REPORTS OF OASES ARGUED AND ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, JANUARY TERM 1830. By RICHARD PETERS, COUNSELLOR AT LAW, AND REPORTER OF THE SUPREME COURT OF THE UNITED STATES. VOL. III. THIRD EDITION. EDITED, WITH NOTES AND REFERENCES TO LATER DECISIONS, BY FREDERICK C. BRIGHTLY, AUTHOR OF THE “FEDERAL DIGEST,” ETC. NEW YORK: BANKS & BROTHERS, LAW PUBLISHERS, No. 144 NASSAU STREET. ALBANY: 475 BROADWAY. 1883. Entered according to Act of Congress, in the year 1888, By BANKS & BROTHERS, In the office of the Librarian of Congress, at Washington. JUDGES OF THE SUPREME COURT OF THE UNITED STATES, DUEING THE PEBIOD OF THESE EEPOETS. Hon. John Marshall. Chief Justice. " William Johnson, “ Gabriel Duvall, w Joseph Story, >• Associate Justices. w Smith Thompson, " John McLean, “ Henry Baldwin, J John McPherson Berrien, Esq., Attorney-General. Tench Ringgold, Marshal. William Thomas Carroll, Clerk. [iii] OBITUARY. The obligation to record the decease of Mr. Justice Washington is felt with the deepest sensibility. Associations of years, during which it was the good fortune of the writer to possess his friendship and esteem, were thus terminated ; his judicial career, of thirty-one years, distinguished by all the lustre and usefulness that talent, learning and virtue could give, was closed by that event. He died in Philadelphia, on the 26th day of November 1829, in the sixty-eighth year of his age ; and his remains were conveyed to Mount Vernon, and deposited in the same tomb with those of his uncle, the Father of his Country. It may be said with truth, that Mr. Justice Washington belonged to two states—Virginia and Pennsylvania. He was born and educated in Virginia, and there, for some time, practised his profession ; he acquired his knowledge of the law in Pennsylvania ; in that state, the great portion of his eminent judicial labors were performed ; and in that state he died. He was equally beloved, honored and lamented in both states. Mr. Justice Washington was the son of John A. Washington, Esquire, of Westmoreland county, Virginia, who was the next eldest brother of General Washington. His father was a gentleman of strong mind, and possessed the consideration and confidence of all who knew him. He was, with honor to himself, a delegate in the state legislature of Virginia, and a magistrate of the county in which he resided. Bushrod Washington, his son, received a part of his classical education in the house of the inflexible patriot, Richard Henry Lee, under a private tutor ; his studies were continued under his paternal roof, and afterwards, at William and Mary College. At that respectable institution, commenced his intimacy and friendship with Mr. Chief Justice Marshall, with whom he became afterwards associated in the supreme court of the United States ; and whose esteem, confidence and respect, he continued to possess, in the fullest extent, to the close of his life. The invasion of Virginia, by Lord Cornwallis, called from their studies, for its defence, the gallant youth of the state, and among them Bushrod Washington, who joined a volunteer troop of cavalry, under Colonel John [vl vi OBITUARY. F. Mercer, in the army commanded by the Marquis La Fayette. During the whole of the summer, he remained in the field, and until Cornwallis had crossed James river. It wTas then supposed, that the invaders intended to move on South Carolina ; the troop was disbanded, and its members returned to their homes. In the following winter, he came to Philadelphia, and, under the auspices and affectionate care of General Washington, he wTas placed, as a student at law, in the office of Mr. Wilson; a gentleman of great legal learning and high character, and who was afterwards appointed a justice of the supreme court of the United States. After completing his studies, he returned to Virginia, and practised his profession in his native county, with reputation and success. In 1787, he was chosen a member of the house of delegates of Virginia ; and the following year, as one of that body, he assisted in the adoption and ratification of the Constitution of the United States, by the state of Virginia. From Westmoreland, he removed to Alexandria, a wider sphere for the exercise of his talents as an advocate and a jurist ; and he went afterwards from thence to Richmond, and there assumed and maintained an equal station with the gentlemen of that bar; whom to equal, has always been, and continues to be, conclusive evidence of the highest professional attainments and character. During his arduous, industrious and extensive practice at the bar, in Richmond and throughout the state, Judge Washington undertook to report the decisions of the supreme court of Virginia ; a work in two volumes, of high authority in the courts of that state, and in those of the Union, He was married in 1785, to Miss Blackburn ; he had no children. He was a devoted husband to an affectionate wife ; and such was the strength of her conjugal attachment to her deceased husband, that she survived him but three days. His high and just reputation as a lawyer, the purity and integrity of his character, and the confidence and respect of the whole community with whom he lived, induced President Adams, in- 1798, to appoint him an associate justice of the Supreme Court of the United States, to fill the vacancy which had occurred by the decease of Mr. Justice Wilson. He continued to hold that honored and honorable station until his death ; and presided in the circuit court of New Jersey and in that of Pennsylvania, from April 1803, having been, during that year, assigned to the circuit courts composing the third circuit. Judge Washington was the favorite nephew of President Washington, and the devisee of Mount Vernon ; the much-loved residence of that pure, distinguished and venerated patriot. To Judge Washington he also gave his library, and he also bequeathed to him his public and private papers ; at the same time, appointing him one of his executors. These high and affectionate testimonials of confidence and esteem must have ever been held OBITUARY. vH in proud possession by him on whom they were bestowed, and by whom they were deserved. It is with peculiar satisfaction, that the writer has been permitted by Mr. Justice Story to introduce here his evidence of the talents, the usefulness, the qualifications, and the virtues of Mr. Justice Washington. This was given in a notice written by him immediately after that occurrence. Laudari a viro laudato. “For thirty-one years, Judge Washington held the station of justice of the supreme court, with a constantly increasing reputation and usefulness. Few men, indeed, have possessed higher qualifications for the office, either natural or acquired. Few men have left deeper traces in their judicial career of everything which a conscientious judge ought to propose for his ambition, or his virtue, or his glory. His mind was solid, rather than brilliant ; sagacious and searching, rather than quick or eager ; slow, but not torpid ; steady, but not unyielding ; comprehensive, and at the same time cautious ; patient in inquiry, forcible in conception, clear in reasoning. He was, by original temperament, mild, conciliating and candid ; and yet was remarkable for an uncompromising firmness. Of him, it may be truly said, that the fear of man never fell upon him ; it never entered into his thoughts, much less was it seen in his actions. In him the love of justice was the ruling passion—it was the master-spring of all his conduct. He made it a matter of conscience to discharge every duty with scrupulous fidelity and scrupulous zeal. It mattered not whether the duty w'ere small or great, witnessed by the world or performed in private ; everywhere the same diligence, watchfulness and pervading sense of justice were seen. There was about him a tenderness of giving offence, and yet a fearlessness of consequences, in his official character, which it is difficult to portray. It was a rare combination, which added much to the dignity of the bench, and made justice itself, even when most severe, soften into the moderation of mercy. It gained confidence, when it seemed least to seek it. It repressed arrogance, by overawing or confounding it. “ To say, that as a judge he was wise, impartial and honest, is but to attribute to him those qualifications, without which the honors of the bench are but the means of public disgrace or contempt. His honesty was a deep vital principle, not measured out by worldly rules. His impartiality was a virtue of his nature, disciplined and instructed by constant reflection Upon the infirmity and accountability of man. His wisdom was the wisdom of the law, chastened, and refined, and invigorated by study, guided by experience, dwelling little on theory, but constantly enlarging itself by a close survey of principles. “ He was a learned judge. Not in that every-day learning which may be gathered up by a hasty reading of books and cases; but that which is the result of long-continued laborious services, and comprehensive studies. vili OBITUARY. He read to learn, and not to quote ; to digest and master, and not merely to display. He was not easily satisfied. If he was not as profound as some, he was more exact than most men. But the value of his learning was, that it was the keystone of all his judgments. He indulged hot the rash desire to fashion the law to his own views ; but to follow out its precepts, with a sincere good faith and simplicity. Hence, he possessed the happy faculty of yielding just the proper weight to authority ; neither, on the one hand, surrendering himself to the dictates of other judges, nor, on the other hand, overruling settled doctrines upon his own private notions of policy or justice. “ But it is as a man that those who know him best will most love to contemplate him. There was a daily beauty in his life, which won every heart. He was benevolent, charitable, affectionate and liberal, in the best sense of the terms. He was a Christian, full of religious sensibility and religious humility. Attached to the Episcopal church by education and choice, he was one of its most sincere, but unostentatious friends. He was as free from bigotry as any man ; and at the same time that he claimed the right to think for himself, he admitted without reserve the same right in others. He was, therefore, indulgent even to what he deemed errors in doctrine, and abhorred all persecution for conscience’ sake. But what made religion most attractive in him, and gave it occasionally even a sublime expression, was its tranquil, cheerful, unobstrusive, meek and gentle character. There was a mingling of Christian graces in him, which showed that the habit of his thoughts was fashioned for another and a better world.” At the session of the Supreme Court, at January term 1830, Mr. Berrien, the Attorney-General of the United States, moved the court to have the proceedings of the bar and oflicers of the court, expressive of their high sense of the merits and talents of Mr. Justice Washington, entered on the record of the court. Mr. Chief Justice Marshall said : “ The sentiments of respect and affection which the gentlemen of the bar and the oflicers of the court have expressed for the loss of our deceased brother, are most grateful to me, and I’can say, with confidence, to all my brethren. No man knew his worth better or deplores his death more than myself ; and this sentiment, I am certain, is common to his former associates. I am very sure, I may say for my brethren, as well as for myself, that the application is most gratifying to us all; and that in ordering the resolutions to be entered on the minutes of oui- proceedings, we indulge our own feelings not less than the feelings of those who make the application.” Immediately on the decease of Mr. Justice Washington, the bar of Philadelphia assembled to testify their sense of the loss sustained in his decease by the court and by the nation. Resolutions expressive of their sentiments and feelings were unanimously adopted, and a gentleman of OBITUARY. ix high attainments and station was requested to pronounce an enlogium on the deceased. The bar of the circuit court of the United States, for the eastern district of Pennsylvania, have caused to be placed a mural tablet of marble, in a recess immediately behind and above the seat of the judges, in the room lately arranged for the circuit court, in the “ Hall, of Independence,” in the city of Philadelphia ; on which is inscribed :— THIS TABLET Records The affection and respect of The Members of the Philadelphia Bar, for BUSHROD WASHINGTON, An Associate Justice of the Supreme Court of the United States alike distinguished for Simplicity of Manners, * and Purity of Heart: Fearless, dignified, and enlightened, as a Judge; No influence or interest could touch his integrity, or bias his Judgment: A zealous patriot, and a pious Christian. He died at Philadelphia, On the 26th of November, A. D. 1829; leaving to his professional brethren, A spotless fame; and to his country, The learning, labor and wisdom of a Long judicial Life. A TABLE OF THE NAMES OF THE CASES REPORTED IN THIS VOLUME. The References are to the Star *pages. A ♦page American and Ocean Ins. Co., Canter v................... 307 Anon...................... 397 Armor, Parsons v......... 410 B Bank of the Commonwealth v. Wister................... 431 Bank of United States v. Swan, 68 Bank of Washington, Thornton v...................... 36 Bedford, Parsons v........ 443 Bell v. Cunningham......... 69 Boyce’s Executors v. Grundy... 210 Buford, United States v.... 12 C Canter v. American and Ocean Ins. Co...................... 307 Chinoweth v. Haskell......... 92 Clay v. Smith............... 411 Common Council of Alexandria, Fowle v........... i. 398 Coulter, Patapsco Ins. Co. v.... 222 Cunningham, Bell v........... 69 D Dennie, Harris v............ 294 •page DeWolf v. Usher............ 269 Dupont, Shanks v........... 242 F Farrar v. United States........ 459 Finlay v. King............. 346 Fowle v. Common Council of Alexandria................. 398 G Gordon v. Ogden............... 33 Grundy, Boyce’s Executors v... 210 H Harris v. Dennie........... 294 Haskell, Chinoweth v........ 93 Honey, Smith v..............497 I Inglis v. Sailor’s Snug Harbour.. 99 J Jackson ex dem. Hart v. Lamphire....................... 280 K Keene v. Meade’s Executrix.... 1 King v. Finlay...............346 xii CASES REPORTED. L ♦page Lamphire, Jackson ex dem. Hart ........................280 M McCluney v. Silliman........ 270 McDonald v. Magruder.........470 Magruder, McDonald v......... 470 Magruder v. Union Bank....... 67 Meade’s Executrix, Keene v.... 1 N New Jersey v. New York....... 461 O Ogden, Gordon v.............. 33 P Patapsco Ins. Co. v. Coulter.... 222 Parsons v. Armor............ 410 Parsons v. Bedford...........433 Preston, United States v..... 57 S Sailor’s Snug Harbour, Inglis v. 99 Shanks v. Dupont............ 242 Silliman, McCluney v........ 270 ♦page Smith, Clay v.................411 Smith v. Honey............... 469 Stringer v. Young............ 320 Swan, Bank of United States v. 68 T Thornton v. Bank of Washington...................... 36 Trustees of the Sailor’s Snug Harbour, Inglis v......... 99 U Union Bank of Georgetown, Magruder v.................. 87 United States v. Buford...... 12 United States, Farrar u...... 459 United States v, Preston..... 57 Usher, De Wolf v........... 269 W Watkins, Ex parte.......... 193 Willison v. Watkins......... 43 Wister, Bank of the Commonwealth v................... 431 Y Young, Stringer v.......... 320 A TABLE OF TH® CASES CITED IN THIS VOLUME. ________________ » The references are to the Star *pages. A ♦PAOlt Abbett v. Skinner.................1 Sid. 229...................... 187 Abbott v. Sebor..................3 Johns. Ch. 39................. 240 Ackerley v. Vernon...............1 P. Wms. 733................... 354 Addison v. Gandasequi............4 Taunt. 374................... 429 Ainsley v. Martin............. .9 Mass. 454..................... 160 Aislabie v. Rice.................3 Madd. 256, 260................ 363 Apollo, The.................... 1 Hagg. Ad. 306............... 314 Apollon, The.....................9 Wheat. 362..............310, 312-13 Arcangelo v. Thompson............2 Camp. 620.................... 238 Attorney-General v. Bowyer......:2 Ves. 714, 727................150, 152 Attorney-General v. Clarke......Ambl. 422.......................... 143 Attorney-General v. Downing.....Ambl. 550, 571..................150, 152 Attorney-General v. Tancred.....Ambl. 351...................... 152 Attorney-General v. Vigors......8 Ves. 282......................... 174 Auchmuty v. Mulcaster............8 Dow. & Ry. 593............... 162 Auriol v. Thomas.................2 T. R. 52........................ 38 B Badlam v. Tucker.................1 Pick. 389...................... 297 Bank of Columbia v. Patterson.... 7 Cr. 299..................... 400 Bank of United States v. Carneal. .2 Pet. 552....................... 89 Bank of Utica v. Wagner..........2 Cow. 712....................... 38 Baptist Association v. Hart.....4 Wheat. 1, 27.........«H4, 116, 149, 192 Barclay v. Cousips...............2 East 544..................... 239 Barnes v. Worlich...............Cro. Jac. 25 ....................... 37 Bartlet v. King.................12 Mass. 543 ..................... 117 Bell «.Morrison..................1 Pet. 351 ....................25, 54 Bishop v. Pentland. ............7 B. & C. 214.................... 237 [xiii] xiv CASES CITED. ♦page Blight v. Rochester............7 Wheat. 535, 549..........50, 122 Bollman, Ex parte..............4 Cr. 75..................197, 199 Bond v. Jay....................7 Cr. 350.................... 274 Bracebridge v. Cook............Plowd. 424................... 186 Bradshaw y. Rodgers............20 Johns. 103................ 153 Brooke v. Middleton............1 Camp. 445................... 38 Brown v. Mott..................7 Johns. 361................. 477 Brunker y. Cook................11 Mod. 122.................. 174 Burford, Ex parte..............3 Cr. 448.../................ 208 Burges v. Purvis...............1 Burr. 326.................. 187 Busk y. Royal Exch. Assurance Co.2 B. & Aid. 82.........231, 233-6 C Caignet v. Pettit..............2 Dall. 234.................. 160 Calvin’s Case..................7 Co. 1, 6.............155, 167 Catftn y. Jackson..............8 Johns. 520................. 154 Chace y. Vasquez...............11 Wheat. 429................ 318 Chapman y. Brown...............3 Burr. 1634................. 117 Chatham y. Sleigh..............3 Lev. 67................j..... 186 Chisholm y. Georgia............2 Dall. 419.................. 466 Clanrickard y. Sidney..........Hob. 272 ...................185-6 Clark y. Washington............12 Wheat. 40................. 400 Clementson y. Williams.........8 Cr. 72.................... 274 Cleveland y. Union Ins. Co.....8 Mass. 308................ 235 Coggshall v. Pelton......... .7 Johns. Ch. 292............. 153 Columbian Ins. Co. y. Catlett..1 Wheat. 386................. 228 Commonwealth v. Chapman........1 Dall. 53................160, 167 Conard y. Atlantic Ins. Co.....1 Pet. 386.................. 295 Conningham y. Mellish..........1 Eq. Cas. Abr. 273 ; Prec. Ch. 31.. 373 Cooke y. Woodrow...............5 Cr. 14.................... 345 Coolidge y. Payson.............2 Wheat. 66................. 423 Cooper y. Franklin............ 1 Roll. 334.................. 186 Cowell y. Edwards..............2 Bos. & Pul. 268........... 477 Craig y. Bradford..............3 Wheat. 594............... 334 Creagh y. Wilson...............2 Vern. 572............... 354 Cunnington y. Springfield......2 Pick. 394................. 160 Cuthbert y. Haley..............8 T. R. 390................... 37 D Dartmouth College y. Woodward.. 4 Wheat. 518.............. 153 Dash y. Van Kleeck.............7 Johns. 477................ 153 Dawson y. Godfrey..............4 Cr. 321................. 171 Deering y. Earl of Winchelsea... .2 Bos. & Pul. 270......... 478 Dewey y. Brown.................2 Pick. 387................. 188 Doe y. Acklam..................2 B. & C. 779............... 121 Douglas y. Waddle..............1 Ohio 413................. 477 Dowtie’s Case,.................3 Co. 9, 10................. 327 Dunham y. Gould.........,.....16 Johns. 367................. 38 Dunlap y. Dunlap..............12 Wheat. 576................ 213 CASES CITED. xv ♦PAGB Durham’s Case.................1 Vent. 225, 234 ................. 393 Duroure v. Jones..............4 T. R. 300........................ 155 E Earle v. Rowcroft.............8 East 126....................... 232 Elton v. Elton................1 Ves. 4.......................... 354 Eyre v. Glover................16 East 218..................... 239 F Fairfax v. Hunter.............7 Cr. 619........................ 258 Falkland v. Bertie............2 Vern. 333, 342.............353, 363 Faw v. Roberdeau..............3 Cr. 174........................ -274 Findlay v. Riddle.............3 Binn. 162........................ 118 Finley v. Williams............9 Cr. 164, 167.................. 333 Fisher v. Harnden.............1 Paine 55, 58-9.................. 197 Fleckner v. Bank of United States. 8 Wheat. 354.................. 38 Floyer v. Edwards.............Cowp. 112........................... 38 Fosdick v. Norwich Ins. Co....3 Day 108......................... 240 French v. Bank of Columbia....4 Cr. 141, 161................89, 474 Fuller v. Roosevelt...........5 Johns. Ch. 174................... 220 G Gaither v. Bank of Georgetown.. .1 Pet. 37........................ 37 Gardners. Ward................2 Mass. 236................123, 160-2 Gelston v. Hoyt...............13 Johns. 141 ; 3 Wheat. 246... .312-13 Gillet v. Wray................1 P. Wms. 284...................... 354 Godfrey’s Case................11 Co. 42, 45.................... 185 Goodright v. Forrester........8 East 552, 566............... 174 Goodtitle v. Wood.............Willes 211; 3 T. R. 94. 174 Grascot v. Warren.............12 Mod. 128....................... 354 Graydon v. Graydon............2 Atk. 16........................ 354 Grayson v. Virginia...........3 Dall. 320....................... 466 Green v. Liter................8 Cr. 229................133, 172, 188 Green v. Watkins..............7 Wheat. 28, 31..........133, 172, 174 Griffith v. Frazier........»..8 Cr. 9................../......... 198 Grim v. Phoenix Ins. Co.......13 Johns. 451............*......... 234 H Hambleton v. Wells............1 Hen. & Munf. 307 n.........332, 341 Handy v. Dobbin...............12 Johns. 220.................... 131 Harvey v. Aston...............] Atk. 361......................... 354 Hebron v. Colchester..........5 Day 169......................... 160 Henrickson v. Margetson........ .2 East 541...................... 239 Hepburn v. Dunlop.............1 Wheat. 179...................... 213 Heyman v. Parish..............2 Camp. 149....................... 238 Hill v. Bishop of London...... .1 Atk. 618-20.................... 373 Himely v. Rose.................5 Cr. 313...................... 198 Hobart v. Countess of Suffolk.....2 Vern. 645.................... 371 Hodgson v. Glover..............6 East 316....................... 239 xvi CASES CITED. ♦PAGH Holbrook v. Baker............... 5 Greenl. 309.............. 297 Hoofnagle v. Anderson..........7 Wheat. 212................ 341 Hopkins v. Hopkins.............1 Ves. 269.................... 117 Hopkirk v. Bell................3 Cr. 454...................272, 274 Hovenden v. Annesley...........2 Sch. & Lef. 628.............. 51 Hughes v. Edwards.......... ..9 Wheat. 490, 497.............. 52 Hinkeköper v. Burrus............ 1 W. C. C. 109............. 330 I Ibbetson v. Beckwith...........Cas. temp. Talb. 157........... 365 Inglis v. Sailor’s Snug Harbor .... 3 Pet. 99............... 245 J Jackson «. Lunn................3 Johns. Cas. 109............ 249 Jackson «. Varick..............7 Cow. 238.........128, 131, 175 177 Jackson v. White...............20 Johns. 313.................. 160 Johnson «. Buffington..........2 Wash. 116.................... 334 Johnston v. Brown.............. 3 Call 259, 268............... 333 Jones v. Hoe..................... 3 T. R. 88.................. 174 Jones «. Williams..............Ambi. 651...................... 143 Josefa Segunda, The............5 Wheat. 338 ; 10 Id. 312....61, 64 K Kane v. Bloodgood..............7 Johns. Ch. 90, 122............ 52 Kearney, Ex parte..............7 Wheat. 38...........196-7, 199, 208 Kelly v. Harrison..............2 Johns. Cas. 29............246, 248 Kempe v. Kennedy............. .5 Cr. 173.................... 203 Kennedy «.Strong...............14 Johns. 128.................. 312 Kennell «. Abbott.'............4 Ves. 802.................... 373 Kilham «. Ward.................2 Mass. 244...............123, 160-2 King«. Riddle..................7 Cr. 168...................... 274 Kirkbank «. Hudson.............7 Price 212................... 153 L Lane «. Jackson................5 Mass. 157.................... 297 Lewis, The.....................2 Dods. 210.................... 313 Loomis «. ShaW.................2 Johns. Cas. 36............... 240 Loraine «. Cartwright..........3 W. C. C. 151.................. 74 Loyd «. Spillet................2 Atk. 150..................... 371 M McArthur«. Browder.............4 Wheat 488, 491..............333-4 Mcllvaine «. Coxe..............4 Cr. 211.....124-5, 160, 163, 171, 265 McLean «. Tomlinson............5 Munf. 220, 223............... 334 Mallabar «. Mallabar...........Cas. temp. Talb. 78............ 373 Manchester «. Boston...........16 Mass. 230..............160, 165-6 Mandeville «. Wilson...........5 Cr. 15.....................22, 272 CASES CITED. xvii *PAGB Mansfield v. Dugard............1 Eq. Cas. Abr. 195.......390, 393-4 Marianna Flora, The............ .11 Wheat. 58........... 314 Marine Ins. Co. v. Hodgson.....6 Cr. 200...................... 22 Marsh v. Martindale........ .3 Bos. & Pul. 154............. 37 Marsteller v. McClean..........7 Cr. 156, 158............... 274 Martin v. Commonwealth......... .1 Mass. 347, 397........ 160, 248 Martin v. Woods...............9 Mass. 377..................... 266 Middleton’s Case..............Moore 889...................... 143 Milnes v. Slater..............8 Ves. 308...................... 388 Morgan v. Morgan..............2 Wheat. 290.................... 213 Moss v. Byron.................6 T. R. 379....................230-1 Mumford v. Hallett............1 Johns. 439.................... 239 N New Rochelle v. Pelton........ 7 Johns. Ch. 292............. 143-4 North v. Crompton.............1 Ch. Cas. 96.................. 372 O Odiorne v. Colley.............2 N. H. 66..................... 297 P Palmer v. Downer..............2 Mass. 179..................260, 268 Palmyra, The..................12 Wheat. 17; 10 Id. 502.....314, 318 Peyton v. Robertson.............9 Wheat. 527................... 34 Phillips v. Bridge............11 Mass. 247.................... 297 Phipps, Case of .............2 Pick. 394 n................... 123 Phyn v. Royal Exch. Assurance Co.7 T. R. 505............230-31, 235 Pierce v. Jackson.............6 Mass. 242.................... 297 Pipon v. Cope.................1 Camp. 434..................... 238 Poor v. Robinson..............10 Mass. 131.................... 133 Porter’s Case.................1 Co. 24........................ 115 R Randal v. Payne...............1 Bro. C. C. 55................. 354 Renner v. Bank of Columbia....9 Wheat. 581.................... 41 Reynish v. Martin.............3 Atk. 333..................... 354 Riddle v. Proprietors.........7 Mass. 169..................... 400 Rivet’s Case...........-1.....Moore 890....................... 141 Rogers v. Rogers............3 P. Wms. 193..................... 372 Rolt’s Case...................Moore 855....................... 141 Rose v. Himely................4 Cr. 241, 268, 552........197-8, 314 Rowley v. Gibbs.................. 14 Johns. 385............... 312 S Santa Maria, The........ 10 Wheat. 431.................. 318 Santissima Trinidad, The......7 Wheat 348..................... 267 3 Pet.—B xviii CASES CITED. ♦page Schimmelpennich v. Bayard......1 Pet. 264................ 423 Scot v. Scot...................4 Leon. 70................... 186 Sewall v. Lee..................9 Mass. 363................ 248 Shelly’s Case..................1 Co. 93..................... 390 Skillern v. May................6 Cr. 267................... 206 Smith v. Coffin................2 H. Bl. 444, 461....131, 176, 180, 444 Smith v. King.................16 East 282.................. 373 Smith, Matter of..............16 Johns. 107..............131, 177 Somes v. Skinner...............3 Pick. 52................. 188 Stamma v. Brown................2 Str. 1173.................. 231 T Talbot v. Jansen...............3 Dall. 133.................. 267 Taylor v. Brown................5 Cr. 234, 241..........333, 339-40 Ten Eyck v. Waterbury..........7 Cow. 52.................... 133 Terrett v. Taylor..............9 Cr. 43..................... 154 Thellusson v. Woodford.........4 Ves. jr. 125............... 117 Thomas v. Acklam...............2 B. & C. 779. ...162, 164, 171, 255, 266 Thomas v. Howell...............1 Salk. 170 ; 4 Mod. 66.... 358, 394 Toulmin v. Anderson............1 Taunt. 227................. 238 Toulmin v. Inglis..............1 Camp. 421.................. 238 Tyssen v. Clarke...............3 Wils. 541.................. 172 V United States v. Hamilton.....3 Dall. 17................... 207 United States v. Hoar.........2 Mass. 311..................... 22 United States v. Williams.....4 Hall’s L. J. 462............. 267 V Vinton v. Bradford............13 Mass. 114................... 297 Vos v. United Ins. Co.........2 Johns. Cas. 180.............. 235 w Walker v. Maitland............5 B. & Aid. 174.............. 237 Walton v. United States.......9 Wheat. 651.................. 22 Ware v. Hylton................ 3 Dall. 225.................. 160 Waring v. Jackson.............1 Pet. 571................... 175 Watson v. Todd................5 Mass. 271.................. 297 Wheeler v. Sherval............Moseley 301.................... 388 White v. White.................1 Bro. C. C. 12 ; 7 Ves. 423. 152 Wilkes v. Lion................ 2 Cow. 355................... 128 Wilkinson v. Leland...........2 Pet. 627, 657.............. 154 Williams v. Armroyd...........7 Cr. 423.................... 206 Wilson v. Daniel..............3 Dall. 401..................33-4 Wilson v. Hart................7 Taunt. 295................ 429 Wilson v. Mason.............. .1 Cr. 45, 101............... 333 CASES CITED. xix ♦page Wilson v. Weatherby..........1 N. & McCord 373............. 55 Wise v. Columbian Turnpike Co... 7 Cr. 276.................. 35 Wise v. Withers..............3 Cr. 331.................197, 208 Witherington v. McDonald.....1 Hen. & Munf. 306.......... 341 Wood v. Repold...............3 Har. & Johns. 125......... 476 Y Yarborough v. Bank of England... 16 East 6................. 400 Yeaton v. United States......5 Cr. 281...................... 66 Young v. Commonwealth........6 Binn. 88..................... 22 RULES AND ORDERS OF THE SUPREME COURT OF THE UNITED STATES. 11 February, 1830. There having been two associate justices of the supreme court appointed since its last session : it is ordered, that the following allotment be made of the chief justice and the associate justices of the said supreme court among the circuits, agreeably to the act of congress in such case made and provided, and that such allotment be entered on record, viz.: For the first Circuit, the Hon. Joseph Story. “ second Circuit, the Hon. Smith Thompson. “ third Circuit, the Hon. Henry Baldwin. “ fourth Circuit, the Hon. Gabriel Duvall. “ fifth Circuit, the Hon. John Marshall, Ch. Justice. “ sixth Circuit, the Hon. William Johnson. “ seventh Circuit, the Hon. John McLean. March, 1830. The court on the second day in each term, hereafter, will commence calling the cases for argument, in the order in which they stand on the docket, and proceed, from day to day, during the term, in the same order ; and if the parties, or either of them, shall be ready when the case is called, the same will be heard; and if neither party shall be ready to proceed in the argument, the cause shall go down to the foot of the docket, unless1 some good and satisfactory reason to the contrary shall be shown to the court. That ten causes only shall be considered as liable to be called on each day during the term, including the one under argument, if the same shall not be concluded on the preceding day. No cause shall be taken up out of its order on the docket, or be set down for any particular day; except under special and peculiar circumstances, to be shown to the court. Every cause which shall have been twice called, in its order, and passed, and put at the foot of the docket, shall, if not again reached during the term it was last called, be dismissed, and no longer continued on the docket. 12 August, 1796. Ordered, that when process at common law, or in [xxi] xxii ORDERS OF COURT. equity, shall issue against a state, the same shall be served on the governor, or chief executive magistrate, and attorney general of such state, (a) Montalet v. Murrayy February Term 1806. Marshall, Ch. J., stated the practice of the court to be, that when there is no appearance for the plaintiff in error, the defendant may have the plaintiff called, and dismiss the writ of error ; or may open the record and pray for an affirmance. In such a case, costs go of course. (a) These rules of court have been omitted in 1 Wheaton and 1 Peters. This omission arose from the fact that they were not regularly entered, with the other rules of court, by the then clerk of the court, at the time of their adoption. CASES DETERMINED IN THE SUPREME COURT OF THE UNITED STATES. JANUARY TERM, 1830. Richard R. Keene, Plaintiff in error, v. Margaret Meade, Executrix of Richard W. Meade, deceased, Defendant in error. Execution of commission.—Evidence. A commission was issued in the name of Richard M. Meade, the name of the defendant being Richard W. Meade: this is a clerical error in making out the commission, and does not affect the execution of it. p. 6. It may well be questioned, whether the middle letter of .a name forms any part of the Christian name of a party; it is said, the law knows only one Christian name, and there are adjudged cases, strongly countenancing, if not fully establishing, that the entire omission of a middle letter is not a misnomer or variance.1 p. 7. A witness, the clerk of the plaintiff, examined under a commission, stated the payment of a sum of money to have been made by him to the defendant, and that the defendant, at his request, made an entry in the plaintiff’s rough cash book, writing his name at full length, and stating the sum paid to him, not so much for the sake of the receipt, as in order for him, the witness, to become acquainted with his signature, and the way of spelling his name. It is not necessary to produce the book in which the entry was made, and parol evidence of the payment of the money is legal; it cannot be laid down as a universal rule, that where written evidence of a fact exists, all parol evidence of the same fact is excluded, p. 7. It is not known, that there is any practice in the execution or return of a commission, requiring a certificate, in whose handwriting the depositions returned with the commission were taken down; all that the commission requires is, *that the commissioners, having reduced _ * the depositions taken by them to writing, should send them, with the commission, L under their hands and seals, to the judges of the court out of which the commission issued; but it is immaterial, in whose handwriting the depositions are; and it cannot be required, that they should certify any immaterial fact. p. 8. A certificate by the commissioners, that A. B., whom they were going to employ as a clerk, had been sworn, admits of no other reasonable interpretation, than that A. B. was the person appointed by them as clerk, p. 9. It is not necessary to return with the commission, the form of the oath administered by the commissioners to the witnesses; when the commissioners certify, the witnesses were sworn, •See Franklin v. Talmadge, 6 Johns. 84; Bratton v. Seymour, 4 Watts 329; New York Roosevelt v. Gardinier, 2 Cow. 463 ; Milk v. Fire Extinguishing Co. v. Philadelphia Fire ExChristie, 1 Hill 102; Aylesworth v. Brown, 10 tinguishing Co., 31 Leg. Ins. 148. Barb. 167; Van Voorhis v. Budd, 39 Id. 479; 3 Pet.—1 1 2 SUPREME COURT [Jan’y Keene v. Meade. and the interrogatories annexed to the commission were all put to them, it is presumed, that they were sworn and examined as to all their knowledge of the facts.1 p. 10. Meade v. Keene, 3 Cr. C. C. 51, affirmed. Error to the Circuit Court of the district of Columbia, and county of W ashington. In the circuit court, the testator of the defendant in error, Richard W. Meade, instituted an action against Richard R. Keene, the plaintiff in error, for money lent and advanced to him, in Spain, where Mr. Meade, at the time of the loan, resided, and carried on business as a merchant. In order to establish the claims of the plaintiff below, a commission was issued to Cadiz ; and under the same, certain depositions were taken, which were returned with the commission. The commission was directed to the commissioners in a case stated to be depending in the court, in which Richard M. Meade was plaintiff, and Richard R. Keene, defendant ; and it was returned to the court, under the hands and seals of the commissioners, who certified, that the “ execution of the commission appears in a certain schedule annexed.” In the schedule annexed tó the commission, was also the following certificate, under the hands of the commissioners : “We, the undersigned, appointed commissioners to examine evidences in a cause depending in the circuit court of the county of Washington, in the district of Columbia, between Richard W. Meade, plaintiff, and Richard R. Keene, defendant, do hereby certify, that we have severally taken the oath, into the hands of each other, prescribed in the herein annexed commission, and we further certify, that we have likewise administered the oath prescribed by the same herein annexed commission, to Mr. James McCann, the clerk we are going to employ for the execution of the same.” * -, *The commission “ required the commissioners, or a majority of J them, to cause to come before them all such evidences as shall be named or produced to them by eithei* the plaintiff or defendant ; and to examine them on oath touching their knowledge or remembrance of anything relating to the cause.” The record did not show that any interrogatories were annexed to the commission. The commissioners also certified as to the execution of the commission in the following words: “We, the undersigned, do certify, that, in compliance with our duty, we shall examine the witnesses upon the the following interrogatories, which we deem necessary first to establish.” Interrogatories returned with the commission were then administered to the witnesses, and the separate answers to each written and returned. Frederick Rudolph, who was the clerk and book-keeper of Mr. Meade, testified as to one of the items of the account, “ that on the defendant’s receiving $250, the defendant himself made the entry thereof, in the rough cash book, writing his name at full length, probably, at my own request, not so much for the sake of the receipt, as in order for me to become acquainted with his signature, and the way of spelling his name.” On the trial of the cause, the counsel for the defendant objected to the reading of the commission, on the ground of a variance in the name of the 1 A formal objection to the mode of execut- motion to suppress ; it is too late, on the trial, ing a commission, must be made at the time of Doane v. Glenn, 21 Wall. 33. the examination of the witness, or upon a 2 5 SUPREME COURT [Jan’y Keene V Meade. such objections as ground of error. 7 Cranch 208. As to the variance, it was said, it was immaterial ; or if material, should have been the subject of a plea ; and if it had been pleaded, the plaintiff could have cured the defect, by an averment that the person named in the commission and the plaintiff were, the same. 5 Bac. Abr. 215 ; 1 Wash. 257 ; 1 T. R. 235. The evidence of Rudolph was not to prove the contents of the memorandum, but the advance of the money by the witness as the plaintiff’s agent. The entry in the book was but secondary evidence of the payment; and to claim that the whole of the account-book should have been annexed to the commission, was unreasonable ; and yet it must have been so annexed, if the position of the plaintiff in error is correct. It was also contended, that, upon a fair construction of the certificate of the commissioners, the execution of the commission was legal and proper. Thompson, Justice, delivered the opinion of the court.—This case comes up on a writ of error to the circuit court of the district of Columbia, and the questions for decision grow out of bills of exception taken at the trial, and relate to the admission of evidence offered on the part of the plaintiff, and objected to by the defendant. The first objection was to the admission of the depositions taken under a commission issued under a rule or order of the court below, on the ground # . of a variance in the name of *the testator, Meade, as set out in the com- • J mission, from that stated in the title of the cause. The commission purports to be in a cause between Richard M. Meade, plaintiff, and Richard R. Keene, defendant, whereas, the name of the plaintiff is Richard W. Meade. The whole variance, therefore, consists in the use of M instead of W, the middle letter in the plaintiff’s name. This objection, we think, was properly overruled. It was a mere clerical mistake, in making out the commission. The rule or order or the court for the commission was in the right name, Richard W. Meade ; and the oath taken by the commissioners, and administered to the clerk and the witnesses who were examined, and all the proceedings under the commission were in the cause according to its right title. It was a mistake of the officer of the court, which the court, on motion, might have corrected, on the return of the commission. It may be regarded as mere matter of form, and which has not in any manner misled the parties. And indeed, it may well be questioned, whether the defendant was at liberty to raise this objection. It has been urged at the bar, that this was an ex parte commission, taken out by the plaintiff, and that the defendant has, therefore, waived nothing ; but the record now before this court warrants no such conclusion. The mode and manner of taking out the commission is governed and regulated by the practice of the court below, and of which this court cannot judge. From the commission itself, and the interrogatories upon which the witnesses were examined, it would appear to have been a joint commission. The commissioners are required to examine all witnesses named or produced to them, either by the plaintiff or the defendant. And one of the interrogatories put to the witnesses was, do you know of any sum or sums of money paid by the defendant to the plaintiff, in money, bills or merchandises, which are not credited in the amount now before you? It can hardly be presumed, that such an interrogatory would have been put by the plaintiff ; it was to elicit matter of defence, and which concerned the 4 1830] OF THE UNITED STATES. 0 Keene v. Meade. defendant only. The motion for the commission having been made by the plaintiff, would not preclude the defendant from *afterwards joining * in it, with the consent of the plaintiff. And if it is to be viewed as a *■ joint commission, the alleged mistake may be considered as made by both parties, and not to be taken advantage of by either ; and besides, it may well be questioned, whether the middle letter formed any part of the Christian name of Meade. It is said, the law knows only of one Christian name. And there are adjudged cases strongly countenancing, if not fully establishing, that the entire omission of a middle letter is not a misnomer or variance (Litt. 3 ay 1 Ld. Raym. 563 ; 5 Johns. 84 ; 4 Ibid. 119, note a) ; and if so, the middle letter is immaterial, and a wrong letter may be stricken out or disregarded. The general objection to the testimony taken under the commission, on account of the alleged variance, having been overruled, the plaintiff’s counsel read the deposition of F. Rudolph, which, in that part which went to prove the first item of $250 in the plaintiff’s account, states that the defendant made the entry on the plaintiff’s rough cash book, himself ; writing his name at full length, at his request, not so much for the sake of the receipt, as in order for him to become acquainted with his signature, and the way of spelling his name. The witness fully proved the actual payment of the money. But the defendant objected to such parol proof, as written evidence of the payment existed and should be produced. This objection we think not well founded. The entry of the advance made by the defendant himself, under the circumstances stated, cannot be considered better evidence, within the sense and meaning of the rule on that subject, than proof of the actual payment. The entry in the cash book did not change the nature of the contract arising from the loan, nor operate as an extinguishment of it, as a bond or other sealed instrument would have done. If the original entry had been produced, the handwriting of the defendant must have been proved, a much more uncertain inquiry that the fact of actual payment. It cannot be laid down as a universal rule, that where written evidence of a fact exists, all parol evidence of the same fact must be excluded. Suppose, the defendant had written a letter to the plaintiff, acknowledging the receipt of the *money ; _ $ it certainly could not be pretended, that the production of this letter would be indispensable, and exclude all parol evidence of the advance ; and yet it would be written evidence. The entry made by the defendant in the cash book was not intended, or understood, to be a receipt for the money, but made for a different purpose ; and even if a promissory note had been given as written evidence of the loan, the action might have been brought for money lent, and this proved by parol. The note must have been produced on the trial; not, however, as the only competent evidence of the loan, but to be cancelled, so as to prevent its being put into circulation ; a reason which does not in any manner apply to the present case. This objection has been argued at the bar, as if the court permitted the plaintiff to withdraw or expunge that part of the deposition which related to the written acknowledgment, in order to let in the parol evidence. But this view of it is not warranted by the bill of exceptions. This was offered to be done by the plaintiff’s counsel, but no such permission was given by the court. The parol evidence was deemed admissible, notwithstanding the written entry of the advance. The parol evidence did not in any manner 5 1880] OF THE UNITED STATES. 17 United States v. Buford. transferred to said plaintiffs. And the defendant in fact says, that the said cause of action did not accrue or arise within five years next before the suing out of the original writ in this cause, &c. 9. And because the claim and demand of said plaintiffs was derived by assignment and transfer from James Morrison, of a certain writing executed by the defendant to said Morrison, acknowledging the receipt of $10,000, by the defendant from Morrison, stipulating to account therefor to said Morrison, under and by virtue of an act of congress, which assignment as aforesaid was made on the 7th day of March 1823, and for no other consideration whatever. And the defendant in fact says, that said Morrison, before and at the date of said assignment, in the district aforesaid, was indebted to said defendant in a sum equal to the sum demanded by said plaintiff, to wit, the sum of $11,000, for money by said defendant, before that time, loaned and advanced to'the said Morrison, for money had and received by said Morrison, to the use of said defendant, and for money by said defendant paid, laid out and expended for said Morrison, and all at the special instance and request of said Morrison ; and being so indebted, he, said Morrison, in consideration thereof, then and there assumed upon himself, and promised said defendant to pay said sums of money, whenever he should be thereto afterwards requested, and although often requested, has not paid the same; which said sum of money, said defendant is here willing, and offers to set off against the plaintiffs’ demand. To the 9th plea, the attorney of the United States filed a replication, stating that the United States ought not to be barred by anything therein contained, because he says, that *the said James Morrison was not, at p the date of said assignment in said plea mentioned, indebted to the said defendant, as in pleading the defendant hath alleged. Upon this replication, issue was joined. To the 6th, 7th and Sth pleas, the plaintiffs replied, that the United States ought not to be barred by anything contained in the said pleas, because the demand in the declaration accrued for and in consideration of $10,000 of and belonging to the United States, and by the said James Morrison, as an officer of the United States, advanced to the said Thomas Buford, as an officer of the United States, to wit, as deputy commissary of the United States, then and there, and to the use of the said United States, and by the said Thomas Buford, in his official character as deputy commissary as aforesaid, receipted for to James Morrison, in his official character as deputy quartermaster-general. And the said attorney for the United States brings here into court the said receipt, signed with the proper name of said Thomas, and in his official character as aforesaid, and assignment, and the act of congress of the United States, in the 6th, 7th „and 8th pleas of the defendants mentioned, duly certified according to the acts of the congress of the United States in such case made and provided, which said sum of money, of and belonging to the United States, so as aforesaid advanced by the said deputy quartermaster-general, to the said deputy commissary of the United States, and so as aforesaid receipted for, by said Thomas Buford, as deputy commissary as aforesaid, is the same money, and receipt, and assignment, in the said 6th, 7th and Sth pleas of the defendant mentioned ; and this the said attorney of the United States is ready to verify : wherefore, &c. 11 1830] OF THE UNITED STATES. 24 United States v. Buford. States did not necessarily derive from the same a right of action against the receiver of the money. The provisions of the acts of congress authorizing treasury settlements and making them evidence, did not apply to such a case. These laws comprehended cases of disbursing officers, liable to account to the United States ; and the *certificate of the treasury department could be controverted _ by the defendant, and he had a right to do so, by the usual practice *-and forms of pleading. The 6th, 7th, and 8th pleas are good, if the defendant was not indebted to the United States. It is admitted, that the statute of limitations does not run against the United States, but as between Morrison and Buford, it did run; and when the assignment of the claim on the receipt "was made, the statute had attached, and the United States were in no better situation than was that of Morrison, before and at the time of the assignment. The suit should have been instituted by the plaintiffs, as assignees, and it would have been, in that form, subject to the rights of the defendant, growing out of the statute of limitations, and to all the off-sets to which the defendant, was entitled, in his particular and private relations with Morrison. The United States, if they claimed on the receipt and assignment, and desired to show that the statute did not run, should have stated the same in their replication, by alleging a demand with five years. The case comes up without any opinion of the court upon the point of law. There is a question of law which arises in the pleadings, they having ended in a demurrer ; and the pleadings, it is submitted, present the only question in the cause. The receipt is not in question. It may show a responsibility to the United States by the defendant; but as it is not in the pleadings, it cannot aid the plaintiffs’ case. The question for the decision of this court is, not whether the declaration is good, but whether the pleas are good. If they are, the defendant must go wTithout day. The declaration, whether it must be considered as general or special, is a statement of-a debt due to Morrison, and assigned to the United States, and the pleas allege, that if the debt existed, it is barred by the statute of limitations, and there is no claim. This is not met by the United States. They do not traverse this, and thus put it in issue ; nor do they traverse the defendant’s allegation which is made, that the transaction with Morrison was private. The replication is, therefore, defective. *It is not seen how this court can look any further into the pleadings on a demurrer, and it L must be conceded, that the error is in the replication. The matters asserted in the pleas stand uncontradicted; and must be taken as true, against the plaintiff. This is decisive of the cause. If Buford was, by the terms of the receipt, liable, on demand, a demand should have been alleged. The refusal of the court, after judgment in favoi' of the defendant, to allow the plaintiffs to withdraw the replication, in order to set up the agreement, was in the exercise of their discretion, and not examinable in this court. To admit, as ground of error, the refusal of motions of this kinds, would be productive of frequent injustice. The record never shows why acts of the character of that complained of are done, and thus a superior court would often be found proceeding upon very different circumstances from those which existed in the case. It is doubtful, whether it is within the province of a court to interfere 15 25 SUPREME COURT United States v. Buford. [J an’y with such a decision as that now objected to. It is not a final judgment; and the final judgment upon the pleadings in the case is yet subsisting, and must remain, until reversed. The motion was to set aside the judgment, and this is not a ground of error. The rule is invariable, that there should be something in the record upon which the court can exercise their judgment. The principles recognised in this court in Sell v. Morrison, 1 Pet. 351, in reference to the statute of limitations, establish the rule to be, that an acknowledgment of the debt will not take the case out of the statute. There must be a promise to pay the debt. The courts of Kentucky have held these principles to be correct, and they support the decision of the circuit court upon the agreement between the defendant and Morrison. McLean, Justice, delivered the opinion of the court:—This suit was brought by writ of error from the circuit court of Kentucky, to reverse a judgment obtained in that court, against a claim prosecuted by the United States. The following errors are assigned by the Attorney-General. , *1. That the judgment of the circuit court on the defendant’s demur- J rer to the surrejoinder of the plaintiffs, growing out of the 6th, 7th and Sth pleas of the defendant, ought to have been for the plaintiffs and not for the defendant. 2. That the court erred, in not permitting the plaintiffs to withdraw their application to the defendant’s several pleas of limitation, and to plead the special agreement on that subject between Morrison and Buford. The declaration contains but one count, in which it is alleged, that the defendant was indebted to the United States in the sum of $10,000, for so much money by him, before that time, had and received, as an officer of the United States, to their use, as by account of the said defendant with the said United States, settled, examined and adjusted at the treasury department, duly certified, fully appears, &c. The treasury statement is as follows : Dr.—Thomas Buford, late deputy commissary, in account with the United States, to James Morrison, for amount received from him, per receipt, 21st December 1812, for which he is accountable, . . $10,000 The receipt referred to is in the following words : Received of James Morrison, deputy quartermaster-general, ten thousand dollars, for which sum I promise to account to him when called on. (Signed) Thomas Buford, deputy commissary of U. S. A. Under the following act of congress, this receipt was assigned to the United States. “ Be it enacted by the senate and house of representatives, in congress assembled, that the accounting officers of the treasury department be, and and they are hereby, authorized to allow James Morrison, late deputy quartermaster-general, in the settlement of his accounts, the sum of $10,000, which was advanced by James H. Pendell, an assistant deputy quartermastergeneral, providing that the said James Morrison shall first assign and trans-* . fer to the United States all his right and claim to the moneys *men- J tioned in a certain receipt by said Thomas Buford to said James Morrison, bearing date the 21st day of December, in the year 1812, &c.” The words of the assignment are, “ Now, I, James Morrison, in pursuance of the provisions of said law, do hereby assign and transfer to the United States, all my right and claim to the moneys mentioned in said receipt. 16 1830] OF THE UNITED STATES. 27 United States v. Buford. Witness my hand and seal this 7th day of March 1823. (Signed) James Morrison.” In the sixth plea, the defendant says, the plaintiffs actio non, because he says, that the account upon which the plaintiffs’ suit is founded, was for money alleged to have been advanced by James Morrison, to the defendant, on the 21st day of December 1812, in the district aforesaid, amounting to the sum of $10,000, for which, by the terms of transaction and agreement of said parties thereto, said Buford was to account to said Morrison for the same, and that said account and claim of said Morrison was, on the 7th day of March 1823, undei1 and by virtue of an act of congress, assigned and transferred by said Morrison to said plaintiffs; and the said defendant in fact says, that said demand and cause of action aforesaid, did not accrue to said Morrison, within five years next before said assignment; and this he is ready to verify,” &c. The seventh plea states the receipt of the money by the defendant from Morrison ; the assignment of the receipt; and that without any other consideration, and without the consent and privity of the defendant, the account in the declaration mentioned, was settled at the treasury ; to which he has at no time assented ; and the defendant says, that he did not undertake and assume to pay the said debt, in the declaration mentioned, within five years next before the assignment by the said Morrison, nor then, nor at any time subsequent. In the eighth plea, the defendant says, that the assumpsit and demand of said plaintiffs arose from and by virtue of a claim which was held by one James Morrison, for money by him advanced and loaned to said defendant, which wras assigned, &c. The attorney of the United States, in his replication, says, that by anything contained in the 6th, 7th and 8th *pleas of the defendant, they ought not to be barred, because they say, that the said demand in the *■ declaration accrued, for and in consideration of $10,000 of and belonging to the United States, and by the said James Morrison, as an officer of the United States, advanced to the said Thomas Buford, as an officer of the United States, to wit, as deputy commissary, then and there, to the use of the United States, and by the said Thomas Buford, in his official character as aforesaid, receipted to said James Morrison, in his official character as deputy quartermaster-general; and the said attorney brings here into court the said receipt, signed with the proper name of the said Thomas, in his official character as aforesaid, the assignment and the act of congress, in the 6th, 7th, and 8th pleas of the defendant mentioned, duly certified, &c., which sum of money is the same as referred to in the above pleas, &c. To this replication, there is a rejoinder by the defendant, asserting that the above sum of money was received upon an individual transaction, &c. The attorney for the United States, in his surrejoinder, says, that the said money demanded by the declaration and expressed in said receipt and assignment in the 6th, 7th and 8th pleas of the defendant, was the proper money of the United States, lent and advanced by the said quartermaster-general to the said Thomas Buford, as deputy commissary, and to the use of the said United States, &c. To this the defendant demurs, which presents for consideration the sufficiency of the 6th, 7th and 8th pleas of the defendant. In behalf of the government, it is contended : 1. That a good cause of action by the United States against Buford, existed prior to the assignment. 2. That the treasury settlement gave a right of action, and also the assign- 3 Pet.—2 17 28 SUPREME COURT - [Jan’y United States v. Buford. ment. 3. If the sum received by Buford from Morrison was public money, whether it was received in an official or private capacity, there can be no doubt, that Buford received it to the use of the United States, and that they may maintain an action against him. * , *The United States had a right to treat Morrison as their agent J in this transaction, by making Buford their debtor, and to an action brought against him, for money had and received, the statute of limitations would be no bar. It is, therefore, important, to consider, on what ground the plaintiffs seek to recover in this case. Is the declaration general or special ? It contains only one count, and that sets out the cause of action as arising from a settled account at the treasury department. The declaration must, therefore, be considered as special, and if the plaintiffs recover, they must recover upon the ground stated. The treasury statement, the receipt, and the assignment of it, are made a part of the declaration. An account stated in the treasury department, which does not arise in the ordinary mode of doing business in that department, can derive no additional validity from being certified under the act of congress. Such a statement can only be regarded as establishing items for moneys disbursed through the ordinary channels of the department, where the transactions are shown by its books. In these cases, the officers may well certify, for they must have official knowledge of the facts stated. But where moneys come into the hands of an individual, as in the case under the consideration, the books of the treasury do not exhibit the facts, nor can they be officially known to the officers of the department. In this case, therefore, the claim must be established, not by the treasury statement, but by the evidence on which that statement was made. The account, against Buford is founded on the receipt, and was made out on the day it was assigned by Morrison, under the special act of congress. Until this time, Morrison was charged on the books of the treasury with this sum of $10,000, and there can be no doubt, that he and his sureties were liable for it. As the advance of this sum to Buford was not made in pursuance of any authority, the treasury officers had no right to release Morrison from liability, by crediting his account with so much money paid to Buford. * i The declaration being special upon the treasury account, and *the J account being raised upon the assignment of the receipt, the claim of the United States to the sum in controversy, as presented, cannot be considered as existing prior to the assignment. It is objected, that, under this assignment, the United States may claim as assignees in equity, but not at law. This objection seems not to be well founded. In England, any instrument or claim, though not negotiable, may be assigned to the king, who can sue on it, in his own name. No valid objection is perceived against giving the same effect to an assignment to the government in this country. But the special act under which this assignment was made, put this question at rest. This act authorizes the assignment ; consequently, when made, the legal right is vested in the government, and authorizes a charge against Buford, on the books of the treasury. As more than five years had elapsed from the date of the receipt to the assignment, the statute of limitations will bar a recovery of this claim, unless the transfer of it to the United States has changed its character, or the terms of the receipt prevent the statute from operating, or, by some 18 1830] OF THE UNITED STATES. United States v. Buford. 30 promise or agreement between Morrison and Buford, the statute has been waived. It can require no argument to show, that the transfer of any claim to the United States cannot give to it any greater validity than it possessed, in the hands of the assignor. *If the character of the claim be so changed, as to exempt it from the operations of the statute of limitations, after the transfer, such transfer cannot have the effect to take the claim out of the statute, when it has run. But it is contended, that as the receipt promises to account for the sum of $10,000, when called on, it was necessary for the defendant to show, that no demand had been made, or that five years had elapsed, subsequent thereto and before the assignment. In this plea, the defendant states, that the demand and cause of action did not accrue within five years next before said assignment, &c. If a demand had been made, so as to prevent the effect of the statute, it was incumbent *on the plaintiffs to plead over and allege the fact. They have not done it, and this allegation of the *-plea stands uncontradicted, and is, consequently, admitted to be true. The defendant, in his plea, sets out, that the loan of the money was obtained from Morrison, to whom the payment was to be made, and represents the transaction as a private one. In the replication, the plaintiffs do not traverse this fact, but allege that the money belonged to the United States, and was advanced by Morrison, as an officer of the United States, to the defendant, as an officer. On the sufficiency of the plea, and the insufficiency of the replication, one of the counsel in the defence rests the cause. In the correct order of pleading, it is necessary that the facts of the plea should be traversed by the replication, unless matter in avoidance be set up. It is not sufficient, that the facts alleged in the replication be inconsistent with those stated in the plea ; an issue must be taken on the material allegations of the plea. In the case under consideration, it was material in the defence, to show that the loan of this money was a private transaction, and such is the statement of the plea, substantially. This fact should have been traversed in the replication. It was not donQ, and consequently, the replication is bad on demurrer. The writing set out in the bill of exceptions, it is insisted, shows a waiver of the statute by Buford. This writing was produced, after the decision of the court was given on the demurrer, and leave was then asked, to withdraw the replication to the plea of the statute of limitations, for the purpose of pleading this covenant, of which it was alleged, that the attorney for the United States had no knowledge, until after the decision on the demurrer. The court overruled the motion, upon the ground, that the writing would not be an avoidance of the statute, but afford only a substantive cause of action for a breach of its conditions. The court, it is contended, in refusing leave to amend, decided the effect of this covenant, and that they erred in their construction of it. *This court has repeatedly decided, that the exercise of the dis-cretion of the court below, in refusing or granting amendments of *• pleadings or motions for new trials, affords no ground for a writ of error. In overruling the motion for leave to withdraw the replication and file a new one, the court exercised its discretion, and the reason assigned, as influencing that discretion, cannot affect the decision. 19 32 SUPREME COURT Gordon v. Ogden. [Jan’y This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Kentucky, and was argued by counsel : On consideration whereof, it is considered, ordered and adjudged by this cdurt, that the judgment .of the said circuit court in this cause be and the same is hereby affirmed. *33] * Alexander Gordon and others Francis B. Ogden. Appellate jurisdiction. The plaintiff below claimed more than $2000 in his declaration, but obtained a judgment for a less sum. The jurisdiction of this court depends on the sum of value in dispute between the parties, as the case stands upon the writ of error in this court; not on that which was in dispute in the circuit court, p. 34. If the writ of error be brought by the plaintiff below, then the sum which the declaration shows to be due, may be still recovered, should the judgment for a smaller sum be reversed; and consequently, the old sum claimed is still in dispute, p. 34. But if the writ of error be brought by the defendant in the original action, the judgment of this court can only affirm that of the circuit court, and consequently, the matter in dispute cannot exceed the amount of that judgment; nothing but that judgment is in dispute between the parties.1 p. 34.- Error to the Circuit Court for the District of Louisiana. Ogden moved to dismiss the writ of error in this case, on the ground that the court had not jurisdiction of the cause, the sum in controversy not amounting to $2000, the amount for which a writ of error is allowed. He stated, that the action was instituted for the violation of a patent, and the amount of the recovery in damages was $400, by the verdict of the jury. If, under the provision of the patent law, the damages are to be trebled, it will not amount to a sum authorizing the writ of error. Although the damages laid in the declaration are $2000, yet, after verdict, as the writ of error is taken by the defendant below, the only matter in dispute here is the amount of the verdict, or at most, treble that sum, being $1200. If the sum stated in the declaration shall be allowed to ascertain the amount in dispute, in every case Of tort, or of claims of uncertain damages, the plaintiff, who might insert any sum in his declaration, could secure the right to a writ of error to this court. Coxe, for the plaintiff in error, the defendant below, on the authority of *041 Wilson v. Daniel, 3 Dall. 401, *contended, that the matter in dispute J originally determined the jurisdiction ; and in this case, the sum stated in the declaration ascertains the amount. He also cited Peyton v. Robertson, 9 Wheat. 527 ; Cooke v. Woodrow, 5 Cranch 14. Marshall, Ch. J., delivered the opinion of the court.—A motion ha< been made to dismiss this writ of error because the court has no jurisdiction 1 Smith v. Honey, post, p. 469; Knapp v. 4 Wall. 164; Merrill v. Petty, 16 Id. 344-6; Banks, 2 How. 73; Walker v. United States, Thompson v. Butler, 95 U. S. 695. 20 1830] OF THE UNITED STATES. 34 Gordon v. Ogden. over it. The plaintiff below claimed more than $2000 in his declaration, but obtained a judgment for a less sum. The defendant below has sued out a writ of error, and contends now, that the matter in dispute is not determined by the judgment, but by the sum claimed in the declaration. The court has jurisdiction over final judgments and decrees of the circuit court, where the matter in dispute exceeds the sum or value of $2000. The jurisdiction of the court has been supposed to depend on the sum or value of the matter in dispute in this court, not on that which was in dispute in the circuit court. If the writ of error be brought by the plaintiff below, then the sum which his declaration shows to be due, may still be recovered, should the judgment for a smaller sum be reversed ; and consequently, the whole sum claimed is still in dispute. But if the writ of error be brought by the defendant in the original action, the judgment of this court can only affirm that of the circuit court, and consequently, the matter in dispute cannot exceed the amount of that judgment. Nothing but that judgment is in dispute between the parties. The counsel for the plaintiff in error relies on the case of Wilson v. Daniel, 3 Dall. 401. That case, it is admitted, is in point. It turns on the principle, that the jurisdiction of this court depends on the sum which was in dispute before the judgment was rendered in the circuit court. Although that case was decided by a divided court, and although we think, that upon the true construction of the 22d section of the judiciary act, the jurisdiction of the court depends upon the sum in dispute between the parties, as the case stands upon the writ of error, we should be much inclined to adhere to the decision in Wilson v. Daniel, had not a contrary practice since prevailed. In Cooke v. * Woodrow, 5 Cranch 13, this court said, “ if the judgment below be for the plaintiff, that judg- L ° ment ascertains the value of the matter in dispute.” This, however, was said in a case in which the defendant below was plaintiff in error, and in which the judgment was a sufficient sum to give jurisdiction. The case of Wise and Lynn v. Columbian Turnpike Company, 7 Cranch 276, was dismissed, because the sum for which judgment was rendered in the circuit court, was not sufficient to give jurisdiction, although the claim before the commissioners of the road, which was the cause of action and the matter in dispute in the circuit court, was sufficient. The reporter adds, that all the judges were present. Since this decision, we do not recollect, that the question has been ever made. The silent practice of the court has conformed to it. The reason of the limitation is, that the expense of litigation in this court ought not to be incurred, unless the matter in dispute exceeds $2000. This reason applies only to the matter in dispute between the parties in this court. We are all of opinion, that the writ of error be dismissed, the court having no jurisdiction of the cause. This cause came on to be heard, on the transcript of the record from the district court of the United States for the district of East Louisiana, and was argued by counsel: On consideration whereof, and of the motion made by Mr. Ogden in this cause, on a prior day of this term, to wit, on Thursday, the 28th of January, of the present term of this court, to dismiss this writ of error for want of jurisdiction, the amount in controversy not exceed- 21 35 SUPREME COURT [Jan’y Thornton v. Bank of Washington. ing the sum of $2000 ; it is ordered and adjudged by this court, that the writ of error in this cause be and the same is hereby dismissed, for want of jurisdiction, on the ground, that the sum in controversy does not exceed the sum of $2000 ; and the same is dismissed accordingly. *36J *Anna Maria Thornton, Executrix of William Thornton, Plaintiff in error, v. Bank of Washington. Demurrer to evidence.— Usury. The party who demurs to evidence seeks thereby to withdraw the consideration of the facts from the jury; and is, therefore, bound to admit not only the truth of the evidence, but every fact which that evidence may legally conduce to prove, in favor of the other party; and if, upon any view of the facts, the jury might have given a verdict against the party demurring, the court is also at liberty to give judgment against him. p. 40. The taking of interest in advance, upon the discount of a note, in the usual course of business, by a banker, is not usury; this has beeif long settled, and is not now open to controversy. p. 40. The taking of interest for sixty-four days on a note, is not usury, if the note, given for sixty days, according to the custom and usage in the banks of Washington, was not due and payable until the sixty-four day. In the case of Renner v. Bank of Columbia, 9 Wheat. 581, it was expressly held, that under that custom, the note was not due and payable before the sixty-fourth day, for until that time the maker could not be in default, p. 40. Where it was the practice of the party who had a sixty-day note discounted at the Bank of Washington, to renew the note, by the discount of another note, on the sixty-third day, the maker not being in fact bound to pay the note, according to the custoin prevailing in the district of Columbia; such a transaction on the part of the banker, is not usurious, although on each note the discount for sixty-four days was deducted. Each note is considered as a distinct and substantive transaction; if no more than legal interest be taken upon the time the new note has to run, the actual application of the proceeds of the new note to the payment of the former note, before it comes due, does not, of itself, make the transaction usurious. Something more must occur; there must be a contract between the bank and the party, at the time of such discount, that the party shall not have the use and benefit of the proceeds, until the former note becomes due, or that the bank shall have the use and benefit of them in the mean time.1 Error to the Circuit Court of the District of Columbia, for the county of Washington. This case was brought before the court to reverse the judgment of the circuit court on a demurrer to the evidence offered by the defendants in error, the plaintiffs below, to sustain a claim on Mr. Thornton, as indorser on a promissory note, discounted at the Bank of Washington, for the benefit of one Bailey, the maker of the note. The facts of the case are stated in the opinion of the court, delivered by Mr. Justice Story. *C. C. Lee and Jones, for the plaintiffin error, contended, that J the evidence offered by the plaintiffs below proved that usury had 1 s. p. Walker v. Bank of Washington, 3 How. 62. But discounting a note, on the theory that 360 days make a year, though the practice be universal, is usurious. New York Firemen Ins. Co. v. Ely, 2 Cow. 678; Bank of Utica v. Wager, Id. 712; s. c. 8 Id. 308; Utica Ins. Co. v. Tilman, 1 Wend. 555; Bul-22 lock v. Boyd, Hoffm. Ch. 294. Usury being a defence that must be strictly proved, it will not be presumed, that a note dated on one day, with interest from a previous day, was for money lent on the date of the note. Ewing v. Howard, 7 Wall. 499. 1830] OF THE UNITED STATES. 37 Thornton v. Bank of Washington. been taken on the note, and by the statute of usury in Maryland, the note was declared void. If usury had been taken, the judgment of the circuit court must, therefore, be reversed. The loan was made on a note payable in sixty days, which, with the days of grace, made it a loan for sixty-three days, and the bank had received the interest in advance, by way of discount, for sixty-four days. The legislation of all mankind has been against usury ; and the legislation of Maryland has been desirous and vigilant to suppress it. The principle in all courts acting under these laws has been, that if usury was found to have been taken, the wit of man could not evade the statute. The transactions between the bank and the maker of the note are admitted. It was a loan of money, and six renewals of the note took place in the year, and therefore, the interest for six days was illegally taken. The series of loans are to be considered as one transaction ; the notes were given for the accommodation of the maker ; and their renewals were expected, and were considered by the borrower and the bank as a part of the contract. The succeeding note was only substituted for that which had preceded it, in order to enable the bank to charge and receive the interest, by way of discount, every sixty-three days. Every security was, therefore, tainted with the usury of the whole dealing. This position is fully maintained by the case of Cuthbert v. Haley, 8 T. R. 390. The law of Maryland relative to usury and that of England is the same, as was seen by this court in the case of Gaither n. Hank of Georgetown, 1 Pet. 37. Also, Marsh. 349 ; 5 Taunt. 780 ; 7 Com. Dig. Usury, 627 ; 3 T. R. 530. The taking of interest by way of discount was a device which was originally, and long continued to be, considered a violation of the statute. Barnes v. Worlich, Cro. Jac. 25 ; Cornyn on Usury 82 ; Noy 173 ; 1 Bulst. 20. These cases are confirmed in Harsh v. Martindale, 3 Bos. *& Pul. 154, and fully establish the principle that receiving interest *-beforehand is usury. Comyn on Usury 90. It is admitted, that the practice of bankers to take “ discount ” is now allowed ; but this is upon principles which do not authorize the practice which prevails with the defendants in error. As late as 14 Geo. II., Willes 353, it was held by Mr. Chief Justice Willes, that “otherwise the force of the statute would be taken away.” The practice is since, however, considered legal, for bankers to take interest in advance, as discount. The allowance of this practice, upon the principles by which it is protected, is not evidence, that the general principles of the law are altered. The expenses of postage, remittance and commission, are considered as paid by this advance. Auriol v. Thomas, 2 T. K. 52 ; 1 Bos. & Pul. 144 ; Comyn on Usury 128. That the principles of the law as originally established are not altered, were cited 1 Peake’s Cas. 200 ; Comyn 125 ; 4 Taunt. 810 ; Brooke v. Middleton, 1 Camp. 445 ; Comyn 132. Banks are allowed to deduct interest, and, ex vi termini, discount. Fleckner v. Bank of the United States, 8 Wheat. 354. But this does not allow the deduction of a greater amount than the interest for the actual advance. The bill of exceptions presents the custom of the bank as a justification of the proceeding. Custom is no protection. Floyer n. Edwards, 1 Cowp. 112. Dunham v. Gould, 16 Johns. 367. It was argued, that the practice of the bank to give notice of the dis-23 38 SUPREME COURT [Jan’y Thornton v. Bank of Washington. honor of the bill, on the fourth day after the sixty days, does not relieve the case from difficulty ; as this could only be done by proof that there was a forbearance until the fourth day, the very reverse of which is established by the evidence ; nor will the practice of the bank to protest on the fourth day, and not before, assist the claim. The universal commercial rule is, that on the third day of grace, the note is due; and on non-payment before or upon that day, the money may be demanded and suit brought. The qqestion in this case has been decided in New York. Bank of Utica *oqi v. Wagneir, 2 Cow. 712. If more than legal interest is reserved or J taken, it is usury, whether by agreement or not. 3 Bigelow’s Dig. 796 ; 4 Mass. 156 ; 15 Ibid. 96. Lear and Webster, for the defendants in error, contended, that the Maryland law of usury, passed in 1704, similar to the statute of Anne, had no application to the case. It was passed, before the establishment of banks. The language is prohibitory as to any “ person,” and this may include “ corporations sole,” but not corporations aggregate. It is a criminal law, and a strict construction may be insisted upon. The insertion of a prohibition against taking more than simper centum, in the charters of banks, is a proof that the general terms of the usury laws are not considered as extending to such corporations. It would not be necessary, if this were the sound construction of the usury law. In this case, the wffiole question is, ■whether there was an agreement for forbearance, for the loan of money, on which more than legal interest has been taken. It is agreed, that, in England, discount or interest in advance is not usurious. The facts of the case do not show that the borrower had the money for less than sixty-four days. On the sixty-fourth day, according to the custom of the bank, the note would be protested. It is admitted, that a custom of trade will not take a case out of this statute, but it will go a great way to explain a transaction. 2 T. R. 52 ; Cowp. 114 ; 2 W. Bl. 792 ; 1 Bos. & Pul. 144 ; 3 Ibid. 154.. Every new note was a separate transaction. At the end of every loan, the loan was returned ; and whether by a new negotiation of another note, or by the repayment of the money from other means, does not connect the transactions, or make them the same. This is a demurrer to evidence, and everything is to be taken in favor of the defendant in error, the plaintiff in error having demurred in the circuit court. It is enough for this court, if a jury could have presumed from the facts, that the loan was for sixty-four days. The bank maintains, that the borrower has had or might have had the money for that time, and interest * _ may be deducted for that time ; the evidence *authorizes this conclu- I sion ; the jury might have drawn the conclusion, that no unlawful dealing was intended. The transaction was not considered as a permanent loan ; the bank made no such engagement; and if the borrower of money thinks proper, for the purposes of convenience or certainty, to obtain a loan on another note, before the note already discounted is due, the bank have nothing to do with the purposes or object for which the second loan is asked. There is no necessary connection between the transactions ; both notes may run at the same time. Stoby, Justice, after stating the facts, delivered the opinion of the court.—This case comes before us on a demurrer to the evidence in the court 24 1830] OF THE UNITED STATES. 40 Thornton v. Bank of W ashington. below, taken by the original defendant, now plaintiff in error ; and this, in our judgment, is very important to be considered, in the determination of the case. The party who demurs to evidence, seeks thereby to withdraw the consideration of the facts from the jury, and is, therefore, bound to admit, not only the truth of the evidence as given, but every fact, which that evidence may legally conduce to prove, in favor of the other party. And if, upon any view of the facts, the jury might have given a verdict against the party demurring, the court is also at liberty to give judgment against him. The defence set up against this action, by the defendant, is, that the transaction is usurious, within the meaning of the statute of Maryland against usury, which, it is admitted, is substantially like the English statute on the same subject. To sustain the defence, it has been urged, that the receipt of the interest in advance for sixty-four days, upon the discount of the note, is usury. But we are all of opinion, that the taking of interest in advance, upon the discount of notes, in the usual course of business, by a bank, is not usury. The doctrine has been long settled, and is not now open for controversy. The taking of the interest for sixty-four days is not usury, if the note, according to the custom and usage in the banks at- Washington, was not due and payable until the sixty-fourth day. That custom was Completely established, not only by the evidence in the present case, but by that in Renner v. Rank of Columbia, 9 Wheat. 581, which is L referred to in this record. In the latter case, it was expressly held by the court, that under that custom, the note was not due and payable before the sixty-fonrth day, for until that time, the maker could not be in default. Then, again, it is argued, that here there have been successive renewals of the note, or rather successive notes given by way of renewal .of the original note,.and that these renewals have been on the sixty-third day, and the money credited on that day, on account of the existing note ; and thus, in effect, sixty-four days’ interest has been taken upon loans for sixty-three days only. If there had been proved any contract between the bank and the party for whose benefit the original discount was made, that the original note should be so renewed, from time to time, and the extra day’s interest thereupon be taken by the bank ; so that the bank would have been bouncl to make the renewal, and the party would have been bound to renew, and not to pay the note at maturity ; there would have been strong grounds on which to rest the argument. But the difficulty is, that no such contract is to be found in the evidence ; and the party demurring to the evidence asks the court to infer it, from facts which do not necessarily import it, and may well admit of an explanation favorable to the other party. It is quite consistent with every fact in the case, that the original discount may have been made, without any such contract; and that the application for the renewals may have been made, from time to time, by the party interested, for his own accommodation, and without any previous understanding or co-operation on the part of the bank. For aught that appears, he was at liberty to have paid the original note, or any one of those afterwards given, at the time when it became due. If, of choice, he had paid it on the sixty-third day, instead of the sixty-fourth, there is no pretence to say, that it would have been a case of usury. If, instead of payment, he offers a new note for discount, for the purpose of applying the proceeds to the payment or withdrawal of the r4s former note, under *the like circumstances, the case is not substantially L w 25 42 SUPREME COURT Willison v. Watkins. [Jan’y varied. Each note is considered as a distinct substantive transaction. It no more than the legal interest is taken upon the time the new note has to run, the actual application of the proceeds of the new note to the payment of the former note, before it becomes due, does not of itself make the transaction usurious. Something more must occur. There must be a contract between the bank and the party, at the time of such discount, that the party shall not have the use or benefit of the proceeds, until the former note becomes due, or that the bank shall have the use and benefit of them in the mean time. Such a contract, being illegal, is not to be presumed ; it must be established in evidence. The argument requires the court to infer such illegality, from circumstances, in their own nature equivocal, and susceptible of different interpretations ; and this, in favor of the party demurring to the evidence. Even if the jury might have made such an inference from the evidence, we think, it ought not to be made by the court; for the rule of law requires the court, in such a case, to make every inference and presumption in favor of the other party, which the jury might legally deduce from the evidence ; nor is this any hardship upon the party demurring to the evidence, for it is his own choice, to withdraw from the jury, to W’hom it properly belongs, the consideration of the facts, which he relies on as presumptive of usury. Upon the other point suggested in the cause, whether banks are within the statute of usury, we entertain no doubt that they are. But, for the reasons already stated, we are of opinion, that the judgment below ought to be affirmed. Judgment affirmed. *43] *Thomas Willison, Plaintiff in error, v. Anderson Watkins, Defendant in error. Landlord and tenant.—Estoppel.—Statute of limitations. It is an undoubted principle of law, fully recognised by this court, that a tenant cannot dispute the title of his landlord, either by setting up a title' in himself, or a third person, during the existence of the lease or tenancy; the principle of estoppel applies to the relation between them, and operates with full force, to prevent the tenant from violating that contract by which he claimed and held the possession; he cannot change the character of the tenure, by his own act merely, so as to enable himself to hold against his landlord, who reposes under the security of the tenancy, believing the possession of the tenant to be his own, held under his title, and ready to be surrendered on its termination, by the lapse of time or demand of possession, p. 47. The same principle applies to mortgagor and mortgagee, trustee and cestui que trust, and generally, to all cases where one man obtains possession of real estate belonging to another, by a recognition of his title, p. 48. In no instance, has the principle of law which protects the relation between landland and tenant being carried so far as in this case, which presents a disclaimer by a tenant, with the knowledge of his landlord, and an unbroken possession afterwards, for such a length of time, that the act of limitations has run out four times, before he has done any act to assert his right to the land. p. 48. When a tenant disclaims to hold under his lease, he becomes a trespasser, and his possession is adverse, and as open to the action of his landlord, as a possession acquired originally by wrong. The act is conclusive on the tenant; he cannot revoke his disclaimer and adverse claim, so as to protect himself, during the unexpired time of the lease; he is a trespasser on him who has 26 1830] OF THE UNITED STATES. 43 Willison v. Watkins. the legal title ; the relation of landlord and tenant is dissolved, and each party is to stand upon his right.1 p. 49. If the tenant disclaim the tenure, claim the fee adversely, in right of a third person, or in his own right, or attorn to another, his possession then becomes a tortious one, by the forfeiture of his right, and the landlord’s right of entry is complete, and he may sue, at any time within the period of limitation ; but he must lay his demise of a day subsequent to the termination of the tenancy, for before that, he had no right of entry. By bringing his ejectment, he disclaims the tenancy and goes for the forfeiture ; it shall not be permitted to the landlord, to thus admit, that there is no tenure subsisting between him and the tenant, which can protect his possession from this adversary suit ; and at the same time, recover, on the ground of there being a tenure so strong, as that he cannot set up his adversary possession, p. 49. A mortgagee, or direct purchaser from a tenant, or one who buys his right at a sheriff’s sale, assumes his relation to the landlord, with all its legal consequences, and is as much estopped from denying the tenancy, p. 50. If no length of time would protect a possession originally acquired under a lease, it would be productive of evils truly alarming, and we must be convinced beyond a doubt that the law is so settled, before we would give our sanction to such a doctrine ; and this is not the case upon authorities, p. 51. *The relation between tenants in common is, in principle, very similar to that between r lessor and lessee ; the possession of one is the possession of the other, while ever the t tenure is acknowledged ; but if one oust the other, or deny the tenure, and receive the rents and profits to his exclusive use, his possession becomes adverse, and the act of limitations begins to run ; so, or a trustee, and of a mortgagee, p. 51. In relation to the limitations of actions for the recovery of real property, the Court think it proper to apply the remarks of the learned judge who delivered the opinion of the court in the case of Bell v. Morrison, 1 Pet. 360, and to say, the statute ought to receive such a construction as will effectuate the bénéficient objects which it intended to accomplish—the security of titles and the quieting of possessions ; that which has been given to it in the present case is, we think, conformable to its true spirit and intention, without impairing any principle heretofore established, p. 54. Error to the Circuit Court of the district of South Carolina. An action of trespass to try title, was brought in the circuit court of South Carolina, on the 20th of April 1822, by the defendant in error, against the plaintiff in this court, for the recovery of 600 acres of land, situate on the Savannah river. The title claimed by the plaintiff below, and the evidence, are fully stated in the opinion of the court. On the trial in the circuit court, the defendant proved, that Samuel Willison, his father, had possession of the land, in 1789, and cultivated it, till the period of his death, in 1802, from which time his widow and family possessed it, until the death of his widow, in 1815 ; and that from 1815 until this action was brought, the children retained possession, by their tenants. That in the lifetime of Samuel Willison, Bordeaux, through whom the plaintiff claimed, was apprised that he claimed to hold the land by an adverse title. That the widow, in 1802, on demand made, refused to give possession to Ralph S. Phillips, who claimed the land, and set up a title in herself, and was sued as a trespasser. That in 1793, Bordeaux and Willison were in treaty for the sale of this land ; Bordeaux wishing to sell, and Willison to. purchase. The plaintiff then offered in evidence a power of attorney from Bordeaux to Willison, dated February 1792, authorizing him to take possession of the land, and sue trespassers ; and that Willison was then a tenant 1 Peyton v. Stith, 5 Pet. 485; Walden v. sylvania, in McGinnis v. Porter, 20 Penn. St. Bodley, 14 Id. 156. The same principle is 80, and App v. Cadwalader, 5 W. N. C. 137. recognized by the supreme court of Penn- 27 *45 SUPREME COURT [Jan’y Willison v. Watkins. of Bordeaux. The defendant having *pleaded the statute of limitations (five years’ adverse possession giving a title under it), relied upon the foregoing facts. But the presiding judge overruled the plea, and instructed the jury, that, when a tenancy had been proved to have once existed, the tenancy must not only be abandoned, but possession given up, before an adverse possession can be alleged. To this decision, the defendant excepted. The defendant brought this writ of error. In the argument of the cause, the counsel for the plaintiff in error presented for the consideration of the court other exceptions besides that upon which the judgment of the circuit court was reversed. The decision of the court is exclusively upon the law arising on that which is stated. The case was argued by Blanding and McDuffie, for the plaintiff in error ; and by Berrien, Attorney-General, for the defendant. Baldwin, Justice, delivered the opinion of the court.—This was an action of trespass to try title, brought in 1822, in the circuit court of the United States for the district of South Carolina, by Watkins against Willison, for a tract of land, containing 600 acres, on the Savannah river. This land was originally granted to James Parsons, who conveyed to Ralph Phillips, whose estate was confiscated by an act of assembly of South Carolina, and vested in five commissioners appointed by the legislature of that state. The five commissioners acted in execution of the law, but before any conveyance was made of the land in question, one of them had died, and two of the others had ceased to act, or resigned, in 1783. The two remaining commissioners, in 1788, conveyed this land to Daniel Bordeaux and R. Newman, who, in the same year, executed to the treasurer of the state a bond and mortgage to secure the payment of the purchase-money, which, pursuant to an act of assembly, passed for that purpose, in 1801, was transferred and delivered to Ralph S. Phillips, the son of Ralph Phillips, to be disposed of as he should think proper ; and by the same law, the confiscation act, so far as respected Ralph Phillips, was repealed. A suit was brought on this bond, # _ in the name of the treasurer of the state, *in 1803, against Daniel -* Bordeaux, and prosecuted to final judgment against his administrators, in 1817, when an execution issued, on which the land was sold and conveyed by deed, from the sheriff, to Anderson Watkins, the plaintiff in the circuit court, who claims by virtue of the sheriff’s deed, and as standing in the relation of landlord to the defendant. Samuel Willison, the father of the defendant, entered into possession of the premises in question, in 1789, and cultivated them till his death in 1802 ; from which time, his widow and children possessed them, till her death, in 1815 ; since which time, the children have retained possession by their tenants, till the commencement of this suit. In 1802, Ralph S. Phillips, who was then the assignee of the bond and mortgage, made a demand of the possession from the widow, who refused to give it up, and set up a title in herself. He brought an action of trespass against her, to try title, in January 1803, in which he was nonsuited, in November 1805 ; and in March 1808, he brought another action of the same nature against her, in which no proceedings were had after 1812, which, by the law of practice of South Carolina, operates as a discontinuance of the action. In 1792, Bordeaux, 28 1830] OF THE UNITED STATES 46 Willison v. Watkins. the mortgagor, executed to Willison a power of attorney, authorizing him to take possession of the land, and sue trespassers. Willison was then a tenant of Bordeaux. In 1793, they were in treaty for the sale of the land ; Bordeaux wanting to sell, and Willison to purchase. But during the lifetime of Willison, Bordeaux was apprised that he claimed to hold the land by an adverse.title. The defendant exhibited no title other than what is derived from the possession of his father and the family. The first question which arose at the trial, was, on the admission in evidence of the deed from the two commissioners to Bordeaux and Newman ; the defendant alleging, that no title passed by it, because it was not signed by the other two commissioners. The circuit court overruled the objection ; the deed was read, and this becomes the subject of the first error assigned in this court. As the court have been unable to procure the *confisca- r# tion act of South Carolina, we are unwilling to express any opinion *-on this exception, without examining its provisions, which are very imperfectly set out in the record ; and as the merits of the case can be decided on another exception, we do not think it necessary to postpone our judgment. The remaining exception is, that the circuit court erred in charging the jury, that the claim of the plaintiff was not barred by the act of limitations of South Carolina, which protects a possession of five years from an adverse title. Is appears from the record, that the defendant and his family have been in possession of this land, for thirty-three years next before the suit was brought; but whether that possession had been adverse to the title of the plaintiff, during the whole of that time, or such part of it as will bring him within the protection of this law, becomes a very important inquiry. The plaintiff contended, at the trial, that, by becoming the tenant of Bordeaux, Willison, the elder, and his heirs, so long as they remain in possession, are prevented from setting up any title in themselves, or denying that of Bordeaux, without first surrendering to him the possession, and then bringing their suit. That the possession of the tenant, being the possession of the landlord, he could do no act by which it could become adverse, so that the statute of limitations would begin to run in his favor, or operate to bar his claim, by any lapse of time, however long. The defendant, on the other hand, contended, that from the time of the disclaimer of the tenancy by Willison, and the setting up of the title adverse to Bordeaux, and with his knowledge, his possession became adverse, and that he could avail himself of the act of limitations, if no suit was brought within five years thereafter. It is an undoubted principle of law, fully recognised by this court, that a tenant cannot dispute the title of his landlord, either by setting up a title in himself, or a third person, during the existence of the lease or tenancy. The principle of estoppel applies to the relation between them, and operates in its full force, to prevent the tenant from violating that contract by which he obtained and holds possession. 7 Wheat. 535. *He cannot change the character of the tenure, by his own act merely, so as to enable L himself to hold against his landlord, who reposes under the security of the tenancy, believing the possession of the tenant to be his own, held under his title, and ready to be surrendered on its termination, by the lapse of time, or demand of possession. The same principle applies to mortgagor and 29 48 SUPREME COURT [Jan’y Willison v. Watkins. mortgagee, trustee and cestui que trust, and generally, to all cases where one man obtains possession of real estate belonging to another, by a recognition of his title. On all these subjects, the law is too well settled to require illustration or reasoning, or to admit of a doubt. But we do not think, that in any of these relations, it has been adopted to the extent contended for in this case, which presents a disclaimer by a tenant, with the knowledge of his landlord, and an unbroken possession afterwards, for such a length of time that the act of limitations has run out four times, before he has done any act to assert his right to the land. Few stronger cases than this can occur, and if the plaintiff can recover, without any othei’ evidence of title than a tenancy existing thirty years before suit brought, it must be conceded, that no length of time, no disclaimer of tenancy by tenant, and no implied acquiescence of the landlord, can protect a possession originally acquired under such a tenure. If there is any case which could clearly illustrate the sound policy of acts of repose, and quieting titles and possessions by the limitation of actions, it is in this. Here, was no secret declaimer, no undiscovered fraud ; it was known to Bordeaux, and was notice to him, that Willison meant to hold from that time, by his own title and on adverse possession. This terminated the tenancy as to him, and from that time, Bordeaux had a right to eject him as a tespasser. Adams on Eject. 118 ; Bull. N. P. 96 ; 6 Johns. 272. Had there been a formal lease, for a term not then expired, the lessee forfeited it, by this act of hostility ; had it been a lease at will, from year to year, he was entitled to no notice to quit, before an ejectment. The landlord’s action would bp as against a trespasser ; as much so as if no relation had ever existed between them. * _ *Having thus a right to consider the lessee as a wrongdoer, hold-J ing adversely, we think, that under the circumstances of this case, the lessor was bound so to do. It would be an anomalous possession, which, as to the rights of one party, was adverse, and as to the other, fiduciary, if, after a disclaimer, with the knowledge of the landlord, and attornment to a third person, or setting up a title in himself, the tenant forfeits his possession, and all the benefits of the lease he ought to be entitled to, such as result from his known adverse possession. No injury can be done the landlord, unless by his own laches; if he sues within the period of the act of limitations, he must recover : if he suffers the time to pass without suit, it is but the common case of any other party who loses his right by negligence and loss of time. As to the assertion of his claim, the possession is as adverse and as open to his action, as one acquired originally by wrong ; and we cannot assent to the proposition, that the possession shall assume such character as one party alone may choose to give it. The act is conclusive on the tenant ; he cannot make his disclaimer and adverse claim, so as to protect himself, during the unexpired term of the lease ; he is a trespasser on him who has the legal title ; the relation of landlord and tenant is dissolved, and each party is to stand upon his right. It is on this principle alone, that the plaintiff could claim to recover in this action. If there was, between him and the defendant, an existing tenancy, at the time it was brought, he had no right of entry. The lessee cannot be a trespasser, during the existence of the lease, and cannot be turned 30 1830] OF THE UNITED STATES. 49 Willison v. Watkins. out, till its termination. At the end of a definite term, the lessor has his election to consider the lessee a trespasser, and to enter on him by ejectment ; but if he suffers him to remain in possession, he becomes a tenant at will, or from year to year, and in either case, is entitled to a notice to quit, before the lessor can eject him. The notice terminates the term, and thenceforth, the lessee is a wrongdoer, and holds at his peril. Woodfall’s Land. & Ten. 218, 220 ; 2 Serg. & Rawle 49. If the tenant disclaim the tenure, claim the fee adversely, in right of a third person, or his own, or attorn to another, his *possession then rs}! becomes a tortious one, by the forfeiture of his right. The landlord’s l right of entry is complete, and he may sue at any time within the period of limitation ; but he must lay his demise of a day subsequent to the termination of the tenancy, for before that, he had no right of entry. By bringing his ejectment, he also affirms the tenancy, and goes for the forfeiture. It shall not be permitted to the landlord, to thus admit, that there is no tenure subsisting between him and defendant, which can protect his possession from his adversary suit, and at the sama time, recover, on the ground of there being a tenure so strong, that he cannot set up his own adversary possession. The plaintiff claims, without showing any title in himself, or any right of possession, except what exists from the consequences of a tenancy, the existence of which he denies in the most solemn manner, by asserting its termination before suit brought. The principle here asserted is not new in this court. In the case of Blight's Lessee v. Rochester, 7 Wheat. 535, 549, the plaintiff’s lessors claimed as heirs of John Dunlap ; the defendant claimed by purchase from one Hunter, who professed to have purchased from Dunlap. The defendant acknowledged the title of Dunlap, as the one under which he held. Dunlap had, in fact, no title ; but the plaintiffs insisted, that the defendant could not deny his title. The Chief Justice, in giving the opinion of the court, observes : “ If he holds under an adversary title to Dunlap, his right to contest his title is admitted. If he claims under a sale from Dunlap, and Dunlap himself is compelled to aver that he does, then the plaintiffs themselves assert a title against this contract. Unless they show that it was conditional, and that the condition was broken, they cannot, in the very act of disregarding it themselves, insist, that it binds the defendant, in good faith, to acknowledge a title which has no real existence.” We are not aware, that in applying this doctrine to the case now before the court, we shall violate any settled principle of the common law. If a different rule was established, the consequences would be very serious. A mortgagee, a direct purchaser from a *tenant, or one who* buys his right at a sheriff’s sale, assumes his relations to the landlord, with all their legal consequences, and they are as much estopped from denying the tenancy. If no length of time would protect a possession originally acquired under a lease, it would be productive of evils truly alarming, and we must be convinced beyond a doubt, that the law is so settled, before we could give our sanction to such a doctrine. An examination of the authorities on this point relieves our minds from all such apprehensions, by finding our opinion supported to its full extent by judicial decisions entitled to the highest respect, and which we may safely adopt as evidence of the common law. The case of Horenden v. Lord Anncsley was that of a tenant who had attorned to one claiming adversely 31 51 SUPREME COURT [Jan’y Willison v. Watkins. to his lessor, with his knowledge. In delivering his opinion, Lord Redes-dale entered into a detailed view of the decisions on the application of the act of limitations to trusts of real and personal estate, in courts of law and chancery, and to fiduciary possessions generally. On the point directly before us, he observes : “ That the attornment will not affect the title of the lessor, so long as he has a right to consider the person holding possession as his tenant. But as he has a right to punish the acts of his tenant, in disavowing the tenure, by proceeding to eject him, notwithstanding his lease ; if he will not proceed for the forfeiture, he has no right to affect the rights of third persons, on the ground, that the possession was destroyed, and there must be a limitation to this, as well as every other demand. The intention of the act of limitations being to quiet the possession of lands, it would be curious, if a tenant for ninety-nine years, attorning to a person insisting he was entitled, and disavowing tenure, to the knowledge of his former landlord, should protect the title of the original lessor, for the term of ninety-nine years. That would, I think, be too strong to hold, on the ground of the possession being in the lessor, after Jhe tenure had been disavowed to the knowledge of the lessor.” The relation between tenants in common is, in principle, very similar to , that between lessor and lessee ; the possession *of one is the posses-J sion of the other, while ever the tenure is acknowledged. Cowp. 217. But if one oust the other, or deny the tenure, and receive the rents and profits to his exclusive use, his possession becomes adverse, and the act of limitations begins to run. 2 Sch. & Lef. 628, &c., and cases cited ; 4 Serg. & Rawle 570. The possession of a trustee is the possession of the cestui que trust, so long as the trust is acknowledged ; but from the time of known disavowal, it becomes adverse. So, of a mortgagee, while he admits himself to be in as mortgagee, and therefore liable to redemption. 7 Johns. Ch. 114, &c., and cases cited. But if the right of redemption is not foreclosed within twenty years, the statute may be pleaded ; and so in every case of an equitable title, not being the case of a trustee, whose possession is consistent with the title of the claimant. 7 Johns. Ch. 122. After elaborately reviewing the English decisions on these and other analogous subjects, Chancellor Kent remarks, it is easy to perceive, that the doctrines here laid down are the same that govern courts at law in analogous cases, and the statute of limitations receives the same construction and application, at law and in equity. Kane n. Bloodgood, 7 Johns. Ch. 90, 122. It is equally said, that fraud as well, as trust are not within the statute, and it is w.ell settled, that the statute does not run, until the discovery of the fraud ; for the title to avoid it, does not arise until then ; and pending the concealment of it, the statute ought not to run. But after the discovery of the fact imputed as fraud, the statute runs as in other cases ; and he cites in support of this position, 1 Bro. P. C. 455 ; 3 P. Wms. 143 ; 2 Sch. & Lef. 606, 628, 636, and the cases cited. In the case of Hughes n. Edwards, 9 Wheat. 490, 497, it was settled, that the right of a mortgagor to redeem is barred, after twenty years’ possession by the mortgagee, after forfeiture, no interest having been paid in the meantime, and no circumstances appearing to account for the neglect. 7 Johns. Ch. 122 ; 2 Sch. & Lef. 636. The court in that case say, that in respect to the mortgagee, who is seeking to foreclose the equity of redemption, the 32 1830] OF THE UNITED STATES. *53 Willison v. Watkins. general rule is, that when the mortgagor has been *permitted to remain in possession, the mortgage will, after a length of time, be presumed to have been discharged, by payment of the money, or a release, unless circumstances can be shown, sufficiently strong to repel the presumption ; as, payment of interest, a promise to pay, an acknowledgment by the mortgagor that the mortgage is still existing, or the like. All these principles bear directly on the case now before us : they are well settled and unquestioned rules, in all courts of law and equity, and necessarily lead to the same conclusion to which this court had arrived. The relations created by a lease are not more sacred than those of a trust or a mortgage. By setting up or attorning to a title adverse to his landlord, the tenant commits a fraud, as much as by the breach of any other trust. Why then should not the statute protect him, as well as any other fraudulent trustee, from the time the fraud is discovered or known to the landlord ? If ho suffers the tenant to retain possession, twenty years after a tenancy is disavowed, and cannot account for his delay in bringing his suit; why should he be exempted from the operation of the statute, more than the mortgagor or the mortgagee? We can perceive no good reasons for allowing this peculiar and exclusive privilege to a lessor ; we can find no rule of law or equity which makes it a matter of duty to do it, and have no hesitation in deciding, that in this case, the statute of limitations is a bar to the plaintiff’s action. In doing this, we do not intend to dispute the principle of any case adjudged by the supreme court of South Carolina. Of those which have been cited in the argument, there are none which, in our opinion, controvert any of the principles here laid down, or profess to be founded on any local usage, common law, or construction of the statute of limitations of that state. One has been much pressed upon us, as establishing a doctrine which would support the position of the plaintiff, which deserves some notice. In the case in 1 Nott & McCord 374, the court decide, that where a defendant enters under a plaintiff, he shall not dispute his title, while he remains in possession, and that he must first give up his possession, and bring his suit to try title. To the correctness of this principle, we yield our assent, not as one professing to be peculiar to South *Carolina, but as a rule of the common law applicable to the cases of fiduciary possession before L ° noticed. It is laid down as a general rule, embracing in terms tenants in common, trustees, mortgagees and lessees, but disallowing none of the exceptions or limitations which qualify it, and exclude from its operation all cases where the possession has become adverse, where the party entitled to it does not enter or sue within the time of the statute of limitations, or give any good reason for his delay ; leaving the rule in full force, wherever the suit is brought wTithin the time prescribed by law. To this extent, and this only, the decision would reach. To carry it further, would be giving a more universal application than the courts of South Carolina would seem to have intended, and further than we should be warranted by the rules of law. To extend it to cases of vendor and vendee, would be in direct contradiction to the solemn decision in 7 Wheat. 525. In relation to the limitation of actions for the recovery of real property, we think it proper to apply the remarks of the learned judge who delivered the opinion of this court in the case of Bell v. Morrison, 1 Pet. 351, and to 3 Pet.—3 33 54 SUPREME COURT Willison v. Watkins. [Jan’y say, that the statute ought to receive such a construction as will effectuate the beneficent objects which it intended to accomplish—the security of titles, and the quieting of possessions. That which had been given to it in the present case is, we think, favorable to its true spirit and intention, without impairing any legal principle heretofore established. It is, therefore, the opinion of the court, that the plaintiff in error has sustained his fourth exception, and that the judgment of the circuit court must be reversed. The cause is remanded to the circuit court, with directions to award a venire de novo. Johnson, Justice.—Hadi felt myself at liberty, in the court below, to a~; upon my own impressions as to the general doctrine respecting the defence which a tenant might legally set up in ejectment brought against him by his landlord, I certainly should have left it to the jury to inquire, whether the possession of Willison ever was hostile to that of Bordeaux ; a fact, the evidence *to prove which was very trifling, as appears even J in this bill of exceptions. But there were produced to me official reports of adjudged cases in that state, by the courts of the last resort, which appeared fully to establish, that when once a tenancy was proved, the tenant could make no defence, but must restore possession, and then alone could he avail himself of a title derived from any source whatever, inconsistent w’ith the relation of tenant. Now, it ought not to be controverted, that, as to what are the laws of real estate in the respective states, the decisions of every other state in the Union, or in the universe, are worth nothing against the decisions of the state where the land lies. On such a subject, we have just as much right to repeal their statutes, as to overrule their decisions. I will repeat a few extracts from one of their decisions to show, that they will at least afford an apology for the opinion expressed in the bill of exceptions upon the law of South Carolina ; for I placed it expressly on their decisions, not my own ideas of the general doctrine. The case of Wilson n. Weatherby, 1 Nott & McCord 373, was an action to try title, just such as the present, and heard before Cheves, Justice, in July 1815. The defendant offered to go into evidence, to show a title in himself, to which it was objected, that as he had gone into possession under the plaintiff, he could not dispute his title. The objection was sustained, and a verdict given for the plaintiff. The cause wras then carried up to the appellate court, and the judgment below sustained, that court unanimously agreeing the law to be as laid down by the judge who delivered the opinion, in these terms : “ The evidence offered by the defendant was of a title acquired by him, after he went into the possession under the plaintiff, and before he give up possession. If he wras, at any time, the tenant of the plaintiff, he continues so all the time, unless he had given up the possession. The attempt to evade the rule of law, by going out of possession a moment, and then returning into possession, did not change his situation at all, and especially, as he left another person in possession, so that his possession was altogether #kg-. unbroken. A distinct and bond fide abandonment of the *posses- J sion, at least, was necessary to have put him in a situation to dispute the plaintiff’s title. On the last ground, that the defendant was not at any time the tenant of the plaintiff, the defendant was not, indeed, a tenant under a lease rendering rent, but he nevertheless held under the plaintiff. 34 1830] OF THE UNITED STATES. United States v. Preston. 56 This ground is founded on a misconception of the principle, which is not confined to the cases of tenants, in the common acceptation of the term. These cases have only furnished examples of the application of the principle, which is, that wherever a defendant has entered into possession under the plaintiff, he shall not be permitted, while he remains in possession, to dispute the plaintiff’s title. He has a right to purchase any title he pleases, but he is bound, bond fide, to give up possession, and to bring his action on his title, and recover by the strength of his own title.” This is the leading case upon this doctrine in that state, and it is fully settled there, that the wife, the executor, the heir, or the purchaser at sheriff’s sale, is identified in interest with the previous possessor ; and also that a statutory title is acquired by possession, under which one subsequently going out of possession may recover. Understanding such to be the law of that state, I certainly did not hold myself bound, or at liberty, to inquire whether it accorded with the rules of decision in any other state. In principle, I am under the impression, there is not much difference, or, at least, not more than that court was at liberty to disregard, if they thought proper. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of South Carolina, and was argued by counsel: On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said circuit court, with directions to award a venire facias de novo. *United States, Appellants, v. Isaac T. Preston, Attorney- [*57 General of Louisiana, Appellee. Slave-trade.—Decree in admiralty.—Repeal of statute. The offence against the law of the United States, under the seventh section of the act of con gress, passed the 2d of March 1807, entitled “ an act to prohibit the importation of slaves into any port or place within the jurisdiction of the United States, from and after the 1st of January 1808,” is not that of importing or bringing into the United States persons of color, with intent to hold or sell such persons as slaves, but that of hovering on the coast of the United States, with such intent; and although it forfeits the vessel and any goods or effects found on board, it is silent as to the disposing of the colored persons found on board, any more than to impose a duty upon the officers of armed vessels who make the capture, to keep them safely, to be delivered to the overseers of the poor, or the governor of the state, or persons appointed by the respective states to receive the same. p. 65. The Josefa Segunda, having persons of color on board of her, was, on the 11th of February 1818, found hovering on the coast of the United States, and was seized and brought into New Orleans, and the vessel and the persons on board were libelled in the district court of the United States of Louisiana, under the act of congress of the 2d of March 1807 ; after a decree of condemnation below, but pending the appeal of this court, the sheriff of New Orleans went on, with the consent of all the parties to the proceedings, to sell the persons of color, as slaves, and $65,000, the proceeds, were deposited in the registry of the court, to await the final disposal of the law. By the 10th section of the act of 30th of April 1818, the first six sections of the act are repealed, and no provision is made by which the condition of the persons of color found on board a vessel hovering on the coast of the United States is altered from that in which they were placed 35 57 SUPREME COURT United States v. Preston. [Jan’y under the act of 1807, no power having been given to dispose of them otherwise than to appoint some one to receive them ; the 7th section of the act of 1818, confirms no other sales, previously'or subsequently made, under the state laws, but those for illegal importation, and does not comprise the case of a condemnation under the 7th section. The final condemnation of the persons on board the Josefa Segunda took place in this court, on the 13th of March 1820, after congress had passed the act of the 3d of March 1819, entitled “ an act in addition to an act prohibiting the slave trade,” by the provisions of which, persons of color, brought in under any of the acts prohibiting the traffic in slaves, were to be delivered to the President of the United States, to be sent to Africa ; it could not affect them. In admiralty cases, a decree is not final, while an appeal from the same is depending in this court, and any statute which governs the case must be an existing valid statute, at the time of confirming the decrees below; if, therefore, the persons of color, who were on board the Josefa Segunda, when captured, had been specifically before the court, on the 13th of March 1820, they must have been delivered up to the President of the United States, to be sent to Africa, under the provisions of the act of the 23d of March 1819, and therefore, there is no *claim to the proceeds of their sale, under the law of Louisiana, which appropriated the same.1 J The court do not mean to intimate, that the United States are entitled to the money, for they had no power to sell the persons of color, p. 65. Appeal from the District Court for the Eastern District of Louisiana. The brig Josefa Segunda, a Spanish vessel, proceeding with a cargo of negroes, from the coast of Africa to the island of Cuba, was captured, on the 11th day of February 1818, off St. Domingo, by a regularly commissioned Venezuelan privateer, and on the 24th of the following April, she was seized in the river Mississippi, by custom-house officers of the United States, carried to New Orleans, and there the vessel and negroes were libelled, at the suit of the United States, in the district court of the United States for the Louisiana district. The libel alleged, that the negroes were unlawfully brought into the United States, with an intent to dispose of them as slaves, contrary to the provisions of the act of congress, passed March 2d, 1807, entitled an act to prohibit the importation of slaves, &c. (2 U. S. Stat. 426.) The libel was tiled on the 29th of April 1818, and a claim was put in by the Spanish owners, alleging an unlawful capture of the brig ; that the brig put into the Balize, in distress, and without any intention to infringe or violate a law of the United States. The district court condemned the brig and effects found on board to the United State's, and the claimants appealed to this court. At February term 1820, of this court, the sentence of the district court of Louisiana was affirmed ; the court having been of opinion, that “ the alleged unlawful importation could not be excused, on the plea of distress and that “ where a capture is made by a regularly commissioned captor, he acquires a title to the captured property, which can only be divested by 1 A repealing act totally abrogates the law repealed, except as to such rights as became perfect under it. Pruseux v. Welch, 2 West. L. Mo. 209. But if a perfect right of action has accrued, on a contract authorized by statute, a repeal of the statute does not affect it, or a suit pending for its enforcement. Pacific Mail Steamship Co. v. Joliffe, 2 Wall. 450; Union Paper-bag Machine Co. v. Newell, 11 Bl. C. C. 379. It is now provided by law, that the repeal of any statute shall not have the effect to release or extinguish any penalty, 36 forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability. R. S. § 13. But this does not apply to the legislature of a territory; it is confined to the acts of congress itself. Dakota v. Wintermute, 7 Chicago Leg. News 202. 1830] OF THE UNITED STATES. 58 United States v. Preston. re-capture, or by the sentence of a competent tribunal; and the captured property is subject to capture for a violation by the captors, of the revenue, or other municipal laws of the neutral country into which the prize may be carried. (5 Wheat. 338.) *After the decree of the district court of Louisiana had been pro-nounced, and before the appeal to this court, the negroes found on L board of the captured brig were, under the provisions of the fourth section of the act of congress, and under the act of the state of Louisiana, passed the 13 th of March 1818, delivered by the collector of the port of New Orleans, to the sheriff of the parish of New Orleans ; and they were by him sold for $68,000, and the proceeds lodged in the Bank of the United States, subject to the order of the district court. Upon the return of the cause to the district of Louisiana, from this court, Mr. Roberts, an inspector of the revenue, and others, who alleged that they had made “ military seizures ” subsequent to that of the officers of the customs, filed claims to the moneys which were the proceeds of the sale of the brig and “ effects,” and of the negroes. Mr. Chew, the collector, conjointly with the naval officers, filed a like claim, and the court having dismissed the claims of Roberts and the asserted “ military captors,” and allowed those of the collector and other officers of the customs, the cause was again brought before this court. (10 Wheat. 312.) This court, at February term 1825, decided, that “ the district court, under the slave-trade acts, have jurisdiction to determine who are the actual captors, under a state law made in pursuance of the fourth section of the slave-trade act.” The court also decided, that “ under the 7th section of this act of the 2d of March 1807, ch. 77, the entire proceeds of the vessel are forfeited to the use of the United States, unless the seizure be made by armed vessels of the navy, or by revenue officers ; in which case, distribution is to be made in the same manner as prizes taken from the enemy.” The court also decided, “that under the act of the state of Louisiana, of the 13th of March 1828, passed to carry into effect the fourth section of the act of 1807, and directing the negroes imported contrary to the act to be sold, and the proceeds to be paid, ‘ one moiety for the use of the commanding officer of the capturing vessel, and the other moiety to the treasurer of the charity hospital of New Orleans, for the use and benefit of the said hospital,’ no other *person is entitled to the first moiety than the commanding ri{ officer of the navy, or revenue cutter, who may have made the L seizure, under the 7th section of the act of congress.” The case having returned again to the district court of Louisiana, Mr. Preston, as attorney-general of that state, filed a claim on behalf of that state, setting forth the illegal importation of the negroes, that the greater part of them had been delivered over to the sheriff of New Orleans, that the sheriff had disposed of them, under the law of the legislature of Lousiana, that the proceeds of the sale, $68,000, were brought into the district court, by the order of the court, and that part of the same remains deposited in court. He insisted, 'that the money belonged to the state, and had been brought into court contrary to law and the rights of the state, and prayed for an account, and that the said money might be paid over to him, so far as the same had not been disposed of, conformable to the laws of Louisiana. 37 60 SUPREME COURT [Jan’y United States v. Preston. In the district court, this claim was opposed, on behalf of the United States. The decree of the court was in favor of the claim, and an appeal was taken by the district-attorney of the United States to this court. The case was argued by JBerrien, Attorney-General, and Livingston, for the United States ; and by Jones, for the appellee. For the appellants, it was contended : 1. That the proceedings in the district conrt of Louisiana, upon the claim of the appellee, were irregular, the matter being of admiralty jurisdiction, and they should, therefore, have been by libel and monition. 2. That all proceedings relative to the matter in dispute had been regularly terminated by a final judgment of the supreme court of the United States. 3. That by the judgment of the supreme court, the whole beneficial interest in the proceeds in question has been adjudged to the United States. 4. That with regard at the moiety of the proceeds, which, *by the law of Louisiana, was directed to be paid over to the J treasurer, or the charity hospital of New Orleans, the proper claimant was the treasurer. 5. That any claim of the attorney-general of Louisiana to the money in the district court is unfounded ; the sale of the negroes having been made without authority, and therefore void, and the whole amount of the sales having been paid without consideration ; and as no title to the negroes was acquired by the purchase, the money belongs to those who paid the same to the sheriff of New Orleans. Upon this last point, and on no other, the opinion of the court was given. For the United States, it was argued, upon this point, that as the decision of this court, in the case of The Josefa Segunda, reported in 5 and 10 Wheaton, had established the principle which ruled the case, that in reference to negroes brought into the United States, under the circumstances attending their capture and introduction, they were not placed under the power of the legislature of Louisiana, but for the purpose of being received by the sheriff of New Orleans for safe-keeping ; the sale made by the sheriff was invalid and without authority. The provisions of the 7th section of the act of 1807 are repealed by the act of congress of 1819, “an act in addition to acts prohibiting the slave trade.” (3 U. S. Stat. 532.) By this act, a change in the regulations before adopted by the United States, in relation to persons of color illegally introduced into the United States, was established. The power,given by the act of 1807 to the states to pass laws for the disposition of those persons, was repealed by the act of 1819. The United States had, before that time, been unwilling to direct the mode in which those persons* should be treated ; and it was considered most proper to refer the same to the legislation of the particular states into which they might be brought. By the act of 1819, all such persons, so found in the United States, were directed to be transported to Africa. That act authorizes the president so to remove all negroes brought into the United States, contrary to the act of 1807, and repeals all * prior acts repugnant to its provisions.* Before the passage of the -* act of 1819, the negroes who were on board the Josefa Segunda had not been finally condemned ; as there was an appeal from the decree of condemnation in the district court, depending and undecided, until February 1820. Until the final condemnation by this court in 1820, the negroes remained in the hands of the sheriff of New Orleans, under the protection of 38 1830] OF THE UNITED STATES. United States v. Preston. 62 the United States, not as the property of the United States, or of Louisiana, but under their care. No rights were vested, or could vest, by the decree of the district court, as the appeal suspended the operation of that decree, until affirmed by this court in 1820. The sale of the negroes did not, and could not, become valid, by any consent of the parties before the district court. Until condemnation, undisturbed by an appeal, no rights existed in the court, to order, or in the parties, to consent to or authorize, the sale. When the case was disposed of in this court, in 1820, the whole of the authority of the district court of Louisiana, which had been exercised in 1818, was at an end, and that court could not legally proceed in the case. The act of 1819 authorized the appointment of an agent, and provided funds for the purpose of removing all such persons, under the direction of the president of the United States, to Africa. It was a necessary consequence of this change in the policy of the government, that all the provisions of the law of 1807, repugnant to its purposes, should bo repealed, and they were repealed. The powers given to the courts to condemn, and the powers given to the states to legislate in reference to those persons, ceased, at the passage of the law of 1819 ; and that law, notwithstanding the sale made by the sheriff, found those negroes among its objects, and it operated upon them, fully and effectually. This court has decided, that no effective disposition of them had been, or could be, made by the legislature of Louisiana, and they were, consequently, in the condition stated, and were the objects of the bountiful and liberal provisions of that law. It cannot be maintained, that the sale was authorized, either by the act of 1807, or by the law of Louisiana. The act of *1807 gave no power to the court to consent to or order the sale, and Louisiana could not L interfere, until after a sentence of condemnation, which should be final. The claimant, the Spanish owner of the brig, could not give the right to sell. Such is the nature, and such are the effects, of admiralty proceedings. It follows, therefore, that the money now in controversy was paid without consideration ; it belongs to the purchaser of the negroes ; and it cannot, therefore, under any circumstances, belong to the state of Louisiana. The sale has been made in the execution of a special power delegated congress to the legislature of Louisiana. It is fully established by the decisions of this court, that special powers must be strictly pursued and cannot be exceeded. The act gave no other powers, and did not give this power; If the negroes, instead of being sold, had been distributed among the parties, to await the final decree, and after the act of 1819 had passed, the district court of Louisiana had ordered them to be delivered to the sheriff of New Orleans for sale; looking to the provisions of the act of 1819 ; to the repeal of the act of 1807, giving the legislature of the states power to order a sale of those persons ; to the provisions of the act of 1819, securing to them the privileges of freemen, to be returned to their native country ; to the terms of that act, which embraces negroes delivered to the officers of the United States before or after the date of this law ; could those persons be delivered to slavery ? Would they not rather be subject to the order of the president to be returned to Africa ? Can an illegal sale change the rights of the negroes ? Jones, for the appellee, contended, that on the admissions of the counsel for the United States, if the act of 1819 did not operate on the case, one 39 63 SUPREME COURT United States v, Preston. [Jan’y moiety of the money in dispute belonged to the charity hospital of New Orleans. The provisions of the act of 1807, taken together, forfeited the negroes, and gave the property in them, or the proceeds of their sale, to the state of Louisiana, by placing them at the disposition of the state. By that law, the negroes were to remain subject to such regulations as the state may make *for the disposal of them. This gave the property in them to J the state. Placing property at the disposal of a state, necessarily gives the state the property. This flows essentially from the sovereign character of a state. The provisions of the 7th section of the act of 1807, provide for the corporal delivery of the negroes to the state officers. In the custody of those officers, they remained, until condemnation, which, as soon as it occurs, reverts to the time of seizure. It gives no right, but ascertains it. The judicial proceedings confirm and improve it, but do not create it. The act of congress having declared to whose benefit the forfeiture incurred by the violation of its provisions shall accrue, and that being the state, the condemnation does but confirm it. As to the invalidity of the sale, it was contended, that if the admiralty court had power to order a sale, pendente lite, the agreement that the sale would be made, was operative and equally effectual. The right of an admiralty court to do so, exists under special circumstances ; but consent supplied the necessity of such circumstances. It is to be presumed, that there was an order of court to confirm the sale, as the money arising from it was deposited in the court under its order. The property in the negroes having thus become that of the state of Louisiana, under the law of 1807 ; that state having appointed an officer to take charge of them, and legislated as to the disposal of them, under the authority of that act; the district court having condemned the negroes, before the law of 1819, and that condemnation having established judicially the right of the state at the time of seizure; the provisions of the law of 1819 could not affect rights thus given, vested and executed. Johnson, Justice, delivered the opinion of the court.—The case of The Josefa Segunda has been twice already before this court; the first time, upon the question of condemnation; the second, upon the application of several claimants to be preferred in the distribution of the proceeds. It now comes up upon a claim to the proceeds of the sale of the persons of color * , found on board at the time of the ^seizure, interposed by the law-J officer of the state of Louisiana. The vessel was condemned, under the 7th section of the act of 1807, passed to abolish the slave-trade. By the 4th section of the act, the state of Louisiana was empowered to pass laws for disposing of such persons of color as should be imported or brought into that state, in violation of that law. The offence, under the 7th section, on which this condemnation was founded, is not that of importing or bringing into the United States, but that of hovering on the coast, with intend to bring in, persons of color, to be disposed of as slaves, contrary to law; and although it forfeits the vessel, and any goods or effects found on board, it is silent as to disposing of the colored persons found on board, any further than to impose a duty upon officers of armed vessels, who may capture them, to keep them safely, to be 40 1830] OF THE UNITED STATES. 65 United States v. Preston. delivered to the overseers of the poor, or the governor of the state, or persons appointed by the respective states to receive the same. The state of Louisiana passed an act, on the 13th of March 1818, which recites the provisions of the 4th and 7th sections of the act of congress, and authorizes and requires the sheriff of New Orleans to receive any colored persons designated under either of those sections, and the same to keep, until the district or circuit court of the United States shall pronounce a decree upon the charge of illegal importation. The 2d section makes provision for selling them, upon receiving a certificate of such decision, and enjoins a distribution of the proceeds ; one-half to the commanding officer of the capturing vessel, the other to the treasurer of the charity hospital of New Orleans. In pursuance of this law of the state, it appears, that after the decree of condemnation below, but pending the appeal in this court, the sheriff went on to sell, with the consent, it is said, of all paities; and $65,000, the sum now in controversy, was deposited in the registry of the court below, to await the final disposal of the law. The 20th of April 1818, congress passed another act on *this sub-ject, by the 10th section of wThich, the first six sections of the act of '• 1807 are repealed; but their provisions are re-enacted with a little more amplitude ; and the 5th section of this act, which professes to reserve to the states the powers given in the former act, as well as the language of the repealing clause, in the saving wThich it contains as to offences, still confines all their provisions to the case of illegal importation ; thus leaving the 7th section in force, but without any express powei* to dispose of the colored persons, otherwise than to appoint some one to receive them. And so likewise, the 7th section of the act of 1818, which professes to confirm sales previously or subsequently made undex* the state laws, confines its provisions to sales made under condemnation for illegal importation ; thus not comprising the cases of condemnation under the 7th section of the act of 1807, at least, so far as relates to this offence. The final condemnation in this court took place, March 13th, 1820 ; but previous to that time, was passed the act of March 3d, 1819, entitled, an act in addition to an act, prohibiting the slave-trade ; by which a new arrangement is made as to the disposal of persons of color seized and brought in under any of the acts prohibiting the traffic in slaves. By the latter act, they are deliverable to the orders of the president; not of the states. And the repealing clause repeals all acts and parts of acts w’hich may be repugnant to this act. So that, if in the disposal of persons of color brought into the United States, the provisions of this act embrace the case of such persons, w’hen brought in under the 7th section of the act of 1807, the power to deliver them to the order of the states was taken away, before the final decree of this court. Such, in the opinion of the court, is the effect of the act of 1819. And then the question is, how does it affect the present controversy? Ever since the case of Yeaton v. United States, 5 Cranch 286, the court has uniformly acted under the rule established in that case ; to wit, that in admiralty causes, a decree was not final, while it was depending here. And any *statute which governs the case, must be an existing valid statute, at the time of affirming the decree below. Whatever was the extent of the legal power of the state over the Africans, it is clear, that such power 41 67 SUPREME COURT [Jan’y United States Bank v. Swan. could not be exercised finally over them, at any time previous to the final decree of this court; we must, therefore, consider, whether, if they had been specifically before the court, at the date of that decree, they must have been delivered up to the state, or the United States : clearly to the United States. And then this claim of the state cannot be sustained. We would not be understood to intimate, that the United States are entitled to this money ; for they had no power to sell; nor do we feel ourselves bound to remove the difficulties which grow out of this state of things. With regard to the ground of irregularity : if not abandoned by the attorney-general, it was but slightly touched upon, and we know of no other mode, in the existing state of things, in which the rights of the parties could be reached, according to the course of the admiralty, but that here pursued. On the question, whether the* decision in the second cause, in which the subject of this seizure was before us, was not final as to the rights of the United States, we are clearly of opinion, that it was not, as against this party. Although this question might then have been raised by the state, and could as well then have been settled ; yet it was not raised, nor was it the interest of any of the parties then before the court, that it should be raised. The decree below must be reversed. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the eastern district of Louisiana, and was argued by counsel: On consideration whereof, it is ordered and decreed by this court, that the decree of the said circuit court in this cause be and the same is hereby reversed, and that the said cause be and the same is hereby remanded, for further proceedings to be had therein, according to law and justice, and in conformity to the opinion of the court. *68] *The Bank of the United States and Samuel W. Venable’s Executors v. John T. Swan. Practice. When an appeal has been dismissed, the appellant having omitted to file a transcript of the record within the time required by the rule of court, an official certificate of the dismissal of the appeal may not be given by the clerk, during the term; the appellant may file the transcript with the clerk, during the term, and move to have the appeal reinstated; to allow such a certificate, would be to prejudge such a motion. On consideration of the motion made by Mr. Wirt, of counsel for the appellee, for leave to take from the office of the clerk of this court, before the adjournment of the present term of this court, an official certificate of the dismissal of this appeal, dismissed last Saturday, being the 30th of January, of the present term of this court: It is ordered, that the said motion be overruled ; and that the leave prayed for be refused; as, under the practice of this court, the appellants would have a right, during the present term, to lodge a transcript of the record of said appeal with the clerk of this court, and move to have the appeal reinstated ; whereas, to grant the present prayer or motion, would be to prejudge such a motion. Per Marshall, Chief Justice. 42 1830] OF THE UNITED STATES. *69 *Bell and others, Plaintiffs in error, v. Cunningham and another, Defendants in error. Principal and factor.—Damages for breach of orders. 0. & Co., merchants of Boston, owners of a ship, proceeding on freight, from Havana, to the consignment of B. & Co., at Leghorn, and to return to Havana, instructed B. & Co. to invest the freight, estimated at 4600 petsos; 2200 in marble tiles, and the residue, after paying disbursements, in wrapping paper; B. & Co. undertook to execute these orders; instead, however, of investing 2200 petsos in marble, they invested all the funds which came into their hands, in wrapping paper, which was received by the master of the ship, and was carried to Havana, and there sold on account of C. & Co., and produced a loss instead of the profit which would have resulted had the investment been made in marble tiles; as soon as information of the breach of orders was received, C. & Co. addressed a letter to B. & Co., expressing in strong terms their disapprobation of the departure from their orders, but did not signify their determination to disavow the transaction entirely, and consider the paper as sold on account of B. & Co.: Held, that C. & Co. were entitled to recover damages for the breach of their orders; that their not having given notice to B. & Co. that the paper would be considered as sold on their account, did not injure their claim ; and that the amount of the damages may be determined by the positive and direct loss arising plainly and immediately from the breach of the orders.1 If a principal, after a knowledge that his orders have been violated by his agent, receive merchandise purchased for him, contrary to orders, and sell the same, without signifying any intention of disavowing the acts of the agent, an inference in favor of the ratification of the acts of the agent may fairly be drawn by the jury; but if the merchandise were received by the principal, under a just confidence that his orders to his agent had been faithfully executed, such an inference would be, in a high degree, unreasonable, p. 81. The faithful execution of orders which an agent or correspondent has contracted to execute, is of vital importance in commercial transactions, and may often affect the injured party far beyond the actual sum misapplied; a failure in this respect may entirely break up a voyage, and defeat the whole enterprise. Speculative damages, dependent on possible successive schemes, ought not to be given in such cases ; but positive and direct loss, resulting plainly and immediately from the breach of orders, may be taken into the estimate, p. 85. The jury, in an action for damages for breach of orders, may compensate the plaintiff for actual loss, and not give vindictive damages; the profits which would have been obtained on the sale of the article directed to be purchased, may be properly allowed as damages, p. 86. Cunningham ®. Bell, 5 Mason 161, affirmed. This was a writ of error to the Circuit Court of Massachusetts, prosecuted by the defendant in the circuit court. The bill of exceptions to the opinion of the court below *set forth the pleadings and evidence, and exhibited the following case : L Cunningham & Loring, merchants, of Boston, owners of the brig Halcyon, Skinner, master, chartered by them to proceed from Havana to Leghorn, with a cargo of sugars, directed Bell, De Yongh & Co., merchants, at that place, and consignees of the brig, to purchase for them, to be shipped to Havana, by the Halcyon, on her return to that port, a quantity of marble tiles and wrapping paper. The letter containing these instructions was dated 15th September 1824, and stated, “the whole amount of freight received at Leghorn will be about 4600 petsos ; please invest 2200 in marble tiles; the balance, after paying disbursements, please invest in wrapping paper.” “We have further engaged whatever may be necessary to fill the ♦ 1 If a principal give positive orders to his factor, they must be pursued, or the latter becomes liable. Geyer v. Decker, 1 Yeates 486. But the receipt of a letter from the agent, which the principal leaves unanswered, raises a presumption of ratification of the acts of the agent, thought he have not followed the instructions of his principal. Field v. Farring. ton, 10 Wall. 141. See Bosseau v. O’Brien, 4 Biss. 395. 43 SO SUPREME COURT [Jan’y Bell v. Cunningham. brig on half profits, on account of which 700 petsos are to be paid in Leghorn ; after purchasing tiles and paying disbursements, you will invest the balance in paper.” A duplicate of this letter was forwarded, to which the following postscript was added. “P. S. We have further engaged whatever may be necessary to fill the brig, on half profits, on account of which 700 petsos are to be paid in Leghorn. After purchasing the tiles and paying disbursements, you will invest the balance in paper, as before mentioned. In previous orders, the reams have been deficient in the proper number of sheets. V^e will thank you to pay particular attention to this, as well as having all the sheets entire.” This letter was received by the plaintiffs in error, on the 13th of November 1824, and on the 9th of the December following, they addressed a letter to Cunningham & Loring, in which they stated : “ The order you are pleased to give us for paper and marble tiles, to be paid for out of the freight of the Halcyon, from Havana, to our consignment, has our particular attention. You have done very right to send on this order, as the wrapping 1 paper cannot be got in readiness before the end *of January, and J therefore, had it been delayed longer, could not have been in time for your brig Halcyon. We have contracted for 5000 reams, at as near your limits as possible, the article being just now in great demand. The tiles shall be collected also.” On the 14th of January 1825, they wrote to Cunningham & Loring : “ The wrapping paper ordered by yours of the 15th September, will be in readiness by the end of this month, and we shall have by that time, ready to ship, 10,000 marble tiles of twelve ounces, 7600 of fourteen ounces, and 6200 of sixteen ounces, which will be about the investment you desire of the freight from the Halcyon.” On the 21st of January 1825, the plaintiffs in error informed the defendants of the arrival of the Halcyon, and on the 21st of February, they addressed them another letter, stating, “ The sample of wrapping paper sent us by Messrs. Murdoch, Storey & Co., we found much inferior to any made in this state, and have executed your order with a much better article, although the difference in price bears no proportion. As your account-current, after purchasing the paper, which Captain Skinner told us was the better article for investment, gave only a small balance, we increased a little on quantity of paper, and sent no tiles. We now hand you bill of lading and invoice, amounting to P2801.18, for 473 packages of wrapping paper, shipped for your account and risk, on board your brig Halcyon, John Skinner, master, which, if found right, please to pass accordingly. Captain Skinner has been made aware of the superior quality of this parcel of paper, and that each ream is composed correctly of twenty quires of twenty-four and not sixteen sheets, as has been occasionally shipped ; so that he will no doubt make an adequate price for it, because in reality the prices at which it is invoiced, are reduced, by this difference, below those mentioned in your order.” The account-current stated the investment of petsos 2801.18, in wrapping _ PaPerj and showed that the balance *of the freight and other assets J in the hands of the plaintiffs in error, belonging to Cunningham & Loring, had been absorbed in the disbursements of the brig, &c. The Halcyon proceeded to Havana, and there the paper shipped by the 44 1830] OF THE UNITED STATES. 72 Bell v. Cunningham. plaintiffs in error was sold, and the proceeds accounted for to Cunningham & Loring by their agents at that port. Had the marble tiles been shipped as ordered, there would have been a considerable profit in the transaction, instead of the heavy loss sustained on the sales of the paper. Cunningham & Loring, on being advised of the non-compliance, by the plaintiffs in error, which their instructions of the 15th of September 1824, addressed the following letter to them : Boston, April 18th, 1825. Messrs. Bell, De Yongh & Co. Gentlemen :—We have received your favor of February 21st. The following are extracts of our letter to you of 13th September, directing the investment of the freight per Halcyon. “ The whole amount of freight received at Leghorn will be about 4600 petsos ; please invest 2200 in marble tiles; the balance, after paying disbursements, please invest in wrapping paper. We have further engaged whatever may be necessary to fill the brig, on half profits, on account of which, 700 petsos are to be paid in Leghorn : after purchasing the tiles and paying disbursements, you will invest the balance in paper.” We are exceedingly disappointed, that such positive directions were not complied with ; they were given for sufficient reasons, and without authority to alter them. You omitted to invest the 700 petsos on account of the freight of 150 boxes marked T, which we regret, as we wished the funds at Havana ; with this you would have had 4240 petsos, which would have furnished the tiles, paid disbursements, and left 1393 petsos to be invested in paper. Very respectfully, Cunningham & Loring. *0ne of the partners of the firm being in Boston, in 1827, an action was instituted against the plaintiffs in error, in the court of L common pleas of the county of Suffolk, for damages for the loss sustained by the plaintiffs, by the conduct of the defendants ; and on their petition, the defendants in the suit being aliens, was removed to the circuit court of the United States for the district of Massachusetts. On the trial of this cause in the circuit court, it was in evidence, that the tiles ordered by the plaintiffs in the suit, could have been procured by the defendants, and at prices which would have produced a profit to the plaintiffs. During the trial, exceptions were taken to the opinion of the court, by the defendants in the circuit court, which exceptions are stated in the opinion of this court, and a verdict and judgment having been rendered for the plaintiffs, the defendants prosecuted this writ of error. The case was argued by Ogden, for the plaintiffs in error ; and by Webster, for the defendants. For the plaintiffs, it was contended, that the circuit court had erred in leaving to the jury the construction of the correspondence between the plaintiffs in the court below and the defendants, of the 15th September 1824. The evidence feeing written, the construction of it was exclusively with the court. The course adopted by the defendants was in full accordance with the objects of the latter, as the paper could not be procured, without previous orders, and they having been given, and the defendants bound to take the paper so ordered, they were necessarily without the funds required to pur- 45 73 SUPREME COURT [Jan’y Bell v. Cunningham. chase the tiles. The plaintiffs below were bound to give the defendants notice of their intention to claim damages from them for non-compliance with instructions, and their neglect to do this, as well as their having received the proceeds of the paper, was a waiver to all their claims. The letter of the 18th of April 1825, was not such a notice. The rule adopted in the assessment of the damages was incorrect. The plaintiffs below were entitled to no more than the difference between the * , cost of the paper which had *been shipped at Leghorn, and the price -I of tiles at that place. 1 Ves. jr. 509. Webster, for the defendants in error, said, that there were no questions of law in the case which presented any difficulty, and the facts clearly established a claim by the defendants on the plaintiffs in error, for a manifest breach of instructions, and upon these facts the jury had given their verdict. As to the rule adopted by the jury for the assessment of the damages, they had exercised their sound discretion, without any instructions from the court which interfered with this their peculiar province. As to the notice of claim, by the defendants in error, of the 18th of April 1825, it was sufficient. They might have rejected the articles altogether, or have received the proceeds arising from their sale in the regular course of trade, and claimed, as they have in this case, damages for the loss. Notice of claim is not necessary. If the party does not intend to refuse the article altogether, it is not required ; and the neglect to do so, is no bar to a claim for damages. In this case, the letter of the defendants is an express disavowal of the acts of their agents. (Loraine n. Cartwright, 3 W. C. C. 151.) Marshall, Ch. J., delivered the opinion of the court.—This is a writ of error to a judgment rendered in the court of the United States for the first circuit and district of Massachusetts, in a suit brought by Cunningham & Co. against Bell, De Yongh & Co., on a special contract. Cunningham & Co., merchants, of Boston, had let their vessel, the Halcyon, to Messrs. Atkinson & Rollins, of the same place, to carry a cargo of sugars from Havana to Leghorn. The cargo was consigned to Messrs. Bell, De Yongh & Co., merchants, of Leghorn ; and Cunningham & Co. addressed a letter to the same house, instructing them to invest the freight, which was estimated at 4600 petsos, 2200 in marble tiles, and the residue, after , paying disbursements, in wrapping *paper. Messrs. Bell, De Yongh J & Co. undertook to execute these orders. Instead, however, of investing to the sum of 2200 petsos in marble tiles, they invested the whole amount of freight which came to their hands, amounting to 3449 petsos, and seven-thirds, instead of 4600, in wrapping paper, which was received by the master of the Halcyon, shipped to the Havana, and sold on account of Messrs. Cunningham & Co. One of the partners of Messrs. Bell, De Yongh & Co. having visited Boston on business, this suit was instituted against the company. At the trial, all the correspondence between the parties was exhibited, from which it appeared, that Cunningham & Go., as soon as information was received that their orders had been broken, addressed a letter to Messrs. Bell, De Yongh & Co., expressing in strong terms their disapprobation of this departure from orders, but did not signify their determination to disavow the transaction entirely, and consider the wrap- 46 1830] OF THE UNITED STATES. 75 Bell v. Cunningham. ping paper as sold on account of the house in Leghorn. In addition to the correspondence, several depositions were read to the jury, which proved that the orders respecting the jnarble tiles might have been executed without difficulty, but that the house in Leghorn, expecting to receive more money on account of freight than actually came to their hands, had contracted for so much wrapping paper as to leave so inconsiderable a sum for the tiles, that they determined to invest that small sum also in wrapping paper. At the trial, the counsel for the defendants in the court below, prayed the court to instruct the jury on several points which arose in the cause. Excep-ions were taken to the rejection of these prayers, and also to instructions which were actually given by the court, and the cause is now heard on these exceptions. The defendants’ counsel prayed the court to instruct the jury, that the letter of the 9th of December 1824, from the defendants to the plaintiffs, was notice to them of the exercise of the aforesaid authority in contracting for 5000 reams of paper, to be paid for out of the freight money of the Halcyon, and was admitted by the plaintiffs, in their *letter of the 7th of March 1825, to be a rightful exercise of such authority ; and that the freight money of the Halcyon was pledged for payment of the said quantity of paper. But the court so refused to instruct the jury, because it did not appear, on the face of the said letter, at what price the said wrapping paper was purchased, so as to put the plaintiffs in possession of the whole facts, that there had been a purchase of paper, to an extent, and at a price, which would amount to a deviation from the orders of the plaintiffs, or that the defendants had deviated from such orders, without which there could arise no presumption of notice of any deviation from such orders, or of any ratification of any such deviation from such orders. But the court did instruct the jury, that if, from the whole evidence in the case, the jury were satisfied, that the letter of the 9th of December, connected with the letter of the 14th of January, did sufficiently put the plaintiffs in possession of all the facts relative to such purchase, and the price thereof, and of such deviation, and that the letter of the 7th of March, in answer thereto, was written with a full knowledge and notice of all the facts, and that the plaintiffs did thereupon express their approbation of all the proceedings and acts of the defendants relative to such purchase, then, in point of law, it amounted to a ratification thereof, even though there had been a deviation from the orders in this behalf. This first exception is very clearly not supported by the fact, and was very properly overruled for the reasons assigned by the judge. The plaintiffs in that court, when the letter of the 7th of March 1825, was written, had no reason to presume that their orders had been violated, and consequently, could not be intended to mean by that letter to sanction such violation. The said defendants’ counsel further prayed the court to instruct the jury, that, if they believed, from the evidence submitted to them, that the required quantity of tiles could be had in season for the return-cargo of the Halcyon, without any previous contract therefor, and that the 5000 reams of paper could not be had in season for said vessel, without a previous contract therefor, that, inasmuch as the *plaintiffs admit, in their declaration, that they did not furnish the defendants with freight money enough L to purchase 2200 petsos’ worth of tiles, and pay the disbursements, and pay 47 Tl SUPREME COURT [Jan’y Bell v. Cunningham. for the said 5000 reams of wrapping paper, but only 3449 petsos, and seven-thirds (as in their declaration is expressed), and which latter sum was only sufficient for the payment of said disbursements, and for the performance of the defendants’ own contract in payment for said wrapping paper, the defendants were not holden to purchase any tiles, but were holden to ship the said 5000 reams of paper on board the Halcyon, as the property of the plaintiffs. But the court refused so to instruct the jury ; and the court did instruct the jury, that if the defendants undertook to comply with the original written orders of the plaintiffs, and no deviation therefrom was authorized by the plaintiffs, the defendants were bound, if funds to the amount came into their hands, in the first instance, to apply 2200 petsos of the funds which should come into their hands and be applied to this purpose, to the purchase of tiles, and in the next place, to deduct and apply as much as was necessary to pay the disbursements, and then to apply the residue to the purchase of paper : that if it were necessary or proper, under the circumstances, to make a purchase of the paper, before the arrival of the vessel, the defendants were authorized to act upon the presumption that 4600 petsos would come into their hands, and therefore, the plaintiffs would have been bound by any purchase of paper made by the defendants, to the amount of the balance remaining of the said 4600 petsos, after deducting the 2200 petsos for tiles, and the probable amount of such disbursements. But that it was the duty of the defendants, if they had funds, to deduct in the first instance, from the whole amount, 2200 petsos for tiles ; and if they did not, but chose to purchase paper, without any reference thereto, it was a deviation from the plaintiffs’ * - orders, and unless ratified by the plaintiffs, the defendants *were J answerable therefor ; that if the defendants had purchased paper, before the arrival of the vessel, to the amount only of such residue or balance as aforesaid, and the funds had afterwards fallen short of the expected amount of 4600 petsos, the defendant were not bound to apply any more than the sum remaining in their hands, after deducting the amount of such purchase of paper, and such disbursements, to the purchase of tiles ; and that after the receipt of the letters of the 20th of September, and the duplicate of the 15th of September, if the defendants undertook to perform the orders therein contained, there was an implied obligation on them to apply the 700 petsos mentioned therein for the plaintiffs’ benefit, to the purposes therein stated ; that, to illustrate the case, if the jury were satisfied, that the whole funds which came into the hands of the defendants for the plaintiffs (independent of the 700 petsos) were 3450 petsos, then the said 700 petsos should be added thereto, as funds in the defendants’ hands, making in the whole 4150 petsos. In the view of the facts thus assumed by the court, and to illustrate its opinion, the practical result, under such circumstances, would be this : the defendants were authorised to act on the presumptions of funds to the amount of 4600 petsos ; deduct 2200 petsos for tiles and 650 for probable disbursement, the balance left to be invested in paper would be 1750. The defendants would then be authorized, if the circumstances of the case required it, to contract for, or purchase, to the amount of 1750 petsos in paper, before the arrival of the vessel; and if the funds should afterwards fall short of the expected amount of 4600 petsos, the sum of 1750 petsos, and the * . disbursements, say 650 petsos, were to be first deducted out of the funds / J received, and the balance only invested in tiles. That if the *funds 48 1830] OF THE UNITED STATES. 79 Bell v. Cunningham. which actually came to the defendants’ hands (without the 700 petsos) and the sum of 700 petsos were also received, the whole amount would be 4150 petsos, then the defendants would be justified in deducting therefrom, for the purchase of paper, 1750 petsos, and disbursements 650 petsos ; leaving the sum of 1750 petsos to be invested in tiles ; and to this extent, if there was ratification, the defendants would be bound to invest for the plaintiffs in tiles, and were guilty of a breach of orders, if they did not so invest, and the plaintiffs entitled to damages accordingly. But the court left the whole facts for the consideration of the jury, and stated the preceding sums only as illustrations of the principles of decision, if they were found conformable to thé facts. This prayer was properly overruled, for the reasons assigned by the court. The orders were peremptory to apply 2200 petsos, in the first instance, to the purchase of tiles. The residue only of the funds which came to the hands of Bell, De Yongh & Co., was applied to the purchase of wrapping paper ; and the instruction that Bell, De Yongh & Co. were justifiable in acting on the presumption that the whole sum mentioned in the letter of Cunningham & Co., would be received, and in contracting, by anticipation, for wrapping paper, on that presumption, was as favorable to Bell, De Yongh & Co., as the law and evidence would warrant. The only questionable part of the instruction is that which relates to the 700 petsos, mentioned in the postscript of that copy of the letter of the 15th of September 1824, which went by the Halcyon. That postcript is in these words : “P. S. We have further engaged whatever may be necessary to fill the brig on half profits, on account of which 700 petsos are to be paid in Leghorn. After purchasing the tiles and paying the disbursements, you will invest the balance in paper, as before mentioned. In previous orders, the reams have been deficient in the proper number of sheets ; we will thank you *to pay particular attention to this, as well as having all the sheets entire.” The court L instructed the jury, that if the defendants undertook to perform the orders, there was an implied obligation on them to apply the 700 petsos mentioned therein to the purposes therein mentioned. No doubt can be entertained of the existence of this implied obligation, if the 700 petsos were in fact received. This fact, however, could not be decided by the court, and was proper for the consideration of the jury. If the court took it from them, the instruction would be erroneous. Some doubt was at first entertained on this part of the case ; but on a more attentive consideration of the charge, that doubt is removed. The declaration that there was an implied obligation to apply the 700 petsos, as directed in the letter and postscript, is not made in answer to any prayer for an instruction respecting the reception of this money, but respecting its application. The answer, therefore, which relates solely to the application, ought not to be construed as deciding that it was received. The judge, afterwards, by way of illustration, shows the sum which might have been invested in wrapping paper, consistently with the orders given by Cunningham & Co., on the hypothesis that the freight money would amount to 4600 petsos, and also on the hypothesis that the additional 700 petsos were received ; and adds, “but the court left the whole facts for the consideration of the jury, and stated the preceding sums only as illustrations of the principles of decision, if they were found conformable to the facts.” We think, then, 3 Pet.—4 49 80 SUPREME COURT [Jan’y Bell v. Cunningham. that the question, whether the 700 petsos were actually received by Bell, De Yongh & Co., was submitted to the jury on the evidence, and that there is no error in this instruction. The defendants’ counsel did further pray the court to instruct the jury, that inasmuch as the plaintiffs admit, in their declaration, that the freight money received by the defendants was 3449 petsos 7.3 ; and it appearing * _ that the whole of that sum had been *absorbed in the purchase of J 5000 reams of wrapping paper, disbursements, and reasonable and customary charges ; and that as the said plaintiffs did accept and sell the said 5000 reams of paper, on their own account, at the Havana ; that such receipt and sale of the paper on their account is, in law, a ratification of the acts of the defendants at Leghorn, in the application of the whole said freight money. But the court refused so to direct the jury, because the instruction prayed for assumed the decision of matters of facts, and because the plaintiffs did not admit that the sum of 3449 petsos 7.3 was the whole sum or funds received as freight money by the defendants, but contended that the additional sum of 700 petsos was so received, and ought to be added thereto ; and because, whether the receipt and sale of the paper at Havana was a ratification of the acts of the defendants at Leghorn or not, was matter of fact for the consideration of the jury, under all the circumstances of the case, and not matter of law to be decided by the court in the manner prayed for. We think this instruction was properly refused by the court, for the reasons assigned by the judge. It may be added, in support of the statement made by the court, that though the first and second new counts in the declaration claim only the sum mentioned by counsel in their prayer, the third claims a larger sum, and consequently, left the plaintiffs in the court below at liberty to ask from the jury such sum, within the amount demanded by the third count, as the evidence would, in their opinion, prove to have come to the hands of the defendants. The question whether the receipt and sale of the sugars at the Havana amounted to a ratification of the acts Of Bell, De Yongh & Co., at Leghorn, certainly depended on the circumstances attending that transaction. If Cunningham & Co., with full knowledge of all the facts, acted as owners of the wrapping paper, without signifying any intention of disavowing the acts of their agents, an inference in favor of * , ratification might be fairly *drawn by the jury. If the cargo from J Leghorn was received and sold in the Havana, under directions given at the time when Cunningham & Co. felt a just confidence that their orders would be faithfully executed by Bell, De Yongh & Co., such an inference would be in a high degree unreasonable. This subject was, therefore, very properly left to the jury. And the defendants’ counsel furthermore prayed the court to instruct the jury, as to the plaintiffs’ first new count, filed at this term, by leave of court, that inasmuch as the plaintiffs have set forth the letter of the plaintiffs to the defendants, of the 15th of September 1824, as containing the special contract between the plaintiffs and defendants ; and as the postscript to that letter contains a material part of the contract; and as the said postscript is not set forth in said count, as part of said letter, but is wholly omitted ; that the evidence offered by the plaintiffs, in this behalf, does not support and prove the contract as in that count is alleged. But the court refused so 50 1830] OF THE UNITED STATES. 82 Bell v. Cunningham. to instruct the jury, being of opinion, that the said postscript did not necessarily, as a matter of law, established any variance between the first new count and the evidence in the case ; and the court left it to the jury to consider, upon the whole evidence in the case, whether that count was established in proof, and if, in their opinion, there was a variance, then to find their verdict for the defendants on that count. On the 15th of September 1824, Cunningham & Co. addressed a letter to Bell, De Yongh & Co., containing the orders which have given rise to this controversy. This letter was sent by the Halcyon, and contained the postscript mentioned in this prayer for instructions to the jury. It was received on the 20th of January 1825. As the Halcyon was to make a circuitous voyage by the Havana, and Cunningham & Co. were desirous of communicating the contents of their letter by what vessel, previous, to her arrival, a duplicate was sent by the Envoy, which sailed a few days afterwards, direct for Leghorn. In this letter, the postscript was omitted. It was received *on the 30th of November 1824, and was answered soon afterwards, with an assurance that the orders respecting the tiles L and wrapping paper would be executed. The first new count in the declaration is on the special contract, and sets out at large the letter sent by the Envoy, which was first received, and to which the answer applied, in which Bell, De Yongh & Co. undertook to execute the orders that were contained in that letter. It is undoubtedly true, that a declaration which proposes to state a special contract in its words, must set it out truly ; but this contract was completed, by the answer to the letter first received, and the obligation to apply the funds, when received, was then created. The plaintiffs below might certainly count upon this letter as their contract. Other counts in the declaration are general, and both letters may be given in evidence on them. , The defendants might have objected to the reading of the letter by the Halcyon, on the first new count; but the whole testimony was laid before the jury, without exception, and the counsel prayed the court to instruct the jury, that as the postscript was omitted in the letter stated in the first count, the evidence did not support the contract as in that count alleged. This prayer might, perhaps, have been correctly made, had no other letter been given in evidence than that received by the Halcyon. But as the very letter on which the count is framed, and which was the foundation of the contract, was given in evidence, the court could not have said, with propriety, that this count was not sustained. It was left to the jury to say, whether there was a variance between the evidence and this count, and if, in their opinion, such variance did exist, they were at liberty to find for the defendants on that count. If there was any error in this instruction, it was not to the prejudice of the plaintiffs in error. The fifth, sixth and seventh exceptions appear to have been abandoned by the counsel, in argument, and were certainly very properly abandoned. These several prayers are founded on the assumption of contested facts, which were submitted, and ought to have been submitted, to the jury. The eighth and last prayer is in these words : “ The *defendants’ counsel prayed the court to instruct the jury, that if they should find *-that any contract or promise was made by the defendants as to the purchase and shipment of 2200 petsos’ worth of tiles, and not performed (but broken), that the measure of damages was the value of the said sum of 2200 petsos 84 SUPREME COURT [Jan’y Bell v. Cunningham. at Leghorn, and not at Havana ; and that as the plaintiffs have taken and accepted another article of merchandise at Leghorn, viz., 5000 reams of wrapping paper, of greater value than 2200 petsos, and which was purchased with the same moneys which plaintiffs aver should have been invested in marble tiles as aforesaid, the plaintiffs are not entitled to recover any damages in this action. But the court refused so to instruct the jury, because the instruction prayed for called upon the court to decide on matters of fact in controversy before the jury. And the court did instruct the jury, that if, upon the whole evidence, they were satisfied, that the orders of the plaintiffs had been broken by the defendants, in not purchasing the tiles, in the manner stated in the declaration, and that there had been no subsequent ratification by the plaintiffs of the acts and proceedings of the defendants ; then, that the plaintiffs were entitled to recover their damages for the breach thereof; and what the proper damages were, must be decided by them, upon the whole circumstances of the case ; that in their assessment of damages they were not bound to confine themselves to the state of things at Leghorn, and they were not precluded from taking into consideration the voyage to the Havana, and the fact of the arrival of the vessel there, the state of the markets, and the profits which might have been made by the plaintiffs, if their orders as to the tiles had been complied with ; that the court could not lay down any rule for their government,' except that they were at liberty to compensate the plaintiffs for their actual losses sustained, as a consequence from the default of the defendants, but they were not at liberty to give vindictive damages. This prayer consists of two parts. 1st. The measure of damages, if the jury should be of opinion, that the contract was broken. 2d. The ratifica-*g51 tion of the acts of Bell, *De Yongh & Co., by accepting, at Havana, J another article, in lieu of the tiles. 1. The measure of damages. The plaintiffs in error contend, that the value of the money at Leghorn, which ought to have been invested in tiles, and not its value at the Havana, ought to be the standard by which damages should be measured. That is, if his views are well understood, that the value of 2200 petsos at Leghorn, with interest thereon, and not the value of the tiles in which they ought to have been invested at the Havana, ought to be given by the jury. This instruction ought not to have been given, unless it be true, that special damages for the breach of a contract can be awarded under no circumstances whatever ; that an action for the breach of contract was equivalent, and only equivalent, to an action for money had and received for the plaintiffs’ use. That the breach of contract consisted in the nonpayment of 2200 petsos ; not in the failure to invest that sum in tiles. In fact, that under all circumstances, if no money came to the hands of the defendants, the damages in such an action must be nominal. This can never be admitted. The faithful execution of orders which an agent or correspondent has contracted to execute, is of vital importance in commercial transactions, and may often affect the injured party far beyond the actual sum misapplied. A failure in this respect may entirely break up a voyage, and defeat the whole enterprise. We do not mean, that speculative damages, dependent on possible successive schemes, ought ever to be given ; but positive and direct loss, resulting plainly and immediately from the breach of orders, 52 1830] OF THE UNITED STATES. 85 Magruder v. Union Bank. may be taken into the estimate. Thus, in this case—an estimate of possible profit to be derived from investments at the Havana, of the money arising from the sale of the tiles, taking into view a distinct operation, would have been to transcend the proper limits which a jury ought to respect; but the actual value of the tiles themselves, at the Havana, affords a reasonable standard for the estimate of damages. The instructions of the judge seem to contemplate this course, and his restraining ♦power would have corrected, by granting a new trial, any great excess in this particular. The rule that the jury was to compensate the L plaintiffs for actual loss, and not to give vindictive damages, is thought by this court to have been correct. The declaration expressly claims the loss of the profits which would have accrued from the sale of the tiles. 2. That part of this prayer which relates to the ratification of the acts of Bell, De Yongh & Co., by the receipt of the wrapping paper at Havana, has been fully noticed in the observations on the third exception. This court is of opinion, that there is no error in the several instructions given by the circuit court to the jury, and that the judgment ought to be affirmed, with costs, and six per cent, damages. This cause came on to be heard, on the trän script of the record from the circuit court of the United States for the district of Massachusetts, and was argued by counsel: On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby affirmed, with costs, and damages at the rate of six per centum per annum.1 *George B. Magruder, Plaintiff in error, v. Union Bank of [*87 Georgetown, Defendants in error. Promissory notes.—Notice of non-payment. An action was brought by the Union Bank of Georgetown against George B. Magruder, as indorser of a promissory note made by George Magruder; the maker of the note died before it became payable, and letters of administration to his estate were taken out by the indorser; no notice of the non-payment of the note was given to the indorser, nor any demand of payment made, until the institution of this suit: Held, that the indorser was discharged, and his having become the administrator of the maker did not relieve the holder from the obligation to demand payment of the note, and to give notice thereof to the indorser.2 The general rule, that payment must be demanded from the maker of a note, and notice of nonpayment forwarded to the indorser, within due time, in order to render him liable, is so firmly settled, that no authority need be cited to support it; due diligence to obtain payment from the maker, is a condition precedent, on which the liability of the indorser depends, p. 90. Union Bank v. Magruder, 2 Cr. C. C. 687, reversed. In the Circuit Court of the District of Columbia, for the county of Washington, the defendants in error instituted a suit against George B. Magruder, the plaintiff in error, upon a promissory note made by George Magruder in favor of and indorsed by the plaintiff in error, dated Washington, November 8th, 1817, for $643.21, payable seven years after date. After 1 For a further decision in this case, see Juniata Bank v. Hale, 16 S. & R. 157; Groth 1 Sumn. 89. ®. Gyger, 31 Penn. St. 271. 2 Re-affirmed in s. c. 7 Pet. 287. s. p. 53 87 SUPREME COURT [Jan’y Magruder v. Union Bank. the making of the note, the maker, George Magruder, died, and on the 18th of November 1822, administration of his effects was granted to George B. Magruder, the plaintiff in error. The note having been due on the 11th of November 1824, was not paid. Upon the trial of thé cause, the plaintiff, in support of the issue joined, offered in evidence to the jury the promissory note, made the 8th of November 1817, the handwriting of the maker, and the indorsement by the defendant having been admitted ; and further proved, that the defendant had, previously to the note falling due, taken out letters of administration, in the county of Montgomery, in the state of Maryland, upon the personal estate of George Magruder, the maker of the said note, on the 18th of * n November 1822 ; the *said George Magruder having previously -* departed this life. It was admitted, that the note in question had never been protested, nor had any notice been given to this defendant that the note was not paid. Upon these circumstances, the counsel for the defendants moved the court to instruct the jury, that before the plaintiff can recover in this action, it is essential for him to prove demand, and notice to the indorser of the non-payment ; which not being done, the verdict should be for the defendant. But the court refused to give the instruction prayed for as aforesaid, and charged the jury, that no demand of notice of nonpayment was necessary. To this refusal and instruction, the counsel for the defendant excepted, and the court sealed a bill of exceptions, and this writ of error was prosecuted. The case was argued by Coxe, for the plaintiff in error ; and by Dunlop and Key, for the defendant. Coxe contended, that the fact that the indorser of the note had become the administrator of the maker, did not release the holders of the note from any of the duties of legal obligations they were under, to give notice to the indorser of the non-payment of the note, and that payment was expected from him. The letters of administration were granted out of the district of Columbia ; but if they had been issued within the district, the law would have been the same. As a general rule, notice was necessary, and notice must come from the holder of the note, to apprise the party that he is looked to for payment. Chitty 292. The mere fact that the indorser had been the representative of the maker, did not imply a knowledge of the non-payment of the note ; and if it did, notice of its non-payment was not thereby dispensed with. Chitty 293 ; 1 T. R. 167 ; 2 Conn. 654. The legal obligations of an indorser become complete on notice, and are not such until notice. The obligation to give notice has been declared to exist in a case in which, if it ever could be excused, it would have been waived under its circumstances. * , Where one person *was a member of two partnerships, one of which J signed, and the other of which indorsed, it was held, that presentment for payment was necessary to charge the indorser. Bayley on Bills 159. Dunlop and Key, for the defendants, admitted the general rule to be as stated by the counsel for the plaintiff in error ; but exceptions had been allowed to the rule, and on the same principles, the present was entitled to exemption from its stricter application. In the Bank of Columbia v. 54 1830] OF THE UNITED STATES. 89 Magruder v. Union Bank. French, 4 Cranch 161, where the note was made for the use of the indorser, notice was not required. His knowledge that the obligation to pay was upon him, made the notice unnecessary. The plaintiff in error, as administrator of the maker, became the payer of the note, and as such, was bound to do so, without demand ; no demand on him being required, it was useless to give him notice that he had not done what he well knew he had omitted. The purpose of the rule as to notice did not exist here ; if notice was required to enable the indorser to secure himself by calling on the maker, this could not be done ; and as he had the estate of the maker in his hands for his indemnity, no demand of the indorser was necessary. Bank of United States v. Carneal, 2 Pet. 552. The law never requires that to be done, which is useless ; and therefore, the defendant in error, who could not, by the notice or by its omission, have affected the rights of the indorser, or his means of protecting himself from loss, was not required to give it. Marshall, Ch. J., delivered the opinion of the court.—This action was brought by the Union Bank of Georgetown against George B. Magruder, as indorser of a promissory note made by George Magruder. The maker of the note died, before it became payable, and letters of administration on his estate were taken out by the indorser. When the note became payable, suit was commenced against the indorser, ^without any demand of pay-ment other than the suit itself, without any protest for non-payment, L and without any notice that the note was not paid, and that the holder looked to him as indorser for payment. Upon these circumstances, the counsel for the defendant moved the court to instruct the jury, that before the plaintiff can recover in this action, it is essential for him to prove demand, and notice to the indorser of the non-payment; which not being done, the verdict should be for the defendant. But the court refused to give this instruction, and charged the jury, that no demand or notice of non-payment was necessary. To this opinion the counsel for the defendant in the circuit court excepted, and has brought the cause to this court by writ of error. The general rule that payment must be demanded from the maker of a note, and notice of its non-payment forwarded to the indorser, within due time, in order to render him liable, is so firmly settled, that no authority need be cited in support of it. The defendant in error does not controvert this rule, but insists, that this case does not come within it; because demand of payment and notice of non-payment are totally useless, since the indorser has become the personal representative of the maker. He has not, however, cited any case in support of this opinion, nor has he shown that the principle has been ever laid down in any treatise on promissory notes and bills. The court ought to be well satisfied of the correctness of the principle, before it sanctions so essential a departure from established commercial usage. This suit is not brought against George B. Magruder, as administrator of George Magruder, the maker of the note, but against him, as indorser. These two characters are as entirely distinct as if the persons had been different. A recovery against George B. Magruder, as indorser, will not affect the assets in his hands as administrator. It is not a judgment against the maker, but against the indorser of the note. The fact that the indorser is the representative of the maker does not oppose any obstacle to proceeding in the regular course. The regular demand of payment may be made, and the 55 90 SUPREME COURT [Jany Chinoweth v. Haskell. note protested for non-payment, of which notice may be given to him as , indorser, with as much facility as if the indorser had *not been the J administrator. It is not alleged, that any difficulty existed in proceeding regularly ; the allegation is, that it was totally useless. The note became payable on the 8th day of November 4824. The writ was taken out against the indorser on the 26th day of April 1825. If this unusual mode of proceeding can be sustained, it must be on the principle that, as the indorser must have known that he had not paid the note, as the representative of the maker, notice to him was useless. Could this be admitted, does it dispense with the necessity of demanding payment ? It is possible, that assets which might have been applied in satisfaction of this debt, had payment been demanded, may have received a different direction. It is possible, that the note may have been paid by the maker, before it fell due. Be this as it may, no principle is better settled in commercial transactions, than that the undertaking of the indorser is conditional. If due diligence be used to obtain payment from the maker, without success, and notice of non-payment be given to him in time, his undertaking becomes absolute ; not otherwise. Due diligence to obtain payment from the maker, is a condition precedent, on which the liability of the indorser depends. As no attempt to obtain payment from the maker was made in this case, and no notice of non-payment was given to the indorser, we think the circuit court ought to have given the instruction prayed for by the defendant in that court. The judgment is reversed, and the cause remanded, with directions to award a venire facias de novo. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel: On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby reversed ; and that the said cause be and the same is hereby remanded to the said circuit court, with directions to award a venire facias de novo in said cause. *92] *Robert Chinoweth, James Tracy and Thomas Wilmouth, Plaintiffs in error, v. The Lessee of Benjamin Haskell and others, Defendants. Grant of land. The defendant in the court below having withdrawn his cause from the jury, by a demurrer to evidence, or having submitted to a verdict for the plaintiff, subject to the demurrer, cannot hope for a judgment in his favor, if, by any fair construction of the evidence, the verdict can be sustained, p. 96. It is an obvious principle, that a grant must describe the land to be conveyed, and that the subject granted must be identified, by the description given- of it in the instrument itself; the description of the land consists of the courses and distances run by the surveyor, and of the marked trees at the lines and comers, or other natural objects which ascertain the very land which was actually surveyed, p. 96. If a grant be made, which describes the land granted by course and distance only, or by natural objects, not distinguishable from others of the same kind, course and distance, though not safe guides, are the only guides given, and must be used. p. 96. 56 1830] OF THE UNITED STATES. Chinoweth v. Haskell. 92 The line which forms the western boundary -of the land intended to be granted was never run or marked; in his office, the surveyor assumed a course and distance, and terminates the line at two small chestnut oaks; but where are we to look for those two small chestnut oaks in a wilderness, in which one man takes up 50,000 acres, and another 100,000 ? or how are we to distinguish them from other chestnut oaks? The guide, and the only guide given .us by the surveyor, or by the grant, is the course and distance, p. 96. It is admitted, that the course and distance called for in a grant may be controlled and corrected by other objects of description, which show that the survey actually covered other ground than the lines of the grant would comprehend, p. 98. Error to the District Court of the Western District of Virginia. This case was argued by Doddridge, for the plaintiff in error, no counsel appearing for the defendant. He contended : 1. That Wilson does not prove the making of any actual survey of the three last lines, and all that he does prove is that he protracted them. 2. That in protracting the line D E, he guessed at a course *and distance,-which he supposed would reach Young’s corner ; which he missed about five miles. 3. That he only proves it to have been his intention to go to Young’s corner. He did not, in his certificate of survey, call for a corner to Young, but only for two chestnut oaks, in a country where there is scarcely any other timber. 4. That course and distance, as called for, may be corrected by other matters of description in the certificate and grant, by any natural call or description which may identify a corner, or render it certain ; as “ two chestnut oaks, corner to Robert Young’s survey of 100,000 acres, &c., the first, second or third corner, &c.” Such corrections of course and distance cannot be made by a secret undisclosed intention, that the two chestnuts he called for should be those at one of Young’s corners. 5. The courses and distances called for in the grant will locate the grant on the waters and water-courses, precisely as stated in the grant. This appears by the surveyor’s diagram, which with the grant, is record evidence of this fact. Let the courses and distances called for be varied according to Wilson’s secret intention, the case will be very different. The grant calls to be on part of Clover run, on Cheat river, and to include the waters of Pheasant run. These descriptions suit either mode of locating the grant; but the grant calls to be on the waters of Tygart valley, and to include part of the waters of Hornback’s run, and the cherry tree fork at Leading creek. Whereas, as he would locate his grant, it will include not only part of the waters of Hornback’s run, and the cherry tree fork of Leading creek, but all these two streams and their waters, and even all Leading creek itself, of which they are small branches ; and his survey will be, not on the waters of Tygart valley river, but on the river itself, crossing it four times. Marshall, Ch. J., delivered the opinion of the court.—The judgment in this cause was rendered by the court of the United States for the western district of Virginia, in an ejectment brought by the defendants in error, to recover *fifty thousand acres of land, a part of which was in the occupation of the defendants in the court below. The defendants in that court disclaimed as to the part of the land for which judgment was entered against the casual ejector, and went to trial as to the residue. The original plaintiffs having the eldest title, the case depended entirely on the question whether their grant covered the land in dispute. If it be surveyed according to the courses and distances called for, it will entirely exclude 57 94 SUPREME COURT [Jan’y Chinoweth v. Haskell. that land. The plaintiffs, however, claim to survey it in such manner as to comprehend the tenements in possession of the defendants. A survey was made, and the diagram of the surveyor, with his report, exhibits the respective claims of the parties. The diagram A, B, C, D, E, F, A, represents the land claimed by the plaintiffs. A, B, C, D, G, H, A, represents the land which, as the defendants contend, the grant to the plaintiffs ought to cover. A, B, C and D, form the northern side of the tract, and are admitted by both parties t*o be correctly laid down. The question is, whether the next line should run from D to E, as contended by the plaintiffs, or from D to G, as contended by the defendants. The line from D to G, corresponds in course and distance with the call of the patent; it is S. 9° W. 4600 poles. The line from D to E, is S. 28° 9' west, 4854 poles, varying 19° 9' from the course, and 254 poles from the distance. This variance places the corner at E, about five miles west from that at G, and produces a correspondent change in the two remaining lines which form the southern and western sides of the land. At the trial, the defendants demurred to the plaintiffs’ testimony, and the jury found a verdict for the plaintiffs, subject to the opinion of the court on the demurrer. The court overruled the demurrer, and gave judgment for the plaintiffs. The demurrer states, that at the trial, the plaintiffs gave in evidence the plat and report made by the surveyor, which show that the lines from A to D, which bound the land on the north, conform to the $ _ patent. That the other *three lines D E, E F, and F A, which -* inclose the land on the west, south and east, are not marked, nor is any corner found at F. At E, two chestnut oaks were found, where two chestnut oaks were called for in the patent. They are marked as a corner previously made for Robert Young. The lines D G, G H, and II A, laid down by the directions of the defendants, conformable to the patent, are not marked. The plaintiffs also gave in evidence the patent under which they claimed, dated the 9th of July 1796, the conveyance of the patentees to them, and an official copy of the plat and certificate of survey on which the grant was founded. The land is described as lying on the waters of Tygart valley river, Cheat river, to include the waters of Pheasant run, and a part of Clover run, part of the waters of Benjamin Hornback’s run, and cherry tree fork of Leading creek. They also gave in evidence the grants under which the defendants claimed, with the. entries and surveys on which they were founded, which were younger than that under which the plaintiffs claimed. They also read the deposition of William Wilson. He deposes, that he made the survey of 50,000 acres, in 1795. He proves, that he began at A, and ran the line on the north side of the tract to D. He then protracted a line intended to strike two chestnut oaks, near the head of James’s run, by the side of a path leading from Tygart’s valley to the mouth of Seneca, which was a-corner he had previously marked to a survey of 100,000 acres he had made for Robert Young. From those two chestnut oaks, he ran to Tygart valley river. Not having a sufficient distance, and finding that the line would cross the river several times, he extended the course and called for a white oak, because he knew there were white oaks thereabout. He does not know whether the course and distance would have carried him to the east or west side of the river. He then protracted a line to the begin- 58 1830] OF THE UNITED STATES. Chinoweth v. Haskell. 95 ning. On being cross-examined, he said, he made the line from D to E, in his office, and laid it down intending to hit the two chestnut oaks near James’s run. He went to the two chestnut oaks, and ran to the river (not quite the half the line E F), where he stopped, and continued the line E F, the proper distance, and also protracted the closing line F A. He had no *axe-man with him, consequently, marked no trees. He was accom-panied by only one individual, and does not allege that a chain was L stretched. The defendants in the district court, having withdrawn their cause from the jury by a demurrer to evidence, or having submitted to a verdict for the plaintiffs, subject to that demurrer, cannot hope for a judgment in their favor, if, by any fair construction of the evidence, the verdict can be sustained. If this cannot be done, the judgment rendered for the defendants in error must be reversed. It is an obvious principle, that a grant mnst describe the land to be conveyed, and that the subject granted must be identified by the description given of it in the instrument itself. For the purpose of furnishing this description, and of separating the land from that which is not appropriated, the law directs a survey to be made by sworn officers, who, “ at the time of making such survey, shall see the same bounded plainly by marked trees, except where a water-course or ancient marked line shall be the boundary.” The persons employed to carry the chain are to be sworn by the surveyor to measure justly and exactly to the best of their abilities. The description of the land thus made by a survey is transferred into the grant. It consists of the courses and distances run by the surveyor, and of the marked trees at the lines and corners, or other natural objects which ascertain the very land which was actually surveyed. The courses and distances are less certain and less permanent guides to the land which was actually surveyed and granted, than natural and fixed objects on the ground ; but they are guides to some extent, and, in the absence of all others, must govern us. If a grant be made, which describes the land granted by course and distance only, or by natural objects, not distinguishable from others of the same kind, course and distance, though not safe guides, are the only guides given us, and must be used. In the case at bar, the line from D to E, or from D to G, which forms the western boundary of the land intended to be granted, was never run or marked. In his office, the surveyor assumed a course and distance, and terminates the line at two small chestnut oaks. But where are we to look *for these two small chestnut oaks, in a wilderness in which one man • takes up 50,000 acres of land, and another 100,000? Or how are we L to distinguish them from other chestnut oaks ? The guide, and the only guide, given us by the survey, or by the grant, is the course and distance. We are to find them at the end of a line of 4600 poles, to be run south 9° west from the established corner at D. We are furnished with no other guide which may conduct us to them. That the surveyor had in his mind the two small chestnut oaks which he had marked as a corner to Robert Young, can be of no avail, since he has not indicated this intention on his survey. He has impliedly indicated the contrary. When the established line or corner of a prior survey is made part of a boundary, it is usual to designate such marked line or corner, by naming the person whose line or corner it is. The 59 97 SUPREME COURT [Jan’y Chinoweth v. Haskell. call for two small chestnut oaks, without further description, would rather exclude the idea that they were already marked as the corner of a previous survey. The fact that the surveyor, on a subsequent day, went to Young’s corner, and without marking it as a corner for the survey he was then employed to make, walked along the line he intended for the southern boundary of the land, nearly half the distance, without marking a single tree, cannot in any manner affect the case. In estimating this evidence, we may inquire what weight would be allowed to it, if the grantee claimed to hold the land actually within his patent lines, and this testimony was opposed to him by a junior patentee within those lines ? We believe, that no person would hesitate an instant to say, that his title to the land actually within the lines of his patent, was unquestionable. He cannot be permitted, after the grant has issued, to elect what ground it shall cover. This opinion derives some additional weight from the general description of the country, as made in the grant, and as shown on the plat and report of the survey made by order of court in the cause. The grant calls to be on the waters of Tygart valley, and to include part of the waters of Hornback’s * , run, and the *cherry tree fork of Leading creek. This description J accords with the survey as required by the plaintiffs in error. The grant, if placed as the defendants in error claim to place it, will include, as is shown by the survey made in the cause, not only part of the waters of Hornback’s run, and the cherry tree fork of Leading creek, but all these two streams, and even all Leading creek itself, of which they are small branches. It will, also, instead of being on the waters of Tygart’s valley river, lie on the river itself, which it crosses several times. The general description then contained in the grant, fits the land comprehended within the lines of the patent, much better than it does that which is claimed by the defendants in error. It is admitted, that the course and distance called for in a grant may be controlled and corrected by other objects of description, which show that the survey actually covered other ground than the line of the grant would comprehend. If the grant, in this case, had called for two small chestnut oaks, marked as a corner to Robert Young’s survey of 100,000 acres, the mistake in the course and distance would not have prevented the line from being run from the corner at D, to the chestnut oaks. So, if a plainly marked line, originally run from one corner to the other, had shown that the land claimed was the land actually surveyed. But neither the grant, nor the face of the plat, furnishes any information by which the corner called for in the grant can be controlled. We are, therefore, of .opinion, that the defendant in error is not entitled to the land shown by the survey made in the cause to be in possession of the plaintiffs in error, and that the demurrer ought to have been sustained. The judgment is reversed, and the cause remanded, with directions to enter judgment in favor of the defendants in the district court. Judgment reversed. 60 1830] OF THE UNITED STATES. *99 *Jones Inglis, Demandant, v. The Trustees of the Sailor’s Snug Harbour in the City of New York. Charitable devise.—Testamentary trust.—Alienage.—American antenati.—State decisions.— Writ of right. A festator gave all the rest and residue and remainder of his estate, real and personal, comprehending a large real estate in the city of New York, to the chancellor of the state of New York, and recorder of the city of New York, &c. (naming several other persons by their official description), to have and to hold the same, unto them and their respective successors in office, to the uses and trusts, subject to the conditions and appointments, declared in the will; which were, out of the rents, issues and profits thereof, to erect and build upon the land upon which he resided, which was given by the will, an asylum br marine hospital, to be called “ the Sailor’s Snug Harbour,” for the purpose of maintaining and supporting aged, deerepid and worn-out sailors, &c. And after giving directions as to the management of the fund by his trustees, and declaring, that the institution created by his will should be perpetual, and that those officers and their successors should for ever continue the governors thereof, &c., he added, “it is my will and desire, that if it cannot legally be done, according to my above intention, by them, without an act of the legislature, it is my will and desire, that they will, as soon as possible, apply for an act of the legislature, to incorporate them for the purpose above specified; and I do further declare it to be my will and intention, that the said rest, residue, &c., of my estate should be, at all events, applied for the uses and purposes above set forth; and that it is my desire, all courts of law and equity will so construe this my said last will, as to have the said estate appropriated to the above uses, and that the same should, in no case, for want of legal form or otherwise, be so construed, as that my relations, or any other persons should heir, possess or enjoy my property, except in the manner and for the uses herein above specified.” Within five years after the death of the testator, the legislature of the state of New York, on the application of the trustees, also named as executors of the will, passed a law constituting the persons holding the offices designated in the will, and their successors, a body corporate, by the name of the “ Trustees of the Sailor’s Snug Harbor,” and enabling them to execute the trusts declared in the will. This is a valid devise, to divest the heir of his legal estate, or at all events, to affect the lands, in his hands, with the trust declared in the will. If, after such a plain and unequivocal declaration of the testator, with respect to the disposition of his property, so cautiously guarding against and providing for every supposed difficulty that might arise, any technical objection shall now be interposed, to defeat his purpose, it will form an exception to what we find so universally laid down in all our books, as a cardinal rule in the construction of wills, that the intention of the testator is to be sought after and carried into effect. If this intention cannot be carried into effect precisely in the mode at first contemplated by him, consistently with the rule of law, he has provided an alternative which, with the aid of the act of the legislature, must remove every difficulty.1 p. 318. *In the case of the Baptist Association ®. Hart’s Executors, 4 Wheat. 27, the court con- [-$ sidered the bequest void, for uncertainty as to the devisees, and the property vested *• in the next of kin, or was disposed of by some other provisions of the will. If the testator, in that case, had bequeathed the property to the Baptist Association, on its becoming there- 1 In New York, a devise to an unincorporated charitable association, is void; and cannot be rendered valid, by a subsequent incorporation. White v. Howard, 46 N. Y. 144; s. c. 52 Barb. 294; Chittenden v. Chittenden, 1 Am. L. Reg. 538. So, a devise for the erection and support of a charity, with a direction to cause the same to be incorporated, and to convey the title to such corporation, is void, if it prescribe no time within which those acts are to be done. Leonard v. Bell, 1 T. & C. 608; s. c. 58 N. Y. 676. But a charitable bequest for the found- ing of a hospital for the reception and relief of sick and deceased persons, which is limited to a corporation to be established within the period allowed for the vesting of future estates and interests, is not void on account of the uncertainty of the beneficiary. Burrill v. Boardman, 43 N. Y. 254. s. p. Holmes v. Mead, 52 Id. 332. A devise to a corporation to be created by the legislature, is good as an executory devise. Ould v. Washington Hospital, 95 U. S. 303, 313. 61 100 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. after, and within a reasonable time, incorporated, could there be a doubt, but that the subsequent incorporation would have conferred on the association the capacity of taking and managing the fund? p. 114. Whenever a person, by will, gives property, and points out the object, the property, and the way in which it shall go, a trust is created, unless he show clearly that his desire expressed is to be controlled by the trustee, and that he shall have an option to defeat it. p. 119. What are the rights of the individuals composing a society, and living under the protection of the government, when a revolution occurs, a dismemberment takes place, and when new governments are formed, and new relations between the government and the people are established ? A person bom in New York, before the 4th of July 1776, and who remained an infant, with his father, in the city of New York, during the period it was occupied by the British troops, his father being a loyalist, and having adhered to the British government, and left New York with the British troops, taking his son with him, who never returned to the United States, but afterward became a bishop of the Episcopal church, in Nova Scotia; such a person was born a British subject, and continued an alien, and is disabled from taking land by inheritance in the state of New York. p. 126. If such a person had been born after the 4th of July 1776, and before the 15th of September 1776, when the British troops took possession of the city of New York and the adjacent places, his infancy incapacited him from making an election for himself, and his election and character followed that of his father, subject to the right of disaffirmance, in a reasonable time after the termination of his minority; which never having been done, he remained a British subject, and disabled from inheriting land in the state of New York. p. 126. The rule as to the point of time at which the American ante-nati ceased to be British subjects, differs in this country and in England, as established by the courts of justice in the respective countries. The English rule is, to take the date of the treaty of peace in 1783; our rule is, to take the date of the declaration of independence.1 p. 121. The settled doctrine in this country is, that a person born here, but who left the country, before the declaration of independence, and never returned here, became an alien, and incapable of taking lands, subsequently, by descent; the right to inherit depends upon the existing state of allegiance, at the time of the descent cast. p. 121. The doctrine of perpetual allegiance is not applied by the British courts to the American antenati ; and this court, in the case of Blight’s Lessee v. Rochester, 7 Wheat. 544, adopted the same rule with respect to the rights of British subjects here—that although born before the revolution, they are equally incapable with those born subsequently to that event, of inheriting or transmitting the inheritance of lands in this country, p. 121. The British doctrine, therefore, is, that the American ante-nati, by remaining in America, after the peace, lost their character of British subjects ; and our doctrine is, that by withdrawing *mil from this country, and adhering to the British *government, they lost, or perhaps, more J properly speaking, never acquired, the character of American citizens, p. 122. The right of election must necessarily exist in all revolutions like ours, and is well established by adjudged cases.2 p. 122. This court, in the case of Mcllvaine’s Lessee v. Coxe, 4 Cranch 211, fully recognised the right of election ; but they considered, that Mr. Coxe had lost that right, by remaining in the state of New Jersey, not only after she had declared herself a sovereign state, but after she had passed laws by which she declared him to be a member of, and in allegiance to, the.new government p. 124. Allegiance may be dissolved by the mutual consent of the government and its citizens or subjects the government may release the governed from their allegiance; this is even the British doctrine, p. 125. C. B., by her last will and testament, devised “ all her estate, real and personal, wheresoever and whatsoever, in law or equity, in possession, reversion, remainder or expectancy, unto her executors and to the survivor of them, his heirs and assigns for ever,” upon certain designated trusts. Under the statute of wills of the State of New York (1 N. Y. Rev. Laws 364), all the rights of the testator to real estate, held adversely, at the time of the decease of the testator passed to the devisees, by this will. p. 127. 1 See a learned article on this question from 2 See Jones v. McMasters, 20 How. 20; the pen of John Reeve, author of the History Shanks v. Dupont, post, p. 242. of English Law, in 6 Hall’s Law Journ. 30. 62 1830] OF THE UNITED STATES. - - 101 Inglis v. Sailor’s Snug Harbour. It is the uniform rule of this court, with respect to the title to real property, to apply the same rule which is applied in the state tribunals in like cases, p. 129. The right of an absent and absconding debtor to real estate, held adversely, passed to and became vested in, the trustees, by the act of the legislature of New York, passed April 4th, 1786, entitled “an act for relief against absconding and absent debtors.” p. 131. In a writ of right, the tenant may, on the mise joined, set up a title out of himself and in a third person. If anything which fell from this court in the case of Green v. Liter, 8 Cranch 229, can be supposed to give countenance to the opposite doctrine, it is done away by the explanation given by the court in Green v. Watkins, 7 Wheat. 31; it is there laid down, that the tenant may give in evidence title in a third person, for the purpose of disproving the demandant’s seisin; that a writ of right does bring into controversy the mere right of the parties to the suit; and if so, it, by consequence, authorizes either party to establish by evidence, that the other has no right whatever in the demanded premises ; or that his mere right is inferior to that set up against him. p. 133. In a writ of right, on the mise joined on the mere right, under a count for the entire right, a demandant may recover a less quantity than the entirety.1 p. 135. This case came before the court, at January term 1829, from the Circuit Court of the United States for the Southern District of New York, on points of disagreement certified by the judges of that court. After argument by counsel, it was held under advisement until the present term. It was a writ of right, brought in the circuit court, for the recovery of certain real estate, situated in the city of New York, whereof Robert Richard Randall died seised and possessed. *The count was upon the seisin of Robert Richard Randall, and went for the whole premises. L Paul R. Randall and Catharine Brewerton, a brother and sister of Robert Richard Randall, both survived him, but had since died, without issue. The demandant claimed his relationship to Robert Richard Randall, through Margaret Inglis, his mother, who was a descendant of John Crooke, the common ancestor of Robert Richard Randall, Catharine Brewerton and Paul R. Randall. The tenants put themselves upon the grand assize, and the mise was joined upon the mere right. The cause was tried at October term 1827. The counsel for the tenants began with the evidence, and showed that they had been in possession for a number of years, claiming and holding the land as owners. The seisin of Robert Richard Randall was then proved, and that he purchased from one Baron Poelnitz. The genealogy of the demandant as next collateral heir of Robert R. Randall on the part of his mother, and that the blood of Thomas Randall, the father of Robert Richard Randall, was extinct, was proved. It was in evidence, that the British troops entered into New York, on the 15th of September 1776, and took and had full possession thereof, and of the adjacent bays and islands, and established a civil government there, under the authority of the British commander-in-chief. Evidence was given, to prove that the demandant was not more than one year old, when the British troops entered the city of New York, where he was born ; that the father of the demandant was a native of Ireland, and had resided for some time in New York, and continued to reside there, until he left there for England, on the day of, or the day before, the evacuation of New York, the 1 In ejectment, if the plaintiff claims the see Bear v. Snyder, 11 Id. 592; Van Alstyne whole of the premises, and prove title to an v. Spraker, 13 Id. 578; Oothout v. Ledings undivided part, he may amend and retain his 15 Id. 410. verdict. Ryerss v. Wheeler, 25 Wend. 434. And 63 102 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. 25th of November 1783. He took the demandant with him to England, remained there two years, was appointed a bishop, and went to Nova Scotia in 1785 or 1786, and there resided until his death. The mother of the demandant died in New York, on the 21st of September 1783, a little while before the evacuation thereof by the British troops. It was always consid-*,„1 ered by a witness *who testified in the cause, that Charles Inglis, the J father of the demandant, was a royalist. The demandant was certainly born before the year 1779 ; in 1783, he could not speak plainly, and was considered not more than five years old—between four and five. He took his degree of master of arts, in England, was there ordained a clergyman ; his place of residence, from the time he first arrived at Nova Scotia, was with his father, and he had continued to reside there ever since. He went to England, to be consecrated a bishop ; which character he still held, being Bishop of Nova Scotia. Charles Inglis, the father of the demandant, had four children, the eldest which, a son, died an infant, 20th of January 1782, two daughters and the demandant, who was the youngest child. The following proceedings of a convention of the state of New York, before the British entered the city, were in evidence : Thursday afternoon, July 16th, 1776. Present, General Woodhull, president, and the members of the convention. Whereas, the present dangerous situation of this state demands the unremitted attention of every member of the convention : Resolved, unanimously, that the consideration of the necessity and propriety of establishing an independent civil government be postponed until the first day of August next, and that, in the meantime, resolved, unanimously, that all magistrates and other officers of justice in this state, who are well affected to the liberties of America, be requested, until further orders, to exercise their respective offices, provided, that all processes, and other their proceedings, be under the authority and in the name of the state of New York. Resolved, unanimously, that all persons abiding within the state of New York, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of the state ; and that all persons passing through, visiting, or making a temporary stay in said state, being entitled to the protection of the laws, during the # time of such *passage, visitation, or temporary stay, owe, during -* the same, allegiance thereto. That all persons, members of, or owing allegiance to, this state, as before described, who shall levy war against the said state, within the same, or be adherent to the king of Great Britain, or others, the enemies of the said state, within the same, giving to him or them aid oi’ comfort, are guilty of treason against the state, and being thereof convicted, shall suffer the pains and penalties of death.” The tenants gave in evidence the acts of the legislature of New York, “ for the forfeiture of the estate of persons who adhered to the enemies of the state,” &c., passed the 22d of October 1779 ; the “ act supplementary to the act to provide for the temporary government of the southern part of his state,” &c., passed the 23d of October 1779 ; and the supplement thereto, passed the 27th March 1783. Robert Richard Randall died in the city of New York, between the 1st of June and the 1st of July 1801, having, on the 1st of June of that year, made his last will and testament; probate of which was regularly made in 64 1830] OF THE UNITED STATES. 104 Inglis v. Sailor’s Snug Harbour. the city of New York. The provisions of the will of Robert Richard Randall under which the tenants claimed their title, were the following : “ 6. As to and concerning all the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath the same unto the chancellor of the state of New York, the mayor and recorder of the city of New York, the president of the chamber of commerce in the city of New York, the president and vice-president of the Marine Society of the city of New York, the senior minister of the Episcopal church in the said city, and the senior minister of the Presbyterian church in the said city, to have and to hold all and singular the said rest, residue and remainder of my said real and personal estate, unto them, the said chancellor of the state of New York, mayor of the city of New York, the recorder of the city of New York, the president of the chamber of commerce, president and vice-president of the Marine Society, senior minister of the Episcopal church, *and senior minister of the Presbyterian church in the said city, for the time being, and their respective successors in the said offices for ever, to, for and upon the uses, trusts, intents and purposes, and subject to the directions and appointments hereinafter mentioned and declared concerning the same, that is to say, out of the rents, issues and profits of the said rest, residue and remainder of my said real and personal estate, to erect and build upon some eligible part of the land upon which I now reside, an asylum or marine hospital, to be called ‘ the Sailor’s Snug Harbour,’ for the purpose of maintaining and supporting aged, decrepid and worn-out sailors, as soon as they, my said charity trustees, or a majority of them, shall judge the proceeds of the said estate will support fifty of the said sailors, and upwards ; and I do hereby direct, that the income of the said real and personal estate, given as aforesaid to my said charity trustees, shall for ever hereafter be used and applied for supporting the asylum or marine hospital, hereby directed to be built, and for maintaining sailors of the above description therein, in such manner as the said trustees, or a majority of them, may, from time to time, or their successors in office may, from time to time, direct. And it is my intention, that the institution hereby directed and created should be perpetual, and that the above-mentioned officers for the time being, and their successors, should for ever continue and be the governors thereof, and have the superintendence of the same. And it is my will and desire, that if it cannot legally be done, according to my above intention, by them, without an act of the legislature, it is my will and desire, that they will, as soon as possible, apply for an act of the legislature to incorporate them for the purposes above specified. And I do further declare it to be my will and intention, that the said rest, residue and remainder of my real and personal estate, should be at all events applied for the uses and purposes above set forth ; and that it is my desire, all courts of law and equity will so construe this my said will, as to have the said estate appropriated to the above uses, and that the same should, in no case, for want of legal form or otherwise, be so construed, as that my relations or any other persons *should heir, # possess or enjoy my property, except in the manner and for the uses L 06 herein above specified. “ And lastly, I do nominate and appoint the chancellor of the state of New York, for the time being, at the time of my decease ; the mayor of the city of New.York, for the time being; the recorder of the city of New 3 Pet.—5 65 106 SUPREME COURT. [Jan’y Inglis v. Sailor’s Snug Harbour. York, for the time being ; the president of the chamber of commerce, for the time being ; the president and vice-president of the Marine Society in the city of New York, for the time being ; the senioi’ minister of the Episcopal church in the city of New York, and the senior minister of the Presbyterian church in the said city, for the time being; and their successors in office, after them, to be the executors of this my last will and testament, hereby revoking all former and other wills, and declaring this to be my last will and testament.” It was admitted, that at the time of the decease of Robert Richard Randall, and of the probate of the will, the offices named in the will were respectively filled by different persons, and that they, or some of them, immediately upon the death of the testator, entered upon the premises, under the will, claiming to be the owners in fee, until the legislature of New York, on their application, on the 6th of February 1806, passed “ an act to incorporate the trustees of the marine hospital, called the Sailor’s Snug Harbour, in the city of New York.” Those offices continued to be filled respectively by different persons, from the time of the death of the testator, until the time of the trial. The act incorporating “the trustees of the marine hospital,” &c., provided : Whereas, it is represented to the legislature, that Robert Richard Randall, late of the city of New York, deceased, in and by his last will and testament, duly made and executed, bearing date the 1st day of June, in the year of our Lord 1801, did, after bequeathing certain specific legacies therein mentioned, among other things, give, and devise and bequeath all the residue of his estate, both real and personal, unto the chancellor of this state, the mayor and recorder of the city of New York, the president of the *1071 c^am^er *commerce in the city of New York, the president of the J Marine Society of the city of New York, the senioi’ minister of the Episcopal church in the said city, and the senior minister of the Presbyterian church in the said city, for the time being, and to their successors in office, respectively, in trust, to receive the rents, issues and profits thereof, and to apply the same to the erecting or building on some eligible part of the land whereon the testator then resided, an asylum or marine hospital, to be called “ the Sailor’s Snug Harbour,” for the purpose of maintaining and supporting aged, decrepid and worn-out sailors, as soon as the said trustees, cr a majority of them, should judge the proceeds of the said estate would support fifty of such sailprs and upwards ; and that the said testator, in his said will, declared his intention to be, that the said estate should, at all events, be applied to the purposes aforesaid, and no other ; and if his said intent could not be carried into effect, without an act of incorporation, he therein expressed his desire, that the said trustees would apply to the legislature for such incorporation; and whereas, the said trustees have represented that the said estate is of considerable value, and if prudently managed, will, in time, enable them to erect such hospital, and carry into effect the intent of the testator; but that, as such trustees, and being also appointed executors of the said will, in virtue of their offices, and only during their continuance in the said offices, they have found that considerable inconveniences have arisen in the management of the said estate, from the changes which have taken place in the ordinary course of the elections and appointments to those offices, and have prayed to be incorporated for the purposes 66 1830] OF THE UNITED STATES. 107 Inglis v. Sailor’s Snug Harbour. expressed in the said will, and such prayer appears to be reasonable : therefore— § 1. Be it enacted by the people of the state of New York, represented in senate and assembly, that John Lansing, jun., the chancellor of this state, De Witt Clinton, the mayor, and Maturin Livingston, the recorder of the city of New York, John Murray, the president of the chamber of commerce of the city of New York, James Farquhar, the president, and Thomas Farmer, the first vice-president, of the Marine *Society of the city of rs(e New York, Benjamin Moore, senior minister of the Episcopal church *-in the said city, and John Rogers, senior minister of the Presbyterian church in the said city, and their successors in office, respectively, in virtue of their said offices ; shall be, and hereby are constituted and declared to be a body corporate, in fact and in name, by the name and style of the Trustees of the Sailor’s Snug Harbour in the city of New York ; and by that name, they and their successors shall have continual succession, and shall be capable in law of suing and being sued, pleading and being impleaded, answering and being answered unto, defending and being defended, in all courts and places whatsoever, and in all manner of actions, suits, complaints, matters and causes whatsoever ; and that they and their successors may have a common seal, and may change and alter the same at their pleasure ; and also, that they and their successors, by the name and style aforesaid, shall be capable in law of holding and disposing of the said real and personal estate, devised and bequeathed as aforesaid, according to the intention of the said will; and the same is hereby declared to be vested in them, and their successors in office, for the purpose therein expressed ; and shall also be capable of purchasing, holding and conveying any other real and personal estate, for the use and benefit of the said corporation, in such manner as to them, or a majority of them, shall appear to be most conducive to the interest of the said institution. The second section gave to the trustees the power to make rules and regulations, and to appoint officers for the government and business of the corporation, and provided for the mode of transacting the same. The third section declared, that “this act shall be deemed and taken to be a public act, and be construed in all courts and places, benignly and favorably for the purposes therein intended.” On the 25th of March 1814, an act supplementary to the act of incorporation was passed, declaring, that persons holding certain offices should act as trustees, and declaring it to be the duty of the corporation to make an annual report of *their funds to the common council of the city, Of rsk the state of their funds. *- 0 The counsel for the tenants gave in evidence the act of the legislature of New York, “ for relief against absconding and absent debtors,” passed the 4th of April 1786 ; and a report made to the supreme court of judicature of the state of New York, of proceedings under the act against Paul Richard Randall, by which he was declared an absent debtor. Under this act, all the estate, real as well as personal, of Paul Richard Randall, as an absent debtor, of what kind or nature soever the same might be, were, on the 13th of November 1800, attached, seized and taken, and were, by the recorder of New York, under and in pursuance of the provisions of the law, upon the 22d of December 1801, by an instrument of writing, under his hand and seal, conveyed to Charles Ludlow, James Brewerton and Roger Strong, all 67 109 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. of the city of New York, to be trustees for all the creditors of the said Paul Richard Randall, who afterwards duly qualified as trustees. Subsequently, on the 14th of April 1808, upon a further application to the recorder of New York, Paul Richard Randall being still absent, other trustees are appointed, according to law, who were, on the same day, qualified to act as trustees. The demandant gave in evidence the following rules of the supreme court of judicature of the people of the state of New York : February 17th, 1804. “In the matter of Paul Richard Randall, an absent debtor. On reading and filing the petition of Alexander Stewart, White Matlack and Catharine Brewerton, agents and attorneys of the said Paul Richard Randall, and also reading and filing the answer of Charles Ludlow, James Brewerton and Roger Strong, trustees for all the creditors of the said Paul Richard Randall, to the said petition, and on motion of Mr. Hamilton, attorney of the said Alexander Stewart, White Matlack $nd Catharine Brewerton, it is ordered by the court, that the said trustees pay * , to the said Paul Richard Randall, *or his said agents and attorneys, J for his use, the sum of $5500, out of the moneys now remaining in the hands of the said trustees.” August 9th, 1804. “In the matter of Paul R. Randall, an absent debtor, and his assignees, &c. On reading and filing the petition of Alexander Phoenix, the attorney and agent for Paul Richard Randall, together with a certified copy of the power of attorney, and the acknowledgments of the trustees and former attorneys of the said Paul, thereunto annexed, and on motion of Mr. Van Wyck, of counsel for the said Alexander, ordered, that the rule heretofore, in February term last, made in the said matter, be vacated, and that the said sum of $5500, acknowledged to be still remaining in the hands of the said Charles Ludlow, James Brewerton and Roger Strong, trustees as aforesaid, be paid over by them to the said Alexander Phoenix, as the attorney and agent of the said Paul Richard Randall.” It appeared in evidence, that Catharine Brewerton died some time in or about the year of our Lord 1815, and that Paul R. Randall died some time in the year of our Lord 1820, Catharine Brewerton, having first, while a widow, made her last will and testamennt, dated the 5th of June, a. d. 1815, duly executed and attested to pass real estate, and devised among Other things as follows, that is to say : “ Secondly, I give, devise and bequeath all my estate, real and personal, whatsoever and wheresoever, in law or equity, in possession, reversion, remainder or expectancy (excepting such as is herein otherwise specially mentioned), unto my executors hereinafter named, and to the survivor of them, his heirs and assigns for ever, upon trust, nevertheless, for the uses and purposes hereinafter mentioned and intended, that is to say, that my executors shall,” &c. Upon the trial of the cause in the circuit court, the judges were opposed in opinion upon the following points, which were certified to the court. 1. * Whether, inasmuch as the count in the cause is for the entire J right in the premises, the demandant can recover a less quantity than the entirety ? 2. Whether John Inglis, the demandant, was or was not capable of 68 1830] OF THE UNITED STATES. Ill Inglis v. Sailor’s Snug Harbour. taking lands in the state of New York by descent? which general question presents itself under the following aspect: 1. Whether, incase he was born before the 4th of July 1776, he is an alien, and disabled from taking real estate by inheritance ? 2. Whether, in case he was born after the 4th of July 1776, and before the 15th of September of the same year, when the British took possession of New York, he would be under the like disability ? 3. Whether, if he was born after the British took possession of New York, and before the evacuation on the 25th of November 1783, he would be under the like disability ? 4. What would be the effect upon the right of John Inglis to inherit real estate in New York, if the grand assize should find, that Charles Inglis, the father, and John Inglis, the demandant, did, in point of fact, elect to become and continue British subjects, and not American citizens ? 3. Whether the will of Catharine Brewerton was sufficient to pass her. right and interest in the premises in question, so as to defeat the demandant in any respect; the premises being, at the date of the will and ever since, held adversely by the tenants in this suit ? 4. Whether the proceedings against Paul R. Randall, as an absent debtor, passed his right or interest in the lands in question to, and vested the same in, the trustees appointed under the said proceedings, or either of them, so as to defeat the demandant in any respect ? 5. Whether the devise in the will of Robert Richard Randall of the lands in question, is a valid devise, so as to divest the heir-at-law of his legal estate, or to affect the lands in his hands with a trust ? The cause was argued by Ogden and Webster, for the demandant; and by Talcott and Wirt, for the *tenants. The argument was commenced and concluded by the counsel for the tenant. l Thompson, Justice, delivered the opinion of the court.—This case comes up from the circuit court for the southern district of New York, upon several points, on a division of opinion certified by that court. In the examination of these points, I shall pursue the order in which they have been discussed at the bar. I. “ Whether the devise in the will of Robert Richard Randall, of the lands in question, is a valid devise, so as to divest the heir-at-law of his legal estate, or to affect the lands in his hands with a trust ? ” This question arises upon the residuary clause in the will, in which the testator declares, that as to and concerning all the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath the same unto the chancellor of the state of New York, the mayor and recorder of the city of New York, &c. (naming several other persons by their official description only), to have and to hold all and singular the said rest, residue and remainder of my said real and personal estate, unto them, and their respective successors in office, for ever, to, for and upon, the uses, trusts, intents and purposes, and subject to the directions and appointments hereinafter mentioned and declared concerning the same, that is to say, out of the rents, issues and profits of the said rest, residue and remainder of my said real and personal estate, to erect and’ build upon some eligible part of the land upon which I now reside, an asylum or marine hospital, to be called 69 112 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. “the Sailor’s Snug Harbour,” for the purpose of supporting aged, decrepid and worn-out sailors, &c. And after giving directions as to the management of the fund by his trustees, and declaring that it is his intention, that the institution erected by his will should be perpetual, and that the above-mentioned officers for the time being, and their successors, should for ever continue to be the governors thereof, and have the superintendence of the same, he then adds, “ and it is my will and desire, that if it cannot legally * , be done, according to my above intention, by them, *without an act J of the legislature, it is my will and desire, that they will, as soon as possible, apply for an act of the legislature to incorporate them for the purposes above specified. And I do hereby declare it to be my will and intention, that the said rest, residue and remainder of my said real and personal estate, should be, at all events, applied for the uses and purposes above set forth ; and that it is my desire, all courts of law and equity will so construe this my said will, as to have the said estate appropriated to the above uses, and that the same should, in no case, for want of legal form or otherwise, be so construed, as that my relations, or any other persons, should heir, possess or enjoy my property, except in the manner and for the uses herein above specified.” The legislature of the state of New York, within a few years after the death of the testator, on the application of the trustees, "who are also named as executors in the will, passed a law, constituting the persons holding the offices designated in the will, and their successors in office, a body corporate, by the name and style of the “Trustees of the Sailor’s Snug Harbour in the city of New York,” and declaring that they and their successors, by the name and style aforesaid, shall be capable in law of holding and disposing of the said real and personal estate, devised and bequeathed as aforesaid, according to the intentions of the aforesaid will. And that the same is hereby declared to be vested in them and their successors in office, for the purposes therein expressed. If, aftei’ such a plain and unequivocal declaration of the testator with respect to the disposition of bis property, so cautiously guarding against, and providing for, every supposed difficulty that might arise, any technical objection shall now be interposed to defeat his purpose, it will form an exception to what we find so universally laid down in all our books, as a cardinal rule in the construction of wills, that the intention of the testator is to be sought after and carried into effect. But no such difficulty, in my judgment, is here presented. If the intention of the testator cannot be *1141 oarried int° effect, precisely in the mode at first contemplated by *him, J consistently with the rules of law, he has provided an alternative, which, with the aid of the act of the legislature, must remove all difficulty. The case of the Baptist Association v. Harfs Executors, 4 Wheat. 27, is supposed to have a strong bearing upon the present. This is however distinguishable in many important particulars from that. The bequest there was, “ to the Baptist Association that, for ordinary, meets at Philadelphia.” This association not being incorporated, was considered incapable of taking the trust, as a society. It was a devise in proesenti, to take effect immediately on the death of the testator, and the individuals composing it were numerous and uncertain, and there was no executory bequest over to the association, if it should become incorporated. The court, therefore, con-70 1830] OF THE UNITED STATES. 114 Inglis v. Sailor’s Snug Harbour. sidered the bequest gone, for uncertainty as to the devisees, and the property vested in the next of kin, or was disposed of by some other provision in the will. If the testator, in that case, had bequeathed the property to the Baptist Association, on its becoming, thereafter, and within a reasonable time, incorporated, could there be a doubt, but that the subsequent incorporation would have conferred on the association the capacity of taking and managing the fund ? In the case now before the court, there is no uncertainty with respect to the individuals who were to execute the trust. The designation of the trustees, by their official character, is equivalent to naming them by their proper names. Each office referred to was filled by a single individual, and the naming of them by their official distinction was a mere designatio personae. They are appointed executors, by the same description, and no objection could lie to then’ qualifying and acting as such. The trust was not to be executed by them, in their official characters, but in their private and individual capacities. But admitting that the devise, in the present case, had been to the officers named in the will, and their successors, to execute the trust, and no other contingent provision made, it would fall within the case of the Baptist Association v. Harfs Executors. The subsequent provisions in the will must remove all difficulty on this ground. If the first mode pointed out by the testator for carrying into execution his will and *intention, with respect to this fund, cannot legally take effect, it must be rejected, and the will stand as if it had never been *-inserted ; and the devise would then be to a corporation, to be created by the legislature, composed of the several officers designated in the will as trustees, to take the estate and execute the trust. And what objection can there be to this, as a valid executory devise, which is such a disposition of lands, that thereby no estate vests at the death of the devisor, but only on some future contingency ? By an executory devise, a freehold may be made to commence in futuro, and needs no particular estate to support it. The future estate is to arise upon some specified contingency, and the fee-simple is left to descend to the heir-at-law, until such contingency happens. A common case put. in the books, to illustrate the rule is—if one devises land to a feme sole and her heirs, upon her marriage. This would be a freehold commencing in future, without any particular estate to support it, and would be void in a deed, though good by executory devise. 1 Bl. Com. 175. This contingency must happen within a reasonable time, and the utmost length of time the law allows for this is, that of a life or lives in being and twenty-one years afterwards. The devise in this case does not purport to be a present devise to a corporation not in being, but a devise to take effect in futuro, upon the corporation being created. The contingency was not too remote. The incorporation was to be procured, according to the directions in the will, as soon as possible, on its being ascertained that the trust could not legally be carried, into effect in the mode first designated by the testator. It is a devise to take effect upon condition that the legislature should pass a law incorporating the trustees named in the will. Every executory devise is upon some condition or contingency, and takes effect only upon the happening of such contingency, or the performance of such condition. As in the case put, of a devise 71 115 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour to a feme sole, upon her marriage—the devise depends on the condition of her afterwards marrying. The doctrine sanctioned by the court in Porter's Case, 1 Co. 24, admits * - q the validity of a devise to a future incorporation. In answer to the J argument, that the devise of a charitable use was void, under the statute 23 Hen. VIII., it was said, that admitting this, yet the condition was not void in that case. For the testator devised that his wife shall have his lands and tenements, upon condition, that she, by the advice of learned counsel, in convenient time after his death, shall assure all his lands and tenements for the maintenance and continuance of the said free school and alms-men and alms-women for ever. So that, although the said uses were prohibited by the statute, yet the testator hath devised, that counsel learned should advise, how the said lands and tenements should be assured, for the uses aforesaid, and that may be advised lawfully, viz : to make a corporation of them by the king’s letters-patent, and afterwards, by license, to assure the lands and tenements to them. So, if a man devise that his executors shall, by the advice of learned counsel, convey his lands to any corporation, spiritual or temporal, this is not against any act of parliament, because it may lawfully be done by license, &c., and so, doubtless, was the intent of the testator, for he would have the lands assured for the maintenance of the free school and poor, for ever, which cannot be done without incorporation and license, as aforesaid ; so the condition is not against law : quod fuit concessum per curiam. The devise, in that case, could not take effect without the incorporation ; this was the condition upon which its validity depended. And the incorporation was to be procured, after the death of the testator. The devise, then, as also in the case now before the court, does not purport to be a present devise, but to take effect upon some future event. And this distinguishes the present case from that of the Paptist Association v. Hart's Executor s,t in another important circumstance. There, it was a present devise, here, it is a future devise. A devise to the first son of A., he having no son at that time, is void ; because it is by way of a present devise, and the -devisee is not in esse. But a devise to the first son of A., when he shall have one, is good ; for that is only a future devise, and valid as an executory devise. 1 Salk. 226, 229. The cases in the books are very strong, to show, that for the purpose of *1171 carry^n^ *nto e^ect the intention of the *testator, any mode pointed out -* by him will be sanctioned, if consistent with the rules of law, although some may fail. In Thellusson n. Woodford, 4 Ves. 325, Buller, Justice, sitting with the lord chancellor, refers to and adopts with approbation, the rule laid down by Lord Talbot, in Hopkins v. Hopkins—that in such cases (on will), the method of the courts is not to set aside the intent, because it cannot take effect so fully as the testator desired, but to let it work as far as it can. Most executory devises, he says, are without any freehold to support them ; the number of contingencies is not material, if they are to happen within the limits allowed by law. That it was never held, that executory devises are to be governed by the rules of law as to common-law conveyances. The only question is, whether the contingencies are to happen within a reasonable time or not. The master of the rolls, in that case says (p. 329), he knows of only one general rule of construction, equally for 72 1830] OF THE UNITED STATES. 117 Inglis v. Sailor’s Snug Harbour. courts of equity and courts of law, applicable to wills. The intention of the testator is to be sought for, and the will carried into effect, provided it can be done, consistent with the rules of law. And he adds another rule, which has become an established rule of construction—that if the court can see a general intention, consistent with the rules of law, but the testator has attempted to carry it into effect, in a way that is not permitted, the court is to give effect to the general intention, though the particular mode shall fail. 1 P. Wms. 332 ; 2 Bro. C. C. 51. The language of Lord Mansfield, in the case of Chapman n. Brown, 3 Burr. 1634, is very strong, to show how far courts will go to carry into effect the intention of the testator. To attain the intent, he says, words of limitation shall operate as words of purchase ; implication shali supply verbal omissions ; the letter shall give way, every inaccuracy of grammar, every impropriety of terms, shall be corrected by the general meaning, if that be clear and manifest. In Bartlett n. King, 12 Mass. 543, the supreme judicial court of Massachusetts adopt the rule laid down in Ihellusson v.. Woodford, that the court is bound to carry the will into effect, if they can see a general intention, Consistent with the rules of law, even if the • ° • • I j 18 particular mode or manner pointed out by the testator is illegal. L And the court refer with approbation to what is laid down by Powell, in his Treatise on Devises 421, that a devise is never construed absolutely void for uncertainty, but from necessity ; if it be possible to reduce it to certainty, it is good. So also, in Findlay v. Riddle, 3 Binn. 162, in the supreme court of Pennsylvania, the rule is recognised, that the general intent must be carried into effect, even if it is at the expense of the particular intent. A rule so reasonable and just in itself, and in such perfect harmony with the whole doctrine of the law in relation to the construction of wills, cannot but receive the approbation and sanction of all courts of justice ; and a stronger case calling for the application of that rule can scarcely be imagined, than the one now before the court. The general intent of the testator, that this fund should be applied to the maintenance and support of aged, decrepid and worn-out sailors, cannot be mistaken. And he seems to have anticipated that some difficulty might arise, about its being legally done in the particular mode pointed out by him. And to guard against a failure of his purpose on that account, he directs application to be made to the legislature for an incorporation, to take and execute the trust according to his will; declaring his will and intention to be, that his estates should, at all events, be applied to the uses and purposes aforesaid ; and desiring all courts of law and equity so to construe his will, as to have his estate applied to such uses. And to make it still more secure, if possible, he finally directs, that his will should, in no case, for want of legal form or otherwise, be so construed, as that his relations, or any other persons, should heir, possess, or enjoy his property, except in the manner and for the uses specified in his will. The will looks therefore to three alternatives : 1. That the officers named in the will as trustees should take the estate and execute the trust. 2. If that could not legally be done, then, he directs his trustees to procure an act of incorporation, and vests the estate in it, for the purpose of executing the trust. *3. If both these should fail, bis heirs, or whosoever should possess and enjoy the property, are charged with the trust. L 73 119 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. That this trust is fastened upon the land, cannot admit of a doubt. Wherever a person, by will, gives property, and points out the object, the property, and the way in which it shall go, a trust is created ; unless he shows clearly that his desire expressed, is to be controlled by the trustee, and that he shall have an option to defeat it. 2 Ves. jr. 335. It has been urged by the defendant’s counsel, that these lands cannot be charged with the trust, in the hands of the heir, because the will directs, that they shall not be possessed or enjoyed, except in the manner and for the uses specified ; that the manner and the use must concur, in order to charge the trust on the land. But I apprehend, this is a mistaken application of the term “ manner ” as here used. It does not refer to the persons who w’ere to execute the trust, but to the mode or manner in which it was to be carried into effect, viz., by erecting upon some eligible part of the land an asylum or marine hospital, to be called the Sailor’s Snug Harbour. And the uses were, “ for the purpose of maintaining and supporting aged, decrepid and worn-out sailors.” Whoever, therefore, takes the land, takes it charged with these uses or trusts, whicb are to be executed in the manner above mentioned. And if so, there can be no objection to the act of incorporation, and the vesting the title therein declared. It does not interfere with any vested rights in the heir ; he has no beneficial interest in the land ; and the law only transfers the execution of the trust from him to the corporation, thereby carrying into effect the clear and manifest intention of the testator. But being of opinion, that the legal estate passed under the will, I have not deemed it necessary to pursue the question of trust, and have simply referred to it, as being embraced in the point submitted to this court. If this is to be considered a devise to a corporation, it will not come within the prohibitions in the statute of wills. (1 Rev. Laws 364.) For this act of incorporation is, pro tanto, a repeal of that statute. , , Taking this devise, therefore, in either of the points of view *in *1201 & \ . J which it has been considered, the answer to the question put must be, that it is valid, so as to divest the heir of his legal estate, or, at all events, to affect the lands, in his hands, with the trust declared in the will. If this view of the devise in the will of Robert Richard Randall be correct, it puts an end to the right and claim of the demandant, and might render it unnecessary to examine the other points which have been certified to this court, had the questions come up on a special verdict or bill of exceptions. But coming up on a certificate of a division of opinion, it has been the usual course of this court, to express an opinion upon all the points. It is not, however, deemed necessary, to go into a very extended examination of the other questions, as the opinion of the court upon the one already considered is conclusive against the right of recovery in this action. II. The second general question is, whether John Inglis, the demandant, was, or was not, capable of taking lands in the state of New York by descent ? The question is presented under several aspects, for the purpose of meeting what, at present, from the evidence, appears a little uncertain, as to the time of the birth of John Inglis. This question, as here presented, does not call upon the court for an opinion upon the broad doctrine of allegiance and the right of expatriation, under a settled and unchanged state of society and government. But to decide what are the rights of the individuals compos- 74 1830] OF THE UNITED STATES. 120 Inglis v. Sailor’s Snug Harbour. ing that society, and living under the protection of that government, when a revolution occurs, a dismemberment takes place, new governments are formed, and new relations between the government and the people are established. If John Inglis, according to tbe fourth supposition under this point, was born before the 4th of July 1776, he is an alien ; unless his remaining in New York, during the war, changed his character, and made him an American citizen. It is universally admitted, both in the English courts and in those of our own country, that all persons born within the colonies of North America, whilst subject to the crown of Great Britain, were natural-born British subjects, and it *must necessarily follow, that their character was changed, by the separation of the colonies from the parent state, and L the acknowledgement of their independence. The rule as to the point of time at which the American ante-nati ceased to be British subjects, differs in this country and in England, as established by the courts of justice in the respective countries. The English rule is, to take the date of the treaty of peace in 1783 ; our rule is, to take the date of the declaration of independ ence. And in the application of the rule to different cases, some difference in opinion may arise. The settled doctrine of this country is, that a person born here, who left the country before the declaration of independence, and never returned here, became thereby an alien, and incapable of taking lands, subsequently, by descent, in this country. The right to inherit depends upon the existing state of allegiance, at the time of descent cast. The descent cast, in this case, being long after the treaty of peace, the difficulty which has arisen in some cases, where the title was acquired between the declaration of independence and the treaty of peace, does not arise. Primd facie, and as a general rule, the character in which the American ante-nati are to be considered, will depend upon, and be determined by, the situation of the party, and the election made, at the date of the declaration of independence according to our rule ; or the treaty of peace, according to the British rule. But this general rule must necessarily be controlled by special circumstances attending particular cases. And if the right of election be at all admitted, it must be determined, in most cases, by what took place during ihe struggle, and between the declaration of independence and the treaty of peace. To say, that the election must have been before, or immediately at1 the declaration of independence, would render the right nugatory. The doctrine of perpetual allegiance is not applied by the British courts to the American ante-nati. This is fully shown by the late case of Poe v. Acklam, 2 Barn. & Cres. 779. Chief Justice Abbott says, “James Lud, low, the father of Frances May, the lessor of the plaintiff, was undoubtedly born a subject of Great Britain. He was born in a part of * America which was, at the time of his birth, a British colony, and parcel of L the dominions, of the crown of Great Britain ; but upon the fact found, we are of opinion, that he was not a subject of the crown of Great Britain, at the time of the birth of his daughter. She was born after the independence of the colonies was recognised by the crown of Great Britain, aftei’ the colonies had become United States, and their inhabitants, generally, citizens of those states, and her father, by his continued residence in those states, manifestly became a citizen of them.” He considered the treaty of peace as a release from their allegiance of all British subjects who remained there. A declara- 75 122 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. tion, says he, that a state shall be free, sovereign and independent, is a declaration, that the people composing the state shall no longer be considered as subjects of the sovereign by whom such a declaration is made. And this court, in the case of .Blight's .Lessee v. Rochester, 7 Wheat. 544, adopted the same rule with respect to the right of British subjects here. That although born before the revolution, they are equally incapable, with those born subsequent to that event, of inheriting or transmitting the inheritance of lands in this country. The British doctrine, therefore, is, that the American antenati, by remaining in America, after the treaty of peace, lost their character of British subjects. And our doctrine is, that by withdrawing from this country, and adhering to the British government, they lost, or, perhaps, more properly speaking, never acquired, the character of American citizens. This right of election must necessarily exist, in all revolutions like ours, and is so well established by adjudged cases, that it is entirely unnecessary to enter into an examination of the authorities. The only difficulty that can arise is, to determine the time when the election should have been made. Vattel, lib. 1, c. 3, § 33 ; 1 Dall. 58 ; 2 Ibid. 234 ; 20 Johns. 332 ; 2 Mass. 179, 236, 244 note ; 2 Pick. 394 ; 2 Kent’s Com. 49. I am not aware of any case, in the American courts, where this right of election has been denied, except that of Ainsley n. Martin, 9 Mass. 454. Chief Justice Parsons oqI does t^ere seem to recognise and apply the doctrine of perpetual *alle- J giance, in its fullest extent. He there declares, that a person born in Massachusetts, and who, before the 4th of July 1776, withdrew into the British dominions, and never since returned into the United States, was not an alien; that his allegiance to the king of Great Britain was founded on his birth, within his dominions; and that that allegiance accrued to the commonwealth of Massachusetts, as his lawful successor. But he adds, what may take the present case even out of his rule: “It not being alleged,” says he, “ that the demandant has been expatriated, by virtue of any statute or any judgment of law.” But the doctrine laid down in this case is certainly not that which prevailed in the supreme judicial court of Massachusetts, both before and since that decision, as will appear by the cases above referred to of Gardners. Ward, 2 Mass. 236; Kilham v. Ward, Ibid. 244 ; and of George Phipps, 2 Pick. 394 note. John Inglis, if born before the declaration of independence, must have been very young at that time, and incapable of making an election for himself ; but he must, after such a lapse of time, be taken to have adopted and ratified the choice made for him by his father, and still to retain the character of a British subject, and never to have become an American citizen, if his father was so to be considered. He was taken from this country by his father, before the treaty of peace, and has continued eVer since to reside within the British dominions, without signifying any dissent to the election made for him ; and this ratification, as to all his rights, must relate back, and have the same effect and operation, as if the election had been made by himself at that time. How then is his father, Charles Inglis, to be considered? Was he an American citizen ? He was here, at the time of the declaration of independence, and primd facie may be deemed to have become thereby an American citizen. But this primd facie presemption may be rebutted ; otherwise, there is no force or meaning in the right of election. It surely 76 1830] OF THE UNITED STATES. 123 Inglis v. Sailor’s Snug Harbour. cannot be said, that nothing short of actually removing from the country, before the declaration of independence, will be received as evidence of the election ; and every act that could be done to signify the choice that had been made, *except actually withdrawing from the country, was done by Charles Inglis. He resided in the city of New York, at the declar- •-ation of independence, and remained there, until he removed to England, a short time before the evacuation of the city by the British, in November 1783 ; New York, during the whole of that time, except from July to September 1776, being in possession, and under the government and control of the British, he taking a part and acting with the-British; and was, according to the strong language of the witness, as much a royalist as he himself was, and that no man could be more so. Was Charles Inglis, under these circumstances, to be considered an American citizen ? If, being here, at the declaration of independence, necessarily made him such, under all possible circumstances, he was an American citizen. But I apprehend, this would be carrying the rule to an extent that never can be sanctioned in a court of justice, and would certainly be going beyond any case as yet decided. The facts disclosed in this case, then, lead irresistibly to the conclusion, that it was the fixed determination of Charles Inglis, the father, at the declaration of independence, to adhere to his native allegiance.1 And John Inglis, the son, must be deemed to have followed the condition of his father, and the character of a British subject attached to, and fastened on, him also, which he has never attempted to throw off, by any act disaffirming the choice made for him by his father. The case of Mcllvaine n. Coxe’s lessee, 4 Cranch 211, which has been relied upon, will not reach this case. The court in that case recognised fully the right of election, but considered that Mr. Coxe had lost that right, by remaining in the state of New Jersey, not only after she had declared herself a sovereign state, but after she had passed laws by which she pronounced him to be a member of, and in allegiance to, the new government; that by the act of the 4th of October 1776,- he became a member of the new society, entitled to the protection of its government. He continued to reside in New Jersey, after the passage of this law, and until some time in the year 1777, thereby making his election to become a member of the new government ; and the doctrine of allegiance became applicable to his case, which rests on the *ground of a mutual compact between the government and the citizen or subject, which, it is said, cannot be dissolved by L either party, without the concurrence of the other. It is the tie which binds the governed to their government, in return for the protection which the government affords them. New Jersey, in October 1776, was in a condition to extend that protection, which Coxe tacitly accepted, by remaining there. But that was not the situation of the city of New York ; it was in the possession of the British ; the government of the state of New York did not extend to it, in point of fact. The resolutions of the convention of New York, of the 16th of July 1776, have been relied upon, as asserting a claim to the allegiance of all persons residing within the state. But it may well be doubted, whether these reso- 1 See the case of the Rt. Rev. Charles Inglis, Bishop of Nova Scotia, in the Report of the Commissioners under the British treaty of 1794, pp. 6, 21. 77 125 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. lutions reached the case of Charles Inglis. The language is, “ that all persons abiding within the state of New York, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of the state.” Charles/Inglis was not, within the reasonable interpretation of this resolution, abiding in the state, and owing protection to the laws of the same. He was within the British lines, and under the protection of the British army, manifesting a full determination to continue a British subject. But if it should be admitted, that the state of New York had a right to claim the allegiance of Charles Inglis, and did assert that right, by the resolution referred to, still the case of Mcllvaine v. Coxe does not apply. It cannot, I presume, be denied, but that allegiance may be dissolved by the mutual consent of the government and its citizens or subjects ; the government may release the governed from their allegiance. This is even the British doctrine in the case of Doe v. Acklam, before referred to. The act of attainder passed by the legislature of the state of New York, by which Charles Inglis is declared to be for ever banished from the state, and adjudged guilty of treason, if ever afterwards he should be found there, must be considered a release of his allegiance, if evei* he owed any to the state. (1 Greenleaf’s Laws N. Y. 26.) *From the view of the general question referred to in this court, J the answers to the specific inquiries will, in my judgment, be as follows : 1. If the demandant was born before the 4th of July 1776, he was born a British subject; and no subsequent act on his part, or on the part of the state of New York, has occurred, to change that character ; he of course, continued an alien, and disabled from taking the land in question by inheritance. 2. If born after the 4th of July 1776, and before the 15th of September of the same year, when the British took possession of New York, his infancy incapacitated him from making any election for himself, and his election and character followed that of his father, subject to the right of disaffirmance, in a reasonable time after the termination of his minority ; which never having been done, he remains a British subject, and disabled from inheriting the land in question. 3. If born after the British took possession of New York, and before the evacuation on the 25th of November 1783, he was, under the circumstances stated in the case, born a British subject, under the protection of the British government, and not under that of the state of New York, and, of course, owing no allegiance to the state of New York. And even if the resolutions of the convention of the 16th of July 1776, should be considered as asserting a rightful claim to the allegiance of the demandant and his father, this claim was revoked by the act of 1779, and would be deemed a release and discharge of such allegiance, on the part of the state; and which having been impliedly assented to by the demandant, by withdrawing with his father from the state of New York to the British dominions, and remaining there ever since, worked a voluntary dissolution, by the assent of the government and the demandant, of whatever allegiance antecedently existed, and the demandant, at the time of the descent cast, was an alien, and incapable of taking lands in New York by inheritance. 4. When Charles Inglis, the father, and John Inglis, his son, withdrew 78 1830] OF THE UNITED STATES. 126 Inglis v. Sailor’s Snug Harbour. from New York, to the British dominions, they had the right of electing to become and remain British subjects. And if the grand assize shall find, that in point of *fact, they had made such election, then the demand- p-< ant, at the time of the, descent cast, was an alien, and could not L inherit real estate in New York. III. The next question is, whether the will of Catharine Brewerton was sufficient to pass her right and interest in the premises in question, so as to defeat the demandant in any respect; the premises being, at the date of the will, and ever since, held adversely, by the tenants in the suit ? Mrs. Brewerton was the sister of Robert Richard Randall, and if the devise in his will is void, and cannot take effect, she, as one of his heirs-at-law,'would be entitled to a moiety of the lands in question. She died in the year 1815, having shortly before made hei* last will and testament, duly executed and attested to pass real estate. By this will, she devised and bequeathed all her real and personal estate, whatsoever and wheresoever, in law and equity, in possession, reversion, remainder or expectancy (except some specific legacies), unto her executors, upon certain trusts therein mentioned. If this will was, therefore, operative, so as to pass her right to her brother’s estate, it will defeat the demandant’s right to recover, as to one moiety of the premises in question. The objection taken to the operation of this will is, that the premises were, at the date thereof, and ever since have been, held adversely by the tenant in the suit. The validity of this objection must depend upon the construction of the statute of wills in the state of New York. By that statute (1 N. Y. Rev. Laws 364, § 1), it is declared, that any person having any estate of inheritance, either in severalty, in coparcenary, or in common, in any lands, tenements or hereditaments, may, at his own free will and pleasure, give or devise the same, or any of them, or any rent or profit out of the same, or out of any part thereof, to any person or persons (except bodies public and corporate), by his last will and testament, or any other act by him lawfully executed. This being a question depending upon the construction of a state statute, with respect to the title to real property, it has been the uniform course of this court to apply the *same rule that we find applied by the state tribunals in like cases. 1 Pet. 371. This statute, upon the point now under consideration, has received a construction by the supreme court of the state of New York, in the case of Jackson n. Varick, 1 Cow. 238. The question arose upon the validity of a devise in the will of Medcef Eden, the younger. The objection was, that at the time of the devise, and of the death of the testator, the premises in question were, and had been for several years before, in the adverse possession of the defendant, and that he, and those under whom he claimed, entered originally, without the consent of the devisor, or any one from whom he claimed. The court say, the facts present the question whether the owner in fee can devise land, which, at the time of the devise and his death, is in the adverse possession of another. That is, whether a person having a right of entry in fee-simple, shall be said to have an estate of inheritance in lands, tenements or hereditaments, in the language of our statute of wills. It is unnecessary to pursue the course of reasoning which conducted the court to the conclusion to which it came. The result of the opinion was, that 79 128 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. under the comprehensive words used in the act, a right of entry, as well as an estate in the actual seisin and possession of the devisor, was devisable ; and that an estate that would descend to the heirs, is transmissible equally by will. The judge who delivered the opinion adverted to some cases that had arisen in the same court, wherein a contrary doctrine would seem to have been recognised, but came to the conclusion, that no decision had been made upon the point. In the case of Wilkes n. Lion, 2 Cow. 355, decided in the courts of errors in New York, one of the points relied upon by the counsel for the plaintiff in error, was, that this same will of Medcef Eden, the younger, was inoperative as to the premises then in question ; they being lands of which he was not seised at the time of his death. I do not find that any direct opinion was given upon this point ; but the objection must have been overruled, or the court could not have come to the conclusion it did. * , It is said, however, by the demandant’s counsel, that these *cases J do not apply to the one now before the court; but only such estate as would descend to the heir of the devisor, and that the premises in question here would not descend to the heirs, of Mrs. Brewerton, for want of actual seisin. According to the rule laid down in Watkins on Descents 23, that where the ancestor takes by purchase, he may be capable of transmitting the property so taken to his own heirs, without any actual possession in himself ; but if the ancestor himself takes by descent, it is absolutely necessary, in order to make him the stock or terminus, from whom the descent should now run, and so enable him to transmit such hereditaments to his own heirs, that he acquired an actual seisin of such as are corporeal, or what is equivalent thereto, in such as are incorporeal. It is very evident, however, that the court could not have intended to apply this rule to the construction of the statute of wills. For they say, in terms, that the question is, whether a person having a right of entry in lands, has an estate of inheritance, devisable according to the provisions of the statute. But under the common-law rule referred to, a person having only a right of entry, would not be accounted an ancestor from whom the inheritance would be derived. 2 Bl. Com. 209. Such a construction would be in a great measure defeating the whole operation of the act. The demandant in this case states in his count, that upon the death of Robert R. Randall, the right to the land descended to Paul R. Randall and Catharine Brewerton, in moieties. So that, by his own showing, she had a right of entry, which, according to the express terms of the decision in Jack-son n. Varick, was devisable. The answer to this question must accordingly be, that the will of Catharine Brewerton was sufficient to pass her right and interest in the premises in question, notwithstanding the adverse possession held by the tenants in this suit, at the date of the will. IV. The fourth point stated is, whether the proceedings against Paul Richard Randall, as an absent debtor, passed his right or interest in the *iQn i in question to, and vested the *same in, the trustees appointed -* under the said proceedings, or either of them, so as to defeat the demandant in any respect ? Paul R. Randall, as stated in the case, died some time in the year 1820 ; he and his sister, Mrs. Brewerton, were the heirs-at-law to the estate of their brother, Robert Richard Randall. If, therefore, the will of Mrs. Brewerton operated to pass her right, Paul R. 80 1830] OF THE UNITED STATES. 130 Inglis v. Sailor’s Snug Harbour. Randall would be entitled to the other moiety. If her will did not operate, then he would be entitled to the whole of his brother’s estate. It does not appear from the case, that any objections were made to the regularity of the proceedings against Paul R. Randall, under the absconding debtor act; and indeed, the question, as stated for the opinion of this court, necessarily implies that no such objection existed. The question is, whether his right in the land passed to, and became vested in, the trustees ? As this is the construction of a state law, this court will be governed very much by the decisions of the state tribunals in relation to it. The question is, whether a right of entry passes, under the provisions of the absconding debtor act of the state of New York. 1 Rev. Laws 157. By the first section of the act, the warrant issued to the sheriff commands him to attach, and safely keep, all the estate, real and personal, of the debtor. The tenth section authorizes the trustees to take into their hands all the estate of the debtor, whether attached as aforesaid, or afterwards discovered by them ; and that the said trustees, from their appointment, shall be deemed vested with all the estate of such debtor, and shall be capable to sue for and recover the same. And the trustees are required to sell all the estate, real and personal, of the debtor, as shall come to their hands, and execute deeds and bills of sale, which shall be as valid as if made by the debtor himself. These are the only parts of the act which have a material bearing upon this point. And the first question that would seem to arise is, whether the term estate, as here used, will extend to the interest which the debtor has in lands held adversely ? An estate in lands, tenements and hereditament, signifies such interest as a person has therein, and is the ^'condition or circumstance rd. _ in which the owner stands with regard to his property. Co. Litt. 345 a ; 2 Bl. Com. 103. The language of the act is broad enough to include a right of entry ; and there can be no reason to believe, that such was not the intention of the legislature. The doctrine of the court of common pleas in England, in the case of Smith v. Coffin, 2 H. Bl. 461, has a strong bearing upon this question. The language of this absconding debtor act, with respect to the estate of the debtor to which it shall extend, is as broad as that of the English bankrupt laws, and the same policy is involved in the construction. In the case referred to, the court say, the plain spirit of the bankrupt law is, that every beneficial interest which the bankrupt has, shall be disposed of for the benefit of his creditors. On general principles, rights of action are not assignable, but that is a rule founded on the policy of the common law, which is adverse to encouraging litigation. But the policy of the bankrupt law requires that the right of action should be assignable, and transferred to assignees, as much as any other species of property. Its policy is, that every right, belonging, in any shape, to the bankrupt, should pass to the assignees. The estate of the debtor, under the New York statute, becomes vested in the trustees, by the mere act and operation of law, without any assignment. The courts in New York have given a literal construction to this act, whenever it has come under consideration, so as to reach all the property of the absconding debtor. In the Matter of Smith, an absconding debtor (16 Johns. 107), the broad rule is laid -down, that an attachment under this act is analogous to an execution. And in the case of Handy v. Dobbin, 12 Johns. 3 Pet.—6 81 131 SUPREME COURT r [Jan’y Inglis v. Sailor’s Snug Harbour. 220, where the proceeding was under another statute (1 Rev. Laws 398), very analogous to the one under consideration, the court say, there can be no doubt, that the constable, under the attachment, could take any goods and chattels which could be levied on by execution. The authority in both cases is the same. And in Jackson v. Varick, 7 Cow. 244, it is laid down as a rule admitting of no doubt, that a right of entry may be taken and sold undei’ an execution. *It is said, however, that this right of entry does not pass, because, J by the tenth section of the act, it is declared, that the deeds given by the trustees shall be as valid as if made by the debtor, and that the debtor could not make a valid deed of lands held at the time adversely. This objection does not apply to the case ; the question does not arise upon the operation of a deed given by the trustees. The point is, whether the trustees themselves had any interest in these lands ; not whether they would give a valid deed for them, before reducing the right to possession. If it should be admitted, that they could not, it would not affect the present question. The right is vested in the trustees, by operation of law, the act declaring that the estate shall be deemed vested in them, on their appointment, and that they shall be capable to sue for and recover the same ; implying thereby, that a suit may be necessary to reduce the estate of possession. Again, it is said, that after such a lapse of time, it is to be presumed, that all the debts of Paul R. Randall have been paid, and the trust, of course satisfied; and that the estate, thereupon, became revested in Paul R. Randall. This objection admits of several answers. It does not appear properly to arise under the point stated. But the question intended to be put would seem to be, whether the right, being a mere right of entry, passed, and became vested in the trustees. If it did sq vest, it could not be revested, except by a reconveyance, or by operation of law, resulting from a performance of the trust, by paying off all the debts of the absent debtor. And whether these debts have been satisfied, is a proper subject of inquiry for the grand assize. There is not enough before this court, to enable it to decide that point; it is a question of fact, and not of law. If it was admitted, that all the debts have been satisfied, the effect of such satisfaction would be a question of law. The evidence might probably warrant the grand assize in presuming payment; but even that may not be perfectly clear. The order of the court upon the trustees, to pay to the agent or attorney of Paul -. R. Randall $5500, out of the money remaining in their hands, does -I not *purport to consider this sum as the surplus, after payment of all the debts. It was to be paid out of the moneys remaining in the hands of the trustees, thereby fully implying that their trust was not closed. And if the fact of payment and satisfaction of the debts is left at all doubtful, this court cannot say, as matter of law, that the interest in the land became revested in Paul R. Randall. It must depend upon the finding of the grand assize. It is objected, however, that the defence set up, and embraced in the last two questions, is inadmissible. That in a writ of right, the tenant cannot, under the mite joined, set up title out of himself, and in a third person. That it is a question of mere right between the demandant and the tenant. And it has been supposed, that this is the doctrine of this court in the case of Green v. Liter, 8 Cranch 229. If anything that fell from the court in 82 135 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. with respect to the right to recover a part of the land claimed, there is no distinction between a writ of entry and an action of ejectment. 2 Pick. 387 ; 3 Ibid. 52. Nor is it perceived, that any well-founded distinction, in this respect, can be made between the action of ejectment and a writ of right. The opinion of the court upon this point is, that under a count for the entire right, a demandant may recover a less quantity than the entirety. Johnson, Justice.—I concur in the opinion in favor of this devise ; but this is one of those cases in which I wish my opinion to appear in my own words. This case comes up on a certified difference of opinion on five points. I take them in their order on the record, not that in which they were argued. The first, which is a technical question, and of minor importance, I shall pass over. The second, which depends upon the civil or political relation in which the demandant Inglis stands to the state of New York, has been exhibited under four aspects. The first contemplating him as born in the city of New York, before the 4th of July 1776. The second, as born after that period, but before the British obtained possession of the place of his birth. The third, as born in New York, while a British garrison. The fourth, as born an American citizen, before the treaty of peace, but having elected to adhere to his allegiance to Great Britain. In the argument there was a fifth aspect of the question presented, which depended upon the act of confiscation and banishment by the state, against the father of the demandant. On the subject of descent, in Shank's Case, which, having been argued first in order, I had prepared first to examine ; I have had occasion to remark, that the right being claimed under the laws of the particular state in which the land lies, the doctrines of allegiance, as applicable to the demandant, must be looked for in the law of the state that has jurisdiction of the soil. In this respect, the laws of New York vary in nothing material from those of qpT S°uth Carolina. By the 25th *article of the constitution of New -I York, 1777, the common law of England is adopted into the jurisprudence of the state. By the principles of that law, the demandant owed allegiance to the king of G^eat Britain, as of his province of. New York. By the revolution, that allegiance was transferred to the state, and the common law declares, that the individual cannot put off his allegiance by any act of his own. There was no legislative act passed, to modify the common law in that respect; and as to the effect of the act of confiscation and banishment, the constitution of the state has in it two provisions, which effectually protect the demandant against any defence that can be set up under the effect of that act. The 13th article declares, that “no member of the state shall be disfranchised or deprived of any of the rights or privileges secured to the subjects of the state by that constitution, unless by the laws of the land or the judgment of his peers.” And the 41st declares, “ that no act of attainder shall be passed by the legislature of the state, for crimes other than those committed before the termination of the present war, and that such acts (which I construe to mean acts of attainder generally) shall not work a corruption of blood.” I shall, therefore, answer the second question in the affirmative ; that is, that he was entitled to inherit as a citizen, born of the state of New York. On the third question, there were two points made : L That Mrs. 84 1830] OF THE UNITED STATES. 136 Inglis v. Sailor’s Snug Harbour. Brewerton, having never entered, could not devise. 2. That the issue being joined upon the mere right, it was not competent for the tenant to introduce testimony to prove the interest out of the demandant, unless (I presume it was meant) the right be proved to be in the tenant. On the first of these points, I am satisfied, that the state of New York has not suffered the exercise of the testamentary power to be embarrassed with the subtleties of the English law respecting entries and adverse possessions. The words of their statute of wills are broad enough to carry any right or interest in lands, and such practically seems to have been the uniform understanding in that state. On the second point, under this question, the facts seem to furnish a very obvious answer. Whatever be the rule in other *cases (and I do not pjgn feel myself called upon to say what the rule is), it certainly can have no *• application here, since it is through Mrs. Brewerton that the demandant has to trace his title. Certainly, then, it must be a good defence, if the tenant can establish that it could not pass through Mrs. Brewerton, if she had prevented its descending, by an act of her own, valid to that purpose. That question also, I should answer in the affirmative. On the fourth question, I feel it difficult to give a precise answer. An attachment, and conveyance under it, are equivalent to an execution executed. But then there is reason to believe, that the situation in which we find this attachment is analogous to that of an execution satisfied, without the sale of this particular property levied upon. Then, could such an execution interfere with the rights of the heir ? It does not appear to me, that this question can be answered, until the fact of satisfaction can be affirmed or repelled. It is for or against the demandant, according to that alternative. The fifth is the material question, and since it has been acknowledged in argument, that this suit was instituted on the authority of the case of the Baptist Association, it is necessary first to determine the doctrine which that case establishes. The devise there was of land lying in Virginia ; the intended devisee was an unincorporated society, described in the will as meeting at Philadelphia; that society became incorporate under a law of Pennsylvaaia, not of Virginia, and then brought suit in equity in Virginia, to recover the property devised. At the hearing, the court decided upon the single question, “ whether the plaintiffs were capable of taking under that will,” and accordingly, this court certify an opinion to no other point. Its language is, “ that the plaintiffs are incapable of taking the legacy for which this suit was instituted.” And, notwithstanding the marginal notes of the reporter to the contrary, that I consider as the only point decided in the cause. What the law of the case would have been, had the attorney-general of Virginia been made party to the *suit, and (I presume also as a neces- p sary inference) had the society been incorporated by Virginia, in order L to enable them to take the legacy, this court expressly declines deciding (p. 50); and certainly it would have been deciding between parties not before it, had it undertaken in that suit to pass upon the interest in, or power over, the subject, existing in the state of Virginia. The statute of 43 Eliz. had been expressly repealed in Virginia, previous to the death of Hart, the testator ; and although the learned judge who delivered the opinion of the court, goes so much at large into the origin, construction and effect of that statute, it could only have been to prove all that the case required to have 85 138 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. established, to wit, that it is under that statute alone, that, even in England, a court of equity could extend to the complainants the relief which they craved. That statute being repealed in Virginia, it followed, that the equity powers of the state courts, and of consequence, that of the circuit court of the United States, could no longer be exercised over the subject of the charities embraced in that statute ; that the state of Virginia, where the land lay, and not the state of Pennsylvania, stood in the relation of parens patriae, and therefore, that those powers and those rights which the crown exercises over charities in England, in order to sustain and give effect to them, could only be exercised in that case by Virginia. So far, I consider the decision as authority, and so far it would require more than ordinary ingenuity to excite a reasonable doubt of its correctness. I consider it as too plain to be questioned, that the powers which the court of chancery in Great Britain exercises over bequests to charities, in cases where the interest cannot vest under the rigid rules of law, as applied to other bequests, is vested in that court by, or rather usurped under, the statute of Elizabeth. I am not now speaking, it must be noted, of the power of the crown in such cases, but of the portion of the prerogative power over charities now exercised by the court of chancery in that kingdom. I consider it as conclusive, to prove the peculiar origin of this power, that * there lies no appeal from the decision of the chancellor *in charity J cases. Cro. Car. 40, 351 ; 4 Vin. Abr. 496. And when cases occur, not enumerated in the statute of Elizabeth, or not strictly analogous thereto, the crown still exercises the power of disposing of them by sign manual. See the cases collected in Viner, Charit. Uses, G, 3, and note ; also, 7 Ves. 490. So that, were the statute of Elizabeth repealed in England to-morrow, I see not by what authority this power could be exercised even there, in the chancery courts. The history of this branch of the chancellor’s jurisdiction proves that it could not be. The plain object of the act of 43 Eliz, is, to place in commission a troublesome branch of the royal prerogative, and to vest the commissioners with power to institute inquests of office, or by other means to discover charities, or the abuse or misapplication? of charities, and to authorize the board to exercise the same reach of discretion over such charities as the crown possessed ; subject, however, to a revising and controlling power in the lord chancellor ; not a mere judicial power, but a ministerial legislation and absolute power ; a power, however, secondary or appellative in its nature, not original. The controlling power being absolute and final, soon swallowed up its parent, and became original and absolute. One judge admitted the precedent of an original bill in a charity case ; a second judge satisfied his scruples upon that precedent ; and other judges following, regarded it as a settled practice. But in whatever way the power is exer cised, whether as original or appellate, no other authority for its exercise has ever been claimed by the chancellor but the 43 Eliz.1 The correctness of the decision of this court, therefore, in the Baptist Association Case, cannot, I think, be disputed. And yet it does in no wise affect the case now before us. But it is argued, that if the statute 43 Eliz. be in force in New York, and its courts can exercise an original power un- But see note to 4 Wheat. 1. 86 1830] OF THE UNITED STATES. 139 Inglis v. Sailor’s Snug Harbour. der it, or if they can pursue the intermediate steps necessary to the exercise of an appellate or revising power (six in number, I think, Lord Coke makes them, 2 Inst.), still it can only be a suit in chancery, in the name of the people, or of their attorney-general, or of the corporation constituted *by them, r*i although vested with all their interest in, or power over the subject. L To me it appears demonstrable, that the 43 Eliz. introduces no new law of charities, makes none valid, not valid before it passed, but simply places the right and power of the court over charities in other hands. If this were not the case, why should bequests to the universities and great schools, bequests in all cases constituting private visitors, and bequests to towns corporate (§§ 2, 3), *hospitals, &c., be excepted from its operation? Why should a more liberal rule be introduced with regard to the enumerated indefinite charities, and the excepted cases remain subject to a more rigid system ? Certainly, the enumerated exceptions in that statute can lose nothing in point of merit of claim to public protection and indulgence, by comparison with those acted upon by the statute. Indeed, the preamble explicitly confines the views of the legislature to enforcing the application of the charities, according to the charitable intent of the donor ; it is the organization of a machine for carrying that intent into effect, without introducing any new rule of law on the subject of construing, applying or effectuating that intention. What, then, was the law of that day, of the time when the 43 Eliz. was passed, on the subject of charitable donations ? It was a system peculiar to the subject, and governed by rules which were applicable to no other ; a system borrowed from, the civil law, almost copied verbatim into the commonlaw writers. This will distinctly appear by comparing Domat with Godolphin, in the Orphan’s Legacy. It has been said, that there are neither adjudged cases nor dicta of elementary writers on the subject of the law as it stood previous to the 43 Eliz. ; but this, I think, is not quite correct. In Swinburn on Wills, as w’ell as Godolphin’s Orphan’s Legacy, both books of great antiquity and of high authority, we find all the rules for construing, enforcing and effectuating charities which have been maintained and acted upon in the chancery, since the 43 Eliz., laid down as the existing laws of charitable devises; and yet the statute of Eliz. is not quoted by either as the authority *for their" doctrines ; but their margins are filled with quotations from books ’■ which treat of the civil and common law. God. Orph. Leg. (2d ed. 1®76) p. 1, ch. 5, § 4, p. 17 ; Swinb. on Wills, pt. 1, § 16. And in so modern a book as Madd. Ch. vol. i. p. 47, we find the law laid down in these words : “ It has been a uniform rule in equity, before as well as after the statute of 43 Eliz., c. 4, that where uses are charitable, and the person has in himself full power to convey, the court will aid a defective conveyance to such uses;” and then goes on to enumerate all that variety of cases to which the English courts have applied the latitudinous principle, that the statute of charitable uses supplies all the defects of an assurance which the donor was capable of making, even to a devise by a lunatic. Nor are these authors without adjudications to sustain the position, that the law was such before as well as after the statute 43 Eliz. Holt's Case, in Moore, p. 855, was the case of a will, which occurred long before the statute of Elizabeth passed. The devise was of land not in use, and not 87 141 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. devisable by law or custom ; so that had it been to an individual, it had been clearly void. Accordingly, the heir-at-law entered ; yet, after the statute of Elizabeth, it was hunted up and returned upon inquest, under the statute ; and the lord chancellor on an appeal, having called in the aid of two common-law chief justices, they all held it a good limitation or appointment. Now, there never has been a time, when a subsequent statute, general in its provisions, as was that of charitable uses, could divest a right legally descended upon an heir-at-law. It follows, that the devise must have been good, without the aid of that statute. This decision took place in court twenty years after the date of the statute. So also, in Rivet's Case, in the same book, p. 890,’where the will was made and the death of the devisor took place in 1586, about seven years before the statute of 43 Eliz., and there had been no surrender, the land being copyhold, so that the devise to the charity was clearly void, if made to an individual, and accordingly, the younger son entered; the charity was * , enforced against a purchaser from the heirs, *under the idea, that it J was good as an appointment ; clearly, in pursuance of the rule, that wherever the donor has power to convey, and manifestly intends to convey, the law will make good every deficiency in favor of charities. And in the case of Sir Thomas Middleton, which also happened before the statute, and where the legal defect lay in the legal insufficiency of the party in interest, and which was not a case of devise, yet it was held good. It is true, Perkins gives an instance of a very early date, 40 Edw. III. (see Perkins, § 510), of a devise to a society not incorporated, with power to purchase, in which the devise was held void ; but on that case, it may be remarked, that as the clergy had an exclusive possession of the court of chancery for many years after (to 26 Henry VIII.), it is easy to perceive, how the law of charities came to be improved to what it appears to have been at the date of the cases quoted from Moore. And there are two other remarks applicable to the case in Perkins. In a modified sense, those devises are held to be void, even at this day, and to need the aid of a royal prerogative, still existing in the court, to relieve the devisees against the rules of the common law. It is obvious, that property devised to charities, under such circumstances as prevent its vesting by the rules of the common law, is placed in a situation analogous to that of escheat, and afterwards disposed of under the king’s sign manual, according to his conscience, actual or constitutional; so that, in a trial at common law, such devise would be held void, unless aided by prerogative powTer. And secondly, there is this difference between the case in Perkins and the present case, that the former is expressed in words which contemplate vesting presently ; the latter, in words which contemplate a future vesting ; which I consider an all-important feature in the present case, and one which may give validity to the present devise, without resorting to the aid of those principles which appear peculiar to charitable bequests. But as a charity to be governed by the law of the state of New York, * , it appears to me almost idle, to view this case with *reference to J any other rule of decision than their own adjudications. The case of the Trustees of New Rochelle v. Pelton, 7 Johns. Ch. 292, was one of greater difficulties than the present; for there, the devise is immediate, in praesenti, to a devisee having no capacity to take at the time. The legislate 1830] OF THE UNITED STATES. 143 Inglis v. Sailor’s Snug Harbour. ture afterwards gave that capacity, and the court held the devise valid ; nor is it unimportant in that case to observe, that the case of the Attorney-General v. Clarice,, Ambl. 422, of the devise to “ the poor inhabitants of St. Leonard’s Shore-Ditch,” is recognised as authority ; as well as that of Jones v. Williams, in the same book, p. 651. Now, this decision seems full to these points : 1. That the legislature of that state can, ex post facto, give a capacity to take a charity, where there was no such capacity existing at the time of the devise over, in a case where the future existence of that capacity was not contemplated by the testator. 2. That an act of incorporation, with capacity to take, dispenses with the presence of the representative of the state, in a suit to recover such a charity. What more can be required in the present case ; especially, where the devisee is the party demandant ? It is no objection to the authority of the New Rochelle Case, that it was a suit in equity ; for in a case like the present, where nothing is wanting but a competent party to sue or be sued, whenever that party comes in esse, there can be no reason why the suit should not be at law, if courts of law are competent to give relief. Had the devise been void, in the case referred to, the estate must have vested in the legal representative, and could no more have been shaken in equity than at law. But I have said, that the defendant here might dispense with the aid of the peculiar principles of the law-of charities ; and my opinion distinctly is, that the devise is good, upon general principles, in every respect, unless it be, in the time of vesting ; then it is not restricted within the legal limits, since the legislature may, by possibility, never constitute the corporation contemplated in the will. It is in general true, that where there is a present immediate devise, there must exist a competent devisee, and a *present capacity to take. But it is equally true, that if there exists the least circumstance from which to collect the testator’s contem- L plation or intention of anything else than an immediate devise to take effect in proesenti, then, if confined within the legal limits, it is good as an executory devise. This is the case of a devise to an infant en ventre sa mere ; and this is the ground of the distinction in Hobart 33, of a present devise to a corporation, where it is, or is not, in progress towards positive existence. Now, the present case is one clearly of an alternative devise to such and such official characters, if, by virtue of that devise, they can take in perpetuity and succession ; and if not, then to them, when constituted a body politic by positive statute. Here is clearly contemplated a future vesting, to depend on a capacity to take, to be created by a legislative act; and if the passing of that legislative act had been restricted by the will, in point of time, to the lives of the individuals filling those offices at the time of the death of the testator, on what possible ground could the devise have been impeached ? Does, then, the law invalidate the devise, for want of such restriction, or some other equivalent to it ? It is perfectly clear, that the law of England does not, and never did, as relates to charities; at least, where there has been no previous disposition. In this respect, it seems to constitute an exception to the law of executory devises ; as is implied in the general reference to the prerogative of the crown to give it legal efficiency, by his sign manual, and as is distinctly recognised in the case of the Trustees of New Rochelle, in the courts of New York; a case in which the 89 144 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. plaintiffs might as well have waited for ever upon the legislative will, as in the present case. There may be a reason for this distinction, since it depends upon the sovereign will, to prevent the perpetuity at once ; and the presumption is, that the legislature will not delay to do that which it ought to do. And whence, at last, arises this rule against perpetuities ? It is altogether an act of judicial legislation, operating as a proviso to the statute of *14.51 w^s > a restriction upon the testamentary power. The *authority ■* from which the exception emanated could certainly limit it, so as to prevent its extension to an object under the care of the sovereign power. Upon the whole, I am of opinion, that the act of incorporation was, at least, equivalent to the king’s sign manual, and vested a good legal estate in the tenant. That although, in the interval, it should have descended upon the heir, it descended subject to be divested and passed ovei" by that exercise of prerogative power. But I perceive no necessity for admitting that it evei’ descended upon the heir; since the right of succession seems rather to be in the commonwealth, in the case of charities, as parens patriae. Story, Justice. (Dissenting.)—This cause was argued with great ability and learning, at tne last term of this court, and has been held under advisement until this time. In the interval, I have prepared an opinion upon all the points argued by counsel; and upon one of those points of leading importance, I have now the misfortune to differ from a majority of my brethren. Upon another leading point, that of the alienage of the demandant, my opinion coincides generally with that of the majority of the court; but the reasons on which it is founded, are given more at large than that now delivered by my brother Thompson. Under these circumstances, I propose to deliver my opinion at large upon all the points argued in the cause, mainly in the order in which they were discussed by the counsel. It is not without reluctance, that I deviate from my usual practice of submitting in silence to the decisions of my brethren, when I dissent from them ; and I trust that the deep interest of the questions, and the novelty of the aspect, under which some of them are presented, will furnish an apology for my occupying so much time. The first point is, whether the devise in the will of Robert R. Randall of the lands in question, is a valid devise, so as to divest the heir-at-law of his legal estate, or to affect the lands in his hands with a trust ? In considering this question, it appears to me, that this court is to look into the $ , terms of the will, and to construe *it according to the intention of J the testator. That intention has been justly said to constitute the pole-star to guide courts in the exposition of wills. When the intention is once fairly ascertained, it is wholly immaterial, that it cannot be carried into effect by the principles of law ; for our duty is to interpret, and not to make wills for testators. In looking at the terms of the present devise, it appears to me clear, that the testator’s intention was to vest in certain persons, in their official, and not in their private, capacity, all the residue of his estate, for a certain charity stated in the devise. The language is, “ I give and bequeath the same unto the chancellor of the state of New York, the mayor and recorder of the city of New York, the president of the chamber of commerce,” &c. Did he, by these terms, mean to devise to the individuals, who then occupied 90 1830] OF THE UNITED STATES. Inglis v. Sailor’s Snug Harbour. 146 these offices, the estate in question, or to the persons who might hold them at the time of his death, or to the persons who might, successively, from time to time, hold them ? It was certainly competent for him to devise to them personally, and in their private capacity, by their official description. If a testator were, by his will, to give an estate to the Bishop of New York for life, or to him and his heirs, without giving him his Christian or surname, there is no doubt, that the devise might well take effect, as a devise to the then incumbent in office, as a descriptio persons. The law does not require, to make a devise or legacy valid, that the party should be designated by his name of baptism or surname. It is sufficient, if he be pointed out by any description, leaving no room for doubt as to the identity and certainty of the person. A devise to the eldest son of A., is just as good as if his name were given ; a devise to the present President of the United States would be just as good, as if his name were written at large in the will. The maxim at law is, that the designation must be certain as to the person to take ; and id certum est, quod certum reddi potest. There is no doubt, then, that the chancellor, mayor and recorder, &c., of New York, might take as individuals, if such were the intention of the testator. I go further, and say, that if the testator did intend the present devise to them in them in their *pri-vate characters, they would take not merely an estate for life in the •-premises, but an estate in fee. My reason is, that the scope and objects of the charity, being perpetual, require that construction of the will to carry into effect the intention of the testator. Cruise’s Dig. tit. Devise, ch. 11, § 72. But the difficulty is, in arriving at the conclusion, upon the terms of the will, that the testator did mean any devise to them in their private capacities. It is manifest from his language, that he did not devise to the then chancellor, mayor and recorder, &c., in their private capacities, because his language is, that it is to the chancellor, &c., “ for the time being, and their respective successors in the said offices for ever.” It is then a devise to them, as officers, during their continuance in office, and the estate is to go to their successors in office for ever ; so that none of the devisees are to take any certain estate to themselves, but only while they continue in office. It it said, that the court may reject the latter words, if inconsistent with the avowed intention and objects of the will. If the other language of the will required an interpretation of these words, different from the ordinary meaning, there might be good ground for such an argument; but that the devise will, in point of law, become ineffectual, if they arc not rejected, furnishes no ground for the court to exclude them. Words, which are sensible in the place where they occur, and express the testator’s intention, are not to be rejected, because the law will not carry into effect that intention ; if it were otherwise, courts of law would make wills and not construe them. But what ground is there to say, that the words “ for the time being,” and “ their successors in office,” ought to be rejected ? The former clearly designate what chancellor, mayor and recorder, &c., are meant. How, then, can the court take one part and reject the other part of'the description ? How’ can the court say, that the testator meant the then incumbents in office, when he has spoken of them as the incumbents for the time being ? His intention clearly is, that the charity shall be a perpetuity. He devises to the successors in *office for ever. They are to be the administrators of the charity for ever. Upon what ground, can the court exclude the sue- L 91 148 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. cessors from the administration of the charity, when the testator has so designated them ? Why may we not equally exclude the present incumbents, as the future ? Both are named in the will; both are equally within the view of the testator—of equal regard. Suppose, all the other incumbents had died, or had been removed from office, is there a word in the will, that shows, that they or their heirs could still act as trustees, when they ceased to possess office, in exclusion of the actual incumbents ? If not, how can the court say, that it will defeat the main intention as to the administrators, and yet fulfil the charity as the testator designed it should be executed ? But this exposition does not rest on a single clause of the will; it pervades it, in all the important clauses. In another clause of the will, the testator directs, that the trustees shall administer the charity, “ in such manner as the said trustees, or a majority of them, may, from time to time, or their successors in office may, from time to time, direct.” And again, the testator adds, “ it is my intention, that the institution hereby directed and created should be perpetual, and that the above-mentioned officers, for the time being, and their successors, should for ever continue and be the governors thereof, and have the superintendence of the same.” Here is a most deliberate restatement of his intention and objects. The governors and administrators of his charity are not to be the then incumbents in office, but the officers for the time being ; not the individuals, when out of office, but their successors in office. What right, then, can this court have to say that the successors in office shall not be governors? Would it not be a plain departure from the express intention and solemn declarations of the will ? The testator seems to have been apprehensive that, after all, there might be some impediment in carrying his intention into effect. What then does he provide ? That his intention shall be disregarded ? That provisions of his will, as to successors, &c., shall be disregarded or rejected ? No, so far from it, that *1 Ad he goes on to provide for the emergency, so as to *give full effect to his J intention. His words are, “ that it is my will and desire, that if it cannot legally be done, according to my above intention, by them (the trustees), without an act of the legislature, it is my will and desire, that they will, as soon as possible, apply for an act of the legislature to incorporate them for the purposes above specified.” So that the successors, in the manner above mentioned, constituted a primary, as wrell as a perpetual, object of the devise. It seems to me so plain and clear, upon the language of the will, that the testator never abandoned the intention of having the trustees take in their official and not in their private capacity, that, with great deference to the judgment of others, I am unable to perceive any ground on which to rest a different opinion. If this be so, then, it is next to be considered, whether such devise is void at law. I am spared the necessity of going at large into that question, by the decision of this court in the case of the Trustees of the Philadelphia Baptist Association w Harfs Executors, 4 Wheat. 1, where the subject was very amply discussed ; and for reasons, in my judgment unanswerable, it was there decided, that such a devise was void at law. Upon that occasion, I had prepared a separate opinion ; but that of the chief justice was so satisfactory to me, that I did not deem it necessary to deliver my own.1 1 This opinion will be found in the present edition of 4 Wheat. See note to that case. 92 1830] OF THE UNITED STATES. Inglis v. Sailor’s Snug Harbour. 149 If the devise was void at law, at the time when it was to have effect, viz., at the death of the testator, the subsequent act of the legislature of New York could not have any effect to divest the vested legal title of the heirs of the testator. The devise was not one to a corporation not in esse, and to be created in future ; it was a devise in prvesenti, to persons who should be officers at the death of the testator, and to their successors in office. The vesting of the devise was not to be postponed to a future time, until a corporation could be created. It was to take immediate effect; and if the trustees could not exercise their powers, in the manner prescribed by the testator, they were to apply to the legislature for an act of incorporation. Assuming, then, that a devise per verba de future, to a corporation not in esse, which *is to take effect, when the corporation should be created, would be good, and vest, by way of executory devise, in the corpora- L tion, when created, as seems to have been Lord Chief Justice Wilmot’s opinion (Wilmot’s Opinions, p. 15), it is a sufficient answer, that such is not the present case. From the other report of the same case, Attorney‘General n. Downing, Ambl. 550, 571 ; and Attorney-General n. Bowyer, 3 Ves. 714, 727, I should deduce the conclusion, that the case turned upon the peculiar doctrines of the court of chancery in respect to charities ; and that Lord Camden’s opinion was founded on that. His judgment is not, so far as I know, in print; and whether he thought that, at law, a devise in futuro to an executory corporation, would be good, does not appear. In the case before him, he acted upon it as a charitable trust, not as a devise of the legal estate. (See also, 1 Roll. Abr. Devise, H. § 1; Com. Dig. Devise, K.) But it is said, that there are cases in which it has been held, that a devise to persons in their official capacity is good to the party in his natural capacity ; and that it is not true, that because the devisees cannot take in succession, they cannot take all. A case from Brooke’s Abridgement, title Corporation, pl. 34, is relied on. There, the principal point was of a different nature ; whether a corporation composed of a master and fraternity, could present the master to a benefice. And Pollard, J., on that occasion said, “ if J. S. is dean of P., I may give land to him, by the name of dean, &c., and his successors, and to J. S. and his heirs, and there he shall take as dean, and also as a private man ; and he is tenant in common with himself.” Now, the plain meaning of this is, that because he took one moiety in his official capacity, to him and his successors, that did not disable him to take the other moiety to him and his heirs ; but he held the latter in his private capacity. Another case is from Co. Litt. 46 b, where it is said, if a lease for years be made to a bishop and his successors, yet his executors and administrators shall have it en autre droit; for regularly, no chattel can go in succession, in case of a sole corporation, no more than *if a lease be made to a man and r his heirs, it can go to his heirs. (Soe Co. Litt. 9 a.) Now, in the case L ° of a sole corporation, it is manifest, that the intention is to give the chattel to the actual incumbent in office, for his life, and he is entitled to hold it beneficially. But no chattel can pass in succession ; and then the question arises, whether the court will declare the gift void, as to the residue of the term, or consider the gift absolute. The construction adopted has been to consider the intent to be executed cy pres; and as the testator intended to give the whole, to vest the term absolutely in the bishop, and then by operation of law, it would go to his assigns. But this is a case of a sole corpo- 93 151 SUPREME COURT Inglis v. Sailor’s Snug Harbour. [Jan’y ration, where the party is capable to take in his corporate, as well as in his natural capacity for life. The present is a case of aggregate persons, not capable of taking in a corporate capacity. To give the estate to them in their natural capacity, and for life only, would defeat the testator’s intention ; for he meant a perpetuity of trust, and to persons in office, however often the incumbents might change ; to give them, in their natural capacities, an estate for life, when not officers, would defeat the primary object which he had in view. He meant no beneficial interest to any incumbent, but a charitable trust to a succession of official trustees. (See 2 Preston on Estates 5-7, 46-8 ; Com. Dig. Estates A, 2.) It is also said, that in a will, a particular may be made to yield to a more general intent. Certainly, it may ; but then the difficulty in the application of this rule to the present case is, that the argument insists upon a construction which I cannot but deem an overthrow of the general, to subserve an intent not indicated. Because the testator has expressed an intent to be carried into effect one way, which cannot consistently by law be so ; and the court can see another way, by which he might have carried it into effect, if he had thought of it; it does not follow, that the court can do that, which the testator might have done, and new-model the provisions of the will. If a testator should per verbd de proesenti devise an estate to a cor-*1521 Pora^^on n°t esse) *an(I he knew the fact, or mistook the law, the J court could not construe the words as de futuro, and declare it a good devise to a corporation to be created in futuro. The case in 1 Roll. Abr. Devise, H. pl. 50, is decisive of that. The general intention here appears to me, to be, to create a perpetual trust in certain trustees in succession, for charity ; and I can perceive no particular intent, as distinguishable from that general intent. The perpetuity, the succession, and the trusteeship, are, in his view, equally substantial ingredients. So far from allowing any other than the official trustees to administer it, the testator even points out, that if the trust cannot be executed by them, the estate, if it descends to his heirs, shall descend clothed with a trust. And he even appoints the same trustees, and their successors in office, executors of his will. I come now to the other part of the question, whether, if the devise, be void at law, the estate, in the hands of the heirs, is affected w’ith the trust in favor of the charity. It appears to me most manifest, that it is affected by the trust, if we consult either the intention of the testator, or the express terms of the will. The closing paragraph of the will is, in my view of it, decisive, as creating an express trust in the heirs. “ It is,” says the testator, “ my desire, all courts of law and equity will so construe this my said will, as to have the estate appropriated to the above uses ; and that the same should, in no case, for want of form or otherwise, be construed as that my relations, or any other persons, should heir, possess or enjoy my property, except in the manner and for the uses herein above specified.” If no trustees had been named in the will to execute the charity, it seems to me very clear, that these terms would have created a trust in the heirs. There cannot, as I think, be a doubt, that independent of the statute of mortmain, 9 Geo. II., o. 26, the present devise would be held a good charitable devise, and would be enforced in equity, at least, since the statute of 43 Eliz. of charitable uses. The cases of White n. White/ cf Attorney-General v. Downing^ 94 1830] OF THE UNITED STATES. 152 Inglis v. Sailor’s Snug Harbour. Ambl. 550, 571 ; of Attorney-General n. Tancred, Ibid. 351, s. c. 1 Eden 10; and of Attorney-General *v. Bowyer, 3 Ves. 714, 717, would alone be decisive ; but there are many others to the same effect, (rz) L Whether the statute of 43 Eliz. is in force in the state of New York, or whether, independent of any enactment, a court of equity could enforce this as a charitable trust, in the exercise of its general jurisdiction, or as the delegate, for this purpose, of the parental prerogative of the state ; or whether such court could hold it utterly void ; it is unnecessary for us to consider ; that point may well enough be left to the decision of the proper state tribunal, when the case shall come before it. At present, I do not think it necessary to say more, than that if the trust be utterly void, then the heirs would, by operation of law, take the legal estate, stripped of the trust. If the trust be good, then it is knit to the estate, and the heirs take it, subject to the trust. But it is said, that if the trust be valid, the legislature had a perfect right to enforce it, and their act of incorporation amounts to a legal execution of the trusts, and vests the estate in the corporation. Now, whatever may be the rights of the state, as parens patriae, to enforce this charity, it can enforce it only as a trust. If the legal estate is vested in the heirs, subject to the trust, the legislature cannot, by any act, ipso facto, divest that legal title, and transfer it to the corporation. It is one thing to enforce a charitable trust, and quite another thing, to destroy the legal rights of the parties to which it is attached. If the devise had been to certain trustees, by name, upon trust for the charity ; could the legislature have a right to divest the legal title ? The case of the Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, in its principles, bears against such a doctrine. The right to enforce the trust and operate upon the legal estate, is a right to be exercised by judicial tribunals, and not by legislative decrees. The doctrine of the supreme court of New York is, that the legislature thereof has no authority to divest vested legal rights. Dashv. Van Bleeck, 7 Johns. 477; Bradshaw n. Bogers, 20 Ibid. 103 ; Catlin v. Jackson, 8 Ibid. 520 ; Terrett n. Taylor, 9 Cranch 43 ; Wilkinson v. Leland, 2 Pet. 627, 657. *But I cannot admit, that the act of incorporation was intended to have such an effect. It has no terms which divest the legal title of the heirs ; it merely incorporates the trustees and their successors, and clothes them with the usual powers to carry the trust into effect. It presupposes that the estate was already vested in them by the will. They are made 11 capable in law of holding and disposing of the estate’’ devised by the will. It is true, that the uses are added, “ and the same (estate) is hereby declared to be vested in them and their successors in office, for the purposes therein (in the will) expressed.” But this was not, as I think, intended to vest the estate in them as a legislative investiture ; but to declare that the estate was vested in them, for the purposes of the charity, and not otherwise. The preamble of the act, too, shows, that the trustees did not ask to have the estate vested in them, but that inconveniences had arisen in the management of the estate, from the changes of office. This is (a) See note on Charitable Uses, 4 Wheat, app’x 1, 11, 12 ; Coggeshall ®. Pelton, 7 Johns. Ch. 292; Kirkbank v. Hudson, 7 Price 212 ; Duke on Charitable Uses, by Bridgman, p. 361, 374, 375, 390. 95 154 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. very strong to show that the legislature acted solely for the purpose of avoiding such inconveniences, and not to give them an estate, to which they then had no title, and which they then professed to have in their management. In every view, therefore, in which I can contemplate this point, I feel compelled to say, that the devise, if a valid devise, is not a devise valid so as to divest the heir-at-law of his legal estate ; but that the devise can have effect, if at all, only as a trust for a charity fastened on the legal estate in his hands. In this opinion, as to the nature and effect of the devise, in which I have the misfortune to differ from that of the court, I am authorized to say, that I have the concurrence of the chief justice. Another question is, whether the demandant was, or was not, capable of taking lands in the state of New York, by descent ? And this question is presented upon four different aspects of the facts. In order to explain the *___, views which I take of this part of *the case, it will be necessary to J state some general principles upon the subject of alienage. The rule commonly laid down in the books is, that every person who is born within the ligeance of a sovereign, is a subject; and, £ converso, that every person born without such allegiance, is an alien. This, however, is little more than a mere definition of terms, and affords no light to guide us in the inquiry what constitutes allegiance, and who shall be said to be born within the allegiance of a particular sovereign ; or, in other words, what are the facts and circumstances from which the law deduces the conclusion of citizenship or alienage. Now, allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is ; and allegiance by birth, is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship ; first, birth locally within the dominions of the sovereign ; and secondly, birth within the protection and obedience, or, in other words, within the ligeance of the sovereign. That is, the party must be born within a place where the sovereign is, at the time, in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently, owe obedience or allegiance to the sovereign, as such, de facto. See Calvin's Case, 'I Co. 1; Duroure v. Jones, 4 T. R. 300 ; 1 Bl. Com. 366. There are some exceptions, which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean, is a subject of the prince to whom his parents then owe allegiance ; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So, the children of an ambassador are held to be subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince. Birth within the dominions of a sovereign is not always sufficient to create citizenship, if * r the party, at the time, does not derive protection from its *sovereign, ° J in virtue of his actual possession ; and on the other hand, birth within the allegiance of a foreign sovereign, does not always constitute allegiance, if that allegiance be of a temporary nature, within the dominions of another sovereign.1 Thus, the children of enemies, born in a place within the 1 See an able article on the Alienigense of the United States, from the pen of the late Horace Binney, in 2 Am. L. Reg. 193. 96 1830] OF THE UNITED STATES. 156 Inglis v. Sailor’s Snug Harbour. dominions of another sovereign, then occupied by them, by conquest, are still aliens; but the children of the natives, born during such temporary occupation by conquest, are, upon a re-conquest, or re-occupation by the original sovereign, deemed, by a sort of postliminy, to be subjects from their birth, although they were then under the actual sovereignty and allegiance of an enemy. The general principle of the common law also is, that the allegiance thus due by birth cannot be dissolved by any act of the subject. It remains perpetual, unless it is dissolved by consent of the sovereign, or by operation of law. Upon the cession of a country, it passes to the new sovereign ; for the sovereign power is competent to transfer it, by a voluntary grant. Upon the conquest of the country, it passes, by operation of law, to the conqueror ; who, as sovereign de facto, has a right to the allegiance of all who are subdued by Lio power and submit to the protection of his arms. Upon the abdication of the government by one prince, it passes by operation of law to him whom the nation appoints as his successor. Thus, by the conquest of England, the allegiance of all Englishmen passed to William the Conqueror ; by the abdication of James IL, their allegiance passed to William of Orange ; and by the cession to France of the Anglo-French provinces of England, the allegiance of the natives passed to the new sovereign. The cases are plain enough, upon the doctrines of municipal law, as well as upon those which are recognised in the law of nations. But a case of more nicety and intricacy is, when a country is divided by a civil war, and each party establishes a separate and independent form of government. There, if the old government is completely overthrown, and dissolved in ruins, the allegiance by birth would seem, by operation of law, to be dissolved, and the subjects left to attach themselves to such party, as they may choose, and thus to become the voluntary subjects, *not by birth, but by adoption, of either of the new governments. But where L 1 the old government, notwithstanding the division, remains in operation, there is more difficulty in saying, upon the doctrine of the common law, that their native allegiance to such government is gone, by the mere fact, that they adhere to the separated territory of their birth, unless there be some act of the old government, virtually admitting the rightful existence of the new. By adhering to the new government, they may, indeed, acquire all the rights, and be subject to all the duties of a subject to such government; but it does not follow, that they are thereby absolved from all allegiance to the old government. A person may be, what is not a very uncommon case, a subject owing allegiance to both governments, ad utriusque fidem regis. But if he chooses to adhere to the old government, and not to unite with the new, though governing the territory of his birth, it is far more difficult to affirm, that the new government can compel or claim his allegiance, in virtue of his birth, although he is not within the territory, so as to make him responsible, criminally, to its jurisdiction. It may give him the privileges of a subject, but it does not follow, that it can compulsively oblige him to renounce his former allegiance. Perhaps, the clearest analogy to govern such cases, is to bring them within the rule that applies to cases of conquest, where those only are bound to obedience and allegiance, who remain under the protection of the conqueror. The case of the separation of the United States from Great Britain, is, 3 Pet.—7 97 157 SUPREME COURT v [Jan’y Inglis v. Sailor’s Snug Harbour, perhaps, not strictly brought within any of the descriptions already referred to ; and it has been treated on many occasions, both at the bar and on the bench, as a case sui generis. Before the revolution, ail the colonies constituted a part of the dominions of the king of Great Britain, and all the colonists were natural-born subjects, entitled to all the privileges of British born subjects, and capable of inheriting lands in any part of the British dominions, as owing a common allegiance to the British crown. But in each colony, there was a separate and independent government, established under the authority of the crown, though in subordination to it. In this posture 1 of things, the devolution came ; and the declaration of independence, -1 acting upon it, proclaimed the colonies free and independent states ; treating them, not as communities, in which all government was dissolved, and society wTas resolved into its first natural elements, but as organized states, having a present form of government, and entitled to remodel that form, according to the necessities or policy of the people. The language of the declaration of independence is, that congress solemnly publish and declare, “ that these united colonies are, and of right ought to be, free and independent states ; that they are absolved from all allegiance to the British crown ; and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved ; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent states may of right do.” It is plain, that this instrument did not contemplate an entire dissolution of all government in the states, which would have led to a subversion of all civil and political rights, and a destruction of all laws. It treated the colonies as states, and simply absolved them from allegiance to the British crown, and all political connection with Great Britain. The states so considered it; some of them proceeded to act and legislate, before the adoption of any new constitutions ; some of them framed new constitutions; and some of them have continued to act under their old charters, down to the present day. They treated the case as it was treated in England, upon the abdication of James II., and provided for it, by resorting to that ultimate sovereignty residing in the people, to provide for all cases not expressly provided for in their laws. Antecedently to the revolution, the inhabitants of the colonies, whether natives of the colonies, or of any other of the British dominions, owed no allegiance, except to the British crown. There was not, according to the common law, any secondary or subordinate allegiance to the colony itself, or the government therein established, as contradistinguished from the general allegiance to the British crown. When, therefore, the declaration of inde-*1 sal Pendence absolved all the *states from allegiance to the British -* crown, it was an act of one party only. It did not bind the British government, which wTas still at liberty to insist, and did insist, upon the absolute nullity of the act, and claimed the allegiance of all the colonists, as perpetual and obligatory. From this perplexing state of affairs, the necessary accompaniment of a civil war, it could not escape the notice of the eminent men of that day, that most distressing questions must arise ; who were to be considered as constituting the American states, on one side, and “ the state of Great Britain,” on the other ? The common law furnished no perfect guide, or rather admitted of different interpretations. If, on the one 98 1830] OF THE UNITED STATES. 159 Inglis v. Sailor's Snug Harbour. side, it was said, that all persons born within a colony owed a perpetual allegiance to that colony, whoever might be the sovereign, the answer was, that the common law admitted no right in any part of the subjects to change their allegiance, without the consent of their sovereign, and that the usurpation of such authority was itself rebellion ; for, “ nemo potest exuere patriamf was the language of the common law. In respect to persons who were not natives, but inhabitants only, in a colony, at the time of the assertion of its independence, there was still less reason to claim their allegiance. If they were aliens, there was no pretence to say, that they could be bound to permanent allegiance, against their will. If they were born in England, or elsewhere in the British dominions, out of the colony, they were as little bound to permanent allegiance ; because they inhabited, not as colonists, but as British subjects. In respect to both these cases (i. e., foreigners and British subjects), no colony, upon assuming to be an independent state, could, against their their will, make them members of the state. It would be an exercise of authority, not flowing from its rights as an independent state, and at war with the admitted rights of other nations, by the law of nations, to hold the allegiance of their own subjects. In order, therefore, to make such persons members of the state, there must be some overt act or consent on their own part, to assume such a character ; and then, and then only, could they be deemed, in respect to such colony, to determine their right of election. Under the peculiai’ circumstances of the revolution, the *general, I do not say the universal, principle adopted, was, to consider all *-persons, whether natives or inhabitants, upon the occurrence of the revolution, entitled to make their choice, either to remain subjects of the British crown, or to become members of the United States. This choice was necessarily to be made within a reasonable time. In some cases, that time was pointed out by express acts of the legislature ; and the fact of abiding within the state, after it assumed independence, or after some other specific period, was declared to be an election to become a citizen. That was the course in Massachusetts, New York, New Jersey and Pennsylvania. In other states, no special laws were passed ; but each case was left to be decided upon its own circumstances, according to the voluntary acts and conduct of the party. That the general principle of such a right of electing to remain under the old, or to contract a new allegiance, was recognised, is apparent from the cases of the Commonwealth v. Chapman, 1 Dall. 53 ; Caignet v. Pettit, 2 Ibid. 234 ; Martin n. Commonwealth, 1 Mass. 347, 397 ; Palmer v. Powner, 2 Ibid. 179 note ; s. c. Dane’s Abr. ch. 131, art. 7, § 4 ; Kilham v. Ward, 2 Mass. 236, and Gardner n. Ward, 2 Ibid. 244 note, as explained and adopted in Inhabitants of Cunnington y. Inhabitants of Springfield, 2 Pick. 394, and note; Inhabitants of Manchester v. Inhabitants of Poston, 16 Mass. 230; and Mcllvaine v. Coxe's Lessee, 4 Cranch 209, 211. (a) But what is more directly in point, it is expressly declared and acted upon, by the supreme court of New York, in the case of Jackson v. White, 20 Johns. 313. It appears to me, that there is sound sense and public policy in this doctrine ; and there is no pretence to say, that it is (a) See also Chase, J., in Ware ®. Hylton, 3 Dall. 225 ; Hebron ®. Colchester, 5 Day 169. 99 160 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. incompatible with the known law or general usages of nations. The case of Ainslie v. Martin, 9 Mass. 454, proceeds upon the opposite doctrine. But that case stands alone, and is incompatible with prior as well as sub-seQuent decisions of the same court; and so it has been *treated - by Chancellor Kent, in his learned commentaries. 2 Kent’s Com. 35, 52. Another point, which necessarily arises in the present discussion, is, whether a party, who, by operation of law, or by the express enactment of the legislature of a state, after the declaration of independence, became a citizen of the state, could afterwards, by any act of his own, flagrante bello, divest himself of such citizenship. It is clear, that during the war, however true it might be, that the state, by its own declaration, or by his consent, might hold him to his allegiance as a citizen, and absolve him from bis former allegiance, such declaration or consent could be binding only between him and the state, and could have no legal effect upon the rights of the British crown. The king might still claim to hold him to his former allegiance, and until an actual renunciation on his part, according to the common law, he remained a subject. He was, or might be held to be, bound ad utriusque fldem regis. In an American court, we should be bound to consider him as an American citizen only ; in a British court, he would, upon the same principle, be held a British subject. Neutral nations would probably treat him according to the side with which he acted, at the time when they were called upon to decide upon his rights. It might well be presumed, that from various motives, numbers would change sides, during the progress of the contest; some, because they were compulsively held to allegiance, and others again, from a sincere change of opinion. It is historically true, that numbers did so change sides. The general doctrine asserted in the American courts has been, that natives who were not here at the declaration of independence, but were then, and for a long while afterwards remained, under British protection, if they returned before the treaty of peace, and were here at that period, were to be deemed citizens. If they adhered to the British crown, up to the time of the treaty, they were deemed aliens ; some of the cases already referred to are full to this point, and -particularly Kilham n. Ward, and Gardner v. Ward. In respect to British subjects, not natives, who joined us, at any time during the war, and remained with us up to the peace, a similar rule of deeming them *16°1 c^zens has *been adopted. The cases in 9 Mass. 454 ; 2 Pick. 394 ; , and 5 Day 169, are to this effect. The ground of this doctrine is, that each government had a right to decide for itself who should be admitted or deemed citizens ; that those who adhered to the states and to Great Britain, respectively, were, by the respective governments, deemed members thereof; and that the treaty of peace acted, by necessary implication, upon the existing state of things, and fixed the final allegiance of the parties on each side, as it was then de faeto. Hence, the recognition on the part of Great Britain of our independence, by the treaty of 1783, has always been held by us as a complete renunciation on her part of any allegiance of the then members of the states, whether natives or British born. Anti the same doctrine has been in its fullest extent recognised in the British courts, in the case of Thomas v. Acklam, 2 Barn. & Cres. 779. Lord Chief Justice Abbott, in delivering the opinion of the court, on that occasion, said, that 100 1830] OF THE UNITED STATES. 162 Inglis v. Sailor’s Snug Harbour. the declaration in the treaty, that the states were free, sovereign and independent states, was a declaration that the people composing the state shall no longer be considered as subjects of the sovereign by whom such declaration is made. And in a subsequent case, Auchmuty n. Mulcaster, 8 Dow. & Ry. 593 ; s. c. 5 Barn. & Cres. 771, the same court held, that a native American, born before the declaration of independence, who adhered to the royal cause, during the w'ar, still retained his allegiance, and was to be deemed, not an American citizen, but a British subject. Mr. Justice Bayley, on that occasion, said, “the king acknowledges the United States to be free, sovereign and independent states.” “ Who are made independent ? The states. Does not this mean, the persons, who at that time (of the treaty) composed the American states ? ” 8 Dow. & Ry. 603. And again, he added, “ the treaty, &c., made those persons, who were, at that period of time, adhering to the then American government or constituted authorities, free of their allegiance to the crown of these kingdoms, and left them to adopt their allegiance to the new government.” In Kilham v. Ward, 2 Mass. 236, and Gardner v. * Ward, 2 Ibid. 244 note, a like doctrine was avowed. The language of the court L there was, that by the treaty, those who, by their adherence and residence, had remained the subjects of the king of Great Britain, on the one part, and those who, by their adherence and residence, were then the people of the United States, on the other part, were reciprocally discharged from all opposing claims of allegiance and sovereignty. This doctrine appears to me so rational and just, and founded upon such a clear principle of reciprocity and public policy, that it is, I own, extremely difficult for me to admit, that the treaty does not indispensably require that interpretation. It is true, that the treaty contains no renunciation on our part, of the allegiance of any of our citizens, who had adhered to the British crown ; but the reason of the omission is obvious. Great Britain claimed the allegiance of all the colonists, as British subjects; she renounced by the treaty that claim as to all, who then adhered to the American states. We acquiesced in that result ; and must, in the absence of any stipulation to the contrary, be deemed to admit the allegiance to have been retained, of all whose allegiance was not expressly or impliedly renounced. I am compelled, however, to admit, that the language of this court in ALelloaine v. Coxe's Lessee, 4 Cranch 209, 214, leads to an opposite conclusion. There is no doubt, that the treaty of peace does not ascertain who are citizens on the one side, or subjects on the other. That is a matter partly of law and partly of fact; but when the fact is ascertained, that the party was, de facto, at the time, under the allegiance of, and adhering to, either government, he is to be treated as a subject of that government, and as such, party to the treaty. What right have the American states to say, that all persons shall be deemed citizens, who, at any time previous to the treaty, were deemed citizens under their laws ; any more than Great Britain has, to hold all persons subjects, whom she had previously deemed subjects, in virtue of their original allegiance. Each party must, I think, be presumed to deal with the other, upon the footing of equal rights as to allegiance, and to act upon the status in quo the treaty found them. If, however, the case of Mcllvaine v. Coxe's Lessee is to be deemed, not an *admin- • • • . . I 164 istration of local law, but of universal law and the interpretation of L 101 164 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. treaties, it overthrows the reasoning for which I contend. I cannot admit its universality of application ; on the contrary, sitting in Massachusetts, I should feel myself constrained to re-examine the doctrine as applicable to that state, upon a point which affected her political rights and her soil, and which the courts of the state had the most ample jurisdiction to entertain and determine. In New York, there is no decision either way; and it seems to me, therefore, that it is fit to be’examined upon principle. I adopt the suggestion of Lord Chief Justice Abbott, in Thomas v. Acklam, 2 Barn. & Cres. 798, that the inconvenience that must ensue from considering any large mass of the inhabitants of a country to be at once citizens and subjects of two distinct and independent states, and owing allegiance to each, would, if the language of the treaty could admit of any doubt of its effect, be of great weight toward the removal of that doubt. The treaty ought to be so construed, as that each government should be finally deemed entitled to the allegiance of those who were at that time adhering to it. (a) With these principles in view, let us now come to the consideration of the question of alienage, in the present case. That the father and mother of the demandant were British born subjects, is admitted. If he was born before the 4th of July 1776, it is as clear, that he was born a British subject. If he was born after the 4th of July 1776, and before the 15th of September 1776, he was born an American citizen, whether his parents were, at the time of his birth, British subjects or American citizens. Nothing is better settled at the common law, than the doctrine, that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owning a temporary allegiance thereto, are subjects by birth. If he was born after the 15th of September 1776, and his parents did not elect to become members of the state of New York, but adhered to their , native allegiance, at the time of his birth, *then he was born a British -1 subject. If he was, in either way, born a British subject, then he is to be deemed an alien, and incapable to take the land in controversy by descent, unless he had become, at the time of the descent cast, an American citizen, by some act sufficient in point of law to work such a change of allegiance. His parents being born British subjects, it is incumbent upon those who set up the defence, to establish, that having a right of choice, his parents elected to become American citizens. This is attempted to be deduced, by operation of law, from certain resolutions and acts of the government de facto of the state of New York. As early as the 15th of September 1776, his parents joined the British troops in New York, and remained under the protection of the British arms, during the war. At the close of the war, his father withdrew (his mother being then dead) with the British authorities ; and he continued ever afterwards under the protection and allegiance de facto of the British crown. So far as the acts, therefore, of the parents, manifested by a virtual adherence to the British side, go, they negative any intentional change of native allegiance. But it is said, that they were bound to make their election in a reasonable time. I agree to this. But the effect of the omission to manifest an election in favor of the state of New York (a) See also, 1 Wood. Leet. 382 ; Dane’s Abr. ch. 131, art. 7. 102 Î67 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. not be deemed to dissolve the native allegiance of the parents of the demandant, unless it shall be clearly established, that they intended a permanent residence in New York, and to become members of the state, under the new government, anterior to their assuming British protection, in September 1776. But even admitting, that his parents did elect to become citizens of New York, before the 15th of September 1776, still, I am of opinion, that the demandant, if he was born after the British took possession of the city of New York, in September 1776, while his parents were under the protection of, and adhering to the British government de facto., was, to all intents and purposes, an alien born. To constitute a citizen, the party must be born, not only within the territory, but within the ligeance of the government. This is clear from the whole reasoning in Calvin's Case, 7 Co. 6 a j 18 a, b.(a) Now, in no just sense, can the demandant be deemed born within the ligeance of the state of New York, if, at the time of his birth, his parents were in a territory then occupied by hex' enemies, and adhering to them as subjects de facto, in virtue of their original allegiance. The act of the 22d of October 1779, which confiscates the estate of the parents of the demandant, throws great light upon this part of the subject. It demonstrates, that they were deemed to be then adhering to the British, the enemies of the state. It begins with a preamble, reciting that “ divers persons, holding or claiming property within this state, have voluntarily been adherent to the said king (of Great Britain), his fleets and armies, enemies to this state and the said othex- United States, with intent to subvert the government and liberties of this state and of the said other United States, *ia«l *an^ to bring the same into subjection to the crown of Great Britain; J by reason whereof, the said persons have severally justly forfeited all right to the protection of this state, and to the benefit of the laws under which such property is held or claimed.” It further declares, that the public safety requires, “ that the most notorious offenders should be immediately hereby convicted and attainted of the offence aforesaid, in order to work a forfeiture of theix' respective estates, and invest the same in the people of this state.” It then enacts, “that John Murray, Earl of Dunmore, &c., Charles Inglis, of the said city (of New York), and Margaret his wife (the parents of the demandant), &c., be, and each of them are, hereby severally declared to be ipso facto convicted and attainted of the offence aforesaid;” and then declares their estates forfeited. In the second section, it enacts, that the same persons “ shall be, and hereby are declared to be, for ever banished from this state, and each and every of them, who shall at any time hereaftex' be found in any part of this state, shall be, and hereby is, adjudged and declared guilty of felony, and shall suffer death.” This act deserves an attentive consideration, on several accounts. It is apparent, upon its face, that it is not an act which purports to be an attainder of citizens of the state only, on account of their treason in adhering to the public enemies; for it embraces persons who nevex* were, nor were pretended to be citizens; neither does it affect to confiscate the property, on account of the alienage of the persons named therein, by way of escheat. (d) See also, Com. Dig. Alien ; Bac. Abr. Alien, A. 104 1830] OF THE UNITED STATES. 168 Inglis v. Sailor’s Snug Harbour. The persons described as subjects of attainder are, “persons holding or claiming property within this state,” which description equally applies to citizens and British subjects, and may include foreigners of other nations. It seems, indeed, a summary exercise of the ultimate power of sovereignty, in inflicting the penalty of confiscation upon the property of enemies, ¡jure belli. But it demonstrates clearly the sense of the legislature, that the persons named therein were, at that time, voluntary adherents to the British crown and enemies of the state ; and it affords a very cogent presumption of such adherence, from the time that they first came undei’ British *protection.' It further denounces such persons as enemies pjgg or traitors, who have forfeited all right to the protection of the state, L and punishes them by a sentence of perpetual banishment, and makes their residence within the state a capital felony. Such a sentence, under such circumstances, must be deemed on the part of the state, a perpetual renunciation of the allegiance of those persons, and to deprive them of the rights, and to absolve them from the duties, of citizens. There can be no allegiance due, where the sovereign expressly denies all protection, and compels the party to a perpetual exile. In this view of the matter, the demandant’s parents were, by the sovereign act of the state itself, absolved from all future allegiance, even if they had antecedently owed any to the state. In this state of things, the treaty of 1783 found the father adhering to the British crown as a native-born subject. What, then, is the operation of the treaty of 1783 ? It is clear to my mind, that the father of the demandant must be considered as a party to that treaty, on the British side. I say this, upon the presumption, -which is not denied, that he was then adhering to the British crown; and that he was then recognised and protected as a subject owing allegiance to the British crown. In this state of things, the treaty must, upon the grounds, which I have already stated, be deemed to operate as an admission, that he was in future to owe no allegiance to the state of New York, but he was to be deemed a British subject. The question then arises, as to what was the operation of the treaty upon his son, the demandant, who was then an infant of tender years, and incapable of any election on his own part. It appears to me, that upon principles of public law, as well as of the common law, he must, if born a British subject, be deemed to adhere to, and retain the national allegiance of his parents, at the time of the treaty. Vattel considers the general doctine to be, that children generally acquire the national character of their parents, Vattel, lib. 1, ch. 19, § 212, 219; and it is certain, both by the common law and the statute law of England, that the demandant * would be deemed a British subject. The argument itself assumes, that the demandant now acts officially in that character, and that *- ' ever since his arrival of age, he has adhered to his British allegiance. Upon the whole, upon the point of alienage, as presented in the’case, the following are my opinions, under the various postures of the facts. 1. That if the demandant was born before the 4th of July 1776, he was born a British subject. 2. That if he was born after the 4th of July 1776, and before the 15th of September 1776, he was born an American citizen ; and that it makes no difference in this respect, whether or not his parents had, at the time of his birth, elected to become citizens of the state of New York, by manifesting 105 170 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. an intention of becoming permanently members thereof, in the sense which I have endeavored to explain. 3. That if the demandant was born after the 15th of September 1776, when the British took possession of New York, and while his parents were there residing under the protection of, and adhering to the British crown, as subjects de facto, he was born a. British subject, even though his parents had previously become citizens of the state of New York. 4. That if the demandant was born after the 15th of September 1776, and could be deemed (as I cannot admit) a citizen of the state of New York, in virtue of his parents having, before the time of his birth, elected to become citizens of that state, still his national character was derivative from his parents, and was, under the peculiar circumstances of this case, liable to be changed, during the revolutionary war ; and that if his parents reverted to their original character as British subjects, and adhered to the British crown, his allegiance was finally fixed, with theirs, by the treaty of peace. 5. That it was competent for the British government to insist, at all times during the revolutionary war, upon retaining the allegiance of all persons who were born or became subjects ; and for the American states to insist in the like manner. But that the treaty of peace of 1783 released all persons from any other allegiance than that of the party to whom they then adhered, * and under whose allegiance they *were then, de facto, found. That if -I the demandant’s father was, at that time, so adhering, it was a final settlement of his allegiance on the British side; and that the demandant, unless born aftei’ the 4th of July 1776, and before the 15th of September 1776, remained, to all intents and purpoess, a British subject. 6. That if the case of Mcllvaine v. Coxe's Lessee, 4 Cranch 209, should be thought to have overturned this doctrine, so that it is no longer reexaminable, still, that in this case, the parents had a right to elect to which government they would adhere ; and that a period up to the 15th of September 1776, was not an unreasonable time for that purpose; and that, unless some prior clear act of election could be shown, the adherence to the British, from the Iff th of September to the close of war, afforded strong evidence to repel the presumption of any prior election to become citizens, arising from the fact of abiding in the state up to that period. From these views, meaning to be understood to leave any disputed facts open for inquiry (although no other facts seem in dispute, except the actual period of the birth of the demandant), my judgment would be, that the demandant was, unless he was born between the 4th of July and the 15th of September 1776, an alien, at the time of the treaty of 1783, and has ever since remained so. I agree to the doctrine in Dawson’s Lessee v. G-odfrey, 4 Cranch 321, that the right to inherit depends upon the existing state of allegiance, at the time of the descent cast; and not merely upon a community of allegiance at the time of birth ; and the same doctrine is recognised in the fullest manner in the British Courts. Thomas v. Acklam, 2 Barn. & Cres. 779. If the demandant, then, was an alien at the time of the descent cast, he is incapable to inherit the estate in point of law. But it has been suggested, as matter of doubt, whether alienage of the demandant can be taken advantage of, or rejected, on the mise joined. This objection cannot, in my opinion, be maintained. It is laid down in the books, that everything in bar, upon the merits, may be given in evidence 106 1830] OF THE UNITED STATES. *172 Inglis v. Sailor’s Snug Harbour. under *the mise, except collateral warranty. So it is said in Brooks’s Abr. Droit 28 ; and Booth on Real Actions 112. That also seems to have been the opinion of the court in Tyssen v. Clarke, 3 Wils. 541. Whether the proposition can be maintained, in its general latitude, it is unnecessary now to consider; but it is certainly necessary for the demandant to prove his title, as set forth in the writ. If he claims by descent from an ancestor who was seised, he must show that he is heir, and capable to take by descent. The seisin of the ancestor is nothing, without establishing his heirship. The cases of Green v. Liter, 8 Cranch 229, and Green v. Watkins, 1 Wheat. 28, are decisive, that in a writ of right, the title and mere right of each party are in issue ; and each may establish that the title of the other wholly fails. If, therefore, the demandant has no title by descent, the tenant may show it; for it goes to the very foundation of his claim. In this connection, it may be well to dispose of another objection, which was much pressed at the argument. It is this : the demandant, in his count, alleges the seisin of Robert R. Randall, and makes title by descent to the premises, as his next collateral heir on the part of his mother. At the death of Robert R. Randall, he left a brother, Paul R. Randall, and a sister, Catharine Brewerton, on whom the alleged right to the lands descended in moie-ties, and through whom (though not from whom) the demandant deduces his title by descent, they having died without issue. The tenants offered evidence to establish that Catharine Brewerton had disposed of her right in the premises by will, and that the right of Paul R. Randall also had been transferred during his lifetime. Now, the objection is, that this evidence is inadmissible, because it is an attempt to set up the title of third persons, to defeat a recovery in a writ of right, which is inadmissible. The cases of Green v. Liter, 8 Cranch 229, and Green n. Watkins, 7 Wheat. 28, have been relied on to support this objection. Nothing is better settled in this court, than the doctrine, that a better title in third persons cannot be set up to defeat a recovery in a writ of right, because that writ brings into controversy and comparison the titles of the *parties only ; but it is perfectly consistent with this doctrine, that the tenant may show that the title set up by Z the demandant is, in fact, no title at all. One material allegation in the present count is the seisin of Robert R. Randall, the ancestor ; and this seisin is admitted, and indeed, constitutes a part of the title of both parties in the present case. Another material allegation is, that the right to the demanded premises descended to the demandant as heir. Now, it is clear, upon the general principles of pleading, that what is essential to the demandant’s right, as stated in his count, must, when that right is denied by the issue, be proved by the demandant, and may be disproved by the tenant. If, therefore, the demandant be incapable of taking as heir by descent, although there be a right, that may be shown by the tenant; as, if he be an alien, because it defeats the asserted descent of the title. On the other hand, if the heirship be admitted, and the right was parted with by the ancestor, or by any other person, upon whom it immediately devolved, before it could reach the demandant, that, for a better reason, may be shown ; because it shows that no right or title descended at all. Both are necessary to establish the demandant’s claim ; there must be a right or title subsisting, capable of descent, and a capacity in the demandant to take as heir. If the ancestor has actually parted with his whole right and title in the premises, by a legal 107 173 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. conveyance, hoW can it be said, that there remains any descendible right in him ? If his right has been parted with, by any intermediate heir, by a legal conveyance, how can it be said to have devolved upon the demandant ? The true and real distinction is this : if the demandant shows any right, as stated in his count, to have descended to him from his ancestor, the tenant cannot show that there is a better right subsisting in a third person, under whom he does not claim, for that does not disprove the title of the demandant, as asserted in his writ; and if the demandant’s title, such as it is, is better than the tenant’s, then the demandant ought to recover; but the tenant may show, that the demandant has no right whatsoever by descent, for the possession of the tenant is sufficient, against any person who does not show any right, or a better right. And this, *as I understand it, is the doctrine J in Green n. Watkins, 7 Wheat. 28. Here, title in third persons is offered, not to prove that there is a better outstanding title, but that no right whatever descended to the demandant, as he claims in his count. It seems to me, that it is clearly admissible. The next point is, whether the will of Catharine Brewerton was sufficient to pass her right and interest in the premises in question, so as to defeat the demandant, in any aspect, the premises being at the date of the will, and ever since, held adversely by the tenants in the suit. If this point were to be decided with reference purely to the common law of England, there might be some reason for doubt. The question whether a right of entry was, under the British statute of wills, devisable, seems never to have been directly decided, until a recent period. There is, indeed, to be found in prior cases, many dicta going to affirm the doctrine that such a right of entry is not devisable. Snch seems to have been the opinion of Lord Holt, in Brunker v. Cook, 11 Mod. 122, and of Lord Eldon, in Attorney- General v. Vigors, 8 Ves. 282, as well as of other judges, in former times, whose dicta are collected and commented on, in Goodright v. Forrester, 8 East 552, 566, and 1 Taunt. 604. (a) There are also dicta the other way ; and at all events, there is reasoning which leads to the conclusion, that in modern times, the judges have been disposed to give a far more liberal construction to the statutes, and to hold that whatever is descendible is devisable. The cases of Jones n. Roe, 3 T. R. 88, and Goodtitle d. Gurnall v. Wood, Willes 211, 3 T. R. 94, by Lord Kenyon, are most material. In Goodright v. Forrester, 8 East 552, the court of king’s bench held a right of entry not devisable ; but when that case came before the court of the exchequer chamber, in error, Lord Chief Justice Mansfield very much doubted that point, and the case was finally decided on another. But it is the less necessary to consider this question, upon the English authorities, because it has undergone an express adjudication in the state of New *York, -I upon the construction of their own statute of wills. The statute of New York enacts, that any person having an estate of inheritance in lands, tenements and hereditaments, shall have a right to devise them. In Jack-son n. Varick, 7 Cow. 238, the supreme court of New York, upon very full consideration, held, that under this statute a right of entry, being an hereditament, was devisable. And this court, in Waring v. Jackson, 1 Pet. 571, understood it to be the settled rule in that state, that an adverse possession (a) See also, Com. Dig. Devise, M. 108 1830] OF THE UNITED STATES. 175 Inglis v. Sailor’s Snug Harbour. did not prevent the passing of the property by devise. This, then, being a point of local law, upon the construction of a statute of the state, according to the uniform course of this court in cases of that nature, we should hold it decisive, whatever original doubts might otherwise have surrounded it. But as one, I confess myself well satisfied with that decision, upon principle. It is rational and convenient ; and if I should have felt difficulty in arriving at it through the authorities, I should not be inclined to disturb it, when made. It has been said, that the present case differs from that in 7 Cow. 238, in this, that the demandant claims through, but not under, Mrs. Brewerton, not as her heir, but as heir of Robert R. Randall; and that the estate was not descendible to her heirs, according to the known principles of the common law, as she was never seised of the premises, but to Robert’s heirs, as the person last seised. This is true ; but it does not alter the application of the principle of law. If Mrs. Brewerton had been possessed of a reversion, by descent from Robert R. Randall, and she had died, before the life-estate fell in, it would not have gone to her heirs, but to his. And yet there is no doubt, that she might grant such a reversion, or devise it, and it would pass by her will to the devisee, and thus interrupt the descent. So, if Mrs. Brewerton had a right of entry in the premises, and she could devise it, it is of no consequence, that it would not, if undevised, have passed to her heirs; for having thejws disponendi, when she exercisesit, it passes her right to her devise, and so interrupts the descent to the heirs ofeRobert *R. Randall. It appears to me, therefore, that as to the moiety of Mrs. Brewerton, it passed under her will, and that the demandant, in any view of his claim, has no title to a moiety of the demanded premises. A right of entry may well pass under the devise of an hereditament. (See Smith v. Coffin, 2 H. Bl. 444.) The next question is, whether the proceedings against Paul R. Randall, as an absent and absconding debtor, passed his right or interest to the other moiety in the lands in question to, and vested the same in, the trustees appointed under the same proceedings, so as to defeat the demandant in any respect. The answer must depend upon the true construction of the absconding debtor acts of 1786 and 1801, as compared with those proceedings. At the time of those proceedings, the premises were in the adverse possession of the tenants; and consequently, Paul R. Randall had only a right of entry. And the question is, whether that right of entry passed by the statutes, to the trustees; and if so, whether it did not, by operation of law, revest in him, after all these proceedings were fundi officio, his debts being paid and the surplus paid over to him. At the common law, a right of entry is clearly not grantable or assignable. The party has, in the sense of the common law, no estate in lands of which he is disseised; but his estate is said to be turned to a right, and can be recoverable only by an entry or an action. In the meantime, he has not any estate in the lands, but he has merely the right to the estate. For this doctrine, it is necessary to do no more than to refer to Littleton, § 347 ; Co. Litt. 214, 345 a, b ; Preston on Estates 20, and Com. Dig. Assignment, C, 1-3; and Grant, D.(a) Unless it shall appear, that the common law has been differently construed (a) See Smith ®. Coffin, 2 H. Bl. 444. 109 176 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. in New York, or altered by some local statute, the same rule must be presumed to prevail there; for, by the constitution of that state, the common law forms the basis of its jurisprudence. No case has been cited, in which the rule of the common law on *this subject has been over--1 turned, or in which it has been decided that the word “estate” includes a right of entry, proprio vigore. But it is said, that by the law of New York, a right of entry is attachable, and may be taken and sold on execution; and that an attachment under the absconding debtor acts of 1786 and 1801, is deemed analogous to an execution. Matter of Smith, 16 Johns. 102. It may, doubtless, well be so deemed in a general sense; but it by no means necessarily follows, that because there is such an analogy, therefore, whatever may be taken in execution, may be taken on such attachment, or £ converso. The subject of levies under execution, is expressly provided for by the statute of New York, of the 31st of March 1801; and what effects or estate may be taken in execution, depends upon the true construction of the terms of that act. It declares, that “ all the lands, tenements and real estate ” of every debtor, shall be liable to be sold upon “execution,” &c., for the payment of any judgment against him for debt or damages. What has been the judicial construction of these words, in this act, whether they include a right of entry, does not, so far as my researches extend, appear ever to have been decided. It is indeed suggested by Mr. Justice Woodworth, in delivering the opinion of the court in Jackson v. Varick, 7 Cow. 238, 244, that the reasonable construction is, that it includes such a right; but the point was not then before the court, and he does not treat it as a point settled by adjudication. The words to which he refers in another part of the act, giving the form of the execution (§ 9), in which it is confined to lands and tenements whereof the debtor was seised on the day when the same land became liable to the debt (by the judgment), would rather incline one to a different conclusion. And it is certain, that under the statute of West. II., c. 18, subjecting lands to execution, lands of which the debtor is disseised at the time of the judgment, cannot be taken in execution. 1 Roll Abr. 888; Com. Dig. Execution, C. 14. *1781 as may» *8 certain, that in New York the process *upon 4 J executions, and under the absconding-debtor act, are not co-extensive in their reach. A judgment is not a lien upon a mere equity; and such an equity (not being an equitable estate under the statute of uses of 1787, § 4) is not an interest which can be sold on execution. And choses in action do not appear to be within the scope of the act respecting executions; for the language confines it to “goods and chattels.” Yet, choses in action, by the express terms of the absconding-debtor acts, pass under the attachment; and there are various othei’ interests, which may well pass under these acts, which yet are not liable to be taken under a common execution. Several cases illustrative of this position, will be found collected in Mr. Johnson’s Digest, title Execution, 2 A. It appears to me, then, that the true mode, by which we are to ascertain, whether a right of entry passes under the absconding-debtor acts, is not by any forced analogy to the case of common executions, but by a just interpretation of the terms of the acts themselves. The act of 1801 is, in substance, a revision of the act of 1786; no material distinction between them, applicable to the case before the court, has been 110 1830] OF THE UNITED STATES. 178 Inglis v. Sailor’s Snug Harbour. pointed out at the argument; and they may, therefore, be treated as substantially the same. The act of 1801 begins (§ 1) by providing for cases of absconding and absent debtors ; and upon proof thereof, provides, that a warrant shall issue to the sheriff, commanding him to attach and safely keep “ all the estate, real and personal, of such debtor,” and make and return a true inventory thereof. Goods, effects, and choses in action are expressly declared to be within the reach of the act. It afterwards proceeds to provide for the appointment of trustees, and authorizes them (§ 2) il to take into their hands all the estate of such debtor, whether attached as aforesaid, or afterwards discovered by them, and all books, vouchers and papers relating to the same ; and the said trustees, from their appointments, shall be deemed vested with all the estate of such debtor, and shall be capable to sue for and recover the same ; and all debts and things in action, due or belonging to such debtor, and all the estate attached as aforesaid, *shall be, by the sheriff, &c., ra. _ * 7 j 77 r*i?9 delivered to the said trustees; and the trustees, or any two of them, L shall sell at public vendue, after fourteen days’ previous notice of the time and place, all the estate, real and personal, of such debtor, as shall come to their hands, and deeds and bills of sale for the same, make and execute, which deeds and bills of sale shall be as valid as if made by such debtor,” &c. The act afterwards goes on to provide for the distribution of the proceeds of the sales among the creditors, and then declares, that “ the surplus, if any, after all just debts and legal charges as aforesaid are satisfied, shall be paid to such debtor or his legal representatives.” There is no provision in the act, as to what shall be done in respect to any property which never came to the hands of the trustees, nor of any property remaining unsold by them, when all the debts were satisfied; and the omission may easily be accounted for, from the general policy of the act ; for the language is, that the trustees shall sell all the estate which comes to their hands. If the point were material, I should strongly incline to the opinion, that the act did not absolutely divest all right and title of the debtor of any of his estate, which should not come to the hands of the trustees and be sold by them. But whether this be so or not, I am clearly of opinion, that when once all the purposes of the trust are satisfied, and all the debts are paid; if the trustees have any legal interest or title vested in them, in the estate of the debtor, remaining unsold, it is subject to a resulting use for the benefit of the debtor, in the same manner as the surplus of the property sold. Suppose, before th'e sale, all the debts should be paid, must the trustees go on to sell ? Suppose, all the debts are paid by a sale merely of the personal estate, is not their trust extinguished ? The trustees take all the estate, in the first place, for the benefit of the creditors, and in the next place, they being paid, for the benefit of the debtor. Subject to the rights of the creditors, the use is in him ; and by operation of law, the estate revests in him, as soon as the trust for the creditors is exhausted or extinguished. This seems to me a reasonable, if not a necessary, construction of the act; for it has provided for no express reconveyance *by the trustees to the debtor, in r.*,gg any case whatsoever. It certainly could not intend to deprive him of L his inheritance, after all his debts were paid. And it is but just, to give the act a construction favorable to the debtor, when all its other objects are accomplished. In the present case, the whole proceedings afford a strong 111 180 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. presumption, that all the debts of P. R. Randall have been paid ; and none are pretended to exist. His right of entry in the demanded premises was never sold by the trustees ; and even if it vested in them, it afterwards, by operation of law, revested in him, if the trusts were all defunct and satisfied. But I go further, and incline to the opinion, that his right of entry in the demanded premises did not pass to the trustees, under either of the attachments. The language of the acts of 1786 and 1801 is, indeed, quite broad, and extends to all the “ estate, real and personal,” of the debtor. But a right of entry is not, as has been already shown, an “ estate,” in any just and legal sense of the word. Neither is it a “ thing in action ;” for it does not depend upon any right to sue, but may be enforced by a mere entry. Indeed, a right of action and a right of entry are often used in contradistinction to each other. The case of Smith, &c. v. Coffin, 2 H. Bl. 444, turns altogether upon other considerations, and upon the interpretation of the words of the English bankrupt laws. Words of a very broad import are used in those laws ; and the policy of them is far more extensive than that which governs the laws of New York, now under construction, A construction might be properly adopted in respect to the bankrupt laws, which would not apply to the absconding-debtor acts of New York. The general policy of the common law is, to discourage the grant or sale of mere rights of entry and action, with a view to suppress litigation. This policy spreads itself over many important interests ; and is so fundamental, that nothing but a very clear expression of the legislative intention ought, in my judgment, to overthrow it. No such intention is to be found in the acts of 1786 and 1801. Can it be reasonably presumed, that the legislature meant to authorize the sale of a right of entry to a purchaser ? If not, was it the * _ intention, to enable the trustees *to reduce the right into possession, J and afterwards to sell the same ? I think, the former was manifestly not the intention of the legislature ; and I found myself on the very words of the acts. The timstees are to sell, not all the estate of the debtor, but all the estate, real and personal, “ as shall come to their hands that is, as I construe the words, such as they shall reduce into possession ; so that the estate may bring its unconverted value. But for the reasons already stated, I incline also to the opinion, that it was not the intention of the legislature, to pass the right of entry to the trustees, so that they might be enabled to reduce it into possession. But supposing it to be otherwise ; still, it appears to ine, there is much reason to contend, that the trustees, if they took the right of entry at a’H, took it sub modo, and exactly as Paul R. Randall held it. The legislature did not intend to invest them with a better right than he had. He had a right of entry into the estate vested in him by descent, and he might perfect his estate by an actual entry, during his lifetime. But if he died without such entry, then the right to the estate devolved not upon his own heir, but upon the next heir in the line of descent of Robert R. Randall. In this view of the fact, the trustees were bound, then, to reduce the right of Paul R. Randall into possession, during his lifetime, if they meant to perfect their title thereto. Not having done so, the title devolved upon the next heir who claimed, not through them, but from the ancestor from whom Paul R. Randall took it. This, however, is not the main ground on which I rely, though it fortifies some of the considerations already mentioned. The main ground on which 112 1830] OF THE UNITED STATES. 181 Inglis v. Sailor’s Snug Harbour. I rely is, that whatever construction of the act may be adopted, in other respects, as soon as all the trusts of the assignment are executed, there arises a resulting use to the debtor, which, by operation of law, will revest all the unsold estate in him. Upon the whole, my opinion is, that the proceedings against Paul R. Randall did not pass his right or interest in the lands in question, so as to defeat the demandant in any respect; but if they did, and all the trusts have been satisfied, there is a resulting use to him in the unsold estate. The next question is, whether, inasmuch as the count in *the cause is for the entire right in the premises, the demandant can recover a l less quantity than the entirety ? This is a question somewhat involved in technical learning, and therefore, requires an accurate examination of the authorities. Reasoning upon general principles, and the analogies of the law, there would be little difficulty in deciding it in the affirmative ; for it is deciding no more than he who has a right, shall recover according to his right, so, always, that he does not recover more than he sues for. No injury is done to the tenant, by allowing the demandant, who sues for ten acres, and shows a title only to one, to recover for the latter; nor if he sues for an entirety, and shows title to a moiety, to recover for the latter. And it is in furtherance of justice, that he should so recover ; because it prevents multiplicity of suits. For if his suit should abate for this fault (and that is the only judgment which could be pronounced), he would still be entitled to a new action for the part to which he had shown title. The falsity of the former writ would constitute no bar. Let us see, then, how the case stands upon authority. By the old common law, if the writ of the demandant was falsified by his own confession (for it is far from being certain, that it was ever true, when found by a verdict upon the merits, after the general issue joined),(a) as to anything or part of a thing demanded in the writ, it abated for the whole. If the matter did not appear on the face of the record, but was to be made out by facts dehors, then the tenant, if he meant to avail himself of it, was compelled to do it, by a plea in abatement. Thus, if he meant to avail himself of nontenure of the whole or a part, he must plead it. But where, upon the w’hole record, the falsity of the writ was apparent, by confession of the party, there, although the tenant had not pleaded in abatement, it was the duty of the court, ex officio, to abate the writ. Now, at the common law, there are two sorts of writs in *real r<5 actions. In one, the demand is in a general form, without specifica- L tion of any land in particular. Thus, in the writ of assize, the demand is, that the tenant “unjustly and without judgment, hath disseised him of his freehold in C.” (Booth on Real Actions 210 ; F. N. B. 177), without any further' description of the land. So, in writs of dower, the demand is of the demandant’s “ reasonable dower, which falleth to her, of the freehold, which was of A., her late husband, in C., whereof she hath nothing,” without more. 2 Saund. 43 ; Booth on Real Actions 166 ; F. N. B. 147. The plaint or count is less general, and specifies the particulars of the demand, as a messuage, ten acres of land, &c. Com. Dig. Assize, B, 11; Booth on (a) See Plowd. 424-0 ; Hob. 282-6 ; Fitzh. Abr. Breve, 272 ; 9 Hen. VI. 54; 11 Co. 45 ; Theol. Dig. lib. 16, ch. 5. 3 Pet.-t-8 113 183 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. Real Actions 212, and note. In the other sort of writs, the writ itself is as special as the count. Such is the case of all praecipes quod reddat, such as writs of right and writs of entry, &c., where the demand is of a certain messuage, or ten acres of land, &c., and the exigency of the writ is, that the said tenant should render the same to the demandant, without delay. F. N. B. 15, 191 ; Booth on Real Actions 1, 83, 88, 91, 172. Now, it was upon this difference, that a distinction took place, in the common law, as to the right of the demandant to abridge his demand. If the writ was special, he could not abridge his demand in any case. If the writ was general, de libero tenemento, he might abridge his demand at his pleasure, so always that he did not abridge it of a moiety or portion, where he sued for the entirety of a thing ; as if he sued for ten acres, he might abridge it to five ; but if he sued for the whole of a messuage, he could not abridge it to a moiety. This doctrine will be found at large in many cases ; but it is nowhere better expounded than in the opinion of Mr. Justice Juyn (afterwards chief justice) in 14 Hen. VI., p. 3, 4. He said, “that in all cases where the writ is de libero tenemento, generally, as in assize and writs of dower, where the writ is of her reasonable dower, &c., the demandant may abridge his plaint or demand ; and the reason is, because although he abridges some acres, yet the writ remains true as to the rest, it being liberum tenementum *1R4.1 still* But where a *certain number of acres is demanded in the writ, J as in a formedon, the demandant cannot abridge, for he acknowledges his writ false ; and where a writ is acknowledged to be false in part, it must abate it in the whole ; but if, in an assize, the writ be, he unjustly disseised him de libero tenemento in A. and B., and he would abridge his demand as to all in B., he shall not abridge ; for his writ is false, which supposes him disseised of the tenement in A. and B.” As to this last position, there is some difference in the authorities ; but the general position is unquestionably law. See Com. Dig. Abridg. A. ; 2 Saund. 44, and note 4 ; Gilb. Com. Pl. 199, 201-3 ; Brooke, tit. Abridg ; 14 Hen. VI., p. 4 ; 9 Ibid, p. 42 ; 3 Lev. 68 ; Vin. tit. Abridg. ; Theol. Dig. lib. 16, ch. 2 ; Bac. Abr. Abatement L. But this doctrine, even in relation to assizes, was of little value to the demandant in many cases, because it stopped short of. the most common sources of mistake. If, therefore, he counted against one as tenant of the whole, and he pleaded non-tenure as to part, or joint-tenancy, &c., and it appeared by confession, or otherwise, that the plea was true, the writ abated as to the whole, for the falsity of the writ was established in this, that the tenant was sued as the tenant of the whole, and was tenant only of part. This mischief was cured by the statute 25 Edw. HL, c. 16, which provided, “ that by the exception of non-tenure of parcel, no writ shall be abated, but for the quantity of the non-tenure which is alleged.” See Gilb. Com. Pl. 201. Still, however, many difficulties remained behind ; for if a party sued for an entirity, as of a manor, or a messuage, or one acre, and a bar was pleaded as to a moiety, .or part of the land put in view, &c., in the plaint, the defendant could not abridge his plaint to the moiety left, since his writ was for an entirety, and so far false. The distinction was nice, for he might abridge his plaint from two or ten acres, to one acre ; but not as to the extent of his title or right in the land put in view. Such, however, as the distinction was (and it suited the subtilty of the times), it 114 1830] OF THE UNITED STATES. *184 . Inglis v. Sailor’s Snug Harbour. prevailed, until the statute of 21 Hen. VIII., c. 3, which provided, that in assizes, the demandant might in all such cases abridge his plaint, and proceed for the *residue. See Com. Dig. Abridgment, B. ; Viner, tit. Abridgment; Theol. Dig. lib. 8, ch. 28 ; Ibid. lib. 16, ch. 2 ; Keil-way 116, pl. 56 ; 5 Hen. VII. ; 19 Hen. VI. 13 ; Brooke’s Abridgment, pl. 2. But this statute is confined to assizes, and therefore, left the common law in full force as to all other real actions. Such is a brief review of the doctrine at common law, in respect to the abridgment of plaints by the demandant. It is not, however, to be imagined that the old authorities are all in harmony on this subject. On the contrary, diversities of opinion seem to have existed from an early period. In Godfrey's Case, 11 Co. 42, 45, the court proceeded mainly on the rule already stated. Lord Coke, however, thought that the common and true rule and difference is, where a man brings an action, be the suit general or certain and particular, and he demands two things, and it appears of his own showing, that he cannot have an action or better writ for one of them, there the writ shall not abate for the whole, but shall stand for that which is good. But when a man brings an action for two things, and it appears that he cannot have this writ for one thing, but may have another, in another form, there the writ shall abate for all, and shall not stand foi' that which is good. The distinction has sound sense in it; but it is inapplicable to the present case ; because here, the plaintiff has not shown upon the pleadings, that he has no title to maintain his writ for the whole. See 1 Saund. 282, 285, note 7 ; Com. Dig. Abatement, M, N; Cro. Jac. 104 ; Theol. Dig. 6, 8, c. 28, § 13 ; 9 Hen. VII. 4 b. Writs of praecipe quod reddat,Wiwo, except so far as the statute 25 Edw. III., of non-tenure, aided them, stood upon the footing of the common law. In respect to them, therefore, the demandant could not abridge his claim, except in cases of non-tenure ; and if his writ could not, by his own confession, be maintained for the whole for which he sued, his writ abated for the whole ; and it was not material, whether he sued for the entirety of a certain number of acres, and showed title to a less number ; or whether he sued for the whole or a moiety, and showed title only to a less aliquot part. See Com. Dig. Abatement, L, 1, 2, M; Saville 86 ; Clanrickard n. Sidney, Hob. 273, 274, 279, 282 ; Com. Dig. Abridgment, B. ; Chatham v. Sleigh, 3 Lev. 67 ; Viner, tit. Abridgment; Fitzh. Abr. tit. Breve, 272; Plowd. 424. But *unless the falsity of his writ appeared by his own confession, r4s _ even though it appeared by the verdict, the better opinion was, that the writ was not abated for the whole. Plowden, indeed, in Bracebridge v. Cook, Plowd. 424, thought the objection fatal. But Lord Hobart, in Clanrickard n. Sidney, Hob. 272, 282, condemned that opinion as erroneous, and against common experience in his day. And in this last case, it was further held, that the variance was but matter of form, and at all events, cured by the statute of jeofails of 18 Eliz., c. 14, aftei’ a verdict, even though it appeared by confession of the party, upon the pleadings. In that case, the writ was formedon for an entirety ; and upon the demandant’s own confession, it appeared, that he was entitled to recover but two-thirds. But the court held, that the parties having gone to trial upon an issue, and the jury having found a special verdict in favor of the plaintiff for the two-thirds, his suit was not abatable for the whole, but the error was cured by 115 186 SUPREME COURT Inglis v. Sailor’s Snug Harbour. [Jan’y the statute of jeofails of 18 Eliz., c. 14. See Bac. Abr. Amendment, B. ; Theol. Dig. lib. 16, § 15, 18 ; 2 Roll. Abr. 719, pl. 19 ; Cooper v. Franklin, 1 Roll. 334 ; s. c. 3 Bulst. 148, Whoever will read Lord Hobart’s learned opinion upon that occasion, will perceive the mos.t solid reasons brought in support of it. The doctrine, that if a demandant sue for an entirety, he may yet, after verdict, recover for a moiety, is not only supported by the case in Hob. 172, but by the case Cooper n. Franklin, 1 Roll. 334 ; s. c. 3 Bulst. 148, and 2 Roll. Abr. Trial, p. 719, pl. 12. The doctrine that if he sue for a moiety, he may recover for a less aliquot part, may be deduced from the same cases, for it stands upon the same reasoning as that applicable to entireties. So was the reasoning in Saville 48, pl. 165.(a) There are many cases in ejectment, where the same doctrine has been maintained, and in none of them has any distinction been asserted between an ejectment and real actions. The ground of argument has been the variance between the count and verdict ; so that it has turned upon the falsity of the plaintiff’s *18H1 *c^a^m an<^ as propounded in his writ and proved at the trial. J So was the case of Abbott v. Skinner, 1 Sid. 229, where the ejectment was for one-fourth part of a fifth part; and the plaintiff’s title upon the trial was but one-third part of a fourth of a fifth part; and yet it was held, that he was entitled to recover according to his title. That case was recognised and fully confirmed in the case of Denn d. Burges v. Purvis, 1 Burr. 326, where in ejectment the plaintiff sued for a moiety and recovered a third. Lord Mansfield relied on the analogous doctrine in cases of assize. It may then be assumed as certain, that from the time of Lord Hobart, the general doctrine has been, that the demandant in any real action is entitled to recover less than he demands in his writ, whether he demands an entirety or an aliquot part, if the variance be not taken advantage of, until after a verdict found, on trial had. If, indeed, the matter be pleaded in abatement, it is fatal to the whole suit. So, if it appears of record, by the confession of the demandant, in the course of the pleadings, the writ is abatable for the whole, if the tenant chooses to take advantage of it, before verdict. But if the parties go to trial upon the merits, and a verdict, general or special, be found of any part, for the demandant, there, the variance between the writ and the title, even though by the confession of the demandant, upon the pleadings, is cured by the statute of amendments of 18 Eliz., c. 14. This, then, being the state of the law, at the time of the emigration of our ancestors, and the statute of Elizabeth being a remedial and not a penal law, and the general principle being that statutes made in amendment of the law, before that period, constitute a part of our common law ; the court might, if it were necessary, resort to this principle to support the present suit. But such a resort is not necesssry ; because, in the first place, the present case is not one where the defect appears upon the confession of the party; but if at all, appears from facts proved at the trial, upon the general issue. In the next place, the provisions of the judiciary act of 1789, ch. 20, § 32, upon the subject of amendments and jeofails, are far more extensive than the English statutes, and would justify the most * comprehensive construction in *favor of the demandant. And in ■> the last place, the original nicety of the common-law doctrine upon (a) See Scott and Scott’s Case, 4 Leon. 39; Com. Dig. Abatement, M. 116 1830] OF THE UNITED STATES. 183 Inglis v. Sailor’s Snug Harbour. this subject, at least, since the time of Lord Hobart, seems to have given way (where the matter was not pleaded in abatement) to the doctrine of common sense. So far as we can trace it, it has been, long overruled in England. Its existence in America has never been maintained by any positive decision in its favor. On the contrary, in Massachusetts, where real actions constitute the ordinary remedy for disseisins and ousters, it has been solemnly adjudged, upon a careful consideration of the English authorities, that the demandant may, in all cases, recover less than he sues for, whether he sues for an entirety or an aliquot part. So are the cases of Dewey v. Drown, 2 Pick. 387 ; and Somes v. Skinner, 3 Ibid. 52 ; and the opinion of very able commentators upon this branch of the law. (Jackson on Real Actions 296 ; Stearns on Real Actions 204.) There is nothing in the case of Green v. Diter, 8 Cranch 229, 242, which trenches upon this doctrine. So far, indeed, as that case goes, it is favorable to the demandant. I have not thought it necessary to into a particular examination of the point, whether, if the variance between the demandant’s title and his demand in his writ be apparent only by the finding of the jury, upon the general issue, and not by the pleadings of the parties, or the confession of demandant, the writ was abatable for the whole, upon the old doctrine of the common law. There is much reason to believe, as has been already intimated, that under such circumstances, the variance was never fatal to a recovery pro tanto ; and the modern doctrine in England is certainly in favor of a recovery. But whether it be so or not, independent of the statute of jeofails, that statute certainly cures the defect, upon the principles already stated. Upon the whole, my opinion is, that this question ought to be certified in favor of the demandant. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the *southern district of New York, and on the questions and points on which the judges of L the said circuit court were opposed in opinion, and which were certified to this court for its opinion, in pursuance of the act of congress for that purpose made and provided, and was argued by counsel : On consideration whereof, it is the opinion of this court: I. That although the count in the cause is for the entire right in the premises, the demandant may recover a less quantity than the entirety. 2. And under the second general point, the following answers are given to the specific questions. 1st. If John Inglis, the demandant, was born before the 4th of July 1776, he is an alien, and disabled from taking real estate by inheritance. 2d. If he was born after the 4th of July 1776, and before the 15th of September of the same year, when the British took possession of New York, he would not be under the like disability. 3d. If he was born after the British took possession of New York, and before the evacuation on the 25th November 1783, he would be under the like disability. 4th. If the grand assize shall find, that Charles Inglis, the father, and John Inglis, the demandant, did, in point of fact, elect to become and continue British subjects,, and not American citizens, the demandant is an alien, and disabled from taking real estate by inheritance. 3. The will of Catharine Brewerton was sufficient to pass her right and 117 189 SUPREME COURT [Jan’y Inglis v. Sailor’s Snug Harbour. interest in the premises in question, so as to defeat the demandant’s right to recover, so far as her right or interest extended 4. The proceedings against Paul Richard Randall, as an absent debtor, passed his right or interest in the lands in question to, and vested the same in, the trustees appointed under the said proceedings, so as to defeat the demandant’s right to recover, so far as his right or interest extended ; unless the grand assize shall find, that the trusts vested in the trustees have been performed ; and if so, the said proceedings will not defeat the demandant in any respect. * onl * Revise in the will of Robert Richard Randall of the lands J in question is a valid devise, so as to divest the heir-at-law of his legal estate. Whereupon, it is ordered and adjudged by this court, to be certified to the judges of the said circuit court of the United States, for the southern district of New York: 1. That although the count in the cause is for the entire right in the premises, the demandant may recover a less quantity than the entirety. 2. And under the second general point, the following answers are given to the specific questions : 1st. If John Inglis, the demandant, was born before the 4th of July 1776, he is an alien, and disabled from taking real estate by inheritance. 2d. If he was born after the 4th of July 1776, and before the 15th of September, of the same year, when the British took possession of New York, he would not be under the like disability. 8d. If he was born after the British took possession of New York, and before the evacuation of the 25th of November, 1783, he would be under the like disability. 4th. If the grand assize shall find, that Charles Inglis, the father, and John Inglis, the demandant, did, in point of fact, elect to become and continue British subjects, and not American citizens, the demandant is an alien, and disabled from taking real estate by inheritance. 3. The will of Catharine Brewerton was sufficient to pass her right and interest into the premises in question, so as to defeat the demandant’s right to recover, so far as her right or interest extended. 4. The proceedings against Paul Richard Randall, as an absent debtor, passed his right or interest in the lands in question to, and vested the same in, the trustees appointed under the said proceedings, so as to defeat the demandant’s right to recover, so far as his right or interest extended ; unless the grand assize shall find, that the trusts vested in the trustees have been performed ; and if so, the said proceedings will not defeat the demandant in any respect. * 5. The devise in the will of Robert Richard Randall, of the J lands in question, is a valid devise, so as to divest the heir-at-law of his legal estate. All of which is accordingly hereby certified to the said circuit court. Webster, on a subsequent clay of the term, submitted to the court an application in behalf of the demandant, for a re-argument of this case ; he presented, as the ground of the application, a statement in writing made by the counsel in the case, Mr. Ogden and himself, representing “that the question in this cause, which arises on the construction of the will of Robert Richard Randall, is one, not only of great importance, but certainly of 118 1829] OF THE UNITED STATES. 191 Ex parte Watkins. no small difficulty. The case was argued at a time when there were six judges on the bench ; at the time of the decision, there were but five judges living who had heard the cause ; of these five, three were against the demandant, upon the construction of the will, being a minority of the whole court. Under these circumstances, as counsel for the demandant, in a foreign country, the counsel feel it their duty to ask for a re-argument; the more particularly, as it appears from an affidavit now submitted to the court, that a sister of the demandant, who is now and long has been a feme covert, in case of a decision, upon the construction of the will, in favor of the demandant, is not subject to the disability of alienism, and may, therefore, maintain a suit to recover the property in dispute. Wirt objected to the re-argument, alleging, that should it be allowed, it would establish a precedent, which would render every decision of the court uncertain ; and incumber the court with heavier duties than it could perform. It was without exainple, in the whole course of the court since its organization. ^Marshall, Ch. J., delivered the opinion of the court.—The court .... * * I 1Q9 have considered the application for a re-argument in this case. It L must be a very strong case, indeed, to induce them to order a re-argument in any of the causes which have been once argued and decided in this court. The present case has been very fully considered, and the court cannot perceive any ground, in the present application, to induce them to consent to the motion. It is, therefore, overruled. parte Tobias Watkins. [*193 Habeas corpus.—Criminal jurisdiction. A petition was presented by Tobias Watkins for a habeas corpus, for the purpose of inquiring into the legality of his confinement in the jail of the county of Washington, by virtue of a judgment of the circuit court of the United States of the .district of Columbia, rendered in a criminal prosecution instituted against him in that court; the petitioner alleged that the indictments under which he was convicted and sentenced to imprisonment, charged no offence for which he was punishable in that court, or of which that court could take cognisance; and, consequently, that the proceedings were coram non judice. The supreme court has no jurisdiction in criminal cases, which could reverse or affirm a-judgment rendered in the circuit court in such a case, where the record is brought up directly by writ of error, p. 201. The power of this court to award writs of habeas corpus is conferred expressly on this court, by the 14th section of the judiciary act, and has been repeatedly exercised; no doubt exists respecting the power. No law of the United States prescribes the case in which this great writ shall be issued, nor the power of the court over the party brought up by it; the term used in the constitution; is one which is well understood, and the judiciary act authorizes the court, and all the courts of the» United States, and the judges thereof, to issue the writ “ for the purpose of inquiring into the cause of commitment.” p. 201. / The nature and powers of the writ of habeas corpus, p. 202. A judgment, in its nature, concludes the subject on which it is rendered, and pronounces the law of the case; the judgment of a court of record, whose jurisdiction is final, is as conclusive on 119 1830] OF THE UNITED STATES. Ex parte Watkins. 194 and verdicts passed against him ; upon which judgments were pronounced, purporting to condemn him to the payment of certain pecuniary fines and costs, and certain terms of imprisonment, for the supposed offences therein. For the nature and terms of the indictments, and of the convictions and judgments thereon, the petition referred to the same. Copies and exemplifications of the records of the proceedings were annexed to the petition. The petition proceeded to state, that, immediately on the rendition of the judgments, and in the pretended pursuance and execution of the same, the petitioner was, on the 14th of August 1829, committed to the common jail of Washington county, in which he had since been confined, under color and pretence of the authority, force and effect of the said indictments ; that he was well advised by counsel, that the said convictions and judgments were illegal and wholly void, upon *their face, and gave no valid authority $$ or warrant whatever for his commitment and imprisonment; that the ' indictments did not, nor did any one of them, charge or import any offence at common law whatever, cognisable in the course of criminal judicature, and especially, no offence cognisable or punishable by the said circuit court; and that his imprisonment was wholly unjust, and without any lawful ground, warrant or authority whatever. The petitioner prayed the benefit of the writ of habeas corpus, to be directed to the marshal of the district of Columbia, in whose custody, as keeper of the jail of the district, the petitioner was, commanding him to bring the body of the petitioner before the court, with the cause of his commitment ; and especially, commanding him to return with the writ, the record of the proceedings upon the indictments, with the judgments thereupon ; and to certify whether the petitioner were not actually imprisoned by the supposed authority, and in virtue of the said judgments. The first indictment referred to in the petition, charged the petitioner, as fourth auditor of the treasury of the United States, and as such having assigned to him the keeping of the accounts of the receipts and expenditures of the public moneys of the United States in regard to the navy department, with having obtained for his private use, the sum of $750, the money of the United States, by means of a draft for that sum on the navy-agent of the United States, at New York, which draft was drawn by him, in the city of Washington, in favor of C. S. Fowler, on the navy-agent at New York, and negotiated in the city of Washington, on the 16th of January 1828 ; the said sum of money having been by him represented to the secretary of the navy as required by the navy-agent, for the uses of the United States, and so represented in a requisition made to the navy-agent for a warrant on the treasury of the United States for the amount of the draft, with other sums included in the requisition. The second indictment charged the petitioner with having received from the navy-agent of the United States, at New York, the sum of $300, money of the United *States, by means of fraudulent misrepresenta- L tions made to the navy-agent, contained in a letter addressed to him on the 8th of October 1827, in which it was falsely stated, that the said sum of $300 was required for the use bf the United States ; and that the same was so obtained from the navy-agent, by a draft on him, in favor of C. S. Fowler, by whom the money was paid to the petitioner, on his having negotiated the draft. 121 196 SUPREME COURT [Jan’y Ex parte Watkins. The third indictment charged the petitioner with having procured to be drawn from the treasury of the United States, the sum of $2000, by means of a requisition from the secretary of the navy ; a blank requisition left by that officer in his department having, on the representation of the petitioner, that the same was required for the public service by the navy-agent at Boston, been filled up for this purpose ; and for which he drew and negotiated drafts, in the city of Washington, at different times, in favor of C. S. Fowler, in different sums, amounting to $2000, and appropriated the same to his own use. Jones and Coxe moved for a rule on the United States, to show cause why a habeas corpus should not issue, and proposed that the argument should take place, on the motion, upon all the points involved in the case. Berrien., Attorney-General, objected to an argument on the motion. He stated, that he was prepared to go into the argument, on the return of the rule, but was not willing to do so on the motion. The counsel for the petitioner observed, that in Kearney's Case, 7 Wheat. 38, the argument took place on the motion ; and as, in this case, the petition brought up the indictments and the judgments of the circuit court, the whole matter was now fully before the court. Marshall, Ch. J., said, that the counsel for the petitioner and the attorney-general might arrange among themselves as they thought proper, when the argument should come on, either on the motion or the return. This not having been done, the rule was awarded, returnable on the following motion-day. *1971 th® re^urn ^e rule> Coxe and Jones, for the petitioner, con-J tended, that no offence was charged in the indictments, which was within the jurisdiction of the circuit court for the county of Washington, and therefore, all the proceedings of that court were nullities and void. 1. All proceedings of a court, beyond its jurisdiction, are void. Wise v. Withers, 3 Cranch 331, Bose v. Himely, 4 Ibid, 241, 268, 552 ; Doe n. Harden, 1 Paine 55, 58, 59. 2. In a case where a court acting beyond its jurisdiction has committed a party to prison, a habeas corpus is the proper remedy, and affords the means of trying the question. 3 Cranch 448 ; Bollman v. Swartwout, 4 Ibid. 75 ; Kearney’s Case, ’I Wheat. 38. 3. The writ does not issue of course, but the party must show that he is imprisoned by a court having no jurisdiction. 1 Chit. Crim. Law 124—5 ; 7 Wheat. 38. A habeas corpus is a proper remedy for revising the proceedings of a court in a criminal case. 1 Chitty’s Crim. Law 180. It was argued for the petitioner, that it had been decided in many cases, that a writ of habeas corpus may issue, so as to make its action equivalent to that of a writ of error. 1 Chit. Crim. Law 180. The circuit court is a court of general criminal jurisdiction, in cases within the local law, and within the law of Maryland. What is the effect of the clause of the act of congress establishing this court ? It is to give it cognisance of “all offences;” but this does not mean that extraordinary powers are given to make new offences, and to punish all acts deemed offences. Offences are the violations of known and established local laws. The statute means offences against the laws of the United States in their sovereignty, 122 1830] OF THE UNITED STATES. 198 Ex parte Watkins. and against the local laws of the district. For the purposes of this inquiry, it is immaterial, whether the circuit court is or is not of limited jurisdiction. However extended its jurisdiction may be, it has defined limits, and these restrain it. Suppose, the court should entertain jurisdiction of cases , *certainly not criminal, would not a decision in such a case be a ' nullity? As if, on the face of an indictment, an act which is of a civil nature should be made criminal. The court is limited to offences committed within its jurisdiction. Should it take cognisance of an act done in England, would not this court interfere ? It is admitted, that the judgment of a court of competent jurisdiction is conclusive, when the case is one properly submitted to the operation of that jurisdiction. But it is not sufficient to say, that its jurisdiction is general; it should also appear, it had jurisdiction of the offence charged. Himely v. Hose, 5 Cranch 313; Griffith v. Frazier, 8 Ibid. 9. It is asked, whether this court will look into Any criminal case which has passed undei’ the judgment of the circuit court. Suppose, a sentence imposed, not authorized by law; would not this court interfere by its writ of habeas corpus? It is not contended, that every excess of jurisdiction is within the principle claimed. There is a difference between a rule which is reasonable, and that which goes into extravagance. It may not be defined, but it can be felt; and this is a case where this rule can apply. The position that the decision of an inferior court of the United States, in a criminal case, cannot be inquired into, unless there is an appellate jurisdiction in such cases, goes too far; and runs into the argumentum in absurdum. In all the cases which have come before this court, in which a writ a habeas corpus has been applied for, the decision has been in favor of the jurisdiction. There has been enough shown here in this preliminary question, to authorize the writ, as the only inquiry is, whether the judgment of the circuit court is conclusive upon all matters before the court. The counsel for the petitioner proceeded to argue at large, upon authorities, that the offences charged in the indictments were not cognisable in the circuit court. As this point was not noticed in the opinion of the court, the argument is omitted. They cited 7 Cranch 32 ; 1 Wheat. 415 ; 1 Gallis. *488; 2 East 814; 2 Maule &Selw. 378; 4 Wheat. 405, 424,430, 410, 416, 427; 1 Cranch 164. I- 199 The Attorney General denied, that it was competent for this court to revise the proceedings of the circuit court in a criminal case, or to award a habeas corpus to bring into revision such proceedings. No such case was to be found, since the organization of the court; and as writs of error and appeals are expressly limited to cases which are not criminal, the issuing of such a writ, and for such a purpose, would be contrary to law. He contended, that the case of Hollman and Swartwout was not an authority for the claim of the petitioner. That was a case of bail, and not a case in which the judgment of a court had passed. In Kearney's Case, the writ of habeas corpus was refused; the petitioner being in confinement for contempt, which was considered equivalent to a sentence of the court. It is now to be decided, in the case before the court, whether they will, through the means of a habeas corpus, revise the sentence of an inferior court, in a criminal case, so as to determine whether it had jurisdiction of 123 199 SUPREME COURT [Jan’y Ex parte Watkins. the offence charged in an indictment found in that court. The petition asserts : 1. That no offence is charged in the indictment, cognisable by the law of Maryland. 2. That no offence is charged which is cognisable by the laws of the United States. As to the first, if it is competent to this court to examine the point, the whole case of the petitioner is open, as the circuit court is said to have erred in deciding that the offence was cognisable by it. The circuit court of the district of Columbia has jurisdiction, such as is possessed by all other circuit courts of the United States; and it has also general jurisdiction of offences committed in the district. In the legitimate exercise of this jurisdiction to decide what is an offence, it is said to have exceeded its jurisdiction.. By what authority can this decision of a court of general final criminal jurisdiction be re-examined here ? The court below has decided, that the facts * of the case amount to a fraud on the *government, committed by -• false pretences. It may be, they have erred in their judgment; but the error cannot be revised here. They have jurisdiction to decide that the offence was committed in the district, and they have so decided. The power of the court is, 1. : To try the offender. 2. To determine what the offence is. 3. To punish after conviction. These are exclusive and final powers. There is no power or authority in this court to re-examine a decision of a circuit court, as to its jurisdiction in a criminal case. The proposition that the decisions of a court, in a case beyond its jurisdiction, are void, although true in the abstract, is practically false. Such decisions must stand, unless there is power in another court to reverse them. The truth of this is maintained in civil as well as criminal cases. It must appear, that there is jurisdiction in a superior court to award a writ of error, or a habeas corpus, which may bring up the question; not alone that the judgment of the court was erroneous. If this court possesses such powers, it must be derived from one of three sources : 1. From the act of congress appropriating and regulating the powers of this court. No powers are given by the act, to revise the proceedings of the circuit court in criminal cases. 2. From the powers of this court, as the supreme court, to exercise supervision over all inferior courts. In the case of Bollman and Swartwout, the court have said they have no such powers. 3. Can those powers be derived from the power to issue writs of habeas corpus, and by this to revise the judgments of inferior judicatures exercising criminal jurisdiction ? Congress have carefully guarded against this : they have given appellate powers in civil, admiralty and maritime cases, and have refused them in criminal cases. It cannot be supposed, that when thus refused, they can be exerted under the writ of habeas corpus, which this court is authorized to issue. There are many cases for the employment of this writ, without claiming for it the rights asserted to belong to it by the counsel for the petitioner. *Marshall, Ch. J., delivered the opinion of the court.—This is a ' petition for a writ of habeas corpus to bring the body of Tobias Watkins before this court, for the purpose of inquiring into the legality of his confinement in jail. The petition states that he is detained in prison, by virtue of a judgment of the circuit court of the United States, for the county of 124 1830] OF THE UNITED STATES. 201 Ex parte Watkins. Washington, in the district of Columbia, rendered in a criminal prosecution carried on against him in that court. A copy of the indictment and judgment is annexed to the petition, and the motion is founded on the allegation, that the indictment charges no offence for which the prisoner was punishable in that court, or of which that court could take cognisance ; and consequently, that the proceedings are coram non judice, and totally void. This application is made to a court which has no jurisdiction in criminal cases (3 Crunch 169) ; which could not revise this judgment; could not reverse or affirm it, were the record brought up directly by writ of error. The power, however, to award writs of habeas corpus is conferred expressly on this court by the 14th section of the judiciary act, and has been repeatedly exercised. No doubt exists respecting the power ; the question is, whether this be a case in which it ought to be exercised. The cause of imprisonment is shown as fully by the petitioner, as it could appear on the return of the writ; consequently, the writ ought not to be awarded, if the court is satisfied that the prisoner would be remanded to prison. No law of the United States prescribes the cases in which this great writ shall be issued, nor the power of the court over the party brought up by it. The term is used in the constitution, as one which was well understood ; and the judiciary act authorizes this court, and all the courts of the United States, and the judges thereof, to issue the writ “ for the purpose of inquiring into the cause of commitment.” This general reference to a power which we are required to exercise, without any precise definition of that power, imposes on us the necessity of making some inquiries into its use, *according to that law which is in a considerable degree incorporated * into our own. L The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is, the liberation of those who may be imprisoned without sufficient cause. It is in the nature of a writ of error, to examine the legality of the commitment. The English judges, being originally under the influence of the crown, neglected to issue this writ, where the government entertained suspicions which could not be sustained by evidence; and the writ, when issued, was sometimes disregarded or evaded, and great individual oppression was suffered, in consequence of delays in bringing prisoners to trial. To remedy this evil, the celebrated habeas corpus act of the 31 Car. II. was enacted, for the purpose of securing the benefits for which the writ was given. This statute may be referred to, as describing the cases in which relief is, in England, afforded by this writ to a person detained in custody. It enforces the common law. This statute excepts from those who are entitled to its benefit, persons committed for felony or treason, plainly expressed in the warrant, as well as persons convicted or in execution. The exception of persons convicted applies particularly to the application now under consideration. The petitioner is detained in prison by virtue of the judgment of a court, which court possesses general and final jurisdiction in criminal cases. Can this judgment be re-examined upon a writ of habeas corpus ? This writ is, as has been said, in the nature of a writ of error, which brings up the body of the prisoner, with the cause of commitment. The court can undoubtedly inquire into the sufficiency of that cause ; but if it be the judgment of a court of competent jurisdiction, especially, a judgment 125 202 SUPREME COURT [Jan’y Ex parte Watkins. withdrawn by law from the revision of this court, is not that judgment in itself sufficient cause ? Can the court, upon this writ, look beyond the judgment, and re-examine the charges on which it was rendered? A judgment, in its nature, concludes the subject on which it is rendered, and pronounces the law of the case. The judgment of a court of record, whose jurisdiction * _ is final, is as conclusive on all *the world as the judgment of this court -I would be. It is as conclusive on this court, as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it. The counsel for the prisoner admit the application of these principles to a case in which the indictment alleges a crime cognisable in the court by which the judgment was pronounced ; but they deny their application to a case in which the indictment charges an offence not punishable criminally, according to the law of the land. But with what propriety can this court look into the indictment? We have no power to examine the proceedings, on a writ of error, and it would be strange, if, under color of a writ to liberate an individual from unlawful imprisonment, we could substantially reverse a judgment which the law has placed beyond our control. An imprisonment under a judgment cannot be unlawful, unless that judgment be an absolute nullity; and it is not a nullity, if the court has general jurisdiction of the subject, although it should be erroneous. The circuit court for the district of Columbia is a court of record, having general jurisdiction ovei’ criminal cases. An offence cognisable in any court, is cognisable in that court. If the offence be punishable by law, that court is competent to inflict the punishment. The judgment of such a tribunal has all the obligation which the judgment of any tribunal can have. To determine whether the offence charged in the indictment be legally punishable or not, is among the most unquestionable of its powers and duties. The decision of this question is the exercise of jurisdiction, whether the judgment be for or against the prisoner. The judgment is equally binding in the one case and in the other; and must remain in full force, unless reversed regularly by a superior court, capable of reversing it. If this judgment be obligatory, no court can look behind it. If it be a nullity, the officer who obeys it is guilty of false imprisonment. Would the counsel for the prisoner attempt to maintain this position ? Questions which we think analogous to this have been frequently decided in this court. Kemp's Lessee n. Kennedy, 5 Cranch 173, was a writ of error * , to a judgment in *ejectment, rendered against her in the circuit court J of the United States for the district of New Jersey. An inquisition taken under the confiscating acts of New Jersey, had been found against her, on which a judgment of condemnation had been rendered by the inferior court of common pleas for the county of Hunterdon. The land had been sold under £his judgment of condemnation, and this ejectment was brought against the purchaser. The title of the plaintiff being resisted under those proceedings, his counsel prayed the court to instruct the jury, that they ought to find a verdict for him. The court refused the prayer, and did instruct the jury to find for the defendants. An exception was taken to this direction, and the cause brought before this court by writ of error. On the argument, the counsel for the plaintiff made two points. 1. That the proceedings were erroneous. 2. That the judgment was an absolute nullity. He contended, that the individual against whom the inquest was found, was not 126 1830] OF THE UNITED STATES. 204 Ex parte Watkins. comprehended within the confiscating acts of New Jersey ; consequently, the justice who took the inquisition had no jurisdiction as regarded her. He contended also, that the inquisition was entirely insufficient, to show that Grace Kemp, whose land had been condemned, was an offender under those acts. He then insisted, that the tribunal erected to execute these laws, was an inferior tribunal, proceeding by force of particular statutes, out of the course of the common law ; it was a jurisdiction limited by the statute, both as to the nature of the offence, and the description of persons over whom it should have cognisance. Everything ought to have been stated in the proceedings, which was necessary to give the court jurisdiction, and to justify the judgment of forfeiture. If the jurisdiction does not appear upon the face of the proceedings, the presumption of law is, that the court had not jurisdiction, and the cause was coram non judice; in which case, no valid judgment could be rendered. The court said, that however clear it might be, in favor of the plaintiff, on the first point, it would avail him nothing, unless he succeeded on the second. The court admitted the law respecting the proceedings *of inferior courts, in the sense in which that term was used in the English books ; and asked, “ was the court in which L ° this judgment was rendered, an inferior court, in that sense of the term?” ‘‘All courts from which an appeal lies, are inferior courts in relation to the appellate courts, before which their judgment may be carried ; but they are not, therefore, inferior courts, in the technical sense of those words. They apply to courts of special and limited jurisdiction, which are erected on such principles, that their judgments, taken alone, are entirely disregarded, and the proceedings must show their jurisdiction. The courts of the. United States are all of limited jurisdiction, and their proceedings are erroneous, if the jurisdiction be not shown upon them. Judgments rendered in such cases may certainly be reversed ; but this court is not prepared to say, that they are absolute nullities, which may be totally disregarded.” The court then proceeded to review the powers of the courts of common pleas of New Jersey. They were courts of record, possessing general jurisdiction in civil cases, with the exception of suits for real property. In treason, their jurisdiction was over all who could commit the offence. After reviewing the several acts of confiscation, the court said, that they could not be fairly construed to convert the courts of common pleas into courts of limited jurisdiction. They remained the only courts capable of trying the offences described by the laws. In the particular case of Grace Kemp, the court said, that “ the court of common pleas was constituted according to law ; and if an offence had been, in fact, committed, the accused was amenable to its jurisdiction, so far as respected her property in the state of New Jersey. The question whether this offence was, or was not, committed, that is, whether the inquest, which is substituted for a verdict on an indictment, did, or did not, show that the offence had been committed, was a question W’hich the court was competent to decide. The judgment it gave was erroneous ; but it is a judgment, and, until reversed, cannot be disregarded.” *This case has been cited at some length, because it is thought to be r#9np decisive of that now under consideration. *- Had any offence against the laws of the United States been, in fact, committed, the circuit court for the district of Columbia could take cognisance of it. The question whether any offence was, or was not, committed, that 127 206 SUPREME COURT [Jan’y Ex parte Watkins. is, whether the indictment did, or did not, show that an offence had been committed, was a question which that court was competent to decide. If its judgment was erroneous, a point which this court does not determine, still it is a judgment, and, until reversed, cannot be disregarded. In Skitter ri s Executors v. May's Executors, 6 Cranch 267, a decree pronounced by the circuit court for the district of Kentucky had been reversed, and the cause was remanded to that court, that an equal partition of the land in controversy might be made between the parties. When the cause again came on, before the court below, it was discovered, that it was not within the jurisdiction of the court; whereupon, the judges were divided in opinion, whether they ought to execute the mandate, and their division was certified to this court. The court certified, that the circuit court was bound to execute its mandate, “ although the jurisdiction of the court be not alleged in the pleadings.” The decree having been pronounced, although in a case in which it was erroneous, for want of the averment of jurisdiction, was, nevertheless, obligatory as a decree. The case of Williams et al. v. Armroyd et al., 'I Cranch 423, was an appeal from a sentence of the circuit court for the district of Pennsylvania, dismissing a libel which had been filed for certain goods which had been captured and condemned under the Milan decree. They were sold by order of the governor of the island into which the prize had been carried, and the present possessor claimed under the purchaser. It was contended, that the Milan decree was in violation of the law of nations, and that a condemnation, professedly under that decree, could not change the right of property. This court affirmed the sentence of the circuit court, restoring the property to the * on>7i claimant, and said, “ that * the sentence is avowedly made under a -I decree subversive of the law of nations, will not help the appellant’s case, in a court which cannot revise, correct or even examine that sentence. If an erroneous judgement binds the property on which it acts, it will not bind that property the less, because its error is apparent. Of that error, advantage can be taken only in a court which is capable of correcting it.” The court felt the less difficulty in declaring the edict under which the condemnation had been made, to be “ a direct and flagrant violation of national law,” because the declaration had already been made by the legislature of the Union. But the sentence of a court under it, was submitted to, as being of complete obligation. The cases are numerous, which decide, that the judgments of a court of record, having general jurisdiction of the subject, although erroneous, are binding, until reversed. It is universally understood, that the judgments of the courts of the United States, although their jurisdiction be not shown in the pleadings, are yet binding on all the world ; and that this apparent want of jurisdiction can avail the party only on a writ of error. This acknowledged principle seems to us, to settle the question now before the court. The judgment of the circuit court, in a criminal case, is, of itself, evidence of its own legality, and requires for its support, no inspection of the indictment on which it is founded. The law trusts that court with the whole subject, and has not confided to this court the power of revising its decisions. We cannot usurp that power, by the instrumentality of the writ of habeas corpus. The judgment informs us, that the commitment is legal, and with that information, it is our duty to be satisfied. 128 1830] OF THE UNITED STATES. 207 Ex parte Watkins. The counsel for the petitioner contend, that writs of habeas corpus have been awarded, and prisoners liberated, in cases similar to this. In the United States v. Hamilton, 3 Dall. 17, the prisoner was committed upon the warrant of the district judge of Pennsylvania, charging him with high treason. He was, after much deliberation, admitted to bail. This was a proceeding contemplated by the 33d section of the judiciary act, which declares, that in cases where the punishment *may be death, bail shall not be r admitted, but by the supreme or circuit court, or by a justice of the L supreme court, or a judge of the district court. In the case Ex parte Burford, 3 Cranch 447, the prisoner was committed, originally, by the warrant of several justices of the peace for the county of Alexandria. He was brought by a writ of habeas corpus before the circuit court, by which court he was remanded to jail, there to remain until he should enter into recognisance for his good behavior for one year. He was again brought before the supreme court, on a writ of habeas corpus. The judges were unanimously of opinion, that the warrant of commitment was illegal, for want of stating some good cause certain, supported by oath. The court added, that “ if the circuit court had proceeded de novo, perhaps, it might have made a difference ; but this court is of opinion, that that court has gone only on the proceedings before the justices. It has gone so far as to correct two of the errors committed, but the rest remain.” The prisoner was discharged. In the case of Bollman and Swartwout, the prisoners were committed by order of the circuit court, on the charge of treason. The habeas corpus was awarded in this case, on the same principle on which it was awarded in the case of 3 Dall. 17. The prisoners were discharged, because the’ charge of treason did not appear to have been committed. In no one of these cases was the prisoner confined under the judgment of a court. The case Ex parte. Kearney, 7 Wheat. 39, was a commitment by order of the circuit court for the district of Columbia, for a contempt. The prisoner was remanded to prison. The court, after noticing its want of power to revise the judgment of the circuit court, in any case where a party had been convicted of a public offence, asked, “ if then this court cannot directly revise a judgment of the circuit court, in a criminal case, what reason is there to suppose, that it was intended to vest it with the authority to do it indirectly?” The case Ex parte Kearney bears a near resemblance to that under consideration. The counsel for the prisoner rely mainly on the case *of Wise v. Withers, 3 Cranch 330. This was an action of trespass vi et ar mis, L for entering the plaintiff’s house and taking away his goods. The defendant justified as collector of the militia fines. The plaintiff replied, that he was not subject to militia duty, and on demurrer, this replication was held ill. This court reversed the judgment of the circuit court, because a court-martial had no jurisdiction over a person not belonging to the militia, and its sentence in such a case being coram non Judice, furnishes no protection to the officer who executes it. This decision proves only that a court-martial was considered as one of those inferior courts of limited jurisdiction, whose judgments may be questioned collaterally. They are not placed on the same high ground with the judgments of a court of record. The declaration, that this judgment against a person to whom the jurisdiction of the court could not extend, is a nullity; is no authority for inquiring into the judgments of a court of general criminal jurisdiction, and regarding them as 3 Pet.—9 129 209 SUPREME COURT [Jan’y Boyce v. Grundy. nullities, if, in our opinion, the court has misconstrued the law, and has pronounced an offence to he punishable criminally, which, as we may think, is not so. Without looking into the indictments under which the prosecution against the petitioner was conducted, we are unanimously of opinion, that the judgment of a court of general criminal jurisdiction justifies his imprisonment, and that the writ of habeas corpus ought not to be awarded. On consideration of the rule granted in this case, on a prior day of this term, to wit, on Tuesday the 26th of January, of the present term of this court, and of the arguments thereupon had; it is considered, ordered and adjudged by this court, that the said rule be and the same is hereby discharged, and that the prayer of the petitioner for a writ of habeas corpus be and the same is hereby refused. *210] * James Boyce’s Executors, Appellants, v. Felix Grundy, Appellee. Equity jurisdiction.—Rescission of contracts. The courts of the United States have equity jurisdiction to rescind a contract, on the ground of fraud, after one of the parties to it has been proceeded against, on the law side of the court, and a judgment has been obtained against him, for a part of the money stipulated to be paid by the contract. This court has been often called upon to consider the 16th section of the judiciary act of 1789, and as often, either expressly, or by the course of its decisions, has held, that it is merely declaratory, making no alteration whatever in the rules of equity on the subject of legal remedy. It is not enough, that there is a remedy at law; it must be plain and adequate, or in other words, as practical and as efficient to the ends of justice and its prompt administration, as the remedy in equity.1 p. 215. It cannot be doubted, that reducing an agreement to writing is, in most cases, an argument against fraud; but is is very far from a conclusive argument; the doctrine will not be contended for, that a written agreement cannot be relieved against, on the ground of false suggestions. p. 219. It is not an answer to an application to a court of chancery for relief in rescinding a contract, to say, that the fraud alleged is partial, and might be the subject of compensation by a jury; the law, which abhors fraud, does not permit it to purchase indulgence, dispensation or absolution, p. 220. 1 Wylie v. Cox, 15 How. 415 ; Garrison v. Memphis Ins. Co., 19 Id. 312; Brown v. Pacific Mail Steamship Co., 5 Bl. C. C. 525; Crane v. McCoy, 1 Bond 423. In determining whether there be a plain, adequate and complete remedy at law, recourse is to be had to the principles of English equity, not to the laws of the state in which the court sits. Robinson v. Campbell, 3 Wheat. 212; Barber v. Barber, 21 How. 583 ; Gordon v. Hobart, 2 Sumn. 401; Noyes v. Willard, 1 Woods 187. And equity will entertain jurisdiction, notwithstanding there be no adequate remedy at law, if the peculiar machinery of a court of equity, as a discovery, or an injunction, be necessary to do complete justice between the parties. Gass v. Stinson, 2 Sumn. 454; Pierpont v. Fowle, 2 W. & M. 23; Sullivan v. Portland & Kennebec Railroad 130 Co., 94 U. S. 8H. So also, if the questions of fraud, trust and partnership are involved. Taylor v. Rasch, 5 Bank. Reg. 399. And see Oelrichs v. Spain, 15 Wall. 228. It is on the ground that equity will not entertain jurisdiction, where there is an adequate remedy at law, that a mere ejectment bill cannot be sustained. Lewis v. Cocks, 23 Wall. 466; Messimer’s Appeal, 92 Penn. St. 168, Long’s Appeal, Id. 171; Barclay’s Appeal, 93 Id. 50. Such objection goes to the jurisdiction of the court, and may be enforced by the judges sua sporte. Hipp v. Babin, 19 How. 278; Parker v. Winnipiseogee Lake Cotton and Woollen Co., 2 Black 545; Wright v. Ellison, 1 Wall. 22; Oelrichs v. Spain, 15 Id. 227-8; Lewis v. Cocks, 23 Id. 466. ISSO] OF THE UNITED STATES. 210 Boyce v. Grundy. Appeal from the Circuit Court of West Tennessee. A bill in chancery was filed in that court, by the appellee, Felix Grundy, against the appellants, the executors of James Boyce, to enjoin a judgment at law which they had obtained against him, for $4700, and to rescind a contract made between James Boyce and himself, on the 3d of July 1818, by which Boyce sold and agreed to convey to the complainant, Grundy, 950 acres or arpens of land, on the Homochito river, in the state of Mississippi, and for which Grundy agreed to pay him $20,000 ; two thousand of which were to be paid in hand, and the balance in yearly instalments of $2000. A deed of general warranty was, by the written agreement of the partners, to be made to the purchaser, in four years. Grundy having failed to pay the amount of the *instal-ments due January 1820 and 1821, Boyce’s executors commenced suit •-upon the contract, for the first two instalments, in the circuit court for the district of West Tennessee, and recovered judgment for the same, with interest. On the 30th of August 1823, Grundy filed his bill, praying an injunction against the judgment at law, and a rescission of the contract. The grounds of equity stated in the bill and relied on, were, the fraudulent and false representations of Boyce, in making the sale of the land. 1. In regard to an island in the river, part of the land purchased, containing 265 acres, not being subject to inundation, except a very small part, easily prevented ; and of the quality of the land on said island. 2. In showing and selling a body of good and level land, as part of the tract, which was not included within its limits, and representing that a quantity of bad and hilly ground was not within the tract, which was included. 3. In representing that he had a good title to the land ; having no title, and not being able to make a good right. The answer of the defendants in the circuit court denied the allegations charging fraud and misrepresentation by James Boyce, and averred Grundy’s information as to the true state of the title, the quantity and quality of the lands ; and alleged, that they have been prevented from obtaining the legal title, by the failure of Grundy to pay the instilments due upon the contract, and which were necessary to enable them to obtain a conveyance. Depositions were taken on the part of the complainant and the defendants ; which, with other testimony, were exhibited in the circuit court, on the hearing of the cause. The testimony exhibited on the part of the complainant in that court, fully established the allegations in the bill, to the satisfaction of the court. The whole evidence is referred to, and the facts of the case are sufficiently stated in the opinion of this court. The circuit court perpetuated the injunction, and rescinded the contract between Boyce and Grundy ; and decreed, that *the money paid by the complainant p. . to Boyce should be refunded, with interest. The defendant appealed L to this court. Ogden and Wickliffe, for the appellants, contended : 1. That the charge of fraud and misrepresentation, as set forth in the bill, in reference to the title, quantity, boundary and overflowing of the land, is not sustained by proof. 2. That the court below erred, in decreeing a rescission of the contract, upon the grounds assumed in the decree. That the court erred in refusing to continue the cause, for the reason stated in the exceptions filed by the 131 212 SUPREME COURT [Jan’y Boyce v. Grundy. defendants. The court erred in admitting, as evidence in this cause, the papers and parts of depositions referred to in the several bills of exception. 3. The testimony in this cause, the matters of fact involved, were of a character which imperatively called upon the chancellor to direct an issue at law, to try the controverted facts. 4. The court should have referred the ’ cause to a commissioner, with directions to report upon the title. 5. The decree should have been interlocutory, and not final. Time should have been given defendants to make the title and tender it, upon the payment or tendei* of the purchase-money. The counsel for the appellants, after full argument on the facts, as to the law of the case, said, that the bill filed in the circuit court was to rescind a contract on the ground of fraud. In all cases of fraud, courts of equity, in England, and chancery courts, in the United States, have concurrent jurisdiction with courts of law. Madd. Ch. 258 ; 6 Johns. 110. It is a well-settled principle of law, that fraudulent representations will vitiate any contract. 1 Cornyn on Cont. 38. In case a contract is obtained by such representations, it will be vitiated and destroyed in its binding force. If money has been paid under such misrepresentations, it may be recovered back. If a suit be brought at law upon the contract, the fraudulent repre-* sentations may *be set up, as an effectual defence at law. If the ven-J dee take possession of the property, he may abandon it and consider the contract as not binding on him. Thus, there is at law an adequate and a competent remedy, and full relief can be obtained at law from thë effects of such a contract. Has, then, a court of the United States jurisdiction in the case? By the judiciary act, the equity powers given to the courts of the United States are not to be exercised, when there is a full and adequate relief at law. 2. Fraud cannot be alleged, in most cases where the agreement has been reduced to writing. It is an argument of great force against fraud (Sugd. on Vend. 129), upon the principle, that all the allegations and representations of the parties will be presumed to have been embodied in the writing. 4 Taunt. 785. 3. They also contended, that after a judgment has been obtained, in a suit in which the alleged fraud might have been set up as a defence, no injunction will lie. 3 Merivale 225-6 ; Chit, on Cont. 113 ; also, Sugd. on Vend. 129. To show that the case was not one for a court of equity, were cited, Hepburn v. Dunlop, 1 Wheat. 179 ; 5 Cranch 502 ; Morgan v. Morgan, 2 Wheat. 290 ; Dunlap v. Dunlap, 12 Ibid. 576 ; 10 Ves. 144 ; 3 Bro. C. C. 73 ; 16 Ves. 83 ; 9 Ibid. 21 ; 1 Bro. C. C. 546 ; 1 Ves. & B. 355-6 ; 1 Barn. & Cres. 623 ; 5 Dow. & Ry. 490. Isaacks and White, for the appellee, contended, that the evidence on the record fully established the allegations of fraud in the bill, and that the decree of the circuit court was in harmony with the weight of that evidence. A fraud had been committed both as to the quality, the quantity, the situation and the title of the land. They argued, that the ca&e was one which came fully within the jurisdiction of a court of chancery. The construction of the act of congress, which -would limit the chancery powers of the courts of the United States 1830] OF THE UNITED STATES. 213 Boyce v. Grundy. to cases only in which there is no concurrent legal remedy, is contrary to that *which it has constantly received since the organization of the [-*914. court under that law. The case made out in the complainant’s bill L is one peculiarly within the jurisdiction of a court of equity ; and the relief which such a court can afford is the only adequate means to protect the complainant from gross injustice and fraud ; to restore him to the situation in which he was before the contract was made. Without this remedy, he would be exposed to a multitude of suits, and subjected to heavy expenses, for which he could not be reimbursed. Fraud and trusts are peculiarly within the command of the chancery courts. In support of these principles, the counsel for the appellee cited 1 Madd. Ch. 262 ; 3 Cranch 280 ; 9 Ves. 21 ; 1 Jac. & Walk. 19 ; 5 Johns. Ch. 174 ; 2 Cow. 129 ; 2 Johns. Ch. 596; 6 Munf. 283 ; 4 Price 131. Johnson, Justice, delivered the opinion of the court.—This is an appeal from the decree of the circuit court of West Tennessee, rendered in a case in which the appellee was complainant. The bill was filed to obtain the rescission of an agreement entered into on the 3d of July 1818, between James Boyce, the appellant’s testator and devisor, and the complainants, for the sale of a tract of land lying on the Homochito river, in the state of Mississippi. The grounds set forth in the bill are fraudulent misrepresenta-tions : 1. As to the testator’s title to the land. 2. As to the locality of the land. 3. As to the liability of the land to inundation. 4. As to the general description of the character and quality of part of the land, not examined by complainant. We have weighed the allegations of fraud, contained in the bill, and are well satisfied, that they are material, and such as entitle the complainant to relief, if substantiated. We have also considered the evidence introduced 215 SUPREME COURT [Jan’y Boyce v. Grundy. defence of fraud might have been resorted to, and ought to have been sustained, in that particular suit, and I will add, would have greatly aided the complainant in a bill to rescind, yet it was obviously not an adequate remedy, because it was a partial one. The complainant would still have been left to renew the contest upon a series of suits ; and that probably after the death of witnesses. That he was bound to be prompt in communicating the fraud, when discovered, and consistent in his notice to the opposite party of the use he proposed to make of the discovery, cannot be questioned. But we cannot *2161 concede the *appellants’ counsel, that the complainant was charge- -• able with delay or inconsistency in the particulars. In his bill, he alleges, that the fraud did not come to his knowledge, until 1821, and that he forthwith gave notice to James Boyce, that he might resume possession of the premises, and receive the rents and profits, for that he would not comply with the contract; which notice is repeated to the appellants, after Boyce’s death. It has been argued, that the testimony establishes an earlier notice, and even a contemporaneous notice of the facts which the complainant alleges were concealed or misrepresented. The misrepresentations relied upon are of two classes : those which relate to the land, and those which relate to the title. As to the title, the case furnishes no ground for imputing to the complainant contemporaneous notice of the invalid state it was in. The evidence of the fact of representation on this subject, rests chiefly on the deed, and the letters from Port Gibson. From these, it clearly appears, that so far as relates to the 200 acres purchased from Ellis, the complainant could not, even at the time of sale, have been put on inquiries respecting the title. For the deed expressly imports, that the whole land sold was comprised within the grant to Davis. With regard to the land actually comprised Within the grant to Davis, if the agreement to make a present sale of land, for which there was to be made present and successive payments to a large amount, within four years, does not imply a present title or a present power to sell, it certainly amounts to a representation, that at the end of four years, the seller would be able to make a clear title. But since, upon the discovery made at Port Gibson, the notice given by the complainant was not of an intention to rescind, but of a claim for a deduction pro rata, and since time is expressly given to the extent of four years to make title to the whole tract; we will not aflirm, that, in the absence of any proof of positive loss from want of title, in the interval, if the party had been able to make title, when the bill was filed, and had s0 answered, and duly set out the title *to be tendered, it would J have been a case for relief. But the defendants, in their answer, go into an exposition of the only title they can offer, and that is so involved and imperfect, that a court of equity would not even refer it. If, then, the appellants were now before this court, under a bill for a specific performance, it is clear, that they must be turned out of court, being incompetent on their part to fulfil the contract. The rules of law relating to specific performance, and those applied to the rescission of contracts, although not identically the same, have a near affinity to each other. Again, if the object of the complainant’s bill had been confined to obtaining an injunction, until he could receive from defendant a good title to the 134 1830] OF THE UNITED STATES. 217 Boyce v. Grundy. land ; can it be doubted, that where the cause of action at law is a covenant in the same deed, which stipulates for such a title, that he would be enjoined, until he made a title ? And if so, how long is this state of suspense to be tolerated? The title was to be made in four years ; this certainly amounts to a representation, that he would be able to make title at that time ; but twelve years have now elapsed, and still it is not pretended, that a clear legal estate has been acquired. In excuse for this, it is urged, that the complainant committed the first fault; that had he been punctual in his payments, Boyce would have been able to procure to be executed to himself, a title that would have enabled him to comply with his agreement. But the state of his title is before us, and a mere tender of money was not sufficient to give him a legal estate. He must still have passed through the delays and casualties incident to a suit in equity, before he could have acquired such an estate as would have satisfied the just claims of the complainant. The case, however, furnishes a more conclusive answer to this argument. The 200 acres not included in Davis’s grant, valued at the average which complainant would have paid for all the good land actually contained within his purchase, would have satisfied every payment that fell due within the four years. This deduction, he informed Boyce, he would insist upon, and there is no evidence in the cause, to make it clear, that Boyce did not acquiesce in this agreement. *It is argued, that of the defects in Boyce’s title, the court could not be informed ; that the complainant did not ask for a specific per- L 218 formance, and the defendants were not, therefore, called upon to set out their title. But by referring to the bill, it will be seen, that they are expressly called upon to set out their title, and in their answer, undertake to do so, and in the effort, exhibit a title, which he cannot deny is defective, but instead of setting out a title free from defects, content themselves with showing that the defects are not incurable. With regard to the misrepresentations relating to the land, the only evidence by which it is attempted to fasten on the complainant a want of promptness and consistency in availing himself of the discovery, when made, is that by which a knowledge at the time of the contract is supposed to be established. Of the witnesses from whom this evidence has been obtained, it is enough to say, that with the exception of Mr. Poindexter, it is impossible to avoid putting their testimony out of the case. And Mr. Poindexter’s testimony, even without his subsequent examination, may, without any forced construction, be reconciled with that of the witnesses who testify to the representations made by Boyce at the time of the sale. It relates exclusively to the subject of inundation, and when the complainant spoke to this witness of the island’s overflowing, he accompanied it with the assertion that the overflowing could be prevented by a levee, at a small expense. This may well be confined to the representations received from Boyce, and does not necessarily imply a knowledge of its being subject to general inundation. Nor was the information received from Mr. Poindexter on this subject, of such a full and decided character, as to amount to a communication of knowledge. It is said, that it ought to have put him on inquiry; but he was in possession of Mr. Boyce’s positive assurances to the contrary, and had a right to rely upon that assurance, without injury. The bill alleges the time of coming to his knowledge to have been that of the communication 135 218 SUPREME COURT [Jan’y Boyce v. Grundy. authorizing the party to take possession, and the evidence is not sufficient to prove notice at any previous time. *oiai The second ground on this head of the appellants’ argument *has J been partly answered by the doctrine laid down upon the construction of the judiciary act, on the subject of the remedy at law. And so far as it relies on the adjudication quoted from Merivale, we think it unsustained. The position is, that an injunction to restrain proceedings on a judgment at law, will be refused by the court of equity to a party who had a defence at law and neglected to plead it. The doctrine of the case quoted, we conceive, has no bearing upon the present. The question there was upon a point of practice, whether a special injunction should issue, instead of the common injunction; there was no question about the right to the latter, but the circumstances of the case were such, that the common injunction did not afford full relief to the party. The rule of practice, as laid down by the court, is, that the special injunction goes only in those cases in which, from their nature, the defendant can make no defence; such as judgments on warrants of attorney. This was not such a case, but the party went for an exception in his favor, grounded upon a state of facts which brought him within the reason of the rule. And it wras, in fact, granted. It has been farther argued for the appellants, that reducing the agreement to writing precludes a recurrence to all representations; and to establish this doctrine, a passage from Sugden has been quoted. It cannot be doubted, that, in the language of the author, reducing an agreement to writing is, in most cases, an argument against fraud. But it is very far from a conclusive argument, as is previously shown by the same author, on the same page. The doctrine will not be contended for, that a written agreement cannot be relieved against, on the ground of false suggestions; and yet, if the doctrine of this quotation were the rule, instead of an incident to it, such would be the consequence. There is no attempt made here to vary the written agreement; the relief is sought, upon the ground, that by false suggestions and immoral concealment, the party seeking relief was entrapped into an agreement in which he would not otherwise have involved himself. This is not denying that *9901 agreement in the record was the agreement entered into, *but J insisting that it was vitiated by fraud, which vitiates everything. It has been further argued, that the misrepresentation, if at all established, was but of a personal character, and susceptible of compensation or indemnity, to be assessed by a jury. On this there may be made several remarks ; and first, that if the facts made out such a case, yet the law, which abhors fraud, does not incline to permit it to purchase indulgence, dispensation or absolution. Secondly, that although, locally, a misrepresentation may be partial, yet it may be vital in its effects upon the views and interests of the party affected by it. Such was the case of Fulton n. Roosevelt, 5 Johns. Ch. 174. But lastly, the evidence makes out a case very far removed from one of merely a partial character. North, south, east and west, w’e find the misrepresentations influencing the estimate of the value of these premises. Indeed, if we are to believe the testimony of Randel McGarvick (and its clearness, fulness and fairness speaks its own eulogium), a case of more general or more vital misrepresentation can seldom occur, or a case of more absolute devotion to misplaced confidence. Not only for the qualities and incidents, 136 1830] OF THE UNITED STATES. Boyce v. Grundy. 220 but also for the lines, the representations of the seller were implicitly relied on, and certainly to the most important results as to the value of the property. McGarvick proves that they were carried to a certain fence, which fence excluded a large knob, as it is called in that country, containing a considerable body of untillable and worthless land, and expressly told by Boyce that the fence was his line. Thus, explicitly declaring that the body of badland was not included in the land sold him, whereas, in fact, it was included ; and in another direction, where the land was fine, as if to make up the deficit in quantity to an experienced eye, he represents the land in view as being included within his survey, when, in fact, it was not all included. And suppose, the utmost effect be given to the testimony of the appellants, relative to the actual extent to which the island was subject to inundation ; still it leaves wide ground for the charge of misrepresentation. *The testimony is full to establish that, in several years, the whole r*221 has been overflowed. And the most favorable state of facts will leave from one hundred to one hundred and fifty acres, instead of fifteen or twenty, subject to this casualty, in ordinary years. This, although partial in one sense, is total as to the diminution of the value of the whole. Compared with the representation proved, it certainly annihilates the very material consideration that it admitted, of being prevented at a small expense, more especially, as the chief injury was to be expected from the waters of the Mississippi. In the purchase of 950 acres at twenty dollars an acre, such a discrepancy between facts and representations as would add thirty-three and a third, or perhaps fifty per cent, per acre to the cost, is not a case for mere compensation. And, if not a case for mere compensation, there was no controlling necessity to send the cause to a jury. The decree must be affirmed, with costs. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the eastern district of West Tennessee, and was argued by counsel : On consideration whereof, it is ordered and decreed, by this court, that the decree of the said circuit court in this cause be and the same is hereby affirmed, with costs.1 1 For a further decision in this case, see 9 Pet. 275. 137 *222 SUPREME COURT [Jan’y *Patapsco Insurance Company, Plaintiffs in error, v. John Coulter, Defendant in error. Marine insurance.—Barratry.—Proximate cause of loss.—Loss of profits. Insurance on profits, on board the ship Mary, “ at and from Philadelphia to Gibraltar, and a port in the Mediterranean, not higher up than Marseilles, and from thence to Sonsonate, in Guatemala, Pacific Ocean, with liberty of Guayaquil; the insurance to begin from the loading of the goods at Philadelphia, and to continue until the goods were safely landed at the said ports; the insurance, $5000, declared to be on profits, warranted to be American property’, to be proved at Philadelphia only, valued at $20,000.” The vessel proceeded, with a cargo of flour, to Gibraltar, where the same was to be sold, and the proceeds invested at Marseilles, in dry-goods, to be sent from thence to Sonsonate or Guayaquil. While the vessel lay at Gibraltar, before the discharge of her cargo, she and her cargo were totally lost by fire; the evidence on the trial went to show, that with proper diligence on the part of the master and crew, the fire might have been extinguished, and the vessel and cargo saved; soon after the fire commenced, the master called upon the crew to leave the ship, under an apprehension from a small quantity of gunpowder on board; and after they left her, she was boarded by other persons, who endeavored, without success, to extinguish the flames, having, as was alleged, arrived too late; evidence was given, tending to show that the fire originated from the carelessness of the master. The circuit court refused to instruct the jury, that if the fire proceeded from the carelessness or negligence of the master, the assured could not recover; that court also refused to instruct the jury, that if the fire originated from accident, or without any want of due care on the part of the master and crew, and if the jury should find, that by reasonable and proper exertions, the vessel and cargo might have been preserved by them, which they omitted, the assured could not recover ; that court also refused to instruct the jury, that the assured, having offered no evidence that the sales of the flour at Gibraltar would have yielded a profit, they were not entitled to recover: Held, that there was no error in these instructions. What is barratry: its definition, p. 230. The British courts have adopted the safe and legal rule, in deciding, that where the policy covers the risk of barratry, and fire is the proximate cause of the loss, they will not sustain the defence, that negligence was the remote cause, and hold the insurers liable for the loss.1 p. 236. The rule, that a loss, the proximate cause of which is a peril insured against, is a loss within the policy, although the remote cause may be negligence of the matter or mariners, has been affirmed in several successive cases in the English courts.2 p. 237. It seems difficult to perceive, if profit be a mere excrescence of the principal, as some judges have said, or identified with it, as has been said by others, why the loss of the cargo should not carry with it the loss of the profits ; proof that profits would have arisen on the voyage, in order to recover on a policy on profits, is not required, if the cargo has been lost? p. 241. *0021 *Error to the Circuit Court of Maryland. This action was insti* J tuted in the circuit court, on a policy of insurance, executed by the 1 In Waters v. Merchants’ Ins. Co., 11 Pet. 213, the court went a step farther, and held, that a loss whose proximate cause was a peril insured against, is within the protection of the policy, though remotely occasioned by the negligence of the master and mariners, and the risk of barratry be not insured against, s. c. 1 McLean 275. The same point was ruled in Williams v. Suffolk Ins. Co., 3 Sumn. 270; and by the supreme court of Pennsylvania, in American Ins. Co. V. Insley, 7 Penn. St. 223; Western Ins. Co. v. Cropper, 32 Id. 351; and Phoenix Fire Ins. Co. v. Cochran, 51 Id. 143. And see Sturm v. Atlantic Mutual Ins. Co., 63 N. Y. 77; Merchants’ Ins. Co. v. Butler, 20 Md. 138 41; Shultz v. Pacific Ins. Co., 14 Fla. 73; Enterprise Ins. Co. v. Parisot, 35 Ohio St. 35. The case of Mathews v. Howard Ins. Co., 11 N. Y. 9, does not militate against the doctrine, for there, the negligence of the master and crew was held to be the proximate cause of the loss. It has been held, in Massachusetts, that an insurance against the usual marine risks includes the barratry of the master, in the absence of any stipulation to the contrary. Parkhurst v. Gloucester Ins. Co., 100 Mass. 301. 2 West India and Panama Telegraph Co. v. Home and Colonal Marine Ins. Co., 6 Q. B. D. 51. See Cory v. Burr. Id. 463. 3 See lonides v. Pender, 27 L. T. 244. 1830] OF THE UNITED STATES. 223 Patapsco Insurance Co. v. Coulter. plaintiffs in error, on profits upon goods on board the ship Nancy, “at and from Philadelphia to Gibraltar, and a port in the Mediterranean, not higher up than Marseilles, and at and from thence to Sonsonate, in the province of Guatemala, Pacific ocean, with the liberty of Guayaquil; beginning the adventure upon the said goods, from the loading thereof on board the said vessel, at Philadelphia, and continuing the same, until the said goods shall be safely landed at the ports aforesaid.” The insurance was in the amount of $5000, with this clause : “ this insurance is declared to be on profits, warranted to be American property, to be proved at Philadelphia only, valued at $20,000.” The vessel, with a cargo of flour, proceeded from Philadelphia to Gibraltar, at which place the cargo was destined to be sold, and the proceeds to be invested at Marseilles, in the purchase of various specified dry-goods. These dry-goods were to be sent by the vessel, from Marseilles, to Sonsonate or Guayaquil. While the vessel lay at Gibraltar, before the discharge of her cargo, she and her cargo were totally lost by fire. Evidence was taken at Philadelphia, as to the circumstances of the destruction of the property, and one witness (Mr. Fulford) was examined, in addition, as to those circumstances, at the trial. The testimony of this witness went to show, that with proper diligence on the part of the master and crew, the fire might have been extinguished, and the vessel and cargo saved; and the evidence obtained at Philadelphia was not inconsistent with that conclusion. It appeared from Mr. Fulford’s testimony, that, soon after the fire commenced, the master called upon the crew to leave the ship, exclaiming, that there was gunpowder aboard, and that the vessel would be blown up ; and the master and crew did then leave the vessel. It was in evidence, that there was a small quantity of gunpowder on board, but that ought not to have deterred exertions to save the property ; an officer and a number of men from two British frigates *having, in fact, a considerable time after the vessel was deserted by her master and crew, boarded her, and used all efforts L to put out the flames, but unsuccessfully, in consequence of their reaching the scene so late. There was evidence to infer that the fire originated from the carelessness of the master, with a candle used by him for sealing letters, or from negligence of the crew. Evidence was had at Philadelphia, of Mr. Clark, concerning the markets at Sonsonate and Guayaquil, for the specified articles at Marseilles. His testimony tended to show, that these articles would have been sold with profit, at Guayaquil, at the time the vessel might have reached there. It was proved, that at Gibraltar the flour would have sold without loss, but without profit. The defendants prayed the court to direct the jury : 1. That if they should believe from the evidence, that .the fire, which occasioned the destruction of the ship and her cargo, proceeded from the carelessness or negligence of the master of the ship, or any of her crew, the plaintiff was not entitled to recover. 2. That if they should believe, that the fire which occasioned the ship’s destruction originated from accident, and without any want of due care and attention on the part of the master or crew, and if they should further find, that the master and crew, after the discovery of the fire, might, by reasonable and proper exertions, have prevented the spreading of the same, and have preserved the said vessel and cargo from 139 224 SUPREME COURT [ Jan’y Patapsco Insurance Co. v. Coulter. destruction, and that they omitted to use said exertions, then the plaintiff was not entitled to recover. 3. That the plaintiffs had offered no evidence that the sales of the flour at Gibraltar would have yielded the plaintiff a profit, and that, therefore, they were not entitled to recover. These prayers the court refused ; but as to the second of them, directed the jury as follows : “That the plaintiff is entitled to recover, unless they should be of opinion, from the evidence in the cause, after the vessel was discovered to be on fire, the master and crew might have extinguished *the same, and preserved the vessel and cargo. The master was J bound to extinguish the fire, if practicable. If he stood aloof, without making any exertion to extinguish the fire, and suffered the vessel to be destroyed, it would have afforded evidence of such gross negligence as to amount to barratry.” To the refusal of the prayers, and opinion and direction of the court, the defendants, now plaintiffs in error, excepted. Mayer, for the plaintiffs in error, contended : 1. That they are not answerable, under the policy, for any Joss by fire, if occasioned by the negligence of the master and crew of the Nancy ; that the risk of fire bears on the insurers as other risks in the policy ; that the assured being bound to the exercise of reasonable skill and care in his agents, to guard the property insured against the perils stated in the policy, under the implied warranty of seaworthiness, the underwriters ought not to suffer loss from a fire which the master or crew might, with ordinary care, have prevented taking place. 2. That if it was the duty of the master and crew to prevent the fire, it was equally their duty to extinguish it; and the consequence of their negligence in this particular ought not to fall upon the insurers ; and that even the gross negligence of the master and crew, in regard to a duty of this kind, is a mere non-feasance, and is not to be considered barratry ; that the remissness of the master, in this case particularly, is not so to be considered, because, however weak his conduct may have been, he was acted upon by inordinate fears only, and by no motives of interest or any views of unauthorized discretion or wilful delinquency. 3. That the profits here insured were incident to the cargo shipped at Philadelphia, and not to any property that might be substituted for it, though acquired with the proceeds of the original cargo ; that the contemplated adventure from Marseilles to Guatemala was, therefore, foreign to the insurance. That even in a valued policy on profits, evidence must be given of some profit likely to result, *2261 and such evidence, the insurance has no subject to oper- J ate upon ; that the flour being destined to be sold at Gibraltar, and not affording there a profit, as was proved, there is, in effect, no insurable interest whatsoever shown in the defendant Coulter ; and that he cannot, therefore, recover, under a valued policy on profits. Underwriters are not liable for any loss arising from gross negligence or want of skill of the master and crew. The object of insurance is to guard against extraordinary perils. They necessarily beset every mercantile adventurer, and there must be skill and diligence to meet them. It is a part of the business of the voyage, that those who are on board of the vessel shall be on the alert, and if they are not, the underwriters are exonerated. Marsh, on Ins. 156, 487, 690 ; 5 Mass. 1 ; 8 Ibid. 321, 436 ; 13 140 1830] OF THE UNITED STATES. Patapsco Insurance Co. v. Coulter. 226 Johns. 180, 187 ; Phillips on Ins. 225. If the first cause of the accident which produces the destruction of the vessel, was not within the policy, its consequences do not attach to the policy. There is nothing in the terms of the policy against fire, which exempts them from the operation of these principles. If the master and crew omitted reasonable exertions to extinguish a fire which had occurred from accident, the insurers are not liable ; gross negligence in both is not barratry ; and if they stood aloof, without making proper and sufficient efforts to prevent the ravages of the fire, the court should have left these facts to the jury, from which they could have inferred for the insurers. Abbott on Ship. 128, note ; 8 Cranch 49 ; 5 Mass. 1 ; 8 Ibid. 531 ; Marsh, on Ins. 515 ; Phill, on Ins. 230 ; 8 East 133. The cargo would have produced no profit, and the plaintiff offered no proof, that profits would have been obtained on the cargo sent from Philadelphia ; and the insurance attached only to the cargo shipped there. Some profits must be proved, before the underwriters are answerable, as this cannot be left to inference. 6 East 315 ; 12 Ibid. 124 ; 16 Ibid. 218. The policy is a contract of indemnity for actual injury or loss ; and the principles of the law of insurance are against wagering policies. 2 Mass. 1; 12 Wheat. 288 ; Phill, on Ins. 69. It is admitted, that a party may cover a *series of adventures, and expected profits on them ; but if he has omitted to do this, in explicit terms, he must sustain the loss himself. L The terms of this policy are not broad enough to cover all the profits anticipated, and which are claimed from the underwriters, the plaintiffs in error. Marsh, on Ins. 323 ; Phill, on Ins. 166 ; 2 Mass. 409 ; 4 Camp. 294 ; 12 East 283 ; 1 Taunt. 469 ; 12 Wheat. 283 ; 6 Mass. 197; 2 Ibid. 420. Wirt, for the defendant in error, argued, that the facts of the case made out a loss by accident or misfortune, and of innocence on the part of the master ; and that from the situation of the vessel, part of the crew being absent, and the fact of there being powder under the cabin floor, when the fire broke out, no other efforts than those which were made to save her would have been prudent or proper ; all the skill that could be expected was employed. According to the established principles of the law of insurance, there must be ignorance so gross as to amount to unseaworthiness, to excuse the insurer, but not otherwise. It would be the introduction of a new principle in the law of insurance, if the want of more than common care and usual skill would discharge the underwriters. Every loss would be traced to such a proximate cause. A ship is left in a storm ; would proof that setting another sail would have placed her beyond the peril, excuse the underwriters ? The seaman at the mast-head, whose duty it is to look out for land, as a coast is approached, falls asleep, and the vessel is lost; this, under the principle claimed, would release the insurers. The underwriters will undertake to inquire, whether the master and crew should have resisted longer, before they submitted in battle. Human infirmities are at the risk of the insurers, as well as the perils of navigation. The cases decided in England repudiate the doctrine asserted by the plaintiff in error, and for the reasons and on the principles now submitted to the court. 2 Barn. & Aid. 72 ; 5 Ibid. 171 ; 7 Barn. & Cres. 217, 233 ; Ibid. 794. 141 *228 SUPREME COURT [Jan’y Patapsco Insurance Co. v. Coulter. *Gross negligence is, upon adjudged cases, barratry ; and thus, if such should have occured in this case, the underwriters would be liable. 2 Camp. 149 ; 8 East 126 ; 11 Petersdorff 268 ; 2 Phill, on Ins. 237 ; 2 Camp. 620 ; 1 Taunt. 227 ; 5 Bos. & Pul. 336 ; 4 Taunt. 226 ; Peake 212 ; 1 Camp. 123. The policy attached to the whole voyage, and was intended to cover the profits upon it. The interruption or breaking up of the voyage, preventing the earning of those profits ; and in whatever part of it the occurrence took place, entitled the assured to recover the amount of the policy. An insurance on profits has been settled to be legal and proper. In the American courts, it is not necessary to prove what the profits would have been, but in England, the rule is otherwise. Courts construe the policy liberally, to include all the objects and intentions of the parties, according to the nature of the voyage. In this case, the subject of insurance was the profits on the whole voyage, and the cargo which was taken on board at Philadelphia was to furnish the means of proceeding with the adventure. By its loss, the whole of the profits were lost. Columbia Insurance Company n. Catlett, 12 Wheat. 383 ; Phill, on Ins. 319, 29, 70, 46, 47. Johnson, Justice, delivered the opinion of the court.—This was a case of insurance on profits, on a voyage from Philadelphia to Gibraltar, and a port in the Mediterranean, not higher up than Marseilles, and at and from thence to Sonsonate, in the province of Guatemala, Pacific Ocean, with liberty of Guayaquil. The risks are those usually inserted in policies, includng fire and barratry; the loss alleged is from fire alone. The vessel reached Gibraltar in safety, and while lying there, took fire and was entirely consumed, together with her cargo. The evidence on the part of defendants below went, first, to charge the master with having caused the fire by his own carelessness ; secondly, with having desisted, and restrained the crew and others, from efforts which might have distinguished the fire, under apprehensions not very well founded, al would communicate with powder, laden near to where the fire J originated. It was also objected to the plaintiff’s right of recovery, that he had given no kind of evidence of profits, or probable profits, from a sale at Gibraltar. This difference furnishes the subject of three bills of exception. The first of which went to the refusal of the court to instruct the jury, that if they believed the fire proceeded from the negligence or carelessness of the master, the plaintiff below was not entitled to recover. The second, that if they believed the fire originated in accident, without any want of due care and attention in the master and crew, yet, if after it had commenced, the master and crew might, with ordinary care and exertion, have extinguished it, the plaintiff below was not entitled to recover. The first of these instructions was refused expressly. The second was refused as prayed ; and in its stead, the court instructed the jury, that the plaintiff was entitled to recover, unless they should be of opinion, from the evidence, that after the vessel was discovered to be on fire, the master and crew might have extinguished it, and preserved the vessel and cargo. That the master was bound to extinguish the fire, if practicable; and if he stood aloof, without making any exertion 142 1830] OF THE UNITED STATES. 229 Patapsco Insurance Co. v. Coulter. to extinguish it, and suffered the vessel to be destroyed, it would have afforded evidence of such gross negligence as wrould amount to barratry. As the plaintiff below is in possession of the verdict, it is immaterial to him, if this charge was more favorable to his adversary than the law admits. We have only to do with so much of the case presented by these bills of exception, as makes against the interest of the insurers. And as to the refusal to instruct the jury, that “their verdict must be for the insurers, if they believed the loss to have proceeded from the carelessness or negligence of the master,” it is obvious, since barratry is insured against, that the court must not be held to have affirmed that fire proceeding from negligence was a loss within the policy, independently of the risk of barratry, but that negligence was no defence, where barratry was insured against. *It cannot be denied, that what with adjudged cases and elementary * opinions, this doctrine has got into a great deal of confusion. Many *-attempts have been made to define the term barratry, in its marine sense ; but when compared with the ideas attached to the word, as derived from the most respectable sources, such definitions will too generally be found deficient in precision or comprehensiveness; they need commentaries to apply or explain them. And it is remarkable, that the point in which all the definitions in the English or American authorities agree ; to wit, that fraud must be a constituent of the act of barratry, is that in which, practically, all the difficulties arise. The question seems to be between “ dolus ” and “ culpa” which of those two words best conveys the sense of the law. It cannot be denied, that the etymology of the word favors the adoption of the former. The term barratry is known to the common law; and Cowel’s Interpreter refers its origin to a Latin word, which would attach to it the idea of meanness, selfishness and knavery. Some of our English books, following a French writer (Pasquier sur Emerigon), derive it from '■'•barat” an old French or Italian word, which they explain by “ tromperie,fuurbe, mensonge.” I should myself derive the word from the Spanish barateria, baratero, which are rendered fraus and fraudulentus. But it is worthy of particular notice, that writers on maritime law, of the first respectability (I think Emerigon gives six in number), in explaining the marine sense of the word barratry, use the French word “prevariquez,” which can only be translated into “acting without due fidelity to their owners.” The best French dictionary we have renders it by “ agir contre les devoirs de son charge” acting contrary to the duties of his undertaking, and "trahir la cause ou Vinteret des personnes qu1 on est oblige de defendre” to betray the cause or interest of those whom we are bound to protect. Nor will it be found, that the idea of the British courts, of the meaning of fraud, as applied to barratry, varies preceptibly from this exposition. In the case of Moss v. Byram, 6 T. R. 379, we find the very words adopted by one of the judges : “if the captain acted contrary to his *duty to his owners,” it was barratry; and “if he did any act to increase the L risk,” it was barratry. And in the case of Busk v. The Boy al Exchange Assurance Company, the court lay it down as the law, that the term barratry is used in the policies, as applicable to the “ wilful misconduct ” of the master and mariners. And even in the case of Phyn v. The Boyal Assurance Company, in which Lawrence, Justice, wishes to resume or explain his definition in Moss v. Byrom, he concludes with adopting the definition 143 231 SUPREME COURT [Jan’y Patapsco Insurance Co. v. Coulter. of Lee, C. J., in Stamma v. .Brown, in which he says, “barratry must be some breach of trust in the master, ex maleficiof in which, I presume, male-ficium must mean some wilful and injurious act. And as this case is given by the latest English compiler (11 Petersdorf! 269, ca. 6), as the authority for the unqualified doctrine, V that there must be fraud to constitute barratry,” and the definition of C. J. Lee, just quoted, is given in his margin, as comprising the substance of this case, we are furnished with an apt opportunity of ascertaining the idea attached in Great Britian to both the terms “ fraud” and maleficium, by referring to the case itself. The defence of the underwriters there turned upon a deviation, and the question was, whether it was a fraudulent deviation. If a general deviation, the underwriters were discharged; but if a fraudulent deviation, then it was barratry and a risk in the policy. The whole evidence in the cause in which the question of fraud was raised, was this : the vessel was bound from London to Jamaica, but was driven by currents out of her course. Upon recovering her reckoning, she was found to be between the Grand Canaries and the Island of Teneriffe. In this situation, it was admitted, that her course was southwest, instead of which, the master bore up for the island of Santa Cruz, which lay north-west, and in sight, about thirty miles off, and came to anchor; for the purpose, as is supposed in the argument, to get refreshments, or in some way for his own accommodation. The jury found it to be a simple deviation, without fraud, and the court only decide that they cannot adjudge it a fraudulent deviation, in opposition to the finding of the jury. *s *n°where hinted, that the jury might not have found it J otherwise, and their verdict have been sustained upon the evidence in that cause. On the contrary, so far as fraud or rnaleficiwn may be supposed to imply a dishonest or injurious intention towards the owner, the idea is negatived by a variety of cases. In that of Earle v. Rowcroft, 8 East 126, it was admitted, that the master unaffectedly acted with a view to promote the owners’ interest, and would materially have promoted their interest, had he escaped detection. But he had deviated from his instructions, and increased the risk, by trading with an enemy; and it was held to be barratry. The court there say, it has been asked, how is this act of the master in going into d’Elmina, in order to purchase the cargo for his owners, more cheaply and expeditiously, a breach of trust between him and them ? Now, I conceive, that the trust reposed in a master of a vessel obliges him to obey the written instructions of his owners, where they give any; and where the instructions are silent, he is, at all events, to do nothing but what is consonant to the laws of the land, whether with or without a view to their advantage. Here we see, that an act “ inconsistent with written instructions,” and an act “ not consonant with the laws of the land,” are brought within the description of fraud upon the owners, as applied to the definition of barratry. From which it would seem to result, that it is not confined to moral fraud ; or that the term is not well chosen ; or that, practically, in its application to this subject, culpa would better express the idea than dolus. The commercial regulations of maritime nations, both of ancient and modern times, are very various on the subject of the liability of assurers for the acts of the master ; and it is not without much appearance of reason, that Emerigon observes, that the French ordinance has put it upon the just 144 1830] . OF THE UNITED STATES. 232 Patapsco Insurance Co. v. Coulter. medium. The regulations on this subject are contained in the 26, 27 and 28 articles of the 5th title. By the 26th article, “ all losses and damages *happening at sea, by tempest, shipwreck, running aground or aboard of other ships, changing the course of the voyage'or of the ship, L ejection, fire, taking, rifling, detention by princes, declaration of war, reprisals, and generally by all maritime accidents, shall be at the risk of the insurers. By the 27th, however, if the changing of the course, voyage, or ship happens by the order of the assured, without the consent of the insurers, they shall be discharged from the risk; which shall likewise take place in all other losses and damages happening by the fault of the assured; nor shall the insurers be obliged to restore the premium, if the time of their bearing the risk be begun. Nor shall the insurers be obliged to bear the losses and damages happening to ships and goods by the fault of the master and mariners, except that by the policy they be engaged for the barratry of the master. It is this last rule to which the observation of Emerigon is particularly directed; and although the British decisions do not adopt the negative language of the regulation, without limitation, they certainly come up to the positive rule which it implies, whenever the case of the master is considered a fault, with reference to his duty to his owner. It has been remarked by a British court (Busk v. Royal Exchange Assurance Company, 2 Barn. & Aid. 82), that in France, negligence, as well as wilful misconduct, is considered barratry ; and they give the authority of the commentator on the ordinance of Louis XIV., Valin, for the assertion. But as the author is commenting upon the 28th article, I am inclined to consider the passage as only intimating that negligence is a fault, within the words of the ordinance. And the same court, in the same cause, have certainly affirmed the same principle, in its positive sense ; that is, that where an insurance is against barratry, a loss arising from fire originating in negligence, shall be borne by the underwriters. It would be a great relief to this court, if there existed such an uniformity in the decisions upon this subject, as to place our decisions upon adjudged cases. But it is not to be questioned, that the English and American decisions are in *direct hostility with each other, as to a loss by fire arising from negligence, •-where there is an insurance against barratry. It must be repeated, that the general question, where there is no insurance against barratry, need not here be considered. The judge was not bound to give an instruction abstracted from the case. And the question, whether, where the breach laid, was loss by fire only, the plaintiff could maintain his action, by giving in evidence a barratrous burning, did not properly occur. The point, when properly stated, stands thus : the plaintiff lays the breach by fire, and the defendant, to repel his liability, insists that the fire was produced by negligence of the master ; the plaintiff replies, that negligence is no defence, where the barratry is insured against; the court maintains the doctrine of the plaintiff, and adds, that negligence itself, when gross, is evidence of barratry. And certainly, a master of a vessel who sees another engaged in the act of scuttling or firing his ship, and will not rise from his berth to prevent it, is primd facie chargeable with barratry. Although a mere misfeasance, it is a breach of trust, a fault, an act of infidelity to his owners. So if, in height of a storm, the master and crew turn in, without resorting to the nautical precautions of laying the vessel to, 3 Pet.—10 145 234 SUPREME COURT Patapsco Insurance Co. v. Coulter. [Jan’y and otherwise preparing her to overcome the peril, it will be left to a jury, to determine if such conduct be not barratrous. The truth is, that in the incidents to this kind of contract, misfeasance and nonfeasance often approach so near to each other in character and consequences, that it is not surprising, if courts of justice should incline to the adoption of rules which would relieve them from the difficulty of discriminating, or the inconsistencies that might result from their efforts to discriminate. The case of Grim v. Phoenix Insurance Company, decided in New York, was certainly a very strong case to establish the doctrine, that a loss by fire, proceeding from negligence of the master and mariners, was not a loss within the policy, although barratry be one of the risks.1 It will, how-* _ ever> be found, by looking into the reasons which governed *the court -* in that case, that its conclusions were drawn partly from the too general expressions of an elementary writer, and partly from analogy with other decisions in which the expression of the court, unless restricted to the cases before them, were justly deemed authority for the decision there rendered. The question was one of the first impression, and one on which the best constituted minds may well have been led to contrary conclusions. It was, however, no unreasonable claim upon the profession, made by Law-bence, Justice, in the case of Phyn v. Royal Exchange Assurance Company, with regard to his own doctrines in Moss n. Ryrom, “that what fell from him there must be taken in reference to the case then in judgment before the court.” Thus, restricted doctrines will often be found correct, which in a more general sense, might well be questioned. And in the case of Vos and Graves v. United Insurance Company, and also in that of Cleveland v. United Insurance Co., relied upon in the New York decision, the act of the master, for which the underwriters were held to be discharged, was, in the first instance, sailing towards a blockaded port, with intent to violate the blockade, and in the second, leaving his register behind him. The first of these cases did not call for the opinion of Kent, Justice, on the subject of negligence ; the second is exactly one of those cases in which a nonfeasance becomes a misfeasance, and both relate to the discharge of a duty unquestionably belonging to the assured, and the master as his agent. Attempting a breach of blockade was an unwarrantable increase of risk, which might or might not be barratrous, according to circumstances. And for a vessel to leave her register behind, in time of war, affected her seaworthiness as much as leaving her compass, or quadrant, or anchors, at home, at any time. So, neglecting to take a pilot, neglecting to pay port-duties, neglecting to obtain a clearance, neglecting to comply with the laws of any port which the vessel has leave to enter ; all these, although nonfeasances, involve misfeasances, which discharge the underwriters, because they violate implied duties ncident to navigating the vessel, and produce a positive and definitive increase of risk. was n0^ the year 1818, that the question was settled *in -* the British courts, on the liability of the underwriters for a loss like the present. In the case of Rusk n. Royal Exchange Assurance Company, the question is finally and fully decided there, in direct hostility with the 1 Grim v. Phœnix Ins. Co. was overruled by the court of appeals, as to this point, in Mathews v. Howard Ins. Co., 11 N. Y. 9. 146 1830] OF THE UNITED STATES. 236 Patapsco Insurance Co. v. Coulter. decision in New York ; and this court is now, for the first time, called upon to establish a rule for its own government in similar cases. Losses by fire must happen either from the act of God, from design, or from accident. If from design, and by the master and crew, it is barratry ; if by any other person, or by pure accident, it is clearly a risk by fire, but from the peculiar character of this risk, it is no easy matter to point out an accident that may not be resolved into negligence. If, by the falling of a Candle, it may have been, because due care was not bestowed upon securing it; and if, from a spark from the cambouse, it may have been from neglect in not closing or constructing it ; and if, from a flue or a stove, the same reason may be assigned. It has already been shown, that gross negligence may be evidence of barratry, and when it is considered, how difficult it is to decide where gross negligence ends, and ordinary negligence begins, and to distinguish between pure accident and accident from negligence, we cannot but think, that the British courts have adopted the safe and legal rule, in deciding, that where the policy covers the risk of barratry, and fire is the proximate cause, they will not sustain the defence, that negligence was the remote cause. We think this rule also the most consistent with analogy and mercantile understanding. It is very justly observed, in the case of Busk v. Royal Exchange Assurance Company, that it is a strong argument against the objection there raised, for the first time, that in the great variety of cases that have occurred upon marine policies, no such point had ever been made. And I will add, it is not improbable, from comparison of dates, that the defence maintained in the New York decision, suggested that made in the British courts. The long acquiescence may have had its origin in a general mercantile understanding, or perhaps in the doctrine of Malynes, whose book unites the recommendations of antiquity, good sense and practical knowledge. The passage *has been misquoted as to its place : it is found in page 155, pgg* in these words, “ barratrie of the master and mariners can hardly be L avoided, but by a provident care to know them, or at least the master of the ship upon which the assurance is made. And if he be a careful man, the danger of fire above mentioned will be the less for the ship ; boys must be looked unto every night and day. And in this case, let us also consider the assurers ; for it has oftentimes happened, that by a candle unadvisedly used by the boys, or otherwise, before the ships were unladen, they have been set on fire and burnt to the very keel, with all the goods in them, and the assurers have paid the sums of money by them assured. Nevertheless, herein the assurers might have been wronged, although they bear the adventure, until the goods be landed ; for it cometh to pass sometimes, that whole ships’ ladings are sold on ship-board, and never discharged,” &c. In the residue of this passage, the author certainly intimates that the wrong done to the assurers is in being made to pay, after the transfer of the interest to a third person, and the initiation of a new voyage. And the general doctrines involved in this case are certainly sustained by analogy to other cases. It seems generally conceded, that in the case of insurance against fire on land, negligence of servants, or of the tenant, is no defence, nor of the proprietor, unless of such a character as to sustain the imputation of fraud or design. And the rule that a loss, the proximate cause of which is a peril insured against, is a loss within the policy, although the remote cause may be hegli- 147 237 SUPREME COURT [Jan’y Patapsco Insurance Co. v. Coulter. gence of the master or mariners, has been affirmed in several successive cases in the English courts. The case of 'Walker v. Maitland, cited in argument, is a very strong case of this description. And both in that and the case of Bishop v. Pentland, decided as late as 1827, the decision in Busk n. Boyal Exchange Assurance Company is expressly quoted by the court, and affirmed as law. So that the doubt expressed" by Mr. Phillips upon the authority of that case, does not seem well founded. Phillips on Ins. 249. It is true, that in the application of the principles to particular cases, * , courts °f justice will sometimes find *themselves embarrassed in dis- J criminating between that crassa negligentia which will discharge the underwiters, by varying or increasing the risk, and that upon which they may be made liable on the ground of barratry; but the difficulty is only one which those engaged in the administration of justice have often to feel and lament—to wit, the difficulty of fathoming men’s motives ; and in this the court can only rely on the judgment and experience of juries. While the master is not regardless of his duty to his owner, his actions cannot be barratrous ; but if no act of infidelity to the owner be imputable to him from the evidence, then it is affirmed in various cases, that a material increase of the risk from gross negligence may discharge the underwriters. Such was admitted to be the law in Toulmin v. Anderson, 1 Taunt. 227, and Toulmin v. Inglis, 1 Camp. 421. The case of Pipón n. Cope, 1 Camp. 434, was decided on this distinction, and the defence set up in Heyman v. Parish, 2 Camp. 149, went upon the same ground. It is true, these are nisi prius cases, but they serve to illustrate the doctrine and course of decision. In the case of Arcangelo v. Thompson, 2 Camp. 620, it was ruled, that where the loss was laid by capture, it was no defence for the underwriters, to prove that the capture was barratrous ; and it would indeed be singular, if where one breach is laid and proved, the party defendant could avail himself of another breach, for which he was equally liable on the same contract. The third prayer for instruction is in these words : “ that the plaintiffs had offered no evidence that the sales of the flour at Gibraltar would have yielded the plaintiffs a profit, and that, therefore, they were not entitled to recover.” This was refused, and the question is, whether the defendants were entitled to it, as prayed. This instruction presents two propositions : 1. That it was necessary to prove loss of profits, otherwise than by the loss of the cargo. 2. That the plaintiff was limited to proof of profits on a sale at Gibraltar. With regard to the second, it is clear, that the instruction was properly refused, for there was nothing in the policy to prevent the assured from proceeding with the original cargo to the Pacific, although the *course °f trade would have sanctioned him in selling and replacing it. But the first proposition is one of more difficulty. Courts of justice have got over their difficulties on the question whether profits are insurable interest; but how and where that interest must be established by proof, in case of loss, is not well settled. Here again, there appears to be a conflict between the British and American decisions. The earliest of British decisions, that of Barclay v. Cousins, 2 East 544, certainly supports the doctrine, that the profits sink with the cargo, or, at least, that the loss of one is primá facie evidence of the loss of the other, and throws the onus probandi upon the defendant. Such is the intimation of 148 1830] OF THE UNITED STATES, Patapsco Insurance Co. v. Coulter. 239 the court, p. 551, and the recovery was had in that case, without proof that profit would have been made, had the cargo arrived at the destined port. In the case of Henrickson v. Maryetson, 2 East 549, of Which a note is given in that case, the recovery was also had, without proof that the profits would have been made, or any other proof than an interest in and loss of the cargo ; and Lord Mansfield seems to have suggested the true ground for dispensing with such proof, to wit, the utter impracticability of making it, without the spirit of prophecy to determine the precise time when the vessel would arrive at her destined port. The two subsequent cases which are cited in the elementary books, to sustain the contrary doctrine, are not full to the point. In that of Hodgson v. Glover, 6 East 316, there was another question of as great difficulty, to wit, whether, in a clear case of average loss, the plaintiff could recover as for a total loss, or recover anything, without evidence to determine the average. Of the four judges who sat, two decided against the plaintiff, upon the one ground, and two upon the other. In the second case, that of Eyre n. Glover, 16 East 218, although the point was touched upon in argument, yet the court neither expressly affirm nor deny it; it was not the leading question in the cause ; and at last, judgment was rendered for plaintiff, without requiring such proof. But the case of Mumford n. Hallett, 1 Johns. 439, goes further. It *was a case of insurance on profits, in which there was no evidence given, that profits would have been made upon an arrival, nor was any other loss proved, than as incident to the loss of the goods. On that state of facts, Livingston, Justice, who delivered the opinion of the court, remarks, “ it does not follow, that a profit will be made, if the cargo arrived, yet its loss would give a right to recover on such a , policy.” There are other questions in the case ; but after all were settled, this principle was essential to the plaintiff’s right to recover. In the case of Fosdick v. Norwich Insurance Company, decided in the supreme court of errors of Connecticut, the question was moved in argument, that to justify a recovery, the plaintiff must show that profits would have accrued, upon safe arrival of the goods ; but the language of the court, in expressing their decision, is not so explicit as to enable us to determine, whether it was intended to apply as well to the proof of loss, as to the insurable interest. Yet the right of the plaintiff to recover being affirmed in that case, without other proof than the loss of the goods, it would seem to be an authority for the doctrine, that no other was necessary. The report furnishes no other proof of loss of profits, than what was implied in the loss of the cargo in which the insured had an interest. And on the question of insurable interest, which was the main question in the cause, the chief justice asks, “ if profits are anything more than an excrescence upon the value of goods, beyond the prime cost ? ” As to the American cases, Mr. Phillips quotes that of Loomis v. Shaw (if I understand his language as he meant to use it), as going farther than the case warrants. 2 Johns. Cas. 36. The court waives the question now under consideration, by suggesting, that the defendant had waived it by an act of his own. In the case of Abbott v. Sebor, 3 Johns. Cas. 39, wrhich was a motion for a new trial, the decision turned chiefly on the question, whether the court had misdirected the jury, in instructing them, that the plaintiff must recover the whole sum insured on profits, or nothing. That is, that he 149 *241 SUPREME COURT [Jan’y Shanks v. Dupont. could *not recover for an average loss. The question, if proof that profits would have been made, had the vessel arrived in safety, was necessary to his recovering, was not touched. Yet the right to recover is affirmed in that case, and it does not appear, that any proof to that effect had been offered or required, beyond the loss of the goods on which the profit was expected. But the authority amounts to no more than an implication. We must now dispose of the question upon reason and principle ; and here it seems difficult to perceive, why, if profit be a mere excrescence of the principal, as some judges have said ; or an incident to or identified with it, as others have said ; the loss of the cargo should not carry with it the loss of the profits. This rule has convenience and certainty to recommend it; of which this case presents a striking illustration. Here was a voyage of many thousand miles to be performed, the final profits of which must have been determined by a statement of accounts passing though several changes, some of which might have resulted in loss, some in gain ; and in each case, the good or ill fortune of the adventure turning on the gain or loss of a day in the voyage. What human calculation or human imagination could have furnished testimony on a fact so speculative and fortuitous ? To have required testimony to it, would have been subjecting the rights of the plaintiff to mere mockery. On this point, we must support the American decisions. Justices Thompson and Baldwin dissented. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Maryland, and was argued by counsel: On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby affirmed, with costs, and damages at the rate of six per centum per annum. *242] *Ann Shanks, Margaretta Shanks, Sarah P. Shanks, Grace F. Shanks and Eliza Shanks (appellants below), Plaintiffs in ■ error, v. Abraham Dupont and Jane, his wife, Daniel Pepper and Ann Pepper, Defendants in error. Alienage.—Allegiance.—British treaties. Thomas Scott, a native of South Carolina, died in 1782, intestate, seised of lands on James Island, having two daughters, Ann and Mary, both born in South Carolina, before the declaration of independence; Sarah married D. P., a citizen of South Carolina, and died in 1802, entitled to one-half of the estate. The British took possession of James Island and Charleston, in February and May 1780; and in 1781, Ann Scott married Joseph Shanks, a British officer, and at the evacuation of Charleston, in 1782, she went to England with her husband, where she remained until her death in 1801; she left five children, born in England ; they claimed the other moiety of the real estate of Thomas Scott, in right of their mother, under the ninth article of the treaty of peace between this country and Great Britain, of the 19th of November 1794 : Held, that they were entitled to recover and hold the same. If Ann Scott was of age, before December 1782, as she remained in South Carolina until that time, her birth and residence must be deemed to constitute her, by election, a citizen of South Carolina, while she remained in that state ; if she was not of age, then, under the circumstances of this case, she might well be deemed to hold the citizenship of her father; for children, 150 1830] OF THE UNITED STATES. 242 Shanks v. Dupont. born in a country, continuing, while under age, in the family of the father, partake of his natural character as a citizen of that country, p. 245. All British-born subjects, whose allegiance Great Britain has never renounced, ought, upon general principles of interpretation, to be held within the intent, as they certainly are within the words, of the treaty of 1794. p. 250. The capture and possession of James Island, in February 1780, and of Charleston, on the 11th of May, in the same year, by the British troops, was not an absolute change of the allegiance of the captured inhabitants; they owed allegiance to the conquerors, during their occupation ; but it was a temporary allegiance, which did not destroy, but only suspended, their former allegiance, p. 246. The mai’riage of Ann Scott with Shanks, a British officer, did not change or destroy her allegiance to the state of South Carolina, because marriage with an alien, whether friend or enemy, produces no dissolution of the native allegiance of the wife. p. 246. The general doctrine is, that no person can, by any act of their own, without the consent of the government, put off their allegiance, and become aliens, p. 246. The subsequent removal of Ann Shanks to England, with her husband, operated as a virtual dissolution of her allegiance, and fixed her future allegiance to the British crown, by the treaty of peace in 1783. p. 246. The treaty of 1783 acted upon the state of things as it existed at that period ; it took the actual state of things as its basis; all those, whether natives or otherwise, who then adhered to the American states, were virtually absolved from all allegiance to the British crown; all those who then adhered to the British crown were deemed and held subjects of that crown; the treaty of *peace was a treaty operating between states and the inhabitants thereof, p. 247. L 243 The incapacities of femes covert provided by the common law, apply to their civil rights, and are for their protection and interest; but they do not reach their political rights, nor prevent their acquiring or losing a national character; these political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations, p. 248. This was a Writ of Error from the Supreme Court of Appeals in law and equity in and for the state of South Carolina. The suit arose out of a partition of a tract of land, in the state of South Carolina ; the right of the plantiffs in error to a moiety having been denied, on the ground of their alienage, and their consequent incapacity to inherit the same. The facts, as they were agreed by the parties, and as they appeared on the record, were as follows: Thomas Scott, the ancestor and first purchaser, was a native of the colony of South Carolina, and died intestate, seised of the lands in dispute, in 1782. He left surviving him two daughters, Sarah and Ann, who were also born in South Carolina, before the declaration of independence. Sarah Scott intermarried with Daniel Pepper, a citizen of South Carolina, and resided with him in that state, until 1802, when she died, leaving children, the present defendants in error, whose right to her share of the property was conceded. The British took possession of James Island, on the 11th of February 1780, and Charleston surrendered to them, on the 11th of May, in the same year. In 1781, Ann Scott was married to Joseph Shanks, a British Officer, and at the evacuation of Charleston, in December 1782, went with him to England, where she remained until her death, in 1801. She left five children, the present plaintiffs in error, British subjects, who claimed in right of their mother, and undei’ the ninth article of the treaty of peace between this country and Great Britain, of the 19th of November 1794, a moiety of their grandfather’s estate in South Carolina. The decision of the state court was against this claim, as not within the protection of the treaty, because Mrs. Shanks was an American citizen. 151 243 SUPREME COURT [Jan’y Shanks v. Dupont. The case was argued, at January term 1829, by Cruger and Wirt, for the plaintiffs in error ; and by Legare, for thé defendants ; and was held under advisement to this term. The counsel for the plaintiffs in error contended, that Ann Shanks, the mother of the plaintiffs in error, was a British subject, and that her title was protected by the treaty of 1794. The decree of the court of the state of South Carolina was, therefore, erroneous, and should have been in favor of the plaintiffs, for a moiety of the land of which Thomas Scott died seised. The defendants in error insisted, that the decree of the state court ought to be affirmed, because Mrs. Shanks was an American citizen, capable of holding by the laws of South Carolina ; so that there was no interest or title in her, to which the ninth article of the treaty of 1794, by which the titles of British subjects, holding lands in this country, were saved from the disabilities of alienage, could in any wise attach. Story, Justice, delivered the opinion of the court.—This was a writ of error to the highest court of appeals in *law and equity of the state of South Carolina, brought to revise the decision of that court, in a bill or petition in equity, in which the present defendants were original plaintiffs, and the present plaintiffs were original defendants. From the record of the case, it appeared, that the controversy before the court respected the right to the moiety of the proceeds of a certain tract of land, which had been sold under a former decree in equity, and the proceeds of which had been brought into the registry of the court. One moiety of the proceeds had been paid over the original plaintiffs, and the other moiety was now in controversy. The original plaintiffs claimed this moiety also, upon the ground, that the original defendants were aliens, and incapable of taking the lands by descent from their mother, Ann Shanks (who was admitted to have taken the moiety of the land by descent from her father, Thomas Scott), they being British-born subjects. * *After the elaborate opinions expressed in the case of Inglis v. J Trustees of the Sailor's Snug Harbour (ante, p. 99), upon the question of alienage, growing out of the American revolution, it is unnecessary to do more, in delivering the opinion of the court in the present case, than to state, in a brief manner, the grounds on which oui’ decision is founded. Thomas Scott, a native of South Carolina, died in 1782, seised of the land in dispute, leaving two daughters surviving him, Sarah, the mother of the defendants in error, and Ann, the mother of the plaintiffs in error. Without question, Sarah took one moiety of the land by descent; and the defendants in error, as her heirs, are entitled to it. The only question is, whether Ann took the other moiety by descent ? and if so, whether the plaintiffs in error are capable of taking the same, by descent from her ? Ann Scott was born in South Carolina, before the American revolution; and her father adhered to the American cause, and remained and was at his death a citizen of South Carolina. There is no dispute that his daughter Ann, at the time of the ’revolution, and afterwards, remained in South Carolina, until December 1782. Whether she was of age, during this time, does not appear. If she was, then her birth and residence might be deemed to constitute her, by election, a citizen of South Carolina. If she was not of 152 1830] OF THE UNITED STATES. 245 Shanks v. Dupont. age, then she might well be deemed, under the circumstances of this case, to hold the citizenship of her father ; for children born in a country, continuing while under age in the family of the father, partake of his national character as a citizen of that country. Her citizenship, then, being primd facie established (and indeed, this is admitted in the pleadings), has it ever been lost ? or was it lost before the death of her father, so that the estate in question was, upon the descent cast, incapable of vesting in her? Upon the facts stated, it appears to us, that it was not lost; and that she was capable of taking it, at the time of the descent cast. * The only facts which are brought to support the *supposition, that she became an alien, before the death of her father, are, that the British *-captured James Island, in February 1780, and Charleston, in May 1780; that she was then, and afterwards remained, under the British dominion, in virtue of the capture; that in 1781, she married Joseph Shanks, a British officer, and upon the evacuation of Charleston, in December 1782, she wrent with her husband, a British subject, to England, and there remained until her death in 1801. Now, in the first place, the capture and possession by the British was not an absolute change of the allegiance of the captured inhabitants. They owed allegiance, indeed, to the conquerors, during their occupation; but it was a temporary allegiance, which did not destroy, but only suspended, their former allegiance.1 It did not annihilate their allegiance to the state of South Carolina, and make them de facto aliens. That could only be by a treaty of peace, which should cede the territory, and them with it; or by a permanent conquest, not disturbed or controverted by arms, which would lead to a like result. Neither did the marriage with Shanks produce that effect; because marriage with an alien, whether a friend or an enemy, produces no dissolution of the native allegiance of the wife. It may change her civil rights, but it does not affect her political rights or privileges. The general doctrine is, that no persons can, by any act of their own, without the consent of the government, put off their allegiance, and become aliens. If it were otherwise, then a, feme alien would, bv her marriage, become, ipso facto, a citizen, and would be dow’able of the estate of her husband; which is clearly contrary to law. (See Kelly v. Harrison, 2 Johns. Cas. 29; Co. Litt. 31 b ; Com. Dig. Alien, C, 1; Dower, A, 2; Bac. Abr. Alien, Dower, A.) Our conclusion, therefore, is, that neither of these acts warrant the court in saying, that Ann Shanks had ceased to be a citizen of South Carolina, at the death of her father. This is not, indeed, controverted in the allegations of the parties. The question then is, whether her subsequent removal with her husband operated as a virtual dissolution of her allegiance, and fixed her future allegiance to the British crown, *by the treaty of peace of 1783. Our opinion is, that it did. In the first place, she was born under the *- - ' allegiance of the British crown, and no act of the government of Great Britain ever absolved her from that allegiance. Her becoming a citizen of South Carolina did not, ipso facto, work any dissolution of her allegiance, at least, so far as the rights and claims of the British crown were concerned. During the war, each party claimed the allegiance of the natives of the colonies, as due exclusively to itself. The American states insisted upon 1 United States v. Huckabee, 16 Wall. 434-5. 153 247 SUPREME COURT [Jaxx’y Shanks v. Dupont. the allegiance of all born within the states, respectively; and Great Britain asserted an equally exclusive claim. The treaty of peace of 1783 acted upon the state of things as it existed at that period; it took the actual state of things as its basis. All those, whether natives or otherwise, who then adhered to the American states, were virtually absolved from all allegiance to the British crown; all those who then adhered to the British crown, were deemed and held subjects of that crown. The treaty of peace was a treaty operating between the states on each side, and the inhabitants thereof; in the language of the seventh article, it was a firm and perpetual peace between his Britannic majesty and the said states, “ and between the subjects of the one and the citizens of the other.” Who were then subjects or citizens, was to be decided by the state of facts. If they were originally subjects of Great Britain, and then adhered to her, and were claimed by her as subjects, the treaty deemed them such. If they were originally British subjects, but then adhering to the states, the treaty deemed them citizens. Such, I think, is the natural, and indeed, almost necessary meaning of the treaty; it would otherwise follow, that there would continue a double allegiance of many persons; an inconvenience which must have been foreseen, and would cause the most injurious effects to both nations. It cannot, we think, be doubted, that Mrs. Shanks being then voluntarily under British protection, and adhering to the British side, by her removal with her husband, was deemed by the British government to retain her allegiance, and to be, to all intents and purposes, a British subject. It may * , *be said, that, being sub potestate viri, she had no right to make an -* election; nor ought she to be bound, by an act of removal, under his authority or persuasion. If this were a case of a crime alleged against Mrs. Shanks, in connection with her husband, there might be force in the argument. But it must be considered, that it was, at most, a mere election of allegiance between two nations, each of which claimed her allegiance. The governments, and not herself, finally settled her national character. They did not treat hex’ as capable by herself of changing or absolving her allegiance; but they virtually allowed her the benefit of her choice, by fixing her allegiance finally on the side of that party to whom she then adhered. It does not appear to us, that her situation as 3, feme covert disabled her from a change of allegiance. British femes covert residing here with their husbands, at the time of our independence, and adhering to our side, until the close of the war, have been always supposed to have become thereby American citizens, and to have been absolved from their antecedent British allegiance. The incapacities of femes covert, provided by the common law, apply to their civil rights, and are for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations. The case of Martin v. Commonwealth, 1 Mass. 347, turned upon very different considerations. There, the question was, whether a feme covert should be deemed to have forfeited her estate, for an offence committed with hex* husband, by withdrawing from the state, &c., under the confiscation act of 1779 ; and it was held, that she was not within the purview of the act. The same remark 154 1830] OF THE UNITED STATES. 248 Shanks v. Dupont. disposes of the case of Sewell v. Lee, 9 Mass. 363, where the court expressly-refused to decide, whether the wife, by her withdrawal with her husband, became an alien. But in Kelly n. Harrison, 2 Johns. Cas. 29, the reasoning of the court proceeds upon the supposition, that the wife might have acquired the same *citizenship with her husband, by withdrawing with him [-*249 from the British dominions. (See also Bac. Abr. Alien, A ; Cro. Car. L 601, 602 ; 4 T. R. 300 ; Brooke Abr. Denizen, 21 ; Jackson n. Lunn, 3 Johns. Cas. 109.) But if Mrs. Shanks’s citizenship was not virtually taken away, by her adherence to the British, at the peace of 1783, still it must be admitted, that, in the view of the British government, she was at that time, and ever afterwards to the time of her death, and indeed, at all antecedent periods, a British subject. At most, then, she was liable to be considered as in that peculiar situation, in which she owed allegiance to both governments, ad utriusquefidem regis. Under such circumstances, the question arises, whether she and her heirs are not within the purview of the ninth article of the treaty with Great Britain of 1794 ? It appears to us, that they plainly are. The language of that article is, “ that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of his majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein, &c. ; and that neither they nor their heirs or assigns shall, so far as respects the said lands, and the legal remedies incident thereto, be regarded as aliens. Now, Mrs. Shanks was at this time a British subject, and she then held the lands in controversy ; she is, therefore, within the words of the treaty. Why ought she not also to be held within the spirit and intent? It is said, that the treaty meant to protect the rights of British subjects, who were not also American citizens ; but that is assuming the very point in controversy. If the treaty admits of two interpretations, and one is limited, and the other liberal; one which will further, and the other exclude private rights ; why should not the most liberal exposition be adopted ?J The object of the British government must have been, to protect all her subjects holding lands in America, from the disability of alienage, in respect to descents and sales. The class of American loyalists could, at least, in her eyes, have been in as much favor as any other ; there is nothing in our public policy which is *more unfavorable to them than to other British subjects. Afterthe r*250 peace of 1783, we had no right or interest in future confiscation; and L the effect of alienage was the same in respect to us, whether the British subject was a native of Great Britain or of the colonies. This part of the stipulation, then, being for the benefit of British subjects who became aliens by the events of the war ; there is no reason why all persons should not be embraced in it, who sustained the character of British subjects, although we might also have treated them as American citizens. The argument supposes, that because we could treat them as citizens, therefore, Great Britain had no right to insist upon their being British subjects, within the protection of the treaty. Now, if they were, in truth and in fact, upon principles of public and municipal law, British subjects, she has an equal right to require us to recognise them as such. It cannot be doubted, that Mrs. Shanks might 1 Hauenstein v. Lynham, 100 U. 8. 487. 155 250 SUPREME COURT [Jan’y Shanks v. Dupont. have inherited any lands in England, as a British subject, and her heirs might have taken such lands, by descent from her. It seems to us, then, that all ’British-born subjects, whole allegiance Great Britain has never renounced, ought, upon general principles of interpretation, to be held within the intent, as they certainly are within the words, of the treaty of 1794. In either view of this case, and we think both are sustained by principles of public law, as well as of the common law, and by the soundest rules of interpretation applicable to treaties between independent states, the objections taken to the right of recovery of the plaintiffs cannot prevail. Upon the whole, the judgment of the court is, that the plaintiffs in error are entitled to the moiety of the land in controversy, which came by descent to their mother, Ann Shanks, and of course, to the proceeds thereof ; and that the decree of the state court of appeals ought to be reversed ; and the cause remanded, with directions to enter a decree in favor of the plaintiffs in error. Johnson, Justice. [Dissenting.)—This cause comes up from the state court of South Carolina. *The question is, whether the plaintiffs can J inherit to their mother. The objection to their inheriting is, that they are aliens, not born in allegiance to the state of Sonth Carolina, in which the land lies. From the general disability of aliens they would exempt themselves : 1. On the ground that their mother was a citizen born, and in that right, though born abroad, they can inherit under the statute of Edw. III. 2. That if not protected by that statute, then that their mother was a British subject, and that she and her heirs are protected as to this land by the treaties of 1783 and 1794. The materia! facts of their case are, that their mother and her father were natives born of the province of South Carolina, before the declaration of independence ; that in 1781, while Charleston and James Island, where the land lies, and she and her father resided, were in possession of the British, theii* mother married their father, a British officer. That the descent was cast in 1782 ; and in December of that year, when the town was evacuated, she went to England with her husband, and resided there, until her death in 1801 ; in which interval, the appellants were born in England. There is no question about the right of the appellees, if the right of the appellants cannot be maintained. The first of the grounds taken below, to wit, the statute of Edw. III., was not pressed in argument here, and must be regarded as abandoned. The second requires, therefore, our sole attention. Was Mrs. Shanks to be regarded as a British subject, within the meaning of our treaties with Great Britain ? If so, then the land, which was acquired in 1782, has the peculiar incident attached to it, of being inheritable by aliens, subjects of Great Britain. Until the adoption of the federal constitution, titles to land, and the laws of allegiance, were exclusively subjects of state cognisance. Up to the time, therefore, when this descent was cast upon the mother, the state of South Carolina was supreme and uncontrollable on the subject now before * , us. By the adoption of the constitution, the power of the states J in this respect was subjected to some modification. *But although 156 1830] OF THE UNITED STATES. 252 Shanks v. Dupont. restrained in some measure from determining who cannot inherit, I consider her power still supreme in determining who can inherit. On this subject, her own laws and her own courts furnish the only rule for governing this or any other tribunal. By ah act of the state, passed in 1712, the common law of Great Britain was incorporated into the jurisprudence of South Carolina. In the year 1782, when this descent was cast, it was the law of the land ; and it becomes imperative upon these appellants, after admitting that their parent was a native-born citizen of South Carolina, daughter of a native-born citizen of South Carolina, to show on what ground they can escape from the operation of these leading maxims of common law. Nemo potest exuere patriam—and proles sequitur sortem paternam. The unyielding severity with which the courts of Great Britain have adhered to the first of these maxims in Dr. Storie's Case, furnished by Sir Matthew Hale, and in ^Eneas McDonald's Case, to be found in Foster, leaves no ground for complaint for its most ordinary application in the case of descent, and its most liberal application, when perpetuating a privilege. The treaty of peace can afford no ground to the appellants, nor the construction which has extended the provisions of that treaty to the case of escheat ; for the question here is not between the alien and the state, but between aliens and other individual claimants. The words of the sixth article of the treaty of 1783 are the same as those in the preliminary treaty of 1782. “ There shall no future confiscations made, or future prosecutions commenced against any person or persons, by reason of the part which he or they may have taken in the present war.” Conceding that escheat may be comprised under confiscation ; a decision between individuals, claiming under no act of force imputable to the state, cannot possibly be considered under that term. Nor will her case be aided by the following words of that article, to wit, “ nor shall any person, on that account (the part which he or they* may have taken in the present war), ^suffer any future rsf5 loss or damage, either in person, liberty or property.” The decis- l ion of the state court gives the most liberal extension possible to this provision of the treaty, since it declares that Mrs. Shanks never was precluded by any act of hers from claiming this property. It never entered into the minds of that court, that the very innocent act of marrying a British officer, was to be tortured into “ taking a part in the. present warnor that following that officer to England, and residing there under coverture, was to be imputed to her a cause of forfeiture. I consider it very important to a clear view of this question, that its constituents or several members should be viewed separately. The state court has not pretended to impugn the force of the treaty of 1794, or denied the obligation to concede every right that can be fairly and legally asserted under it; but has only adjudged, that the case of the appellants is not one which, on legal grounds of construction, can be brought within its provision. The words of the treaty are : “ It is agreed, that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of his majesty,” shall continue to hold and transmit to their heirs, &c. The decision of the state court which we are now reviewing presents two propositions : 1. That Mrs, Shanks was, in the year 1782, when the descent was cast, and con- 157 253 SUPREME COURT [Jan’y Shanks v. Dupont. tinned to be, in 1794, when the treaty was ratified, a citizen of South Carolina. 2. That she was not a British subject, in the sense of the treaty. As to the first of these two propositions, I consider it as altogether set at rest by the decision itself ; it is established by paramount authority ; and this court can no more say, that it is not the law of South Carolina, than they could deny the validity of a statute of the state passed in 1780, declaring that to be her character, and those her privileges. The only question, therefore, that this court can pass upon is, whether, being recognised under * , that character, and *possessing those rights, she is still a British sub- J ject, within the provisions of the treaty ? It is no sufficient answer to this question, that it cannot be denied, that Mrs. Shanks was a British subject. She was so, in common with the whole American people. The argument, therefore, proves too much, if it proves anything ; since it leads to the absurdity of supposing that Great Britain was stipulating for the protection of her enemies, and imposing on us an obligation in favor of our own citizens. It also blends and confounds the national character of those, to separate and distinguish whom, was the leading object of the treaty of 1783. It cannot be questioned, that the treaty of 1783 must have left Mrs. Shanks a British subject, or the treaty of 1794 cannot aid her offspring. And the idea of British subject, under the latter treaty, will be best explained, by reference to its meaning in that of 1783. The two treaties are in pari materia. The provisions of the third article show, that persons who come within the description of “ people of the United States,” were distinguished from subjects of Great Britain. That article stipulates for a right in the people of the United States to resort to the gulf of St. Lawrence for fishing ; a stipulation wholly nugatory, if not distinguishable from subjects of Great Britain. The fifth article is more explicit in the distinction. It first contains a provision in favor of real British subjects ; then one in favor of persons resident in districts in possession of his majesty’s arms ; and then stipulates that persons of any other description shall have liberty to go to and remain twelve months in the United States, to adjust their affairs. These latter must have included the loyalists who had been banished, or in any way subjected to punishment, who are explicitly distinguished from real British subjects, and thus classed, in order to avoid the question to whom their allegiance was due, or rather, because, by the same treaty, the king having renounced all claim to their allegiance, could no longer distinguish them as British subjects. Can those any longer be denominated British subjects, *whose -> allegiance the king of Great Britian has solemnly renounced ? I know of no test more solemn or satisfactory than the liability to the charge of treason ; not by reason of temporary allegiance, for that is gone with change of domicil; were those who could claim the benefit of the king’s renunciation to the colonies, subject to any other than temporary allegiance, while commorant in Great Britain ? I say, they were not. Their right to inherit is not a sufficient test of that liability, as to other nations, for that right results from a different principle, the exemption of a British subject from being disfranchised, while free from crime. Was Mr. Shanks an individual to whose allegiance the king had renounced his claim ? The commencement of the revolution found us all 158 1830] OF THE UNITED STATES. 255 Shanks v. Dupont. indeed professing allegiance to the British crown, but distributed into separate communities ; altogether independent of each other, and each exercising within its own limits, sovereign powers, legislative, executive and judicial. We were dependent, it is true, upon the crown of Great Britain, but as to all the world beside, foreign and independent. It lies, then, at the basis of our revolution, that when we threw off our allegiance to Great Britain, every member of each body politic stood in the relation of subject to no other power than the community of which he then constituted a member. Those who owed allegiance to the king, as of his province of South Carolina, thenceforward, owed allegiance to South Carolina. The courts of this country all consider this transfer of allegiance as resulting from the declaration of independence ; the British, from its recognition by the treaty of peace. But as to its effect, the British courts concur in oui- view of it. For, in the case of Thomas n. Acklam. 2 B. & C. 779, the language of the British court is this : “A declaration that a state shall be free, sovereign and independent, is a declaration that the people composing that state shall no longer be considered as the subjects of that sovereign by whom the declaration is made.” From the previous relations of the colonies and mother country, it is obvious, that the declaration of independence *must have found many persons resident in the country besides those whose allegiance was ■- ° marked by the unequivocal circumstance of birth ; many native-born British subjects voluntarily adhered to the American, and many foreigners had, by settlement, pursuits or principles, devoted themselves to her cause. Whatever questions may have arisen, as to the national character or allegiance of these ; as to the case under review, which is that of a native-born citizen of South Carolina, there would be no doubt. And the courts of that state have put it beyond a doubt, that the revolution transferred hei’ allegiance to that state. Whoever will weigh the words “real British subjects,” used in the fifth article, and consider the context, can come to but one conclusion, to wit, that it must mean British subjects to whose allegiance the states make no claim. “ Estates that have been confiscated, belonging to real British subjects,” are the words. Now, it is notorious, that although, generally speaking, the objects of those confiscations were those to whose allegiance the states laid claim, yet, in many instances, the estates of British subjects resident in England or this country, or elsewhere, were confiscated, because they were British subjects, on the charge of adhering to the enemy. But if the right of election had ever been contemplated, why should the term real have been inserted. The loyalists were British subjects, and had given the most signal proofs of their election to remain such. What possible meaning can be attached to the term real, unless it raised a distinction to their prejudice? And historically, we know, that Great Britain acknowledged their merits, by making large provisions for their indemnification ; because for them there was no provision made for restoring their property. It has been argued, that the British courts, in construing the treaty of peace, have recognised this right of election, and the case of Thomas v. Acklam, before cited, is supposed to establish it. But a very little attention to that case will prove the contrary. It is, in fact, the converse of the present case. Mrs. Thomas was the daughter of Mr. Ludlow, an American citizen, born before the revolution, and was born *in America, *- 7 159 .257 SUPREME COURT [Jan’y Shanks v. Dupont. long after the separation. So that her alien character was unquestionable, unless protected by the statute of Geo. IL, explaining those of Anne and Edward. The decision of the court of king’s bench is, that to bring herself within the provisions of the statute, her father must be shown, at her birth, have been both a native-born and a subject of Great Britain ; that by the treaty of peace, the king had renounced all claim to his allegiance, and his subsequent residence in America proved his acceptance of that renunciation. But when did South Carolina renounce the allegiance of Mrs. Shanks ? We have the evidence of the state having acquired it; when did she relinquish it ? Or, if it be placed on the footing of an ordinary contract, when did South Carolina agree to the dissolution of this contract ? Or when did she withdraw her protection, and thus dissolve the right to claim obedience or subjection ? It is true, the treaty of 1794 drops the word real, and stipulates generally for British subjects and American citizens ; construing the two treaties as instruments in pari materia. This circumstance is of little consequence ; and however we construe it, the argument holds equally good, that the treaty could have been only meant to aid those who needed its aid, not those who were entitled, under our own laws, to every right which the treaty meant to secure ; that is, those whose alien character prevented their holding lands,unless aided by some treaty or statute. Mrs. Shanks was not of this character or description ; her right, at all, times to inherit, has been recognised by paramount authority. But it is contended, that it was at her election, whether to avail herself of her birthright, as a citizen of the state, or hex* birthright as a subject of Great Britain. To this there may be several answers given. And first, the admission of this right would make her case no better under the construction of the treaty ; for having no need of its protection, as has been authentically recognised by the state decision, it cannot be supposed, that she was an object contemplated by the treaty; she was not a British subject, in n *the sense of those treaties, especially, if the two treaties be construed J on the principle of instruments in pari materia. Secondly, if she had the right of election, at what time did she exercise it ? for she cannot claim under her election, and against her election. If she exercised it, prior to her father’s death, then was she an alien at his death, and could not take even a right of entry by descent, as has been distinctly recognised in Fairfax n. Hunter, 1 Cranch 619, and I think in some other cases. She then had nothing for the treaty to act upon. But if her election was not complete, until subsequent to her father’s death, then it is clearly settled, that taking the oath of allegiance to a foreign sovereign produces no forfeiture, and she still had no need of a treaty to secure her rights to land previously descended to her. If the facts be resorted to, and the court is called upon to fix the period of her transit, it would be obliged to confine itself to the act of her marrying against her allegiance. It is the only free act of her life, stated upon the record, for from thence she continued sub potestate viri; and if she or her descendants were now interested in maintaining her original allegiance, we should hear it contended, and be compelled to admit, that no subsequent act of her life could be imputed to her because of her coverture; and even her marriage was probably during, her infancy. But lastly, I deny this right of election altogether, as existing in South 160 1830] OF THE UNITED STATES 258 Shanks v. Dupont. Carolina, more especially at that time. I had this question submitted to me on my circuit, some years since, and I then leaned in favor of this right of election. But more mature reflection has satisfied me, that I then gave too much weight to natural law and the suggestions of reason and justice ; in a case which ought to be disposed of upon the principles of political and positive law, and the law of nations. That a government cannot be too liberal in extending to. individuals the right of using their talents, and seeking their fortunes, wherever their judgments may lead them, I readily agree. There is no limit, short of its own security, to which *a wise and beneficent government would restrict r^. its liberality on this subject. But the question now to be decided is L of a very different feature ; it is not one of expediency, but of right. It is, to what extent may the powers of government be lawfully exercised, in restraining individual volition, on the subject of allegiance? and what are the rights of the individual when unaffected by positive legislation ? As the common law of Great Britain is the law of South Carolina, it would here, perhaps, be sufficient to state, that the common law altogether denies the right of putting off allegiance. British subjects are permitted, "when not prohibited by statute (as in the case with regard to her citizens), to seek their fortunes where they please, but always subject to their natural allegiance. And although it is not regarded as a crime, to swear allegiance to a foreign state, yet their government stands uncommitted on the subject of the embarrassments in which a state of war between the government of their natural and that of their adopted allegiance may involve the individual. On this subject, the British government acts as circumstances may dictate to her policy. That policy is generally liberal; and as war is the calling of many of her subjects, she has not been rigorous in punishing them, even when found with arms in their hands, where there has been no desertion, and no proclamation of recall. The right, however, to withdraw from their natural allegiance is universally denied by the common law. It is true, that, without any act of her own, Mrs. Shanks found herself equally amenable to both governments, under the application of this commonlaw principle. But from this only one consequence followed, which is, that so far as related to rights to be claimed or acquired, or duties to be imposed, under the laws of either government, she was liable to become the victim of the will or injustice of either. If we were called upon to settle the claims of the two governments to her allegiance, upon the general principles applicable to allegiance, even as recognised by the contending governments, we should be obliged to decide, that the superior claim was in South Carolina. For although, before the revolution, a subordinate state, yet it possessed *every attribute of a distinct state ; and upon principles of national r^9<,n law, the members of a state or political entity continue members of *- . the state, notwithstanding a change of government. The relations between the body politic and its members continue the same. The individual member and the national family remain the same, and every member which made up the body, continues, in the eye of other nations, in his original relation to that body. Thus, we see that the American government is, at this day, claiming indemnity of France, for the acts of those who had expelled the reigning'family from the throne, and occupied their place. But it is obvious, that although the common law be the law of South 3 Pet.—11 161 260 SUPREME COURT [Jan’y Shanks v. Dupont. Carolina, and its principles are hostile to the right of putting off our national allegiance; the constitution and legislative acts of South Carolina, when asserting her independence, must he looked into, to determine ■whether she may not then have modified the rigor of the common law, and substituted principles of greater liberality. South Carolina became virtually independent on the 4th of June 1775. The association adopted by her provincial congress on .that day, constituted her in effect an independent body politic ; and if, in international affairs, the fact of exercising power be the evidence of legally possessing it, there was no want of facts to support the inference there ; for officers were deposed, and at one time, the most influential men in the state were banished, under the powers assumed and exercised under that association. It required the indiscriminate subscription and acquiescence of all the inhabitants of the province, under pain of banishment. Neither of the constitutions adopted in 1776 or 1778 contains any definition of allegiance, or designation of the individuals who were held bound in allegiance to the state ; but the legislative acts passed under those constitutions, will sufficiently show the received opinion on which the government acted in its legislation upon this subject. Neither the ordinance for establishing an oath of abjuration and allegiance, passed February 13th, 1777, nor the act of March 28th, 1778, entitled “an act to oblige every free male inhabit-, ant of this state, above a certain age, to give *assurance of fidelity J and allegiance to the same,” holds out any idea of the right of election, The first requires the oath to be taken by any one to w’hom it is tendered, and the last requires it to be taken by every male inhabitant above sixteen, under pain of perpetual banishment. The preamble to the latter act, indeed, admits that protection and allegiance are reciprocal ; but the whole course of its legislation shows, that the legislature understands the right of election to belong to the state alone, and an election to withdraw allegiance from the state, as a crime in the individual. The eleventh, or penal clause, is very explicit on this subject. It runs thus, “ that if any person refusing or neglecting to take the oath prescribed by this act, and withdrawing from this state, shall return to the same, then he shall be adjudged guilty of treason against this state, and shall, upon conviction thereof, suffer death as a traitor.” Now, therefore, where there is no allegiance, there can be no treason. Since, then, the common law of England was the law of allegiance and of descents in South Carolina, when this descent was cast upon the mother, and since remained unaltered by any positive act of legislation of the only power then possessing the right to legislate on the subject; it follows, that the representatives of Mrs. Shanks can derive no benefit from her election ; unless the right to elect is inherent and inalienable in its nature, and remains above the legislative control of society, notwithstanding the social compact. All this doctrine I deny. I have already observed, that governments cannot be too liberal in extending the right to individuals; but as to its being inalienable, or unaffected by the social compact, I consider it to be no more so than the right to hold, devise or inherit the lands or acquisitions of an individual. The right to enjoy, transmit and inherit the fruits of our own labor, or of that of our ancestors, stands on the same footing with the right to employ oui’ industry, wherever it can be best employed ; and the obligation to obey the laws of community on the subject of the right to emigrate, 162 1830] OF THE UNITED STATES. *262 Shanks v. Dupont. is as clearly to be inferred from the reason and *nature of things, as the obligation to use or exercise any other of our rights, powers or faculties, in subordination to the public good. There is not a,writer who treats upon the subject, who does not qualify the exercise of the right to emigrate, much more, that of putting off or changing our allegiance, with so many exceptions as to time and circumstances, as plainly to show that it cannot be considered as an inalienable or even perfect right. A state of war, wrant of inhabitants, indispensable talents, transfer of knowledge and wealth to a rival, and various other grounds, are assigned by writers on public law, upon which a nation may lawfully and reasonably limit and restrict the exercise of individual volition in emigrating, or putting off oui’ allegiance. All this shows, that whenever an individual proposes to remove, a question of right or obligation arises between himself and the community, which must be decided on in some mode. And what other mode is there but a reference to the positive legislation or received principles of the society itself ? It is, therefore, a subject for municipal regulation ; and the security of the individual lies in exerting his influence to obtain laws which will neithei’ expose the community unreasonably, on the one hand, nor restrain one individual unjustly, on the other. Nor have we anything to complain of in this view of the subject. It is a popular and flattering theory, that the only legitimate origin of government is in compact, and the exercise of individual will. That this is not practically true, is obvious from history ; for, excepting the state of Massachusetts, and the United States, there is not, perhaps, on record, an instance of a government purely originating in compact. And even here, probably, not more than one-third of those subjected to the government had a voice in the contract. Women, and children under an age arbitrarily assumed, are necessarily excluded from the right of assent, and yet arbitrarily subjected. If the moral government of our Maker and our parents is to be deduced from gratuitous benefits bestowed on us, why may not the government that has shielded our infancy, claim from us a debt of gratitude, to be repaid after manhood? In the course of nature,man has need *of protection and improvement, long before he is able to reciprocate these benefits. L These are purchased by the submission and services of our parents ; why then should not those to whom we must be indebted for advantages so indispensable to the development of our powers, be permitted, to a certain extent, to bind us apprentice to the community from which they have been and are to be procured ? If it be answered, that this power ought not to be extended unreasonably, or beyond the period when we are capable of acting for ourselves ; the answer is obvious—by what rule is the limit to be prescribed, unless by positive municipal regulation ? It is of importance, here, that it should be held in view, that we are considering political, not moral obligations. The latter are universal and immutable, but the former must frequently vary according to political circumstances. It is the doctrine of the American courts, that the issue of the revolutionary war settled the point, that the American states were free and independent on the 4th of July 1776. On that day, Mrs. Shanks was found under allegiance to the state of South Carolina, as a natural-born citizen to a community, one of whose fundamental principles was, that natural allegiance 163 263 SUPREME COURT [Jan’y Shanks v. Dupont. was inalienable ; and this principle was at no time relaxed by that state, by any express provision, while it retained the undivided control over the rights and liabilities of its citizens. But it is argued, that this lady died long after the right of passing laws of naturalization was ceded to the United States, and the United States have, in a series of laws, admitted foreigners to the right of citizenship, and imposed an oath which contains an express renunciation of natural and every other kind of allegiance. And so of South Carolina ; she had previously passed laws to the same effect. In 1704, she passed a law “for making aliens free of this province,” which remained in force until 1784, when it was superseded by the act of the 26th of March, “ to confer the right of citizenship on aliens;” to which succeeded that of the 22d of March 1786, entitled “an act to *2041 con^er certain *rights and privileges on aliens, and for repealing the J act therein mentioned.” In both the latter acts, the oath of allegiance is required to be taken ; and that Oath, as prescribed by the act of the 28th of March 1778, contains an abjuration of allegiance to any other power, and particularly to the king of Great Britain. These legislative acts, it cannot be denied, do seem to hold out the doctrine of the right to change our allegiance, aiid do furnish ground for insisting, that it is absurd in a government to deny to its own citizens the right of doing that, which it encourages to be done by the citizens of other states. Most certainly, it is to be regretted, that congress has not long since passed some law upon the subject, containing a liberal extension of this right to individuals, and prescribing the form and circumstances under which it is to be exercised, and by which the act of expatriation shall be authenticated. A want of liberality in legislating on this subject might involve the government in inconsistency ; but the question here is, whether, in absence of such declaration of the public will or opinion, courts of justice are at liberty to fasten upon the government, by inference, a doctrine negatived by the common law, and which is in its nature subject to so many modifica-cations. I think not. Great Britain exercises the same power, either by the king’s patent or by legislative enactment; and permanent laws exist in that country which extend the rights of naturalization to men, by classes, or by general description. Yet this implication has never been fastened upon her ; nor is the doctrine of her common law less sternly adhered to, or less frequently applied, even to the utmost extent of the punishing power of her courts of justice. In practice, she moderates its severities ; but in this, it is will and policy that guides her, not any relaxation of the restriction upon individual rights. Thsre is, indeed, one prominent difficulty hanging over this argument, *26“! which it is impossible to remove. If it proves *anything, it proves J too much ; since the inference, if resulting at all, must extend to put off one’s allegiance, as well to adopted citizens as to natural-born citizens ; and to all times and all circumstances. What, then, is that obligation, that allegiance worth, which may be changed a hundred times a day ? or by passing over from one army to another, perhaps, in the day of battle ? The truth is, it leaves but a shadow of a tie to society, and converts that which is considered as one of the most sacred and solemn obligations that can be entered into, although confirmed by the sanctity of an oath, into nothing but an illusory ground of confidence between individuals and their governments. 164 1830] OF THE UNITED STATES. 265 Shanks v. Dupont. The idea brings man back to a state of nature; at liberty to herd with whom he pleases, and connected with society only by the caprice of the moment. Upon the whole, I am of opinion, that Mrs. Shanks continued, as she was born, a citizen of South Carolina ; and, of course, unprotected by the British treaty. I have taken a general view of the subject, although it does not appear precisely, whether or not Mrs. Shanks had attained an age sufficiently mature to make an election, before marriage, or was ever discovert, during her life, so as to be able to elect, after marriage. I have reasoned on the hypothesis most favorable to her, admitting that she had made an election in authentic form. Nor have I confined myself to authority; since I wished, so far as I was instrumental, to have this question settled on principle. But it does appear to me, that in the case of Coxe v. Mcllvaine, this court has decided against the right of election, most expressly; for if ever the exercise of will or choice might be inferred from evidence, it is hardly possible for a stronger case to be made out, than that which is presented by the facts in that case. With regard to state decisions upon this question, I would remark, that it is one so exclusively.of state cognisance, that the courts of the respective states must be held to be best acquainted with their own law upon it. Though every other state in the Union, therefore, should have decided differently from the state of South Carolina, their decisions could only determine their own respective law upon this subject, and *could not weaken that of South Carolina, with regard to her own law of alle- •-giance and descents. It does appear singular, that we are here called upon to overrule a decision of the courts of South Carolina, on a point on which they ought to be best informed, and to decide an individual to be a British subject, to whose allegiance the British courts have solemnly decided the king has no claim. On this point, the case of Ludlow, in Thomas v. Acklam, is the case of Mrs. Shanks ; it is impossible to distinguish them. The state of South Carolina acknowledges her right to all the benefits of allegiance ; the king of Great Britain disavows all claim to her allegiance ; and yet we are called upon to declare her a British subject. I have not had opportunity for examining the decisions of all the states upon this subject, but I doubt not, they will generally be found to concur in principle with the court of South Carolina, except so far as they depend upon local law. This is certainly the case in Massachusetts. The decision in the case of Palmer n. Downer does, it is true, admit the right of election ; but besides that that case is very imperfectly, and I may add, unauthentically, reported, it is most certainly overruled in the subsequent case of Martin n. Woods. Before I quit the case, it may be proper to notice a passage in a book recently published in this country, and which has been purchased and distributed under an act of congress ; I mean, Gordon’s Digest. There is no knowing what degree of authority it may be supposed to acquire by this act of patronage; but if there is any weight in the argument in favor of expatriation, drawn from the acts of congress on that subject, I presume the argument will, at some future time, be applied to the doctrines contained in this book. If so, it was rather an unhappy measure to patronise it; since we find in it a multitude of nisi prius decisions, obiter dicta, and certainly, some striking misapprehensions, ranged on the same shelf with acts of con- 165 266 SUPREME COURT [Jan’y Shanks v. Dupont. gress. On the particular subjects now under consideration, art. 1649, we find the following sentence: “ Citizens of the United States have a right to * _ expatriate themselves in time of war, as well as in *time of peace, -* until restrained by congress;” and for this doctrine the author quotes Talbot v. Jansen, 3 Dall. 133, and the case of The Santissima Trinidad, *1 Wheat. 348; in both which cases, the author has obviously mistaken the argument of counsel for the opinion of the court; for the court in both cases expressly wraive expressing an opinion, as not called for by the case, since, if conceded, the facts were not sufficient to sustain the defence. The author also quotes a case from Peters’ C. C., which directly negatives the doctrine, and a case from 4 Hall’s Law Journal 462, which must have been quoted to sustain the opposite doctrine. It is the case of the United States v. Williams, in which the chief justice of the United States presided, and in which the right of election is expressly negatived, and the individual who pleaded expatriation was convicted and punished. This cause came on to be heard, on the transcript of the record from the supreme court of appeals in law and equity in and for the state of South Carolina, and was argued by counsel: On consideration whereof, it is considered and declared by this court, that Ann Shanks, the mother of the original defendants, wras, at the time of her death, a British subject, within the true intent and meaning of the ninth article of the treaty of amity, commerce and navigation, made between his Britannic majesty and the United States of America, on' the 19th of November 1794; and that the said original defendants, as her heirs, and British subjects, are capable to take, and did take, by descent from her, the moiety of the land in the proceedings mentioned, and are entitled to the proceeds of the sale thereof, now in the registry of the circuit court of equity, as in the said proceedings mentioned : It is therefore considered and adjudged by this court, that there is error in the decree of the said court of appeals in equity of the state of South Carolina, in affirming the decree of the circuit court, in said proceedings mentioned, whereby it was ordered and decreed, that the money arising * from the sale of the land in question, theretofore *reserved, subject -* to the order of the court, be paid over to the petitioners, as the only heirs who are capable of taking the same : And it is further ordered and adjudged by this court, that for this cause, the decree of the circuit court aforesaid, and of the court of appeals aforesaid, be and each of them is hereby reversed : And it is further ordered and adjudged by this court, that the cause be remanded to the said court of appeals, with directions that a decree be entered therein, that the said moiety of the said proceeds of the said sale be paid over to the original defendants (the present plaintiffs in error) as their right, and that such further proceedings be had therein, as to justice and equity may in the premises appertain. 166 1830] OF THE UNITED STATES. ♦269 * James De Wolf v. George F. Usher. Division of opinion. Where the point on which the judges of the circuit court divided in opinion was not certified, but the point of difference was to be ascertained from the whole record, the court refused to take jurisdiction of the case. This cause came before the Court on a certificate of a division between the judges of the Circuit Court of the district of Rhode Island. When the case was opened by the counsel for the plaintiff, it was found, on inspecting the record, that the particular point on which the judges of the circuit court had differed, was not certified. The whole record had been sent up, and it contained a certificate that the judges of the court had differed in opinion, without a specific statement of what the difference was. The Court refused to take jurisdiction of the cause, and remanded the same to the circuit court of Rhode Island, with directions to proceed therein according to law. Coxe, for plaintiff ; Whipple, for defendant. * William McCluny, Plaintiff in error, v. Wyllis Silliman, [*270 Defendant in error. Statute of limitations. The plaintiff sued the defendant, as register of the United States land-office in Ohio, for damages, for having refused to note in his books, applications made by him for the purchase of land within his district; the declaration charged the register with this refusal; the lands had never been applied for nor sold, and were, at the time of the application, liable to be so applied for and sold. The statute of limitations is a good plea to the suit. It is a well-settled principle, that a statute of limitations is the law of the forum, and operates upon all who submit themselves to its jurisdiction.1 p. 276. Under the 34th section of the judiciary act of 1789, the acts of limitations of the several states, where no special provision has been made by congress, form a rule of decision in the courts of the United States, and the same effect is given to them, as is given in the state courts, p. 277. Construction of the statute of limitations of the state of Ohio. p. 278. Where the statute of limitations is not restricted to particular causes of action, but provides, that the action, by its technical denomination, shall be barred, if not brought within a limited time, every cause for which such action may be prosecuted, is within the statute, p. 278. In giving a construction to the statute of limitations of Ohio, the action being barred by its denomination, the court cannot look into the cause of action; they may do this in those cases where actions are barred for causes specified in the statute; for the statute only operates against such actions, when prosecuted on the grounds stated, p. 278. Of late years, the courts, in England and in this country, have considered statutes of limitations more favorably than formerly; they rest upon sound policy, and tend to the peace and welfare of society ; the courts do not now, unless compelled by the force of former decisions, give a strained construction, to evade the effect of those statutes; by requiring those who complain of injuries to seek redress by action at law, within a reasonable time, a salutary vigilance is imposed, and an end is put to litigation, p. 278. 1 Hawkins v. Barney, 5 Pet. 457; United States Bank«. Donnally, 8Id. 361; McElmoyle v. Cohen, 13 Id. 312; Townsend v. Jemison, 9 How. 407; Randolph v. King, 2 Bond 104; Decouche v. Saveties, 3 Johns. Ch. 190; Lincoln v. Battelle, 6 Wend. 495. 167 270 SUPREME COURT [Jan’y McCIuny v. Silliman. Error to the Circuit Court of Ohio. In the circuit court of Ohio, the plaintiff in error instituted a suit, on the 15th of December 1823, against the defendant, who was register of the United States land-office at Zanesville, to recover damages for having, as register, refused to enter an application in the books of his office, for certain lands in his district; the entry-having been required to be made according to the provisions of the tenth section of the act of congress, passed the 18th of May 1796, entitled “an *9*711 *act providing for the sale of the lands of the United States, in the J territory north-west of the river Ohio, and above the mouth of the Kentucky river.” The declaration charged, that the register, on the 2d of August 1810, refused to enter the application, although the lands had never been legally applied for or sold, and were then liable to be applied for and sold. The defendant pleaded not guilty, and not guilty within six years before the commencement of the suit ; to the latter plea, there was a demurrer, and joinder in demurrer. The circuit court overruled the demurrer, and sustained the plea of the statute of limitations. The plaintiff prosecuted this writ of error ; and sought to reverse the judgment, on the grounds : 1. That the statute of limitations does not apply to an action upon the case, brought fdr an act of nonfeasance or misfeasance in office. 2. That no statute of limitations of the state of Ohio, then in force, is pleadable to an action upon the case, brought by a citizen of one state against a citizen of another, in the circuit court of the United States, for malfeasance or nonfeasance in office, in a ministerial officer of the general government ; and especially, where the plaintiff’s rights accrued to him under a law of congress. Doddridge, for the plaintiff in error, argued, that there are many cases within the words of the statute of 21 Jac. I., c. 16, for limitation of personal actions, which are not within its meaning ; as, debt against a sheriff for an escape ; debt against a sheriff for money levied ; actions ex male-ficio ; debt for not setting out tithes under the statute, although founded on the highest record, an act of parliament; debt on award, although founded on contract. 1 Saund. 38 ; 5 Bac. Abr. 509 ; 2 Lev. 191 ; Esp. N. P. 653. Out of the clause limiting actions for words, are excepted, slander of title ; scandalum magnatum. Cro. Car. 141 ; Esp. N. P. 519. The stat-*9(79-1 ute does not extend to trusts, to charities, or to ^legacies. 3 Bac. 7 J Abr. 510 ; 2 Ld. Raym. 852, 935, 1204 ; 1 Salk. 861, pl. 11 ; 5 Mod. 308 ; 1 Wash. 145 ; 4 Munf. 222. Statutes of limitation are leges fori ; and it rests with the sovereign power of the state to say how far the interests of the society it represents require that its own courts shall be kept open to give redress in each particular case, or whether there shall be any limitation of personal actions. It particularly belongs to each government, to say how long its ministerial officers shall be exposed to the claims of those who consider themselves aggrieved by their acts of misfeasance or nonfeasance ; consequently, in such cases, the statutes of limitation of one state cannot be pleaded in bar in the courts of another state. 2 Mass. 84 ; 1 Caines 402 ; 3 Johns. 261, 263 ; 2 Ibid. 198; 2 Vern. 540 ; 13 East 439, 450 ; 7 Mass. 515 ; 3 Johns. Ch. 217, 219 ; 17 Mass. 55. Neither in Virginia, nor in Pennsylvania, nor in New York, are cases 168 1830] OF THE UNITED STATES. 272 McCluny v. Silliman. found, of a plea of the statute of limitations in an action arising ex maleficio. It is claimed, that the right to such a plea does not exist in the courts of either of those states. There are no cases in this court. In all those in which the plea of the statute of limitations has been sustained, the statutes of the state have been pleaded to suits in the federal courts. 2 Cranch 272 ; Hdpkirk v. Bell, 3 Ibid. 454 ; Mandeville n. Wilson, 5 Ibid. 15 ; 7 Ibid. 156 ; 8 Ibid. 84 ; 3 Wheat. 541 ; 5 Ibid. 124 ; 6 Ibid. 481, 497. The nature of the case prevents there being a state decision in affirmance of the principles claimed for the plaintiff in error. The question is no more or less than this : where a duty is created by an act of congress, to be performed by a ministerial officer of the general government, for the benefit of a citizen of another state, whose rights grow out of the same law, and the injured party, as a citizen of another state, sues the officer in a federal court, for malfeasance or for nonfeasance ; can that officer plead in bar a statute of the state, made for the protection of its own ministerial officers ? *The: ^273 circuit court, in the trial of civil actions arising under the law of a state or cognisable by its courts, where a citizen of another state or a foreigner is plaintiff, act precisely as a state court, and is bound to interpret and enforce its laws as they are made to operate in the state courts. If the law of Ohio can be pleaded at all, it is the act of the 24th of January 1810, which went into operation the 1st of June 1810 ; the act which is the cause of action in this suit having been done in August 1810. That law (4 Ohio Laws, page 62, § 1), provides, “ that all actions of trespass for assault, menace, battery or wounding, actions of slander for words spoken, or libel, or false imprisonment, shall be brought within one year next after the cause of such actions or suits ; and all actions upon book-accounts, and for forcible entry and detainer, shall be brought within four years next after the cause of such actions and suits ; and all actions of trespass upon real property, trespass, detinue, trover and conversion, and replevin, all actions on the case, or of debt for rent, shall be sued or brought within six years next after the cause of such action arose.” This act is not a copy of the statute of James I., c. 16 ; and all the objections that would urge the exemption of suits ex maleficio, from that statute, may be presented under the law of Ohio ; other exceptions may also be claimed. “ Actions on the case” are associated with actions arising ex contractu; and thus actions arising out of contract are only intended to be provided for—nothing is said in the law of actions ex maleficio. If actions of this kind arc embraced by the act of 1810, they are only so, by a forced construction of the words “ actions on the case,” associated and classed in the same statute with various actions arising ex contract'd.; while in a subsequent law of Ohio, passed in 1824, they are described in express terms, and naturally associated in the same sentence with various other actions, arising ex delicto. But if these actions are embraced in the act of 1810, they must be such only as may be prosecuted against officers of the state. Actions against officers of the United States were not in the view or contemplation of the legislature of *Ohio, when the law was enacted, nor did they intend H to afford protection to any officer but one of the state. Certainly, the *• 1 legislature had not before them the protection of the registers of the United States land-office, from suits for a violation of duties by which the citizens of Ohio might be injured. To .apply the regulations of the several states to 169 274 SUPREME COURT [Jan’y McCIuny v. Silliman. such cases, would produce the absurdity and injustice of different laws, and different limitations, existing in different states. If the power of state legislatures to limit actions against officers of the United States be admitted, the power over those officers might be exercised in other and in oppressive legislative provisions. The statute of Ohio cannot be enlarged by construction, so as to apply it to things not properly within state control, nor within the intention contemplated by those who enacted it. Berrien, Attorney-General, for the defendant in error, contended, that the application and authority of state statutes of limitations to suits in the circuit courts of the United States, had been frequently decided in this court. What may have been the intention.of the legislatures of the states, in enacting limitation laws, is not inquired into, and is not material; the only question is, whether the law applies to the case. Faw v. Roberdeau, 3 Cranch 174 ; Ilopkirk v. Bell, 3 Ibid. 454 ; Marsteller v. McClean, 1 Ibid. 156, 158 ; King n. Riddle, Ibid. 168 ; Bond v. Jay, Ibid. 350 ; Clementson v. Williams, 8 Ibid. 72, &c. It is admitted, that this action was not commenced within six years ; and that it is, in its nature, an action which would be within the operation of the law of Ohio, unless a construction shall be given to that law different from the general and usual import of its terms. The argument, that the association of the action on the case with debt for rent, proves that pecuniary actions were only to be barred, will not be found correct; as “ forcible entry n and book-accounts” are in the same association. *The plain and J obvious construction of the law is that which has been given by the circuit court. The different kinds of action, and causes of action, upon which the.limitations of the law were intended to operate, were in the view and purpose of the legislature of Ohio ; the association or classification was not, because the cases were analogous, or had an affinity one to the other, but because of the intention that the action of the statute should be the same as to time on each of the members of the class. The words of the statute of Ohio being general, unless the officers under the government of the United States are especially exempted, they may avail themselves of its provisions. 2 Stark, on Evid. 901 ; 1 Saund. 37 ; 3 Bac. Abr. 509 ; Ballantine on Limitations 88. McLean, Justice, delivered the opinion of the court.—This suit was brought by the plaintiff against the defendant, as register of the United States land-office at Zanesville, in the district of Ohio. The declaration charges, that on the 2d of August, in the year 1810, the plaintiff produced to the defendant, in his office of register, the receipts of the receiver of public moneys at that office, as follows, viz., one No., 3255, and another No. 3256, amounting together to the sum of $190.89 of moneys paid by the plaintiff to the receiver, for the purchase of public lands in the said district, being the one-twentieth part of the purchase-money for section No. 6, in township No. 12, and range No. 13, and fraction No. 5, in the same township and range adjoining the said section ; and for section No. 12, and fraction No. 1, adjoining in township No. 13, and range No. 14 of public lands within that district; and that the plaintiff then and there applied to the defendant for the purchase of the said lands> that is, each of the said sec-170 1830] OF THE UNITED STATES. 275 McCluny v. Silliman. tions with the fractions attached according to law, and requested that his *application should be entered on the books of the defendant’s office ; upon which application, the defendant informed the plaintiff, that the L 1 said lands had been sold at Marietta, before the establishment of the landoffice at Zanesville ; and if not so sold there, that they had not been offered at public sale at Zanesville : whereupon, the plaintiff insisted on his applications, and requested to have them entered, according to the provisions of the tenth section of the act of congress, approved the 18th of May 1796, entitled “ an act providing for the sale of the lands of the United States, in the territory north-west of the river Ohio, and above the mouth of Kentucky river.” The declaration then charges, that the register refused to enter the application, although the lands had never been legally applied for, nor sold, and were then liable to be applied for and sold. The damages are laid at $50,000. To this declaration, the defendant pleaded not guilty, whereupon, issue is joined ; and not guilty within six years before the commencement of the suit; to the latter plea, there is a general demurrer and joinder in demurrer. The circuit court of the United States for the district of Ohio overruled this demurrer, and sustained the plea of the statute of limitations ; and this writ of error is brought to reverse that decision. For the plaintiff in error, it is contended : 1. That the statute of limitations does not apply to an action upon the case, brought for an act of nonfeasance or malfeasance in office. 2. That no statute of limitations of the state of Ohio, then in force, is pleadable to an action upon the case, brought by a citizen of one state against a citizen of another, in the circuit court of the United States, for malfeasance or nonfeasance in office, in a ministerial officer of the general government, and especially, where the plaintiff’s rights accrued to him under a law of congress. The decision in this cause depends upon the construction of the statute of Ohio, which prescribes the time within which certain actions must be brought. It is a well-settled *principle, that a statute of limitations 1*277 is the law of the forum, and operates upon all who submit themselves L to its jurisdiction. In the 34th section of the judiciary act of 1789, it is provided, “ that the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.” Under this statute, the acts of limitations of the several states, where no special provision has been made by congress, form a rule of decision in the courts of the United States, and the same effect is given to them as is given in the state courts. The act in question provides, “ that all actions hereinafter mentioned, shall be sued or brought within the time hereinafter limited ; all actions of trespass for assault, menace, battery and wounding, actions of slander for words spoken, or libel, and for false imprisonment, within one year next after cause of such actions or suits ; and all actions of book-accounts, or for forcible entry and detainer, or forcible detainer, within four years after the cause of such action or suits ; and all actions of trespass upon real property, trespass, detinue, trover and conversion, and replevin, all actions upon the case, and of debt for rent, shall be sued or brought within six years next after the cause of such actions or suits.” 171 277 SUPREME COURT [Jan’y McCluny v. Silliman. It is contended, that this statute cannot be so construed as to interpose a bar to any remedy sought against an officer of the United States, for a failure in the performance of his duty ; that such a case could not have been contemplated by the legislature ; that the language of the statute does not necessarily embrace it; and, consequently, the statute can only apply in cases of nonfeasance or malfeasance in office, to persons who act under the authority of the state, and are amenable to it. It is not probable, that the legislature of Ohio, in the passage of this statute, had any reference to the misconduct of an officer of the United States. Nor does it seem to have *2781 been their intention, to restrict the provision of the statute *to any J particular causes for which the action on the case will lie. In the actions of trespass, debt and covenant, specified, the particular causes of action barred by the statute are stated ; but this is not done in the action on the case, nor is it done'in the action of detinue, trover and conversion, and replevin. Where the statute is not restricted to particular causes of action, but provides that the action, by its technical denomination, shall be barred, if not brought within a limited time, every cause for which the action may be prosecuted is within the statute. If the statute required the action of debt for rent to be brought within six years from the time the cause of action arose, the bar could extend to no other action of debt. But if the statute provided, that all actions of debt should be prosecuted within six years, then it would operate against the action, for whatever cause it was brought. The action on the case must be brought within six years from the time the cause of action arose, and it is immaterial, what that cause may be; the statute bars the remedy by this form of action, if it be not prosecuted within the time. In giving a construction to this statute, where the action is barred by its denomination, the court cannot look into the cause of action. They may do this, in those cases where actions are barred, when brought for causes specified in the statute ; for the statute only operates against such actions, when prosecuted on the grounds stated. By bringing his action on the case, the plaintiff has selected the appropriate remedy for the injury complained of. This remedy, the statute bars. Can the court, then, by referring to the ground of the action, take the case out of the statute ? The demurrer admits the plea of the statute ; and as it declares, in express terms, that the action is barred, the court can give no other effect to it, by construction. Of late years, the courts, in England and in this country, have considered statutes of limitations more favorably than formerly. They rest upon sound policy, and tend to the peace and welfare of society. The courts do not now, unless Compelled by the force of former decisions, give a J strained construction, to evade the effect of those statutes. By requiring those who complain of injuries to seek redress by action at law, within a reasonable time, a salutary vigilance is imposed, and an end is put to litigation. The judgment in this case must be affirmed. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Ohio, and was argued by counsel : On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby affirmed, with costs. 172 1830] OF THE UNITED STATES. *280 *James Jackson, on the demise of Harman V. Hart, Plaintiff in error, v. Elias Lamphire, Defendant in error. Error to state court.—Obligation of contracts.—Recording acts. This court has no authority, on a writ of error to a state court, to declare a state law void, on account of its collision with a state constitution; it not being a case embraced in the judiciary act, which gives the power to issue a writ of error to the highest judicial tribunal of the state.1 p. 228. The plaintiff in error claimed to recover the land in controversy, having derived his title under a patent granted by the state of New York to John Cornelius; he insisted, that the patent created a contract between the state and the patentee, and his heirs and assigns, that they should enjoy the land, free from any legislative regulations to be made, in violence of the constitution of the state, and that an act passed by the legislature of New York, subsequent to the patent, did violate that contract; under that act, commissioners were appointed to investigate the contending titles to all the lands held under such patents as that granted to John Cornelius, and by their proceeding, without the aid of a jury, the title of the defendants in error was established against, and defeating, the title under a deed made by John Cornelius, the patentee, and which deed was executed under the patent. This is not a case within the clause of the constitution of the United States, which prohibits a state from passing laws which shall impair the obligation of contracts ; the only contract made by the state, is a grant to John Cornelius, his heirs and assigns, of the land ; the patent contains no covenant to do, or not to do, any further act, in relation to the land; and the court are not inclined to create a contract by implication ; the act of the legislature of New York does not attempt to take the land from the patentee, the grant remains in full effect; and the proceed-irigs of the commissioners under the law, operated upon titles derived under, and not adversely to the patent, p. 289. It is within the undoubted powers of state legislatures, to pass recording acts, by which the elder grantee shall be postponed to a younger, if the prior deed be not recorded within a limited time; and the power is the same, whether the deed is dated before or after the recording act; though the effect of such a deed is to render the prior deed fraudulent and void against a subsequent purchaser, it is not a law violating the obligation of contracts. So too, is the power to pass limitation laws; reasons of sound policy have led to the general adoption of laws of this description, and their validity cannot be questioned; the time and manner of their operation, the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend on the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment. Cases may occur, where the provisions of a law on these subjects may be so unreasonable as to amount to a denial of a right, and to call for the interposition of this court.2 p. 290. Error to the Court for the Trial of Impeachments and Correction of Errors for the state of New York. *An action of ejectment was commenced in the supreme court of r#0R1 New York, to May term 1825, for a tract of land, part of lot No. 36, L in Dryden, Tompkins county, part of the military tract, and formerly part of Onondaga county. The cause was tried in June 1826, and a verdict and judgment were rendered for the defendant. On the trial of the cause, a bill of exceptions was tendered by the plaintiff, and a writ of error was 1 De la Lande’s Heirs v. Louisiana, 18 How. 192 ; Withers v. Buckley, 20 Id. 84; Medway v. Ohio, 24 Id. 413; Porter v. Foley, Id. 413. 2 An enactment reducing the time prescribed by the statute of limitations, in force when the right of action accrued, is not unconstitutional, provided a reasonable time be given for the commencement of a suit, before the bar takes effect. Terry v. Anderson, 95 U. 8. 628 ; Bockee v. Crosby, 2 Paine 432. But a statute of limitations which takes away a present existing right, is unconstitutional. Webster v. Cooper, 14 How. 488. s, p. Johnson ®. Bond, Hempst. 533. And see Metz v. Hopps, 96 Penn. St. 15. 173 281 SUPREME COURT [Jan’y Jackson v. Lamphire. prosecuted by him to the supreme court of errors of the state of New York, where the judgment of the court below was affirmed ; and the plaintiff brought up the case to this court by writ of error. The title of the plaintiff, as stated in the bill of exceptions, was derived under letters-patent, for the whole lot No. 36, issued to John Cornelius, and his heirs and assigns, under the great seal of the state of New York, dated the 17th of July 1790 ; and a conveyance in fee of the lot, from the patentee to Henry Hart, dated the 17th of January 1784, duly proved and deposited for record, according to the provisions of a statute of the state, on the 25th of April 1795. Evidence was also given, to prove that Henry Hart died, some time in the summer of 1788, leaving the lessor of the plaintiff his heir-at-law, he being then a minor, aged about five years. That about the year 1791, he was taken to Canada, by his paternal uncle, and afterwards entered into the employ of the North-West Company, and continued in the same for upwards of sixteen years, and then returned to New York, and had since resided in Albany in that state. The title of the defendant was derived from the same patent to John Cornelius, and under a deed executed by him, dated June 23d, 1784, duly proved October 31st, 1791, and deposited, according to the statute, April 3d, 1795. By this deed, the premises in dispute were conveyed to Samuel Brown. On the 25th of January 1793, Brown conveyed to William J. Vredenburgh and John Patterson ; on the 9th of June 1800, Vredenburgh, for himself, and as attorney for Patterson, regularly constituted, conveyed to Gerret H. Van Wagoner, who, on the 9th of June 1800, conveyed to William J. Vredenburgh ; and by a deed duly executed by Vredenburgh, July *oqo1 5th, 1800, duly acknowledged and recorded, *the premises were vested -I in Elias Lamphire, the defendant in error. On the 24th of March 1797, the legislature of New York passed “an act to settle disputes concerning the titles to lands in the county of Onondaga.” The preamble of that law recited : Whereas, a convention of delegates from a number of towns in the county of Onondaga have, by their petition presented to the legislature, prayed that a law may be passed, authorizing a speedy and equitable mode of settling disputes relative to the titles of land in that county : therefore, be it enacted, &c. The first section appointed commissioners, with full power to hear, examine, award and determine, according to law and equity, all disputes and controversies respecting the titles, and all claims whatsoever, to any lands in the county of Onondaga, and to examine any party or parties submitting to their examination, and witnesses, on oath, and to commit any witness refusing to be sworn, or to answer any question or questions touching the premises, to the jail of the county in which they might then sit, there to remain until he or she should submit to be sworn, and to answer such question or questions : provided, always, that no person should be obliged to answer any question which might tend to charge himself or herself with any crime, nor should any witness be compelled to answer any question or questions wherein he or she should be interested. The second section directed, that the commissioners should proceed to execute their trusts, and should meet for the purpose, at times most convenient, in the county of Onondaga, and should cause their award or determination upon every claim or controversy respecting any lands in the said 174 1830] OF THE UNITED STATES. 282 Jackson v. Lamphire. county of Onondaga, to be entered in a book or books to be by them provided for that purpose ; which award or determination should, after the expiration of two years after the making thereof, become binding and conclusive to all persons, except such as, conceiving themselves aggrieved by any such award or determination, should, within the said two years, dissent from the same, and give notice thereof to the said commissioners, *or file the same in the office of the clerk of the county of Onondaga ; *-and should also, if not in the actual possession of such land, within three years after such award or determination, commence a suit or suits, either at law or in equity, to recover the land, or to establish his or her right to the same, and should prosecute such suit or suits to effect; in which case, such award or determination should not operate as a bar to such suit or suits ; but if no such suit or suits were brought within the times aforesaid, and prosecuted to effect, then the said award or determination of the commissioners should be final and conclusive ; and in case any such suit, commenced within the time aforesaid, should abate by the death of the defendant, then, the party dissenting, or if, by his death, then, his heirs or devisees, might, at any time within one year, revive such suit, or, if necessary, commence a new suit for the purpose aforesaid, and prosecute the same with like effect as such first suit might have been prosecuted, if it had not abated as aforesaid ; and the said commissioners were thereby directed to enter in the said book or books, a note of the time of receiving every such dissent; and when they should have executed the trusts and duties by the said act committed to them, they should deposit the said book or books in the office of the clerk of the said county of Onondaga, there to remain as records of their proceedings : provided, always, that if the parties in any case would enter into an agreement before the said commissioners, to abide by their determination, then and in every such case, the award or determination of the said commissioners should be final and conclusive as to such parties, and theii’ heirs for ever. The third section directed notice of theii’ appointment and of the time and place of their meeting, to be given by the commissioners, and that the notice should require all persons having any dispute or controversy respecting any title or claim to any land in the said county of Onondaga, to appear in person, or by their agents or attorneys, before the said commissioners, at the time and place therein mentioned, to exhibit their claims, that the said commissioners might proceed in the execution of the trusts committed to them. *By the sixth section, it was declared, that as to all lands in the r*284 county, to which no adverse claim should be made, an entry to that *■ effect should be made in the books of the commissioners ; but in cases of interfering claims, they should examine and determine the same ; and in all cases where there were filed or recorded in the said office, two or more deeds from one and the same person, or in the same right, to different persons, if any person interested under either of them should neglect to make his claim, and in all cases where several persons appeared to have claims to one and the same piece of land, and any of them did. not appear before the said commissioners, they should cause a notice to be published in the newspapers aforesaid, and continued for six weeks, requiring all persons interested in such land to appear at a certain time and place therein mentioned, not less than six months from the date of such notice, and exhibit their claims to the 175 284 SUPREME COURT [Jan’y Jackson v. Lamphire. same land ; and after the expiration of the time therein mentioned, it should be lawful for the said commissioners to proceed to the examination and determination of all matters concerning the said land, and the title to the same, whether all or any of the parties interested therein appeared and exhibited their claims, of not saving to all persons aggrieved by any such award or determination the right of dissenting and prosecuting in themanner aforesaid. The seventh provided, that if the party dissenting from the award of the commissioners should be in the actual possession of the premises, then the award of the commissioners should be, as to such person, of no effect ; and unless the party in whose favor the award of the commissioners should be made, should, within three years, commence a suit to establish his title to the land, and should, prosecute the same to effect, then he should be for ever barred of all right or claim to the land. . The eighth section declared, that neither the act nor anything therein contained should be construed to the prejudice of any person under the age of twenty-one years, or feme covert, or person not sound of mind, or in prison; if such infant, feme covert, person not sound of mind, or prisoner, should, *2851 ^^in three years after coming to the age of *twenty-one years, be- J coming discovert, of sound mind, and at liberty, make their dissent, and bring their suit and prosecute the same to effect. The twelfth section prohibited the exercise of any powers under the act, after the 1st day of June 1800. On the 17th of December 1799, two of the commissioners made an award in the following terms : “ Having heard the proofs and allegations, and examined the title of such of the parties interested in lot No. 36, in the township of Dryden, in the county of Cayuga, as have appeared and exhibited claims to the said lot, and having also inspected the records and files remaining in the office of the clerk of the county aforesaid, relative thereto, and due deliberation being had thereon, we, the commissioners, appointed by and in pursuance of the act entitled ‘ and act to settle disputes concerning titles of lands in the county of Onondaga,’ do, in pursuance of the authority given us in and by the same act, award and determine, that William J. Vredenburgh and John Patterson are entitled to, and stand seised in their demesne of an absolute estate of inheritance, in and to the same lot, subject to the reservations, provisions and conditions contained in the original grant.” Storrs, for the plaintiff in error, contended, that the judgment of the supreme court of error for the state of New York was erroneous, and should be reversed, for these reasons : 1. The letters-patent, granting the lot to John Cornelius, created a contract with the grantee, his heirs and assigns, that they should enjoy the same, free from any legislative regulations, to be made in violation of the constitution of the state. 2. The act of the legislature of the state of New York violated the constitution of the state and the United States ; and the determination or award of the commissioners under it was a nullity. 3- violated that provision of thè constitution of the state which J ordains, that “the legislature of this state shall, at no *time hereafter, 176 1830] OF THE UNITED STATES. 286 Jackson v. Lamphire. institute any new court or courts, but such as shall proceed according to the course of the common law.” 4. It violated that article of the state constitution which ordained, “ that trial by jury, in all cases in which it hath heretofore been used in the colony of New York, shall be established, and remain inviolate for ever.” 5. It was, therefore, as well for these violations of the state constitution, as on general principles, a statute which impaired the obligation of contracts. 6. The Onondaga commission was a court, writhin the meaning of the constitution of the state, which did not proceed according to the course of the common law. 7. It was without precedent; and was an arbitrary, ex parte, and summary tribunal, proceeding in violation of all the securities of property, wrhich the citizens of that state had confided, by their constitution, to the protection of their common-law courts. Hoffman, for the defendant in error, made the following points: 1. On a writ of error to the court of last resort in a state, under the circumstances of this case, the only error which can be alleged or regarded is, that the act of the legislature, in pursuance of which the award was made, is repugnant to the constitution of the United States. 2. The act of the legislature of New York, entitled “ an act to settle disputes concerning the title to lands in the county of Onondaga,” passed the 24th of March 1797, is not repugnant to the constitution of the United States, nor is the award under it. 3. The plaintiff in error contends, that the patent of the state of New York implies a contract on the part of the state with the grantee, his heirs and assigns, for ever ; that the legislature of the state should not pass any law affecting the estate, contrary to the state constitution ; that the law constituted a court which did not proceed by jury, according to the course of the common law, and thus the act impairs the obligation of an implied contract, and violates the constitution of the United States: *For the r^, defendant, it is denied, that any such contract can be inferred or L implied from the grant, nor any other than such as could have been fairly implied from it, if it had been made by the late colony of New York, or by any citizen of the state, or of lands lying without the state; and the law will not imply a covenant not to do an act which the state constitution had made impossible. The act of March 24th, 1797, is not contrary to the constitution of the state ; but has been uniformly declared by the courts of the state, and lately, by its highest court of judicature, to be constitutional; and their decision is final on this question. 5. The Onondaga commissioners were not a court; and could not make any j udicial sentence respecting these lands ; by the proviso to the third section of the act, where the parties would agree before them to abide by their determination, this award is declared to be final; in all other cases, they acted as commissioners, to ascertain and report the state of the title to these lands. 6. Their award, as such, had no effect or force to divest or impair the estate : and if a party is concluded by it, it is because he has consented and agreed thereto, by his neglect to file his dissent, and bring his suit within the period prescribed by law. The act is a beneficial statute of limitations, 3 Pet.—12 177 287 SUPREME COURT [Jan’y Jackson v. Lamphire. which did not begin to run, until after the award was made, and does not impair-the obligations of any contract. Baldwin, Justice, delivered the opinion of the court.—Both parties claim the premises in question, under John Cornelius, to whom the state of New York granted them by patent, dated the 7th of July 1790, in consideration of his military service in the revolutionary war. Six years before the date of the patent, and while the title of Cornelius was imperfect, he conveyed the premises to Henry Hart, the father of the plaintiff’s lessor, by deed dated January the 17th, 1784, proved and deposited in the office of the clerk of the county of Albany, according to law, on the 25th of April 1795. , *Henry Hart died in 1788, leaving the plaintiff his only child and J heir-at-law, who was born the 21st of September 1784, removed to Canada in 1791, and remained there till 1807 or 1808, when he returned to Albany, where he resided till the commencement of this suit, of May term 1825: he claims as heir-in-law to his father. On the 23d of June 1784, John Cornelius conveyed the same premises to Samuel Broom, by deed, duly proved and deposited as aforesaid, on the 3d of April 1795. The title of Broom, by sundry mesne conveyances, became vested in William J. Vredenburgh, who conveyed to the defendant. The premises were vacant till 1808, when possession was taken under Vredenburgh, who then held the title of Broom. The defendant did not question the original validity of the deed to Henry Hart, but rested his defence on an act of assembly of the state of New York, passed the 24th of March 1797, to settle disputes concerning titles to lands in the county of Onondaga, the provisions of which are set forth in the case. The defendant offered in evidence an award made by two of the commissioners appointed by this act, awarding the land in controversy to William J. Vredenburgh and John Patterson (to whom Broom had conveyed) ; the award was dated December 17th, 1799, and no dissent was entered by the plaintiff. The court admitted the award to be read in evidence ; and gave in charge to the jury, that it was competent and conclusive to defeat the title of the plaintiff. Judgment was rendered for the defendant in the supreme court, and affirmed in the court of errors ; and the case comes before us, by writ of error, under the 25th section of the judiciary act. The plaintiff contends, that the act of the 24th of March 1797, and all proceedings under it, are void ; being a violation both of that part of the constitution of the United States which declares that no state shall pass any law impairing the obligation of contracts, and of the constitution of the state of New York, which declares, that the legislature shall at no time institute any new court but such as shall proceed according to the course of the com-mon law ’ an^ that trial by *jury, in all cases in which it hath here--* tofore been used, shall be established, and remain inviolate for ever. This court has no authority, on a writ of error from a state court, to declare a state law void, on account of its collision with a state constitution; it not being a case embraced in the judiciary act, which alone gives power to issue a writ of error in this case ; and will, therefore, refrain from expressing any opinion on the points made by the plaintiff’s counsel, in relation to the constitution of New York. • 178 1830] OF THE UNITED STATES. 289 Jackson v. Lamphire. The plaintiff insists, that the patent to John Cornelius creates a contract with the grantee, his heirs and assigns, that they should enjoy the land therein granted, free from any legislative regulations, to be made in violation of the constitution of the state ; that the act in question does violate some of its provisions ; and therefore, impairs the obligation of a contract. The court are not inclined to adopt this reasoning, or to consider this as a case coming fairly within the clause of the constitution of the United States relied on by the plaintiff. The only contract made by the state is a grant to John Cornelius, his heirs and assigns, of the land in question ; the patent contains no covenant to do, or not to do, any further act in relation to the land ; and we do not, in this case, feel at liberty to create one by implication. The state has not, by this act, impaired the force of the grant; it does not profess or attempt to take the land from the assigns of Cornelius, and give it to one not claiming under him; neither doeo the award produce that effect; the grant remains in full force, the property conveyed is held by his grantee, and the state asserts no claims to it. The question between the parties is, which of the deeds from Cornelius carries the title ? Presuming that the laws of New York authorized a soldier to convey his bounty land, before receiving a patent, and that, at the date of the deeds, there was no law compelling the grantees to record them, they would take priority from their date. This is the legal result of the deeds, but there is no contract on the part of the state, that the priority of title shall depend solely on the principles of the common law, or that the state shall pass no law imposing on a grantee the ^performance of acts which were not necessary to the legal operation of his deed, at the time it was deliv- L ered. It is within the undoubted power of state legislatures, to pass recording acts, by which the elder grantee shall be postponed to a younger, if the prior deed is not recorded within the limited time ; and the power is the same, whether the deed is dated before or after the passage of the recording act. Though the effect of such a law is to render the prior deed fraudulent and void against a subsequent purchaser, it is not a law impairing the obligation of contracts ; such too is the power to pass acts of limitations, and their effect. Reasons of sound policy have led to the general adoption of laws of both descriptions, and tjieir validity cannot be questioned. The time and manner of their operation, the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend on the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment. Cases may occur, where the provisions of a law on those subjects may be so unreasonable as to amount to a denial of a right, and call for the interposition of the court; but the present is not one. The state of New York, in 1794, had felt the necessity of legislating on these military lands. The preamble to the recording act of January 1794, shows very strongly the policy of compelling the deeds for these lands to be recorded ; and the known condition of that part of the state, covered by military grants, presented equally cogent reasons, in our opinion, for the passage of the act in question. As this court is confined to the consideration of only one question growing out of this law, we do not think it necessary to examine its provisions in detail ; it is sufficient to say, that we can see nothing in them inconsistent with the constitution of the United States, or 179 290 SUPREME COURT Harris v. Dennie. [Jan’y the principles of sound legislation. Whether it is considered as an act of limitations, or one in the nature of a recording act, or as a law sui generis, called for by the peculiar situation of that part of the state on which it operates ; we are unanimously of opinion, that it is not a law which impairs $ ^he obligation *of a contract; and that in receiving the award in -* evidence, and declaring it to be competent and conclusive on the right of the plaintiff, there was no error in the judgment of the court below. The judgment is, therefore, affirmed. This cause came on to be heard, on the transcript of the record from the court for the trial of impeachments and correction of errors for the state of New York, and was argued by counsel : On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said court for the trial of impeachments and correction of errors for the state of New York, in this cause, be and the same is hereby affirmed, with costs. *292] *Samuel D. Harris, Plaintiff in error, v. James Dennie. Attachment against dutiable goods.—Entry of imported merchandise. Error to state court. Twenty-three cases of silk were imported from Canton, in the ship Rob Roy, into the port of Boston, consigned to George De Wolf and John Smith; after the arrival of the vessel, with the merchandise on board, the collector caused an inspector of the customs to be placed on board; soon afterwards, and prior to the entry of the merchandise, and prior to the payment, or any security for the payment, of the duties thereon, the merchandise was attached by the deputysheriff of the county, in due form of law, as the property of G. De Wolf and J. Smith, by virtue of several writs of attachment, issued from the court of common pleas for the county of Suffolk, at the suit of creditors of G. De Wolf and Smith; these attachments were so made, prior to the inspector’s being sent on board the vessel. At the time of the attachment, the sheriff offered to give security for the payment of the duties on the merchandise, which the collector declined accepting; the merchandise was sent to the custom-house stores, by the inspector, and several days after, the custom-house storekeeper gave to the deputy-sheriff an agreement, signed by him, reciting the receipt of the merchandise from the inspector, and stating, “ I hold the said merchandise to the order of James Dennie, deputy-sheriff.” The marshal of the United States afterwards attached, took and sold the merchandise, under writs and process in favor of the United States, against George De Wolf; which wjits were founded on duty-bonds, due and unpaid, for a larger amount than the value of the merchandise, given before by De Wolf and Smith, who, before the importation of the merchandise, were indebted to the United States, on various bonds for duties, besides those on which the suits were instituted : Held, that the attachments issued out of the court of common pleas of the county of Suffolk, did not affect the right of the United States to hold the merchandise, until the payment of the duties upon them; and that the merchandise was not liable to any attachment, by an officer of the state of Massachusetts, for debts due other creditors of George De Wolf and John Smith. It has often been decided in this court, that it is not necessary, that it shall appear, in terms, upon the record, that the question was presented in the state court, whether the case was within the purview of the 25th section of the judiciary act of 1789, to give jurisdiction to this court, in a case removed from a state court; it is sufficient, if, from the facts stated, such a question must have arisen; and the judgment of the state court would not have been what it is, if there had not been a misconstruction of some act of congress, &c., or a decision against the validity of the right, title, privilege or exemption set up under it. p. 301. The United States have no general lien on merchandise, the property of the importer, for duties due by him upon other importations ; the only effect of the first provision in the 62d section of the act of 1799, ch. 128, is, that the delinquent debtor is denied at the custom-house any further credit for duties, until his unsatisfied bonds are paid; he is compellable to pay the duties in cash, and upon such payment, he is entitled to the delivery of the goods 180 1830] OF THE UNITED STATES. Harris v. Dennie. *293 imported; the manifest intention of the remaining clause in the section, is, to compel the original consignee to enter the goods imported by him. p. 302. No person but the owner, or original consignee, or, in his absence or sickness, his agent or factor is entitled to enter the goods at the custom-house, or give bond for the duties, or to pay the duties : §§ 36, 62. Upon the entry, the original invoices are to be produced and sworn to; and the whole objects of the act would be defeated, by allowing a mere stranger to make the entry, or take the oath prescribed on the entry, p. 304. The United States having a lien on goods imported, for the payment of the duties accruing on them, and which have not been secured by bond; and being entitled to the custody of them, from the time of their arrival in port, until the duties are paid or secured; any attachment by a state officer, is an interference with such lien and right to custody ; and being repugnant to the laws of the United States, is void.’ p. 305. The acknowledgment by the custom-house storekeeper, that he held goods, upon which duties had not been secured or paid, subject to an attachment issued out of the state court, at the suit of a creditor of the importer, was a plain departure from his duty, not authorized by the laws of the United States, and cannot be admitted to vary the rights of the parties, p. 305. Dennie v. Harris, 5 Pick. 120, reversed. Error to the Supreme Judicial Court of Massachusetts, for the counties of Suffolk and Nantucket. In the court of common pleas of the county of Suffolk, Massachusetts, James Dennie, the defendant in error, a deputy-sheriff of that county, under a precept issued by the authority of the state, attached twenty-three cases of silks, imported in the brig Rob Roy, from Canton, for a debt due by the importers and owners of the goods, George De Wolf and James Smith. Soon after the arrival of the vessel, the collector of the port caused an inspector of the customs to be placed on board. The attachment was made, before the entry of the merchandise, and payment made, or security given for the payment, of the duties thereon, and before an inspector was put on boardt the vessel. At the time of the attachment, the plaintiff offered to give the collector security for the payment of the duties to the United States, which he declined to accept. About seventeen days after the attachment, the merchandise being in the custom-house stores, under the following agreement, to wit, “ District of Boston and Charlestown, port of Boston, August 29th, 1826 : I certify, that there has been received into store, from on board the brig Rob Roy, whereof---------------is master, from Canton, the following merchandise, to wit, twenty-three cases silks, A. O. 1 to 23, lodged by D. Rhodes, Jun., inspector, under whose care the *vessel was unladen. B. H. Scott, public storekeeper. I hold the above-described twenty- •-three cases silks subject to the order of James Dennie, Esq., deputy-sheriff. B. H. Scott ; ” the defendant, being the marshal of the United States for the district of Massachusetts, attached and took the same merchandise, by virtue of several writs in favor of the United States against De Wolf, duly issued from the district court of the United States. These writs were founded upon bonds for duties given by De Wolf and Smith, amounting to a sum much larger than the value of the merchandise, which duties were due and unpaid, when the merchandise arrived. The deputy-sheriff, James Dennie, brought an action of trover against 1 This case decides no more than that no creditor of the importer can, by any process, take goods imported out of the possession of the United States, until the lien of the govern- ment for the duties accruing thereon, is actually discharged. Conard v. Pacific Ins. Co., 6 Pet. 262. And see Taylor v. Carryl, 20 How. 596. 181 294 SUPREME COURT Harris v. Dennie. [Jan’y the marshal for the goods ; the judgment of the supreme judicial court of the state, to which the case was removed by writ of error from the inferior court, was in favor of the original plaintiff ; and the defendant prosecuted this writ of error. The following errors were assigned in the supreme judicial court of Massachusetts : that, according to the true construction of the several acts of the congress of the United States, imposing duties on certain goods, wares and merchandise imported into the United States from foreign ports, and also of the act of said congress, made and passed on the 2d day of March 1799, entitled “an act to regulate the collection of duties on imposts and tonnage,” it is contended— 1. That upon the arrival of the said merchandise in question at the port of Boston and Charlestown, and prior to the supposed attachment thereof by the said Dennie, a debt immediately accrued to the United States for the amount of the duties thereon ; and the collector for said port had, therefore, a legal lien on the said merchandise for the debt aforesaid ; and consequently, they were not then subject to the said Dennie’s attachment aforesaid. 2. That the offer of the said Dennie, at the time of making his said attachment, to give to the said collector security for the payment of the duties on said merchandise, did not, in point of law, give validity to the said attachment; inasmuch as the said collector was not, at that time, it being * n prior to any entry of the merchandise at the custom-house, *author- -I ized by law to receive security from the said Dennie, or any other person or persons whomsoever, for payment of the duties aforesaid. 3. That after the said merchandise was placed in the custom-house store, as is found by the special verdict, and from that period to the time when they are stated to have been attached in behalf of the United States, by the said Harris, as marshal of said district, the legal lien of the United States constantly remained with them; and that the certificate of B. H. Scott, the storekeeper, which appears in the said verdict, can have had no effect to discharge, or in any degree to impair, the force of the said lien. 4. That by the provisions contained in the 62d section of the aforesaid act of March 2d, 1799, the goods in question, the same having been imported by and consigned to George De Wolf and John Smith, as by said verdict is found, are, in point of law, to be considered as their property, so far as to be holden liable for the payment of all the debts then due from them to the United States, for duties on merchandise heretofore imported by them into the said port of Boston and Charlestown. It was also, in this court, contended, that the defendant in error had no property, either absolute or special, nor possession, nor the right of possession, in the goods, which were the object of the supposed trover and conversion in the declaration mentioned. The case was argued by Berrien, Attorney-General, and Dunlap, District-Attorney of the United States for the district of Massachusetts, for the plaintiff in error; and by Webster, for the defendant. For the plaintiff in error, Mr. Dunlap stated, that the position contended for in the state court was, that, under the revenue law, the government of the United States has a lien on goods imported, not only for the duties 182 1830] OF THE UNITED STATES. Harris v. Dennie. 295 accruing on that importation, but also for the payment of all debts due from the consignees, arising from antecedent importations. This question, he admitted, had since been disposed of against the United States. Conard v. Atlantic. Ins. Co., 1 Pet. *386. It is supposed, that the great question * in the cause now before the court is, whether goods imported can, L before entry at the custom-house, and while under the lien of the government, in possession of the custom-house officers, be leagally attached by virtue of a process from a state court. Such an attachment, it is claimed, is not only void, by the laws of the United States, but also by the laws of the state of Massachusetts ; and therefore, the defendant in error did not, by the process, obtain any property or right of possession in the goods, which could enable him to maintain an action of trover. The laws of the United States provide, that goods imported shall, until entered at the custom-house, be taken into the possession of the officers of the government, and after a certain time, be deposited in the custom-house stores ; and afterwards, a further time having expired, if they have not been entered by or for the importer, they are to be sold, according to the 36th and 56th sections of the act of March 3d, 1799. An attachment, at the suit of any creditor of the importer, upon goods thus situated, would interfere with and destroy the possession and lien of the government, thus secured by law. Such an attachment, thus interfering with rights thus given, is the exercise of “an authority under a state,” which “is repugnant to the laws of the United States.” The exercise of such an authority is in opposition to the exemption claimed to exist in favor of those goods from such process, and is a defence for the marshal of the United States to this action of trover by the deputy-sheriff. This case is, therefore, one properly within the action of the 25th section of the judiciary law ; and is well brought before this court, to reverse the judgment of the supreme judicial court of Massachusetts. The attachment from the state court is void, as well by the laws and adjudged cases of Massachusetts, as by the laws of the United States. A statute of the state, if it interfered with the law of the general government in reference to subjects within its legitimate operation, would be void ; but no such law, in reference to the proceedings and claims of the defendant in error, is to be found. To constitute a legal *attachment of pg97 goods, they must be taken within the actual or constructive posses- L sion of the officer ; and when this cannot be done, on account of the existence of prior liens, or from any other cause, no attachment can be valid. The decisions in the state of Massachusetts fully sustain this position. Phillips v. Bridge, 11 Mass. 247; Badlam n. Tucker, 1 Pick. 389 ; Watson v. Todd, 5 Mass. 271. In Pierce v. Jackson, 6 Mass. 242, the court say, that when goods are attached, they must be seized under execution, within thirty days, or the lien of the judgment is gone. The goods in the custom-house stores could not have been sold under any process. Vinton v. Bradford, 13 Mass. 114. Lane v. Jackson, 5 Ibid. 157, decides, that the officer must have the actual possession and custody of the goods. Odiorne v. Colley, 2 New Hamp. 66, 317 ; Holbrook v. Baker, 5 Greenl. 309 ; 6 Conn. 356 ; 1 Show. 169; Vin. Abr. Distress, E, 2, H, 42, H, 52. The effect of the acknowledgment of the storekeeper could not be to vest a property in the goods in the deputy-sheriff. It was unauthorized, and the storekeeper had nothing to dispose of. He was the agent of the 183 297 SUPREME COURT Harris v. Dennie. [Jan’y United States, to protect and preserve the property while in the public stores ; and he could not divest himself of these relations, and become the bailee of the sheriff. If the sheriff had no right to make the attachment, he acquired by it neither a general nor a special property, which is necessary in order to maintain trover ; and in fact, he never had the actual possession of the goods. The only title he asserts is, as an officer, by virtue of the attachment; and if that is adjudged illegal and void, the foundation of his action fails. 2 Saund. 47; 7 T. R. 9. Webster, for the defendant, contended, that this court has no jurisdiction of the case, according to the provisions of the judiciary law. It is not required, that it should appear, in form, that an act of congress has been * _ misconstrued ; if it has been *substantially the fact, it is sufficient -* to give the writ of error to the highest state tribunal. But it does not appear in any part of this record, that such was the proceeding in the supreme judicial court of Massachusetts. The question originally raised in this case was, whether the United States had a general lien on goods imported, for debts due to them by the importer ; and that question has, since this action was brought, been decided in the negative, in Conard v. Atlantic Insurance Company. The only question remaining in this case was, whether the goods were liable to attachment, and this was a question properly for the decision of the state courts. The United States claimed to attach and hold the goods for the debts due to them by De Wolf and Smith and the other creditors of those persons denied this claim, and proceeded by an attachment. The United States stood in no other relations, and with no other rights, before the state court, than the other creditors. In the state court, and upon the state decisions, the attachment for the creditors was considered valid. This is an answer to the argument, that such is not the law of Massachusetts. This decision does not, therefore, bring into question the construction of any act of congress. Berrien, Attorney-General, in reply, argued, that there was enough in the record, to show that a question of the application of a statute of the United States was decided by the supreme judicial court of Massachusetts ; and this would sustain the jurisdiction, although it may not have been the only question in the case. 2 Wheat. 363 ; 1 Ibid. 304. This is an action of trover against an officer of the United States, the marshal, for taking goods out of the hands of an alleged bailee, for a debt due to the United States ; and the question is, was there then an existing lien in favor of the United States under the 62d section of the duty act ? The construction of this statute was thus brought into question, by the inquiry whether there was a conversion by the marshal. He says, that his proceedings were under the authority of the law; and it was, therefore, essential, that the state court should , decide uPon law, and construe the law. *2. In an action of J trover and conversion, the plaintiff must show property, and a right to retain it. The goods were in the possession of the custom-house, and subject to duties which were unpaid. It was necessary that the court should decide, that goods, before the payment of the duties, can be taken out of the possession of the custom-house by the process of the state courts. This question is to be decided by a reference to the laws of the United States. Such 184 1830] OF THE UNITED STATES. Harris v. Dennie. 299 an exercise of power would be inconsistent with the provisions of the laws of the United States. The position which is asserted by the plaintiff in error, is, that goods so situated are exempt from such process. The plaintiff in the state court contended, that they could be taken under the authority of the state of Massachusetts ; and this was the assertion of a claim of authority under a state, against the laws of the United States. Upon these grounds, it is manifest, that the construction of the laws of the United States immediately entered into the question before the state court. It must appear to this court: 1. That the goods were liable to be attached. 2. That there is nothing in the laws of the United States which prevents this. 3. That the United States had no lien on the goods. All these points must be decided in favor of the plaintiff below, before it can be held, that the marshal was guilty of a conversion. Story, Justice, delivered the opinon of the court.—This is a writ of error to the judgment of the supreme judicial court of the state of Massachusetts. The original action was trover, brought by the defendant in error, against the plaintiff in error, for twenty-three cases of silk, which had been attached by Dennie, as deputy-sheriff of the county of Suffolk, and afterwards attached by Harris, as marshal of the district of Massachusetts. The cause was tried upon the general issue, and a special verdict found, upon which the state court rendered judgment in favor of the original plaintiff. The special verdict was as follows : The jury find, that *the mer- ra. chandise described in the declaration was brought in a vessel of the L United States, into the port of Boston, in the collection district of Boston and Charlestown, in Massachusetts, from a foreign port, prior to the commencement of this action. That the said merchandise came consigned to George De Wolf and John Smith, as was evidenced by the manifest of the cargo of the said vessel, at the time of the importation. That soon after the arrival of the said vessel, with the merchandise on board, as aforesaid, the collector of the said port caused an inspector of the custom-house to be placed on board thereof, in conformity with the requirements of law in such cases. That soon after the arrival of the said vessel, and prior to the entry of the said merchandise with the collector, and prior to the payment, or any security for the payment, of the duties thereupon, the same were attached in due form of law, as the property of the said George De Wolf and John Smith, by virtue of several writs of attachment issued from the court of common pleas for the said county of Suffolk, in favor of Andrew Blanchard and others ; the said attachment having been made by the plaintiff, in his capacity of a deputy of the sheriff of the aforesaid county of Suffolk, prior to the inspector’s being put on board, as aforesaid. That at the time of the said attachment, the said sheriff offered to give to said collector security for the payment of the duties upon the said merchandise, which the said collector declined to accept. That about seventeen days subsequently to the time of the attachment, the said merchandise being in the custom-house stores, under the following agreement, viz : “ District of Boston and Charlestown, port of Boston, August 29th, 1826. I certify that there has been received in store, from on board the brig Rob Roy, whereof ----------is master, from Canton, the following merchandise, viz., twenty- 185 300 SUPREME COURT Harris v. Dennie. [Jan’y three cases of silk, A. O. 1 to 23, lodged by D. Rhodes, Jun., inspector, and under whose care the vessel was unladen. (Signed) B. H. Scott, public storekeeper. I hold the above twenty-three cases of silks subject to order of James Dennie, deputy-sheriff, (Signed) B. H. Scottthe defendant (Harris) being marshal, &c., attached the said merchandise, and took the * , same by virtue of several writs to *him directed, in favor of the J United States, against the said De Wolf ; which writs were duly issued from the district court of the United States for the district of Massachusetts ; which writs were founded on bonds for duties theretofore given by the said De Wolf and Smith, and which bonds were then due and unpaid, being for a large sum of money. That the said De Wolf and Smith, at the time of the said importation of the merchandise aforesaid, were jointly and severally indebted to the United States on various other bonds for duties, besides those on which the writs aforesaid were instituted, which said first-mentioned bonds M ere also then due and unsatisfied ; and that the bonds for duties, above referred to, and upon which the attachment by the said marshal was made, amounted to a much larger sum than the value of the merchandise thus attached. But whether or not, &c., in the common form of special verdicts. As this case comes from. a state court, under the 25th section of the judiciary act of 1789, ch. 20, it is necessary to consider, whether this court can entertain any jurisdiction thereof, consistently with the terms of that enactment. That section, among other things, enacts, that a final judgment of the highest state court may be revised, where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of their validity ; or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said constitution, treaty, statute or commission. The objection is, that this court has not jurisdiction of this case, because it does not appear upon the record, that any question within the purview of the 25th section, arose in the state court, upon the decision of the special verdict. But it has been often decided in this court, that it is not necessary that it should appear, in terms, upon the record, that any such question was * . made. It is sufficient, if, from the *facts stated, such a question must J have arisen, and the judgment of the state court would not have been what it is, if there had not been a misconstruction of some act of congress, &c., or a decision against the validity of the right, title, privilege or exemption set up undei' it. 4 Wheat. 311 ; 12 Ibid. 117 ; 2 Pet. 245, 380, 409. In the present case, it is contended, that the United States, by virtue of the 62d section of the revenue collection act of 1799, ch. 128, had a lien on the present merchandise for all debts antecedently due on custom-house bonds by De Wolf and Smith, and that, consequently, the attachment of the marshal overreached that of the private creditors, and that the state court have decided against such lien. If there be no such lien, still it is contended, that under the provisions of the revenue collection act of 1799, ch. 128, the merchandise was not liable to attachment at the suit of any private creditors. 186 1830] OF THE UNITED STATES. 302 Harris v. Dennie. under the circumstances, and that the state court, in giving judgment for the plaintiff, must have overruled that defence, and misconstrued the act. The question, as to the lien of the United States, for duties antecedently due, was certainly presented by the special verdict. But we are all of opinion, that the decision of the state court, disallowing such a lien, was certainly correct. The 62d section of the act of 1799, ch. 128, after providing for the manner of paying duties, and of giving bonds for duties, and the terms of credit to be allowed therefor, goes on to provide, “ that no person whose bond has been received, either as principal or surety, for the payment of duties, or for whom any bond has been given by an agent, factor or other person, in pursuance of the provisions herein contained, and which bond may be due and unsatisfied, shall be allowed a future credit for duties, until such bond be fully paid or discharged.” Tho only effect of this provision is, that the delinquent debtor is denied at the custom-house any future credit for duties, until his unsatisfied bonds are paid. He is compellable to pay the duties in cash; and upon such payment, he is entitled to the delivery of the goods imported. There is not the slightest suggestion in the clause, that the United States shall have any lien on such *goods, for any duties p $ due on any other goods, for which the importer has given bonds, and for which he is a delinquent. It was at once perceived by congress, that the salutary effect of this provision, denying credit upon duties, would be defeated by artifices and evasions, and the substitution of new owners or consignees, after the arrival of the goods in port, and before the entry thereof at the custom-house. To repress such contrivances, the next succeeding clause of the act provides, “ that to prevent frauds arising from collusive transfers, it is hereby declared, that all goods, &c., imported into the United States, shall, for the purposes of this act, be deemed and held to be the property of the persons to whom the said goods, &c., may be consigned, any sale, transfer or assignment, prior to the entry and payment, or securing the payment of the duties on the said goods, &c., and the payment of all bonds then due and unsatisfied by the said consignee, to the contrary notwithstanding.” The manifest intent of this clause was, to compel the original consignee to enter the goods ; and if he was a delinquent, to compel him to pay his prior bonds, or to relinquish all credit for the duties accruing upon the goods so imported and consigned to him. It does not purport to create any lien upon such goods for any duties due upon other goods ; but merely ascertains who shall be deemed the owner, for the purpose of entering the goods and securing the duties. The state court, therefore, did not, so far as this question is concerned, misconstrue the act of congress, or deny any right of the United States existing under it. The other point is one of far more importance ; and, in our opinion, deserves a serious consideration. If, consistently with the laws of the United States, goods in the predicament of the present were not liable to any attachment by a state officer, it is very clear, that the present suit could not be sustained, and that judgment ought to have been given upon the special verdict, in favor of the original defendant. And in our opinion, these goods were not liable to such an attachment. In examining the revenue collection act of 1799, ch. 128, it will be found, that numerous provisions have been solicitously introduced, in order to prevent *any unlivery, or removal, of any goods imported from any foreign port, in any vessel arriving L 187 304 SUPREME COURT Harris v. Dennie. [Jan’y in the United States, until after a permit shall have been obtained from the proper officer of the customs for that purpose. These provisions not only apply to vessels which have already arrived in port, but to those which are within four leagues of the coast of the United States. The sections of the act, from the 27th to the 58th, are in a great measure addressed to this subject. From the moment of their arrival in port, the goods are, in legal contemplation, in the custody of the United States ; and every proceeding which interferes with, or obstructs, or controls, that custody, is a virtual violation of the provisions of the act. Now, an attachment of such goods by a state officer, pre-supposes a right to take the possession and custody of those goods, and to make such possession and custody exclusive. If the officer attaches upon mesne process, he has a right to hold the possession, to answer the exigency of the process. If he attaches upon an execution, he is bound to sell, or may sell, the goods, within a limited period, and thus virtually displace the custody of the United States. The act of congress recognises no such authority, and admits of no such exercise of right. No person but the owner or consignee, or, in his absence or sickness, his agent or factor, in his name, is entitled to enter the goods at the customhouse, or give bond for the duties, or pay the duties. 36, 62. Upon the entry, the original invoices are to be produced and sworn to ; and the whole objects of the act would be defeated, by allowing a mere stranger to make the entry, or take the oath prescribed on the entry. The sheriff is in no just or legal sense the owner or consignee (and he must, to have the benefit of the act, be the original consignee), or the agent or factor of the owner or consignee. He is a mere stranger, acting in invitum. He cannot, then, enter the goods, or claim a right to pay the duties, or procure a permit to unlade them ; for such permit is allowed in favor only of the party making the entry, and paying or giving bond for the duties. §§ 49, 50. If, within the number of days allowed by law for unlading the cargo, the duties are not paid or secured, the *goods are required to be placed in the J government stores, under the custody and possession of the government officers. And at the expiration of nine months, the goods so stored are to be sold, if the duties thereon have not been previously paid or secured. § 56. It is plain, that these proceedings are at war with the notion, that any state officer can, in the interval, have any possession or right to control the disposition of these goods ; and the United States have nowhere recognised or provided for a concurrent possession or custody by any sneh officer. In short, the United States having a lien on the goods for the payment of the duties accruing thereon, and being entitled to a virtual custody of them, from the time of their arrival in port, until the duties are paid or secured, any attachment by a state officer is an interference with such lien and right of custody; and, being repugnant to the laws of the United States, is void. It has been suggested, that the certificate of the storekeeper, declaring that he held the silks subject to the order of the attaching officer, might vary the application of this doctrine. But such an agreement was a plain departure from the duty of the storekeeper; and was unauthorized by the laws of the United States. It cannot then be admitted to vary the rights of the parties. See 56th section of the act of 1799, ch. 128. This view of the subject renders it wholly unnecessary to consider the 188 1830] OF THE UNITED STATES. Canter v. American Insurance Co. 306 point so elaborately argued at the bar, whether by the laws of Massachusetts an attachment would lie in such a case. If it would, the present attachment would not be helped thereby; because it involves an interference with the regulations prescribed by congress on the subject of imported goods. Upon the whole, it is the unanimous opinion of the court, that the judgment of the state court ought to be reversed ; and that a mandate issue to that court, with directions to enter judgment upon the special verdict, in favor of the original defendant. *This cause came on to be heard, on the transcript of the record r*qnrt from the supreme judicial court of the commonwealth of Massachu- L setts, and was argued by counsel: On consideration whereof, it is the opinion of this court, that the goods in the special verdict mentioned were not, by the laws of the United States, under the circumstances mentioned in the said verdict, liable to be attached by the said Dennie, upon the process in the said verdict mentioned ; but that the said attachment so made by him as aforesaid, was repugnant to the laws of the United States, and therefore, utterly void. It is, therefore, considered and adjudged by this court, that the judgment of the said supreme judicial court of Massachusetts, rendered upon the said verdict, be and the same is hereby reversed, and that a mandate issue to that court, with directions to enter a judgment upon the said verdict in favor of the original defendant, Samuel D. Harris ; and that such further proceedings be had in said cause as to law and justice may appertain. *Rachel Canter, Administratrix of David Canter, deceased, Claimant, v. The American Insurance Company and The Ocean Insurance Company of New York, Appellants. , Decree in admiralty.—Damages and costs. The libellants, in their original libel, in the district court of the United States for the district of South Carolina, prayed that certain bales of cotton might be decreed to them, with damages and costs; Canter, who also claimed the cotton, prayed the court for restitution, with damages and costs; the district court decreed restitution of part of the cotton to the libellants, and dismissed the libel, without any award of damages on either side; both parties appealed from this decree to the circuit court, where the decree of the district court was reversed, and restitution of all the cotton was decreed to Canter, with costs, without any award of damages, or any express reservation of that question in the decree; from this decree, the libellants in the district court appealed to this court; no appeal was entered by Canter: Held, that the question of a claim of damages by Canter was not open before this court; the decree of restitution, without any allowance of damages, was a virtual denial of them, and a final decree upon Canter’s claim of damages; it was his duty, at that time, to have filed a cross-appeal, if he meant to rely on a claim to damages; and not having done so, it was a submission to the decree of restitution and costs only. The counsel fees allowed as expenses attending the prosecution of an appeal to the circuit court and to the supreme court, in an admiralty case. This is not a proper case for an award of damages; the proceedings of the libellants were in the ordinary course, to vindicate a supposed legal title; there is no pretence to say, that the suit was instituted without probable cause, or was conducted in a malicious or oppressive manner; the libellants had a right *to submit their title to the decision of a judicial tribunal, in any legal mode which promised them an effectual and speedy redress. When parties litigate in the admiralty, and there is probable ground for the suit or defence, the court considers the only compensation which the successful party is entitled to, is a compensation in costs and expenses; if the party has suffered any loss beyond these, it is damnum absque injurid. p. 318. 189 307 SUPREME COURT Canter v. American Insurance Co. [Jan’y It is of great importance to the due administration of justice, and in furtherance of the manifest intention of the legislature, in giving appellate jurisdiction to this court upon final decrees only, that causes should not come up here in fragments or successive appeals ; it would occasion very great delays and oppressive expenses, p. 318. The settled practice of this court is, that whenever damages are claimed by the libellant or the claimant, in the original proceedings, if a decree of restitution and costs only passes, it is a virtual denial of damages; and the party will be deemed to have waived the claim for damages, unless he then interpose an appeal or cross-appeal to sustain that claim, p. 318. Costs and expenses are not matters positively limited by law, but are allowed in the exercise of a sound discretion of the court;1 and no appeal lies from a mere decree respecting costs and expenses.2 p. 319. * Appeal from the Circuit Court of South Carolina. This case J was heard at January term 1828, upon questions submitted to the court, on an appeal from the circuit court of the district of South Carolina. (1 Pet. 511.) The court then decided in favor of the claimant, and directed restitution of the cotton which wras the subject of the controversy between the parties ; having affirmed the decree of the circuit court of South Carolina. By the mandate to the circuit court, it was ordered, “ that such execution and proceedings be had, as according to right and justice, and according to the laws of the United States, ought to be had.” Upon the filing of the mandate, the circuit court ordered, “ that the (jase be put on the docket, and it be referred to the officer of this court to examine into the damages sustained by the claimant, David Canter, in consequence of the proceedings of the libellants, and report thereon, at as early a day as possible, to this court.” The appellant, David Canter, thereupon, filed in the circuit court “ a statement of damages sustained by him, by the illegal seizure of 356 bales of cotton, by order of the underwriters.” The statement set forth losses on the sales of the cotton, and expenses and payments connected with the same, amounting to $3639.87 ; losses and probable gain on sales of rice purchased by the appellants, and which was sold instead of being shipped, in consequence of the proceedings of the appellees ; the cost of protest and damages on a bill of exchange drawn by him, and dishonored in consequence of the seizure of the cotton ; law expenses at Charleston and Columbia, in South Carolina, and in Washington, and traveling expenses to and in Washington; papers from Key West, relative to judicial proceedings there ; postages and protests, costs of the supreme courts of the United States, and briefs ; loss in the value of the cotton during the pendency of the proceedings, $2860. The counsel for the appellees filed with the register of the court a protest against the order of reference made by the circuit court, to ascertain the damages alleged to have been sustained by the appellant, on the grounds : 1. That the mandate of the supreme court of the United States gave no *3001 *auth°rity instructions to the circuit court to inquire into damages. -1 2. That the decrees of the district, circuit and supreme courts, did not award damages to the appellant. 3. That the appellees were not in any manner liable for damages. 4. That, at all events, the inquiry into damages could not extend beyond the amount of the stipulations entered into by the appellees in the original proceedings, by which alone they were before the court. 1 See The Wreath, 9 Phila. 467. s Elastic Fabrics Co. v. Smith, 100 U. S. 210; Paper-Bag Machine Co. v. Nixon, 105 Id. 766. 190 1830] OF THE UNITED STATES. Canter v. American Insurance Co. 309 The clerk of the circuit court rejected all the claims preferred by the appellant, with the exception of the following : Papers from Key West, to establish legality of proceedings there, $51, postages and protests, $20 ... - $71 oo Costs of the supreme courts and briefs, $72.02, protest and damages on bill drawn by claimant, $222 - 294 02 This grew out of the cotton speculation, the bill was dishonored in consequence of the seizure, the claimant not being in funds to take up the draft. Connsei fees, at Charleston and Washington - - - 1150 00 $1515 02 Also the loss on the sale of the cotton, which was made before the proceedings were instituted against the same, and which sale was not completed by reason thereof, with interest on the balance of the sale, after deducting the actual proceeds of the cotton, when sold by order of the district court, $3991.77 ; and also the actual loss on the rice purchased, to be paid for out of the proceeds of the cotton, rejecting the claim of probable profits, the sum actually allowed being $2820.67. These allowances were all excepted to by the appellees, and the appellant also excepted to the refusal of the clerk of the circuit court to admit all of the claims preferred in “the statement.” The circuit court refused to allow to the appellant any of the items reported by the clerk, with the exception of some of those comprehended in the “ incidental expenses.” As to *those items, the clerk rejected the sum of $222 for protests and p damages on a bill of exchange, and ordered the counsel fees of the *-appellant to be paid under the mandate, upon the authority of The Apollon, 9 Wheat. 362, as the costs awarded him by the supreme court, $1372.82. The appellant appealed to this court. At the last term, Cruger moved to dismiss the appeal, on the ground, that the mandate from this court gave no authority to the circuit court of South Carolina to assess damages to the appellant. This motion was opposed by Coxe, for the appellant; and the court ordered the cause to be argued upon all the questions it involved, when it should be regularly called. At this term, Coxe, for the appellant, contended, that the decree of the circuit court, from which the former appeal was taken, left the question of damages open. That appeal was taken by the claimants in the circuit court, now the appellees, and it was from a decree, in its nature interlocutory, and not final; and if this was not so, it was the act of those who are now appellees, and cannot prejudice the rights of the appellant. In the case now before the court, the appeal has been taken by Canter only, and not by those who claimed the cotton. The only question, therefore, in this court is, whether sufficient damages have been awarded, as no cross-appeal was entered, and there can be no inquiry whether damages may be assessed at all; this having been decided in the circuit court. The appellee cannot here impugn the decree below upon this point. Is this, then, a case for damages, or rather for full compensation ? The entire record is now before this court; the pleadings and the evidence, which were under consideration during the last term, still constitute a part of the 191 310 SUPREME COURT [Jan’y Canter v. American Insurance Co. case upon which the decision must be based. It will be recollected, that the claimant became the proprietor of the cotton at Key West, where it was found in the possession of certain salvors. The libellants were present, by * , *their agent, who was cognisant of the proceedings, acquiesced in J them, and received the portion of the proceeds of sale to which they were entitled. The master of the wrecked vessel was also present, and all participated in what was done there. No proceedings were ever instituted by the libellants, against the authors or abettors of the acts of which they complained. No attempt was ever made to arrest them in the progress of the business, to punish them afterwards, or to pursue the money in their hands. All was reserved for this innocent purchaser. Innocent he was, for this court has decreed the sale to be valid, and his title to be incontrovertible ; innocent as regards them, for he did no one act in which they had not concurred. They avowed their object to be to break up these proceedings at Key West; and this was to be effected by the ruin of this claimant. This court has definitely settled the question of right between these parties; the libellants had no interest in the cotton, the subject-mattei* of the suit; it was the property of the claimant. In the prosecution of this suit against him, however, he has been deprived of this property ; he has incurred heavy expenses and losses, and he asks not vindictive damages ; he asks nothing nomine poenoe; he merely asks to be placed in the situation he would have occupied had these proceedings never been instituted against him. He claims, in fact, nothing which may not properly be awarded under the name of restitution. This is emphatically the case in regard to the first item. The property has long since been disposed of; it probably has no longer an existence ; restitution in specie must be had ; the mandate of this court cannot be literally executed. This has been rendered impracticable by the acts of libellants. They seized upon the article ; they withdrew it from the control of the claimant. While thus retained by them, it is so disposed of, that the owner can nevei’ be restored to the actual enjoyment of it. What then are his rights, and what will satisfy the order of this court that the property shall be restored ? *3121 *He ba<^ entere for contribution, he *having paid the note to the J holder. There never was any contract between the parties but that which appears on the face of the note. In the true sense of this agreement, Magruder promises to pay the note, in case of the failure of the maker to do so, and to save the subsequent indorser, the plaintiff in error, harmless. There is nothing collateral to this agreement; were it necessary or proper to go into any inquiry as to the real circumstances of the parties, three-fourths of the sum received on the discount of the note were for Magruder’s use. The only circumstance upon which the claim of the defendant in error can be supposed to rest, is, that the note was to go into bank for the benefit of the maker ; and this will not raise a contract, either express or by implication, different from that which is the known and established construction of such instruments. This is well known ; and all who become parties to such 290 1830] OF THE UNITED STATES. 473 McDonald v. Magruder. contracts, are bound by the well-established principles of law, operating upon them under such relations. Key, for the defendant, said, the question presented in this case is not novel. It has been frequently discussed in courts, and the position assumed for the defendant in error is founded in equity. It is claimed to divide the loss sustained by the failure of the maker of the note between the indorsers. The bank had judgment against the indorsers. Magruder paid the whole amount of the execution against him, and proceedings on the execution against McDonald were stayed, until this suit shall determine the rights of the parties. In this case, the note was made for the sole purpose of discount for the maker, and the indorsers put their names upon it for that purpose only. As between the bank, there is no doubt, the obligation of each was for the whole amount of the note ; but between themselves, it was not so. They united for the maker and they made no contract with each other for indemnity. The only contract was, that each should become one of two indorsers, for the benefit of the maker, and that they would become mutual and equal sureties. *In other commercial contracts, the circumstances under w’hich they arise are gone into. A bill of exchange drawn without funds in L the hands of the drawer, is not subject to the strict rules of notice. So also, where a note has been discounted for the use of the indorser. Bank of Columbia v. French, 4 Cranch 141. These cases show, that in actions on negotiable paper, you may go beyond the form of the contract. In the present case, the note was drawn, and after it was indorsed by Magruder, was handed back to Turner; it was then, at the request of Turner, indorsed by McDonald, and was delivered to the bank by the maker. Between the indorsers, there was no contract, no consideration passed from the first to the second, and they stood as sureties between each other. 13 Johns. 52 ; 3 Har. & Johns. 125. Marshall, Ch. J., delivered the opinion of the court.—This is a writ of error to a judgment rendered by the circuit court of the United States, for the county of Washington, in the district of Columbia, in an action of indebitatus assumpsit, brought by the first indorser of a promissory note against the second indorser, to recover half its amount. The note was made by Samuel Turner, Jr., and indorsed George B. Magruder and John G. McDonald. At the trial of the cause, a case was agreed by the parties, and the judgment of the circuit court was rendered in favor of the plaintiff, on a verdict given by the jury, subject to the opinion of the court. That a prior indorser is, in the regular course of business, liable to his indorsee, although that indorsee may have afterwards indorsed the same note, is unquestionable. When he takes up the note, he becomes the holder as entirely as if he had never parted with it, and may sue the indorser for the amount. The first indorser undertakes that the maker shall pay the note ; or that he, if due diligence be used, will pay it for him. This undertaking makes him responsible to every holder, and to every person whose name is on the note, subsequent to his own, and who has been compelled to pay its amount. *This is the regular course of business where notes are indorsed for value : but it is contended, that where less than the amount is [*475 291 475 SUPREME COURT [Jan’y McDonald v. Magruder. received, the indorser is responsible to his immediate indorsee only for the sum actually paid ; consequently, if nothing is paid, the mere indorsement does not bind the indorser to pay his immediate indorsee anything. If B. indorses to C., the note of A., without value, and A. fails to take it up, it is, as between B. and C., a contract without consideration, on which no action arises. This is undoubtedly true, if C. retains the note in his own possession ; and may be equally true, if he indorses it for value. When he repays the money he has received, he is replaced in the situation in which he would have been, had he never parted with the note. If he puts it into circulation on his own account, new relations may be created between himself and his immediate indorsee, which may be affected by circumstances. In the case under consideration, the note took the direction intended by all the parties. It was indorsed by Magruder, for the purpose of enabling Turner to discount it at the bank. To insure this object, Turner applied to McDonald, who placed his name also on the paper. No intercourse took place between the indorsers ; no contract, express or implied, existed between them, other than is created by their respective liabilities, produced by the act of indorsement. What are these liabilities ? The first indorser gave his name to the maker of the note, for the purpose of using it in order to raise the money mentioned on its face ; he made himself responsible for the whole sum, upon the sole credit of the maker ; his undertaking is undivided ; he does not understand that any person is to share this responsibility with him. But either the bank is unwilling to discount the note on the credit of the maker and his single indorser, or the maker supposes his object will be insured, by the additional credit given by another name. He presents the note, therefore, to McDonald, and asks his name also. McDonald accedes to his request, and puts his name on the instrument. If the maker passes the note for value, the liability of McDonald to the holder is the same as if that value had been received *by McDonald J himself. Why is this? No consideration is received by McDonald, and this fact is known to the holder and discounter of the note. But a consideration is paid by the holder to the maker, and paid on the credit of McDonald’s name. He cannot set up the want of a consideration received by himself ; he is not permitted to say, that the promise is made without consideration ; because money paid by the promisee to another, is as valid a consideration as rf paid to the promisor himself. In what does the claim of the second on the first indorser differ from that of the holder on the second indorser? Neither has paid value to his immediate indorser ; but the holder has paid value to the maker, on the credit of all the names to the instrument. The second indorser, if he takes up the note, has paid value to the holder, in virtue of the liability created by his indorsement. If this liability was founded eqnally on the credit of the maker and of the first indorser, if his undertaking on the credit of both subjects him to the loss consequent on the payment of the note ; how can the contract between him and his immediate indorser be said to be without consideration ? If it be true, as we think it is, that Magruder, when he indorsed the note, and returned it to the maker to be discounted, made himself responsible for its amount, on the failure of the maker, if this responsibility was then complete, how can it be diminished by the circumstance that McDonald became a subsequent indorser ? How can the legal liability of a first 292 1830] OF THE UNITED STATES. 476 McDonald v. Magruder. indorser to the second, who has been compelled to take up the note, be changed, otherwise than by an express or implied contract between the parties ? This question has arisen and been decided in the courts of several states. Wood v. Repold, 3 liar. & Johns. 125, was a bill drawn by A. Brown, Jr. at Baltimore, on Messrs. Goold & Son of New York, in favor of G. Wood & Co., and indorsed by G. Wood & Co., and afterwards by Repold, the plaintiff. The bill was drawn and indorsed, for the purpose of raising money for the drawer, and was discounted at the bank of Baltimore. On being protested for non-payment, it was taken up by Repold, and this suit brought against the *first indorser. Payment was resisted, because, the indorsement was without consideration, for the accom- *-modation of the drawer ; but the court sustained the action. The same question arose in Drown n. Mott, 7 Johns. 361, on a promissory note, and was decided in the same manner. In that case, the court said, that if he had taken it up at a reduced price, it would seem, that he could only recover the amount paid. Undoubtedly, if McDonald had been compelled to pay a moiety of this note, he could have recovered only that moiety from Magruder. The case of Douglas v. Waddle, 1 Ohio 413, was determined differently ; this case was undoubtedly decided on general principles ; but the custom of the country, and a statute of the state, are referred to by the court, as entitled to considerable influence. The weight of authority, as well as of usage is, we think, in favor of the liability of the first indorser. The claim of Magruder has also been maintained, on the principle, that they are co-sureties, and that he who has paid the whole note may demand contribution from the other. The principle is unquestionably sound, if the case can be brought within it. Co-sureties are bound to contribute equally to the debt they have jointly undertaken to pay ; but the undertaking must be joint, not separate and successive. Magruder and McDonald might have become joint indorsers. Their promise might have been a joint promise. In that event, each would have been liable to the other for a moiety. But their promise is not joint. They have indorsed separately and successively, in the usual mode. No contract, no communication, has taken place between them, which might vary the legal liabilities these indorsements arc known to create. Those legal liabilities, therefore, remain in full force. Upon this question of contribution, the counsel for the defendants in error rely on two cases, reported in 2 Bos. & Pul. 268 and 270. The first, Cowell v. Edwards, was a suit by one surety in a bond against his co-surety, for *contribution. It was intimated by the court, that each surety was liable for his aliquot part, but not liable at law to any contribution, L on account of the insolvency of some of the sureties. The party who had paid more than his just proportion of the debt, could obtain relief in equity only. The second case, Sir Edward Deering v. The Earl of Winchelsea, was a suit in chancery, in the exchequer. Thomas Deering had been appointed receiver of fines, &c., and had given three bonds, conditioned for faithful accounting, &c. In one of these, the plaintiff was surety, in another, Lord Winchelsea, and in the third, Sir John Rous. Judgment was obtained on the bond in which the plaintiff was surety, and this suit was brought against the sureties to the two other bonds, for contribution. It was resisted, on the ground, that there was no contract between the parties, they having entered into special obligations. The Lord Chief Baron was 293 478 SUPREME COURT. McDonald v. Magruder. disposed to consider tne right to contribution as founded rather on the equity of the parties than on contract, and the court decreed contribution. In this case, the parties were equally bound, were equally sureties for the same purpose, and were equally liable for the same debt. Neither had any claim upon the other, superior to what that other had on him. The parties stood in the same relation, not only to the crown, to whom they were all responsible, and to the person for whom they were sureties, but to each other. Under these circumstances, contribution may well bo decreed ex equali jure. But, in the case at bar, the parties do not stand in the same relation to each other. The second indorser gives his name, on the faith of the first indorser, as well as of the maker; the first endorser gives his name, on the faith of the maker only. Unquestionably, these liabilities may be changed by contract;1 but no contract existing between these parties, it is not a case to which the principle of contribution applies. No notice has been taken of the form of the action. It is admitted, that *4.Vol ^fagru^er, having paid the whole note, *may recover a moiety from J McDonald, if their undertaking is to be considered as joint; if he, as first indorser, is not responsible to McDonald for any part of it which McDonald may have paid. The judgment is to be reversed, and the cause remanded, with directions to set aside the verdict, and enter judgment as on a nonsuit. Judgment reversed. 1 See Phillips v. Preston, 6 How. 278. 294 INDEX TO THE PRINCIPAL MATTERS CONTAINED IN THIS VOLUME. The References in this Index are to the Star *pages. ACTION. 1. In England, any instrument or claim, though not negotiable, may be assigned to the king, who can sue upon it in his own name; no valid objection is perceived against giving the same effect to an assignment to the government of this country. United States v. Buford...........................*30 ADMIRALTY. 1. In admiralty cases, a decree is not final, while an appeal from the same is depending in this court, and any statute which governs the case must be an existing valid statute, at the time of affirming the decree below. United States v. Preston......................... *65 AGENT AND PRINCIPAL. 1. C. & Co., merchants of Boston, owners of a ship, proceeding on freight, from Havana, to the consignment of B. & Co., at Leghorn, and to return to Havana, instructed B. & Co. to invest the freight, estimated at 4600 petsos ; 2200 in marble tiles, and the residue, after paying disbursements, in wrapping paper '; B. & Co. undertook to execute these orders; instead, however, of investing 2200 petsos in marble, they invested all the funds which came into their hands in wrapping paper, which was received by the master of the ship, and was carried to Havana, and there sold on account of C. & Co., and produced a loss, instead of the profit, which | would have resulted had the investment been [ made in marble tiles. As soon as informa- I tion of the breach of orders was received, C. ' & Co. addressed a letter to B. & Co., expressing in strong terms their disapprobation of the departure from their orders, but did not signify their determination to disavow the transaction entirely, and consider the paper as sold on account of B. & Co.: Held, that 0. & Co. were entitled to recover damages for the breach of their orders; that their not having given notice to B. & Co., that the paper would be considered as sold on their account, did not prejudice their claim; and that the amount of the damages might be determined by the positive and direct loss arising plainly and immediately from the breach of the orders. Bell v. Cunning-ham................................ *69 2. If a principal, after -knowledge that his orders have been violated by his agent, receive merchandise purchased for him contrary to orders, and sell the same, without signifying any intention of disavowing the acts of the agent, an inference in favor of the ratification of the acts of the agent may fairly be drawn by the jury; but if the merchandise was received by the principal, under a just confidence that his orders to his agent had been faithfully executed, such an inference would be in a high degree unreasonable............................. Id. 3. The faithful execution of orders which an agent or correspondent has contracted to execute, is of vital importance in commercial transactions, and may often affect the injured party far beyond the actual sum misapplied: a failure in this respect may entirely break up a voyage and defeat the whole enterprise. Speculative damages, dependent on possible successive schemes, ought not to be given in 295 482 INDEX. such cases; but positive and direct loss, resulting plainly and immediately from the breach of orders, may be taken into the estimate.........................Id. 4. The jury, in an action for damages for breach of orders, may compensate the plaintiffs for actual loss, but not give vindictive damages; the profits which would have been obtained on the sale of the article directed to be purchased, may be properly allowed as damages........................... Id. 5. The general rule is, that the principal is bound by the act of his agent no further than he authorizes that agent to bind him; but the extent of the power given to an agent is decided as well from facts as from express delegation ; in the estimate or application of such facts, the law has regard to public security, and often applies the rule “ that he who trusts must pay; ” so also, collusion with an agent, to get a debt paid through the intervention of one in failing circumstances, has been held to make the principal liable, on the ground of immoral dealing. Parsons v. Armor..........................*428 ALEXANDRIA, DISTRICT OF COLUMBIA. See case of Fowle v. Common Council of Alexandria, p. *398, as to the powers of the Corporation of Alexandria. ALIEN AND ALIENAGE. See the cases of Inglis v. Trustees of the Sailor’s Snug Harbour, p. *99; and Shanks v. Dupont, p. *242. ALLEGIANCE. 1. What are the rights of the individuals composing a society, and living under the protection of the government, when a revolution occurs, a dismemberment takes place, and when new governments are formed, and new relations between the government and the people are established. A person born in New York, before the 4th of July 1'7'76, and who remained, an infant, with his father, in the city of New York, during the period it was occupied by the British troops, his father being a royalist, and having adhered to the British government, and left New York with the British troops, taking his son with him, who never returned to the United States, but afterwards became a bishop of the Episcopal church in Nova Scotia; such a person was born a British subject, and continued an alien, and is disabled from taking land by inheritance, in the state of New York. Inglis 296 v. Trustees of the Sailor's Snug Har-hour............................. *199 2. If such a person had been born after the 4th of July 1776, and before the 15th of September 1776, when the British troops took possession of the city of New York and the adjacent places, his infancy incapacitated him from taking an election for himself, and his election and character followed that of his father; subject to the right of disaffirmance, in a reasonable time after the termination of his minority; which never having been done, he remained a British subject, and disabled from inheriting land, in the state of New York................................Id. 3. The rule as to the point of time at which the American ante-nati ceased to be British subjects, differs in this country and in England, as established by the courts of justice in the respective countries; the English rule is, to take the treaty of peace in 1783; our rule is, to take the date of the declaration of independence............................... Id. 4. The settled doctrine in this country is, that a person born here, but who left the country before the declaration of independence, and never returned here, became an alien, and incapable of taking lands subsequently by descent; the right to inherit depends upon the existing state of allegiance, at the time of the descent cast ................... Id. 5. The doctrine of perpetual allegiance is not applied by the British courts to the American ante-nati; and this court, in the case of Blight’s Lessee v. Rochester, 7 Wheat. 544, adopted the same rule with respect to the right of British subjects here—That although born before the revolution, they are equally incapable with those born subsequent to that event, of inheriting or transmitting the inheritance of lands in this country......Id. 6. The British doctrine, therefore, is, that the American ante-nati, by remaining in America, after the peace, lost their character of British subjects; and our doctrine is, that by withdrawing from this country, and adhering to the British government, they lost, or, perhaps, more properly speaking, never acquired the character of American citizens..........Id. T The right of election must necessarily exist, in all revolutions like ours, and is well established by adjudged cases................Id. 8. This court, in the case of Mcllvaine’s Lessee v. Coxe, 4 Cranch 111, fully recognised the right of election; but they considered that Mr. Coxe had lost that right, by remaining in the state of New Jersey, not only after she had declared herself a sovereign state, but after she had passed laws by which she declared him to be a member of, and in allegiance to, the new government.............. Id. INDEX. 483. 9. Allegiance may be dissolved by the mutual consent of the government and citizens or subjects; the government may release the governed from their allegiance; this is even the British doctrine...................... Id. 10. Thomas Scott, a native of South Carolina, died in 1782, intestate, seised of land on James Island, having two daughters, Ann and Sarah, both born in South Carolina, before the declaration of independence ; Sarah married D. P., a citizen of South Carolina, and died in 1802, entitled to one-half, the estate; the British took possession of James Island and Charleston, in February and May 1780; and in 1781, Ann Scott married Joseph Shanks, a British officer, and at the evacuation of Charleston, in 1782, she went to England, with her husband, where she remained until her death, in 1801; she left five children, born in England; they claimed the other moiety of the real estate of Thomas Scott, in right of their mother, under the ninth article of the treaty of peace between this country and Great Britain, of the 19th of November 1794: Held, that they were entitled to recover and hold the same. Shanks v. Dupont......................... *242 11. If Ann Scott was of age, before December 1782, as she remained in South Carolina until that time, her birth and residence must be deemed to constitute her, by election, a citizen of South Carolina, while she remained in that state; if she was not of age then, under the circumstance of this case, she might well be deemed to hold the citizenship of her father; for children born in a country, continuing, while under age, in the family of the father, partake of his natural character as a citizen of that country...............Id. 12. All British born subjects, whose allegiance Great Britain has never renounced, ought, upon general principles of interpretation, to be held within the intent, as they certainly are within the words, of the treaty of 1794.......................................Id. 13. The capture and possession of James Island, in February 1780, and of Charleston, on the 11th of May, in the same year, by the British troops,was not an absolute change of the allegiance of the captured inhabitants ; they owed allegiance to the conquerors, during the occupation; but it was a temporary allegiance, which did not destroy, but only suspended, their former allegiance............Id. 14. The marriage of Ann Scott with Shanks, a British officer, did not change or destroy her allegiance to the state of South Carolina, because marriage with an alien, whether friend or enemy, produces no dissolution of the native allegiance of the wife..............Id. 15. The general doctrine is, that no persons can, by any act of their own, without the con sent of the government, put off their allegiance and become aliens..................Id. 16. The subsquent removal of Ann Sl»anks to England, with her husband, operated as a virtual dissolution of her allegiance, and fixed her future allegiance to the British crown, by the treaty of peace in 1783................Id. 17. The treaty of 1783 acted upon the state of things, as it existed at that period; it took the actual state of things as its basis ; all those, whether natives or otherwise, who then adhered to the American states, were virtually absolved from all allegiance to the British crown; all those who then adhered to the British crown, were deemed and held subjects of that crown ; the treaty of peace was a treaty operating between states, and the inhabitants thereof........................Id. AMENDMENT. 1. This court has repeatedly decided, that the exercise of the discretion of the court below, in refusing or granting amendments of pleadings, or motions for new trials, affords no ground for a writ of error; in overruling a motion for leave to withdraw a replication and file a new one, the court exercised its discretion, and the reason assigned, as influencing that discretion, cannot affect the decision. United States v. Buford...............*31 AMERICAN REVOLUTION. For the effect of the American revolution, on the right of persons born in the British colonies in America, before the revolution, and born in the United States during the revolution, and before the treaty of peace, see the cases of Inglis v. Trustees of The Sailor’s Snug Harbour, p. *99, and Shanks v. Dupont, p. *242. APPEAL. 1. In admiralty cases, a decree is not final, while an appeal from the same is depending in this court, and any statute which governs the case must be an existing valid statute, at the time of affirming the decree below. United States v. Preston..................*65 2. The Josefa Segunda, having persons of color on board of her, was, on the 11th of February 1818, found hovering on the coast of the United States, and was seized and brought into New Orleans, and the vessel and the persons on board were libelled in the district court of the United States of Louisiana, under the act of congress of the 2d of March 297 484 INDEX. 1807; after the decree of condemnation below, but pending the appeal to this court, the sheriff of New Orleans went on, with the conseht of all the parties to the proceedings, to sell the persons of color as slaves, and $65,000, the proceeds, were deposited in the registry of the court, to await the final disposal of the case. By the 10th section of the act of the 30th of April 1818, the first six sections of the act were repealed, and no provision was made, by which the condition of the persons of color, found on board a vessel hovering on the coast of the United States, was altered from that in which they were placed under the act of 1807, no power having been given to dispose of them, otherwise than to appoint some one to receive them ; the 7th section of the act of 1818, confirmed no other sales previously or subsequently made under the state laws, but those of illegal importation, and did not comprise the case of a condemnation under the 7th section. The final condemnation of the persons on board the Josefa Segunda took place in this court, on the 13th of March 1820, after congress had passed the act of the 3d of March 1819, entitled “ an act in-addition to an act prohibiting the slave-trade,” by the provisions of which, persons of color brought in under any of the acts prohibiting traffic in slaves, were to be delivered to the President of the United States to be sent to Africa; the condemnation could not affect them.. Id. 3. Where an appeal has been dismissed, the appellant having omitted to file a transcript of the record, within the time required by the rule of court, an official certificate of the dismissal of the appeal may not be given by the clerk, during the term ; the appellant j may file the transcript with the clerk, during , the term, and move to have the appeal reinstated ; to allow such a certificate', would be to prejudge such a motion. Bank of United States v. Swann..............................*68 4. It is of great importance to the due administration of justice, and in furtherance of the manifest intention of the legislature, in giving appellate jurisdiction to this court upon final decrees only, that causes should not come up here in fragments or successive appeals ; it would occasion very great delays, and oppressive expenses. Canter v. American and Ocean Insurance Companies.. .*307 ASSUMPSIT. 1. When money of the United States has been received by one public agent, from another public agent, whether it was received in an official or private capacity, there can be no doubt, but that it was received to the use of the United States; and they may maintain an action of assumpsit against the receiver for the same. United States v. Buford.... *28 BARRATRY. 1. What is barratry: its definition. Patapsco Insurance Company v. Coulter.......*222 2. The British courts have adopted the safe and legal rule, in deciding, that where the policy covers the risk of barratry, and fire is the proximate cause of the loss, they will not sustain the defence, that negligence was the remote cause, and will hold the insurers liable for the loss:.................Id. 3. The rule that a loss, the proximate cause of which is a peril insured against, is a loss within the policy, although the remote cause may be negligence of the master or mariners, has been affirmed in several successive cases in the English courts................Id. BILLS OF EXCHANGE. 1. F., at New Orleans, was the correspondent of P., at Boston, received goods from him on consignment, and was, from time to time, directed to purchase produce, and ship the same to P., and was instructed to draw on P. for the funds to pay for the same; when he made purchases,the bills of parcels were made out in the name of F., and the accounts entered in the books of the different merchants, in his name; the general course of the business was, that P. sent out, in his own vessels, merchandise to F., which was sold by F., and F., at the request of P., purchased from merchants in New Orleans, produce, and shipped the same as ordered by P.; and to put himself in funds for the same, when necessary, drew bills of exchange on P., who had always, until the presentation of the bills on which this suit was brought, accepted and paid the same; but he did not, in his purchases, act under the idea, that he was restricted in his purchases to the drawing of bills for the payment of the articles purchased for P. F. purchased a quantity of tobacco to be shipped to P.; and payment for the same in bills on P., made a particular part of the contract for the purchase; at the time of the purchase, F. showed to the vendor of the tobacco the letters from P., ordering the purchase and shipment of the same; some of the bills drawn by F. on P., and which were delivered to the vendor of the tobacco, in payment for the same, were refused acceptance and payment, and this suit was instituted for the recovery of the amount of the bills from P.: Held, that P. 298 INDEX. 485 was not liable to pay the bills. Parsons v. Armor................................*413 2. A bill of exchange in the substitute for the actual transmission of money by sea or land; power, therefore, to draw on a house in good credit, and to throw the bills upon the market, is equivalent to a deposit of cash in the vaults of the agent. There is not the least tittle of evidence in this cause, to show that P. meant to use the credit of the drawer of the bills on which this suit is brought, or to authorize him to pledge his credit in anything but the negotiation of the bills; this depended on the confidence which merchants of New Orleans, who wished to remit, would place in the solvency and integrity of the drawer and drawee; and had no connection whatever with the application of the money thus raised, to the purchases ordered by the principal; as to those purchases, the agent was authorized to go no further than to apply the funds deposited with him .... Id 8. Of the general power to protest the bills of one who has overdrawn, there can be no question; for it is the only security which One who gives a power to draw bills, and throw them on the market, has against the bad faith of his correspondent; he takes the risk of paying the damages, if in fault; of throwing them on the other, if he has actually abused his trust: it is a question between him and bis correspondent...............Id. 4. The currency which a merchant may give to bills drawn on him by a correspondent, by payment of t-uch bills, does not deprive him of the security he has a right to, by refusing his acceptance of other bills so drawn.. Id. BRITISH TREATY. I. For the effect of British treaties of 1783 and 1794, on the claims of British subjects born in America before the treaty of peace, see the case of Inglis v. Trustees of the Sailor’s Snug Harbour, p. 99, and Shanks v. Dupont, p. *242. 2. Thomas Scott, a native of South Carolina, died in 1782, intestate, seised of land on James Island, having two daughters, Ann and Sarah, both born in South Carolina before the declaration of independence; Sarah married D. P.. a citizen of South Carolina, and died in 1802,' entitled to one-half of the estate; the British took possession of James Island and Charleston, in February and May 1780; and in 1781, Ann Scott married Joseph Shanks, a British oiiicer, and at the evacuation of Charleston, in 1782, she went to England, with her husband, where she remained until her death, in 1801; she left five children, born in England; they claimed the other moiety of the real estate of Thomas Scott, in right of their mother, under the ninth article of the treaty of peace between this country and Great Britian, of the 19th of November 1794: Held, that they were entitled to recover and hold the same. Shanks v. Dupont................................ *242 3. All British born subjects, whose allegiance Great Britain has never renounced, ought, upon general principles of interpretation, to be held within the intent, as they certainly are within the words, of the treaty of 1794.........................................Id. 4. The treaty of 1783 acted upon the state of things as it existed at that period; it took the actual state of things as its basis; all those, whether natives or otherwise, who then adhered to the American states, were virtually absolved from all allegiance to the British crown; all those who then adhered to the British crown were deemed and held subjects of that crown ; the treaty of peace was a treaty operating between states, and the inhabitants thereof........................... Id. CHANCERY. 1. The courts of the United States have equity jurisdiction to rescind a contract on the ground of fraud, after one of the parties to it has been proceeded against on the law side of the court, and a judgment has been obtained against him for a part of the money stipulated to be paid by the contract. Ho gee's Executors v. Grundy.............*210 2. It is not enough, that there is a remedy at law : it must be plain and adequate, or, in other words, as practical and as eificient to the ends of justice and its prompt adminis-istration as the remedy in equity.........Id. 3. It cannot be doubted, that reducing an agreement to writing is, in most cases, an argument against fraud; but it is very far from a conclusive argument: the doctrine will not be contended for, that a written agreement cannot be relieved against, on the ground of false suggestions...............Id. 4. It is not an answer to an application to a court of chancery for relief in rescinding a contract, to say, that the fraud alleged is partial, and might be the subject of compensation by a jury ; the law, which abhors fraud, does not permit it to purchase indulgence, dispensation or absolution................Id. CHARITABLE USES. See the case of Inglis v. Trustees of the Sailors’ Snug Harbour, p. 99. 299 480 INDEX CHOSES IN ACTION, ASSIGNMENT OF. See Action. CIRCUIT COURTS. See Ex parte Tobias Watkins, p. *193, for the jurisdiction^ of the Circuit Court of the District of Columbia in criminal cases. CLERICAL ERROR. 1. A commission was issued in the name of Richard M. Meade, the name of the party being Richard W. Meade; this is a clerical error, and does not affect the execution of the commission. Keane v. Meade.........*1 COLUMBIA, DISTRICT OF. For the jurisdiction of the Circuit Court of the District of Columbia in criminal cases, see Ex parte Tobias Watkins, p. *193. COMMISSION. 1. A commission was issued in the name of Richard M. Meade, the name of the party being Richard W. Meade ; this is a clerical error, m making out the commission, and does not affect the execution of the commission. Keene v. Meade....................... *1 2. It is not known, that there is any practice in the execution or return of a commission requiring a certificate in whose handwriting the depositions returned with the commission were set down; all that the commission requires is, that the commissioners, having reduced the depositions taken by them to writing, should send them, with the commission, under their hands and seals, to the judges of the court out of which the commission issued ; but it is immaterial, in whose handwriting the depositions are; and it cannot be required that they should certify any immaterial fact......................... Id. 3. A certificate by the commissioners, that A. B., whom they were going to employ as a clerk, had been sworn, admits of no other reasonable interpretation, than • that A. B. was the person appointed by them as clerk.................................Id. 4. It is not necessary to return with the commission, the form of the oath administered by the commissioners to the witnesses ; when the commissioners certify, the witnesses were sworn, and the interrogatories annexed to the commission were all put to them, it is presumed, that they were sworn and examined as to all their knowledge of the facts.. Id. 300 COMMON LAW. 1. By “ common law,” the framers of the constitution of the United States, meant, what the constitution denominated in the third article “ law not merely suits which the common law recognised among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined in contradistinction to those where equitable rights alone were regarded, and equitable remedies were administered, or, where, as in the admiralty, a mixture of public law and of maritime law and equity was often found in the same suit. Parsons v. Bedford.. .*434 CONDITION. 1. The testator was seised of a very large real and personal estate, in the states of Virginia, Kentucky, Ohio and Tennessee ; after making by his will, in addition to her dower, a very liberal provision for his wife, for her life, out of part of his real estate, and devising, in case of his having a child or children, the whole of his estate to such child or children, with the exception of the provision for his wife and certain other bequests his will declared : “ in case of having no children, I then leave and bequeath all my real estate, at the death of my wife, to William King, son of brother James King, on condition of his marrying a daughter of William Trigg’s, and my niece, Rachel, his wife, lately Rachel Finlay, in trust for the eldest son, or issue of said marriage ; and in case such marriage should not take place, I leave and bequeath said estate to any child, giving preference to age, of said William and Rachel Trigg, that will marry a child of my brother, James King’s or of sister Elizabeth’s, wife to John Mitchell, and to their issue.” The testator died without issue ; he survived his father, and had brothers and sisters of the whole and half blood, who survived him, and also a sister of the whole blood, Elizabeth, the wife of John Mitchell, who died before him ; William and Rachel Trigg never had a daughter, but had four sons ; James King, the father of W illiam King, the devisee, had only one daughter, who intermarried with Alexander McCall ; Elizabeth, the wife of John Mitchell, had two daughters, both of whom were married, one to William Heis-kill, the other to Abraham B. Trigg. We have found no case in which a general devise in words importing a present interest, in a will making no other disposition of the property, on a condition which may be performed at any time, has been construed, from the mere circumstance that the estate is INDEX. 48? given on condition, to require that the condition must b j performed before the estate can vest; there are many cases in which the contrary principle has been decided; the condition on which the devise to William King pended, is a condition subsequent. Firday v. King's Lessee..................... *346 2. It is certainly well settled, that there are no technical appropriate words which always determine whether a devise be on a condition, precedent or subsequent ; the same words have been determined differently, and the question is always a question of intention ; if the language of the particular clause, or of the whole will, shows that the act upon which the estate depends must be performed before the estate can vest, the condition, cf course, is precedent; and unless it be performed, the devisee can take nothing; if, on the contrary, the act do not necessarily precede the vesting of the estate, but may accompany or follow it, and this is to be collected from the whole will, the condition is subsequent........................Id. 3. It is a general rule, that a devise in words of the present time, as, “ I give to A. my lands in B.,” imports, if no contrary intent appears, an immediate interest, which vests in the devisee, on the death of the testator ; it is also a general rule, that if an estate be given on a condition, for the performance of which no time is limited, the devisee has his life for performance; the result of these two principles seems to be, that a devise to A., on condition that he shall marry B., if uncontrolled by other words, takes effect ■ immediately, and the devisee performs the condition, if he marry B., at any time, during his life ; the condition is subsequent................. Id. 4. As the devise in the will to William King, was on a condition subsequent, it may be construed, so far as respects the time of taking the possession, as if it had been unconditional ; the condition opposes no obstacle to his immediate possession, if the intent of the testator shall require that construction.................................. .Id. 5. The introductory clause in the will states, “ I William King, have thought proper to make and ordain this to be my last will and testament, leaving and bequeathing my worldly estate in the manner following.” These words are entitled to considerable influence in a question of' doubtful intent, in a case where the whole property is given, and the question arises between the heir and devisee, respecting the interest devised; the words of the particular clause also carry the whole estate from the heir, but they fix the death of testator’s wife as the time when the devisee shall be entitled to possession ; they are, “ in case of having no children, I then leave and bequeath all my real estate, at the death of my wife, to William King, son of brother James King: the whole estate is devised to William King, but the possession of that part of it, which is given to the wife or others for life, is postponed until her death.'.......Id. CONSTITUTIONAL LAW. 1. The plaintiff in error claimed to recover the land in controversy, having derived his title under a patent granted by the state of New York to John Cornelius; he insisted, that the patent created a contract between the state and the patentee, his heirs and assigns, that they should enjoy the land, free from any legislative regulations to be made in violation of the constitution of the state, and that an act passed by the legislature of New York, subsequent to the patent, did violate that contract. Under that act, commissioners were appointed to investigate the contending titles to all lands held under such patents as that granted to John Cornelius, and by their proceedings, without the aid of a jury, the title of the defendants in error was established against, and defeating the title under a deed made by John Cornelius, the patentee, and which deed was executed under the patent. This is not a case within the clause of the constitution of the United States, which prohibits a state from passing laws which shall impair the obligation of contracts ; the only contract made by the state is a grant to John Cornelius, his heirs, and assigns, of the land; the patent contains no covenant, to do, or not to do, any further act in relation to the land ; and the court are not inclined to create a contract by implication. The act of the legislature of New York does not attempt to take the land from the patentee, the grant remains in full effect; and the proceedings of the commissioners, under the law, operated upon titles derived under, and not adversely to the patent. Hart v. Lamphire.............*280 2. It is within the undoubted powers of state legislatures, to pass recording acts, by which the elder grantee shall be postponed to a younger, if the prior deed is not recorded within a limited time, and the power is the same, whether the deed be dated before or after the recording act; though the effect of such a deed is to render the prior deed fraudulent and void against a subsequent purchaser, it is not a law violating the obligation of contracts. So too, is the power to pass limitation laws; reasons of sound policy have led to the general adoption of laws of this description and their validity cannot be ques 301 <88 INDEX. tioned ; the time and manner of their operation, the exceptions to them and the acts from whicli the time limited shall begin to run, will generally depend on the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment. Cases may occur where the provisions of a law on these subjects may be so unreasonable as to amount to a denial of a right, and to call for the interposition of this court.. Id. CONSTRUCTION OF STATE STATUTES. 1. It is the uniform rule of this court, with respect to the title to real property, to apply the same rule which is applied in state tribunals in like cases. Inglis v. Trustees of the Sailor's Snug Harbour ............ .*101 2. The right of an absent and absconding debtor to real estate held adversely, passed to and became vested in, the trustees, by the act of the legislature of New York, passed April 4th, 1706, entitled “ an act for relief against absconding and absent debtors”........Id. 3. Construction of the statute of limitations of Ohio. McClung v. Silliman.............*270 CONSTRUCTION OF STATUTES OF THE UNITED STATES. 1. The offence against the law of the United States, under the 7th section of the act of congress, passed the 2d day of March 1807, entitled “ an act to prohibit the importation of slaves into any port or place within the jurisdiction of the United States, from and after the 1st of January 1808,” is not that of importing or bringing into the United States, persons of color, with intent to hold or sell such persons as slaves, but that of hovering on the coast of the United States with such intent; and although it forfeits the vessel, and any goods or effects found on board, it is silent as to disposing of the colored persons found on board, any further than to impose a duty upon the officers of armed vessels who make the capture, to keep them safely, to be delivered to the overseers of the poor, the governor of the state, or persons appointed by the respective states to receive the same. United States v. Preston..............*57 2. The Josefa Segunda, having persons of color on board of her, was, on the 11th of February 1818, found hovering on the coast of the United States, and was seized and brought into New Orleans, and the vessel and the persons on board were libelled in the district court of the United States of Louisana, under the act of congress on the 2d of March 1807 ; after the decree of condemnation below, but pending the appeal to this court, the sheriff of New Orleans went on, with the consent of all the parties to the proceedings, to sell the persons of color as slaves, and $65,000, the proceeds, were deposited in the registry of the .court, to await the final deposal of the case. By the 10th section of the act of the 30th of April 1818, the first six sections of the act are repealed, atfd no provision is made by which the condition of the persons of color, found on board a vessel hovering on the coast of the United States, is altered from that in which they were placed under the act of 1807 ; no power having been given to dispose of them, otherwise than to appoint some one to receive them. The 7th section of the act of 1818, confirms no other sales previously or subsequently made under the state laws, but those for illegal importation, and does not comprise the case of a condemnation under the 7th section. The final condemnation of the persons on board the Josefa Segunda took place in this court, on the 13th of March 1820, after congress had passed the act of the 3d of March 1819, entitled, “ an act in addition to an act prohibiting the slave trade,” by the provisions cf which, persons of color brought in under any of the acts prohibiting the traffic in slaves, were to be delivered to the President of the United States to be sent to Africa : It could not affect such persons of color...........Id. 3. In admiralty cases, a decree is not final, while an appeal from the same is depending in this court, and any statute which governs the case must be an existing valid statute, at the time of affirming the decree below ; if therefore, the persons of color who were on board the Josefa Segunda, when captured, had been specifically before the court, on the 13th of March 1820, they must have been delivered up to the President of the United States to be sent to Africa, under the provisions of the act of the 3d of March 1819, and therefore, there is no claim to the proceeds of their sale, under the law of Louisiana, which appropriated the same. The court do not mean to intimate, that the United States are entitled to the money, for there was no power to sell the persons of color.......Id. 4. Under the 34th section of the judiciary act of 1789, the acts of limitations of the several states, where no special provision has been made by congress, form a rule of decision in the courts of the United States, and the same effect is given to them as is given in the state courts. McClung v. Silliman. ................................. *270 CONTRACT. See Fraud, 1. 302 INDEX. 489 COPIES. 1. Certified copies of the opinion of the court, delivered in cases decided by the court, are to be given by the reporter, and not by the clerk of the court. Anon.......... .*397 CORPORATION. 1. The plaintiff placed goods in the hands of an auctioneer, in the city of Alexandria, who sold the same and became insolvent, having neglected to pay over the proceeds of the sales to tho plaintiff; the auctioneer was licensed by the corporation of Alexandria, and the corporation had omitted to take from him a bond with surety for the faithful performance of his duties as auctioneer ; this suit was instituted to recover from the corporation of Alexandria, the amount of the sales of the plaintiff’s goods, lost by the insolvency of the auctioneer, on an alleged liability in consequence of the corporation having omitted to take a bond from the auctioneer. The power to license auctioneers, and to take bonds for their good behavior, not being one of the incidents to a corporation, must be conferred by an act of the legislature; and in executing it, the corporate body must conform to the act. The legislature of Virginia conferred this power on the mayor, aidermen and commonalty of the several corporate towns within that commonwealth, of which Alexandria was then one ; “ provided that no such license should be granted, until the person or persons requesting the same, should enter into bond, with one or more sufficient sureties, payable to the mayor, aidermen and commonalty of such corporation This was a limitation of the power. Fowle v. Corporation of Alexandria........*398 2. Though the corporate name of Alexandria was “ the mayor and commonalty,” it is not doubted, that a bond taken in pursuance of the act would have been valid.......Id. 3. The act of congress of 1804, “ an act to amend the charter of Alexandria,” does not transfer generally to the common council, the powers of the mayor and commonalty ; but the powers given to them are specially enumerated ; there is no enumeration of the power to grant licenses to auctioneers. The act amending the charter, changed the corporate body so entirely as to require a new provision to enable it to execute the powers conferred by the law of Virginia; an enabling clause, empowering the common council to act in a particular case, or some general clause which might embrace the particular case, is necessary under the new organization of the corporate body.........................Id. 4. The common council granted a license to carry on the trade of an auctioneer, which the law did not empower that body to grant. Is the town responsible for losses sustained by individuals from the fraudulent conduct of the auctioneer ? He is not the officer or agent of the corporation, but is understood to act for himself, as entirely as a tavernkeeper or any other person who may carry on any business under a license from the corporate body...............................Id. 5. Is a municipal corporation, established for the general purchases of government, with limited legislative powers, liable for losses consequent on its having misconstrued the dxtent of its powers, in granting a license which it had no authority to grant, without taking that security for the conduct of the person obtaining that license, which its own ordinances had been supposed to require, and which might protect those who transact business with the persons acting under the clause ? The court finds no case in which this principle has been affirmed...............Id. 6. That corporations are bound by their contracts, is admitted ; that moneyed corporations, or those carrying on business for themselves, are liable for torts, is well settled ; but that a legislative corporation, established as a part of the government of the country, is liable for losses sustained by a nonfeasance, by an omission of the corporate body to observe a law of its own, in which no penalty is provided, is a principle for which we can find no precedent.................... Id. COSTS. 1. Costs and expenses are not matters positively limited by law, but are allowed in the exercise of a sound discretion of the court; and no appeal lies from a mere decree respecting costs and expenses. Canter n. American and Ocean Insurance Companies...........*307 COURTS OF THE UNITED STATES. 1. This action was instituted in the district court of the United States for the eastern district of Louisiana, according to the forms of proceedings adopted and practised in the courts of that state ; the cause was tried by a special jury, and a verdict was rendered for the plaintiff; on the trial, the counsel for the defendant moved the court to direct the clerk of the court to take down in writing the testimony of the witnesses examined in the cause, that the same might appear on record: such being the practice of the state courts of Louisiana,; and which practice the counsel for the defendant insisted was to prevail in the 303 490 INDEX. courts of the United States, according to the act of congress of the 26th of May 1824, which provides, that the mode of proceeding in civil causes in the courts of the United States established in Louisiana, shall be conformable to the laws directing the practice in the district court of the state, subject to such alterations as the judges of the courts of the United States should establish by rules ; the court refused to make the order, or to permit the testimony to be put down in writing; the judge expressing the opinion, that the courts of the United States are not governed by the practice of the courts of the state of Louisiana; the defendant moved for a new trial, and the motion being oVer-ruled, snd judgment entered for the plaintiff on the verdict, the defendant brought a writ of error to this court. Under the laws of Louisiana, on the trial of a cause before a jury, if either party desires it, the verbal evidence is to be taken down in writing by the clerk, to be sent to the supreme court to serve as a statement of facts, in case of appeal, and the written evidence produced on the trial is to be filed with the proceedings ; this is done to enable the appellate court to exercise the power of granting a new trial and of revising the judgment of the inferior court : Held, that the refusal of the judge of the district court of the United States to permit the evidence to be put in writing, could not be assigned for error in this court, the cause having been tried in the court below, and a verdict given on the facts by a jury ; if the same had been put in writing, and been sent up to this court with the record, this court, proceeding under the constitution of the United States, and of the amendment thereto, which declares, “ no fact once tried by a jury shall be otherwise reexaminable in any court of the United States, than according to the rules of the common law,” is not competent to redress any error by granting a new trial. The proviso in the act of congress of the 26th of May 1824, ch. 181, demonstrates that it was not the intention of congress to give an absolute and imperative force to the state modes of proceeding in civil causes in Louisiana, in the courts of the United States; for it authorizes the judge to modify them so as to adapt them to the organization of his own courts ; and it further demonstrates, that no absolute repeal was intended to the antecedent modes of proceeding authorized in the United States courts, under former act of congress; for it leaves the judge at liberty to make rules, by which discrepancy between the state laws and the laws of the United States may be avoided. Parsons v. Bedford. .*433 304 2. The act of congress having made the practice of the state courts, the rule for the courts of the United States in Louisiana, the district court of the United States in that district is bound to follow the practice of the state ; unless that court has adopted a rule superseding the practice.........................Id. 3. It was not the intention of congress, by the general language of the act of 1824, to alter the appellate jurisdiction of this court and to confer on it the power of granting a new trial, by a re-examination of the acts tried by a jury; and to enable it, after trial by jury, to do that in respect to the courts of the United States sitting in Louisiana, which is denied to such courts sitting in all the other states of the Union...................................Id. 4. No court ought, unless the terms of an act of congress render it unavoidable, to give a construction to the act which should, however unintentional, involve a violation of the constitution. The terms of the act of 1824 may well be satisfied by limiting its operation to modes of practice and proceeding in the courts below, without changing the effect or conclusiveness of the verdict of a jury upon the facts litigated on the trial ; the party may bring the facts into review before the appellate courts, so far as they bear upon questions of law, by a bill of exceptions ; if there be any mistake of the facts, the court below is competent to redress it, by granting a new trial............................... Id. COVERTURE. See Femes Covert. DAMAGES. 1. The faithful execution of orders which an agent or correspondent has contracted to execute, is of vital importance in commercial transactions, and may often affect the injured party far beyond the actual sum misapplied ; a failure in this respect may entirely break up a voyage and defeat the whole enterprise ; speculative damages, dependent on possible successive schemes, ought not to be given in such cases; but positive and direct loss, resulting plainly and immediately from the breach of orders, may be taken into the estimate. Bell v. Cunningham..........*69 2. The jury in an action for damages for breach of orders, may compensate the plaintiff for actual loss, but not give vindictive damages; the profits which would have been obtained on the sale of the articles directed to be purchased may be properly allowed as damages ............................ Id. INDEX. 491 8. The libellants, in their original libel in the district court of the United States for the district of South Carolina, prayed that certain bales of cotton might be decreed to them, with damages and costs; Canter, who also claimed the cotton, prayed the court for restitution, with damages and costs ; the district court decreed restitution of part of the cotton to the libellants, and dismissed the libel, without any award of damages on either side ; both parties appealed from this decree to the circuit court, where the decree of the district court was reversed, and restitution of all the cotton was decreed to Canter, with costs ; without any award of damages or any express reservation of that question in the decree; from this decree, the libellants in the district court appealed to this court. The decree of restitution, without any allowance of damages, was a virtual denial of them, and a final decree upon Canter’s claim of damages; it was his duty, at that time, to have filed a cross-appeal, if he meant to rely on a claim to damages ; and not having done so, it was a submission to the decree of restitution and costs only. This is not a proper case for the award of damages ; the proceedings of the libellants were in the ordinary course, to vindicate a supposed legal title ; there is no pretence to say, that the suit was instituted without probable cause, or was conducted in a malicious or oppressive manner; the libellants had a right to submit their title to the decision of a judicial tribunal, in any legal mode which promised them an effectual and speedy redress. Where parties litigate in the admiralty, and there was a probable ground for the suit or defence, the court considers the only compensation which the successful party is entitled to, is a compensation in costs and expenses ; if the party has suffered any loss any loss beyond these, it is damnum absque injuria. Canter v. American and Ocean Insurance Companies.....................*307 4. The settled practice of this court is, that whenever damages are claimed by the libellant, or the claimant, in the original proceedings, if a decree of restitution and costs only passes, it is a virtual denial of damages ; and the party will be deemed to have waived the claim for damages, unless he then interposes an appeal or cross-appeal, to sustain that claim........................ Id. 5. Counsel fees in defending and prosecuting successfully a case of admiralty jurisdiction, allowed as damages.......................Id. DEMURRER. E The party who demurs to evidence, seeks thereby to withdraw the consideration of 3 Pet.—20 the facts from the jury; and is, therefore, bound to admit not only the truth of the evidence, but every fact which that evidence may legally conduce to prove in favor of the other party; and if, upon any view of the facts, the jury might have given a verdict against the parties demurring, the court is also at liberty to give judgment against him. Thornton v. Bank of Washington.......*36 2. The defendant in the court below having withdrawn his cause from the jury, by a demurrer to evidence, or having submitted to a verdict for the plaintiff, subject to the demurrer, cannot hope for a judgment in his favor, if, by any fair construction of the evidence, the verdict can be sustained. Chin-oueth v. Lessee of Haskell.............*92 DEVISE. 1. The testator gave all the rest and residue and remainder of his estate, real and personal, comprehending a large real estate in the city of New York, to the chancellor of the state of New York, and recorder of the city of New York, &c. (naming several other persons by their official description), to have and to hold the same, unto them and their re* spective successors in office, to the uses and trusts, subject to the conditions and appointments, declared in the will ; which were, out of the rents, issues and profits thereof, to erect and build upon the land upon which he resided, which was given by the will, an asylum or marine hospital, to be called “ the Sailor’s Snug Harbour,” for the purpose of maintaining and supporting aged, decrepid and worn-out sailors, &c. And after giving directions as to the management of the fund by his trustees, and declaring, that the institution created by his will should be perpetual, and that those officers, and their successors, should for ever continue the governors thereof, &c., he added, “ It is my will and desire, that if it cannot legally be done, according to my above intention, by them, without an act of the legislature, it is my will and desire, that they will, as soon as possible, apply for an act of the legislature, to incorporate them for the purpose above specified; and I do further declare it to be my will and intention, that the said rest, residue, &c., of my estate should be, at all events, applied for the uses and purposes above set forth; and that it is my desire, all courts of law and equity will so construe this my said last will, as to have the said estate appropriated to the above uses, and that the same should, in no case, for want of legal form or otherwise, be so construed as that my relations, or any other persons, should heir, pos- 305 492 INDEX. sess or enjoy my property, except in the manner and for the uses herein above specified.” Within five years after the death of the testator, the legislature of the state of New York, on the application of the trust-> ees, also named as executors of the will, passed a law, constituting the persons holding the offices designated in the will, and their successors, a body corporate, by the name of the “ Trustees of the Sailor’s Snug Harbour,” and enabling them to execute the trusts declared in the will. This is a valid devise, to divest the heir of his legal estate, or, at all events, to affect the land in his hands with the trust declared in the will; if, after such a plain and unequivocal declaration of the testator, with respect to the disposition of his property, so cautiously guarding against, and providing for, every supposed difficulty that might arise, any technical objection shall now be interposed to defeat his purpose; it will form an exception to what we find so universally laid down in all our books, as a cardinal rule in the construction of wills, that the intention of the testator is to be sought after and carried into effect; if this intention cannot be carried into effect, precisely in the mode at first contemplated ■ by him, consistently with the rules of law, he has provided an alternative which, with the aid of the act of the legislature, must remove every difficulty. Inglis v. Trustees of the Sailor's Snug Harbour..............*99 2. In the case of the Baptist Association v. Hart’s Executors, 4 Wheat. 27, the court considered the bequest void, for uncertainty as to the devisees, and the property vested in the next of kin, or was disposed of by some other provisions of the will; if the testator, in that case, had bequeathed the property to the Baptist Association, on its becoming thereafter, and within a reasonable time, incorporated, could there be a doubt but the subsequent incorporation would have conferred on the association the capacity of taking and managing the fund ?...........Id. 3. C. B., by her last will and testament, devised, “ all her estate, wheresoever and whatsoever, in law or equity, in possession, reversion, remainder or expectancy, unto her executors, and to the survivor of them, his heirs and assigns for ever,” upon certain designated trusts ; under the statute of wills of the state of New York (1 N. Y. Revised Laws 364), all the rights of the testator to real estate, held adversely at the time of the decease of the testator, passed to the devisees by this will............................ Id. 4. The testator was seised of a very large real and personal estate, in the states of Virginia, Kentucky, Ohio and Tennessee j after mak ing, by his will, in addition to her dower, a very liberal provision for his wife, for her life, out of part of his real estate, and devising, in case of his having a child or children, the whole of his estate to sueh child or children, with the exception of the provision for his wife, and certain other bequests, his will declared : “ in case of having no children, I then leave and bequeath all my real estate, at the death of my wife, to William King, son of brother James King, on condition of his marrying a daughter of William Trigg’s, and my niece, Rachel, his wife, lately Rachel Finlay, in trust for the eldest son, or issue of said marriage ; and in case such marriage should not take place, I leave and bequeath said estate to any child, giving preference to age, of said William and Rachel Trigg, that will marry a child of my, brother, James King’s or of my sister Elizabeth’s, wife to John Mitchell, and to their issue.” The testator died without issue ; he survived his father, and had brothers and sisters of the whole and half blood, who survived him, and also a sister of the whole blood, Elizabeth, the wife of John Mitchell, who died before him ; William and Rachel Trigg never had a daughter, but had four sons ; James King, the father of William King, the devisee, had only one daughter, who intermarried with Alexander McCall ; Elizabeth, the wife of John Mitchell, had two daughters, both of whom were married, one to William Heiskill, the other to Abraham B. Trigg. We have found no case in which a general devise, in words importing a present interest, in a will making no other disposition of the property, on a condition which may be performed at any time, has been construed, from the mere circumstance that the estate is given on condition, to require that the condition must be performed before the estate can vest; there are many cases in which the contrary principle has been decided. The condition on which the devise to William King depended, is a condition subsequent. Finlay n. King's Lessee.....................*346 5. It is certainly well settled, that there are no technical appropriate words which always determine whether a devise be on a condition precedent or subsequent; the same words have been determined differently, and the question is always a question of intention ; if the language of the particular clause, or of the whole will, show that the act upon which the estate depends must be performed, before the estate can vest, the condition, of course, is precedent, and unless it is performed, the devisee can take nothing; if on the contrary, the act do not necessarily precede the vesting of the estate, but 306 INDEX. 493 may accompany or follow it, if this is to be collected from the whole will, the condition is subsequent........................Id. 6. It is a general rule, that a devise in words of the present time,» as, “ I give to A. my lands in B.,” imports, if no contrary intent appears, an immediate interest, which vests in the devisee, on the death of the testator ; it is also a general rule, that if an estate be given on a condition, for the performance of which no time is limited, the devisee has his life for performance ; the result of these two principles seems to be, that a devise to A., on condition that he shall marry B., if uncontrolled by other words, takes effect immediately, and the devisee performs the condition, if he marry B., at any time during his life ; the condition is subsequent............Id. *1. As the devise in the will to William King was on a condition subsequent, it may be construed, so far as respects the time of taking the possession, as if it had been unconditional ; the condition opposes no obstacle to his immediate possession, if the intent of the testator shall require that construction. .............................. Id. 8. The introductory clause in the will, stated, “ I, William King, have thought proper to make and ordain this to be my last will and testament, leaving and bequeathing my worldly estate in the manner following These words are entitled to considerable influence in a question of doubtful intent, in a case where the whole property is given, and the question arises between the heir and devisee, respecting the interest devised ; the words of the particular clause also carry the whole estate from the heir, but they fix the death of the testator’s wife as the time when the devisee shall be entitled to possession ; they are, “ in case of having no children, I then leave and bequeath all my real estate, at the death of my wife, to William King, son of brother James King.” The whole estate is devised to William King, but the possession of that part of it which is given to the wife or others for life, is post-, poned until her death................Id. 9. Qucere ? Did William King take an estate which, in the events that have happened, inures to his own benefit ; or is he, in the existing state of things, to considered a trustee • for the heirs of the testator ? This question cannot be decided in this cause ; it belongs to a court of chancery, and will be determined, when the heir shall bring a bill to enforce the execution of the trust.......Id. DISCOUNT. See Interest, 1-3. DUTIES ON MERCHANDISE. See Lien of the United States for Duties : Priority of the United States. EJECTMENT. 1. When a tenant disclaims to hold under his lease, he becomes a trespasser, his possession is adverse, and is open to the action of his landlord, as possession acquired originally by wrong. The act is conclusive on the tenant; he cannot revoke his disclaimer and adverse claim, so as to protect himself, during the unexpired time of the lease ; he is a trespasser on him who has the legal title ; the relation of landlord and tenant is dissolved, and each party must stand upon his right. Willison v. Watkins- ..........*43 2. If the tenant disclaim the tenure, claim the fee adversely, in right of a third person, or in his own right, or attorn to another, his possession then becomes a tortious one, by the forfeiture of his right; the landlord’s right of entry is complete, and he may sue at any time within the period of limitation ; but he must lay his demise of a day subsequent to the termination of the tenancy, for before that, he has no right of entry. By bringing his ejectment, he disclaims the tenancy, and goes for the forfeiture ; it shall not be permitted to the landlord to thus admit that there is no tenure subsisting between him and the tenant, which can protect his possession from this adversary suit; and at the same time, recover, on the ground of there being a tenure so strong as that he cannot set up his adversary possession....Id, 3. A mortgagee, or direct purchaser from the tenant, or one who buys his right at a sheriff’s sale, assumes his relation to the landlord, with all its legal consequences, and is as much estopped from denying the tenancy. Id. 4. It is an undoubted principle of law, fully recognised in this court, that a tenant cannot dispute the title of his landlord, either by setting up a title in himself, or a third person, during the existence of the lease or tenancy ; the principle of estoppel applies to the relation between them, and operates with full force to prevent the tenant from violating that contract, by which he claimed and held the possession ; he cannot change the character of the tenure, by his own act merely, so as to enable himself to hold against his landlord; who reposes under the security of the tenancy, believing the possession of the tenant to be his own, held under his title, and ready to be surrendered, on its termination by the lapse of time, or demand of possession.. Id. 5. The same principle applies to a mortgagor 307 494 INDEX. and mortgagee, trustee and cestui que trust, and generally, to all cases where one man obtains possession of real estate belonging to another, by a recognition of his title.. .Id. ERROR. 1. Generally speaking, matters of practice in the inferior courts do not constitute subjects upon which errors can be assigned in the appellate courts. Parsons v. Bedford. *434 ESTATES ON CONDITION. See Condition. EVIDENCE. 1. A witness, the clerk of the plaintiff, examined under a commission, stated the payment of a sum of money to have been made by him to. the defendant, and that the defendant, at his request, made an entry in the plaintiff’s rough cash-book, writing his name at full length, and stating the sum paid to him, not so much for the sake of the receipt, as in order for him, the witness, to become acquainted with the signature, and the way of spelling his name. It is not necessary to produce the book in which the entry was made; and parol evidence of the payment of the money is legal; it cannot be laid down as a universal rule, that where written evidence of a fact exists, all parol evidence of the same fact is excluded. Keene y. Meade............*1 2. An account stated at the treasury department, which does not arise in the ordinary mode of doing business in that department, can derive no additional validity from being certified under the act of congress; a treasury statement can only be regarding as establishing items for moneys disbursed through the ordinary channels of the department, where the transactions are shown by its books ; in these cases, the officers may well certify, for they must have official knowledge of the facts stated. United States v. Buford. .*12 3. But when moneys come into the hands of an individual, not though the officers of the treasury or in the regular course of official duty, the books of the treasury do not exhibit the facts, nor can they be known to the officers of the department ; in such a case, the claim of the United States for money thus in hands of a third person must be established, not by a treasury statement, but by the evidence on which that statement was made...........Id. 4. On a trial in ejectment, the plaintiffs offered in evidence, a number of entries of recent date, made by the defendants, within the bounds of the tract of land in dispute, de 308 signated as “ Young’s four thousand acres and attempted to prove by a witness, that Young, when he made the entries, had heard of the plaintiffs’ claim to the land; the defendants then offered to introduce as evidence, official copies of entries made by other and third persons, since the date of the plaintiffs’ grant, for the purpose of proving a general opinion, that the lands contained in the plaintiffs’ survey, made under the order of the court, after the commencement of the suit, were vacant, at the date of such entries ; and to disprove notice to him of the identity of the plaintiff ’s claim, when he made the entries under which he claimed : This evidence was unquestionably irrelevant. Stringer v. Young's Lessee......................... *2»2O 5. Entries made subsequently to the plaintiffs’ claim, whatever might have been the impression under which they were made, could not possibly affect a title held under a prior entry.................................. Id. 6. The admission of evidence which was irrelevant, but which was not objected to, will not authorize the admission of other irrelevant evidence, offered to rebut the same, when the same is objected to.....................Id. L Certified copies of the opinions of the court are to be given by the reporter, and not by the clerk of the court. Anon...........*397 See Commission, 1-4. FACTOR. See Agent and Principal. FEES. 1. The counsel fees allowed as expenses attending the prosecution of an appeal, to the circuit court and to the supreme court, in an admiralty case. Canter n. American and Ocean Insurance Companies............ *307 FEMES COVERT. 1. The incapacities of femes covert, provided by the common law, apply to their civil rights, and for their protection and interest; but they do not reach their political rights, nor prevent their acquiring or losing a national character ; these political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations. Shanks n. Dupont................. *242 FRAUD. 1. It cannot be doubted, that reducing an agreement to writing is, in most cases, an INDEX. 495 argument against fraud; but it is very far from a conclusive argument; the doctrine will not be contended for, that a written agreement cannot be relieved against, on the ground of false suggestions. Boyce's Executors v. Grundy.....................*210 2. It is not an answer to an application to a court of chancery for relief in rescinding a contract, to say, that the fraud alleged is partial, and might be the subject of compensation by a jury; the law, which abhors fraud, does not permit it to purchase indulgence, dispensation or absolution.......Id. HABEAS CORPUS. 1. A petition was presented by Tobias Watkins for a habeas corpus, for the purpose of inquiring into the legality of his confinement in the jail of the county of Washington, by virtue of a judgment of the circuit court of the United States of the district of Columbia, rendered in a criminal prosecution instituted against him in that court; the petitioner alleged, that the indictments under which he was convicted and sentenced to imprisonment, charged no offence for which the prisoner was punishable in that court, or of which that court could take cognisance; and, consequently, that the proceedings were coram non judice. The supreme court has no jurisdiction in criminal cases which could reverse or affirm a judgment rendered in the circuit court, in such a case, where the record is brought up directly by writ of error. Ex parte Watkins..........................*193 2. The power of this court to award writs of habeas corpus, is conferred expressly on the court, by the 14th section of the judiciary act, and has been repeatedly exercised; no doubt exists respecting the power. No law of the United States prescribes the cases in which this great writ shall be issued, nor the power of the court over the party brought up by it; the term used in the constitution is one which is well understood, and the judiciary act authorizes the court, and all the courts of the United States, and the judges thereof, to issue the writ “ for the purpose inquiring into the cause of commitment.” Id. 8. The nature and powers of the writ of habeas corpus..................................Id. 4. The cases of the United»States «. Hamilton, 3 Dall. 17; Ex parte Buford, 3 Cranch 447 ; Ex parte Bollman, 4 Cranch 75 ; and Ex parte Kearney, 7 Wheat. 39; examined..........Id. INSOLVENT LAWS. 1. The plaintiff below, a citizen of the state of Kentucky, instituted a suit against the defendant, a citizen of Louisiana, for the recovery of a debt incurred in 1808, and the defendant pleaded his discharge by the bankrupt law of Louisiana, in 1811; under which, according to the provisions of the law, “ as well his person as his future effects ” were for ever discharged “ from all the claims of his creditors;” under this law, the plaintiff, whose debt was specified in the list of the defendant’s creditors, received a dividend of ten per cent, on his debt, declared by the assignees of the defendant: Held, that the plaintiff, by voluntarily making himself a party to those proceedings, abandoned his extra-territorial immunity from the operation of the bankrupt law of Louisiana; and was bound by that law to the same extent to which the citizens of Louisiana were bound. Clay v. Smith.......................*411 INSURANCE. 1. Insurance on profits on board the ship Mary, “ at and from Philadelphia to Gibraltar and a port in the Mediterranean, not higher up than Marseilles, and from thence to Sonson-ate, in Guatemala, Pacific Ocean, with liberty of Guayaquil; the insurance to begin from the loading of the goods at Philadelphia, and to continue until the goods were safely landed at the said ports; the insurance, $5000, declared to be on profits, warranted to be American property, to be proved at Philadelphia only, valued at $20,000.” The vessel proceeded, with a cargo of flour, to Gibraltar, where the same was to be sold, and the proceeds invested at Marseilles in dry-goods, to be sent from thence to Sonsonate or Guayaquil; while the vessel lay at Gibraltar, before the discharge of her cargo, she and her cargo were totally lost by fire. The evidence on the trial went to show, that with proper diligence on the part of the master and crew, the fire might have been extinguished, and the vessel and cargo saved; soon after the fire commenced, the master called upon the crew to leave the ship, under an apprehension from a small quantity of gunpowder on board; and after they left her, she was boarded by other persons, who endeavored, without success, to extinguish the flames, having, as was alleged, arrived too late; evidence was given tending to show that the fire originated through the carelessness of the master. The circuit court refused to instruct the jury, that if the fire proceeded from the carelessness or negligence of the master, the insured could not recover; the court also refused to instruct the jury, that if the fire originated from accident, or without any want of due care on the part of 309 496 INDEX. the master and crew, and if the jury should find, that, by reasonable and proper exertions, the vessel and cargo might have been preserved by them, which they omitted, the assured could not recover; that court also refused to instruct the jury, that the assured, having offered no evidence that the sales of the flour at Gibraltar would have yielded a profit, they were not entitled to recover: Held, that there was no error in these instructions. Patapsco Insurance Company v. Coulter................. ■...........*220 2. What is barratry : its definition.....Id. 3. The British courts have adopted the safe and legal rule, in deciding, that where the policy covers the risk of barratry, and fire is the proximate cause of the loss, they will not sustain the defence, that negligence was the ; remote cause, and will hold the insurers liable for the loss.......................Id. 4. The rule that a loss, the proximate cause of which is a peril insured against, is a loss within the policy, although the remote cause may be negligence of the master or mariners, has been affirmed in several successive cases in the English courts....................Id. 5. It seems difficult to perceive, if profit be a mere excrescence of the principal, as some judges have said; or identified with it, as has been said by others; why the loss of the cargo should not carry with it the loss of the profits. Proof that profits would have arisen on the voyage, in order to recover on a policy on profits, is not required, if the cargo has been lost................................. ..Id. INTEREST. 1, The taking of interest in advance, upon the discount of a note, in the usual course of business, by a banker, is not usury; this has long been settled, and is not now open for controversy. Thornton v. Bank of Washington ................................. *36 2. The taking of interest for sixty-four days, on a note, is not usury, if the note, given for sixty days, according to the custom and usage in the banks at Washington, was not due and payable until the sixty-fourth day. In the case of Renner v. Bank of Columbia, 9 Wheat. 581, it was expressly held, that under that custom, the note was not due and payable before the sixty-fourth day, for until that time, the maker could not be in default..................................Id. 3. Where it was the practice of the party, who had a sixty-day note discounted at the bank of Washington, to renew the note, by the discount of another note, on the sixty-third day, the maker not being in fact bound to pay the note, according to the custom pre 310 vailing in the district of Columbia; such a transaction on the part of the banker is not usurious, although on each note, the discount of sixty-four days was deducted. Each note is considered as a distinct and a substantive transaction; if no more than legal interest is taken upon the time the new note has to run, the actual application of the proceeds of the new note to the payment of the former note, before it becomes due, does not of itself make the transaction usurious; something more must occur ; there must be a contract between the bank and the party, at the time of such discount, that the party shall not have the use and benefit of the proceeds, until the former note becomes due, or that the bank shall have the use and benefit of them in the meantime............. Id. JURISDICTION. 1. The plaintiff below claimed more than $2000 in his declaration, but obtained a judgment for a less sum : the jurisdiction of this court depends on the sum or value in dispute between the parties, as the case stands upon the writ of error in this court; not on that which was in dispute in the circuit court. Gordon v. Ogden..............................*33 2. If the writ of error be brought by the plaintiff below, then the sum which the dechiration shows to be due may be still recovered, should the judgment for a smaller sum be reversed; and consequently, the whole sum claimed is still in dispute..................Id. 3. But if the writ of error be brought by the defendant in the original action, the judgment of this court can only affirm that of the circuit court, and consequently, the matter in dispute cannot exceed the amount of that judgment ; nothing but that judgment is in dispute between the parties..................Id. 4. A judgment, in its nature, concludes the subject on which it is rendered, and pronounces the law of the case ; the judgment of a court of record, whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be; it is as conclusive on this court, as on other courts; it puts an end to inquiry concerning the fact, by deciding it. Ex parte Watkins.... *193 5. With what propriety can this court look into an indictment fmind in the circuit court, and which has passed into judgment before that court ? We have no power to examine the proceedings, on a writ of error, and it would be strange, if, under color of a writ to liberate an individual from an unlawful imprisonment, the court substantially reverse a judgment which the law has placed beyond its control. An imprisonment under a judgment INDEX. 497 cannot be unlawful, unless that judgment be an absolute nullity ; and it is not a nullity, if the court has general jurisdiction of the subject, although it should be erroneous.. Id. 6. The circuit court for the district of Columbia is a court of record, having general jurisdiction, over criminal cases ; an offence cognisable in any court, is cognisable in that court........................................Id. 7. If the offense be punishable by law, that court is competent to inflict the punishment; the judgment of such a tribunal has all the obligation which the judgment of any tribunal can have; to determine whether the offence charged in the indictment be legally punishable or not, is among the most unquestionable of its powers and duties ; the decision of this question is the exercise of its jurisdiction, whether its judgment be for or against the prisoner; the judgment is equally binding in one case and in the other, and must remain in full force, unless reversed regularly by a superior court capable of reversing it; if this judgment be obligatory, no court can ever look behind it................Id. 8. Had any offence against the laws of the United States been in fact committed, the circuit court for the district of Columbia could take cognisance of it; the question whether any offence was committed, or was not committed, that is, whether the indictment did or did not show that an offence had been committed, was a question which this court was competent to decide; if its judgment was erroneous, a point which this court does not determine, still it is a judgment; and, until reversed, cannot be disregarded. Id. 9. It is universally understood, that the judgments of the courts of the United States, although their jurisdiction be not shown on the pleadings, are yet binding on all the world, and that this apparent want of jurisdiction can avail the party only on a writ of error ; the judgment of the circuit court in a criminal case is of itself evidence of its own legality, and requires for its support no inspection of the indictment on which it is founded; the law trusts that court with the whole subject, and has not confided to this court the power of revising its decisions ; this court cannot usurp that power, by the instrumentality of a writ of habeas corpus ; the judgment informs us that the commitment is legal, and with that information it is our duty to be satisfied ...................................Id. 10. This court has been often called upon to consider the 16th section of the judiciary act of 1789, and as often, either expressly, or by the course of its decisions, has held, that it is merely declaratory, making no alteration whatever in the rules of equity on the sub ject of legal remedy. Boyce's Executors v. Grundy...............................*210 11. The courts of the United States have equity jurisdiction to rescind a contract, on the ground of fraud, after one of the parties to it has been proceeded against on the law side of the court, and a judgment has been obtained against him for a part of the money stipulated to be paid by the contract... .Id. 12. It is not enough, that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and as efficient to the ends of justice and its prompt administra-' tion, as the remedy in equity.........Id. 13. Where the point in which the judges of the circuit court differed in opinion was not certified, but the point of difference was to be ascertained from the whole record, the court refused to take jurisdiction of the case. De Wolf v. Usher.......................*269 14. This court has no authority, on a writ of error from a state court, to declare a state law void, on account of its collision with a state constitution: it not being a case embraced in the judiciary act, which gives the power of a writ of error to the highest judicial tribunal of the state. Jackson v. Lamphire.............................*280 15. The plaintiff in error claimed to recover the land in controversy, having derived his title under a patent granted by the state of New York to John Cornelius; he insisted, that the patent created a contract betweeen the state and the patentee, his heirs and assigns, that they should enjoy the land free from any legislative regulations to be made in violation of the constitution of the state, and that an act passed by the legislature of New York, subsequent to the patent, did violate that contract. Under that act, commissioners were appointed to investigate the contending titles to all the lands held under such patents as that granted to John Cornelius, and by their proceedings, without the aid of a jury, the title of the defendants in error was established against, and defeating the title under, a deed made by John Cornelius, the patentee, and which deed was executed under the patent. This is not a ca.se within the clause of the constitution of the United States, which prohibits a state from passing laws which shall impair the obligation of contracts; the only contract made by the state is a grant to John Cornelius; his heirs and assigns, of the land ; the patent contains no covenant to do, or not to do, any further act in relation to the land; and the court are not inclined to create a contract by implication ; the act of the legislature of New York does not attempt to take the land from the patentee; the grant remains in full effect; 311 .498 INDEX. and the proceedings of the commissioners under the law, operated upon titles derived under, and not adversely to, the patent.. Id. 16. It is within the undoubted power of state legislatures, to pass recording acts, by which the elder grantee shall be postponed to a younger, if the prior deed is not recorded within a limited time; and the power is the same, whether the deed is dated before or after the recording act; though the effect of such a deed is to render the prior deed fraudulent and void against a subsequent purchaser, it is not a law violating the obligation of contracts. So too, is the power to pass limitation laws; reasons of sound policy have led to the general adoption of laws of this description, and their validity cannot be questioned; the time and manner of their operation, the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend cn the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment. Cases may occur, where the provisions of a law on these subjects may be so unreasonable as to amount to a denial of a right, and to call for the interposition of this court.................Id. 17. It has often been decided in this court, that it is not necessary, that it shall appear, in terms, upon the record, that the question was presented in the state court, whether the case was within the purview of the 25th section of the judiciary act of 1789, to give jurisdiction to this court in a case removed from a state court; it is sufficient if, from the facts stated, such a question must have arisen, and the judgment of the state court would not have been what it is, if there had not been a misconstruction of some act of congress, &c., or a decision against the validity of the right, title, privilege or exemption set up under it. Harris v. Dennie, *292 18. Where the verdict for the plaintiff in the circuit court is for a less amount than $2000, and the defendant prosecutes the writ of error, this court has not jurisdiction; although the demand of the plaintiff in the suit exceeded $2000. Smith v. Honey, *469 LANDLORD AND TENANT. 1. It is an undoubted principle of law, fully recognised by this court, that a tenant cannot dispute the title of his landlord, either by setting up a title in himself or a third person, during the existence of the lease or tenancy; the principle of estoppel, applies to the relation between them, and operates with full force, to prevent the tenant from violat 312 ing that contract by which he claimed and held the possession; he cannot change the character of the tenure by his own act merely, so as to enable himself to hold against his landlord; who reposes under the security of the tenancy, believing the possession of the tenant to be his own, held under his title, and ready to be surrendered on its termination, by the lapse of time, or demand of possession. Willison v. Watkins' ... *43 2. The same principle applies to a mortgagor and mortgagee, trustee and cestui que trust, and generally, to all cases where one man obtains possession of real estate belonging to another, by a recognition of his title... .Id. 3. In no instance, has the principle of law which protects the relations between landlord and tenant, been carried so far as in this case, which presents a disclaimer by a tenant, with the knowledge of his landlord, and an unbroken possession afterwards, for such a length of time, that the act of limitations has run out four times, before he has done any act to assert his right to the land... .Id. 4. If no lengtn of time would protect a possession originally acquired under a lease, it would be productive of evils truly alarming, and we must be convinced beyond a doubt, that the law is so settled, before we would give our sanction to such a doctrine; and this is not the case upon authority..........Id. 5. When a tenant disclaims to hold under his lease, he becomes a trespasser, and his possession is adverse, and as such, open to the action of his landlord as possession acquired originally by wrong. The act is conclusive on the tenant; he cannot revoke his disclaimer and adverse claim, so as to protect himself during the unexpired time of the lease ; he is a trespasser on him who has the legal title; the relation of landlord and tenant is dissolved, and each party must stand upon his right... .Id. 6. If the tenant disclaim the tenure, claim the fee adversely, in right of a third person, or in Kis own right, or attorn to another, his possession then becomes a tortious one, by the forfeiture of his right; and the landlord’s right of entry is complete, and he may sue at any time within the period of limitation ; but he must lay his demise of a day subsequent to the termination of the tenancy, for before that, he had no right of entry. By bringing his ejectment, he disclaims the tenancy and goes for the forfeiture; it will not be permitted to the landlord to thus admit that there is no tenure subsisting between him and the tenant, which can protect his possession from this adversary suit, and at the same time, recover, on the ground of their being a tenure so strong as that he cannot set up his adversary possession..............Id. INDEX. 499 7. A mortgagee, or direct purchaser from the tenant, or one who buys his right at a sheriff’s sale, assumes his relation to the landlord, with all its legal consequences, and is as much estopped from denying the tenancy.........Id. LANDS AND LAND TITLES. 1. It is an obvious principle, that a grant must describe the land to be conveyed, and that the subject granted must be identified by the description given of it in the instrument itself; the description of the land consists of the courses and distances run by the surveyor, and of the marked trees at the lines and corners, or other natural objects which ascertain the very land which was actually surveyed. Chinowelh n. Haskell's Lessee.*®! 2. If a grant be made which describes the land granted by course and distance only, or by natural objects not distinguishable from others of the same kind; course and distance, though not safe guides, are the only guides given, and must be used..........Id. 8. The line which formed the western boundary of the land intended to be granted was never run or marked; in his office, the surveyor assumed a course and distance, and terminated the line at tw'o small chestnut oaks. But where are we to look for those two small chestnut oaks, in a wilderness in which one man takes up 50,000 acres, and another 100,000? or how are we to distinguish them from other chestnut oaks ? The guide, and the only guide given us by the surveyor or the grant, is the course and distance........Id. • 4. It is admitted, that the course and distance called for in a grant may be controlled and corrected by other objects of description, which show that the survey actually covered other ground than the lines of the grant would comprehend.............................Id. 5. On a trial in ejectment for lands in Virginia, the plaintiffs offered in evidence a number of entries, of recent date, made by the defendants, within the bounds of the tract of land in dispute, designated as “Young’s four thousand acres; ” and attempted to prove, by a witness, that Young, when he made the entries, had heard of the plaintiff’s claim to the land; the defendants then offered to introduce in evidence, official copies of entries made by other and third persons, since the date of the plaintiff’s grant, for the purpose of proving a general opinion, that the lands, contained in the plaintiff’s survey, made under the order of the court, after the commencement of the suit, were vacant at the date of such entries; and to disprove notice to him of the identity of plaintiff’s claim, when he made the entries under which he claimed: This evidence was unquestionably irrelevant. Stringer v. Young's Lessee.........................................*320 6. Entries made subsequent to the plaintiff’s claim, whatever might have been the impression under which they were made, could not possibly affect the title held under a prior entry.......................................... Id. 1. The land law of Virginia directs, that, within three months after a survey is made, the surveyor shall enter the plat and certificate thereof in a book, well bound, to be provided by the court of his county, at the county charge; after prescribing this, among other duties, the law proceeds to enact, that any surveyor failing in the duties aforesaid, shall be liable to be indicted; the law, however, does not declare that the validity of such survey shall depend in any degree on its being recorded........................................Id. 8. The chief surveyor appoints deputies at his will; and no mode of appointment is prescribed ; the survey made by his deputy is examined and adopted by himself, and is certified by himself to the register of the land-office; he recognises the actual surveyor as his deputy in that particular transaction, and this, if it be unusual or irregular, cannot affect the grant............................... Id. 9. Objections, which are properly overruled, when urged against a legal title, in support of an equity, dependent entirely on a survey of land for which a patent has been issued; can have no weight, when urged against a patent regularly issued in all the forms of law......................................... .Id. 10. In Virginia, the patent is the completion of the title, and establishes the performance of every pre-requi.-ite; no inquiry into the regularity of these preliminary measures, which ought to precede it, is made, in a trial at law; no case is shown, that it may be impeached at law ; unless it be for fraud—not legal and technical, but actual and positive fraud, in fact, committed by the person who obtained it; and even this is questioned................. .Id. 11. It is admitted to have been indispensably necessary to the plaintiff’s action, to show a valid title to the land in controversy; and that the defendants were at liberty to rebut the testimony, by any evidence tending in any degree to disprove this identity ; but the defendants were not at liberty to offer evidence having no such tendency, but which might either effect a different purpose, or be wholly irrelevant ; the question of its relevancy must be decided by the court; and any error in its judgment would be corrected by an appellate tribunal. The court cannot perceive, that the omission of the surveyor to record the survey, or the fact that the survey was 313 500 INDEX. made by a person not a regular deputy, had any tendency to prove that the land described in the patent was not the land for which the suit was instituted.................... Id. 12. The warrant for the land in controversy was entered with the surveyor of Monongalia county, on the 7th of April 1784; at the May session of that year, the general assembly of Virginia divided the county of Monongalia, and erected a new county, to take effect in July, by the name of Harrison ; the land on which the plaintiff’s warrant was entered lay in the new county; the certificate of survey was dated in December 1784, and in accordance with the entry, stated the land to be in Monongalia. The land law of Virginia enacts, that warrants shall be lodged with the surveyor of the county in which the lands lie, and that the party shall direct the location, specially and precisely; it also directs dispatch in the survey of all lands entered in the office ; no provision is made for the division of a county, between the entry and the survey; the act establishing the county of Harrison, does not direct that the surveyor of Monongalia county shall furnish the surveyor of Harrison with copies of the entries of lands which lie in the new county, and with the warrants on which they were made. In this state of things, the survey of the land in controversy was made by the surveyor of Monongailia; the plat and certificate on which the patent was afterwards issued, were transmitted to the land-office, and the patent described the land as in Monongalia county; no change was made in the law until 1788. This will not annul the patent, or deprive the unoffending patentee of his property........Id. 13. The misnomer of a county, in a patent for land, will not vacate the patent; it will admit of explanation, and if explanation can be received, the patent in which the misnomer is found, is not absolutely void......Id. LEX LOCI. 1. It is a well-settled principle, that a statute of limitations is the law of the forum, and operates upon all who submit themselves to its jurisdiction. McCluny v. Silliman. .*270 LIEN OF THE UNITED STATES FOR DUTIES. 1. The United States have no general lien on merchandise, the property of the importer, for duties due by him upon other importations ; the only effect of the first provision in the 62d section of the act of 1799, ch. 128, is, that the delinquent debtor is denied at the customhouse any further credit for duties, until his 314 unsatisfied bonds are paid ; he is compellable to pay the duties in cash, and upon such payment, he is entitled to the delivery of the goods imported. The manifest intention of the remaining clause in the section is, to compel the original consignee to enter the goods imported by him. Harris v. Dennie.... 292 2. No person but the owner or original consignee, or, in his absence or sickness, his agent or factor, is entitled to enter the goods at the custom house,, or give bond for the duties, or to pay the duties. Upon the entry, the original invoices are to be produced and sworn to ; and the whole objects of the act would be defeated, by allowing a mere stranger to make the entry, or to take the oath prescribed on the entry.............. Id. 3. The United States having a lien on goods imported, for the payment of the duties accruing on them, and which have not been secured by bond, and being entitled to the custody of them, from the time of their arrival in port, until the duties are paid or secured ; any attachment by a state officer is an interference with such alien and right to custody; and being repugnant to the laws of the United States, is void.........................Id. 4. An acknowledgment by the custom-house storekeeper, that he holds goods, upon which the duties have not been secured or paid, subject to an attachment issued out of a state court, at the suit of a creditor of the importer, is a plain departure from his duty, not authorized by the law of the United States, and cannot be admitted to vary the rights of the parties......................... Id. I LIMITATION OF ACTIONS. 1. B., a deputy commissary-general of the United States, received from M., a deputy quartermaster-general of the United States, the sum of $10,000, and acknowledged the same by a receipt signed by him with his official description: The United States had a right to treat M. as their agent in the transaction, by making B. their debtor, and to an action brought against him for money had and received, the statute of limitations is no bar. United States v. Buford............'...........*12 2. Where, before a transfer to the United States of an instrument which was the evidence of debt, the term of five years had elapsed, the period after which the statute of limitations was a bar, it can require no argument to show, that the transfer of such claim to the United States cannot give it greater validity than it possessed before the transfer ............................. Id. 3. If no length of time would protect a possession originally acquired under a lease, it INDEX. 501 would be productive of evils truly alarming, and we must be convinced beyond a doubt, that the law is so settled, before we would give our sanction to such a doctrine; and this is not the case upon authority. Willison v. Watkins.................................*43 4. In no instance, has the principle of law which protects the relation between landlord and tenant, been carried so far as in this case, which presents a disclaimer by a tenant, with the knowledge of his landlord, and an unbroken possession afterwards for such a length of time, that the act of limitations has run out four times, before he has done any act to assert his right to the land.........Id. 5. The plaintiff sued the defendant as register of the United States land-office in Ohio, for damages, for having refused to note on his books, applications made by him for the purchase of lands within his district; the declaration charged the register with this refusal; the lands had never been applied for nor sold, and were, at the time of the application, liable to be so applied for and sold : The statute of limitations is a good plea to the suit. McClung v. Silliman ........................*270 6. It is a well-settled principle, that a statute of limitations is the law of the forum, and operates upon all who submit themselves to its jurisdiction...........................Id. *1. Under the 34th section of the judiciary act of 1789, the acts of limitation of the several states, where no special provision has been made by congress, form a rule of decision in the courts of the United States, and the same effect is given to them as is given in the state courts................................Id. 8. Construction of the statute of limitations of the state of Ohio...........................Id. 9. Where the statute of limitations is not restricted to particular causes of action, but provides that the action, by its technical denomination, shall be barred, if not brought within a limited timé, every cause for which such action may be prosecuted, is within the statute....................................Id. 10. In giving a construction to the statute of limitations of Ohio, the action being barred by its denomination, the court cannot look into the cause of action; they may do this in those cases where actions are barred for causes specified in the statute ; for the statute only operates against such actions, when prosecuted on the grounds stated............Id. 11. Of late years, the courts in England and in this country, have considered statutes of limitation more favorably than formerly; they rest upon sound policy, and tend to the peace and welfare of society; the courts do not now, unless compelled by the force of former decisions, give a strained construc tion, to evade the effect of those statutes; by requiring those who complain of injuries to seek redress by action at law within a reasonable time, a salutary vigilance is imposed, and an end is put to litigation.Id. MISNOMER 1. A commission issued in the name of Richard M. Meade, the name of the plaintiff being Richard W. Meade : This is a clerical error in making out the commission, and does not affect its execution. Keene v. Meade ... .*1 2. It may well be questioned, whether the middle letter of a name forms any part of the Christian name of a party; it is said, the law knows only of one Christian name, and there are adjudged cases strongly countenancing, if not fully establishing, that the entire omission of a middle letter is not a misnomor or variance...................Id. 3. The misnomer of a county, in a patent for land, will not vacate the patent; it will admit of explanation, and if explanation can be received, the patent in which the misno-nomer is found, is not absolutely void. Stringer n. Young's Lessee.................*320 PATENT FOR' LANDS. 1. Objections which are properly overruled, when urged against a legal title, in support of an equity, dependent entirely on a survey of land for which a patent has been issued, can have no weight, when urged against a patent regularly issued in all the forms of law. Stringer v. Young's Lessee.......*320 2. In Virginia, the patent is the completion of the title, and establishes the performance of every pre-requisite; no inquiry into the regularity of those preliminary measures which ought to precede it, is made, in a trial at law; no case has shown, that it may be impeached at law; unless it be for fraud; not legal and technical, but actual and positive fraud, in fact, committed by the person who obtained it; and even this is questioned.........Id. PLEAS AND PLEADING. 1. In the correct order of pleading, it is necessary, that the facts of the plea should be traversed by the replication, unless matter in avoidance be set up; it is not sufficient, that the facts alleged in the replication be inconsistent with those stated in the plea; an issue must be taken on the material allegations of the plea. United States v. Buford* 12 2. The act of Virginia, passed in 1792, authorizes a defendant to plead and demur in the same case. Fowle v. Common Council of Alexandria ...........................*398 315 502 INDEX. 3. The party who demurs to evidence, seeks thereby to withdraw the consideration of the facts from the jury ; and is, therefore, bound to admit, not only the truth of the evidence, but every fact which that evidence may legally conduce to prove in favor of the other party; and if, upon any view of the facts, the jury might have given a verdict against the party demurring, the court is also at liberty to give judgment against him. Thornton v. Bank of Washington............*36 PRACTICE. 1. Where an appeal has been dismissed, the appellant having omitted to file a transcript of the record, within the time required by the rule of court, an official certificate of the dismissal of the appeal may not be given by the clerk, during the term; the appellant may file the transcript with the clerk, during the term, and move to have the appeal reinstated ; to allow such certificate, would be to prejudge such a motion. United States v. Swan...................................*68 2. In a writ of right, the tenant may, on the mise joined, set up a title out of himself and in a third person; if anything which fell from this court in the case of Greene ®. Liter, 8 Cranch 229, can be supposed to give countenance to the opposite doctrine, it is done away by the explanation given by the court in Greene v. Watkins, 7 Wheat. 21; it is there laid down, that the tenant may give in evidence the title in a third person, for the purpose of disproving the demandant’s seisin ; that a writ of right does bring into controversy the mere right of the parties to the suit; and if so, it, by consequence, authorizes either party to establish by evidence, that the other has no right whatever in the demanded premises ; or that his mere right is inferior to that set up against him. Inglis v. Trustees of the Sailor's Snug Harbour........................... *101 3. In a writ of right, on the mise joined on the mere right, under a count for the entire right, a demandant may recover a less quantity than the entirety.................Id. 4. Where the point on which the judges of the circuit court divided in opinion was not certified, but the point of difference was to be ascertained from the whole record, the court refused to take jurisdiction of the case. De Wolf v. Usher......................*269 5. The plaintiff in error having died, while the cause was held under advisement, the judgment was entered nunc pro tune, as of the first day of the term. Clap v. Smith . .*411 6. The practice has uniformly been, since the seat of government was removed to Wash ington, for the clerk of the court to enter, at the first term to which any writ of error or appeal is returnable, in cases in which the United Sates are parties, the appearance of the attorney-general of the United States; this practice has never been objected to. The practice would not be conclusive against the attorney-general, if he should, at the first term, withdraw his appearance, or move to strike it off; but if he lets it pass for one term, it is conclusive upon him, as to an appearance; the decisions of this court have uniformly been, that an appearance cures any defects in the forms of process. Farrar v. United States.........................* 459 7. The subpoena issued on the filing of a bill in which the state of New Jersey were complainants, and the state of New York were defendants, was served upon the governor and attorney-general of New York, sixty days before the return-day, the day of the service and return inclusive; this being irregular, a second subpoena issued, which was served on the governor of New York only, the attorney-general being absent; there was no appearance by the state of New York. This is not like the case of several defendants, where a service on one might be good, though not on another; here the service prescribed by the rule is to be on the governor, and on the attorney-general a service on one is not sufficient to entitle the court to proceed. State of New Jersey v. State of New York..........................*461 8. Upon an application by the counsel for the state of New Jersey, that a day might be assigned to argue the question of the jurisdiction of this court to proceed in the case, the court said, they had no difficulty in assigning a day ; it might be as well to give notice to the state of New York, as they might employ counsel in the interim; if, indeed, the argument should be merely ex parte, the court would not feel bound by its decision, if the state of New York desired to have the question again argued ......................Id. 9. A notice was given by the solicitors for the state of New Jersey, to the governor of the state of New York, dated the 12th of January 1830, stating that a bill had been filed on the equity side of the supreme court, by the state of New Jersey against the people of the state of New York, and that on the 13th of February following, the court would be moved in the case for such order as the court might deem proper, &c.; afterwards, on the day appointed, no counsel having appeared for the state of New York, on the motion of the counsel for the state of New Jersey, for a subpoena to be served on the governor and attorney-general of the state of New York, 316 INDEX. 503 the court said, as no counsel appears to argue the motion on the part of the state of New York, and the precedent for granting it has been established upon very grave and solemn argutnent, the court do not require an ex parte argument in favor of their authority to grant the subpeema, but will follow the precedent heretofore established; the state of New York will be at liberty tb contest the proceeding at a future time, in the course of the cause, if they shall choose so to do.. .Id. PRINCIPAL AND AGENT. See Agent and Principal. PRIORITY OF THE UNITED STATES. 1. Twenty-three cases of silk were imported from Canton, in the ship Rob Roy, into the port of Boston, consigned to George De Wolf and John Smith; after the arrival of the vessel, with the merchandise on board, the collector caused an inspector of the customs to be placed on board; soon afterwards, and prior to the entry of the merchandise, and prior to the payment, or any security for the payment, of the duties thereon, the merchandise was attached by the deputy-sheriff of the county, in due form of law, as the property of George De Wolf and J. Smith, by virtue of several writs of attachment, issued from the court of common pleas for the county of Suffolk, at the suit of creditors of G. De Wolf and John Smith; these attachments were so made, prior to the inspector’s being sent on board the vessel. At the time of the attachment, the sheriff offered to give security for the payment of the duties on the merchandise, which the collector declined accepting; the merchandise was sent to the custom-house stores, by the inspector, and several days after, the custom-house storekeeper gave to the deputy-sheriff an agreement, signed by him, reciting the receipt of the merchandise from the inspector; and stating, “ I hold the said merchandise to the order of James Dennie, deputy-sheriff.” The marshal of the United States afterwards attached, took and sold the merchandise, under writs and process in favor of the United States, against George De Wolf; which writs were founded on duty bonds, due and unpaid, for a larger amount than the value of the merchandise, given before by De W olf and Smith; who, before the importation of the merchandise, were indebted to the United States on various bonds for duties, besides those on which the suits were instituted : Held, that the attachments issued out of the court 'of common pleas of the county of Suffolk, did not affect the rights of the United States to hold the merchandise, until the payment of the duties upon them ; and that the merchandise was not liable to any attachment by an officer of the state of Massachusetts, for debts due to other creditors of George De Wolf and John Smith. Harris v. Dennie ...................;.... *292 2. The United States have no general lien on merchandise, the property of the importer, for duties due by him upon other importations ; the only effect of the first provision in the 62d section in the act of 1799, ch. 128, is, that the delinquent debtor is denied at the custom-house, any further credit for duties, until his unsatisfied bonds are paid; he is compellable to pay the duties in cash, and ■ upon such payment, he is entitled to the delivery of the goods imported. The manifest intention of the remaining clause in the section is, to compel the original consignee to enter the goods imported by him.....Id. 3. No person but the owner or original consignee, or, in his absence or sickness, his agent or factor, is entitled to enter the goods at the custom-house, or give bond for the duties, or to pay the duties: §§ 36, 62. Upon the entry, the original invoices are to be produced and sworn to; and the whole objects of the act would be defeated, by allowing a mere stranger to make the entry, or to take the oath prescribed on the entry......... Id. 4. The United States having a lien on goods imported, for the payment of the duties accruing on them, and which have not been secured by bond, and being entitled to the custody of them, from the time of their arrival in port, until the duties are paid or secured, any attachment by a state officer is an interference with such lien and right to custody; and being repugnant to the laws of tie United States, is void...........Id. 5. An acknowledgment of the custom-house storekeeper, that he holds goods, upon which the duties have not been secured or paid, subject to an attachment issued out of a state court, at the suit of a creditor of the importer, is a plain departure from his duty, not authorized by the law of the United States, and cannot be admitted to vary the rights of the parties..................... Id. PROMISSORY NOTES. 1. An action was brought by the Union Bank of Georgetown against George B. Magruder, as indorser of a promissory note made by George Magruder; the maker of the note died before it became payable, and letters of administration to his estate were taken out by the indorser; no notice of the non-payment of the note was given to the indorser, nor any 317 504 INDEX demand of payment made, until the institution of the suit: Held, that the indorser was discharged, and his having become the administrator of the maker did not relieve the holder from the obligation to demand payment of the note, and to give notice thereof to the indorser. The general rule, that payment must be demanded from the maker of a note, and notice of non-payment forwarded to the indorser, within due time, in order to render him liable, is so firmly settled, that no authority need be cited to support it; due diligence to obtain payment from the maker is a condition precedent, on which the liability of the indorser depends. Magruder v. Bank of Georgetown............*87 2. A note was discounted at the office of discount and deposit of the Bank of the United States, in the city of Washington, for the accommodation of the maker, indorsed by Magruder and McDonald ; neither of the indorsers receiving any value for his indorsement, but indorsing the note at the request of the maker, without any communication with each other; the note was renewed, from time to time, under the same circumstances, and was at length protested for non-payment; and separate suits having been brought by the bank against the indorsers, the maker being insolvent, judgments in favor of the bank were obtained against both the indorsers ; the bank issued an execution against Magruder, the first indorser, and he, having paid the whole debt and costs, instituted this suit against McDonald, the second indorser, for contribution, claiming one-half of the sum so paid by him, in satisfaction Of the judgment obtained by the bank: Held, that he was not entitled to recover. McDonald v. Magruder ............................... *470 3. That a prior indorser is, in the regular course of business, liable to his indorsee, although that indorsee may have afterwards indorsed the note, is unquestionable; when he takes up the note, he becomes the holder, as entirely as if he had never parted with it, and may sue the indorser for the amount; the first indorser undertakes that the maker shall pay the note, or that he, if due diligence be used, will pay it for him; this undertaking makes him responsible to every holder, and to every person whose name is on the note subsequent to his own, and who has been compelled to pay its amount.......................... Id. 4. The indorser of a promissory note, who receives no value for his indorsement from a subsequent indorser, or from the maker, cannot set up the want of consideration received by himself; he is not permitted io say that the promise is made without consideration ; because money paid by the prom-3-18 isee to another is as valid a consideration as if paid to the promisor himself.......Id. PUBLIC AGENTS. 1. When money of the United States has been received by one public agent from another public agent, whether it was received in an official or private capacity, there can be no doubt, but that it was received to the use of the United States; and they may maintain an action against the receiver for the same. United States v. Buford.................*12 2. B., a deputy commissary-general of the United States, received from M., a deputy quartermaster-general of the United States, the’sum of $10,000, and acknowledged the same, by a receipt signed by him with his official description; the United States had a right to treat M. as their agent in the transaction, by making B. their debtor, and to an action brought against him formoncy had and received, the statute of limitations is no bar.AZ. REPORTER OF THE SUPREME COURT. 1. Certified copies of the opinions of the court, delivered in cases decided by the court, are to be given by the reporter, and not by the clerk of the court. Anon............*397 SLAVE-TRADE. 1. The offence against the law of the United States, under the 7th section of the act of congress, passed the second of March 1807, entitled, “an act to prohibit the importation of slaves into any port or place within the jurisdiction of the United States, from and after the 1st of January 1808,” is not that of importing or bringing into the United States persons of color, with intent to hold or sell such persons as slaves, but that of hovering on the coast of the United States with such intent; and although it forfeits the vessel, and any goods or effects found on board, it is silent as to disposing of the colored persons found on board, any further than to impose a duty upon the officers of armed vessels who make the capture, to keep them safely, to be delivered to the overseers of the poor, the governor of the state, or persons appointed by the respective states to receive the same. United States v. Preston .................................... *57 2. Persons of color held as slaves under an order of the district court of Louisiana, in a case in which the decree was afterwards reversed, were illegally sold, and they are free......................................Id. See Construction of the Statutes of the United States. INDEX. 505 STATUTE OF CHARITABLE USES. See Inglis v. Trustees of the Sailor’s Snug Harbour, p. *99, on the construction and application of this statute to devises and gifts to charitable uses in the United States. STATUTE OF LIMITATIONS. See Limitation of Actions. STATUTES OF THE UNITED STATES. 1. This court has been often called upon to consider the 16th section of the judiciary act of 1789, and as often, either expressly, or by the course of its decisions, has held, that it is merely declaratory, making no alteration whatever in the rules of equity on the subject of legal remedy. Boyce's Executors v. Grundy..............................*210 See Construction of Statutes, 1-6. SUABILITY OF STATES. 1. The subpoena issued on the filing of a bill, in which the state of New Jersey were complainants, and the state of New York were defendants, was served upon the governor and attorney-general of New York, sixty days before the return-day, the day of the service and return inclusive; a second subpoena issued, which was served on the governor of New York only, the attorney-general being absent; there was no appearance by the State of New York. This is not like the case of several defendants, where a service on one might be good, though not on another; here, the service prescribed by the rule is to be on the governor, and on the attorney-general; a service on one is not sufficient to entitle the court to proceed. State of New Jersey v. State of New York................................*461 2. Upon an application by the counsel for the state of New Jersey, that a day might be assigned to argue the question of the jurisdiction of this court to proceed in the case, the court said, they had no difficulty in assigning a day ; it might be as well to give notice to the state of New York, as they might employ counsel in the interim ; if, indeed, the argument should be merely exparte, the court would not feel bound by its decision, if the state of New York desired to have the question again argued................Id. 8. A notice was given by the solicitors for the state of New Jersey to the governor of the state of New York, dated the 12th of January 1830, stating that a bill had been filed on the equity side of the supreme court, by the state of New Jersey, against the people of the state of New York, and that on the 13th of February following, the court would be moved in the case, for such order as the court might deem proper, etc. Afterwards, on the day appointed, no counsel having appeared for the state of New York, on the motion of the counsel for the state of New Jersey, for a subpoena to be served on the governor and attorney-general of the state of New York, the court said, as no counsel appears to argue the motion, on the part of the state of New York, and the precedent for granting it has been established upon very grave and solemn argument, the court do not require an ex parte argument in favor of their authority to grant the subpoena, but will follow the precedent heretofore established : the state of New York will be at liberty to contest the proceeding, at a future time, in the course of the cause, if they shall choose so to do.............................Id. SUPREME COURT. 1. The supreme court of the United States has not jurisdiction, by habeas corpus or otherwise, in a case of a criminal prosecution insti-tued in a circuit court of the United States, for the purpose of examining the judgment and proceedings of that court in' such cases. Ex parte Watkins......................*193 See Habeas Corpus : Jurisdiction. TREASURY STATEMENTS. 1. An account stated at the treasury department, which does not arise in the ordinary mode of doing business in that department, can derive no additional validity from being certified under the act of congress ; a treasury statement can only be regarded as establishing items for moneys disbursed through the ordinary channels of the department, where the transactions are shown by its books; in these cases, the officers may well certify, for they must have official knowledge of the facts stated. United States v. Buford.................................*12 3. But when moneys come into the hands of an individual, not through the officers of the treasury, nor in the regular course of official duty, the books of the treasury do not exhibit the facts, nor can they be known to the officers of the department; in such a case, . the claim of the United States for money thus in the hands of a third person, must be established, not by a treasury statement, but by the evidence on which that statement was made............................... Id. 319 606 INDEX. TRIAL BY JURY. 1. The amendment to the constitution of the United States by which the trial by jury was secured, may, in a just sense, be well construed to embrace all suits which are not of equity or admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights. Parsons v. Bedford...................................*433 2. The trial by jury is justly dear to the American people; it has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy; the right to such a trial is, it is believed, incorporated into, and secured in every state constitution in the Union. .Id. TRUST AND TRUSTEE. 1. Whenever any person, by will, gives property, and points out the object, the property, and the way in which it shall go, a trust is created, unless he shows clearly that his desire expressed is to be controlled by the trustee, and that he shall have an option to defeat it. Inglis v. Trustees of the Sailor's Snug Harbour...........................*100 USURY. 1. The taking of interest in advance, upon the discount of a note, in the usual course of business, by a banker, is not usury; this has been long settled, and is not now open for controversy. Thornton v. Bank of Washington..................................*36 2. The taking of interest for sixty-four days on a note, is not usury, if the note, given for sixty-days, according to the custom and usage in the banks at Washington, was not due and payable until the sixty-fourth day; in the case of Renner v. Bank of Columbia, 9 Wheat. 581, it was expressly held, that under that custom, the note was not due and payable before the sixty-fourth day, for until that time, the maker could not be in default. .Id. 3. Where it was the practice of the party, who had a sixty-day note discounted at the Bank of Washington, to renew the note, by the discount of another note, on the sixty-third day, the maker not being in fact bound to pay the note, according to the custom prevailing in the District of Columbia; such a transaction on the part of the banker is not usurious, although on each note the discount for sixty-four days was deducted. Each note is considered as a distinct and substantive transaction; if no more than legal interest is taken upon the time the new note has to t‘unr the actual application of the proceeds of the new note to the payment of the former note, before it becomes due, does not of itself make the transaction usurious. Something more must occur; there must be a contract between the bank and the party, at the time of such discount, that the party shall not have the use and benefit of the proceeds, until the former note becomes due, or that the bank shall have the use and benefit of them in the meantime.....................Id. VENDOR AND VENDEE. See Parsons v. Armor. *413 VIRGINIA LAND TITLES. See Land and Land Titles, l-4r. WILLS AND TESTAMENTS. 1. The intent of the testator is the cardinal rule in the construction of wills; and if that intent can be clearly perceived, and is not contrary to some positive rule of law, it must prevail; although in giving effect to it, some words should be rejected, or so restrained in their application, as to change their literal meaning in the particular instance. Finlay v. King ........................... *347 WRIT OF ERROR. 1. If the writ of error be brought by the plaintiff below, then the sum which the declaration shows to be due, may still be recovered, should the judgment for a smaller sum be reversed; and consequently, the whole sum claimed is still in dispute. Gordon v. Ogden................................. *33 2. But if the writ of error be brought by the defendant in the original action, the judgment of this court can only affirm that of the circuit court, and consequently, the matter in dispute cannot exceed the amount of that judgment; nothing but that judgment is in dispute between the parties......Id. 3i The court has no authority, on a writ of error from a state court, to declare a state law void, on account of its collision with a state constitution; it not being a case embraced in the judiciary act, which gives the power to issue a writ of error to the highest judicial tribunal of the state. Jackson n. Lamphire.............................*280 4. The record consisted of the petition, the-answer, the whole testimony, as well depositions as documents^ introduced by either party, and the fiat of the judge, that Armor, the plaintiff below, recover the debt as demanded. The difficulty is, to decide under 320 INDEX. 607 what character we shall consider this reference to the revising power of this court; if treated strictly as a writ of error, it is certainly not an attribute of that writ, according to the common-law doctrine, to submit the testimony as well as the law of the case to the revision of this court; and then there is no mode in which the court can treat this case, but in the nature of a bill of exceptions ; the court is not at liberty to treat this case as an appeal in a court of equity jurisdiction, under the act of 1803; because the party has not brought up his cause by appeal, but by writ of error. Parsons v. Armor . .*413 See Amendment, 1. . WRIT OF RIGHT. 1. In a writ of right, the tenant may, on the mise joined, set up a title out of himself and in a third person; if anything which fell 3 Pet.—21 from the court in, this case of Greene 'o. Liter, 8 Cranch 229, can be supposed to give countenance to the opposite doctrine, it is done away by the explanation given by the court in Greene v. Watkins, 7 Wheat. 31; it is there laid down, that the tenant may give in evidence the title in a third person, for the purpose of disproving the demandant’s seisin; that a writ of right does bring into controversy the mere right of the parties to the suit; and if so, it, by consequence, authorizes either party to establish, by evidence, that the other has no right whatever in the demanded premises; or that his mere right is inferior to that set up against him. Inglis v. Trustees of the Sailor's Snug Harbour..............................*101 2. In a writ of right, on the mise joined on the mere right, under a count for the entire right, a demandant may recover a less quantity than the entirety..............Id. 321 ■ ■