside in Maryland. Undoubtedly if the case of the complainant could not be dis- posed of and relief administered to her without deciding upon the rights of all the parties before the court, we should neces- sarily dispose of the whole matter, and decree as to the stock as well as the dividends. But the rights of the complainant may be adjusted without interfering with the right of the claimants of the stock, or with the balance arising from its sale, which yet remains in the hands of the Merchants' Bank ; for it is imma- terial to the complainant whether the stock is replaced or not. All that she has a right to demand is that the amount of divi- dends on two hundred and eighty-two shares of stock, which she has lost by the negligence or misconduct of the officers of the bank, shall be paid to her as if the stock had never been trans- ferred. The jurisdiction, therefore, to decree in the controversy, as to the stock, cannot we think be maintained. "We have said nothing of the decree of the chancery court of Maryland which has been filed in the case. Neither of the banks were parties to the proceedings in that case ; nor do they appear to have had notice of it; neither was the complainant a necessary party. She had no interest in the property to be divided ; and it was not proposed to change or modify in any 344 LOWRY V. COMMEHCIAL & FaEMEES' BaNK. respect the trust in her favor, and the decree passed by the court leaves her interests precisely where they stood before. In regard to the stock itself, the decree for partition has in a material respect changed the character of the trust; for the two executors, instead of holding it in undivided portions for the cestui que trusts, named in the will, hold under the decree as trustees for those to whom it has been specially assigned in fissa] severalty. And it may be doubted whether this circum- stance does not form an additional objection to the jurisdiction of this court in regard to the stock; and whether Samuel Jones and Andrew D. Jones ought not to be considered as trustees appointed in that respect by the court of chancery to hold this stock in trust for the cestui qwe trust named in the decree, and therefore responsible for their conduct to that court rather than to a court of the United States. It is, however, not necessary to examine this question, because it does not affect the dividends bequeathed to the complainant, and certainly can form no objection to the jurisdiction in her case. It appears from the evidence that the stock sold for more than enough to pay the note for which it was hypothecated; and that besides the surplus arising from this sale, one of the semi-annual dividends upon these two hundred and eighty-two shares remains in the hands of the Merchants' Bank, deducting therefrom the amount paid by the bank for taxes on this stock. The amount of the dividend remaining in the hands of the Merchants' Bank, subject to the deduction aforesaid, belongs in equity to the complainant, and for that amount she is entitled to a decree against the Merchants' Bank. For the residue of the dividends due to her and remaining unpaid, the Commercial and Farmers' Bank must answer. The case must be referred to a master to state an account according to this opinion preparatory to a final decree. Smith v. Claek. 345 F. O. J. SMITH ET AL. V. J. W. CLARK et ai.. [U. S. Circuit Court, District of MassaohuBetts, 1850. —3 Am. L. J. 156.] Patents — iNFSiNaEMENT of, What CoKsrmrrEs. — Where parts of a patented article have been in general use prior to the patent, such parts may be used in another invention, and such use will not be an infringement on the patent of the first article. B. R. Curtis and F. 0. J. Smith, for the plaintiffs. C. L. Woodbury, Geo. Gifford of New York, and R. Choate, Usq., for the defendants. WooDBXJEY, J., delivered the opinion. His honor proceeded first to construe the patent of Mr. Morse, which he did in a man- ner to sustain its validity, viz. : that the claim of the principle, or the use of the motive power of electro-magnetism, must -be understood as being in combination with the machinery by him invented. To give it a broader signification, his honor said would be to make void the patent of Mr. Morse. Having determined the construction of the patent his honor proceeded to consider and comment on the evidence contamed in the record, and after briefly considering the numerous European telegraphs, electric and galvanic, which were invented during the last cen- tury and the present one (including Scemering's, Ronald's, Schilling's, and one at Madrid and others), his honor proceeded to comment on the attempt of Coxe, in America, and after on the electric recording telegraph invented by a son of Massachu- setts, at Long Island in 1828, Mr. Harrison Gray Dyar, which he characterized as of remarkable ingenuity, as in the application of the idea of time in regulating the space so as to compose an alphabet, and the first American who had succeeded in this pur- pose of recording, although the system he used differed some from both House and Morse. The experiments of Prof. Henry, at Albany, also anterior to Morse's attempt, in which he en- dowed the electro-magnet with power equal to raising the weight of a ton, and obviated the great difficulties which had lain in the way of using electro-magnetism. These all preceded the passage on board the ship Sulky, in 1832, when Mr. Morse and Dr. Jackson conversed on the subject, and when Mr. Morse commenced his labors. After following down the various in- 346 Smith v. Clark. ventions and labors of Sternheil, Gauss, Alexander, Weber, Cook, and Wheatetone, on the telegraph, to the date of Morse's application for a patent, in 1837, his honor remarked that something was wanted in all these to produce a result perfect for practical use; that among the sixty competitors who had labored for this end, Morse appeared to have got the most prac- tical and perfect machine. The combination of the pen point and the machinery to move paper, with the telegraph, his honor thought to be that desideratum and the essential point in Morse's invention. His honor said that Mr. Morse and his assignees would be protected in the method of telegraphing claimed by Mr. Morse. The pen, a most happy thought; the rollers and paper, a most important thought; and the stenographic alphabet, the crowning thought; and any infringement on the things described, etc., would be punished. While Morse is thus secured, the same latitude is left open for his successors to invent as was accorded to Mr. Morse in improving on his many predecessors. li-Sf] Now, has this patent been violated by the defendants? The defendants insist they have used nothing which was not open and public before the date of Morse's invention. While shielding the public in this right, we must not allow any one to use the invention of Morse without his assent. House's machine appears much unlike Morse's, and in its work differs in using two new powers. While Morse's is simple, that of House's is so complicated as to require days of attention by mechanics to understand. While Morse's is speedy. House's gives lightning to Roman letters; his speed of breaking and closing is much greater than Morse's, and without this greater speed he could not accomplish his object. This is not the same system as Morse's, and is much more than that of Alexander. Morse's machine traces the signs intended ; the type or the lever at one end do so, and the pen at the other also. House's machine does not do this. It acts at both ends by signals, and traces nothing. This new power of axial magnetism, the inven- tion of which is claimed by Mr. House, aids in transferring this so as to have it printed, and the U magnet of Mr. Morse would be utterly inefficient for this purpose. House's is a signal and printing telegraph, and Morse's is a writing telegraph. Smith v. Clark. 347 The electro-magnetism between the two points had been used long before Mr. Morse, and is, therefore, no infringement of his invention. House produces in his machine new results, and cannot be considered as an equivalent for Morse's, as he uses neither the pen, the lever, nor the stenographic alphabet to translate the signs, as appears from the testimony of Prof. Henry, Dr. Jackson, Prof. Hare, Col. Borden, Hibbard, Channing, etc. His honor then commented on the originality and novelty in House's machine of the axial magnetism and the use of the air tubes and condensors, and expressed himself astounded, in exam- ining this case, to find that so much which he had supposed to have been near an original in telegraphing, was not of late origin nor derived from Mr. Morse's, as electro-magnetism, wires, etc., but that the invention of Mr. Morse lay in a different place from what he had formerly supposed. Morse's leading novelties, his honor thought, were: 1. The local circuits. 2. Writing at a distance by electro-magnetism. 3. The stenographic alphabet. Neither the electro-magnetism, nor the Roman letters, nor the printing apparatus were invented by Morse. The local circuits and the stenographic alphabet were not used by House, nor the writing, etc. The opinion of the experts who testified in the case as to the principles of the two machines, stood thus : Mr. Morse, who was not regularly educated to mechanics, and whose profession was that of a portrait painter, and beside him Mr. '****' Foss, his assistant, who until a few days past had been employed only as a grocer and baker alone regarded this as an infringement. On the other hand, a numerous body of experts in mechanics, some twelve or fourteen, embracing some of the most talented men in the country in their profession, unite in opinion that this machine of House's is no infringement. Some of these gentle- men say the two machines are as unlike as a goose quill and a printing press. His honor said he thought the difference of Mr. Morse and Foss from the rest of the experts arose from their attaching a wrong meaning to the word "principle," as used in the patent law, and that, setting aside the battery and wires, etc., which were public long before Morse began to invent, there could be 348 Bascom v. Lane. no question of infringement. The public had the same right to make and re-employ the old modes, the same privilege to make improvements as Morse had in 1832. His honor said, on con- sidering the whole, I do not think the plaintiff entitled t« an injunction. His honor expressed his sense of the weight due to the decision of Judge Monroe of Kentucky, against O'Eeilly, but thought it did not apply in this cause, and said that his examination of the evidence in this cause had impelled him to take the views of the subject he had stated, and which, if wrong, he felt gratified it was in the power of another and higher tribunal to reverse. BASCOM ET AL. V. LANE et al. [U. S. Circuit Court, District of New York, 1851 i Am. L. J. 193.] Chdkoh — Division of — Distbibution of Common 1'kopeett. — A ohurcli confer- ence may consent to the division of the church into two bodies, and such separation being in pursuance of proper authority will carry with it a division of the common property. Commissioners appointed by one of the divisions have power to file a bill against the trustees of the common property for a division of the same. Hon. Reoerdy Johrison, of Baltimore, Mr. Daniel Lord, of New York, and Mr. Johnson, Jr., of Baltimore, for complainants. Hon. Rufus Choate, of Boston, Messrs. George Wood and E. L. Fancher, of New York, for respondents. In this case, the argument of which occupied from the 9th to the 21st of May last, the opinion of the court was delivered by Nelson, J. The complainants state in their bill, that before and on the 8th day of June, 1844, there existed in the United States of America a voluntary association, known as the Methodist Epis- copal Church, not incorporated, but composed of seven bishops, four thousand eight hundred and twenty-eight preachers belong- ing to the traveling connection ; and, in bishops, ministers, and membership, about one million one hundred and nine thousand nine hundred and sixty, then being in the United States and territories thereof, united and holden together in one organized Bascom v. Lane. 349 body, by certain doctrines of faith and morals, and by certain rules of government and discipline. That the general govern- ment of this church was vested in one body, called the general conference, and in certain subordinate bodies called annual con- ferences, and in bishops, traveling ministers, and preachers ; and that the constitution, organization, form of government, and rules of discipline, as well as the articles of religion and doctrines of the church, were of general notoriety ; '■'"*^ but, for the more particular information of the court, reference is made to a printed volume, entitled " The Doctrines and Discipline of the Methodist Episcopal Church " ; and the complainants allege that differences and disagreements have sprung up between what was called the northern and southern members, in respect to the administration of the church government, concerning the ownership of slaves by the ministry of the church, of such a character, and attended with such consequences, as threatened fearfully to impair the useful- ness of the church, as well as permanently to disturb its harmony ; and that it became a question of grave and serious importance whether a separation ought not to take place by some geographi- cal boundary, so that the church should thereafter constitute two separate and distinct Methodist Episcopal Churches ; and there- upon the complainants allege that at a general conference of the church, holden according to usage and discipline, at New York, on the 8th day of June, 1844, the following resolutions were duly adopted by a majority of over three fourths of the entire body. As the principal question in the case arises upon these resolutions, we copy them entire. Resolved, By the delegates of the annual conferences, in general conference assembled : — 1. That should the annual conference in the slave-holding States find it necessary to unite in a distinct ecclesiastical con- nection, the following rule shall be observed with regard to the northern boundary of such connection : All the societies, stations, and conferences, adhering to the church in the south by a vote of the majority of the members of said societies, stations, and conferences, shall remain under the unmolested pastoral care of the southern church ; and the ministers of the Methodist Epis- copal Church shall in no wise attempt to organize churches or societies within the limits of the church south, nor shall they 350 Bascom v. Laxe. attempt to exercise any pastoral oversight therein, it being understood that the ministry of the south reciprocally observe the same rule in relation to stations, societies, and conferences, adhering by a vote of a majority to the Methodist Episcopal Church ; provided, also, that the rule shall apply only to socie- ties, stations, and conferences bordering on the line of division, and not to interfere with charges which shall, in all cases, be left to the care of that church within whose territory they are situated. 2. That ministers, local and traveling, of every grade and oifice, in the Methodist Episcopal Church, may, as they prefer, remain in the church, or, without blame, attach themselves to the church south. Resolved, By the delegates of all the annual conferences in general conference assembled, that we recommend to all the f*"*' annual conferences, at their first ajpproaching sessions, to authorize a change of the sixth restrictive article, so that the first clause shall read thus : " They shall not appropriate the produce of the book concern, nor of the charter fund, to any pur- pose other than for the benefit of the traveling, supernumerary, superannuated, and worn-out preachers, their wives, widows, and children, and to such other purposes as may be determined upon by a vote of two thirds of the members of the general conference." 3. That whenever the annual conference, by a vote of three fourths of all their members voting on the third resolution, shall have concurred in the recommendation to alter the sixth restrict- ive article, the agents at New York and Cincinnati shall, and they are hereby authorized and directed to deliver over to any authorized agent or appointee of the church south, should one be organized, all notes and book accounts against the ministers, church members, or citizens, within its boundaries, with authority to collect the same for the sole use of the southern church ; and that said agents also convey to aforesaid agent or appointee of the south, all the real estate, and assign to him all the property, including presses, stock, and all right and interest connected with the printing establishments at Charleston, Richmond, and Nashville, which now belong to the Methodist Episcopal Church. 4. That when the annual conferences shall have approved the BAscojt V. Lane. 351 aforesaid change in the sixth restrictive article, there shall be transferred to the above agent for the southern church so much of the capital and produce of the Methodist book concern as will, with the notes, book accounts, presses, etc., mentioned in the last resolution, bear the same proportion to the whole property of said concern that the traveling preachers in the southern church shall bear to all the traveling ministers of the Methodist Episco- pal Church. The division to be made on the basis of the num- ber of traveling preachers in the forthcoming minutes. 5. That the above transfer shall be in the form of annual payments of $25,000 per annum, and specifically in stock of the book concern, and in southern notes and accounts due the estab- lishment, and accruing after the first transfer mentioned above ; and until the payments are made, the southern church shall share in all the net profits of the book concern, in the proportion that the amount due them, or in arrears, bears to all the property of the concern. 6. That Nathan Bangs, Greorge Peck, and James B. Finley be, and they are hereby appointed commissioners, to act in con- cert with the same number of commissioners, appointed by the southern organization (should one be formed), to estimate '*""^ the amounts which will fall due to the south by the preceding rule, and to have full power to carry into effect the whole arrange- ment proposed with regard to the division of property, should the separation take place. And if by any means a vacancy occurs in this board of commissioners, the book committee at New York shall fill said vacancy. 7. That whenever agents of the southern church are clothed with legal authority or corporate power, to act in the premises, the agents at New York are hereby authorized and directed to act in concert with said southern agents so as to give the provisions of these resolutions a legally binding force. 8. That all the property of the Methodist Episcopal Church, in meeting-houses, parsonages, colleges, schools, conference funds, cemeteries, and of every kind, within the limits of the southern organization, shall be forever free from any claim set up on the part of the Methodist Episcopal Church, so far as this resolution can be of force in the premises. 9. That the church so formed in the south shall have a com- 362 Bascom v. Lane. mou right to use all the cxDpyrights in possession of the book concern at New York and Cincinnati, at the time of the settlement by the commissioners. 10. That the book agents at New York be directed to make such compensation to the conferences south for their dividend from the chartered fund, as the commissioners above provided for shall agree upon. 11. That the bishops be respectfully requested to lay that part of this report requiring the action of the annual conferences before them as soon as possible, beginning with the New York conference. The complainants further allege that the said general confer- ence had full and competent power and authority to adopt the resolutions, each and all of them, and that the same became of binding force and validity ; and that in pursuance of said resolu- tions, such proceedings were afterwards had in the several annual conferences of the Methodist Episcopal Church in the slave- holding States, in general convention assembled by delegates (elected on the basis of the resolutions of the general conference of 1844) at Louisville, Kentucky. On the 1st day of May, 1845, the following resolution was adopted after mature and deliberate consideration : — Be it resolved, by the delegates of the several annual confer- ences of the Methodist Episcopal Church in the slave-holding States, in general convention assembled, that it is right, expedi- ent, and necessary to erect the annual conferences represented in this convention into a distinct ecclesiastical connection, sepa- rate from the jurisdiction of the general conference of the Methodist Episcopal Church, as at present constituted; and, t*"''^' accordingly, we, the delegates of said annual conference, acting under the provisional plan of separation adopted by the general conference of 1844, do solemnly declare the jurisdiction hitherto exercised over said annual conferences, by the general conference of the Methodist Episcopal Church, entirely dissolved; and that said annual conferences shall be, and they are hereby constituted a separate ecclesiastical connection under the provis- ional plan of separation aforesaid, and based upon the discipline of the Methodist Episcopal Church, comprehending the doctrines and entire moral, ecclesiastical, and economical rules and regula- Bascom v. Lane. 353 tions of said discipline, except only in so far as verbal alterations may be necessary to a distinct organization, and to be known by the style and title of the Methodist Episcopal Church South. Yeas, ninety-four. And that afterwards, on the 2d day of July, 1845, a coun- cil of the bishops of the Methodist Episcopal Church met at New York (which council was composed of the northern bishops), and then and there adopted unanimously the following resolutions: — 1. Resolved, That the plan reported by the select committee of nine at the last general conference, and adopted by that body, in regard to a distinct ecclesiastical connection, should such a course be found necessary by the annual conference in the slave- holding States, is regarded by us of binding obligation in the premises as far as our administration in concerned. 2. Resolved, That in order to ascertain fairly the desire and purpose of those societies bordering on the line of division, in regard to their adherence to the church, north or south, due notice should be given of the time, place, and object of the meet- ing for the above purpose, at which a chairman and secretary should be appointed, and the sense of all the members present be ascertained, and the same be forwarded to the bishop who may preside at the ensuing annual conference ; or forward to said presiding bishop a written request to be recognized and have a preacher sent them, with the names of the majority appended thereou. And the complainants allege and insist, that by and in virtue of the foregoing proceedings, the Methodist Episcopal Church in the United States, as it had existed before the year 1844, became and was divided into two distinct Methodist Episcopal Churches, with distinct and independent organizations, powers, and author- ity, compounded of the several annual conferences, charges, sta- tions, and societies, lying or being situated north and south of the aforesaid line of division. And the complainants further allege, that, by force of the foregoing proceedings, the Methodist Episcopal Church South became and was entitled to its proportion of all the property, '*"*^ real and personal, and of all funds and effects which, up to the time of the separation, had belonged to the Methodist BnuN. C. C — 23. 354 Bascom v. Lane. Episcopal Church; and that the church south was and is so entitled, without any change or alteration of the sixth restrictive article above mentioned. That before and on the said 8th day of June, 1844, the Methodist Episcopal Church owned and possessed a large amount oi property in various parts of the United States, real and personal, which was in the hands of agents and trustees ; and, among others, large interests therein belonged to the said church, in what was denominated the book concern, in the city of New York, consisting of houses and lots, machinery, printing presses, book bindery, books, papers, debts, cash, etc., amounting to about the sum of seventy-five thousand dollars, the whole of which property is now in the possession of the defendants, Lane and Scott, as book agents. And the complainants further allege, that after the division of the Methodist Episcopal Church into two distinct churches, by virtue of the resolutions of the general conference of 1844, and the action of the annual conference of the south, as hereinbefore set forth, the agents of the book concern, since the year 1845, have utterly refused to pay the annual conferences south, or to the complainants for and in behalf of them, their said just pro- portion of the profits and income to the said book concern, and still continue to withhold the same. That the said general con- ference of the church south, holden at Petersburg, Virginia, in May, 1845, in pursuance of and in compliance with tlie plan of separation of 1844, proceeded to appoint the complainants, Bas- com and Green, together with S. A. Latta, commissioners, to meet the commissioners appointed by the general conference of the Methodist Episcopal Church of 1844, and to settle and receive from said commissioners the just proportion of the prop- erty and effects due to the church south, according to the said plan of separation ; and that the said Bascom, Green, and Latta afterward applied to Nathan Bangs, George Peck, and James B. Finley, appointed by the general conference, in 1844, as the said book agents, to meet them for the purpose of a settlement and division of the said property, and have repeatedly called on them for that purpose ; but that the defendants have wholly failed and refused to act in the premises ; nor have they been enabled to induce the said book agents, nor commissioners, nor church itself, to pay to the said church south its proportionate share of Bascom v. Lane. 355 the said property and funds, as provided in the said plan of separation. And the complainants allege that they are members of the Methodist Episcopal Church South ; that Kelly and Allen are supernumerary preachers, and Tevis a superannuated preacher ; and that they belong to the traveling connection of the said [i»o] dmrch . and as such have a personal interest in the estate, real and personal, now holden by the Methodist Episcopal Church, by the defendants, as agents and trustees appointed by the general conference; that there are arbout fifteen hundred preachers belonging to the traveling connection of the Methodist Episcopal Church South, each of whom has the same personal interest in the said property as the complainants ; and that the great number of persons thus interested in the recovery sought by the said bill makes it inconvenient, if not impossible, to bring them before the court as complainants ; that they are citizens of States other than the State of New York, and that their interests exceed the sum of two thousand dollars ; that the defendants. Lane and Scott, have the custody and control by law, and by virtue of their appointment as agents of the book concern, of all the property and effects of the said concern, as above described. The complainants further allege, that the entire membership of the Methodist Episcopal Church South is about four hundred and sixty thousand five hundred and fifty-three; and that the entire membership of the church north is about six hundred and thirty-nine thousand and sixty-six ; and that it is therefore impossible to bring all the parties in interest before the court in this bill, either as complainants or defendants. The defendants admit the adoption of the resolutions of the general conferences of the 8th of June, 1844, by a majority of over three fourths of the entire body; but allege that the said resolutions were, in respect to their operation and effect, provis- ional and contingent, and were intended to meet a future emer- gency, that It was supposed might arise in the church between the northern and southern members; and further, that the said resolutions, called the plan of separation, were not duly or legally passed; and that the general conference had no power or authority to pass or adopt the same, except that portion comprising the recommendation to the annual conferences to 356 Bascom v. Lane. change the sixth restrictive rule ; and that the last named resolu- tions, when adopted, were null and void, and without any bind- ing force, except as a matter of recommendation. The defendants further insist, that even had the so-called plan of separation been constitutional and valid, it merely provided for a prospective plan, which without the happening of certain future conditions, or on the failure of which conditions, or either of them, could not, by its express terms, nor was it ever intended to have any force or validity, and is null and void. And that the same was never ratified by the annual conferences named therein; and that the southern annual conferences have, in all respects, as to the church south, acted on their own responsibility, without any authority from the general conference of 1844. The defendants admit that the resolutions set forth in the [soo] complainants' bill were adopted by the convention of dele- gates from the annual conference in the slave-holding States, assembled at Louisville, Kentucky, on the 1st of May, 1845 ; but they deny that the delegates comprising said convention were selected on the basis, or according to the authority of the provis- ional plan of separation of 1844. And they insist that the Methodist Episcopal Church South exists as a separate ecclesi- astical connection, by the actions and doings of the individual bishops, ministers, and members attached to such church, pro- ceeding in the premises on their own responsibility ; and that such bishops, ministers, and members have voluntarily withdrawn themselves from the Methodist Episcopal Church, and have renounced all their rights and privileges in the communion and under her government. The defendants further admit that the council of bishops of the Methodist Episcopal Church, called the northern bishops in complainants' bill, met and adopted the resolutions therein stated. They deny that this church, as it existed before the year 1844, or as it at any time existed, was lawfully divided into two distinct Methodist Episcopal Churches, as alleged in the said bill ; but that the separation and withdrawal from the church of a portion of the bishops, ministers, and members was an unauthorized separation. The defendants admit that before and on the 8th day of June, 1844, the Methodist Episcopal Church owned and possessed large Bascom v. Lane. 357 amounts of property ia various parts of the United States, and that the property, consisting of the book concern, with all houses, lots, machinery, printing presses, etc., is now, and always has been, the property of the preachers belonging to the traveling connection of the Methodist Episcopal Church and their families ; but that, if such preachers do not, during life, continue in such traveling connection, and in communion, and subject to the gov- ernment of the said church, they forfeit, for themselves and their families, all their ownership in, and all claim upon, said book concern, and the produce thereof. They admit that all lands, property, and effects pertaining to the said book concern are in the possession of the defendants, Lane and Scott, as agents duly appointed by the general conference. They admit, also, that the said book concern was originally commenced by traveling members of the Methodist Episcopal Church, on their own capital, with the design, in the first place, of circulating religious knowledge, and by whom it was surren- dered to the ownership of all the traveling preachers in full con- nection, and made subject to the control of the traveling preachers in their general conference ; and that it was agreed, from time to time, the profits arising from the sale of the books '*"*' should be applied to pious and charitable objects, but principally to the support of traveling ministers and their families, until, in the general conference of 1796, it was determined that the said moneys should in future be applied wholly to the relief of trav- eling preachers, including such of them as were deceased ; and that it was resolved in that conference that the produce of the sale of the books, after the book debts were paid, and a sufficient capital provided for carrying on the business, should be regularly paid "for the relief of distressed traveling preachers, for the families of traveling preachers, and for the superannuated and worn-out preachers, and the -widows and orphans of preachers." We have thus stated what we regard as the material parts of the bill and answer. A good deal of documentary proof was read on the hearing ; but upon the view we have taken of the case, it will not be necessary to refer particularly to it, except as stated in the course of this opinion, as most if not all of the facts material to be noticed are matters of serious dispute. 358 Bascom v. Lane. Indeed, the bill and answer present most of the facts upon which our opinion will be founded. The complainants include traveling, supernumerary, and superannuated preachers belonging to the traveling connection of preachers in the Methodist Episcopal Church South, represent- ing in this suit a numerous body in that connection, and claim their proportionate share in the profits of the book concern, which this description of persons were confessedly entitled to before the division of the Methodist Episcopal Church into two distinct organizations took place, under the plan of separation of 1844. This book concern was established at a very early day, by the traveling preachers in connection with that church, and the profits to be derived thCTefrom, devoted by them to the relief of their distressed supernumerary and worn-out brethren, their widows and orphans. The establishment was small at first, but at present is one of a very large capital, and of extensive operations, producing great profits, to be applied in behalf of the objects of charity. It has, doubtlesSj been conducted with great judgment and prudence by the agents in the immediate charge of it ; but its growth and present magnitude are not less owing to the labor and devotion of the body of the traveling preachers, who have always taken the principal charge of the circulation and sale of the books in the Methodist connection throughout the United States, accounting to the proper authorities for the proceeds. The traveling preachers of this church were the founders of this charity, and have designated the objects and purposes to which it shall be applied; and if it is, at any time, Avrongfully withheld by those in the immediate charge of it, or diverted [so»] fi-Qin tlie objects designed by the founders, it is the duty of the court to interfere and enforce the execution of the trust The foundation of this charity is peculiar and novel, differing essentially from the cases of this description that have heretofore fallen under the equitable jurisdiction of a court of chancery. The traveling preachers are both the founders and the benefici- aries. They are the proprietors of the charitable fund, and, according to the constitution under which the endowment was made, also entitled to its proceeds. We do not perceive, however, that-these considerations can in Bascom V, Lane. 359 any way affect the nature or character of the interest of the com- plainants, or confer upon them a title to the enjoyment of their proportion of the proceeds, superior to that of beneficiaries of a pure charity, where a third person has made the endowment in the ordinary way for charitable and pious uses, or, that it can be administered upon any other principles than those governing courts of equity in this class of cases. For, according to the original constitution of this fund by the founders, who had a right to prescribe the terms and conditions upon which the pro- ceeds or profits should be distributed, and the persons to whom and which when prescribed furnishes the law of the case for the court, these proceeds and profits have been devoted to the relief of distressed, traveling, supernumerary, and worn-out preacliets in the connection of the Methodist Episopal Church, their widows and orphans; and to entitle the complainants, and those they represent, to the enjoyment they must bring themselves within the description. We must add, however, that the connection of this body with the original establishment, and subsequent growth of this fund, as a portion of its founders give to their claims a peculiar merit^ which cannot but impress upon the court an anxiety so to admin- ister it as to secure to them the benefit of the fruits of so sacred a trust, if reasonably consistent with the rules and principles of equity, and intent of the original founders. The bill brings the complainants clearly within the description of persons entitled to a distribution of the proceeds of the fund ; and the main question in the case, therefore, arises upon the answer and proofs in support of it. It is insisted, — 1. That the resolutions of the general conference of 1844, when properly understood, do not impart an unqualified assent of that body to a division of the Methodist Episcopal Church into two separate and distinct organizations or churches; that the assent thereby given was conditional and contingent, and that the conditions were not complied with, nor has the contingency happened. 2. That, if otherwise, the general conference was not possessed of competent power and authority to assent to or authorize the division. And, f»o3) 3_ That the division, therefore, that took place was a 360 Bascom v. Lane. nullity; and the separate organization a wrongful withdrawal and disconnection from the membership, communion, and gov- ernment of the church, by reason of which the traveling, super- numerary, and worn-out preachers composing the separate organization, are taken out of the description of the beneficiaries of the fund. There were some other matters brought into view in the course of the argument which we may notice hereafter ; but the above petitions present the main grounds upon which the defense rests. 1. As to the resolutions, or the plan of separation, as they are usually called. The first one declares, that should the annual conference of the slave-holding States find it necessary to unite in a distinct ecclesiastical connection, the following shall be observed with regard to the northern boundary of such connection : All the societies, stations, and conferences adhering to the church in the south by a vote of the majority of the members shall remain under the unmolested pastoral care of the southern church; and then follows a mutual stipulation that each church shall abstain from organizing churches or societies within the boundaries of the other; and also from exercising any pastoral oversight therein. The second, that ministers, local and traveling, of every grade and office, in the Methodist Episcopal Church, may, as they pre- fer, remain in that church, or without blame attach themselves to the church south. The fifth resolution declares that all the property of the Methodist Episcopal Church, in meeting-houses, colleges, schools, conference funds, cemeteries, and every kind, within the limits of the southern organization, shall be free from any claim set up on the part of the Methodist Episcopal Church, as far as this resolution can be of force in the premises. The third is a recommendation to the annual conferences at their approaching sessions, to authorize a change of the restrict- ive article of the fundamental law of the church, which we shall have occasion to examine with some particularity in another branch of this case, and which prohibited the general conference from appropriating the produce of the book concern to any other purpose than for the benefit of the traveling, supernumerary, and Bascom v. Lane. 361 worn-out preachers, their widows and orphans, without the concurrence of the annual conferences. The change recommended was to add to the clause of limita- tion, "and to such other purposes as may be determined upon by a vote of two thirds of the members of the general conference." The object of recommending this change was to enable the [S04J geueral conference to proceed at once, and make an equit- able division of the property and effects belonging to the Methodist Episcopal Church, as then organized between the two separate organizations. For this purpose, the next resolution provided that as soon as the annual conferences shall have con- curred in the recommendation, the agents at New York and Cincinnati were directed to deliver over to the agent of the church south all notes, etc., against the ministers, members, or citizens within its boundaries, for the sole use of said church ; and also to convey to such agent all the real estate and other property connected with the printing establishments at Charles- ton, Richmond, and Nashville, which then belonged to the church ; and in the one following, that there should be transferred to the said agent so much of the capital and produce of the Methodist book concern as would, with the property and effects before mentioned, bear the same proportion to the whole prop- erty of the said concern that the traveling preacliers in the southern church bore to all the traveling preachers of the Methodist Episcopal Church. The terms and mode of payment were then prescribed, and commissioners appointed to meet commissioners to be appointed by the southern organization to estimate and fix the amount that might fall due them according to the preceding arrangement. And in winding up, the bishops are requested to lay that part of the report (resolutions) requiring the action of the annual conferences before them as soon as possible. Now it will be seen from this analysis of the plan of separa- tion, that the only condition or contingency upon which an absolute division of the church organization was made to depend was the action of the several annual conferences in the slave- holding States. If these should find it necessary to unite in favor of a distinct organization, by the very terms of the plan, the separation was to take place according to the boundary 362 Bascom v. Lane. designated. It was left to them to judge of the necessity; and their judgment is made final in the matter. And when the decision is made, and the church is divided into two separate bodies, it is declared ministers of every grade and office in the Methodist Episcopal Church may, as they prefer, remain in that church, or, without blame, attach themselve? to the church south. The whole plan of separation confirms this view. As soon as the separation takes place in accordance with the first resolution, all the property, in meeting-houses, parsonages, colleges, schools, conference funds, and cemeteries, within the limits of the southern organization, is declared to be free from any claim on the part of the northern church. The general and common property, such as notes and other obligations, together with the prop- erty and effects belonging to the printing establishments at raos] Charleston, Richmond, and Nashville, and the Jcapital and produce of the book concern at New York, was referred for future adjustment. This was necessary, on account of the re- strictive article upon the power of the general conference, in respect to the produce of the book concern and charter fund. Some delay was necessary to procure that authority from the annual conferences. But one mode of the adjustment was settled, depending only upon the action of the conferences in respect to the authority. The notes and book debts against persons within the southern church, together with the several printing estab- lishments situated within its limits, were to be transferred to that church ; and also so much of the capital and produce of the book concern, which, together with the aforesaid property, would bear the same proportion to the whole interest in that concern as the traveling preachers in the southern church bear to all the traveling preacliers of the Methodist Episcopal Church. This perfected the adjustment of the common property between the two organizations. It will be seen looking back to the plan of separation, that the only contingencies or conditions subsequent to be found in it are two. First, the separate organkation was to depend upon the action of the annual conferences in the slave-holding States; and, second) the division of this latter portion of the common property of the church, upon the action of all the annual confer- Bascom v. Lane. 363 ences in respect to the change of the restrictive article. When the annual conferences in the slave-holding States acted and organized a southern church, as they did, the division of the Methodist Episcopal Church into two organizations became com- plete. And so would the adjustment of the common property between them, if the assent of all the annual conferences had been given to the change of the restrictive article. The failure to give that has left this part of the plan open, the only conse- quence of which is to deprive the southern division of its share of the property dependent upon this assent, and leave it to get along as it best may, unless a right to recover its portion legally results from the authorized division into two separate organizations. The argument against this view is, that the separation was to take place, not only in the event of the concurrence of the south- ern conferences, but also upon the assent of all the annual con- ferences to change the restrictive article. And the preamble to the plan of separation was referred to as countenancing this construction. We think otherwise. On the contrary, in our judgment, it confirms the view above taken. That preamble recites that a declaration had been presented to the general conference with the signatures of fifty-one delegates of that body from thirteen annual conferences in the '***' slave- holding States representing that for various reasons enumerated, the objects and purposes of the Christian ministers and church organization cannot be successfully accomplished by them, under the jurisdiction of the general conference, as then constituted; and that in the event of a separation, a contingency to which the declaration asks attention, as not improbable, we esteem it the duty of the general conference to meet the emergency with Christian kindness and the strictest equity. Then follows the plan of separation, and it leaves the strongest impress throughout of the conviction and spirit so feelingly and impres- sively announced in the preamble. The question of separation is left to the judgment of their southern brethren in the church, where delegates had declared the necessity, and provision is made for the adjustment and division of the common property which, so far as we know, are founded upon principles of "the strictest equity," between the 364 Bascom v. Lane. parties, and then the constitutional powers of the conference are exhausted in the endeavor to carry out this division. It is apparent, from the plan of separation, as well as from the whole course of the proceedings, that if this hody had possessed the power, or had believed that they possessed it, to make an effectual division of the property, it would have been made at the time, dependent only upon the determination of the southern conference for a separate organization. They advanced as far as was supposed to be in their power, and took immediate steps to obtain the necessary authority to perfect it. The division of the property was not an element that entered into the consideration of the southern delegates to declare for a separate organization. They related to a different subject, and one of much more transcendant interest to the churches, north and south, and which during the present session had threatened to rend the vast and heretofore compact body of Christians in pieces. The agitation growing out of it had reached the highest authorities of the church, and had brought in conflict its chief functionaries and ablest members, and in respect to which opinions were entertained and expressed, deep and irreconcilable. In the judgment of a large portion of the body, separation was the only alternative to peace, the future Christian fellowship and usefulness of the church. The division of the property was but a consequence of separation, subordinate, and of comparative insignificance. Instead of the division of the church depending upon the division of the common property, the very reverse is the result of the true construction of the plan of separation. 2. As to the power of the general conference to authorize a separation of the church organization. [«©7] The Methodist Episcopal Church of the United States was established in its government, doctrine, and discipline, by a general conference of the traveling preachers in the communion in 1784. Down to that time the Methodist Societies in America had been governed by John Wesley, the founder of this denom- ination of Christians, through the agency of his assistants. During this year the entire government was taken into the hands of the traveling preachers with his approbation and assent. They organized it, established its doctrines and discipline, Bascom v. Lane. 365 appointed the several authorities, superintendents or bishops, ministers and preachers, to administer its polity, and promulgate its doctrines and teaching throughout the land. From that time to this, the source and fountain of all its temporal power are the traveling preachers in this connection in general conference assembled. The lay members of the church have no part or con- nection with its governmental organization, and never had. The traveling preachers comprise the embodiment of its power, ecclesiastical and temporal, and, when assembled in general con- ference, according to the usages and discipline of the church, represent themselves, and have no constituents; and thus the organization continued until the year 1808, when a modification took place. At the general conference of that year, composed of all the traveling preachers, it was resolved to have thereafter a delegated conference, to be composed of one of every five members of each annual conference. These annual conferences are composed exclusively of traveling preachers. The ratio of representation has been altered from time to time, so that in 1844 the annual conferences were represented by one delegate for every twenty -one members. The reason for the change to a delegated body, instead of the assemblage of the entire body of traveling preachers, was the great enlargement of the boundaries of the church, which had expanded with the settlement of the country, the consequent multiplication of the traveling preachers, the distance and expense of travel, and the deprivation of the field of their labors for too long a period of the Christian ordinances, and religious instruction. The general conference of 1808, Avhich determined in favor of a delegated body for the future, imposed upon the powers of this body certain limitations, which, in the language of the proceed- ings of the church, are called restrictive articles, six in number. It is declared that the general conference shall have full powers to make rules and regulations for the church, under the following limitations and restrictions : — 1. They shall not alter or change the articles of religion, nor establish any new standards of doctrine. [ao8] 2. They shall not allow of more than one representative 366 Bascom v. Lane. for every fourteen members of the annual conference, nor less than one for every thirty. 3. They shall not alter the government so as to do away with Episcopacies, or destroy the plan of itinerant superintendencies. 4. They shall not change the general rules of the united societies. 5. They shall not deprive the ministers or preachers of trial by committee, and of appeal, nor the members, of trial before the society or lay committee and appeal. 6. They shall not appropriate the produce of the book con- cern, nor the charter fund, to any purpose other than for the benefit of the traveling, supernumerary, superannuated, and worn-out preachers, their wives, widows, and children ; provided, that upon the concurrent recommendation of three fourths of all the members of the annual conferences present and voting, a majority of two thirds of the general conferences succeeding, shall suffice to alter any of the above restrictions, except the first article. These comprise all the limitations upon that body assembled by delegates. That the general conference composed of all the traveling preachers, and who established the government, doctrines, and discipline of the church, possessed the power to reconstruct and reorganize the government, ecclesiastical and temporal, into two or more separate and distinct organizations, is a question about which we think no serious doubt can well be enter- tained. These traveling preachers represented the sovereign power of the government, and were responsible to no earthly tribunal for the mode and manner of its exercise. They were entirely free to exercise their own sense and judgment as to what was the best polity and organization of the church, to accomplish this great object and design of the master in whose service they were engaged, and which were, in the language of their own disdpline, " to reform the continent, and to spread scriptural holiness over these lands." As they might have constructed any number of separate and distinct organizations in their first fraternal associa- tion and effort in the fulfillment of their mission, according, as it might seem to them best, so was it equally in their power at Bascom v. Lane. 367 any subsequent period of their labors. The power remained unchanged. The only argument urged against this view is the unity of the first organization of the church in 1784, which, as supposed, evinced a design that it should be co-extensive with the territo- rial limits of the United States, neither more nor less ; and to [308] remain and continue a united church within these limits in the exercise of its jurisdiction, spiritual and temporal; and further, that, if a power exists in any general conference to break up this organization and polity of the church, as originally designed and established, it belongs to an extraordinary general conference assembled especially for the purpose, and not to one assembled in the ordinary way, for the discharge of its mere administrative duties, as the chief legislative body of the church ; and the history, ecclesiastical judicatories, practice, and usages of the church from its origin were ably and extensively received and examined, on the argument, for the purpose of sustaining these several positions. But the obvious answer to them is that the argument over- looks the soutce and fountain of the power belonging to the general conference. We must look to these, and not to the mere exercise of power in the administration of the sacrament, when seeking to measure its depth and extent. Where is the limit? And who has prescribed it ? The traveling preachers assembled in general conference embody, in themselves, the sovereign power ; and we have no- where seen their consent to any limitation or restoiotion till all come down, in the history of their administration, to the confer- ence of 1808. We must have some evidence that they have parted with a portion of their sovereign power that confessedly belonged to them at the first organization since that period ; and that they assembled in the subsequent conferences, subject to the disability, before their power can be distinguished from those originally possessed. We have not been referred to any such evidence, nor have our own researches discovered any, nor do we believe there are any recorded acts or declarations of this body to the effect claimed. As jurisdiction and authority, spiritual and tempo- ral, in each general conference, from 1784 to 1808 inclusive, 368 Bascom v. Lane. were the same, unlimited and unrestrained, possessing all the power, which since the latter period has belonged to the general and annual conferences combined under the new organization, it necessarily follows that all the power and authority possessed by the annual conferences have been conferred upon them from time to time by the general conference. The arguments that this body, previous to 1808, did not pos- sess the competency to reorganize and reconstruct the government and the church, as they might think best for the great objects of its mission, goes the length of denying that power to the concur- rent action of both the general and annual conferences since that period. And that there is something in this association and sys- tem of policy, differing so radically from all f®^'*^ others of which we have any knowledge, that even the constituent and represent- ative, although comprising every element of power appertaining to the government, can neither change or modify it. As the argument comes down to this, we cannot think it necessary to pursue this branch of the case any longer. As it respects the powers of the general conference since the modifications of 1808, it is the same as previously existed, sub- ject to the six restrictive articles ; and neither of them has any connection with or bearing upon the question we have been con- sidering. They relate to the doctrine of one church, its repre- sentative in the general conference, the Episcopacy, discussion of preachers and members, the book concern and charter fund. These concern the exercise of the administrative powers of the conference, and are intended as limitations upon them, no less concurred in by the annual conferences. The powers conferred upon the general conference are broad and unlimited, subject only to those checks in regulating the doctrine, and perhaps discipline, of the church. In all other respects, and in everything else that concerns it, this body shall represent the sovereign power the same as before. The practice of the general conference since the change in 1828 confirms this view. The connection of the annual Upper Canada conference with the Methodist Episcopal Church was dissolved in 1828, and that body authorized to erect itself into an independent ecclesiastical establishment. The force of this precedent has been attempted to be weakened Bascom v. Lane. 369 upon the allegation, that this connection differed from that of the annual conferences within the United States; and that it rested upon a sort of compact between that conference and this church, and therefore held a different relation to it. But on look- ing into the history and discipline of the church, this will be found to be a misapprehension of that resolution ; and that the Canada conference was brought within its folds in the same way as those lying upon the frontier settlements within the United States It will be found that as early as 1804, the Upper Canada dis- tricts were included in the New York annual conference, and continued as a part of it, the same as other districts, till 1812, when these districts, and also the Lower Canada districts, were included within the Genesee conference. In 1816, the Lower Canada districts were embraced within the New York and New England conferences. In 1820, both Upper and Lower Canada were again included in the Grenesee conference ; and in the same year, the bishops were authorized, with the concurrence of this conference, to establish an annual conference in Canada ; and in 1824, the Canada conference included the whole of the t***' Upper Province, and thus it stood in 1828, when erected into an independent establishment. "We have seen nothing in the history, discipline, or practice of the church restricting its organization or Christian labors to the territorial limits of the United States ; but much to show that both have been steadily devoted to the accomplishment of the high and holy mission avowed in founding the church, namely, "to reform the continent, and to spread scriptural holiness over these lands." As early 1840, the republic of Texas was incorporated into its bosom, and an annual conference established. And we doubt not but that, as the principles of civil liberty and religious toler- ation work their way in the advancement of cizilization over regions hitherto impenetrable to the missionary, unless of a par- ticular faith, this great work of organization and Christian labor will be carried on regardless of territorial boundaries or forms of secular government. In referring to the practice of the church, we must not over- look the action of the general conference of 1844, in the instance now before us. The vote upon the first resolution stood one hun- Betoj. C. C — 24. 370 Bascom v. Lane. dred and forty-seven to twenty-two, in a body representing more than four thousand traveling preachers in this communion ; and among whom, it is fair to suppose, were included men of the greatest experience and knowledge in the administration of the polity of the church. Indeed, on looking into the report of the debates of this session, and into the discussions upon the report of the committee on the division of the church, and especi- ally upon the all-absorbing subjects that . led to its necessity, no one can fail to be impressed with the eminent ability and intelli- gence of the leading members of that body ; nor for a moment doubt but that they were profoundly skilled in all the history, practice, and usages of the church government, spiritual and temporal, and in the nature and extent of their own powers, as the highest judicatory belonging to it. As it respects the action of this body in the matter of division, no one can pretend but that it proceeded upon the assumption of unquestioned power to erect the church into two separate ecclesi- astical establishments. The only doubt entertained or expressed in the plan of separation, related to the division of the common property, on account of the sixth restrictive article, which we have conceded all alowg was not within itg competence, but which we shall presently notice more particularly in another part of the case. Independently of this question of property, the power of severance is written upon every page of their proceedings. Having now arrived at the conclusion that the general confer- ence of 1844 was competent to make the division, and that rsi8] ^jjg only condition annexed to it has been fully complied with, we are prepared to apply the principles of law, which, in this posture of the case, must govern it. "We have held, in a previous part of this opinion, that the complainants must bring themselves within the description of persons entitled to the benefit of this charitable fund as pre- scribed by its original founder ; and that, when they have done this, those who deny or withhold the charity must present a case to the court, taking them out of the description. This has been attempted by showing that they have wrongfully separated from the connection and communion of the Metliodist Episcopal Church, and erected themselves into an independent ecclesiastical Bascom v. Lane. 371 establishment, and have therefore deprived themselves of the character of beneficiaries of the fund. Having arrived at the conclusion that there is no foundation for this allegation, the ground of defense, of course, fails ; and the complainants still continue clothed with the character and rights belonging to them previous to the separation. The separation having taken place in pursuance of the action of the competent ecclesiastical author- ity, by the action of the founders of the fund themselves, how- can it be maintained that the beneficiaries, falling within the new organization, have forfeited the character which entitles them to its enjoyment? What act have they done to deprive them of the description of the persons for whose relief its proceeds have been permanently devoted. It is not pretended but that they are still traveling preachers in the Methodist Episcopal connection and communion, subject to its doctrines and discipline, and devoted to the accomplish- ment of that mission for Avhich this church was jilanted in these United States ; nor but that the field of their labors is within the domain covered by its original organization. A new con- struction of its polity, within this limit, has been determined upon by its highest judicatory, in order that the great mission may be more harmoniously and more effectually carried on. For this purpose two distinct ecclesiastical organizations, we may say identically the same, have taken the place of one, the same discipline, faith, and doctrine, and all united in spreading the same gospel and teachings throughout the land. Assume, therefore, that the general conference was disabled on account of the sixth restrictive article, from apportioning this fund; still, if the complainants bring themselves within the description of the beneficiaries, they are not thereby deprived of it. The law steps in and enforces the right. Plolding this relation to it, and not having forfeited it by any wrong act of their own, or by any cause set up against them, it is not in the competence of the general conference and annual conferences combined to deprive them. Their right rests upon established [siai principles of law and equity, which make it the duty of a court of chancery to interfere, and see that the fund is properly administered. Looking at the position of these complainants and those they 372 Bascom v. Lane. represent, on account of the action of the general conference of 1844, dividing the ecclesiastical organization and substituting in its place two distinct, independent judicatories, it is by no means certain that the distribution is in contravention even of the sixth restrictive article, that appropriates the fund for the benefit of the traveling supernumeraries and worn-out preachers, their widows and orphans. It is this description of persons to whom it is destined by the adjudication of the court. They are not only within the description, but are also the very persons heretofore in the enjoyment of it, and for whom it was originally intended. Granting that these persons have done no wrongful act, but are still laboring in the church as heretofore, except under a diiferent merely territorial organization, they are covered by the spirit if not by the letter of the restrictive article. Upon the whole, our conclusion is that the complainants are entitled to their share of the produce of the book concern, and a decree will be ordered accordingly. Whether the funds shall be administered by an application of produce pro rata, or by an apportionment of the capital, are questions reserved until the settlement of the decree. We had hoped that this unfortunate controversy would have been amicably adjusted by the parties, agreeably to the sugges- tion of each of the learned counsel, at the close of the argument, and in which the court cordially concurred. But if the views we have taken of the case, and conclusions we have arrived at, shall tend in the least degree to heal the unhappy divisions, and restore brotherly affection and Christian friendship among so highly useful and distinguished a body of Christians, we shall not regret the labor we have bestowed in deciding it. United States v. Morel. 373 THE UNITED STATES v. JOHN PETER MOREL, [U. S. Circuit Court, District of Pennsylvania, 1834 13 Am. Jur. 279.] JcBisDioTiON— Crimes on the Hiqh Seas. —The courts of the United States have not jurisdiction of crimes committed on board of an American vessel within the jurisdiction of a foreign sovereign ; nor will the fact that a person stealing goods in a foreign port, brings them upon the high seas in an American vessel, give this jurisdiction to the federal courts. The defendant was charged in four bills of indictment, as follows :- 1. For having, on the 26th of December, 1832, on board of the sloop Charles William, belonging to three citizens of the United States, while lying in Great Harbor, in Long Island, one of the Bahama Islands, within the jurisdiction of the king of Great Britain, carried away, with intent to steal, certain goods of the master, and receiving and buying them, knowing them to be stolen ; and in other counts charging the offense on the high seas. 2. The same as the first bill, omitting the counts for buying and receiving stolen goods, and in the second count, laying the offense as committed on the high seas. The two other bills varied the charge by describing the offense as a taking of the goods with intent to steal, and for receiving and concealing them, knowing them to be stolen. After the indictments were read, and the prisoner had pleaded (not guilty and a former acquittal), the court suggested a question as to the jurisdiction, growing out of the language [880] q£ ^j^jj g^jj section of the Act of Congress of the 3d of March, 1825, with a view to which the indictments were framed, namely, that it only embraced offenses against the person, and not such as were charged in the indictments. The testimony of the master and boy of the vessel were, how- ever, heard, which seemed to prove the fact of the commission of the offenses charged, and described precisely the place Avhere committed, when the court desired the counsel to speak to the question of jurisdiction. Troubat, and Gilpin (District Attorney), for the United States, G. M. Wharton, Hazelhurst, and 2). P. Brown, for the prisoner. 374 UnriTED States v. Morel. The opinion of the court is so full as to render it unnecessary to detail the arguments of the counsel, and the authorities cited by them. By the Couet. — The indictment charges in the first count that the defendant, on the 26th day of December, A. D. 1832, at the district aforesaid, and within the jurisdiction of this court, on board of a certain vessel, to wit, a sloop called the Charles William, belonging to citizens of the United States, while lying in a place, to wit. Great Harbor, in Long Island, one of the Bahama Islands, within the jurisdiction of a certain foreign sov- ereign, to wit, the King of the United Kingdom of Great Britain and Ireland ; the said defendant being a person belonging to the company of said vessel, with force and arms, did then and there feloniously take and carry away, with an intent to steal and purloin, certain personal goods of the said Samuel P. "Watkins, to wit (enumerating the articles taken). The second count charges the offense to have been committed " on the high seas, out of the jurisdiction of any particular State, and within the jurisdiction of this court." [S8X] rpjjg district attorney having given the evidence on which he relies for the description or designation of the place where the offense was committed, the counsel for the defendant have excepted to the jurisdiction of the court, and the further pro- gress of the trial was suspended until the opinion of the court could be taken on this question of jurisdiction. It has been fully argued, and will now be decided. It depends upon whether the place at which the fact was committed is a place over which the criminal jurisdiction of this court extends, according to the intent and meaning of the acts of Congress, by which the jurisdiction is given, and by which it must be gov- erned and limited. By the testimony of Samuel P. Watkins, the captain of the sloop, and owner of the property taken, it appears that, at the time the fact was committed, the sloop was lying at anchor in a , place called the Great Harbor of Long Island, one of the Bahama Islands. He called it a locked harbor, which he says is where a vessel cannot get to sea, being land-locked by shoals or reefs. He describes it to be an indentation in the main land; Unjted States v. Morel. 375 that from the mouth or chops of this indentation to the bottom is about a mile ; that it is about half a mile wide at the chops, and continues of the same width ; that the sloop was about half a mile within the chops, and about midway between the shores, that is, about one fourth of a mile from the land on each side; that outside of this harbor, at the distance of about two miles, there are reefs and bars, over which the tide does not flow, and upon which the sea or ocean breaks ; that the passage from the harbor out is narrow and difficult, and that you do not get to sea for about two miles. Such was the position of the sloop when the defendant took possession of her, and of all on board of her, and committed the fact charged in the indictment. Was it done on the high seas, within the meaning of the act of Con- gress? The indictment is founded on the fifteenth section of the Act of 30th April, 1790. This section enacts "that if any person within any of the places under the sole and exclusive jurisdiction of the United States, or t*®*^ upon the high seas, shall take and carry away, with an intent to steal and purloin, the personal goods of another," etc. The taking and carrying away in this indictment is charged to have been done on the high seas ; was it so? Was the place where the fact was done the high seas in the general and legal meaning of the term, or as they are used in the act of Congress? Writers of high authority on this subject make a clear dis- tinction between the main sea or the high sea, and roads, harbors, and ports, and we shall see that Congress had these distinctions in view in framing the act in question. Lord Hale, in the fourth chapter De Jure Mark, says " that part of the sea which lies not within the body of a country is called the main sea or ocean." In the second chapter of second part he describes a road to be "an open passage of the sea," which, "though it lies out at sea, yet in respect of the situation of the land adja- cent, and the depth and wideness of the place, is a safe place for the common riding or anchoring of ships." "A haven is a place of a large receipt and safe riding of ships, so situate and secured by the lands circumjacent that the vessels thereby ride and anchor safely, and are protected by the adjacent land from dangerous and violent winds." " A port is a haven, and some- what more," that is, for arriving and unlading ships, etc. 376 United States v. Moeel. We see here a clear and reasonable distinction taken between the main sea or ocean, and such parts of its waters as may flow into places so situate and secured by the circumjacent land as to afford a harbor or protection for vessels from the winds, which make the sea dangerous. The open sea, the high sea, the ocean, is that which is the common highway of nations, the common domain, within the body of no country, and under the particular right or jurisdiction of no sovei'eign, but open, free, and common to all alike, as a common and equal right. Mr, Webster, in his argument of Beoans^ Case, says there is a distinction between the meaning of the terms "high sea" and "sea"; that the high seas import the open, unenclosed ocean without the fauces terrce, and he is not contradicted by the opposite counsel. Certainly L»8a] ports and harbors which lie within the body of a country are not part of the high seas according to Lord Hale's defini- tions. This learned lawyer further says, and we think with good reason, that "the common and obvious meaning of the expression ' high seas ' is also its true legal meaning. The expression describes the open ocean where the dominion of the winds and waves prevails without check or control. Ports and harbors, on the contrary, are places of refuge in which protec- tion and shelter are sought, within the enclosures and projections of land." So are the high seas distinguished from havens. This appears to us to be a just general view, without meaning to adopt the whole extent to which the force of the expressions might carry us. The act of Congress, so far from weakening, gives a strong confirmation to the definitions and distinctions we have alluded to ; and the decisions of the Supreme Court upon this act en- tirely uphold them. On turning to the act it will be found that in describing the offenses over which jurisdiction is given to the courts of the United States, a material variance occurs in rela- tion to the place at which the fact is committed, nor does this appear to have been the effect of accident, inadvertence, or caprice; at least no court can be justified in assuming that sup- position as the ground of its opinion. Thus it is enacted by the eighth section that " if any person shall commit murder upon the high seas, or in any river, haven, basin, or bay out of the jurisdiction of any particular State," etc. But in providing in Ujs^ited States v. Morel. 377 the twelfth section for the punishment of manslaughter, in describing the place, the " high seas " only are mentioned, and the words "any river, haven," etc., are omitted. So by the eighth section, robbing or piratically running away with a vessel is punishable by the courts of the United States, if done on the high seas or in any river, haven, etc. ; but in the sixteenth sec- tion, which punishes the taking and carrying away the personal goods of another, with intent to steal or purloin them, the places within which the oiFense or fact must be committed must be "under the sole and exclusive jurisdiction of the United States, t***' or upon the high seas," not a word is said about a river, haven, basin, or bay, out of the jurisdiction of any partic- ular State. It would seem, then, that in relation to these "kindred crimes," murder and manslaughter, robbery and lar- ceny. Congress has thought proper to make the sphere of juris- diction in the higher crimes larger than for the lesser, leaving the latter to the courts of the nation within whose jurisdiction a crime was committed. The chief justice in Wiltberger's Case says : " Congress has shown its attention to the distinction be- tween the ' high seas ' and a ' river, haven, basin, or bay,' and can we disregard it, especially under the well-known rule that a penal statute shall be construed strictly? If we were to adopt the construction contended for by the disti'ict attorney, there would be little or no difference between the high seas and a river, haven, basin, or bay ; for If the ebbing and flowing of the tide, a fresh or salt water, are to make the difference, it is obvious that the high seas will be found to extend many miles into rivers, many miles into the interior of the country, and surrounded .on many sides by countries. If all salt water below low-water mark be a part of the high seas, we shall find it where a sloop cannot float, and the water is never ruffled by the wind. If," says the chief justice, "the words be taken according to the common understanding of mankind, if they be taken in their popular and received sense, the ' high seas,' if not in all instances confined to the ocean which washes a coast, can never extend to a river about half a mile wide, and in the interior of a country." He evidently &vors the opinion that the terms are confined to the ocean which washes a coast. But is not the case of an inlet or basin, half a mile wide, in the interior of the country, the 378 United States v. Morel. same in principle as a river of the same description? The posi- tion of the water in relation to the adjacent country and the main sea, it being within or without a county or a local terri- torial jurisdiction, and not a common domain, an open highway for all nations, furnishes the characteristics of the high sea, and not the circumstance of the place being a river or a basin, salt water or fresh, above or f***^ within the flow of the tide; I mean in reference to the criminal jurisdiction of the court. As it must be conceded that the act of Congress makes a clear distinc- tion between the high seas and a river, haven, basin, or bay, it must follow that a place which falls under either of these descrip- tions cannot, in the construction of the act, be construed to be the high seas, for that would be to make them the same, and to con- found what Congress intended to separate. Adverting, then, to the place in which the offense in this case was committed, as described by Ciapt. Watkins, can we hesitate to say that it falls directly within the description of a haven, basin, or bay? And if so, it cannot be the high sea in the meaning of the act. Can it be called the open ocean, the high seas, according to any of the definitions or opinions we have referred to? We have quoted Lord Hale's definition of a haven, as it seems to describe very exactly the place in which the sloop was anchored. It was "a place for the receipt and safe riding of ships, so situate and secured by the land circumjacent that the vessels thereby ride at anchor safely, and are protected by the adjacent land from injurious or violent winds." Was not the " Great Harbor" of Long Island just such a place? Is it not so understood from its name, Great Harbor, to distinguish it from a smaller inlet of water from the sea, at some distance from it ? Was the ocean, the high sea, ever called a harbor? If, then, we refer ourselves as the chief justice has done, "to the common understanding of mankind," to the understanding of those who have a particular and practical knowledge of the place in ques- tion, and we find them denominating it a harbor, which is a port or haven for shipping, how can we adjudge that this harbor is the high sea, which has forever been distinguished from a port or haven, both in its legal and common signification? To say that the high sea is a port or haven, or that a port or haven is a high sea, would be deemed an absurdity by all who have United States v. Morel. 379 any knowledge of the terms. If we look to the English lexicog- raphers for the meaning of these terms, " haven," " basin," " bay,-" tasej ^yQ shall find no difference between them and Lord Hale; haven, a port, a harbor, a station for shipping ; basin, a part of the sea enclosed in rocks ; bay, an opening into the land where the water is shut in on all sides except at the entrance. Either of these definitions fully meets the description of the Great Har- bor of Long Island, as given by Capt. "VVatkins, as well as by the drafl or chart that has been shown to the court. If, then, the place in question be a basin, haven, or bay, it is exactly the sort of place mentioned in the act of Congress, as distinguished from the high seas, in the same act, and cannot therefore be embraced in the term "high seas," as there used and intended. The place was the haven or harbor of the island, and no part of the high sea. Some of the decisions of Judge Story are supposed to sup- port the construction of the district attorney. They will not be found to do so. The case of the United States v. Ross, 1 Gall. 164, was an indictment for being present, aiding, and abetting in the murder of a colored man, on board the schooner Pocahordas, on the high seas, near the Cape de Verd Islands. The vessel was at anchor in an open roadstead or bay, near the Island of St. Jago, about half a mile from the shore, and a mile from the town of Riga, By adverting again to Lord Hale, we shall see that a road is an "open passage of the sea"; that it lies out at sea; but that in respect to the situation of the adjacent land, and the depth and wideness of the place, it is a safe place for the common riding and anchoring of ships. This is wholly unlike the place in which the Charles William was lying in the harbor of Long Island. Judge Story in giving his opinion of the meaning of the Act of 1790, says: "From the language of the act I am of opinion that the words 'high seas' mean any waters on the sea coast, without the boundaries of low-water mark, although such waters may be in a roadstead or bay, within the jurisdictional limits of a foreign government." In the case before us the offense was not committed in waters on the sea coast, nor in a roadstead. By the coast I understand the edge of the land next the sea. In our l®*'"^ case there was a bar or reef over which 380 Ukited States v. Moeel. the sea did not flow. Between the sea and the entrance to this haven or basin you had two miles to go, says the captain, to get to sea J by which expression it is clear that the witness did not consider the water between the bar or reef and this basin to be the sea. The sea coast, then, was two miles outside of or beyond the entrance to this place or harbor. We have also shown that it is not a roadstead, and it is thus entirely clear of the opinion of Judge Story in the case of Hoss. In the case of the United States v. Smith, the vessel on board of which the crime was committed was lying outside the bar of Newburyport harbor, but within three miles of the shore. The judge thought she was on the high seas, " for it never has been doubted that the waters of the ocean on the sea coast, without lovv- water mark, are the high seas." The Charles William was lying inside the bar, in the port or harbor of Long Island and not on the waters of the ocean on the sea coast. In the United States v. Hamilton, 1 Mason, 152, the judge only says that a ship lying in an enclosed dock in the port of Havre was not on the high seas. That was the case he had to decide. In case of the sloop Ahby, 1 Mason, 360, the vessel was five miles off Cape Elizabeth, and the judge says that " all waters below the line of low-water mark, on the sea coast, are compre- hended within the description of the high seas," If this indictment cannot be maintained under the law of 1790, it has been argued by the district attorney that it is em- braced by the provision of the fifth section of the 'Act of 3d of March, 1825. That section enacts that "if any offense shall be committed on board of any ship or vessel belonging to any citi- zen or citizens of the United States, while lying in a port or place within the jurisdiction of any foreign state or sovereign, by any person belonging to the company of the said ship, or any passenger, on any other person belonging to the company of the said ship, or any other passenger, the same offense shall be cog- nizable by the proper Circuit Court of l**®^ the United States." It is contended that this provision is not confined to offenses upon or against the person, but extends to any wrong done to one of the ship's company, or a passenger, in his person or property. It appears to us that the obvious and only meaning of the words United States v. Moeel. 381 restricts the jurisdiction liere given to the Circuit Courts to offenses upon the person of an individual, and cannot, by any reasonable construction, be extended to offenses upon or against the property of another. To adopt the construction contended for, we must strike out these most significant words, or give them no meaning or effect, to wit, "on any other person belonging to the company of the said ship, or any other passen- ger," for without these words we should have the law precisely as it is said to be, with them by this argument. It is manifest that by omitting these words the section will have the general operation contended for, and that these words limit and restrain that operation, and are doubtless inserted for that purpose. We cannot erase this part of the section, nor refuse to give them their plain and obvious interpretation. We think the case is not embraced by this section. Another attempt is made to sustain the prosecution ; it is said that even if the original taking was in a place not within the jurisdiction of the court, yet that the goods were afterwards taken by the offender upon the high seas, and brought within the jurisdiction, which therefore attached to them, such bringing being in law a new taking and a new larceny ; and it is likened to the taking stolen goods from one country into another. We do not see the analogy or agreement between the cases. No case has been shown where goods stolen in a foreign state or juris- diction and brought into England were held to be within this principle of the common law. In 2 East, 776, after stating the principle that the possession of the goods by a thief is larceny in every country into which he carries them, the author gives the exception to this rule: "As where the original taking is such whereof the common law cannot take cognizance, as of goods obtained by theft or robbery at sea, and afterwards carried into some '***^ country ; in which case the common law gives no jurisdiction to inquire of the felony," So of goods taken in Scotland, and brought into England. The decisions in the State courts of these United States have differed, upon extending this common law principle to the case of goods stolen in one State and carried into another, although it is adopted as to the coun- ties of the same State. In Massachusetts and Connecticut the courts have recognized the principle in relation to different 382 United States v. Mobel. States ; in New York and Pennsylvania the contrary doctrine has been asserted. In the case of Simmons v. The Cmrmum' wealth, 5 Binn. 617, Chief Justice Tilghman gave the opinion of the Supreme Court. The property was originally stolen in the State of Delaware, and the thief brought it to this city. It was adjudged that he could not be indicted here for the felony. The chief justice considers the principle even as to counties a subtle one, and does not seem inclined to favor it. As to the convenience of the practice, he says: "I had rather see one hundred culprits escape than extend such jurisdiction a hair's breadth beyond its constitutional limits." We think the prose- cution cannot be supported on this ground. The last effort made by the district attorney to bring the defendant within the grasp of the law, and we think the circum- stances of the case, so far as we know them, fully justifies all his zeal to punish the offender, is to contend that the offense de- scribed in the act of Congress is not the technical common law crime of larceny, and therefore not to be judged by the rule which governs that offense, to wit, that it is committed and complete when and where the original taking of the goods is perpetrated; that the act does not speak of a larceny, or of stealing, but simply of taking and carrying away the goods with intent to steal or purloin them. The argument then is, that the carrying this property in or over a place, to wit, the high seas, which is within the jurisdiction of this court, is an offense cog- nizable by this court. It is to be observed that the carrying the goods is not a distinct substantive offense ; the words of the act are, "shall take and carry t*""' away," not or carry away. The crime is therefore complete when the goods are taken and carried the smallest distance from the place from which they were taken. Any further carrying does not add anything to the offense, much less can it create a new one. But to complete the description of the crime, there must be both a taking and a car- rying away; and to give this court jurisdiction of it, both must be done in a place over which that jurisdiction extends. In meeting this point in this way, we would not be understood to sanction the opinion that the offense described in the act of Congress is not a larceny. MiNGE V. GiLMOUR. 383 MINGE V. GILMOUR. [U. S. Circuit Court, District of North Carolina, 1798.— 1 Car. L. Rep. 34.] Baegain and Sale Deed — What Passes by. — A deed of bargain and sale only- passes such estate as the griintor has and can rightfully convey. Estate Tail, How Babiied. — The issue in tail, with assets, are barred by their ancestor's detd of bargain and sale with warranty; and where other land descends liable to a charge, it is assets pro tanto. Ex Post Facto Laws — What abe. — An ex post facto law is one which punishes as a crime an act done before its passage, which, when committed, was not so punishable. The term does not apply to acts of a civil nature. OoNSTrmioNAL AND Statctoky Consteuction — Powees of Couets. — The judi- ciary, as a co-ordinate branch of the government, may declare a statute to be void if repugnant to the Constitution ; but where laws within the general scope of the authority of the legislature are passed, the courts cannot declare the same void because, in their opinion, they are contrary to principles of natural justice, Iredell, Associate Justice ; Sitgreaves, District Judge. The jury found a special verdict, the substance of which is that John Minge, the grandfather of the lesf5or of the plaintiff, was seized in fee of the premises described in the declaration ; that being so seized, he duly made his last will and testament on the 26th of November, in the year 1760; that the said John Minge departed this life in the year 1772, and his son David, the devisee, became seized of an estate tail on the said lands ; that David, the son of John, being so seized and in possession of the said lands, executed a deed of bargain and sale on the 15th of Februarj', 1779, to Charles Gilmour and "William Hendric, con- taining the following clause of warranty : " And the said David Minge, for himself, his heirs and administrators, the aforesaid piece or parcel of land, with the appurtenances thereunto belonging, doth by these presents secure, and forever defend from the lawful claim or demand of any person or persons whatsoever, unto the said Gilmour and Hendric, their heirs and assigns ; in testimony whereof, the said David Minge hath here- unto set his hand and seal the day and year above written"; that he afterwards, on the 15th of May, 1779, duly made his last will and testament, with a codicil annexed f"^' of the date of the 28th February, 1781, by which he devised land to Jolni Minge which, at the time of his decease, was of greater value than the land conveyed to Gilmour and Hendric. They also find that the consideration money expressed in the deed had 384 MiNGE V. GiLMOUR. been paid. They pray the advice of the court, etc. The plaintiff claimed as heir in tail to David Minge. The case was argued by Taylor and Badger, for the plaintiff, and Davie and Baker, for the defendant; but as all the points raised are noticed in the opinion of the court, the arguments are omitted. Ieedell, J., delivered the opinion of the court. I cannot refrain from expressing my high satisfaction in hav- ing heard this cause so ably and perspicuously argued on both sides ; and which alone, in a case of so much novelty in some respects, and intricacy in others, could have enabled me to form an opinion so early. The title of the lessor of the plaintiff" (independent of that of the defendant) is prima facie clear under a tenancy in tail ; the father, who was tenant in tail in possession, having died, and he as his eldest son, as such entitled to enter. The defense is grounded on two points : — 1. A denial of the right of entry of the lessor of the plaintiff, which if well founded effectually destroys this remedy by eject- ment; since, if the lessor of the plaintiff had no right to enter, he had no right to make the lease confessed by the common rule; and without such lease, either actual or confessed, the action cannot be maintained. 2. A denial of his title altogether, independent of the remedy now used for asserting it ; which, if well founded, f**^ shows that the lessor of the plaintiff has no title upon which he could recover in any form of action. To prove the first point, the defendant's counsel produce a deed of David Minge, the father of the lessor of the plaintiff, and who was the tenant in tail in possession, dated the 15th February, 1779, conveying the premises in fee with warranty to Charles Gilmour and William Hendric, under whom the defendant claims. This, it is alleged, bars the entry of the son, for these reasons : 1. Because such a deed, under the act of Assembly of North Carolina passed in the year 1715, c. 38, § 6, is to be deemed equal to a feoffment in fee with livery, which it is admitted MiNGE V. GlLMOUE. 385 would create a discontinuance, and drive the issue to his formedon. 2. Because, if this deed is not to be deemed a feoffment, it is at least a bargain and sale ; and a bargain and sale, in fee with warranty, by the tenant in tail in possession, does, in itself, with or without assets, create a discontinuance, and consequently take away the entry of the issue. 3. Because an act of Assembly passed in 1734, (which will be more particularly considered presently), if it does not bar the title, takes away all remedy by action or entry ; and '*'' there- fore whatever right may subsist in the lessor of the plaintiff', the courts are not permitted to give effect to it. With respect to the first reason (that under the act of Assem- bly of 1715) the deed ought to be deemed to have the same effect as a feoffment with livery and seizin. I do not think the act of Assembly ought to have any such operation. If it had been necessary to convey the land at all, that a feoffment should have been made use of, the livery would have been dispenset t. Littlefield, 1 Wood. & M. 16; Woodworih v. Bali, X Wood. & M. 258; citing ahove case.) UNITED STATES v. JAMES HARVEY. [U. S. Circuit Court, District of Maryland, 1845.— 8 Law Bep. 77.] Ceiminal Law — Oesteuotion of the Mail. — A warrant in a civil suit against a mail carrier is no justification to the officer executing it, on an indictment for obstructing the mail. United States v. Harvey. 541 James Harvey was indicted at the April term, 1845, of the Circuit '''^J Court of the United States for the district of Maryland for an illegal detention of the mail. The indictment charged, in the first count, " that the said Harvey did, on the 13th day of December, 1844, at the district aforesaid, knowingly and wilfully retard the progress of the mail of the United States, con- trary to the form of the act," etc. The second and third counts charged that said Harvey did arrest and detain a certain Stephen B. Miles, then and there being a carrier of the said mail, and then and there being in the due execution of his duty as such carrier, and thereby did, knowingly and wilfully, retard the passage," etc. It appesfted from the evidence that the traverser was a consta- ble of Harford County, Maryland j that he had arrested the car- rier by virtue of a warrant in an action of trespass qu,are clauswm fregit, issued by, and returnable before, a justice of the peace of said county; that said justice had jurisdiction in the case; and that the carrier was actually engaged in carrying the mail at the time of the arrest. The traverser took the carrier to the justice, who lived near the route he was traveling. The traverser was ignorant of the law of Congress, and did not detain the carrier longer than was necessary for the execution of the warrant. The detention was but a short time, and the carrier got to the next office (Bel-air) at his usual hour. Upon these facts the counsel for the traverser prayed the court for the following instructions to the jury : (1) That the trav- erser, being a ministerial officer, was justified by the warrant in making the arrest. (2) That if the warrant did not justify the arrest, yet the traverser, being ignorant of the law of Congress, and having acted bona fide throughout, according to what he conceived to be his duty, did not "knowingly and wilfully" obstruct the passage of the mail according to the sense in which the latter term is used in the act. In support of the first prayer he cited Act of Assembly of Maryland, 1715, c. 15, § 6 ; Sewell on Sheriff, 46 Law Lib. 98, 99, 437; Watson on Sheriff, 7 Law Lib. 53, 99. 131 ; Tarl- ion V. Fisher, 2 Doug. E. 671 ; Petersdorff on Bail, 10 Law Lib. 130; Nkoh v. Thmnas, 4 Mass. 234; Sanford v. Mcols, 13 Mass. 288 ; Sperry v. Willard, 1 Wend. 32, 33 ; Secor v. Bell, J 8 Johns. 52; Ray v. Hogeboom, 11 Johns. 433; Common- 542 United States v. Harvey. wealth V. Kennard, 8 Pick. 137; Ontario Bank v. Hallett, 8 Co wen, 193, 1 94 ; 6 Gill & Johns. E. 412 ; United States v. HaH, 1 Peters C. C. 390. In support of second prayer, he cited Dwarris on Statutes, 9 Law Lib. 658-695, 702, 736, 737, 738, 743, 756. To show the legal '•'"^ sense of the term "wilfully," he referred to 2 Russell on Crimes, 594, 597, 631, 5th Am. ed. ; 6 Binn. 261 ; Hawkins' Pleas of the Crown, Book 1, c. 69, § 2; 3 Burn's Just. 251; McNally's Ev. 635. The counsel for the prosecution relied upon United States v. Barney, reported in 3 Hall's Law Journal, 128. The counsel for the defendant, in reply, contended that the case cited from Hall's Law Journal was not analogous. It was the case of an innkeeper detaining horses employed in carrying the mail, for feed furnished. The defendant in that case was not a ministerial officer. There was no warrant directing him to detain the horses. He detained them by his own voluntary act. William L. Marshall, district attorney, for the United States. Coleman Ydlott, for the traverser. After hearing the argument on the prayers, the court (Taney, C. J., and Heath, J.) adjourned for the purpose of giving the point stated mature consideration. Subsequently, the chief justice delivered the following as the opinion of the court: — Taney, C. J. — The point raised in this case is one of great interest and importance. The only decisions which appear to have been made in reference to the liability of mail carriers to arrest are those reported in 3 Hall's Law Journal, 128, and 1 Peters' Cir. Court Reports, 390 ; the first given by Judge Win- chester, in the United States District Court for the Maryland district ; the second, by Judge Washington, in the United States Circuit Court for the circuit of Pennsylvania. These decisions seem to some extent conflicting. Regarding them in this light, we feel it our duty to follow the views expressed by Judge Win- chester, the very distinguished judge who presided in the Dis- trict Court of Maryland, and who was therefore virtually our predecessor. We do not consider the warrant a justification to Farmees' & Mechanics' Bank v. Stiokney. 543 the officer. Yet the mere serving of the warrant would not render the party liable to an indictment under this law. But if, by serving the warrant, he detained the carrier, he would then be liable. "We do not construe the term " wilfully " in the same sense as the traverser's counsel. If the traverser, by serving the warrant, detained the carrier, then he " wilfully " detained him in the sense that word is used in the act of Congress. The jury found a verdict of guilty, and the traverser was fined one dollar and costs. Note. Obstkuctihg the Mail by Abbest of Caeeier.— Civil process will fur- nish no justification lor the arrest of a person carrying the mails, But the rule is different as regards criminal process. (See U. S. v. Klrby, 7 Wall. 487, citing above case and approving this doctrine ; and Xf. S. v. Three liailroad Gars, 1 Abb. TJ, S. 203, where the same is discussed and questioned.) THE FARMERS' & MECHANICS' BANK v. WM. STICKNEY ET AL. [U. S. Circuit Court, District of Massachusetts, 1845. — 8 Law. Eep. 161.] Agesct — LiABiun OP Pbisgipal. — A principal is liable for drafts drawn by an agent after the expiration of his authority, to pay for prior purchases, duly authorized. Debtob and Ceeditob — Application of Patmbnts. — Where an assignee of certain drafts, in trust for the payment of debts incurred thereon, recovers on some and not on others, the amount recovered should be applied pro rata to the several drafts. This was an action of assumpsit on three bills of exchange, drawn by one Orkin Rood upon the defendants, in favor of Lewis Rood or order, November 22, 1838 ; one for $2,000 and one for $4,000, both payable in three months, and one for $4,000, pay- able in four months. The drafts were refused acceptance by the defendants; and this suit was brought by the plaintiffs as indorsees, to recover the amount of the bills of exchange, upon the ground that they were drawn by Rood for the benefit, and by the authority of the defendants, and were discounted by the plaintiffs upon the credit of the defendants. The declaration contained special counts upon a promise to accept- the bills; and also the money counts as for money advanced and paid for the use of the defendants. The general issue was pleaded . 544 Farmers' & Mechanics' Bakk v. Stickney. At the trial, it appeared, among other evidence, that Rood, the drawer, was employed by the defendants in the spring of 1836, to purchase upon their account large quantities of butter and cheese, not exceeding certain prices, and that the agency was to end early in the month of November of the same year. Eood made purchases to a large amount under this agency, which he paid for in part by cash furnished by the defendants, and in part by the proceeds f***^ of drafts, drawn by him on the defendants, and discounted by the plaintiffs. All of these drafts were accepted and paid by the defendants, except the three upon which the present action was founded. The latter were drawn after the expiration of the agency, the extent of which, according to evidence in the case, was communicated to the president and one or more of the directors of the bank; but there was also evidence to show that the two drafts of $4,000 each were to pay for the purchases of butter and cheese, actually made before the agency expired. The draft of $2,000 was in fact specially authorized by the defendants, for the purpose of procuring money to be sent by Rood to the defendants for another purpose ; but the let- ter containing this authority was not shown by Eood to the plaintiffs. He stated to them that the draft was required for payment of amounts due on old bills, for the purchases made under the agency, which, in fact, was untrue. Soon after dishonor of the drafts, Eood brought an action in the Circuit Court in Boston, against the defendants, for the supposed balance due him under the agency, and also for dam- ages sustained by reason of the dishonor of the drafts, which suit was ultimately referred to arbitrators. On the 24th of Decem- ber, 1836, Eood made an assignment to the plaintiffs, which, after reciting that he owed them $10j000 or thereabouts upon the three drafts, proceeded to assign to the bank the claims of Eood against the defendants, in trust, to apply the proceeds, after deducting expenses, "towards the payment and satisfaction of all moneys due or owing from the said Eood to the said Farm- ers' and Mechanics' Bank," and to pay the balance, if any, to Eood or his assigns. There was also a clause, giving authority to the bank to prosecute the suit, or any other suits to recover the demands assigned. The proceedings before the arbitrators were conducted by persons employed by the bank. In June, Faemers' & Mechanics' Bank v. Stickney. 545 1840, the arbitrators awarded the sum of $4,962.35, as due by the defendants to Eood. In the proceedings before the arbi- trators, no credit was, given to the defendants for the drafts so dishonored, and no credit was claimed by them therefor. The defendants contended, (1) that the award and proceed- ings under the arbitration by the plaintiffs were an estoppel of their demands in the present suit; (2) that Rood had no authority to draw the drafts on the defendants now in contro- versy, so as to bind them to accept and pay the same ; (3) that the bank did not discount the drafts on the credit of the defend- ants, but solely on the credit of Rood and the payee ; (4) that the evidence did not establish that the drafts were drawn in order to pay for butter f^**^ and cheese purchased for the defend- ants ; (5) that the defendants, at all events, were not liable for the draft of $2,000, as the same was not drawn in jjursuance of the authority given by the letter before referred to, but was drawn upon a false statement made by Rood. The court afber summing up the evidence applicable to these points, left the case to the jury upon the evidence, with the sug- gestion that upon the first three points the evidence seemed to preponderate in favor of the plaintiffs, and, as to the fifth point, that the defendants were not, upon the admitted facts, liable upon the $2,000 draft. Upon this suggestion, the counsel agreed that the jury should give a verdict for the plaintiffs in the sum of $10,000 ; and that it should be referred to an auditor to settle the exact amount, according to the suggestion of the court ; and that the verdict should be amended accordingly. The case was referred to George T. Curtis, as auditor, Avho, after hearing the parties, reported the amounts due upon the sev- eral drafts, and also the amount of the award, deducting the costs and expenses. The report stated further, that the plaintiffs' counsel claimed the right to appropriate the money received under the award, after deducting the charges, being $3,823.48, first to extinguish the draft for $2,000, and then to apply the balance towards the two drafts found hj the verdict, as due from the defendants to the plaintiffs; and that, to show that the plaintiffi had never made any appropriation inconsistent with their present claim, the plaintiffs called several witnesses, who were objected to by the defendants. Their evidence was reported Bbtoj. C. C— 35. 546 Farmers' & Mechanics' Bank v. Stickney, by the auditor, and was to the effect, that the president or directors had never directed any appropriation of the payments under the award, and that the entries were made by the cashier, without any authority from the other officers, simply to show how much was due to the bank. The case now came on to be heard upon the auditor's report. Choate, and Orovminshield, for the plaintiffs. C. G. Loving, and S. Bartlett, for the defendants. Story, J., afterwards delivered tae opinion of the court. He said that, although the question respecting the correctness of the charge to the jury, upon which the draft of $2,000 was disal- lowed, was not open upon the present report, yet, if it were, he remained of the same opinion which he then expressed. The ground upon which the defendants were held liable for the two drafts of $4,000 each was, that they were drawn under the authority given to him f*"*^ by the defendants, for the payment of debts incurred in purchases for them, and advances made by the bank with a full knowledge of his authority. But at the time the draft of $2,000 was given, the authority had expired, and the bank knew the fact. The new draft was not obligatory upon the defendants, unless drawn in conformity with some new authority. It was not drawn in pursuance of such new author- ity, for the letter of the defendants was never shown to the bank. The original authority was limited to the amount of purchases made before the expiration of the authority. This limitation was known to the bank, and they, consequently, could not bind the defendants by any discounts, after the original authority had expired, except so far as the same were necessary to pay for the purchases, made before the expiration thereof. The draft of $2,000 was not required for any such purchases so made, and the defendants ought not to be bound by it. The remaining question was, how was the money received under the award to be appropriated? It was to be applied pre- cisely as required by the terms of the assignment. The law made no appropriation different from the intention of the parties. By that assignment, the expenses were to be first deducted, and the balance only applied to the discharge of all the debts con- Perry Manuf. Co. v. Brown. 647 templated in the assignment, which ^vere the three drafts now in suit. The balance must be applied to all the debts, and conse- quently must be applied pro rata. Four fifths were to be appropriated to the two drafts of $4,000, and one fifth to the draft of $2,000. To the suggestion, that an actual appropriation was made by the cashier, there were two answers, either of which would be decisive against it. First. No such appropriation was authorized by the directors, and without their authority no such appropria- tion could be validly made by the cashier ; and, in fact, the cashier testified that he himself never intended to make any appropria- tion. Second. Under the a.ssignment, no such appropriation could be made, unless by the positive consent of both parties, dispensing with, and recalling the original appropriation made in the assignment. The result of the opinion of the court was, that the defendants were liable upon the two drafts of $4,000 each, with interest from maturity, until the receipt of the money under the award. The expenses were then to be deducted from the award, and four fifths of the balance ($3,823.48), were to be credited against the amount of those drafts. Upon the balance of the two drafts, after such deduction, the plaintiffs were entitled to interest up to the time when the verdict was rendered. THE PERRY MANUFACTURING CO. v. BROWN, HARRIS, ET AL. [U. 8. Circuit Court, District of Massachusetts, 1847. —9 Law Bep. 542.] CosT3, What Eecotebaele ab. —Where five members of a eopartnersliip were sum- moned as tniBtees, and four of them signed and made oath to a special answer, on which they were discharged, several costs of travel and attendance were allowed to the four, but not for counsel fees. In each of these cases, Francis Skinner and four others were summoned as trustees, described as " partners in trade, under the firm of Francis Skinner & Co.," and notified in the writ that they were "summoned as such partnership, and not as individuals." 548 Peeey Manuf. Co. v. Browht. At the return day, their counsel entered five separate appear- ances, and filed five separate general answers, by attorney, in each case. A single set of special interrogatories was then put to the trustees, ^^*"^ with this caption: "Interrogatories addressed to Francis Skinner and others, summoned as trustees under the firm of Francis Skinner & Co., to which their single joint answer by any one member of the firm will be sufficient." To these, the trustees filed a single joint answer, signed " Francis Skinner & Co. by Francis Skinner," and sworn to by Mr. Skin- ner. The trustees afterwards put in a further voluntary answer, stating facts to which they had not been interrogated', and signed and sworn to by four of the five members, one being out of the coinmonwealth. On this answer they were dischargedj and their counsel clairiied ten several bills of costs, viz. : five in each case, which, with counsel fees claimed, amounted to a little more than two hundred dollars. This was resisted by the plaintifis' c6unsel, who contended that the cOsts Should be joint in each case. Charles P. Ouirtis dted Rev. Stat, of Mass. c. 109', § 49, adopted as a part of the rules of practice in the Circuit Court, to this effect : " If a:ny person, summoned as a ti-ustee, shall appear at the first term, and submit himself to an examination upon oath, he shall be allowed his costs fo-r travel and attendance, and such further sum, as the court shall think reasonable, for his counsel fees and other necessary expenses." He contended that this statute was peremptory, and ensured costs to each person, making no provision for a partnership, which is not a person. There is a special provision for corporations. B. H. Dana, Jr., for the plaintiffs, contended that this statute, having only the force of a rule, in the Circuit Court, was not peremptoiy, but dii^ectory, and addressed itself to the discretion of the court. If the plaintiffs clearly confined themselves to the joint debt, and required only the answer of one member of the firm, the attendance and answers of the others were nnnecessary, and ought not to entitle them to several costs, any more than would several pleas nnnecessarily put in by joint defendants. They becoine, in fact, one party. There is no decision of the Supreme Court of the State on this point, but it is because the practice is uniform, and recognized in the State courts. There Pehry Mandf. Co. v. Brown. 549 was also an agreement among the members of the Suffolk bar, several years ago, to which the trustees' counsel was party, to tax but one bill in a case like the present. Mr. Curtk replied that the agreement referred to was made before the plaintiffs' counsel came to the bar, and as he was not a party to it, he was not entitled to the benefit of it. Also, the agreement was no longer in force, as the association of the bar was dissolved. He doubted the uuiformity of the practice, and suggested '^**^ that, so far as it existed, it probably had its origin in the agreements of the bar. Speague, J., intimated an opinion in favor of several costs, but was willing to hear evidence as to the practice in the courts of the State. The case was accordingly postponed for that purpose. Speague, J., at a subsequent day, gave the following opinion : The statute seems to me to be peremptory. It says "any per- son," while the statute regulating costs between principals, uses the term "party." In the latter case, it becomes a question, whether or not certain persons, joined as defendants, are or are not one party. This statute takes no cognizance of anything but persons and corporations. A partnership is not a person. It is contended that the statute, being only a rule in this court, is directory, and addressed to our discretion. Still, we must con- strue it according to its terms, and these seem to me distinct. The notice given by the plaintiffs, in their writ, is sufficient to confine their attachment to the joint debt ; yet this does not excuse the trustees from appearing, according to the exigency of the writ, and submitting themselves severally to examination, under oath, as to the joint debt. One may know what another does not. The plaintiffs have a right to the answer of each, as to the joint debt. In this case, the plaintiffs have several answers, and agree to receive the answer of any one of the firm ; but this does not excuse the others from attendance. They have no leave to go out of court. All are liable to be charged, on the answer of one; and if charged, each is liable, ultimately, to a judgment upon scire facias against his private property and his body. I think each trustee must remain in court until he is discharged, or a discontinuance is entered against him. If so, he should have 550 Buck v. Cobb. his costs for attendance. He also has a right to put in a separate answer, if he pleases, notwithstanding the notice. The evidence, as in the practice in the State courts, has been before me, and I must consider it proved that the practice in Suffolk, Middlesex, and probably all the other counties, is to allow but one bill of costs in a case like the present. This is, however, a custom of the clerks and the gentlemen of the bar, arising perhaps from courtesy or agreement. It has never been officially recognized, nor has the statute ever been solemnly passed upon, by the Supreme Court. It appears that Chief Jus- tice Williams decided, in conformity with the practice, in the court of common pleas ; but the case was not reported, and that learned judge is not able to refer us to the name or date of the case. There may have ^^^^^ been circumstances in the case, not now recollected, which would not make it conform altogether to the present. Moreover, so long as this decision, as well as the practice, is liable to be revised and perhaps reversed by the higher tribunal, I feel bound to follow ray own judgment. Whereas, if the exi-sting practice had been solemnly recognized and established by the highest tribunal in the State, I should prefer to follow it, forthe sake of uniformity of practice, although not legally binding in this court. As one of the trustees did not sign the special answer, being, as appears, out of the commonwealth, his costs will be disal- lowed. The other trustees are adjudged several costs, in each case, for travel and attendance, but not for counsel fees. BUCK ET AL. V. COBB ET AL. [V. S. Circuit Court, District of New Tfork, 1847. — 9 Law Rep. 645.] Patent— Injunction Against Agent Selling Infbingement. — ^An agent who merely sella an article which is an infringement of a patent, is a joint trespasser with the manufacturer of the same, and an injunction will lie as well against the former as the latter. Pasties, TO Bill to Eesteain Ixfeingement.— A person interested in a patent though not within the particular district in which the suit is brought, may be made a party to a bill to restrain infringement in such district. Buck v. Cobb. 551 Injunction to Bestrain Intkinqement, When Gbanted. — An exclnsiTe possession of long duration under a patent is ground for granting an injunction to prevent an infringement, without obliging the patentee previously to establish his right at law. This was a motion for an injunction, argued before the Hon. Alfred Conkling, district judge of the United States, for the northern district of New York, at his chambers, in the village of Auburn, on the 7th and 8th days of December, 1846. The complainants filed their bill, setting forth that previously to the 20th of May, 1839, the complainant. Buck, was the inventor of improvements in a cooking stove, for which he, on that day, obtained a patent. Copies of the letters patent and specification were annexed. The specification claimed as the invention, the extending of the oven under the apron, or open hearth of the stove, in combination with reverberating flues for conducting the heat, etc., under the oven into a hot air chamber, in front of the oven under the hearth. The stove made accord- ing to this patent is known as Buck's cooking stove. The bill further set forth that the improvements were put into use soon after the patent was obtained, and were useful and of great value, and a source of profit to the patentee. The bill was accompanied by various affidavits, setting f**"^ forth the title of the complain- ants and the infringement of the patent by the defendants. It appeared from them that the complainants were the joint owners of the patent for the whole United States, although the com- plainant Buck had no interest in the same within the city and county of Albany, and that the defendant Cobb was engaged in the city and county of Albany, in manufacturing stoves of a patent known as Hermance's patent, claimed to be made under a patent obtained by one John C. Hermance, later in point of time than Buck's patent, which stoves the defendant Her- mance was engaged in selling in various parts of the country. Those stoves, as the complainants alleged, embraced the improve- ments patented by Buck, and were a violation of his patent. It further appeared that an action at law in the Circuit Court of the United States, for the northern district of New York, had been instituted against the defendants, for a violation of Buck's patent, which was tried at Albany, in October, 1845. But the jury did not agree upon a verdict. Another trial was had at 552 Buck v. Cobb. Albany, in October, 1846, and the jury again failed to agree. The complainants had already incurred in prosecuting the litiga- tion some twelve hundred dollars of costs, and had paid out four hundred and fifty dollars for counsel fees. It also appeared that in July, 1846, an injunction had been granted by the Cir- cuit Court of the United States for the district of Ohio, restrain- ing certain parties from making stoves embracing a part only of the improvements patented by Buck. The bill prayed for an injunction. The defendants resisted the motion for an injunction on sev- eral grounds, and contended: 1st. That they were not joint trespassers, and not liable to be jointly sued, Hermance selling only as agent stoves manufactured by Cobb, and having no interest whatever in the stoves made and sold. 2d. That Darius Buck, not being interested in the patent within the city and county of Albany, was improperly joined as a complainant in the bill. 3d. That Buck was not the original inventor of the improvements patented by him, but that the Hoxie stove and the Hathaway stove, which were in use before his patent, com- bined all the improvements patented by Buck. 4th. That the specification did not describe the invention in sufficiently full, clear, and exact terms. 5th. That the stoves made under Her- mance's patent were not a violation of Buck's patent. 6th. That the patent of Buck had not been enjoyed quietly and without question long enough to entitle the complainants to an injunc- tion, and that under the circumstances of this case they could not have any injunction until they obtained the verdict of a jury in favor of the patent. [S4T] jiQ^ffian X. Joiee, and William H. Stewart, for the complainants. David WrigM, for the defendants. CoNKLiNG, J., overruled all these objections, and granted an injunction restraining the defendants from violating Buck's patent, by making or selling stoves under Hermance's patent. The judge held : 1st. That the defendants were properly sued jointly. 2d. That Buck being interested in the patent within the United States, though without the city and county of Buck v. Cobb. 553 Albany, was interested in protecting himself against the sale out of the city and county of Albany of stoves manufactured there, in violation of his patent, and therefore was properly joined as complainant in a bill to restrain the manufacture of such stoves in the city and comity of Albany, or at least that the objection made to joining Buck as a complainant was not important to be considered on this motion. 3d. That Buck was the original inventor of the improvements patented by him, and that the Buck stove was wholly dilferent in principle and in construction from both the Hoxie stove and the Hathaway stove. 4th. That the specification was sufficient. 5th. That the stoves made under Hermance's patent were a violation of Buck's patent. The judge had no doubt on this point, and said, that both himself and Mr. Justice Nelson were very much surprised on the first trial that the j ury did not bring in a verdict for the plaintiffs. 6th. That the complainants had endeavored in good faith to obtain the verdict of a jury in their favor, on a trial at law against the defend- ants, and had done all in their power at a great expenditure of money and loss of time to effect that object ; that meantime they had lost opportunities of selling out rights in the patent, for no one would buy while the patent was in litigation ; that half of the lifetime of the patent was already gone, and the defendants were undoubted infringers, and that under those circumstances, and with the strong disposition manifested of recent years by the courts of the United States to regard patents and patentees more and more with a favoring eye, and to do all in their power to secure to inventors the rewards of their genius against the incur- sions of pirates, the patent itself must be held to be prima fade evidence of all the complainants claimed under it, and the burden of overthrowing it must rest upon the defendants. And so the injunction was granted. Note. Liability fob Selling Isfbingement. -r-Pereons making sales for the owner of an infringement are rendered personally liable aa infringers. {Potter v. OroweU, 1 Abb. C. 0, 90, citing case in text,) 554 United States v. Lockman. WEBB ET AL. V. BOWERS et al. [U. S. Circuit Court, District of MassacliuBett, 1847. — 11 Law Bep. 84.] Costs, on Injunction fob Infeingement or Copteioht. — Where an injunction is refused, but the plaintiff still has a right to proceed at law, if the plaintiff stipulate not to proceed at law, costs will not be awarded to either party. Rule in relation to costs. The complainants had brought a bill in equity against the respondents for an alleged infringement of copyright. The case having been referred to the master at a former term was argued on his report, and the court refused to grant an injunc- tion, but ordered the case to be continued to enable the com- plainants to bring a suit at law if they saw fit. The respondents moved that the bills be dismissed with costs, but Woodbuey, J., hM, that the case seemed to come within one of the exceptions to the general rule, that costs must go with the prevailing party. The exception was that where the remedy in equity was refused, and yet the party plaintiff might proceed at law, costs would not be allowed. But the complainants must stipulate that they will not proceed at law or costs will be allowed. It was ordered that costs should be refused to both parties if the complainants should, within ten days, enter a stipulation not to proceed at law. UNITED STATES v. LOCKMAN. [V. S. Circuit Court, District of Massachusetts, 1848. — 11 Law Bep. 151.] MiNOE — Ceiminal Liability of, on Boakd Vessel. — A minor who ships on board a vessel without the knowledge of his parents may be convicted of the offense of burning a vessel on the high seas. Evidence in Ceiminal Cases, Weight of. — On an indictment for setting fire to a vessel on the high seas, the mere possibility that the Are might be occa- sioned by spontaneous combustion, or by accident, is no answer to strong prob- able evidence against the prisoner ; in criminal oases a jury must act on strong probabilities, risss] This indictment charged that Lyman Lockman, on the 20th of April, 1848, "on the high seas, did wilfully and cor- ruptly burn the ship William, Tlwmpson, of New Bedford, he, the said Lockman, then and there being a mariner on board United States v. Lockman. 555 thereof, and belonging to said ship William Thompson. And the said ship ^Villiam Thompson being the property of citizens of the United States, and said Lockman not being an owner of said ship." It was founded on the Statute, 1804, c. 40, § 1, which provides that " any person not being an owner who shall, on the high seas, Avilfully and corruptly cast away, burn, or otherwise destroy any ship or other vessel unto which he belongeth, being the property of any citizen or citizens of the United States, or procure the same to be done, and being thereof lawfully convicted, shall suffer death." The fire took place at the Sandwich Islands. It appeared that the vessel, which was a whaler, in April, 1847, a few hours after she set sail for the northwest coast, at about nine or ten o'clock in the evening, was found to be on fire in the forehold. She was taken back into port and found to be considerably damaged by fire. In a few weeks she was repaired and went on her voyage. Several of the crew were seized and charged with the offense, but on examination before the consul, Lock- man was sent home to be tried, with two witnesses against him. The vessel arrived at New Bedford the 1st of April, 1848. Charles L. Woodbury, for the United States. Charles M. EUis, for the prisoner. It was Testified on the part of the government that a grating which separated the forecastle from the forehold, where the fire was, had been broken ; that the forehold had in it a great deal of old junk, rigging, tar, etc. ; that the prisoner was seen work- ing at the bulkhead, and creeping out of the forehold through the hole; that the prisoner had said "that he had been in the forehold ; that he had got some tar and rope-yarn in a sack, and would burn the ship before he would go to the northwest coast in her; that he had tried to fire the ship before, but he had only two matches, and they would not go " ; that after the fire he had said that " he wished he had a spade, and he would cut off the captain's head"; that after the fire, the prisoner '^^'^ having been flogged to make him tell what he knew about it, he said, in reply to the question if he knew who did it, " that he did 556 United States v. Lockman. not know anything else." It also appeared that the vessel had been previously on fire, and that at that time the prisoner was confined, and two others of the crew were sent home charged with that offense; that the conduct of the captain was harsh; that the crew were also dissatisfied with their grub, and said they wished the vessel sunk or burned before they had to go in her. It was further shown that the owners acted as citizens of the United States. On the part of the prisoner it was testified that there were great complaints among the crew of the William Thom/paon^ that they were generally dissatisfied ; that several had been heard to say they would throw the captain overboard or sink the ship before they would go on to the northwest in her ; that Lockman was under age, not twenty; that he shipped without the knowl- edge or consent of his father; and that he was quiet and orderly on board ship. The court desiring the questions of law in the case to be stated, the counsel for the prisoner contended that the evidence did not support the indictment, the evidence being that the prisoner was brought into the United States prior to the time alleged in the indictment ; that there was no legal contract bind- ing the prisoner to service in the ship, and therefore he did not belong to the ship under the statute, which did not apply to passengers, persons from other ships, or the owner, but only to those holding a certain relation, that of the ship's crew; that the property of the ship could not be shown without the bill of sale, the vessel having been built by persons not then owners of her; and that the citizenship of the owners could not be shown, except by proving their birth or legal naturalization; and that the only burning punishable under the act must amount to a substantial destruction of the ship, such being the force of the words "otherwise" and f^or" in the act, and its necessary grammatical construction; that the act was the same as if it read "shall destroy by casting away, burning, or any other means " ; that this appeared also from the statutes from which this act is framed, and because the statutes, when intended to apply to cases of mere setting on fire, used appropriate language; and that the cases of DeLondo, 2 East, P. C. c. 1098; and United States v. Johns, 1 Wash. 0. C. 363 ; I»^' S. C. 4 Dall. Uniteb States v. Lockman. 557 412, being upon the same words, should be held to apply to this point. On the part of the government it was argued that the time was immaterial J that no proof of ownership or citizenship was l from threats, preparation, and previous character, to have been guilty of this offense. Who had come from the house of refuge? The captain and consul were men of sense, and the jury would consider who was charged and sent home for trial, and if it was not likely that he was the guilty one. If the jury were satisfied, from the strong probabilities of the case, that all pointed to but one per- son, they should make an example of him. It might be pain- ful to discharge their duty. But if the jury found the prisoner guilty, it was doubtful whether the law could reach this horrid case. This case was infinitely worse than any crime on land. McElkath v. McIntosh. 559 There were no alarm bells, no engines, no neighbors to help. The jury, whilst they thought of the prisoner, must think of the thirty souls on board ship on that awful night. His honor dwelt on the case of the Caroline, the ill-fated ^'^^^'^ Lexington, and others. There could be little doubt that the prisoner would never suffer the extreme penalty of the law, for the executive would undoubtedly pardon. The jury in a few moments, on the second ballot, agreed upon a verdict of not guilty. HUGH D. McELRATH v. BETSEY McINTOSH et al. [U. S. Circuit Court, District of Columbia, 1848.— 11 Law Kep. 399.] GovEKNMENT Ofpicers — PowEK OF CouBTS TO Enjoih. — The oourts of the United States have no authority to enjoin the officers of the government against per- fonning any merely ministerial act, nor will a mandamus lie to the head of an executive department to compel the performance of an act not merely minis- terial, but involving the exercise of judgment. [400] 'p]jjg -^yag a, bill for an injunction to prevent Betsey Mcintosh from receiving, and the secretary of the treasury and the second comptroller from paying, to her more than one half of her claim of $7,680, awarded to her under the Cherokee treaties of 1817 and 1819. The parties were Hugh D. McElrath, complainant, and Bet- sey Mcintosh, of the Cherokee nation, residing in the Indian territory west of the Mississippi, John H. Eaton, of Washing- ton, D. C, and the secretary and second comptroller of the United States treasury department. The bill stated in substance that the respondent, Betsey Mcintosh, a white woman, born within the United States, removed to and dwelt in the Cherokee nation of Indians, where they were residing east of the river Mississippi, and became the head of an Indian family, and thereby became entitled under the treaties of 1817 and 1819, between the United States and the Cherokee nation of Indians, to a reservation of six hundred and forty acres of land, including her buildings and improve- ments, by electing to remain in the United States and become a 660 McElrath v. McIntosh. citizen thereof, and by filing her name accordingly in the office of the Cherokee agent of the United States in due form, as required by the eighth article of the said treaty of 1817. And afterwards, under the treaty of the 29th of December, 1835, concluded at New Echota, and the supplementary articles of 1st March, 1836, she removed with the Cherofcees to their country west of the river Mississippi, on Arkansas and White Rivers, and became entitled to compensation in money for her reserva- : tiou of six hundred and forty acres of land and improvements, to be adjudicated by commissioners appointed by the United States, according to the seventeenth article of the said treaty of New Echota; whose award in favor of the claimants is, by the said treaty, declared final against the United States, and to be paid to the several and respective claimants, upon the certificate of the commissioners of the amount due to the several claimants. [401] I^otwithstanding which, in January, 1845, she had received nothing for her reservation of six hundred and forty acres of land and improvements thereon, and she then employed the complainant, McElrath, to attend to and prosecute her claim, and engaged to pay him a commission of one half of whatever sum might be awarded to her, and accordingly exe- cuted a power of attorney to him on the 9th of January, 1845. This power Avas duly acknowledged and certified. The bill further stated that the complaiinant, by virtue of the authority contained in that power to employ an attorney under him to prosecute the claim., employed the defendant, John H. Eaton, and agreed to give him for his services and agency in the matter one half of the compensation which the defendant, Betsey, had stipulated to give to the complainant, and to that end and effect executed and delivered to the defendant, Eaton, a writing and power. The bill further alleged that by the agency of the complain- ant and the defendant, Eaton, an award was made by the board of commissioners, on the day of May, 1847, in favor of the defendant, Betsey, for the sum of $7,680, and duly certified by the said commissioners, whereby the complainant and said Eaton became entitled to one half of said sum. That when the certificate of the commissioners was first pre- sented for payment, the second comptroller refused to pay, MoEleath v. McIntosh. 561 pretending '***' that the appropriations which had been made by Congress for carrying into effect the treaty of New Echota did not embrace Betsy Mcintosh's case; and therefore the com- plainant's attorney, J. H. Eaton, applied to Congress, who passed the resolution approved 14th March, 1848, in her favor. That upon presentation of the certificate of the commissioners in favor of the defendant, Betsey, her power of attorney and con- tract therein contained, and the power given by the cofnplainant to Eaton, the second auditor of the treasury, issued a certificate in favor of the said Eaton for $3,840, being one half the award in favor of the defendant, Betsey ; but when that was presented to the second comptroller of the treasury he refused to approve and certify it, and yet continues to refuse, under the pretext that a general order made by the secretary of war in October, 1846, (Exhibit B.), inhibits any money being paid under this power of attorney, and so the complainant is obstructed from receiving as the attorney of the defendant, Betsey, either the whole sum due to her, or his part thereof, and the secretary of the treasury refuses to cause the said certificate to be paid, notwithstanding the appropriation for that purpose remains unexpended. That the power of attorney to the complainants was coupled with an interest, and cannot be revoked by the said Betsey, nor abrogated, nor impaired by the executive officers of the govern- ment, nor even by the Congress of the United States. That Betsey Mcintosh is a white woman, a native citizen of the United States, although residing in the Cherokee country, and therefore not within the order of the secretary of war, which contains the following clause : " Should any Indian or Indians, however, notwithstanding the above determination [to discoun- tenance the practice of obtaining powers of attorney from Indians], persist in giving powers of attorney, no part of the sum which may be recovered thereupon will be paid to the persons holding them, except such an amount as, under the cir- cumstances of the case, may appear to the department to be a fair and just compensation for their trouble and expense. The remainder will, in all cases, be remitted to the agent or sub-agent for payment to the Indian claimant in person." The bill further stated that the secretary of war had thought fit to make his own valuation of the services of the defendant, Bkxik. C. C — 36. 662 McElhath v. McIntosh. [4o»] Eaton, as the agent and attorney of the defendant, Betsey, and upon his valuation of those services had caused to be paid to the defendant, Eaton, as the attorney of the said Betsey, between one and two thousand dollars, which he received, not in full for his services, but only because the department would pay no more, and therefore he was unwillingly compelled to receive a part only. That application had been made to the defendant, Betsey, to renew or re-execute the power of attorney to the complainant, or to execute a power to the complainant to receive at the treasury of the United States his part of the sum contracted to be allowed to him, and now due to him and to the attorney, J. H. Eaton, which the defendant, Betsey, has declined to do. That the power of attorney, and the agreement and stipula- tions therein, were given by the defendant, Betsey, and received by the complainant with the intention that they should create, and under the belief that they did create, a specific lien, security, and assignment of one half of the demand of the said Bet- sey, and of one half of the money which should be allowed her by the United States for her reservation of land; and the com- plainant positively avers that without such security he would not have adventured his time, money, and services for the said Betsey, who resided with the Cherokee Indians in the far west, had but very little property except her said claim, and that property, so in her possession and visible, was not to be reached by any compulsory process from any court. State or federal, of the United States ; that it was well understood by the defendant, Betsey, that the complainant would not undertake to prosecute her claim solely upon her personal responsibility for compensa- tion, but required the lien and security by the specific authority to receive the money ; that is, half of the money which should be allowed her for her reservation claim. The bill prayed that Betsey Mcintosh, John H. Eaton, Robert J. Walker, secretary of the treasury, and Albion K. Parris, the second comptroller, may be made parties, and that Betsey Mcintosh might be enjoined from receiving out of the treasury of the United States any more than one half of the said certificate so allowed by the commissioner appointed under article 17 of the treaty of New Echota, until the matters of IMcEleath v. McIntosh. 563 the bill shall be finally heard and decreed ; and '*'**J that the secretary of the treasury and second comptroller be enjoined from paying, or causing or allowing to be paid, unto the said Betsey Mcintosh, the sum of $3,840, less by the sum which has been paid to the defendant, John H. Eaton, etc. f**"^ Cranch, C. J. (all the judges concurring). — The first question iu natural order is that of jurisdiction. It is, therefore, the first which the court will consider. It is understood, as admitted in argument, that if the act intended to be enjoined be not a merely ministerial act, the court has not jurisdiction to enjoin the officers of the treasury against performing it. This doctrine was first promulgated by the Supreme Court of the United States in the case of Marhury v. Madison, 1 Cranch, 165, where Marshall, C. J., says: "If some acts be examinable and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction." And in p. 166 he says: "Where the heads of departments are the political or confidential agents of the executive merely to exe- cute the will of the President, or rather to act in cases in which the executive possesses no constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable." And again, in p. 170, he says: "The province of the court is solely to decide on the rights of indi- viduals not to inquire how the executive, or executive officers, perform duties in. which they have a discretion. Questions in their nature political, or which are by the Constitution and laws submitted to the executive, can never be made in this court." The chief justice then proceeds to show that the act required to be done (the delivery of the commission to Mr. Marbury) was purely a ministerial act, in respect to which the executive had no discretion. In the case of Kendall v. TJnUed States, 12 Peters, 609, Mr. Justice Thompson, in delivering the opinion of the Supreme Court of the United States, says: "Under the first head of inquiry it has been considered by the counsel on the part of the postmaster-general that this is a proceeding against him to enforce the performance of an official duty, and the proceeding 564 McEleath v. McIntosh. has been treated as an infringement upon the executive depart- ment of the government, which has led to a very exten- sive range of argument upon the independence and duties of that department ; but which, according to the view taken by the court of the case, is entirely misapplied. We do not think that the proceedings in this case interfere in any respect whatever [*ii] with the rights or duties of the executive, or that it involves any conflict of powers between the executive and judi- cial departments of the government. The mandamus does not seek to direct or control the postmaster-general in the discharge of any official duty, partaking in any respect of an executive character; but to enforce the performance of a mere ministerial act, which neither he nor the President had any authority to deny or control." Again, he says : " The executive power is vested in a Presi- dent ; and as far as his powers are derived from the Constitu- tion, he is beyond the reach of any other department, except in the mode prescribed by the Constitution through the impeach- ing power. But it by no means follows that every officer in every branch of that department is under the exclusive direction of the President. Such a principle, we apprehend, is not and certainly cannot be claimed by the President. " There are certain political duties imposed upon many officers of the executive department, the discharge of which is under the direction of the President. But it would be an alarming doc- trine that Congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the Constitution ; and in such cases the duty and the responsibility grow out of, and are sub- ject to, the control of the law, and not to the direction of the President. And this is emphatically the case where the duty enjoined is of a mere ministerial character. " Let us proceed, then," he says, " to an examination of the act required by the mandamus to be performed by the post- master-general ; and his obligation to perform, or his right to resist the performance, must depend upon the Act of Congress of the 2d of July, 1836. This is a special act for the relief of the relators, Stockton and Stokes, and was passed, as appears on its face, to adjust and settle certain claims which they had for McElrath v. McIntosh. 565 extra services, as contractors for carrying the mail. These claims Avere, of course, upon the United States, through the postmaster-general. The real parties to the dispute were, there- fore, the relators and the United States. The United States could not, of course, be sued, or the claims in any way enforced against the United States, without their consent, obtained through an act of Congress, by which they consented to [4ia] submit these claims to the solicitor of the treasury to inquire into the equity of the claims, and to make such allow- ance therefor as, upon a full examination of all the evidence, should seem right according to the principles of equity; and the act directs the postmaster-general to credit the relators with whatever sum, if any, the solicitor shall decide to be due to them, for or on account of any such services or contract." Again (p. 611), the court say: "Under this law the post- master-general is vested with no discretion or control over the decisions of the solicitor ; nor is any appeal or review of that decision provided for by the act. The terms of the submission was a matter entirely in the discretion of Congress, and if they thought proper to vest such a power in any one, and especially as the arbitrator was an officer of the government, it did not rest with the postmaster-general to control Congress or the solicitor in that affiiir." Again (p. 613), the court say : " The act required by the law to be done by the postmaster-general is simply to credit the relators with the full amount of the award of the solicitor. This is a precise, definite act, purely ministerial, and about which the postmaster-general had no discretion whatever. The law, upon its face, shows the existence of accounts between the relators and the postoffice department. No money was required to be paid, and none could have been drawn out of the treasury without further legislative provision, if this credit should over- balance the debit standing against the relators. But this was a matter with which the postmaster-general had no concern. He was not called upon to furnish the means of paying such balance, if any should be found. He was simply required to give the credit. This was not an official act in any other sense than being a transaction in the department where the books and accounts were kept; and was an official act in the same sense 666 McEleath v. McIntosh. that an entry in the minutes of a court, pursuant to an order of the court, is an official act. There is no room for the exer- cise of any discretion, official or otherwise; all that is shut out by the direct and positive command of the law, and the act required to be done is, in any just sense, a mere ministerial act." But the case now before the Circuit Court of the District of Columbia is very different from that of Stockton & Stokes. [41S] rpj^jg jg ^^ application upon a bill in equity iiled for an injunction to inhibit the secretary of the treasury and the second comptroller from paying to Betsey Mcintosh the sum of $3,840, less by the sum which has been paid to the defendant, John H. Eaton, so that, including the sum so already paid to him, the one half of the said certificate in favor of Betsey Mcintosh may be held subject to the final decree of this court. This applica- tion is founded upon the supposition that this court may, by its final decree, order the secretary of the treasury to pay to the complainant, McElrath, half the amount of the said certificate, including what has been paid to the defendant, Eaton; for if this court cannot make such a final decree, the injunction, if granted, will be vain and nugatory. This, then, is a question of jurisdiction, and depends upon the question whether the payment of this claim by the secretary of the treasury is an official, executive act, or is purely a ministerial act, as in the case of Stockton & Stokes. The difference between ministerial acts and executive official acts is clearly stated by the Supreme Court in the case of Decatur v. Paulding, 14 Peters, 514, 515. Mr. Chief Justice Taney, in delivering the opinion of the court, says : " In the case of Kendall v. United States, 1 2 Peters, 524, it was decided in this court that the Circuit Court for Washing- ton County, in the District of Columbia, has the power to issue a mandamus to an officer of the federal government command- ing him to do a ministerial act. The first question, therefore, to be considered in this case is whether the duty imposed upon the secretary of the navy by the resolution in favor of Mrs. Decatur was a mere ministerial act. "The duty required by the resolution was to be performed by him as the head of one of the executive departments of the government in the ordinary discharge of his official duties. In McEleath v. McIntosh. 567 general, such duties, whether imposed by act of Congress or by- resolution, are not mere ministerial duties. " The head of an executive department of the government in the administration of the various and important concerns of his office is continually required to exercise judgment and discre- tion. He must exercise his judgment in expounding the laws and resolutions of Congress, under which he is from time to time required to act. f4i*] It rj^he court could not entertain an appeal from the decision of one of the secretaries, nor revise his judgment in any case where the law authorized him to exercise discretion or guide and control his judgment or discretion in the matters committed to his care, in the ordinary discharge of his official duties." Again (p. 616), he said: "The interference of the courts with the performance of the ordinary duties of the executive depart- ments of the government would be productive of nothing but mischief; and we are quite satisfied that such a power was never intended to be given to them. " The doctrines which this court now hold in relation to the executive departments of the government are the same that were distinctly announced in the case of Kendall v. The United States, 12 Peters, 524." Again (p. 516), he said : " We have referred to these passages in the opinion of the court in the case of Kendall v. The United States, in order to show more clearly the distinction taken between a mere ministerial act, required to be done by the head of an executive department, and a duty imposed upon him in his official character as the head of an executive department, in which judgment and discretion are to be exercised. There was in that case a difference of opinion in the court in relation to the power of the Circuit Court to issue a mandamus. But there was no difference of opinion respecting the act to be done. The court was unanimously of opinion that in its character the act was merely ministerial. In the case before us it is clearly otherwise; and the resolution in favor of Mrs. Decatur imposed a duty on the secretary of the navy, which required the exercise of judgment and discretion; and in such a case the Circuit Court 568 McElrath v. McIntosh. had no right by mandamus to control his judgments, and guide him in the exercise of a discretion which the law had confided to him." The same doctrines are affirmed by the Supreme Court in the the case of Brashear v. Mason, 6 How. 100, where Mr. Justice Nelson, in delivering the opinion of the court, says : " We are also of opinion that if the plaintiff has made out a title to his pay as an officer of the United States navy, a mandamus would not lie in the court below to enforce the payment, t**^^ The Constitution provides that no money shall be drawn from the treasury but in consequence of appropriations made by law. (Article 1, § 9.) " And it is declared by act of Congress (3 Stat, at Large, 689, § 3), that all moneys appropriated for the use of the war and niavy departments shall be drawn from the treasury by warrants of the secretary of the treasury, upon requisitions of the sec- retaries of these departments, countersigned by the second comptroller.' And, in p. 101, he says : " In the case of Decatur v. Pauld- ing, 14 Peters, 497, it was held by this court that a mandamus would not lie from the Circuit Court of this district to the sec- retary of the navy to compel him to pay to the plaintiff a sum of money claimed to be due her as a pension under a resolution of Congress. There was no question as to the amount due, if the plaintiff was properly entitled to the pension; and it was made to appear in that case, affirmatively, on the application, that the pension fund was ample to satisfy the claim. The fund, also, was under the control of the secretary, and the money payable on his own warrant. Still, the court refused to inquire into the merits of the claim of Mrs. Decatur to the pension, or to determine whether it was rightfully withheld or not by the secretary, on the ground that the court below had no jurisdic- tion over the case, and therefore the question was not properly before this court on the writ of error. The court say that the duty required of the secretary by the resolution Avas to be per- formed by him as the head of one of the executive departments of the government in the ordinary discharge of his official duties ; that, in general, such duties, whether imposed by act of Congress or by resolution, are not mere ministerial duties ; that McEleath v. McIntosh. 669 the head of the executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discre- tion ; and that the court could not by mandamus act directly upon the officer, and guide and control his judgment or discre- tion in matters committed to his care in the ordinary discharge of his official duties. The court distinguish the case from Ken- dall V. United States, 12 Peters, 524, where there was a manda- mus to enforce the performance of a mere ministerial act, not involving on the part of the f*^*^ officer the exercise of any judgment or discretion. The principle of the case of Mrs. Decatur is decisive of the present one. The facts here are much stronger to illustrate the inconvenience and unfitness of the remedy. Besides, the duty of inquiring into and ascertain- ing the rate of compensation that may be due to the officers, under the laws of Congress, no payment can be made unless there has been an appropriation for the purpose; and if made, it may have become already exhausted, or prior requisitions may have been issued sufficient to exhaust it. The secretary is obliged to inquire into the condition of the fund, and the claims already charged upon it, in order to ascertain if there is money enough to pay all the accruing demands; and if not enough, how it shall be apportioned among the persons entitled to it. These are important duties, calling for the exercise of judgment and discretion on the part of the officer, and in which the gen- eral creditors of the government [to the payment of whose demands the particular fund is applicable] are interested, as well as the government itself. At most, the secretary is but a trustee of the fund for the benefit of all those who have claims chargeable upon it, and like other trustees is bound to admin- ister it with a view to the rights and interests of all concerned. It will not do to say that the result of the proceeding by the mandamus will show the title of the relator to his pay, the amount, and whether there were any moneys in the treasury applicable to the demand ; for upon this ground any creditor of the government would be enabled to enforce his claim against it through the head of the proper department by means of this writ ; and the proceeding by mandamus would become as com- mon in the enforcement of demands upon the government as 570 McEliRAth v. McIntosh. the action of assumpsit is to enforce like demands against individuals." In the case before this court the secretary of the treasury, in executing the resolution of Congress of the 14th March, 1848, was called on by the complainant to pay to him, as assignee of Betsey Mcintosh, one half the sum appropriated by that resolution, less the sum already paid to the defendant, J. H. Eaton. The validity and construction of the power of attorney and assignment set up by McElrath, and the applicability and con- struction of the Act of Congress of the 29th July, 1846, c. 66, f*'^'''^ entitled "an act in relation to the payment of claims," are necessarily involved in the duty required by the secretary of the treasury to execute the resolution aforesaid of March, 1848. It may be observed, also, that the resolution of the 14th of March, 1848, requires the secretary to pay the money to Betsey Mcintosh (herself), not to her executors, administrators, or assigns. That the supposed assignment to McElrath, if it be an assignment, purports to be of only a part of the debt due by the United States, and that the power of attorney to McElrath does not expressly authorize him to receive the money, or any part of it, but purports to be only a power to prosecute the claim to allowance, or judgment ; so that, upon these points also, it would be necessary that the secretary, before ordering the pay- ment of the money, should decide whether he could lawfully pay the money to any other person than Betsey Mcintosh herself, whether it would not be contrary to the policy of the law, especially in the case of an Indian claim, to pay a part only of the claim, and he must also decide whether the power of attorney was duly executed. These are all acts of executive discretion, in which the secre- tary has sought the advice and opinion of the attorney-general of the United States, and can in no just sense be said to be mere ministerial acts. In the exercise of this discretion, thio court has no right to guide or control the executi"e officer, or to entertain any appeal from his decision. Upon these authorities and by thes3 reasons, this court is sat- isfied that the payment of the claim of Betsey Mcintosh is not a Ex Parte Reeside. 571 mere ministerial act, but is a duty appertaining to tlie office of secretary of the treasury, in the discharge of which he has a dis- cretion which this court has not jurisdiction to control ; and being of that opinion the court deems it unnecessary, as it would be unavailing, to give any opinion upon the other questions which have been raised in argument. The court, therefore, refuses to grant the injunction prayed for against the secretary, and second comptroller of the treasury. EX PARTE REESIDE. [XT. S. Circuit Court, District of Columbia, 1848. — 7 Law Eep. 448.] GoTERNMEirr Officees— PowEEs OF ConnTs TO Issue Mahdamus to. — Courts have no power to cause a writ of mandamus to issue to tlie liead of an executive department, for the purpose of compelling the performance of an act not merely ministerial, but involving the exercise of judgment. This was a petition of Mary Reeside, executrix of James Reeside, for a writ of mandamus commanding the secretary of the treasury of the United States, first, to cause to be entered upon the books of the treasury department under date of May 12, 1842, a credit to the said James Reeside (since deceased), of the sum of $188,496.06; and secondly, to pay to the petitioner, as executrix of the said James Reeside, the said sum with interest from the 12th of May, 1842. The petitioner stated that the said James Reeside died on the third of September, 1842, at Philadelphia. That in his lifetime he claimed certain credits upon contracts with the postoffice department, which the postmaster-general refused to allow; that the United States brought suit against him in the Circuit Court of the United States, for the eastern district of Pennsylvania, for a supposed balance of $32,709.62; that the defendant pleaded non assumpsit and a set-off, upon which issue was joined, and such proceedings were had that the jury found the issue for the defendant, and certified that the United States were indebted to the said James Reeside in the sum of $188,496.06. That the United States obtained a rule upon him to show cause why a new trial should not be granted ; which rule was disallowed and overruled on the 572 Ex Parte Eeesidb. 12tli of May, 1842, and upon the same day, "upon considera- tion of the said court, judgment was rendered upon the verdict aforesaid in favor of the said Reeside," which judgment remains in full force, and is in no part satisfied, annulled, or reversed; whereby he became entitled to have the sum of $188,496.06 carried to the credit of the said James Reeside, under date of the 12th of May, 1842, as the balance then due to him from the United States. That on the f**"' 29th of March, 1848, the petitioner exhibited to Robert J. Walker, the secretary of the treasury, her letters of administration, and an exemplified copy of the record and proceedings aforesaid in the Circuit Court, and requested the said secretary to cause to be. entered upon the books of the treasury department, under date of May 12, 1842, a credit to the said James Reeside in the sum of $188,496.06, and also requested the said secretary to pay her the same sum with interest from that date, which he refused to do; "so that the only means of obtaining the money is by application to this court." That in answer to the said demand the secretary said that "her request could not be complied with"; whereas, she avers that the " claim aforesaid has been judicially ascertained, and cannot be inquired into, and that the secretary, by .virtue of the general laws of the United States, is authorized and required to pay the said sum ; wherefore she prays for the writ of man- damus, commanding," etc. f***J Cranch, C. J. — As to so much of this petition as asks for a mandamus commanding the secretary to pay the money, it is sufficient to say that there has been no specific appropriation of money to pay it ; and no money can constitutionally be drawn from the treasury of the United States without such an appro- priation. And as to so much of the petition as asks for a mandamus commanding the secretary to cause a credit to the said James Reeside, to be entered upon the books of the treasury depart- ment, for the sum of $188,496.06, this court has no jurisdiction or authority to issue such a writ to the secretary of the treasury ; because there is no special law directing him to enter such a credit on the books of the treasury as there was in Kendall's case; and because it would command him to do an official Smith v. Atlantic Mut. F. Ins. Co. 573 executive act, in the performance of which he had a right to exercise judgment and discretion, and in which this court has no jurisdiction to guide and control liim. The cases of Marbury v. Madison, Kendall v. United States, Becaiur v. Paulding, and Brashear v. Mason, which were largely cited in McElrath v. Mcintosh, 1 Law Rep, N. S. 399, at the present term, are considered by this court as decisive of the present case. The court therefore refuses to issue the mandamus as prayed. JOSEPH SMITH V. ATLANTIC MUTUAL FIRE INSURANCE COMPANY. [U. S. Circuit Court, District of New Hampshire, 1849. — 12 Law Kep. 408.] Plea ih Abatement — Condition in Insurance Company's Chaktek as. — In a suit against a mutual insurance company, the latter cannot, by a plea in abatement, interpose the objection that under the charter suit can only by brought at the term of court succeeding the loss. Inbdbance Pouct Held as Collatekal Security— Efffct on Conditions in.— A clause in an insurance policy that suit shall only be brought at a term of court, next succeeding the loss, applies to members of the company only ; not to one who holds the policy as collatei'al security. This was assumpsit on a policy of insurance made by the defendants to Dana & Carpenter, of Attleborough, Mass., on certain paintworks, etc. The amount insured was fifteen hun- dred dollars, and in case of loss it was to be paid to Joseph Smith, of Pawtucket, who brings this action. The defendants were averred in the writ to be a corporation under a special act of the legislature of New Hampshire, and to be doing business at Exeter, in that State. They pleaded generally in abatement, that this court had no jurisdiction over the present case. On this fact issue was joined by the plaintiff, and at the trial the defendants showed that after the fire, March 28, 1848, the plaintiffs on the 12th of April, 1848, demanded more than the company thought had been sustained in damages by the fire, most of the injury being in their opinion caused by the explosion of a steam boiler, for which they did not consider themselves liable. That on the 2d June, 1848, the company voted to allow 574 Smith v. Atlantic Mut. F. Ins. Co. for the loss, two hundred dollars in full, and on the 10th July, 1848, communicated the result to ^***^ Mr. Austin, the counsel for the plaintiff, who had demanded the amount due. The present action was then instituted in this court, for that last supposed amount, although a session of a State court had intervened since the decision of the company, at which this suit might have been brought, and where it was insisted that by the the act of incorporation, the insured were bound to bring it, under the following clause in the second section of their act: — " And the directors upon a view of the same, or in such other way as they may deem proper, shall ascertain and determine the amount of said loss or damage, within ninety days after notice aforesaid, and if the party suffering is not satisfied with the determination of the directors, the question may be submitted to referees, or the said party shall bring an action against said com- pany for said loss or damage, at the next court to be held in and for the county of Rockingham, and not afterwards, unless such court shall be holden within sixty days after such determination; but if holden within that time, then at the next court holden within said county thereafter." It was contended first by the respondents, that on this clause and the facts in the case, no jurisdiction existed in this court, and it was agreed that this objection be considered before instructing a jury in relation to it. The point was argued at the May term, 1849, by J. Wells, for defendants, and Ivers J. Austin, of Massachusetts, for the plaintiff. WooDBUEY, J. — It is objected that the respondents cannot interpose this exception to the suit, not having been brought in the first court sitting in the county wnere they did business, and " not afterwards " ; first, because they did not communicate their decision to the insured or to the plaintiff, "within ninety days after notice" of the loss. But we do not understand the charter as requiring this, but only that they shall determine on the amount of the loss within that ninety days. That determination being a matter of record, and the insured being a member of the corporation, where, as here, it is a mutual association, he can obtain information of it Smith v. Atlantic Mut. F. Ins. Co. 575 as soon as he pleases, or defer it as long as he pleases. In respect to such notice, a member of a mutual insurance office, who is himself one of the insurers, stands entirely different from a naked insurer, in a corporation where he has no interest, and has no means to look at records as he has here. It is next objected that when the notice was given in August, it was not to the assured, Dana & Carpenter, but to the attorney of Smith, the plaintiff. [410] gyj. jj. ^yjjj i^g gggj^ ^^^^ jjy Qjjj, YJe^g QQ tijg gps^ excep- tion, this question becomes immaterial. This special notice was unnecessary and useless. Yet had it been otherwise, it is some- what doubtful whether Smith himself claiming to be a rightful plaintiff, and being notified through his counsel, is not estopped to deny that the proper person had been notified when it is the one suing. The respondents then do not appear to have done anything or neglected anything, so as to disable them from setting up as a defense, that they have not been sued in the manner prescribed in the policy and charter. But though this exception to the right of the defendants to take the objection that they were not sued at the first court sit- ting in the county, after this decision as to the amount of the loss, fail, it by no means follows that this objection goes to the ' jurisdiction of the court. This court has jurisdiction over the subject-matter, and over the parties as residing in different States. (See the Judiciary Act, and cases cited in Dexter v. Haight, and Nunam v. Litchfield, 3 "Wood. & M., Jan., 1849 ; see, also, 2 N. H. R. 376, and 3 N. H. R. 232; Steph. PI. 217; Catlett's Case, Paine's C. C.R.) The objection seems to be one which grows out of the nature of a contract or mutual engagement between the members of this mutual insurance association, ratified by the legislature, and embodied by consent into the law itself, by which the corporation exists and acts at all as a corporation. The assured stipulate with each other to sue only at a partic- ular time, and the company made up of them united, agrees to be sued only at a particular time, by a member. This compact or agreement may therefore be a bar at law to a recovery at any other time by a member. Such is the contract, 676 Smith v. Atlaltic Mut. F. Ins. Co, and parties make contracts for themselves, and not the court for them. Whether it may not be such a bar if interposed under the general issue, or whether it must be specially pleaded in bar of the maintenance of this action, need not be decided till the question arises in one of those modes, and in a suit by a member. It suffices now to say, that in our view it is not a valid exception to our jurisdiction in a plea in abatement to this action, and much less a valid objection to its general jurisdiction, which is the form of pleading it here. [411] J shall therefore on these pleadings and facts instruct the jury that they are bound in point of law to return a verdict for the plaintiff. If the court entertain these views, it is understood that the defendants wish to withdraw their plea in abatement, and file the general issue or a special plea, to attempt to take advantage in a different way of the same objection, and of a further objec- tion that no suit for this loss can be sustained in the name of Smith, he not being a member of the mutual association, nor the person insured. I will hear the counsel for the parties on this motion when made, and also on another point of difference, in case the motion be not allowed, whether the judgment be rendered, finally against the defendants on the verdict, on the plea in abatement, or may be, respondeat ouster. It is laid down that if judgment be for plaintiff in a plea of abatement, demurred to or replied to, it is interlocutory, respondeat ouster. (1 Tidd, 589.) But if an issue of fact be made and tried and found for plaintiff, the jugdment peremptory, quod recuperd. (1 Tidd, 588 ; 2 Bos. & P. 389 ; 1 East, 636.) TiU the proper time arrives I do not propose to go into the case cited of Kittredge V. Rockingham Fire Instance Company, decided by the Supreme Court of this State, in Rockingham County, December, 1847. If that case, as is supposed, has decided against an action for the loss being sustained in the name of any person except the insured, it must govern this court as a construction of a local statute, by the highest local authorities. (See 7 Howard, in Luther v. liord&n.) But the cases must be exactly parallel before I would relieve the corporation from its express written promise to pay any loss on this policy to the plaintiff. Niphon's Cee'w. 577 If the defendants have liberty to amend their plea, the plaintiff should have leave to amend his declaration also, and to declare on a special promise to pay him the amount of the loss, rather than the member of the Mutual Insurance Company. It is well settled that A. may sue on a promise made to B. by C, to pay A., though A. be not privy to the consideration. A. had a debt against B., and B. placed demands with C. to collect and pay over to A. C. is liable to A. (Del. and Hud. Canal Co. v. The Westchester County Bank, 4 Denio, 97 ; '***^ see cases collected there, 98 ; see form of declaring, as if promise to A., p. 99 ; 1 Bos. & P. 97.) And if a third person can thus sue an insurance company on a special promise which it must be authorized to make, as being merely to pay the loss to the mort- 'gagee instead of the mortgagor, which is highly proper if the prop- erty mortgaged happens to become lost, it may steer clear of the other difficulty, that the action must be brought at the next court held in the county, because the provision probably applies only to an action brought by one of the members of the mutual incorporation, and not by a third person on a special promise. THE NIPHON'S CEEW. [U. S. Circuit Court, District of Massachusetts, 1849.— 13 Law Kep. 266.] Seamen — Wages, When Eabned — Salvage. — The crew of a ship abandoned at sea, and set fire to by order of the master, who were upon monthly wages, can- not recover wages up to the time of abandonment, although the vessel, freight, and earnings be fully insured, and certain articles (for which the crew received a compensation in the nature of salvage) were saved. This cause comes up by appeal from the decree of the judge of the District Court dismissing the libel. The suit was in per- smiam for seamen's wages against the owners of the ship Niphon. The libelants were mariners of said ship, on a voyage from the Sandwich Islands to Nantucket, on monthly wages. The vessel sailed on the 5th August, and was abandoned at sea on the 13th January, off the coast of the United States, on account of a dangerous leak caused by perils of the sea, and was set fire to by order of the master. The crew were taken off by another ship Betoj. 0. C — 37. 578 Niphon's Ceew. and brought into port, bringing with them the chronometer, certain charts, the compasses, certain sails, and the boat. The owners had a full insurance on the vessel, her freight and earn- ings. The libelants, eight in number, claim wages to the amount of $50.15 each, being up to the time of abandoning the vessel. The respondents, the owners of the vessel, appeared and gave stipulation, and agreed to submit the question to the court upon the argument of the counsel for the libelants, the libel being taken pro oonfesso, and the following additional facts being agreed ; viz., the chronometer and f*"^ charts were sold for fifty dollars, of which sum the libelants have received their share. The other articles saved are retained by the owners of the vessel that took off the crew, who claim them as a gift from the master of the Niphon, and for salvage. The District Court, after a hearing, dismissed the libel, and an appeal was taken thence to this court. [885] "VVooDBUEY, J. — In this case, as no freight has been earned, it is well known that the general rule is, no wages are to be paid. (Molloy, 245; 1 Sid. 228; 2 Show. 291; 3 Salk. 23 ; 3 Hagg. Adm. 96.) But there are various exceptions to this as a general rule, and the chief inquiry is, whether, on the facts of the present case, it can be brought within any of those exceptions. The important principle on which the rule rests shows the ground of most of the exceptions. It rests on the idea that if a cargo be on board to be carried safely and saved in peril, the crew should be induced to use all possible exertion to save it, by making their wages in such a case depend on its being actually preserved, and thus freight earned on it. Hence originates the quaint maxim that " freight is the mother of wages." Some have incautiously added, it is "the only mother of wages." If it was the only one there is no ground whatever for the present libel, as it is not pretended here that any freight whatever was earned. What, then, are the other sources or reasons for wages beside earning freight? They seem to me to rest on service performed, and an ina- Niphon's Cbew. 579 bility to earn freight, in consequence of some wrong or neglect by the owner or his agents. In such cases the owner should not take advantage of his own misfeasance or nonfeasance; and the sailor performing his whole duty, so far as regards his own exertions, and successfully, should be compensated. A brief retrospect of some of the exceptions to the general rule will show whether the present case can be brought within the principles which govern them; and also whether any of them go further than I have suggested, and, as is contended here for the libelants, make the owners liable for wages on the contract of hiring and ordinary service alone, without reference to the conduct of the owner, or the saving of any part of the freight or vessel when in peril. Among the exceptions where wages are allowed, though [»8ci Qo freight is earned, is where no cargo is put on board so that freight might be earned. Not earning it, then, is the neglect or fault of the owner; and consequently such a case constitutes one of the exceptions to the general rule. (See cases, post, and Edw. Adm. 118, 119; Curtis on Seamen, 27J, 284, 287; Laws of Wisbuy, art. 17; 3 Hagg. Adm. 202; 2 Hagg. Adm. 158.) This rests not merely on the original contract as the mother of wages, but on the service and freight not earned by the misconduct or act of the owner, and of which he is estopped to take any advantage. It would be making the exception the general rule to hold the contract in all cases to be the mother of wages, unless you considered it an implied portion of every contract of this kind, that it should be so performed when a cargo was on board as to earn freight. Then the contract might well be regarded as the general source of wages, and still the same result follow as if freight was so regarded. As an exception, owing to carelessness of the owners, or the case at times coming within the general rule of some freight earned, they are personally liable for wages when the vessel and cargo have been condemned, and their proceeds restored at some subsequent period. (Sheppard et al. v. Taylor et al. 5 Peters, 699, 711.) No matter whether the vessel and cargo are restored, or their 680 NiPHOsr's Ckbw. proceeds, after condemnation, as the lien which before existed for wages " reattaches to the thing, and to whatever is substi- tuted for it. (5 Peters, 710 j Pitman v, Hooper, 3 Sam. 60, 287.) In several other classes of cases, though no freight is actually- earned, this circumstance is attributable to the owners, rather than the crew, and then the latter are pot to bear the loss of wages. They may then be recovered of the owners, if, fpr instance, the latter are guilty of a wrongful deviation from their contract or voyage before the loss, or guilty of a contraband trade, or of driving the crew away by cruelty, or engaging, with- out their previous knowledge and consent, in any illegal voyage; or by running in ^^^"^ debt, and subjecting the ship to payment of it. (1 Hagg. Adm. 238; 5 Peters, 687; Edw. Adm. 122; Cam of the Martin, 2 Hagg. Adm. 1q8; 2 Gall, 175,) In short, wages are payable whenever freight is lost by the fault or fraud of the master or owner. (3 Kent Com. 187; H't to Deceased Pebson — Eights of Heirs Undeb.— By the common law nothing passes to the heirs under a grant to a deceased person ; but under the statute an entry and gi-ant in the name of a deceased person, founded on a removed warrant, will pass the land to the heirs, if the entry be in the lifetime of the grantee. — Soughei-ty's Heii-s v. Edniiston, 194. 8. Graot — Effect of Nobth Caeolina Cession Act on. — North Carolina had no power after the Cession Act to issue grants for land in territory ceded thereby, unless some incipient right previously existed. It is therefore competent to inquire whether there was an entry previous to the cession, or whether the warrant was a forgery. — Polk v. Windel, 168. 9. Desckiption in Geant — Adjacent Construed. — Adjacent does not mean adjoining, it signifies convenient, near to, or in the neighborhood. — Henderson V. Long, 188. 10. Gbant — Natubai. Objects in a Call to Govern. — A call in a grant or entry for distance gives way to a call for a natural object or boundary, and the party must go to the natural boundai'y, though it vary both course and distance, — Simms v. Baker, 205. See EsTRY ; Pabol Evidence to Deny Entry Undeb Gbant, see Evidbnce, 2; ScEVEYS. GBOUND KENT. 1. Ground Kent — Bemedies fob Becoveby of. — For the recovery of arrears of gronnd rent, the plaintiff may proceed by distress, re-entry, ejectment, and action of covenant, and proceedings in one do not suspend the others; the remedies are cumulative. Such actions will lie as well against the administrator, after decease of the covenantor. — JVeicmam v. Keffer, 502. 2. Inteeest— Becoveeable on Abbeaes of Geound Bent. — Arrears of ground rent will bear interest from the time they become payable.— -Td. GUABDIANSHIP. GuABDiAN— Motion fob Appointment of. — A motion for the appointment of a guardian to an infant party must be in writing, and must state the name of the person proposed, and his consent to be appointed. —Hai- have been purchased by the heir. The surplus of such land ha be h rged to him at its value at the time he sold it; not what itwas worth "726 Indictment. HEIR (Con tinned). at the time it descended to him. The heir is not liable to other creditors of the ancestor for interest on such surplus. — Gibson v. Williams, 19. 2, Heib — Liability fob Debts of Ancestob. — If the heir in an action against him on the bond of his ancestor plead nothing by descent or devise, and it be found against him, judgment shall be de bonis propriis. — Hamilton v. Simms, 25. 3. SoiBE Facias against Heik — Eights or Innocext Vendee. — A scire facias issued against an heir to have execution of the lands of the deceased, but before the scire facias issued the heir sold the lands, and it was held that the purchaser from the heir might, in the name of the heir, be permitted to plead to the scire facias that the executor had assets. — Hamilton y. Jones, 24. See Estate Tail; Geant to Deceased Person, see Geant, 7. HIGH SEAS. JuEisDiOTioN of Cbimeb, see Jueisdiction, 8. HOMESTEAD. 1. Execution — Homestead Exemption Laws. — Where a portion of the defend- ant's lands, on which is situated a dwelling-house far exceeding the value of the homestead entitled to exemption, is subject to a mortgage nearly equal to the valne of that portion of his lands, and the defendant has another parcel, on which is a dwelling occupied by part of his family, of a value within the limits of the statute exemption, he is entitled, upon his request, to have the latter set off and exempted from sale on execution. — Manuf. & Farmer^ Bank y. Bay- less, 8. 2. State Exemption Laws — Homesteads. — S tate exemption laws apply to process issued from the federal courts. The homestead of the head of a family is exempt from sale on a judgment rendered by a court of the United States in the same manner as upon a judgment of aState court. — Id. HOMICIDE. Homicide — Malice Pbesumed From. — The law presumes malice from the fact of killing, and any circumstances in mitigation or of excuse or justificatio^ must be proved by the prisoner, — United States v. Travers, 467. See Manslaughter; Mubdeb, HOUSE OP EEPBESENTATITE8. Power to Punish foe Contempt, see Contempts, 1. IMPEOVEMENTS. See Fbaudulent Conveyances, 1. INDEMNITY. See Damages, 4. INDICTMENT. 1. Indictment Will Lie fob Statutory Offense. — Where a punishment by imprisonment is provided by statute for a public offense, but no mode provided for securing such punishment, it is intended that an indictment will lie for such offense. — United States v. Mnlebran, 426. 2. Indictment— Jueisdiction Should Appeab on Face of. — The jurisdiction of Circuit Courts in criminal case is confined to offenses committed in the district where the courts sit, if committed on land, and the indictment should distinctly show on its face that the offense w as committed within the jurisdiction of the court.— United States v. Wood, 456. 3. Indictment— Material Allegations in must be Proved. — An allegation in an indictment which is not impertinent or foreign to the cause must be proved, Instjeance. 727 INDICTMENT (OontiHued). aiiegation. — United States v. Porter, 64. 4. iNDICTmOT-VABIANCE BETWEEN PnooP AND CuiME Chakqed. -Where in a prosecution for resisting an officer of the customs tlie indictment improperly descnbes the ofSoe, the variance is fatal. _ XTnUed States v. Phelps. 89. Destbuction op Yessels, see Cbiminal Law, 1 ; Etobnce, 13. INDOESEMENT. See PnoanssoRi Notes, 1, 2. V INFANCY. See Guaiidiasship ; Habeas Cokpds, 1, 2 ; Unions. INFEINGEMENT. See Copybight, i, 6; Costs. 4; Parties, 1: Patehts, 1, 2 5, 6, 7, 8, 9. . . , *, o, INJUNCTION. 1. Injuxctiou, When Granted.— An injunction will not be granted during the pendency of an action unless the parties asking relief in equitv will confess judgment at la.w.—Mc(theios v. Douglass, ICG. 2. LsjUNcnoN to Stay Trial. — Where a cause is ready for trial, an injunction will not be granted so as to stay the trial. —jlf/(((p)-'s Sxrs. v. Samillon, 27. S. Motion- fob Preliminary Injcnctio.v— Practioe.— A motion for an interlocu- tory injunction is heard on afBdavits alone, without the right of cross-examinar tion.~ Day v. Boston Belting Co., 585. i. Government Officers— Power of Courts to Enjoin.— The courts of the United States have no authority to enjoin the officers of the government against performing any merely ministerial act. —McElratli v. Mcintosh, 559. Costs on Injunction for Infringement, see Costs, 4; Injunction to Bestrain Breach of Covenant, see Covekants; Patents, 5, 6, 7, 8, 9; Bemovaii of Causes. INSOLVENCY. State Insolvent Law, Effect of Discharge Uhdeii. — A discharge under a State insolvent law does not entitle a defendant, in the custody of the United States courts on mesne process, to be released on common bail. — Gill v. Jacobs, 268. Bights of Bail Under Discharge in Insolvency, see Bail, 2 ; Certotoate OF Discharge as Evidence, see Evidence, 12. INSUEANCE. 1. Insurance Policy Held as Collateral Security — Effect on Conditions nr. — A clause in an insurance policy that suit shall only be brought at a term of court, next succeeding the loss, applies to members of the company only ; not to one who holds the policy as collateral security. — Smith v. AtlaTitic Mat. F. Ins. Co., 573. 2. Insurance — Assignment of Policy. — Under a clause in a fire insurance policy that the liability of the insurers should cease v^)on assignment of the policy with- out their consent, held, that an assignment to a mortgagee from whom the insur- ers subsequently received the premium for a renewal was by such act ratified by them ; but a subsequent conveyance of the fee by the mortgagor to the mort- gagee would avoid the policy. A transfer to the mortgagee as collateral security with the assent of the insurers would not convert the contract into a new one on his interest. — BUson v. Manufacturers' Ins. Co., 290. See Damages, 3; Trusts and Trustees, 3. 728 Jurisdiction. INTEREST. T.nnTf.TTT OF Bail fob, see Bail, 3 ; Gbouiid Ebht, INTERNATIONAL LAW. 1. Ihteenationai. Law — Kights op Soteeeigntt. — The fact of national inde- pendence may be deduced from history by courts exercising jurisdiction of intei-national law; no explicit official recognition is necessary, — Consul of Spain V. Schooner Conception, 497. 2. iNTEBNATiONAtj Law — KiQHT OF SovEKEiONTT. — As rcspects its own govern- ment, a nation becomes independent from the declaration thereof, but as regards other nations, only when recognized by them. — United States v. Hutcldngs, 489. 3. Ihteknationai, Law — Fobeign Minibtebs, Who abe. —The privileges of a for- eign minister are not extended to a person having a commission from a revolu- tionary government not acknowledged by the United States. — United States v. Skinner, 446. 4. Neoteality Lawb — What is a Tiolation of. — The fitting out or arming of a vessel with illegal intent, though that intent appear to have been defeated after the vessel sailed, will constitute a breach of the neutrality laws. It is not neces- sary that the vessel illegally fitted out should be armed, or in condition to commit hostilities on leaving the United States. — Id. 5. Intebnational Law — DnnES of Neutbal Powebs. — The law of nations requires that strict neutrality should be observed between belligerents by other powers. — The Maria Joseph, 500. INVENTIONS. See Patents. JOINT CONTRACT. Effect of Judgment, see Judgment, 2. JUDGMENTS. 1, Judgment of State Coubt — CoNOLusrvENESs in Otheb States. — Tho judg- ment of one State court is not conclusive in a suit instituted upon it in another State. — Peck v. Williamson, 398. 2. Judgment on Joint Conteact — Effect of. — In an action on a joint contract against. two, where one has suffered a default and the other has obtained a verdict, judgment must be entered up for both. — ChampUn v. Tllley, 71. Effect as Evidence, see Evidence, 6; Pbesumphon fbom Vebdict, see Vebdiot. JURISDICTION. 1. JuEi§DicTioN OF Eedeeal Coubts— Chabaotee or Paeties.— Where the inter- ests of parties are joint, to sustain the jurisdiction each of the plaintiffs must be competent to sue each of the defendants in the federal courts. — Tackerman V. Bigelow, 631. 2. Jubisdiotion— Citizenship Essential to.— An action in favor of the indorsee of a promissory note, a citizen of one State, against the indorsor, a citizen of a different State, may be brought before the Circuit Court of the United States though the maker and payee 9f such note are citizens of the same State.— Cod- wise V. Gleason, 33. 3. Jubisdiotion— AuEN, Who is. —Federal courts do not acquire jurisdiction of a case because one of the parties is a subject of a foreign power; such subject may still be a naturalized citizen. The party must be stated to be an alien in express terms. — Miclmelson v. Denison, 63. 4. Fedeeal Couets— Jubisdiotion in Ceded Tebbitoet. — Where a State grants land to the general government, reserving in it u, concurrent jurisdiction in Liens. 729 JUKISDICTION (Continued). executing process tlierein, for offenses committed out of it, the federal courts have exclusive jurisdiction of offenses committed within such territory. — United States V. Ti-avers, 467. 6. JuEKDicnoN IN CiUMiNAi, CASES — A Circuit Court will not surrender one charged with a capital crime for trial in another jurisdiction for a minor offense. — United Utates v. Cori-ie, 686. 6. Criminal Cases — Common-Law Jubisdiction of Fedeeal Cotjets in. — The courts of the United States have not oommon-law jurisdiction in criminal cases ; they will not punish an offense at common law unless punishable by statute. — United States v. Hare, 449. 7. Ckiminal Cases — Common-Law JtmiSDicTiON of. — The federal courts have oom- mon-law jurisdiction of criminal cases, and may punish a crime though there be no express statute for that purpose. — United States v. Smitli, 430. 8. JtrKismcTioN — Chimes on the High Seas. — The courts of the United States have not jurisdiction of crimes committed on board of an American vessel within the jurisdiction of a foreign sovereign ; nor will the fact that a person stealing goods in a foreign port, brings them upon the high seas in an American vessel, give this jurisdiction to the federal courts. — United States v. Morel, 373. See Citizenship, 1 ; Habeas Cqepcb, 2 ; Indictment, 2. JURIES. 1. JnEY — Sepakation Aftek Submission of Case and Befoee Vekdiot. — If the jury separate after a case is committed to them, and before they have agreed in a verdict, and afterwards return a verdict, it will be set aside. — Howard v. Cobb, 75 ; Lester v. Stanley, 58. 2. JuES — Separation Aftek Submission of Case and Bepobe Verdict. — Neither the jurors nor the officer to whose care they were committed can be compelled to testify to the fact of separation of a jury before verdict, and after submission of the case. — Howard v. Cobb, 75. 3. JuBX — Peiiemptoet Challenges. — On an indictment for murder twenty per- emptory cliallenges of jurors are allowed. — United Stales v. Hewson, 532. 4. Challenge of Jueoes fok Cause— Conscientious scruples against finding a ver- dict which would lead to capital punishment are a good cause for challenge of a juror in a capital case. — Id. 5. JuET IN Cmminal Cases Decide the Law and Fact.— It is the duty of the court, when requested, to declare the law, but the jury are not bound to conform thereto, having the right to decide both the law and the facts. — United States v. Hodges, 465. See Yebdict, 1, 2. LAND. Land— Appeopblition of. What Constitutes. —An actual settlement and survey is necessary to constitute an appropriation of land.— Carson's Lessee v. Garden, 208. Damages foe Breach of Covenant to Convey, see Damages, 1, 2; Entbt; Fobgery of Land Waeeant, see Evidence, 3; Grant; Occupant Laws; SUBVEVS. LAW AND FACT. Decision by Jury, see Jury, 5; Probable Cause a Mixed Question op, see Malicious Prosecution, 2. LIENS. See Bills op Lading; Maritime Liens. 730 Mandamus. LIMITATIONS. 1 . Statute op Ijmitatioiis — Title op Adveese Possession. — To obtain the benefit of the Statute of Limitations under a plea of seven years' possession in Tennes- see, tlie claimant must have color of title Patton v. Synei, 231. 2. Statute of Limitatioss— Adveusb Possession of Laud, — No claimant is en- titled to the protection of the Statute of Limitations, under a plea of seven yeais' possession, without he entered under color of title. ^Jfc/««'s v. Beagan, 240. 3. Eeal Pbopebty— Title by Pebsoeiptiox. — In an action of ejectment defendant is not required to show a connected cliain of conveyances from a grant to entitle him to the protection of the Statute of Limitaticms ; if he has possession and holds under a conveyance, though defective, it is sufBcient. — Sawyer's Lessee y. Shannon, 111. 4. LuaiTATiONS — CoNSTKUCTiON OF STATUTE. — The fourth and fifth sections of the Act of 1879, 1 Kev. Code, ch. 308 (see 1 Bev. Stat. ch. 65, J 12), limiting the time within which suits are to be brought against executors and administrators, must be talien together, and the defendant to entitle himself to the benefit of the fourth must show that he has complied with the requisites of the fifth section. — Sond V. AUen, 3, 6. Limitation to Action by Ceeditoe of Deceased Peeson. — If there be no administrator of a deceased creditor to bring suit, the Act of 1789 requiring creditors in the State to bring their actions within three years cannot operate as a bar. — Grulib v. Clayton, 30. 6. Statute op Limiiatioks — Claim Against Estate op Deceased Paetnee, When Baeeed by. — A claim against the estate of a deceased partner, accruing in con- sequence of the inaolvency of the surviving partner, after the Statute of Limitar tions had run upon the claims against such estate generally, is not barred, though not exhibited within the period limited by the statute. — Pendleton v. Phelps, 95. 7. Limitation — New Peomise by Administeatoe — Eppeot op Whether an ad- mission of a debt of the intestate by an administrator, where the intestate has been dead more than three years, will take the case out of the Statute of Limita- tions, qucere?— Wilkings v. Murphey, 21. 8. Limitations— KuNNiNG op Statute Dueing Wae.— The Statute of Limitations was suspended during the continuance of the war as to alien enemies disquali- fied to sue in our courts. — Lewis' Exrs., 27. LITEEARY PHOPEBTY. See Cdpyeight, 2, 3, 4. MALICE. See Homicide. MALICIOUS PBOSECUTION. 1. Malicious Pboseoution — Peoof to Maintain Action.— In an action for mali- cious prosecution, plaintiff must prove malice, express or implied, and want of probable cause, or the action will fail. — Murray v. McLane, 405. 2. Pbobable Cause — Mixed Question of Law and Fact.— The question of prob- able cause is a mixed question of law and fact ; whether the circumstances alleged to show probable cause are true, is a question of fact ; whether, if true, they amount to probable cause is a question of law to be decided by the court Id. MANDAMUS. 1. GOVEENMENT" OfPIOERS — PoWEBS OP CoUETS TO ISSUE MANDAMUS TO. — CoUrtS have no power to cause a writ of mandamus to issue to the head of an executive Negligence. 73^ MANDAMUS (Continued). dppartment, for the purpose of compelling the performance of an act not merely ministerial, but involving the exercise of judgment Ex parte Meeside 571- McElrath v. Mcliitosh, 55D. ' 2. Makdamus to Collectok of the Pokt to Gbakt Cleaeance.— The Circuit Court has power to issue a mandamus to a collector, commanding him to grant a clearance. —ExpaHe Gilclirisl, 249. See Removal of Causes. MANSLAUGHTEB. HoMipiDE IN Eesistixg Akkest — Manslaughtek. — Homicide in resisting an arrest substantially illegal will, at most, amount to manslaughter. — Vniled States v. Tracers, 467. MAP. See Graht, i maeitime liens. WARrriME Lies for Matebials— Kequisites to. — The party claiming a lien on a vessel for materials must show that the contract under which the materials were furnished had reference to some particular vessel, for the construction or repair whereof said materials were to be used. — The Young Sam, 600. MASTER. See Seamen, 6, 7, 8. MEASURE OF DAMAGES. See Damages, Measuke of. MILITARY LAW. See Aemy Requlatioks. MINORS. MiNOB — Cbiminal Liabilitt of, on Boabd Vessel. — A minor who ships on board a vessel without the knowledge of his parents may be convicted of the offense of burning a vessel on the high seas. — United States v. Zochnan, 554. See Guardianship ; Habeas Corpus, 1, 2. MORTGAGES. 1. Deed of Trust and Mortgage Distinguished.— An absolute deed by a hus- band to a trustee, in trust for his wife, in consideration of a sum advanced out of her separate estate, will not be deemed a mortgage by reason of the property exceeding in value the amount advanced. — B«ni v. Danforth, 678. 2 Moetoage— Power of Salk in.— A power in a mortgage to sell the mortgaged ' property is a matter of contract and will not be overthrown by the court.— Sowen V. KendaU, 707. MURDER. Murdeb-Bubden of Pboof.-Ou an indictment for murder, by throwing a child overboard, the burden is on the government to prove {where such a defense is set up) that the child had not died in «, fit before it was thrown overboard. - United States v. ffewson, 532. See Juries, 3. NATIONS, LAW OF. See International. Law. NEGLIGENCE. See Collision; Officebs of Cobporatioks ; Sheriff, 1, 2. 732 Pabticeps Cbiminis. NEUTEALITY LAWS. See Ihtebnationai, Law, 4, 5. NEW PEOMISE. Br ADimnSTaATOB, see Limitatioiis, 7. NONSUIT. Nonsuit — SuEPHisE as a Gbocnd for Setting Aside. — If a plaintiff, supposing himself ready, press a ti'ial, and it is found on the trial that the testimony he re- lied on cannot be given in evidence as he expected, and he be nonsuited, the allegation of surpi-ise shall not prevail to set aside the nonsuit. — Mwrayv, Marsh, 22. NOTES. Duty of Bank in Collection of, see Banks and Banking, 1 j Payment, 2. NOTICE. Notice — Open and Notobidus Possession as. — Ylsible possession and occupation by the grantee under an unregistered deed, known to the grantee under a regis- tered deed, is sufficient, if not controlled by other circumstances, to warrant a court or jury in finding notice of the unregistered deed. — Lonsdale Co. v. Moies, 655. Duty of Bank Eeceiving Note fob Collechoii, see Banes and Banking, 1, NOKTH CAROLINA CESSION ACT. See Gbant, 8. OBLIGATION OF CONTRACTS. See Constitutional Law, 1. OBSTRUCTING THE MAIL. Ceiminal Law — Obstecction or the Mail. — A warrant in a civil suit against a mail carrier is no justification to the officer executing it, on an indictment for obstructing the mail. — United States v. Harvey, 540. OCCUPANT LAWS. 1. Occupant Law — Validity of. — The occupant law of this State, so far as it violates the compact with other States, by giving preference to its citizens over those of the other States, is void. — Bass v. Binwiddie, 190. 2. Occupancy — Question of Fact — Statute Consteued. — Occupancy is a ques- tion of fact for the jury. No person can claim the privileges of an occupant under the statute unless ho has actually settled on land claimed. — Id. 3. Occupation — Entry, When Binding An occupation entry made without an occupancy to justify it is good, except as against persons who entered their claims as soon as the preference in favor of occupants ceased. — Thompson v. Norwood, 221. OFFICERS OF CORPORATIONS. Oeficebs of Corporations — Liability to Creditors fob Negligence. — An action on the case cannot be maintained by a creditor of a corporation against the directors thereof for gross negligence in the management of its affairs, whereby its property has been wasted and its means of paying the plaintiff destroyed. — Clark v. Lawrence, 637. PARENT AND CHILD. See Fraudulent Conveyances, 2; Habfas Corpus, 1, 2. PAETICEPS CRIMINIS. See Witnesses, 10. Patents. 733 PARTIES. 1. PiBTiEa TO Bill to Eestrain Intbinoement. — A person intei-ested in a patent, though not within the particular district in which the suit is brought, may be made a party to a bill to restrain infringement in such district. — Buck v. Cobb, 550. 2, Pasties — Joinder op Non-kesidest Partners. — A firm in Maryland gave its promissory note to A. signed in the name of a firm, and A. sued one of the partners alone, relying on the Act of 1789. (See 1 Rey. Stat. oh. 31, g 89.) Held, that he might do so, as that act did not affect the contract, but only extended the remedy. — falyaH T. Goulding, 2. See JuwsBicTioN, 1, 2, 3 ; PAimsiEiiSHip, 3 ; 'Witnesses, 1, 2, 3, 4, 5. PARTNERSHIP. 1. Paetneeship — Book Account as Evtbence of. — In such case an account book containing entries made by A. and B. may go to the jury as evidence of a partnership. — GhampUn v. TiUey, 71. 2. Evidence— ADMissiBiLrrv or Letters to Dent Partnership. —In an action against A. and B. as partners on a contract executed iu the partnership name, A. suffered a default, and B. pleaded the general issue ; held, that letters written by A. in the partnership name could not be read in evidence by B. to show that he was not a partner with A. — Id. 3. Partnership— NoN- Joinder op Partner in Suit by.— Where one of two partners brings a suit upon a partnership demand, the defendant may take advantage of it at the trial of the cause. — Coffee v. Mastland, 21G. See Parties, 2 ; Plea op Non-Joinder of Partner, see Pleadinq, 1. PATENTS. 1 iNPRiNaEMENT OP PATENT, WHAT CoHSinnTES. — A patent for a combination has ' not been infringed unless defendant has used, constructed, and operated it in substantially the same way as under the patent; to change the form and obtain a new manner of operating, or to obtain a new and useful result, is subject to a patent. — «or7iamv.Jlf(xeer, 327. 2 Patents— INPRINQEMENT of, What Constitutes. - Where parts of a patented ' article have been in general use prior to the patent, such parts may be used in another invention, and such use will not be an infringement on the patent of the first article. — Smith v. Clarlc, 345. 3 Patehtabilitv of Inventions. -An inventor of a new and useful improvement on^ old principle, whereby it is applied to a new and useful purpose, is entitled toanatentthereon.-- Etiansv. JJobinson, 400. 4 EXOTN OF PATENTS-POWER OP CoNOBESS. - Congress has the exclusive ™rgrant patents, and to renew or prolong the time for the contmuance . °J^Z^T~G^imi!aAW DissoLUTioNOP.-Thegrantingordissolutionof an 5. ^^'^°Xl^^^^. in the case of an alleged infringement of a patent, injunction ^^J^J^^T'^^'^^^^ of the court. -On- v. Badger, 536. depends °^^' '°^^^^^TT^u.o^A^r Inaction, When Granted. - Where 6. Infringement ""^ ^^J^J^ gj „f j,i, patent for a number of years, by the ^ rofnZ:^i^t:t.t:Zion, without h.s ngUt being disputed, it is good sale of licenses to use injunction till the hearing against any one who ground fo'-^^"*'°f „f his invention may be questioned, and even infringes, ''»'^°"Sh the ou^m y ^^^ ^^^ aefendant.-7d. made to <^^^^°^lf^%'Z,cTis Suit at Law, Ground for iNauNCTioN. - 7. P^^^'^-^''^"Tned a verdict in a suit at law against a person infnngmg KLnfi: islffiSground for granting him an injunction till the hearing against another person infringing. - /d. 734 Plat. PATENTS (Continued). 8. Injdnotion to Besteain Infeingement, When Geantjed. — An exclusive posses- sion of long duration under a patent is ground for granting an injunction to pre- vent an infringement, witliout obliging the patentee preyjously to establish Ms right at law. — Buck v. Golib, 550. 9. Patent — Injuhction Against Agent Selling Infkisgemeht. — An agent who merely sells an article which is an infringement of a patent is a joint trespasser with the manufacturer of the same, and an injunction will lie as well against the former as the latter. — Id. Paeties to Infeingement Surr, see Pabties, 1, PAYMENT. 1. Payment— Pbebttmption From JiApse or Time. — Payment of a bond will not be presumed from lapse of time alone within a shorter period than twenty years ; but where the demand is a stale one, the plaintiff will be held to strict pi-oof of the amount of damages which he is entitled to recover. — Cottle v. Payne, 59. 2. Payment of Note Held by Bank foe Collection, What ConsTiTtiTES Where one of three makers of a promissory note, payable at the office of a bank-' ing association, thirteen days before the note became due, deposited with the company at their office a sum of money sufficient to meet the note, and received from the cashier a certificate of credit for that sum, "to pay your note to" the payers named in the note, and the bank failed on the day the note fell due, having, from the time of the deposit up to the day of failure, constantly more than sufficient funds on hand to pay the note ; and after the deposit of the money, and before the note became due, it was deposited with the company, who held it lap to the day of failure, with authority to receive payment upon it, but no further application of the money deposited had been made to its payment. Held, that the note remained unpaid, and that the makers were liable upon it to the payees. — BuVburt v. Squires, 13. See Dedtoe and Ceeditoe;. Exchange. PEDIGREE. See Evtdencb, 8. PEEEMPTOEY challenges. See Jubies, 3. PIEACY. 1. PiEACY, What CoNsia'DTEs.— The crime of piracy is defined with reasonable certainty by the law of nations, and by the acts of Congress, and consists of robbery or forcible depredation upon the sea. — Uniled States v. Chapels, 444. 2. PiKACY, What Constittjtes — Slave trade is not punishable as piracy; only such offenses are piracy as are expressly made so by act of Congress. — United Slates V. Con-ie, 686. 3. PiBAOY— Foreign Commission as a Defense.— It is a suflioient defense to an indictment for piracy that the defendant, an American citizen, show a commission from a foreign government, though issued in blank, and afterwards filled up by the person intrusted with it. — ZPniied States v. Bass, 418. 4. Evidence on Indictment for Piracy — Commission Fbom Unrecognized Gov- ernment AS. — On an indictment for piracy, a commission from a government whose independence has not been recognized may be given as evidence merely as a paper found on board of the vessel, but not to justify acts done under it. — United States v. Eutchings, 489. PLAT. See Grant, 4; Scevey, 5. Practice. 735 pleading. 1. Pleadino — NoN-joDTDEK OF Paktneb, How Alleqed. — If one of two pai'tneri be sued upon a partnership demand, he must plead the matter in abatement and Bet out tlie names of the partners ; defendant may take advantage of the non- joinder for the first time on the seueral issue. — Coffee v. Eastland, 216. 2. PiiEADma — Replication to Show Equitable Title, — A replication may set up the title of the equitable plaintiff and notice thereof to the defendant, and thus show the asserted bar to be in fraud of such riglit-i. — Brown v. Hartford F. Inn. Co., 663. 3. Pleadinq— Replication to Plea op Judgment and no Assets. — If an adminis- trator plead judgment and no assets ultra, replication thereto may be either nul Uel record, or assets ttUra, or per fraudem, or any other fact properly triable by jury. — Teandnle v. Branton, 28. 4. Answek — Evidence Pequibed to CojfrEADicT. — An answer, responsive to the bill and denying the allegation, must be taken to be true, unless contradicted by two positive witnesses, or one positive witness and strong corroborating circumstances. — Searcy v. JPannell, 172. 5. Plea in Abatement — CoNDinoN in Insubanoe Company's Chabtee as. — In a suit against a mutual insurance company, the latter cannot, by a plea in abate- ment, interpose the objection that under the charter suit can only by brought at the term of court succeeding the loss. — Smith v. Atlantio Mat. F. Ins. Co., 573. 6. Feivolocs Pleas — Vakianoe. — A iJea in abatement for vaviance in that the writ did not state citizenship of the parties, whereas the declaration did, held frivolous and stricken out on motion. — Burrow v. Dickson, 101. 7. Vaeiance Between Allegation and Peoof— Effect of.— Where the declarar tion alleged an undertaking in consideration of a contract entered into by the plaintiff to build a ship, and the evidence was of a contract to finish a ship partly built, it was held that the variance was fatal. SmUh v. Barker, 78. 8. Foeeign Executors and Administbatoes — Bights and Powebs of.— Letters ' testamentary issued under the authority of one State are not available in another. But if to an action brought by an executor, on a cause of action arising in the lifetime of the testator, the defendant plead the general issue, the plaintiff cannot be required on the trial to produce any letters testamentary. — CTiampZira v. TiUey, 71. 9 WErr IN Action of Debt— Fobm of. —A writ in debt " that they answer unto ' him of a plea of debt of one thousand dollars," held good on a demurrer to a, plea in abatement that the writ did not rnn in the debet and detinet.-Ouion v. McCuUough, 1. , . i . .. , ■ j 10 Assumpsit- JoiNDEE of Counts. -A count upon the intestat. s promise, and ■ upon that of the administrator to pay the debt of the intestate, may be jomed— Wilkings v. Murphey, 21. See ADME.ISTBATOES AND EXECUTOES. 1 ) AMENDMENT; CITIZENSHIP, 2 J SlASD- INO Mute in Capital Case, see Ceiminal Pbooeduee, S. POSSESSION. See Notice. POWER OF SALE. See Mobtgaoes, 2. PRACTICE. , -D ^r.^ Abhebt of Judgment. -a defendant cannot have a judgment non '• ^.^„^r«;;rrhe can^nlv move in arrest, if the state of the record does not ;" alua^ent upon a verdict for the plaintiff. -^,.«^ v. Bartfo,-d F. Ins. Co., 663. 736 Eecords. PKACTICE (Continued). 2. Pbactioe — Eight to Begin and Close, not Subjects for Exception. — Allow- ing a party to open and close is not the subject of a bill of exceptions. — United States V. Dunham, 653. See Amendment; Admission of WiimEN Testimony, see Etidencb, 10; Nonsuit. •PEESCKIPTION. See Etidenoe, 8, PRESIDENT. PowEB Oveb Public Peosecution, see CoNSTmrnoNAL Law, 4, 5. PRESUMPTION. See Cobpoeations ; Gbant, 2; MaijICE Eeom Homicide, see Homicide ; Payment ; Teediot, 1. PRINCIPAL AND AGENT. See Aoency. PROBABLE CAUSE. See Malicious Pboseobtion, 1, 2, PROCESS. Peooess — Sebvioe Afteb Retubn Day. — An execution after the expiration of the time within which it is made returnable, is of no force, and an arrest under it is a trespass. — JStoyel v. Lawrence, 31. See Ceiminal Pboceddee, 1, 2; Homestead, 1, 2; Sebtice of. Justification FOE Obsteucting Mail, see Obsteucung the Mail. PRODUCTION OP PAPERS. Peoduction of Papees in Cause in State Coubt. — The federal courfs will not grant a subpcena duces tecum, for the purpose of bringing up the original papers in a cause in a State court. — Dexter v. SuUivan, 585. PROMISSORY NOTES. 1. Peomissoey Note— Liability of Indoesee. — Though a note is void as against the maker, it may be good against an indorser, in favor of an indorsee, who took it relying upon the indorsement. The contract made by indorsement extends to all future indorsees, even where notes are not negoiidble. Codwise V. (xleason, 40. 2. Indoesement of Note Befobe Matubity — Bueden of Pboof. Whether in an action by an indorsee of a negotiable note against the maker, a discharge by the payee shall be available as a defense until it be shown by the maker that the receipt was given before the indorsement was made. — Stuart v. Gh-eenleaf, 77. 3. Pbomissoey Note— ADMissiBiLiTy of Admissions of Joint Makeb to Pbovb Execution.- In an action upon a promissory note executed by A. and B. jointly, brought against B. only, after the bankruptcy of A., under the laws of the United States, it was held that the admissions of A. were evidence against B. — Howard v. Cohb, 75. PBOSEOUTION FOR CRIME. See Ceiminal PEooia>UBE, 1. PUBLICATION. See Copyeight, 1. QUANTUM MERUIT. See Attobneys. EECORDS. See Evidekce, 11. ROBBEEY OF THE MaIL. 737 KEGISTBATION. 1. Dked — Eeqistratioh , Where Beq-dibed. — Registration of a deed or conveyance of land lying in several counties ia sufficient, under the statute of registration, if made in either of the counties. — Simms v. Bead, 219. 2. CoNVETAscE — Eeqistkation OF, Necessaby to Pass Legal Estate The legal estate will not pass to the grantee by a deed of conveyance, unless such deed be registered, registration having been substituted by the legislature for livery of seizin Patlon v. Beily, 180. 3. Deed — Eeqistkation, SnrFiciEucT op. — Eegistration of a deed in the county in which one of several grantees resides is not sufficient in North Carolina under the Act of 1788. — Waison v. Bohbins, 233. i. Deed — Effect of Eeqistkation op. — The registration of a deed vests the legal estate in the grantee, as of the date of the deed, and relates back to that time, — Patton V. Cooper, 193. 5. Equity — Effect of Eeqisteked Deed With Notice of Pbiok 'Ukkegisteeed Conveyance — Injunction. — A court of equity has jurisdiction to postpone a registered deed talien with notice of a prior unregistered deed, and to enjoin an action at law based on the former deed against the grantee under the latter deed. — Lonsdale Co. v. Moies, 655. See Deeds, 5. EEMOVAL OF CAUSES. 1. Eemoval of Cause, CoMPEiiABLE by Mandamus. — A mandamus will lie to enforce the removal of a cause from a State to a federal court. — Spraggins v. Humphries Co. Ct., 218. 2. Eemoval op Cause Fbom State Court — Effect on Attaohment. — On the removal of a cause, an attaohment will have the same effect as if the cause had remained in the State court Clarke v. C/iase, 638. 3. Eehoval op Cause — Effect on Injunction. — On the removal of a cause an injunction granted by the State court falls ; the motion for an injunction must be renewed in the Circuit Gow.rt.—Bov3en v. Kendall, 704. 4. Eemovai, op Cause to Fedeual Court — Act op Mabch 3, 1875. — On a petition for removal of a cause from a State court, no action of the State court upon either petition or bond is required by the Act of March 3, 1875: it is for the United States court to determine the sufficiency of the latter — Dunham, y. Bavrd, 18. BENT. Joint Tenant— Bight to Collect Bent. — One joint tenant, his executor or trustee, may receive the whole rent or appoint a bailiff to coUect it — Newman T. Keffer, 502. See Gbound Bent. EETOLT. See Ceehinal Law, 2. EIGHT TO BEGm AND CLOSE. See Peactice, 2. ROBBEEY OF THE MAIL. 1 RnBBEBY OP THE Mail, When Capital Ceimb. -Bobbing the mail is a capital in-ime if the robbery be effected by the use of dangerous weapons, thus putting in LTardv the life of the person having the custody of such mails, and putting Wm in fear and his life in peril is putting his life in jeopardy .- ZTiti^ed States V. Wood, 456. Bbun. C. 0.-47. 738 Secondary Evidence. BOBBEBT OF THE MAIL (Continued). 2. BoBBEKY OF THE MAIL, Whek Capii&i. CnrKE. — The first offonse of robbing the mail is a capital crime, if the robbery be effected by the use of dangerous weapons, thus putting in jeopardy the life of the person having the custody of such mails. — United States r. Hare, ii9. RULES OF COURT. See ADimsjajn, 4. SALVAGE. 1. Saltaoe, Amottnt op. — Liberal compensation must always be made in case of salvage, not only with a view to the value and danger of the thing saved, but for the general interest in promoting exertions in such cases. — Fisher v. The Sybil, 274. 2. Deposttaey of Saved Pboeebtt — Liabilitt in AuMiEALry. — Where the depos- itary of saved property has rendered himself liable for the lien of the salvors, he may be proceeded against in admiralty. — Gates v. Johnson, 633. See Seauxk, 2. SCIEE FACIAS. See AnMEnBntATOKS akd Executobs, 1 ; LiAEiLm or Bah. fob IsTEEEST, see Batt., 3 ; HEm, 3. SEAMEN. 1. Seamen's 'Wages. — 'Where a vessel ha3 been captured snd condemned, and pending an appeal was restored, held, that the seamen were entitled to full wages. — Hitchen v. Wilson, 253. 2. Seamen — Wages, When Earned — Salvage. — The crew of a ship abandoned at sea, and set fire to by order of the master, who were npon monthly wages, can- not recover wages up to the time of abandonment, although the vessel, freight, and earnings be fully insored, and certain articles iior which the crew received a compensation in the nature of salvage) were saved. — Niphon's Crew, 577. 3. Seameh — Wages of, Dueino Detention of Vessel. — Where a vessel is captured and finally acquitted, seamen are entitled to full wages, including the time of detention, even though the master offered to discharge them and send them home and they refused. — Wesley v. Biays, 254. 4. Captdee of Vessel — Seamen's Eights to Wag^b. — Where a vessel after unload- ing at one port proceeds thence and is captured, the seamen are entitled to wages to the time of unloading at such port Jones v. Smith, 255. 5. Shipping hsacuEa— CoNSTEUcrioN of Contract. — Where shipping articles pro- vided that a vessel should proceed to Batavia, and thence if required to ports beyond the Cape of Good Hope, held, that an extension of the voyage to Japan does not violate those articles. — Id. 6. Seamen — AuTHoErrr of Masieb. — A seaman has a right to refuse to inflict pun- ishment on one of the crew, unless some justifiable cause is pointed out to him, — United States v. Wirm, 519. 7. Masteb — ATiTHOiUTr OvEB Seamen. — The power of the master to disrate an ofScer or seaman is remedial and not penal, and docs not authorize a degiada^ tiou to the lowest place, if there is an intermediate office which the man may be supposed competent to fill. — Smith v. Jordan, 627. 8. Admiralty — Cobfobal Punishment — Right of Master of Vessel to Admin- IKTER. — The master of a vessel has a right during the voyage to punish mari- ners by corporal chastisement for disobedience to his reasonable commands, for insolence and other offenses. — Mtchaelson t. Denison, 63. 6EC0NDAPY EVIDENCE. See Evtoeitce, 1, 2, 4, 7. Statute of Limitations. .739 SEXATE, PoWEE TO Commit foe Contempt, see Contempts, 1, 2, 3. SET-OFF. Set-off — Joint Debt AoArssr Intuvidcai, Debt. — Where a judgment has been obtained against one of two joint makera of a promiBsovy note, by an indoraee thereof, the former cannot, either iit law or in equity, setoff a note given by the payee to him individual y. — Cobb v. Huydock, 91, SHERIFF. 1. Shekitf — Liabiutt TOR Neglect to Sell Afteh Execution. — Where a sheriff after seizing property on execution neglects to aeU it, he is liable in damages Dunlap V. West, 27. 2. Sheeifp — LiABiLrrv foe Escape of Deetok. —In an action of debt on the stat- i;te .1 gainst a sheriff for an escape, the plaintiff can recover no more tlian his debt and costs; and he can recover his debt and costs although lie may have lost nothing by the escape. But in an action on the ease at conimon law the plaintiff niiiy recover for what damages be ims sustained. — Sarsi v. J)uaeaM, 521. SHIPPING. 1. Shippins — Whauso Tesseiw Cleabanoe bt. What Neoessabt. — A whaling vessel on taking a clearance need not give a bond; a whaling voyage is not, in the meaning of Congress, a foreign one. — Taber v. United Stntts, 523. 2. Saippixa — Enbolljient of Vessel, Peesumption of Validity of. — An enroll- ment will be presumed to have been legally taken out unless the contra,ry is proven. — United States v. Setmon, 532. See Seajuen, 5. SLAVERY. 1. EeMAUTDEH-MAN — PitOPEETT IN ISSHE OF SuiVES DuBIHG PaKTICULA-R ESTATE. — The iisne of a female slave, horn diuing the pendency of a particular estate, are property of the remainder-man Preston v. McGauQliey, Hi. 2. TllANS?0KTATI03 OF PeBSOKS FOE PUBPOSES OF SlAVEEV, WhAT CoKSTITCTES. — The off jiifle within the Act of Congress of May 10, ISOO, consists in ti-ansporting persons from one foreign country to another, with a view to their being sold as slaves; amd the offense is complete when the vessel ai-rivee at the place of desti- nation, whether the slaves are so!d or not.— United States v. SinWi, 82. 3. Slate Teade, Wsat Constitutes. — It is sufficient on an indictment for engag- ing in slave trade to prove that the accused were engaged in procuring slaves, and sending tliem on by another vessel ; it is not necessary that the vessel to which they telong should actually have had slaves on ho-ivii.— United States v. Andrews, i22. 4 StAVE TiiADE, What Ikhictable as. —It is an indictable offense, under the act of ' Coiigrfss, to fit, equip, load, or otherwise prepare a vessel in the United States for the purpose of procuring and transporting slaves fi-om a foreign pkce to any other place.— United States v. Malebran, 426. SOVEKEIGNTY. See Intebsa-etonal Law, 1, 2. STANDINGr MUTE. See Cbiminal Peocedube, 3. STATE COUBTS. Effect of Decisions ani> Laws in Fedeeal Coimra, see Fedebal Couets, 1, 2 ; Depositions, i. STATUTE OF LIMITATIONS. See Limitattons. 740 Title, statdtoey consteuction. 1. Statdtoky Constkuotion — Powers of Comers. — The judiciary, as a co-ordinate branch of the government, may declare a statute to be void if repup^nant to the Constitution ; but where laws within the general scope of tlie authority of the legislature are passed, the courts cannot declare the same void because, in their opinion, they are eontrai"y to principles of natural justice. — Mlnge v. GUmour, 383. 2. CONSTKUOTION OF STATUTES — STATE LAWS IN OtHEB STATESi — The StatutCS Of one State or counti'j, when they become the subject of adjudication in another State or conntiy, are to receive the same construction thai is given them in the courts of the former, where that construction is made to appear. — Humplirey- ville Copper Go, v. Sterling, 3. STAT. iNJnNOTioN to Stay Tbial, see IiEFUKcncws, 2. STOCK. Tbaksfeb of Bane Stock, see Banes and Baneinq, 2. STOPPAGE IN TEANSITU. See Bills of Ladino. SUBPCENA DUCES TECUM. See Pbodbciion of Papees. SUEPEISE. See Nonsuit. SUETEYS. 1. Geant — SuEVEY Necessaey to Establishment or. — To establish a grant there must be an actual survey or such a description, with reference to natural object or other lines capable of id,entifloation, as will lead to the place called for. — Rutledge v. Buchanan, 237. 2. Land — Suevey Equal to Entby. — A survey is placed on the same footing as an entry by the Tennessee Act of 1807, — Thompson v. Norwood, 221. 3. Stievey, How Made Where Calls abe iNUEFrarrE.— Where the calls in an entry are indefinite the survey should be made either in u square or an oblong. — Henderson v. Long, 188 : Shepherd v. Baily, 242. 4. Land — Suevey, How Made Wheee Calls Indefinite. — If the call be for land to lie on a creek, the survey must be made so as to give an equal quantity of land on each side of it. — Shepherd v. Baily, 242. 5. Plat andSubtey to Explain Calls in Gbaht. — For the purpose of showing mistake in the calls of a grant, resort may be had to the plat and certificate of survey. — Dallum v. Breckenridge, 210. See Entry ; Neoessaey to Appeopbiation of Land, see Land, TAX TITLES. 1. Tax Title— Eequisttes of. — To support a title under a tax sale a strict com- pliance with the statute is requisite, and wliere the reputed owner is proceeded against as though he were occupier, the sale is illegal. — Ride's Lessee v. Parker, 239. 2. Tax Sale — Owner, How Bound by. — In order to bind the owner by a tax sale the land must have been proceeded against in the name of the real owner, or by such a description as will clearly identify it. — Bush's Heirs v. Williams, 234. TITLE. Oldest Gbant as Evidence of, see Grant, 5, 6 ; Adverse Possession, see Limitations, 1 ; Evidence, 7. "Waeeant. 741 TKKASON. Treason, What Constitotes. — Delivering up prisoners and deserters to an enemy is treason, and nothing but a well-grounded feai- of life will excuse the act United States v. Hodges, 465. TEUSTS AND TRUSTEES. 1. Trustee Estopped to Dekt Talidity of Teust. — A traatee cannot attack tho Talidity of the deed under which lie has gone into possession unless he clearly show that he has been deceived into taking a title, which without knowledge or laches on his part really belonged partly or wholly to himself. — Hwnt v. Savfoi-th, 679. 2. TsrSTEE — PowEK TO BiND Cestot Que Tbi-st.— Tf a trustee who has procured such insurance be empowered by the cestui que trust to adjust the amount of the loss, and sae for its recovery, he may refer to arbitration the question what is due on the policy, and an award pursnant to fhe submission binds the cestui qiie trust Brown v. Hartford F. Ins. Co., 663. 8. Iksueance — Action on Policy fok Benefit of Cestui Que Tkubt. — Where one procures insurance on property held by him in trust, and pays the .premium as such trustee, and by the express terms of the policy the insurance money is made payable in case of loss to the cestui que trust, and it does not appear that the trustee had any interest in the insurance, or any authority from the cestui que trust to adjust the loss, or to receive the insurance moue^j the Iriistee cannot bring the action to recover it — Id. See AssictNMENis. TKDST DEED. See Mortgages, L UNDUE INFLUENCE. See Feaudul-est Cqhteyance3, 2. USAGE. See Delivery of Gooes, 2. USUEY. Accounting to Charge Mortgagee With Usury.— A mortgagee will not be required to account, that he may be charged with usury. —Sowen v. SmdaU, 707. VAEIANCE. See Ihdictment, 3, 4; Pleaeinc, 6, 7. VERDICT. 1 Verdict— Pkksitmption OF Judgment from.- If upon tlie plea of n«nieZ record the record produced shows a verdict, but no judgment entered thereon, the court will presume, according to the loose practice in this State, that there was a judgment entered pursuant to the verdict, and pronounce that there is such a record. — TensdjZe v. 5ranto«, 28. „,, ■ . 2 Praotice -Verdict, When Set Aside as Being Against Evidence. - This court ' will not set aside a verdict as being against the evidence, unless it can see that *h^ inrv in coming to their result, were influenced by passion or prejudice, or unViSy felUnto a plain mistake. - 6ViiH. v. Son^,^ ^ K. M. B. Co., 593. VOID AND VOIDABLE. See Grant, 1. WAGES. See Seamen, 1, 2, 3, 4. WAB. See Limttations, 8. WAEEANI . Duty of Judge to Issue, see Criminal Procedure, 1. 742 Writs. ■water eights. 1. Easement — Eight to Take Wateb. — An incorporeal ri?;lit to Trater may be granted in gross. — Lonsdale Go. t. Mows, 655. 2. Canal — Ptblio Use of — Wateb Eiqhts is. — A canal corporation may i^ermit water to be drawn tbiongh its canal for mill purposes, if neitber tbe public use nor any private rigbt is thereby injured. — Id. WHABF. Deliykkt of Goook at, see DELiVEEy of Goods, 1, 2. WITNESSES. 1. "Witness — "When Incapacitatkd to Tesefy bt Ikterest. — A witness will be compelled to testify, though he be interested, if he voluntarily became interested after he had acquired bis. knowledge on tbe subject. But if this interest is created by act of law, or of the party who calls him, h& cannot be so compelled to testify. — Tahim's Exr. y. Lofton, 175. 2. Witness — What Ibtekest wtli. DiSQirAnEEX. — A witness, tbongb be be inter- ested, if liis interest is equal either way, is competent to testify. — Stump v. Soberts,. 224. 3. Witness — Intebest as a Disqualiticatigis. — If the objection to a witness on account of interest arise from proof made by the objector, the witness cannot , discbarge himself of tbe objection by any matter swom by himself; it must be remoTed by proof drawn from some other source. — Murray v. Mars7i„ 22. i. Paeties as Witnesses. — In an action in assumpsit on a book account, the parties cannot be permitted to testify. — JEdicards v. Aichols, 43. 5. Wttxess— Inoompetencx feom: Inteeest, How PnovED. — Interest of a witness for the purpose of proving his incompetency to testify cannot bo shown by hearsay evidence or declarations out of court. — Vlnivrfu Lei^s^fe v. WoctPUt 1S7. C. EvroENCE — DisoHAiSBED Bankrdpt Indoeseb: as WnrxEss. — A baiikriipt who indorsed a note before his bankruptcy, and who has obtained his certificale, is a good witness for tbe indorsee. — Murray y. Marsh, 22. 7. WiTXESs — Paedoned Felon as.— A person who has serTed out a sentence on conviction of felony may be restored by pardon to competency as a witness, but thejuiyis tbe sole judge of tbe credit to be given to his testimony. — TTniled Slates V. Jones, 462. 8. Witness — Paety to Ceime — When CoisLPEiiLED to TESTtFT. — In an action of debt to recover tbe penalty given by the Act of Congress of May 10, 18C0, for trinsporting slaves from one foreign port or place to another, a partl- ceps erimims, after tbe expiration of two years from the commission of tbe offense, without any prosecution against bim being commenced, may be com- pelled to testify against the defendant, though such witness has been out of tbe jurisdiction of tbe United States a considerable part of the two years. A fleeing from justice within the proviso to iiie United States Statute of Limitations for crimes does not necessarily import a fleeing from prosecution begun. — United States V. Smith, 82. See AcrniEALTY, 4 ; Continuance; Deeds, 1, 2. WBITING. See Eyide-n-ce, 4, 5. WRITS. Weit De Homixe Eeplegiando. — Tlie writ de homine repleglando, having for its object the discharge of the prisoner on bail, with a view to try the question of the validity of the law mider which he is held in confinement, is of eom- nioM I'lKbt. and maybe issued as of conrse ; it will not, however, lie against a sheriff who has tbe parly i:i custody under process. — Elkison v. Deliesseline, 431. Sec M.\XDAMUS.