REPORTS OF CASES ARGUED AND ADJUDGED IN I THE SUPREME COURT I OF THE UNITED STATES, JANUARY TERM, 1843. By BENJAMIN C. HOWARD, Counselor at Law, and Reporter of the Decisions of the Supreme Court of ths United "States. VOL. I. SECOND EDITION. EDITED, WITH NOTES AND REFERENCES TO LATER DECISIONS BY STEWART RAPALJE, AUTHOR OF THE “FEDERAL REFERENCE DIGEST,” ETC. NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUBLISHERS 1883. Entered according to Act of Congress, in the year 1883, BY BANKS & BROTHERS, In the office of the Librarian of Congress, at Washington. SUPREME COURT OF THE UNITED STATES. Hon. ROGER B. TANEY, Chief Justice. Hon. JOSEPH STORY, (a) Associate Justice. Hon. SMITH THOMPSON, (a) Associate Justice. Hon. JOHN McLEAN, Associate Justice. Hon. HENRY BALDWIN, Associate Justice. Hon. JAMES M. WAYNE, Associate Justice. Hon. JOHN CATRON, Associate Justice. Hon. JOHN McKINLEY, (a) Associate Justice. Hon. PETER V. DANIEL, Associate Justice. Hugh S. Legare, Esq., Attorney-General. William Thomas Carroll, Esq., Clerk. Benjamin C. Howard, Esq., Reporter. Alexander Hunter, Esq., Marshal. (a) Mr. Justice Story and Mr. Justice McKinley were prevented attending Court by indisposition; and Mr. Justice Thompson being compelled to leave Washington on the 6th of February, did not hear any arguments after that day. APPOINTMENT OF REPORTER. In pursuance of the act of Congress approved August 26th, 1842, the court proceed to appoint a Reporter, and order that Benjamin C. Howard be and he is hereby appointed Reporter in the Supreme Court of the United States. January 21th, 1843. Benjamin C. Howard, Esquire, being appointed Reporter of the decisions of the Supreme Court of the United States, under the act of Congress of 26th of August, 1842, took, in open court, the following oath of office : “ I do solemnly swear that I will faithfully and impartially discharge and perform all the duties of my said office, according to the best of my abilities and understanding, and that I will support the Constitution of the United States; so help me God: ” and thereupon entered upon the discharge of his duties. February lsi, 1843. ORDER OF COURT. Ordered by the Court, that in obedience to the act of Congress approved August 16, 1842, the following allotment of circuits is made among the Justices of the said Court: For the fourth circuit, Roger B. Taney, Chief Justice. For the fifth circuit, John McKinley, Associate Justice. For the sixth circuit, James M. Wayne, Associate Justice. For the ninth circuit, Peter V. Daniel, Associate Justice. January 25th, 1843. LIST OF ATTORNEYS ADMITTED, JANUARY TERM, 1843. John Marshall Krum, Missouri. John Hogan, New York. John Lorimer Graham, New York. James Dulop, Pennsylvania. Albert Constable, Maryland. James T. Morehead, Kentucky. L. W. Andrews, Kentucky. H. S. Lane, Indiana. J. L. White, Indiana. Ira A. Eastman, New Hampshire. Lawrence B. Taylor, District of Columbia George C. Bates, Michigan. George Nicholson Johnson, Virginia. W. H. Washington, North Carolina. B. A. Bidlack, Pennsylvania. John W. C. Beveridge, New York. John M. Read, Pennsylvania. George Armstrong, Kentucky. Robert H. Morris, New York. R. L. Caruthers, Tennessee. Milton Brown, Tennessee. Wm. Kinney, Virginia. P. S. Smith, Florida. A. P. Bagby, Alabama. D. Levy, Florida. Saml. L. Burritt, Florida. Benjamin W. Bonney, New York. Wm. Coventry H. Waddell, New York. Henry C. Murphy, New York. J. W. Hamersley, New York. Constant Gillou, Pennsylvania. Job R. Tyson, Pennsylvania. Robt. P. Flenniken, Pennsylvania. William Silliman, New York. Ferdinand W. Hubbell, Pennsylvania. Harvey Baldwin, New York. R. Barnwell Rhett, South Carolina. Saml. Humes Porter, Pennsylvania. Benjamin F. Angel, New York. T. F. Foster, Georgia. James B. Colt, Missouri. J. M. Porter, Pennsylvania. A TABLE OF THE CASES REPORTED IN THIS VOLUME. [The references are to the stab (*) pages. PAGE Acosta, The United States v. . . . .' . . 24 Alexander v. Graham. ....... 37 Ash, Williams v. ........ 1 Bank of the Metropolis v. The New England Bank . . 234 Bank of the United States v. Beverly et al. . . . . 134 Bell et al. v. Bruen ........ 169 Beverly et al., The Bank of the United States v. . . . 134 Blyth, Collins v. ....... . 282 Bowman et al. v. Wathen et al. . . . . . . 189 Bradley et ux., Connor v. ...... 211 Bronson v. Kinzie et al. . . . . . . .311 Bruen, Bell et al. v. . . . . • • . 169 Buchannon et al. v. Upshaw . . • • . . 56 Carland, Nelson v. ....... . 265 Cartwright v. Howe et al. . . . . . . . 188 Castleman, In re. . . . . . . . . 281 City of Mobile v. Emanuel et al. . . . . . .95 Collins v. Blyth ........ 282 Condry, Smith et al. v. . . . . . . .28 Connor v. Bradley et ux. ...... 211 Daniell, Todd v. ............................289 Darst et al., Duncan v. ...... 301 Duncan v. Darst et al. ....... 301 Eckford’s Exec., The United States v. 250 Ellis et al. v. Adm. of Taylor ...... 197 Emanuel et al., City of Mobile v. .... . 95 Fisk, M’Kenna v. . ............................ 241 Foster et al., Strout et al. v. , . . ... 89 Graham, Alexander v. ....... 37 Hammond’s Adm. v. Exec, of Lewis, dec., who was Exec, of Washington . . . . . . . . .14 Harley’s Assignee v. Kingsland et al. . . . . 202 Hough, Lloyd v. ......... 153 Howe et al., Cartwright v. ...... 188 x viii TABLE OF CASES REPORTED. PAGE Jewell’s lessee et al. v. Jewell et al. . . . .. 219 Jewell et al., Jewell’s lessee et al. v. . . . A 219 Kingsland et al., Assignees of Harley et al. v. . . . 202 Kinzie et al., Bronson v. . . . . . . 311 Lewis’s (who was Exec, of Washington) Exec., Adm. of Hammondti. ... . . . ; . . 14 Linn et al., The United States v. ..... 104 Lloyd v. Hough . . . . . . . . 153 M’Kenna v. Fisk • . • . . . . ... 241 M’Kqight v. Taylor . • . . . . . . 161 Mercer’s Lessee v. Selden • . . . . . . .37 Minor et ux. v. Tillotson ...... 287 Morris v. Exec, of Nixon et al. . . . . . .118 Nelson v. Carland • . . . . . . . 265 New England Bank, The Bank of the Metropolis v. . . 234 Nixon’s Exec, et al., Morris v. . . . . . 118 Peck v. Young ......... 250 Rector’s Adm. v. The United States .... 28 Savage’s Exec., Taylor et al. v. . . . . . . 282 Selden, Mercer’s Lessee v. . . . . . . 37 Smith et al. v. Condry * . . . . . . .28 Strout et al. v. Fostered al. ...... 89 Taylor’s Adm., Ellis et al. v. . . . . . . 197 Taylor et al. v. Exec, of Savage . . . . . 282 Taylor, M’Knight v. ....... 161 Tillotson, Minor et ux. v. ...... 287 Todd v. Daniell . . . . . . . . . 289 United States v. Acosta ....... 24 United States, Adm. of Rector v. ..... 28 United States v. Exec, of Eckford . . . . 250 United States v. Linn et al. . . . . . . 104 United States, Williams v. ...... 290 Upshaw, Buchannon et al. v. . . . . . .56 r Wathen et al., Bowman et al. v. . . . . 189 Williams v. Ash ......... 1 Williams v. The United States . . . . . 290 Young, Peck v. . . .......................250 A TABLE OF THE CASES CITED IN THIS VOLUME. [The references are to the star (*) pages.] A. PAGE. Abbott®. Gregory..................................... 39 Mich., 68-------- ... 118a Ableman ®. Booth.................................... 21 How., 306........... 301n Acherly ®. Roe............. ........... 5Ves.,565............................... 88 Alden v. Gregory..................................... »2 Eden, 285............. 189n Amiable Nancy, The.................................... 3 Wheat., 560............ 28n Amis®. Smith......................................... 16 Pet.. 312..... 306, 310 Amory v. Lawrence..................................... 3 Cliff., 523... ,...... 118n Andrews ®. Carman................,.................... 2 Bann. & A., 282.... .. 202n Andrews v. Hyde............ ......................... 3 Cliff., 516.......... 118n Anonymous............................................. 5 Am. L. Rev., 185......219n Arlington v. Merricke................................ 2 Saund., 403........... 184 Arthur v. Moller..................................... 7 Otto, 365........... 287n Ashley®. Hyde....................................... 6 Ark., 92............. 104n Attorney-General v. Case............................. 3 Price, 302........... 33 Aurora City v. West.,................................. 7 Wall., 82.......... .. 104n Avon, The.............................. Brown Adm., 181.................... ... 28n B. Babcock ®. Wyman..................................... 19 How., 299............ 118n Bacon ®. Chesney...................................... 1 Stark., 192... 185 Badger ®. Badger..,................................... 2 Wall., 87............ 189n Bailey v. Dozier..................................... 6 How., 23.............. 241n Baker v. Kellogg......................................29 Ohio St., 663......... 197n Baltimore &c. R. R. Co. v. Sixth Presb. Church,............................................. 1 Otto, 131............. 287n Bank of the United States v. Beverly, 1 How., 149................................ la Bank of the United States v. Daniel... 12 Pet., 54............................. 182. Bank of the United States v. Halstead, 10 Wheat., 51.......................... 324 Barker ». Parker...................................... 1 T. R., 287............ 185 Barnes v. Taylor..................................... 12 C. E. Gr. (N. J.) 259. 161n Barr®. Galloway....................................... 1 McLean, 476.......... 37n Barrow ®. Rhinelander................................. 8 Blackf. (Ind.) 382.... 14n Bartling ®. Brasuhn..................................102 Ill.,441.... ....... 118n Bastow ». Bennet...................................... 3 Campb., 220........ 185 Bates ®. Cost......................................... 2 Barn.& C., 474.. . ..ᵥ,^...... 118 Baylor v. Neff........................................ 3 McLean, 302.......... 211n Beckford ®. Wade..................................... 17 Ves., 87.............. 194 Beers v. Haughton.................................... 9 Pet., 329.306, 307, 308 Bell ®. Railroad Co................................... 4 Wall., 598........... 241 n Bent®. Hartshorne..................................... 1 Mete. (Mass.), 24 _....... 185; Bently v. Phelps ................................... 2 Woodb. & M., 426...... 118n Birch ®. Wright........................... I T. R,, 387..................... 159« Birks v. Trippet............ 1 Saund., 28 n 2. .......................... 108. X TABLE OF CASES CITED. PAGE. Blackburn v. Crawfords............. 3 Wall., 175............. 2l9n Bockee v. Crosby.'................. 2 Paine, 432................ 104» Bond v. Brown .................... 12 How., 254............ 169n Bonham v. Craig.................. 80 N. Y., 224............. 118n Boon». Chiles.................... 10 Pet., 223................ 196 Booth v. Robinson................. 55 Md., 419............... 118n Boston Hat Manuf. ».Messenger,...... 2 Pick. (Mass.) 223, 234.... 185 Bowman ». Wathen................... post, 189.................. 161n Boyd, Ex parte................... 15 Otto, 651............ 301n Boyle ». Zacharie.................. 6 Pet., 635............... 279 Bradstreet ». Clarke.............. 12 Wend. (N. Y.) 602....... 37n Brewster». Davis...................56 Tex., 478.............. 118n Brickill ». Mayor &c. of New York.... 18 Blatchf. 275.......... 202n Bridman ». Vanderslice.............. 2 Ra wie (Pa.) 334....... 104m Brine». Insurance Co................ 6 Otto, 637............... 31 In Brown ». County of Buena Vista..... 5 Otto, 160................ 189n Brown ». Fulsbyes................... 4 Leon., 117.............. 217 Brown ». Pearson.................... 8 Mb., 159............... 104n Budd ». Van Orden................... 6 Stew. (N. J.), 143..... 118n Buikley v. Honold................. 19 How., 390.............. — 169n Burr». Duryee...................... 1 Wall., 568............. 202n Bussy ». Donaldson................. 4 Dall., 206............. 28 m Butz ». City of Muscatine.......... 8 Wall., 583.............. 31 In C. California Pacific R. R. Co. In re. 11 B. R., 194.............. 277n Cannon ». Norton................... 14Vt.,178.................. 119n Carpenter ». United States........ 17 Wall., 489............. 153n Caruthers ». Sydebotham........... 4 Mau. & Sei., 77......... 33 Casseres ». Bell.................. 8 T. R., 166.............. 115 Central Mills Co. ». Hart.........124 Mass., 123............. 153n Cheney ». Arnold..........*...... 15 N. Y., 345............. 219n China, The......................... 7 Wall., 53............... 28m Christmas». Russell................ 5 Wall., 300........... 311n Christy, Ex parte.................. 3 How.,323........... 265n, 311n City of Mobile ». Eslava.......... 16 Pet., 246....*......101, 102 City of Mobile ». Hallett......... 16 Pet., 261............100, 102 Clarita, The...................... 23 Wall., 14............... 89n Clark v. Reyburn................... 8 Wall., 322.............. 31 In Clarke ». Atkinson................ 16 Pet., 231.............. 27 Clarke ». Carrington............... 7 Cranch, 308............. 14n Clun ». Archer.................... 10 Co., 126 b.,129......... 217 Coburn». Anderson................. 62 How. (N. Y.) Pr., 268.. 118u Coddington ». Richardson.......... 10 Wall., 516............. 169n Collins». Collins................. 79 Ky., 91 ................Slln Colwell». Miles.................... 2 Del. Ch., 110.......... 161n Commonwealth». Munson.............127 Mass., 459........... 219n Conard ». Atlantic Ins. Co......... 1 Pet., 441...............318 Conklin ». Conklin................ 54 Ind., 289............. 197n Consolidated Fruit Jar Co. ». Wright.. 4 Otto, 94.............. 202n Cook ». Moffat..................... 5 How., 315.............. 311n Crawford ». Points................ 13 How., 11............... 265m Cremer ». Higginson................ 1 Mason, 324, 336......... 185 Cucullu ». Emmerling.............. 22 How., 83.............. 169» Curran ». Arkansas................ 15 How., 310............. 311m Cutler». Rae....................... 8 How., 617 App.......... 311» D. Daniels». Tearney.................. 12Otto, 419; 1 Morr. Tr., 289... 311» Davies». Clayton................... 5 Humph. (Tenn.) 446..... 119n Davis». Davis...................... 7 Daly (N. Y.) 308....... 219» Davis ». Demming.................. 12 W. Va., 246............ 118» Davis». Mason..................... . 1 Pet., 503............... 37n TABLE OF CASES CITED. xi PAGE. DeLaigle v. Denham................. 65 Ga., 482.................... 118n DeLanev. Moore..................... 14 How., 253................... 189n Demarest ». Wynkoop............... 3 Johns (N. Y.) Ch., 129.. 53 De Mill v. Moffat..................49 Mich., 130..................... 37n Dempsey v. Delaware Iron Co....... 12 Phil. (Pa.) 314................. 241 n Den v. Richards................... 3 Gr. (N. J.j 347 ............... 37n Denick v. Hubbard................. 27 Hun. (N. Y.) 347.............. 197n Dennick v. Railroad Co............ 13 Otto, 18; 2 Morr. Tr., 458.... 241n Dennis ®. Rider.................... 2 McLean, 451.........,......... 197n Devaynes v. Noble.................. 1 Meriv., 606............. 261 De Sobry v. Nicholson.............. 3 Wall., 420.................... 241n Diana, The......................... 1 Rob. Adm., 131.......... 34 Dick v. Lee....................... 10 Pet., 493............... 187 Doe v. Barksdale................... 2 Brock., 436.................... 37n Doe ®. Eslava...................... 9 How., 447................... 311n Doe v. Jesson..................... 6 East, 80....................... 53 Doe v. Lewis...................... 1 Burr., 619..................... 217 Doe d. Duke of Norfolk v. Hawke._ 2 East, 481....................... 14 Doe d. Smelt ®. Fiichan.......... 15 East, 286...................... 217 Doe d. Wheeldon v. Paul............ 3 Car. & P., 613; 14 E. C; L., 483, 217 Doo v- Butcher.................... 3 T. R., 616.....,................249 Dorr,JEr parte..................... 3 How., 103,.................... 301a Douglass». Reynolds................ 7 Pet., 113......... 183, 185, 186 Doulson v. Matthews................ 4 T. R., 503............ 248, 249 Dow ®. Chamberlain................. 5 McLean, 281........... 118n Downey v. Hicks.................. 14 How., 240?.................. 169n Dred Scott ». Sandford............ 19 How., 393....................... In Drummond v. Prestman............. 12 Wheat., 515......... 183, 185 Dry v. Davy....................... 10 Ad. & El., 30........... 186 Duncan v. Duncan.................. 10 Ohio St., 181................. 219n Duncan v. Klinefelter.............. 5 Watts (Pa.) 141..... 307, 308 Duvall®. Craig..................... 2 Wheat., 45.............. 247 Dyer v. Brannock.................. 66 Mo., 391; 2 Mo. App., 432.... 219n E. Eager v. Commonwealth.............. 4 Mass., 182..... ....... 53 Edwards v. Kearzey................. 6 Otto, 603................... Slln Egbert v. Lippman.................. 14 Otto, 336................... 202n Egberts v. Dibble................. 3 McLean, 86................... 104n Electoral College Case............. 1 Hughes, 571................... 301« Ennis v. Smith.................... 14 How., 500.. .................. 219n Eppes®. Cole....................... 4 Hen. & M. (Va.) 161..... 159 Etting®. Marx...................... 4 Hughes, 323................... 161n Eutaw, The........................ 12 Wall., 140.................... 287n Express Co. ®. Kountze............. 8 Wall., 342.................... 169n F. Fabian ®. Winston................. Cro. Eliz., 209.................... 217 Farrar ®. United States............ 5 Pet., 373.......'.............. 113 Fenwick ®. Chapman................. 9 Pet., 461........ In, 149, 150 Findley ®. Hill.................... 8 Oreg., 247................. 197n First Nat. Bk. of Chicago ®. Reno Co. Bk 1 McCrary, 494............ 234n Fitch®. Remer...................... 1 Flipp., 17.................... 169n Fitzhugh ». Anderson............... 2 Hen. & M. (Va.) 289... 53 Flanagin ®. Thompson............... 9 Fed. Rep., 177....... 134n Floyd ®. Calvert...................53 Miss., 37...........<..........219n Foote ®. Brown..... ............... 2 McLean, 369........... 14n Foster v. Neilson.................. 2 Pet., 254............. 103 Foster ®. Wandless................. 7 T. R., 117............ 217 ¡Frank ®. Lilienfeld.............. 33 Gratt. (Va.) 381.... 1........ 119n Franklin ®. Franklin.............. 71 Ind., 573.....y...r.. 197n xii TABLE OF CASES CITED. G. PAGE. Gaines«. Hennen.................. . 24 How., 553............ 134n Gantly v. Ewing.................. 3 How,. 717.............. 31 In Garcia«. Lee...................... 12 Pet., 511................. 103 Gardner«. Thomas.................. 14 Johns. (N. Y.) 134...... 240 Garraud ». Reynolds............... 4 How., 123................ 169h Gibbons «. Hoag..............*....95 III., 45............. 161n Gilleland «. Martin............... 3 McLean, 490............ 211n Glen«. Hodges..................... 9 Johns. (N.Y.) 67........ 249 Glyn«. Hertel..................... 8 Taunt., 208, 224........ 185 Godden«. Kimmell.................. 9 Otto, 211............. 161n Gordon«. Longest................. 16 Pet., 103................ 102 Gould «.■ Gould................... 3 Story, 516............ 161h Grant«. Raymond................. 6 Pet., 248.......... 207 Green «. Biddle................... 8 Wheat., 1......... 316, 327, 328 H. Haggerty «. Mann................. 56 Md., 522............. 161h Hall «. Little.................... 2 Flipp., 157; 18 Alb. L. J., 151 89n Hall «. Rochester................ 3 Cow. (N. Y.) 374_________ 104n Hallett ». Collins............... 10 How., 174.........^........ 219n Halley, The.................... L. R., 2 Ad. & E., 3........ 28n Hammond ». Hammorid............... 2 Bland (Md.) 306,........ 14 Hargreave «. Smee....... 6 Bing.; 10 E. C. L., 69 185: Harris «. Newell.................42Wis.,687............... 197n Harrison«. Sterry................. 5 Cranch., 298........ 280 Hart «. Rose.......;............. Hempst., 238............. 104n Hastrop v. Hastings............... 1 Salk., 212................ 247 Hawthorne «. Calef................ 2 Wall., 23............... 311h Hebblethwaite e. Hepworth... ... .. 98 Ill., 126.......... 219n Hecker «. Fowler................. 1 Black, 95............ 287h Henderson «. Whitby............... 2 T. R., 576............. 109 Henman». Dickinson............... 5 Bing., 183............. 112 Henry «. Providence Tool Co...... 3 Bann. & A., 514..... ... 202« Henwood «. Cheeseman.............. 3 Serg. & R. (Pa.) 500.... 159 Hercy «. Dinwoody................. 4 Bro. Ch., 257......... 193 Heslop «. Galton................. 71 Ill., 528............. 134n Hill ». George................. Plowd., 164, 172, b.....________ 217 Hodge «. Gilman...................20 Ill., 437............ 104n Hogan «. Kurtz.................. 4 Otto, 779............. Sin Holbrook «. Amer. Ins. Co......... 1 Curt., 193........... 118n Holman ». Johnson................. 1 Cowp., 341............. 249 Holmes v. Holmes.................. 1 Abb. (U. S.), 525......... 219« Hoover«. Wise........ ............ 1 Otto, 314............ 234n Hopkins«. Lee................... 6 Wheat., 113........... 148 Hotham». East India Co......... . 1 T. R., 638............ 115 Hovenden «. Lord Annesley......... 2 Sch. & Lef., 636... 193,194 Howard «. Bugbee................. 24 How., 465.............. 31 In Hoyt «. United States............ 10 How., 133........... 250« Hughes «. Edwards................. 9 Wheat., 489............ 194 Huntington v. Fitch............... 3 Ohio St., 455......... 104n Hyde, In re...................... 6 Fed. Rep., 872........ 265« Hynes v. McDermott................ 7 Abb. (N. Y.), N. C., 98...... 219« I. Ilderton v. Ilderton.............. 2 H. Bl., 145......... 249 Imming «. Fiedler................. 8 Bradw. (Ill,), 256.197n J. Jackson«. Osborn.................. 2 Wend. (N. Y.), 555... 104n Jackson v. Wheat..................18 Johns. (N. Y.), 40. Sin, 53 TABLE OF CASES CITED. xiii PAGE. Jenkins. Ex parte ................ 2 Wall. Jr., 521......... 301n John Bramall, The................. 10 Ben., 503............... 28n Jones v. League................... 18 How., 76.....*..........241« Jones ®. United States............. 7 How., 688................. 250n Jud&pn v. Gibbons................ 5 Wend. (N. Y.), 224..... 104n K. Keirn v. Andrews................. 59 Miss., 39.............. 197n Kennedy v. Georgia State Bank..... 8 How., 234................. 189« Kimball ®. West................. 15 Wall., 379.............. 56« King, The v. Holland............... 5 T. R., 607............... 248 King, The v. Johnson .............. 6 East, 583................ 249 Kiser®. Ruddick.................... 8 Blackf. (Ind.), 382.... 14« Klein e. McNamara..................54 Miss., 90..... ....... 118« Klinger®. Brownell................. 5 Blackf. (Ind.), 332.... 104n L. Laber ®. Cooper.................... 7 Wall., 565........... 169n Lady Franklin, The................. 2 Low., 220............... 89« Lansdale v. Smith................. 16 Otto, 393............. 161« Lanuse> Barker.................... 10 Johns. (N. Y.), 312, 325...... 185 Lathrop ®. Judson................. 19 How., 66............... 169n Lavin v. Emigrant &c., Savings Bank. 18 Blatchf., 16........... 311n Lawrence ». DuBois................ 16 W. Va.,462............. 119« Lawrence ®. McCalmoht.............. 2 How., 450.............. 169« Lea v. Polk Co. Copper Co..........21 How., 504................ 219n Leadley v. Evans................... 2 Bing., 32................. 184 Lee ®. Baldwin................... 10 Ga., 208................ 14« Lee pt Dick....................... 10 Pet., 482....;..... 183,185 Le Grand v. Darnall................. 2 Pet., 664................ In Lewis v. Baird...................... 3 McLean, 56............ 161« Liverpool Waterworks Co. v. Harpley. 6 East, 507....... ........ 184 Livingston v. Salisbury Ore Bed...16 Blatchf., 549............. 161n Ludlow ®. Simond.................... 2 Cai. (N. Y.) Cas., 1, 29. 185 M. McAlpin®. May...................... 1 Stew. (Ala.), 520...... 104n McCoy v. Lockwood..................71 Ind., 319.............. 197« McCoy ®. Rhodes................... 11 How., 131............ 134« McCracken®. Hayward................ 2 How., 608.............. 311« McCutchen®. Marshall............... 8 Pet., 220................ In McFadden ». Fortier................20 Ill., 509.............. 104« McFarland ®. Stone................ 17 Vt., 165.................' 37« Mackey ®. Stafford............... 43 Wis., 653.............. 118« McKim ®. Voorhies.................. 7 Cranch., 279............. 306 McNutt®. Bland..................... 2 How,, 13............... 301n Manning®. Cape Ann Isinglass, &c. Co. 4 Bann. & A., 614....... 202« Maria, The......................... 1 Rob. Adm., 95............ 34 Marine Bank v. Fulton Bank......... 2 Wall., 252............. 169« Marquette &c. R. R. Co. v. Harlow.... 37 Mich., 554............ 153« Marsh ®. Dunckel.................. 25 Hun. (N. Y.), 167...... 197« Martin®. Hunter.................... 1 Wheat., 355............. 149 Martin®. Waddel................... 16 Pet., 367............... 103 Mason ®. Pritchard...,............ 12 East, 227............... 185 Masters, The...................... Brown Adm., 342.............. 89« Mauran v. Bullus.................. 16 Pet., 528............... 185 Maxwell v. Kennedy................. 8 How., 222......... 161«, 189« Mayer®. Isaac...................... 6 Mees. & W., 605.......... 185 Mayflower, The.................... Brown Adm., 376............. 28« Mayor &c. of Berwick v. Ewart..... 2 W. Bl., 1068................ 249 Meister v. Moore................... 6 Otto, 76............... 219« Mellor ®. Barber................... 3 T. R., 387............. 248 xiv TABLE OF CASES CITED. PAGE. Merle v. Wells..................... 2 Campb., 413. ..........₅ 185 Merriam ®. Haas.................... 3 Wall., 687........... 282# Michoud v. Girod................... 4 How., 503............ 161n Milesv. Miles.................... 32 N. H., 147.119n Miller v. Fletcher.................27 Gratt. (Va.) 403.........118n Miller v. Knight.... .............. 7 Baxt. (Tenn.), 127; 6 Id., 503. 197» Miller v. McIntyre............... 6 Pet., 61............... 194 Mills v. Gore......................20 Pick. (Mass.), 28....... 119n Minors®. Houghton.................. 1 Cowp., 585 ............ 249., Mitchell®.Harmony................ 13 How., 137................241# Moore v. Harvey....................50 Vt., 297............... 153n Moore®. Otis..;.................. 18 Mo., 118................ 104# Moors ®. Parker.................... 3 Mass., 310............. 108’ Morning Star, Tire................. 4 Biss., 72............... 28# Mostyn ®. Fabrigas................. 1 Cowp., 161.............. 248 . Moyer ®. Chesapeake &c. Canal Co.... 12 Phil. (Pa.), 540....... 241# N. Narragansett, The.................. 1 Blatchf., 211;OIc., 388.. 28n National Oil Refining Co. ®. Bush.88 Pa. St., 335..... 153n Nations v. Johnson.................24 How., 195.............. 134# Neale ®. DeGaray................... 7 T. R., 243.,.............. 249 i Newcomb ®. Wood.................... 7 Otto, 583................169# New Jersey St’mNav. Co. ®. Merch. Bk. 6 How., 421............. 169# New Orleans ®. Morris............. 15 Otto, 603.............. 301# New Orleans Railroad Co. ®. Morgan.. 10 Wall., 260............ 287# Nicholson ®. Paget................. 1 Crompt. & M., 48........... 185 ( Nightingale v. Adams............... 1 Show., 91.............. 247- Norris ®. Newton................... 5 McLean, 92...............SOI# O. Ocean Queen, The................... 5 Blatchf., 493 ........... 28n Odell®. Gray..................... 15 Mo., 343 ............... 234# Odell «.Montross...................68 N. Y., 499................. 118# Ogden ®. Saunders..................12 Wheat., 213.............279 O’Reilly ®. Morse. ............... 15 How., 131 ............... 202n Ottawa®. Nat. Bank................ 15 Otto, 346............... 169n P. Palmer ®; Allen .;.......... 7 Cranch, 563............... 306 j Parker ®. Kane..................... 22 How., 17.................134h Parsons v. McCracken............... 9 Leigh (Va.# 495......... 52 Patterson ». Gaines................ 6 How., 550............... 219h Patterson v. Winn.................. 5 Pet., 233............... 271 Pell®. Pell....................... 20 Johns. (N. Y.), 126.... 104n Pennington v. Gibson............... 16 How., 65............... 134# Pennock », Dialogue................ 2 Pet., 14............. 207,210 Pennyman’s Case....................13 Otto, 720; 2 Morr. Tr., 875... 311n People v. Ransom.....;............. 7 Wend. (N. Y.), 417........ 185 ' Pepin v. Cooper.................... 2 Barn. & Ad., 431......... 184 , Perkins ®. Nashua Card &c. Co............. 5 Bann. & A., 396 .. 202h Peter v. Beverly...... ......... 10 Pet., 562................ 147 Peugh ®. Davis.........ₜ........... 6 Otto, 332............... 118# Piatt®. Vattier................... 9 Pet., 416............ 168,194 Pickering ®. Lord Stamford......... 2 Ves.,272, 582............ 88 Pierce v. Traver.................. 13 Nev., 526............. 118n Pierson v. Eagle Screw Co.......... 3 Story, 402 ............. 202n Piggott’s Case.................... 5 Co., 29 a................118 Planters’ Bank v. Sharp............ 6 How., 328. ............. 311h Pollard v. Files.................. 2 How., 591............... 95# Pollard v. Hagan................... 3 How., 212............... 95# i oilard t. laubie................ 14 Pet., 353............ 102, 103 TABLE OF CASES CITED. xv PAGE. Port ». Port...................... 70 Hl., 484..................... 210n Powles ». Dilley.................. 9 Gill (Md.), 222............ J19n Prevost». Gratz................... Pet. C. C., 369.................... 104» Prevost ». Gratz................... 6 Wheat., 481........ 189n, 194 Pritchard ». Norton................ 16 Otto, 141..................... 169» Protector, The................... 1 Rob. Adm., 45............ 34 Prout ». Roby..................... 15 Wall., 476.................... 211» Pulliam ». Pulliam................. 10 Fed. Rep., 26................. 161n Q. Quackenbush ». Danks.................1 Den. (N. Y.), 132..............311n Queen ». Justices of Cambridgeshire.. 1 Perry & D , 249.......... 186 B Rafael ». Vereist................... 2 W. Bl., 1055............. 248 Railroad Co. ». Harris............. 12 Wall., 65.................... 104» Randall ». Phillips................. 3 Mason, 378.................... 134» Randall». Sanders.................. 87 N. Y., 578.................... 118» Rayner ». Pointer................. . .. Willes. 410.................... 247 Reynolds, Ex parte.................. 6 Park (N. Y.), Cr., 276...... 301n Rhode Island, The................... 2 Blatchf., 113; Olc., 505....... 28a Rhodes ». Bell...................... 2 How., 397....................... In Riggs v. Johnson County..............6 Wall., 195.................... 301» Riggs». Tayloe..................... 9 Wheat., 486.............. 299 Roberts ». Thompson............ 14 Ohio St., 1....................... 14» Roe d. West». Davis................. 7 East, 363................ 217 Rogers ». Smiley.................... 2 Port (Ala.), 249.............. 104n Rubber Co. ». Goodyear.............. 9 Wall.. 788.................. 202» Russell ». Clarke................... 7 Cranch, 69.............. 185 Russell ». Southard............... 12 How., 148.................... 118n Ryan ». Marsh....................... 2 Nott & M. (S. C.), 156.159 Ryan». May......................... 14 Ill., 49...................... 104» S. Salmon ». Smith................. 58 Miss., 409.................... 119» Sanger ». Baumberger............... 51 Wis., 593..................... 169n Sapphire, The...................... 11 Wall., 164..................... 89n Satterlee ». Matthewson............. 2 Pet., 407. ................... 330 Schermerhorne ». Tripp.............. 2 Cai. (N. Y.), 108........’. 108 Schofield ». Settley................31 Ill., 515..................... 104n Scotland, The.......................15 Otto, 36....................... 28n Scott». Hawsman..................... 2 McLean, 180.............. 153n Service». Heermance................. 1 Johns. (N. Y.), 92....... 109 Shaw ». Cooper..................... 7 Pet., 313................ 207 Shelling». Farmer................... 1 Str., 646................ 249 Sheppard ». Graves................ 14 How., 505 .................... 241» Sibbald ». United States........... 12 Pet., 492................449 Sims ». Everhardt.................. 12 Otto, 310; 1 Morr. Tr., 18.... 37» Simson ». Peareth................... 8 Moo., 588...................... 186 Slevin ». Morrow.................... 4 Ind., 425...................... 14» Slutz ». Desenberg..................28 Ohio St., 371......’ * ’ ” 118n Smith». Babb........................ 1 Leon., 305 .............. 217 Smith». Bouchin..................... 2 Str., 993............ 108 Smith ». Clay....................... 3 Bro. Ch., 639n....... 193 Smith ». Doe d. Earl of Jersey.... 2 Brod. & B., 473 (6 E. C. L.).. 218 Smith ». Kernochen.................. 7 How., 198.............. 134n, 241 r finiti! ». Stewart.................. 6 Johns. (N. Y.), 46... 159 Smith». United States............... 2 Wall., 231.......... 104n Smith ». Whitbeck.. ;.............. 13 Ohio St., 471........211» Vn’ ü.......•............ ¹ Graⁿt (Pa-) Cas., 397....... 14» Society for the Propagation of the Gospel ». Town of New Haven.......... 8 Wheat., 464, 493............ 206 xvi TABLE OF CASES CITED. PAGE. Sparrow v. Strong.................. 3 Wall.. 105............... 287n Spaulding v. Farwell...............70 Me., 17................. 161n Spears®. Burton.................. 31 Miss., 547.............. 219n Stäinback®. Rae.................. 14 How., 538................ 89a Starke v. Starke................. 3 Rich. (S. C.), 438....... 37n Sterling v. The Jennie Cushman..... * 3 Cliff., 636.............. 89n Stockett v. Watkins............... 2 Harr. & J. (Md.), 326... 160 Stoddert ®. Newman................. 7 Harr. & J. (Md.), 251.... 160 Stowel v. Lord Zouch............... 1 Plowd.. 353, 375......... 53 Strader v. Graham............... 10 How., 82.................. In Strange v. Lee.. .................. 3 East, 484............... 186 Sturges v. Crowninshield........... 4 Wheat., 122......... 279, 328 Sutton v. Mandeville... ........... 1 Munf. (Va.), 407 ... ... 159 Suydam v. Williamson...............20 How., 441............... 287n Sweeney v. Easter.................. 1 Wall., 166............. 234n Swift v. Brownell.................. 1 Holmes, 467.............. 28n T. Tallassee Mfg. Coi, In re..........64 Ala.. 595............... 234n Tatem, parte....................... 1 Hughes, 588.. ......... 301n Taylor». Morton.................... 2 Black, 484.............. 287n Taylor®. Mosely.................... 6 Car. & P., 273.......... 112 Tennessee ®. Sneed................. 6 Otto, 74................311 n Thompson, Ex parte................. 1 Flipp., 507............. 301n Thompsonv. Roberts.................24 How., 233.............. 134n Thompson®. Robinson.......,........34 Ark., 44................ 197n Thorn ®. Woollcombe.........?...... 3 Barn. & A., 586.......... 185 Thorp ®. Raymond..... ............ 16 How., 247.......... 37n Tilden®. Streeter................ 45 Mich., 533......... 118n Tilghman v. Tilghman.............. Baldw., 495.................. 134n Tolman v. Spaulding.............. 3 Scam. (III.), 13.... 104n Townsend ®, Jemison................ 7 How., 706.......... 104n Turpin ®. Public Prosecutor........ 2 Bradf. (N. Y.), 424..... 219n V. United States v. Bank of the U. S,... 5 How., 391n.............. 311n United States ®. Boyd............. 15 Pet., 208............... 114 United States ®. Clarke............ 8 Pet., 436................ 24n United States v. Cutter............ 2 Curt., 617.............. 290n United States®. Dashiel............ 3 Wall., 687.............. 282n United States v. Delespine.........15 Pet., 226................ 24n United States v. Emholt........... 15 Otto, 415............... 265n United States ». Hanson........... 16 Pet., 196................ 24a United States ®. Hodge............ 13 How., 485............. 250a United States v. January....... 7 Cranch, 572............. 261 United States ®. Knight........... 14 Pet., 301............... 306 United States ®. Lynde............ 11 Wall., 632.............. 24a United States v. Powers........... 11 How., 570................ 24h United States v. Rector............ 5 McLean, 174 ............ 30 In United States v. Ritchie........... 8 Pet., 143............... 150 United States v. Rodman........... 15 Pet., 130................ 24a United States v. Sawyer........... 1 Gall., 86.............. 104h, United States ®. Sibbald.......... 10 Pet., 321............... 27 United States ®. Stone............ 16 Otto, 529............... 250n United States v. Wiggins.......... 14 Pet., 325........... 24n, 26 V. Vancil ®. Hagler..... ............ 27 Kan., 407............... 197n Van Sickel ®. Buffalo County........ 13 Neb., 119................. 1 )4a Veazie ®. Williams..... ........... 8 How., 134............... 139 a Vermont ®. Soc. for Propagating the Guspel................:............. 1 Paine; 653.211n TABLE OF CASES CITED. xvii PAGE. Vermont v. Soc. for Propagating the Gospel............................ 2 Paine, 545............ 104a Villa v. Rodriguez............... 12 Wall., 339............ 118n Virginia Ehrman, The............... 7 Otto, 315.............. 89n Vliet®. Young..................... 7 Stew. (N. J.), 15..... 118n Von Hoffman v. City of Quincy..... 4 Wall., 551.............. 311n W. Wagner ®. Baird................... 7 How., 234............ 161n, 189n Waldo®. Beckwith.................. 1 NewMex., Ill... 241n Walsh®. Bailie................... 10 Johns. (N. Y.), 180.... 185 Ward ®. Stout.................... 32 Ill., 399............. 104n Wardens, &c. ®. Bostock........... 2 Bos. & P., 175.... 184 Waring ®. Clark................... 5 How., 475........... 24n, 28n Washington Bridge Co. ®. Stewart.... 3 How., 413............. 134n Wayman ®. Southard................ 10 Wheat., 2............ 306, 324 West®. Smith...................... 8 How., 413.............. 153n West River Bridge Co. ®. Dix...... 6 How., 540................ 31 In Weston ®. Barton..................-. 4 Taunt., 673............ 186 Wickliffe ®. Owings............... 17 How., 47.............. 241n Wilcox ®. Jackson................. 13 Pet., 498 ............ 290n Wilkins®. Spafford................ 3 Bann. & A., 278....... 202n Williamson ®. Barrett............. 13 How., 101.............. 28n Wilson ®. Giddings................ 28 Ohio St., 554......... 118n Wilson c. Myrick.................. 26 Ill., 34.............. 104n Wilson ®. Rousseau................ 4 How., 698............. 202n Wilson ®. Smith................... 3 How., 769................ 234n Withers ®. Jenkins................ 14 So. Car., 612........ 37n Wong Yung Quy, In re.............. 6 Sawy., 237............ 301n Wood®. Boylston Nat. Bank.........129 Mass., 360............ 234n Wood ®. Morgan.................... 5 Sneed (Tenn.), 79...... 14n Woodrop Sims, The................. 2 Dods. Adm., 83......... 92 Woodward ®. Newhall............... 1 Pick. (Mass.), 500 ... 104n Wo wies ®. Young.................. 13 Ves., 140............ .. * 231 Wright®. Johnson................ 8 Wend. (N. Y.), 512..... 185 Wright ®. Russell................. 3 Wils., 530............. 185 Wynn ®. Lee....................... 5 Ga., 217.............. 104n THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES, AT JANUARY TERM, 1843. William H. Williams, Plaintiff in error, v. James Ash, Defendant in error.* Mrs. T. Greenfield, of Prince George’s county, Maryland, bequeathed to her nephew, Gerard T. Greenfield, certain slaves, with a proviso in her will, “that he shall not carry them out of the state of Maryland, or sell them to any one; in either of which events, I will and desire the said negroes shall be free for life.” After the decease of the testator, in 1839, G. T. Greenfield sold one of the slaves, and a petition for freedom was thereupon filed in the Circuit Court of Washington county. The legatee continued to reside in Prince George’s county, for two years after the decease of the testatrix, during which time the appellee was sold by him, and he afterwards removed to the state of Tennessee, where he had resided before the death of the testatrix. ■ The Circuit Court instructed the jury, that by the sale, the petitioner became free. Held, that the instructions of the Circuit Court were correct.¹ A bequest of freedom to a slave, under the laws of Maryland, stands on the same principles with a bequest over to a third person. A bequest of freedom to a slave is a specific legacy.² The bequest of the testatrix of the slave to her nephew, under the restrictions imposed by the will, was not a restraint or alienation inconsistent with the right to the property bequeathed to the legatee. It was a conditional limitation of freedom, and took effect the moment the negro was sold. In error to the Circuit Court of the United States for the county of Washington, District of Columbia. *ln the Circuit Court of the county of Washington, r-*« James Ash, a negro, presented a petition, stating that L * The report of this case was accidentally omitted by the late reporter, and this report has been furnished by him. J As to manumission of slaves by other, see Rhodes?. Bell, 2 How., 397; will, see Le Grand v. Darnall, 2 Pet., Strader v. Graham, 10 Id., 82; Dred 664', McCutchen v. Marshall, 8 Id., Scott v. Sandford, 19 Id., 393, 396. 220; Ienwick v. Chapman, 9 Id., 461. ² S. P. Bank of United States v. Bj⁷ removal from one state to an- Beverly, post *149. Vol. i—1 1 2 SUPREME COURT. Williams v. Ash. he was entitled to his freedom, and that he is held in custody and confined in the private jail of William H. Williams. He prayed a subpoena-to James H. Williams, and that he may have a fair trial on his petition. Mr. Williams appeared to the subpoena, and denied the title of the petitioner to his freedom. Issue was joined on the pleadings, and the jury found a verdict for the petitioner, and that he was free and discharged from the service of Williams. To the opinion of the court on the trial, a bill of exceptions was tendered by the counsel for Mr. Williams. The bill of exceptions stated, that on the trial the defendant produced, and gave in evidence to the jury, the last will and testament of Maria Ann T. Greenfield; and it was admitted that the said testatrix died at the county of Prince George’s, in the state of Maryland, soon after the date of said will, in the year 1824; that upon her death, Gerard T. Greenfield, the executor named in the will, duly proved the same in the Orphans’ Court of said county, where the slaves and property left by the testatrix were, and took letters testamentary as such executor. The petitioner is one of the slaves named and demised in that clause of the will, which is in the words following, to wit: “I also give and bequeath to my nephew, Gerard T. Greenfield, all my negro slaves, namely: Ben, Mason, James Ash, Henry, George, Lewis, Rebecca, Kitty, Sophia, Mary Elizabeth, Nathaniel and Maria; also, Tony, Billy, Betty and Anne, provided he shall not carry them out of the state of Maryland, or sell them to any one; in either of which events, I will and desire the said negroes to be free for life.” The petitioner was a slave born, and the property of the testatrix at the time of her death; that the said G. T. Greenfield, upon the death of said testatrix, took possession of the petitioner and the other slaves devised to him, and held the same as his slaves so devised to him, from that time till the 18th day of December last, when, before the institution of this suit he sold the petitioner to the defendant: that G. T. Greenfield at the time of the date of said will, and ever since, resided in the state of Tennessee, *with an -* interval of between two and three years, that he sojourned after the death of the testatrix, in Prince George’s county, for the purpose of settling his business. Thereupon the court was of opinion, and instructed the jury, that by the fact of such sale of the petitioner the estate or property in the petitioner so devised to said G. T. Greenfield ceased and o JANUARY TERM, 1843. 3 Williams v. Ash. determined; and the petitioner thereupon became entitled to freedom as claimed in his said petition: to which opinion and instruction of the court, the defendant by his counsel excepted. Judgment was rendered for the plaintiff, and the defendant prosecuted this writ of error. Marbury, for the plaintiff in error. Bradley, for the defendant. Marbury contended, that as to the first question presented on the bill of exceptions, whether Mr. Greenfield took an absolute estate, by the terms of the will, in the property bequeathed to him. A devise of personal estate in general terms, without words of limitation, vests in the legatee the absolute property in the thing bequeathed. If a testator says, “I give all my personal estate to A. B.,” without other words, A. B. will take the absolute estate in all the personal property of which the testator may die possessed. The language of the will, in the case before the court, is as general, comprehensive, and effective, for the purpose of passing the whole estate, as language can be; and gives to the legatee the whole estate, subject only to the restriction of the right of alienation. There is here no limitation of the estate—no intention expressed to co^ue the legatee to an estate for life in the slaves, or to give him a mere personal benefit by the bequest. Admitting the validity of the restriction, if he should neither remove the negroes or sell them, at his death they will go to his representatives, to be distributed among his next of kin, if he should die intestate; and to his legatee, if he should make a testamentary bequest. It has been suggested that this very restriction will operate to limit the legatee to an estate for life; that it shows that it was not intended he should have the absolute power and control over the negroes. But a restriction on the right to sell never has been *construed into a limitation of the «j estate of the devisee, when the language of the will *- passed the fee. The proviso is a restriction on the right of alienation. The property is given to the legatee absolutely, with a condition annexed, that he shall not sell; a condition which is repugnant to the nature of the estate, and therefore void. Co. Lit., 206 b, 223 a. If there be a limitation over, on the breach of such condition, it does not alter the case. The condition itself being void, the estate limited upon it must be void also. 3 4 SUPREME COURT. Williams v. Ash. What is a conditional limitation, but an estate which is to vest on a certain condition, or the happening of a certain event, by which a preceding estate is to be divested? If, then, the condition on which the preceding estate is to be divested, be unlawful and repugnant, and therefore void, the preceding estate cannot be divested; can a man be deprived of his estate by refusing to do an unlawful thing, or by doing that which the law authorizes him to do with his own ? Bradley v. Peixoto, 3 Ves., 324; 2 Cai. (N. Y.), 348. It will be contended, on the part of the defendant in error, that there is something in the nature of the property which is the subject of this devise, that requires the application of a rule of law different from that which would be applied to a case arising on the title or ownership to any other kind of property. Negroes, by the laws of Maryland, are property precisely as money in the funds, or household effects. The^ws disponendi in the master is as absolute in the one case as in the other. How shall the court decide in favor of the freedom of the slave, without at the same time, and in the same judgment, deciding the right of property, as claimed? Mima Queen v. Hepburn, 7 Cranch, 295. If, on the breach of the condition not to sell, the testatrix had given the property in the negroes to a third person, the limitation over would have been declared void; because such a restriction would be on a condition repugnant and void. But here is a bequest of freedom, on the same repugnant conclusion. How is it to take effect, without denying to the master that control over the negroes which he is by law entitled to exercise over them, and which he might exercise over any other *property in like circumstances, without -* subjecting himself to a forfeiture. There is a class of cases in which it has been held that a testator may restrain the alienation of the interest given by the will, and limit the estate over in the case of alienation, whether voluntary or involuntary. This class of cases originated in the case of Pommett v. Bedford, 3 Ves., 149. The principle of this case has become a general rule of law, in the following cases: 13 Ves., 404, 429; 3 Swanst., 505; 5 Mod., 515; 6 Madd., 482. In this class of cases, the estate is vested in trustees; and it is provided that the interest or income shall be received by the trustees, and a certain portion thereof be paid at certain periods to the legatees, unless they become bankrupts, or make voluntary assignments of the amounts respectively settled in said cases; whereupon, in each case, the annuity is to 4 JANUARY TERM, 1843. 5 Williams v. Ash. cease, and the estate is devised over. Such bequests are held to be short of a life-estate, and to be intended for the mere personal benefit of the legatee. The cases belonging to this class differ materially from that under consideration. In them the title to the estate is in trustees; in the legatee of the annuity, there is nothing but a right to receive payment of a sum of money, until the happening of a given event—his becoming bankrupt, or voluntarily parting with the right to receive it. The annuitant takes only a life-estate—the gift was merely for his personal benefit. By the will in this case the legatee took to himself the absolute property in the negroes bequeathed. The enjoyment of them is not limited to a mere personal benefit. The property does not cease at his death, but will pass to his representatives, to be disposed of, or distributed according to law. Bradley, for the defendant. This is a will. The intention of the testatrix to be gathered from all the parts of the will, is to be effected, if it can be, without contravening some settled principle of law. Smith v. Bell, 6 Pet., 75, and the cases cited. What estate did Gerard take ? What effect had the exportation and sale ? There are two bequests, one of property in the slaves, to Gerard, *supposed to be absolute; another of free-dom to the slaves, upon the happening of either of L two events, defeating the first devise, and therefore limiting it. If these events are repugnant to the devise to Gerard, does that prevent their happening? If they happen, must they not give rise to the devise over ? The intent of the testatrix is clear. She meant to give Gerard a qualified, not an absolute estate, and to limit it to the happening of the event she has prescribed. The bequest of freedom is not a condition annexed to the estate of Gerard; it is a conditional limitation of that estate, contingent until the event occurs, but becoming absolute so soon as that has happened. Prest. Est., 40; Fearn. Rem., 11, 14, 16. It might be void as a bare condition, as to Gerard; yet good as a limitation, as to the slaves. She meant to give to the slaves a higher and nobler bequest. What is it? Property? The same interest she had given to Gerard? The same estate or power? If so, how is it to be estimated? By what law to be controlled? Freedom is not to be valued. Lee v. Lee, 8 Pet., 48. A 5 6 SUPREME COURT. Williams v. Ash. question of freedom is superior to any question of property. Allen v. Wallingsford, 10 Pet., 588. It is a question deserving the favor of courts. Fenwick v. Chapman, 9 Pet., 476. Isaacs v. Randolph's Executors, 6 Rand. (Va.), 652. In construing the will, we must look to the subject-matter of both devises. The first relates to property, the second to freedom, and yet both relate to the same subject. And what is it ? Is it merely property ? They are slaves; but they are human beings. They may acquire freedom by implication. Mullen v. Hall, 5 Har. & J. (Md.), 190; Legrand v. Darnall, 2 Pet., 664. They are recognized as persons in the Constitution of the United States, art. 1, sect. 9, par. 1; sect. 2, par. 3; art. 4, sect. 2, par. 8. They are so recognized by courts of justice. The law of common carriers does not apply to them. Boyce v. Anderson, 2 Pet., 155. Humanity forbids the separation of mothers from infant children, and the court will not sanction it. Fitzhugh and wife v. Foote and others, 3 Call (Va.), 13. If, then, the character of the bequest over be different from that given to Gerard—superior to property—not to be valued *71 —*deserving the favor of the courts, of a wholly J different nature; and the intent of the testatrix in regard to this bequest over be clear, shall that intent be defeated by rules adopted solely for the regulation of property ? Is there any precedent controlling this court ? It is conceded she might have given to Gerard a life-estate, and freedom to the slaves upon his death. She could then certainly have granted a less estate, and have made this to depend upon a certain or uncertain event. Then it is immaterial how this event is brought about, by the act of Gerard, or operation of law. She might have given a life-estate in the usufruct, to be, terminated by his aliening during his life, and remainder to the slaves. Dommett v. Bedford, 6 T. R., 684; Brandon n. Robinson, 18 Ves., 429; Yarnold v. Morehouse, 1 Russ. & MyL, 364; Legget v. Lear, 2 Sim., 479; 4 Russ. & MyL, 690. Did she intend to give Gerard during his life any thing more than the usufruct? If she has so expressed herself, that this restraint upon alienation amounts to a limitation of the previous estate, and there is a devise over, it is not necessarily so repugnant as to be void, but may be carried into effect. Wilkinson n. Wilkinson, 3 Swanst., 515; Coop. C. C., 259; 2 Wils. C. C., 47. She has so expressed herself, and it was her clear intent. Besides, upon this question of intent, we must look to the relation of the parties. The first taker is her nephew. She 6 JANUARY TERM, 1843. 7 Williams v. Ash. meant to aid him, but it must be in her own manner, by his taking a qualified estate to be held in Maryland. The others are her slaves, grown up around her, to whom she is attached —for whom she intends, as far as possible, to provide protection. She knows the laws, climate, customs under which they have been protected, and grown—she does not know whither they may be carried. She leaves them to the charge of this nephew, sub modo, qualifying and restraining his power over them. There is a great primary intent pervading the whole will, an intent controlling the rights conferred on Gerard, and that is the protection and preservation of these objects of her bounty, in what she thinks the best condition for them. Is this intent opposed by any settled principle of law ? *It is said the law in regard to slaves, and the rules of evidence in cases of freedom are the same *-as in all cases of personal property, and the case of Mima Queen, 7 Cr., 290, is relied on as sustaining this position. We deny it. The whole point of that case is as to the admissibility of hearsay evidence to prove a specific fact. We agree that the rules of evidence are and must be the same, and we invoke the aid of that principle. We apply it to ascertain the intent of the testatrix. But are the laws of personal property applicable? Upon what principle? Upon what adjudicated case? What laws? Shall we go to England? To her system of villenage, as it once existed, in the only part of her political or judicial frame which was ever supposed to bear the least analogy to this. Trace out the analogies and see how few they are. In what do they resemble each other ? Even under that condition, such a case as this could never have arisen. We can get no aid from her jurisprudenc. Shall we go to the laws of the several states ? Our search would be equally vain here. The right which is held in a slave is so modified by statutory provisions, by local causes, by custom, by the common law, by the social condition, and by the local and political position of each state, that we can derive no important aid from them. It is emphatically a subject of peculiar regulation. But wherever we do find the right to manumit, we find this cardinal point, that suits for freedom are to be favored, pervading and controlling the judicial decisions. The laws of personal property are not applicable. Color, in a slaveholding state is a badge of slavery. It is not so where slavery does not exist. Accompanied by possession in the former state, it is evidence of title. An adverse possession of a slave for a period corresponding with the 7 8 SUPREME COURT. Williams v. Ash. statute of limitations gives title in a slave. Hardeson v. Hays, 4 Yerg. (Tenn.), 507; Partee v. Budget, 4 Id., 174; Brent n. Chapman, 5 Cranch, 358; Shelby v. Guy, 11 Wheat., 361; Garth's Executors v. Barksdale, 5 Munf. (Va.), 101; Carter v. Carter, Id., 108; Newby v. Blakey, 3 Hen. & M. (Va.), 57; Smart n. Baugh, 3 J. J. Marsh. (Ky.), 363. But no length of possession, however open, notorious, and absolute, can prevail against a claim of freedom, where the claimant can trace back his descent from a free maternal ancestor. Rawlings v. Boston, 3 Har. & M. (Md.), 139; or if he can show *an acquired right to freedom, perfected -* in himself. Hunter v. Eutener, 1 Leigh (Va.), 172, and cases cited. Burke v. Negro Joe, 6 Grill & J. (Md.), 136. By statutory provisions in Maryland, they are regarded as responsible and intellectual beings, as “ persons" capable of contracting. In some cases they are entitled to trial by jury. Maryland Act, 1751, ch. 14, sect. 4. They may contract. 1715, ch. 44, sect. 11. They may discharge the very responsible office of pilots. 1788, ch. 33. If, then, the laws of personal property apply, to what extent do they so apply? Considered merely as personal property, they are subject to all the laws regulating that species of property; they may be the subject of contract, pass by gift or will, descend, or be taken in execution. Their gains belong to their owner; they can make no contract with third parties, without the owner’s assent, and none with their owner, and the issue of the woman is part of the use, the property of the person to whom the mother belongs, for the time being. 1 Har. & M. (Md.), 160, 352; 1 Har. & J. (Md.), 526; 6 Id., 16, 526. Considered as human beings capable of acquiring, under the laws, rights paramount to all individual claims, and to be controlled only by the sovereign in the state, from the exercise of which they have been rightfully debarred by law, they acquire a higher dignity. In their former character they are to be considered as property. But here the very question is, are they property ? To determine this, shall we assume that the laws of property apply, and by those laws determine their character, and a right immeasurably above them? Can property take property ? Can a man be indicted for murder of property ? Can property be entitled to a trial by jury, or commit a crime, or acquire a right? Yet all this may be done by a negro; and they all imply a reasoning faculty, a conscience, an immortal spirit, in which there can be no property. We must look to the laws of Maryland. The statutes there 8 JANUARY TERM, 1843. 9 Williams v. Ash. give them power to take freedom by devise, to take effect immediately, or at a remote period, after a term of years or a life-estate. Act 1796 and 1809. The decisions of the courts of Maryland are in favor of this capacity. The statutes direct two *modes of emancipation, by will or deed. The courts have extended it to implied manumission, L as in Dolly Mullen’s case, and to adverse possession or length of time, as in Negro Joe v. Burke. Where, then, the intent of the testator clearly appears to secure to them liberty on the happening of an event, which has happened; or where a doubtful form of expression is used, which, in regard to mere personal property, might amount to a condition repugnant to the bequest, and thus be void, yet in favor of liberty, and having a regard to the subject of the bequest and the right intended to be conferred, the court will construe the will according to the intent, and take this to be a limitation of the estate. Again. The intent of the testatrix is to give freedom to the slaves, unless they can be held in Maryland upon the terms she has herself declared. Now if they cannot be so held in slavery, what is to be the effect ? They are free. Again. It has been said that restraint upon alienation is void. Yet in an executory devise this restraint exists, and has never been disputed. Moffat v. Strong, 10 Johns. (N. Y.), 12; Cordle v. Cordle, 6 Munf. (Va.), 455. But, it is said, if the devise of freedom is to depend upon the happening of the event mentioned in the will, the first estate must vest, and then the condition is void. Not so. It does not necessarily follow. Stainham and Bell, Lofft, 455; Avelyn v. Ward, 1 Ves. Sr., 420; in which last case the court says, if by any means the conditional limitation is removed, the devise over will take effect. See also Simpson v. Vickers, 14 Ves., 341, and particularly Doe ex dem. Smith v. Hance, 6 Halst. (N. J.), 244, 252—254. Suppose the estate of Gerard to have vested. What was its extent and limitation ? It was not intended to be absolute. The power to give or prevent freedom was not devised to him. That was already exercised. He had a qualified property. Slavery is the property which one man has in the labor of another, and the right to the custody and such limited use of the person of that other, as the particular laws allow. The power of the master is subordinate to the law of the land, and in some cases he is allowed by that Haw to give -< freedom in Maryland in presenti or in futuro. If the master once exercises this authority, it is irrevocable, the 9 11 SUPREME COURT. Williams v. Ash. subject of it can never be reduced, again to the condition of a slave unless by legislative provision. Now if any right in, or power over a thing granted be reserved to the grantor, or devised to a third person, the person taking has but a qualified or limited estate, it is not absolute. The grantor or devisor may annex to this qualified or limited estate, conditions by which it may be terminated at a period short of that to which it would otherwise run. The effect must be to give rise, in case of a devise over, to the new estate, if there be one devised, or the property must revert. It cannot be that the tenant of the particular estate shall have the power to defeat the other and usurp the whole property to himself. Is not this the case here ? Without the proviso, the words are as absolute as in the case of Smith v. Bell, 6 Pet., 74. But the proviso must operate to restrain the general words in the same manner as the devise over of the remainder in that case. She could grant a life-estate, with freedom to take effect at its expiration, the life-estate to be forfeited upon the happening of an event, and the devise over to take effect. A fortiori she might make this life-estate to depend upon his keeping them in his own possession and in the state of Maryland. The uncertainty of the event can make no difference. It has happened. The happening of the event is during a single life, and, therefore, not too remote. We maintain, then, that this is not a naked condition annexed to an absolute estate and repugnant to it, and therefore void, but is a contingent limitation of a particular estate, with a devise over of a faculty or estate of the highest dignity and most absolute character, to take effect on the happening of a contingent event by which the particular estate was to be terminated, which event must occur during the lifetime of a person in being, and the event has happened. As to the distinction between a naked condition, and a conditional limitation, see Taylor v. Mason, 9 Wheat., 329, &c., and particularly Smith v. Hance, 6 Halst. (N. J.), 244, et seq. But, is a condition in restraint of alienation necessarily void? and are there not cases where it amounts to a limitation ? The true distinction is, that where such a condition amounts to a limitation of the precedent particular estate, with a devise over, it is good. Doe d. Duke Norfolk v. Hawke, 2 East, 481; and Wilkinson n. Wilkinson, 3 Swanst., 515. *121 *The reason of the rule is obvious, it is to prevent J perpetuities, and therefore the jus disponendi in an absolute estate is not to be taken away, .but even this may be qualified. Litt., sec. 361; Shep. Touch., 129; Grill v. Pearson, 6 East, 173; S. C. 2 Smith, 295. This last case is a clear case 10 JANUARY TERM, 1843. 12 Williams v. Ash. of a fee simple, with a condition terminating it. If the power of disposal is not absolutely taken away, the condition restraining it may be good. Jackson v. Shutz, 18 Johns. (N. Y.), 175, and cases cited; McWilliams v. Nisby, 2 Serg. & R. (Pa.), 507. Here he might at any time have disposed of his interest to the slave themselves, by releasing it. The case of Bradley v. Piexoto, as stated in the report, does not warrant the exposition of it in the opinion of the Master of the Rolls. We do not controvert his law, for if the gift was absolute of both principal and dividends, that case cannot illustrate this. If it was not absolute, the case is wholly inconsistent with Wilkinson v. Wilkinson; Branden v. Robinson; Dommett v. Bedford; Legget v. Lear, &c. already cited, and particularly Bird v. Hudson, 3 Swanst., 342. We are considering a will. The intent is to govern. Every intent is to be effected if possible. The primary intent is to prevail. The particular intent was to give the nephew a qualified estate. The primary intent was to afford protection and security to the slaves. The restraint upon the nephew does not take away all power of alienation. The execution of every intent does not contravene any settled principle of law. The event to determine the estate of the first taker is not too remote. Besides it is a case in favor of liberty, to be attained by the instruments, and in the mode pointed out by the statutes, a case involving one interest of the highest dignity, and depending on the happening of an event to terminate another interest of less importance. Mr. Chief Justice TANEY delivered the opinion of the court. This case is brought here by writ of error, from the circuit court of the District of Columbia, for Washington county, and came before that court upon a petition for freedom. It appeared on the trial, that the petitioner was the property of Mary Ann T. Greenfield, of Prince George’s county, in the state of Maryland, who died in 1824, having first duly made her Hast will and testament, whereby among other things she bequeathed the petitioner, with sundry L other slaves, to her nephew, Gerard T. Greenfield, with a proviso in the following words: “ Provided he shall not carry them out of the state of Maryland, or sell them to any one; in either of which events I will and devise the said negroes to be free for life,” and she appointed her said nephew her executor. Upon the death of the testatrix, Gerard T. Greenfield took 11 13 SUPREME COURT. . Williams®. Ash. possession of the petitioner and the other slaves bequeathed to him, and held them from that time until December, 1839, when he sold the petitioner to the defendant; and the petition for freedom was filed shortly after the sale. At the time of the making of the will, and ever since, Gerird T. Greenfield resided in the state of Tennessee; with an interval of between two and three years, during which he sojourned in Prince George’s county, after the death of the testatrix, for the purpose of settling his business. Upon this evidence, the circuit court instructed the jury, that by the fact of such sale of the petitioner, the estate or property in the petitioner so bequeathed to Greenfield, ceased and determined, and he therefore became entitled to his freedom. Under this direction of the court, the verdict was in favor of the petitioner. By the laws of Maryland, as they stood at the date of this will, and at the time of the death of the testatrix, any person might, by deed, or last will and testament, declare his slave to be free after any given period of service, or at any particular age, or upon the performance of any condition, or on the event of any contingency. This right is recognized in the act of Assembly, of 1809, ch. 171. The contingency upon which the petitioner was to become free must, by the terms of the will, have happened in the lifetime of Gerard T. Greenfield; and if he had died without selling him, or conveying him out of the state of Maryland, the petitioner would have continued a slave for life. The event, therefore, upon which he was to become free was not too remote. It is said, however, that this was a restraint on alienation inconsistent with the right of property bequeathed by the will. But if, instead of giving freedom to the slave, he had been bequeathed to some third person, in the event of *44-1 his being sold, or *removed out of the estate by the J first taker, it is evident upon common law principles, that the limitation over would have been good. 2 East, 481. Now a bequest of freedom to the slave stands upon the same principles with a bequest over to a third person. It is said by the chancellor of Maryland, 2 Bland Ch., 314, that the bequest of freedom to a slave is a specific legacy, and undoubtedly this is its true legal character. And if a bequest over to a third person would not be regarded as an unlawful restraint upon alienation, there can be no reason for applying a different rule where the bequest over 12 JANUARY TERM, 1843. 14 Hammond’s Adm. v. Washington’s Exec. is freedom to the slave. In the one case, the restriction no alienation ceases as soon as the devise over takes effect; and in the other, the right of property ceases upon the happening of the contingency, and there is nothing to alien. We think that the bequest in the will was a conditional limitation of freedom to the petitioner, and that it took effect the moment he was sold. The judgment of the circuit court must therefore be affirmed. George W. Hammond, Administrator de bonis non of Thomas Hammond, deceased, and others, Appellants, v. Lorenzo Lewis, Executor of Lawrence Lewis, deceased, who was the Acting Executor of Gen. George Washington, Appellee.* In the distribution of the estate of a deceased person, an assignment, to one of the distributees, of a mortgage which is for a greater sum than his distributive share, does not make him responsible to the executors for the difference between his share and the nominal amount of the mortgage, in case the mortgaged premises sell for less than the amount of his share, where the distributee has, with proper diligence, and in good faith, subjected the mortgaged property to sale, and has not bound himself absolutely for the nominal sum secured by the mortgage.¹ *This was an appeal from the circuit court of the pqs United States for the District of Columbia, holden L in and for the county of Alexandria. The facts in the case were these: * In the progress of the cause, G. W. Hammond also died, and his administratrix became a party; but the suit having been an amicable one, this did not delay the proceedings. It is mentioned only because sometimes the one and sometimes the other is spoken of as the person interested. ¹ The general rule is that the holder Rhinelander, 3 Johns. (N. Y.), Ch. of an instrument for the payment of 614; Roberts v. Thompson, 14 Ohio money as collateral security, where St., 1; Wood v. Morgan, 5 Sneed there is no special agreement, must (Tenn.), 79. But see Sinouse v. Bail, use ordinary care and diligence in col- 1 Grant (Pa.) Cas., 397. Thus, where lecting the money, and he must make one who receives an assignment of a good any loss happening to his debtor share of property as security for a by reason of a want of such care; but debt, agrees to comply with the con-if there be a special agreement the tract of the assignor with a joint parties will be bound by it, and the owner of the property, he is bound to general rule will not apply. Lee v. fulfill that contract though it exceed Baldwin, 10 Ga., 208. S. P. Foote n. in amount the value of the share of Brown, 2 McLean, 369; Kiser v. Rud- the property transferred. Clarke’s dick, 8 Blackf. (Ind.), 382; Slevin v. Exec. v. Carrington, 7 Cranch, 308. Morrow, 4 Ind., 425; Barrow v. 13 15 SUPREME COURT. Hammond’s Adm. v. Washington’s Exec. General Washington, by his will, executed in 1799, devised all the rest and residue of his estate, real and personal, not before disposed of by said will, to be sold by his executors, at such time, in such manner, and on such credits, (if an equal, valid, and satisfactory distribution of the specific property could not be made without,) -as in their judgment should be most conducive to the interest of the parties concerned; and the moneys arising therefrom to be divided into twenty-three equal parts. On the 19th of July, 1802, the executors assembled the legatees, with a view to consult them upon certain questions arising under the will; and it was agreed that a certain portion of the personal estate should be sold, another portion divided, a certain portion of the lands divided, and the residue sold by the executors. On the 6th of June, 1803, a meeting of the devisees was held, at which it was agreed that certain lands, lying on the eastern waters, should be sold, and, if purchased by the devisees, such purchaser should pay at three equal annual instalments with six per cent, interest from the day of sale, but to be credited with his proportion of the sales which had there been made, and which were to be divided among the said devisees. On the 7th of June, 1803, Burdett Ashton, who was entitled, in his own right, and that of his sister, to two-thirds of a distributive share, purchased from the executors property belonging to the estate, for the sum of $9,410.20; payable, one-third on demand, one-third on the 7th of June, 1805, and one-third on the 7th of June, 1806. On the 12th of March, 1805, Ashton mortgaged to the executors three tracts of land in Jefferson county, Virginia, amounting in the whole to one thousand and seventy-six acres, to secure the payment of the purchase which he had made, as above stated. On the 11th of March, 1806, the executors assigned the mortgage to Thomas Hammond, who was entitled to a full distributive share in right of his wife, and attached to the assignment the following memorandum : “ The executors are not to be made personally liable, in any respect, or on any *161 Preteⁿse, *wherein, for, or by reason of the above as- -* signment, and further, the within named Burdett Ashton, Jr., his heirs, executors and administrators, is to have credit for his proportion of $5,179.05, being the share of each legatee of said George Washington, of certain sales of real and personal estate made by the said executors, as well as for 14 JANUARY TERM, 1843. 16 Hammond’s Adm. v. Washington’s Exec. the proportion of the sister of the said Burdett, as her attorney in fact.” As it was thought that the distributive shares of the said Ashton and Hammond, when added together, would not quite exhaust the debt due from Ashton to the executors, the latter took from Hammond, on the same day on which they made the assignment, a deed by way of mortgage, in which it was stipulated that Hammond should indemnify the executors, and also should pay to the executors whatever surplus might remain, after deducting Hammond’s and Ashton’s distributive shares from the amount of Ashton’s debt to the executors. On the 2d of April, 1806, Hammond, being indebted to Smith, Calhoun & Co., of the city of Baltimore, in the sum of $5,604.64, assigned to them all his right to so much of the mortgaged premises as would be sufficient to satisfy the sum aforesaid. As speedily as possible, Smith, Calhoun & Co., obtained a decree in the high Court of Chancery, in Virginia, to foreclose Ashton’s mortgage, who, at the time of such foreclosure, was insolvent, and died so. The result of such sale is thus stated in the opinion of the Circuit Court, delivered in a subsequent stage of the cause: The property mortgaged by Ashton, sold under decree for (nett proceeds) $3908.46. The debts of Ashton was - - - - $9,410.20 He had a right to retain - - - - 3,452.70 The real amount of Ashton’s debt was - $5,957.50 Hammond’s claim was ----- 5,179.05 Amt. rec’dby Hammond’s mortgage to exrs. - $778.45 At some period between 1819 and 1823, the executors addressed a circular letter to each of the legatees, who had by this time become very numerous, expressing a desire to close their executorial duties, and stating that a difficulty existed in the mode of calculating interest. They say, “ there are but two *modes by which our objects can be attained—a p*- ₇ reference of the accounts to arbitration, or a suit; the *-former we should prefer, as most consonant with the injunction of our testator, if it were not attended by insuperable difficulties, on account of the dispersed situation of the legatees, who consequently could scarcely be expected to agree upon the arbitrators; we therefore propose that the legatees should concur in instituting an amicable suit in chancery against us, to which we will immediately file an answer, and 15 17 SUPREME COURT. Hammond’s Adm. v. Washington’s Exec. obtain an order of reference to the master, to adjust and re port the precise sum to which each legatee is entitled; which being done, we can proceed with safety to pay such sums as fast as the money comes to our hands.” In 1823, the legatees, in conformity with the above suggestion, filed a bill in the Circuit Court for the District of Columbia, which the executors immediately answered, admitting the existence of a balance to be distributed, and submitting to any decree which the court might think proper to pass. A special auditor was appointed to state the accounts of the parties. In 1825, the executors filed a cross bill, alleging that all the parties were not in court, and praying that they might all be brought in. The proper proceedings were accordingly had as to the absentees, and in 1826 the Circuit Court passed a decree directing the sums to be paid to the several legatees, with the exception of the administratrix of Thomas Hammond and of Burdett Ashton. The auditor stated the account of Hammond upon two different principles; in one, giving him credit for $5,178.68, a distributive share, and charging him with $4,006.24, the gross amount of the proceeds of the mortgage sale; and bringing the executors in debt to Hammond upwards of $4,000: in the other, giving him credit for the same sum, but charging him with the balance of the debt due by Ashton, bringing him in debt to the executors upwards of $2,000. The Circuit Court adopted the latter, and decreed that the administratrix of Hammond should pay to the executors the sum of $2,158.56, with interest on 1,127.27, the principal sum due, from the 1st day of June, 1824. From which decree, the administratrix appealed to this court. Coxe, for the appellant. Jones, for the appellees. $-| *Mr. Justice DANIEL delivered the opinion of the J court. This is the case of an appeal from a decree of the Circuit Court of the United States, for the District of Columbia. This suit was originally of an amicable character, and was instituted at the request of the executors of General George Washington, by the legatees under his will, with a view to a definitive settlement of the accounts of the executors and a distribution of the estate. Subsequently to its institution, a cross bill was filed by the executors for the purpose of covering some of the legatees, who had been omitted in the prior 16 JANUARY TERM, 1843. 18 Hammond’s Adm. v. Washington’s Exec. proceedings, and the two causes were prosecuted and decreed upon as one suit. The facts out of which the questions now presented for consideration have arisen, are substantially the following: General Washington, after having disposed of a portion of his estate, devised all the residue of his real and personal property to be sold by his executors, if it could not be equally and satisfactorily divided, and directed the proceeds to be divided into twenty-three equal shares, and distributed by shares and parts of shares, amongst twenty-nine persons named, and others not named, but designated by a collective description. Amongst those having an interest in the estate was Mildred Hammond, the wife of Thomas Hammond, in whose right the appellant claims one share of the twenty-third part of the residue. After a previous distribution by the executors of $7,000, the amount arising from further sales, and remaining for distribution at the commencement of this suit, was near $120,000. Several of the residuary legatees became purchasers at the sales made by the executors, some for more, others for less than their shares or parts of shares to which they were entitled. They gave securities for the amount of their purchases, as other purchasers would have been required to do, with an understanding that their several shares of the estate, when ascertained, should be credited against the sales respectively made to them. Among those legatees who purchased to an amount exceeding their shares was Burdett Ashton, who was entitled to one third of one share in his own right, and to one other third of a. share in right of a sister, together equal to two thirds of one twenty-third or full share of the residuum subject to distribution. This interest of Ashton was subsequently ascertained to be $3,425.20. *He purchased property in June, r*-|n 1803, to the amount of $9,410.20, payable in three •-annual instalments; and for securing this debt, with interest from the date, executed to the executors a mortgage on the 12th day of March, 1805. Thomas Hammond (the husband of the legatee, Mildred Hammond) obtained from the executors an assignment of the mortgage from Ashton for the $9,410.20, and executed to them an obligation to account for any surplus which he might receive from Ashton’s mortgage, beyond the share of Mildred Hammond, amounting to $5,179.50 after crediting Ashton with two thirds of a share to which he was entitled. The consideration for the assignment to Hammond is stated to be “ one dollar in hand paid, but principally on ac- Vol. i.—2 17 19 SUPREME COURT. Hammond’s Adm. v. Washington’s Exec. count” of the share of his wife in the residue of General Washington’s estate; and they bargain, sell, and assign to the said Hammond, his heirs, &c., all the right, title, interest, estate, claim, and demand of the executors to the within-mentioned land and premises, and to the deed within mentioned. At the foot of the assignment is a memorandum, “that the executors are not to be personally liable in any respect, or on any pretence, for or by reason of the above assignment,” and further, “that the within named Burdett Ashton, his heirs, &c., shall have credit for his proportion, and for the proportion of his sister,” in one share of the residuum of the estate, &c. Within less than a month after receiving an assignment from the executors, Hammond assigned Ashton’s mortgage to Smith, Buchanan and Calhoun, in consideration of a debt due from him to them. These last assignees filed their bill in the Supreme Court of Chancery in Virginia to foreclose Ashton’s mortgage, and to this bill the executors of Washington were made parties defendants. In their answer these executors admit the interests of Hammond and Ashton in the estate of their testator, the assignment by them to Hammond of Ashton’s mortgage, and they ask nothing on their own account except this, that as certain funds of the estate upon the basis of which Ashton’s proportion had in part been calculated, might turn out to be unavailable, he, Ashton, might be required to indemnify the executors against such a contingency. The settlement of Ashton’s account having been by the *901 Court of Chancery referred to the master, a large bal- J ance was reported *as due from Ashton on the mortgage, after allowing him a credit for his own and his sister’s shares of a legatee’s proportion. The court decreed a foreclosure of the mortgage, and a sale of the mortgaged premises to raise the balance due from Ashton. The sale made under the decree produced a sum considerable less than the amount of the debt from Ashton to the executors of Washington. In the record in this cause are found accounts stated under orders of the Circuit Court between the executors of Washington and the distributees, under the will of their testator. In the account of Burdett Ashton, after crediting him with the proceeds of the mortgage sale, a balance is struck against him of $6,197.70. The account with Hammond is stated under two aspects; under the first, in which he is charged with the net proceeds only, of Ashton’s mortgage, he is a creditor, by the sum of $4,084.30; under the second, in which Hammond is charged with the entire balance due from Ashton, without regard to the actual proceeds of the mortgage he is made a 18 JANUARY TERM, 1843- 20 Hammond’s Adm. v. Washington’s Exec. debtor. The Circuit Court, upon the hearing of this cause, being of the opinion that Hammond was absolutely bound to the executors of General Washington for whatever amount the mortgage debt of Ashton exceeded the share of Mrs. Hammond as a legatee, notwithstanding the failure of the mortgaged premises to produce the amount of the debt for which they were pledged; decreed, in conformity with the second statement of the master of Hammond’s account (No. 11), that the administratrix of Hammond, out of the assets in her hands to be administered, should pay to the executors of George Washington the sum of $2,158.56, the balance appearing to be due to them by statement No. 11, with interest on $1,027.27, the principal sum due from the 1st day of June, 1824. The basis of the above decree of the Circuit Court—and it is the foundation on which the argument for the appellees has been conducted—is the assumption, that Hammond, in taking an assignment of Ashton’s mortgage from the executors of Washington, undertook to guaranty the sufficiency of the mortgage subject to extinguish the amount for which that subject was pledged, and bound himself absolutely to be accountable for that entire sum. It is difficult to reconcile such a course on the part of r*o-| Hammond *with rules of common prudence or proba-bility, nor can a claim to power in the executors to make such an exaction upon Hammond be viewed as consistent with fairness, or as called for by any obligation incumbent upon these executors. Hammond knew, when he took the assignment of Ashton’s mortgage, that he was entitled to $5,179.50, admitted by the executors to be in their hands, or within their control. This is apparent, and is expressed both in the memorandum required by the executors to be appended to their assignment of Ashton’s mortgage, and in the separate instrument of indemnity executed to the executors by Hammond, upon his receiving that assignment. Under such circumstances, what rational inducement could exist on the part of Hammond for binding himself for the solvency of Ashton, or for substituting himself with the executors as a debtor in Ashton’s place 2 The court can perceive no such inducement, nor can recognize any right in the executors to require any thing of this kind, with a full knowledge, on their part, of Hammond’s interest in the estate, and with an admitted fund in their hands for its satisfaction. They had no power to impair in any degree his claim upon them, nor to impose a mean for its payment, less certain and safe than the assets acknowledged by them to be adequate. It is laid down by the Circuit Court, and insisted 19 21 SUPREME COURT. Hammond’s Adm. v. Washington’s Exec. on in the argument here, that the terms of the assignment to Hammond, as well as those of the instrument of indemnity given to the executors upon receiving that assignment, constitute an agreement that Hammond should be unconditionally bound for Ashton’s debt. We have shown that this conclusion is in accordance neither with prudence nor probability, in the transactions of life—that it was not sustained by any duty, or even by fairness on the part of the executors; let us see how far it is warranted by the language of the instruments referred to as amounting to express and positive contract. In the written assignment to Hammond, this is the language used: “ Have bargained, sold, assigned, &c., all the right, title, &c., in and to the within-mentioned land and premises, and the deed within mentioned,” &c. Such terms were indispensable in that assignment, in order to give to Hammond control of the mortgage, either for its enforcement in his own *09-1 behalf or for its transfer to others; nothing is said, in J terms, in this assignment, about the debt intended *to be secured by the mortgage, neither in relation to any full equivalent for it, received by Hammond, which should bind him for it in toto, nor in relation to any entire and absolute transfer of it by the executors; and this surely was the place in which such terms, or conditions, if they really belonged to the contract, should have been expressed. The view here presented is fortified by the instrument of indemnity executed by Hammond to the executors contemporaneously with the assignment by the latter to him of Ashton’s mortgage. This instrument of indemnity, after reciting that the executors had assigned, &c., a deed due them from Ashton, specifying no sum, no debt in numeris; after reciting too that Ashton was entitled to a portion of the assets, proceeds thus: “And whereas it is supposed that the amount of the said debt due from Burdett Ashton, after making the discounts aforesaid, to which he may be entitled, will exceed the said sum of $5,179.50, due to the said Thomas Hammond, as agreed; for which excess, the said Thomas Hammond is willing to give security; now if the said Thomas Hammond shall well and truly pay, &c., such sum as the debt due from the said Burdett Ashton, shall exceed,” &c. This portion of the instrument, beginning, “ whereas it is supposed that the amount of the debt due from Ashton, after making the discounts to which he is entitled,” &c., forcibly elucidates the meaning and objects of the parties to that contract. The amount of Hammond’s interest in the estate, the amount too of Ashton’s debt to the executors, and of the portion claimed in his own right, and in right of his sister, were all known. With regard 20 JANUARY TERM, 1843. 22 Hammond’s Adm. v. Washington’s Exec. to these, then, there was no uncertainty. The supposition, therefore, expressed in this instrument could have no applicability to matters thus ascertained; that supposition could have been designed to apply only to the contingency of the mortgage subject producing a sum greater than the distributive share of Hammond in the estate; in which event, he was to be responsible for the excess, and for nothing beyond it. This provision cannot be correctly interpreted as binding Hammond, however inadequate the mortgage subject might prove to meet his share of the assets, to carry into the estate and pay to the executors a sum he never had received, and which, from the nature of things, he could not possibly receive; in other words, to pay to these executors his own [-#90 *money. Upon taking an assignment of Ashton’s L mortgage, Hammond was bound for good faith and ordinary diligence in prosecuting it. These obligations appear to have been fulfilled, for the executors who were made parties to the suit for foreclosure take no exception to any thing that had been done or omitted in reference to the security they had transferred. This court, therefore, while it will not decree against the executors the difference between the proceeds of Ashton’s mortgage and the distributive share of Hammond, as stated in the report of the master, is very clear that Hammond can upon no correct principle be held responsible to the executors for the difference between those same proceeds and the amount of the debt due from Ashton, which the mortgage was designed to secure; and that in decreeing against the administratrix of Hammond for that difference, the Circuit Court has committed an error for which its decree should be reversed. This court doth accordingly reverse the decree of the Circuit Court, with costs, and remand this cause thereto, to be proceeded in conformably to the principles of this decision. order. 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 Alexandria, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged and decreed by this court, that the decree of the said Circuit Court, in this cause, be and the same is hereby reversed with costs, and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to proceed therein conformably to the opinion of this court. 21 •24 SUPREME COURT. The United States v. Acosta. *The United States, Appellants, v. Domingo Acosta. Appellee. The certifi e of the secretary of the Spanish governor of Florida is prima facie evidence of the existence of a grant of land.¹ The Spanish governor had authority to issue such a grant. In the case of a grant made before the 24th of January, 1818, it is valid, although the survey was not made until after that day, provided the survey was made before the exchange of flags.² It is not a good objection to such a grant that the metes and bounds were not set forth. The facts in this case are fully set forth in the opinion of the court. It was submitted, by Mr. Legare, the attorney-general, without argument, on the usual objections assigned, pro forma, for error. Mr. Justice CATRON delivered the opinion of the court. This is an appeal from the decree of the Superior Court of East Florida, confirming eight thousand acres of land to Domingo Acosta, under the acts of congress for the adjustment of land-claims in Florida. The claim is founded on an alleged petition of Acosta, dated May 2, 1816, and a decree of Governor Coppinger thereon, dated the 20th day of the same month and year. The petition (record 8) sets forth: That by the certificates which he presented, signed by the commandants of Fernandina, who had governed it successively since 1808, his excellency would be informed that he had been a permanent resident of the said town, engaged all the while in commerce, and had served (in all that had offered itself) the wishes of the government for the good of the province; and that he had been particularly prompt with his person, his funds, and his influence, for the defence, the support, and the advancement of the town; and that he had at no time had any stipend, recompense, or remuneration, of his expenses, supplies, and losses, and had refrained from importuning the government with solicitations. He therefore prayed for a grant in property, of eight thousand acres; but as he was ignorant of the lands that were vacant, and desirous to avoid interference and ¹ See United Statesv. Clarke, 8 Pet., son, 16 Pet., 196; Same v. Power's 436; Same v. Wiggins, 14 Pet., 325; Heirs, 11 How., 570; Same v. Lynde, Same v. Rodman, 15 Pet., 130; Same 11 Wall., 632. v. Delespine, Id., 226; Same v. Han- ² See Waring v. Clarke, 5 How., 475. 22 JANUARY TERM, 1843. 24 The United States ». Acosta. dissensions with any person, he further prayed his excellency would be *pleased to grant them at the places where r*or the surveyor-general might survey them as vacant L lands! The decree (record 8) states, that “ in virtue of the certificates which this party presents, and it being the will of the sovereign that the merits of his subjects should be rewarded, the lands solicited in this instance are granted, with special charge to the surveyor-general to survey them to him without injury, to third persons.” The originals of the petition and decree were not produced in evidence, neither are they to be found in the archives at St. Augustine. A certified copy, dated 24th June, 1816, under the hand of Thomas de Aguilar, secretary of the government, stated to be faithfully drawn from the original in his office, was alone offered, and was objected to on the part of the appellants. The appellee also offered the following plats and certificates of survey, purporting to be made by George J. F. Clarke, surveyor-general of the province: No. 1. Dated 12th January, 1818, for one thousand acres of land, on Bowlegs’ old plantation, and situated northwardly and contiguous to the same Bowlegs’ prairie, westward of Payneston. No. 2. Dated 15th January, 1818, for one thousand five hundred acres of land, in the hammock called Jobbin’s hammock, southwestwardly of the road called Ray’s trail, leading from the natural bridge of the Santa Fe, to the point of Alachua called Hogtown. No. 3. Dated 14th February, 1818, for one thousand five hundred acres of land, northward of Dunn’s creek, running from Dunn’s lake to the river St. John. No. 4. Dated 20th January, 1820, for four thousand acres of land, on the west side of Indian river, and at a place called Flounder creek. After hearing testimony as to the manner in which muniments of title were kept in the archives at St. Augustine, the court made a decree confirming the four several tracts of land to the claimant, from which decree the present appeal is taken. On the part of the United States, it was contended that the said decree ought to be reversed, on the following grounds: 1. That there is not sufficient evidence to show that Governor Coppinger ever made the alleged concession or grant. *2. That if Governor Coppinger made such a grant, r*op it was made without authority. L 3. That there is no description whatever in the said pre- 23 26 SUPREME COURT. The United States v. Acosta. tended grant of the lands alleged to be granted, and no valid survey could be made so as to sever any lands from the public domain. 4. That there is no evidence of the surveys. The foregoing statement, offered on the part of the United States, presents the facts of the case; and the objections to the decree below. In answer to the first, that there is not sufficient evidence the grant was made, we refer to the case of Wiggins, 14 Pet., 334, which determines that the official certificate of the secretary Aguilar was prima facie proof of the existence of the original grant at the date when the copy was made; and of its contents. In this case, Alveraz proves the certificate of the secretary genuine, and that he was in office at the date of the certificate. It was in proof that no original could be found in the proper office where it should be on file. This was sufficient to let in a copy; and there being no proof to contradict, or impair the force of Aguilar’s certificate, the court below properly held, that the grant had been made by Governor Coppinger. To the second objection, it- is sufficient to say—that the governor, as the king’s deputy, was the sole judge of the merits on which the claim is founded, and had undoubted power to reward the merits of the grantee; so this court has held in many cases. 3. Although there is no description of any place where the land granted shall be located, in the governor’s decree; still it was binding so far as it went. The surveyor-general was ordered to survey the lands solicited, on places vacant, and without injury to third persons. The acts of this subordinate officer came in aid of the decree; he had the authority conferred to sever the land granted from the public domain: had he done so before the 24th of January, 1818, then there could be no doubt the grantee took title to the particular lands; because, up to this date, all grants made by the King of Spain, in whatever form, are recognized as valid by the articles of the treaty. The difficulty in this case is, that two of the surveys were made after the 24th of January, 1818: and, did the grant take effect from the date of the surveys, then, by the *271 stipulations of the 8th article, *it would be void. This •J question was first presented in Sibbald’s case, 10 Pet., 321. It was thought by this court, that the 8th article of the treaty operated on grants made by the governor after the 24th of January, 1818, but not on the subordinate acts of the surveyor in giving effect to the grant; and that surveys could be JANUARY TERM, 1843. 27 Walsh, 'Admr., v. The United States. made at any time before the change of flags between this government and that of Spain. Still, had that officer failed to make the surveys, the grant would not be binding on this government. We followed the case of Sibbald in that of Clarke v. Atkinson, at the last term, 16 Pet., 231. This construction was given to the 8th article of the treaty, in a spirit of liberality to this description of claimants, who could not be held justly responsible for the delays of the surveyor-general ; and because the incipient claim, by the governor’s decree, was not cut off by the treaty. The surveyor-general having executed the governor’s decree, we are of opinion that the surveys made after the 24th of January, 1818, as well as those made before that date, are valid. That there are several surveys is no objection to their validity; the decree in this case obviously so contemplated. 4. It is objected, that no sufficient evidence is furnished by the record that the surveys were made. The cause was first submitted to the court below, in 1834; then the two surveys last made were objected to and admitted by the court. The judge continued the cause on his own motion for further proof, and it stood over on continuances until 1840, when the four surveys were read without objection. We think the proofs authorized the decree, and order that it be affirmed. ORDER. This cause came on to be heard on the transcript of the record from the Superior Court for the District of East Florida, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Superior Court in this cause be and the same is hereby affirmed, in all respects. * Joseph W. Walsh, Administrator of Wtt.lt am Rector, DECEASED, V. THE UNITED STATES. [*28 This case came up, by writ of error, from the Circuit Court of the United States, for the District of Missouri. On the motion of the attorney-general, of counsel for the defendant in error in this cause, the plaintiff in error having been three times solemnly called by the marshal to come into court aiid prosecute this writ of error and failing to do so: It 25 28 SUPREME COURT. Smith et al. v. Condry. is thereupon now here considered, ordered, and adjudged, by this court, that this writ of error to the Circuit Court of the United States, for the district of Missouri, be and the same is hereby dismissed. Walter Smith, John Carter, William S. Nichols and others, survivors of Clement Smith, deceased, Plaintiffs in Error, v. Dennis Condry. When a collision of vessels occurs in an English port, the rights of the parties depend upon the provisions of the British statutes then in force ; and if doubts exist as to their true construction, this court will adopt that which is sanctioned by their own courts.¹ By the English statutes as interpreted in their courts, the master or owner of a vessel, trading to or from the port of Liverpool, is not answerable for damages occasioned by the fault of the pilot.² The actual damage sustained by the party at the time and place of injury, and not probable profits at the port of destination, ought to be the measure of value in damages, in cases of collision as well as in cases of insurance.³ By whose fault the accident happened, is a question of fact for the jury, to be decided by them upon the whole of the evidence. This case came up, by writ of. error, from the circuit court of the United States, for the District of Columbia, and was argued at January term, 1842. The court held it under a curia advisare vult, and pronounced their decision at the present term. The facts in the case were these: The plaintiffs in error, who were also plaintiffs in the court *9q-i below, were the owners of a vessel called the Francis -I Depau, *which was lying in the port of Liverpool, on the 15th day of February, 1838, loaded and ready for sea. The ¹ Applied. The John Bramall, 10 ⁸ Considered Overruled. The Ben., 503. Followed. The China, Morning Star, 4 Biss., 72. Relied 7 Wall., 64 ; The Halley, L. R., 2 Ad. on in dissenting opinion, Williamson &E.,3. Limited. The Avon, Brown v. Barrett, 13 How., 113. Cited. Adm., 181. Waring v. Clark, 5 How., 503 ; The ² For a further discussion of the Liv- Scotland, 15 Otto, 36. See The Amia- erpool Pilot Act, see The China, 7 ble Nancy, 3 Wheat, 560 ; The Ocean Wall., 53, where the rule under the Queen, 5 Blatchf., 493. New York statute is held to be that But the market value of the use of while the master is compelled by force the vessel during the time necessary to of the act to take a pilot, that fact make repairs may be recovered, Wil- does not exonerate the vessel from liamson v. Barrett, 13 How., 101. S. P. liability to respond for torts done by The Narragansett, 1 Blatchf., 211 , it, though the result wholly of the Olc., 388; The Rhode Island, 2 Blatchf. pilot’s negligence. See also Bussy n. 113 ; Olc., 505 ; The May flow er, Brown Donaldson, 4 Dall., 206, and the cases Adm., 376 ; Swift v. Brownell, 1 cited in the note ; also note on page Holmes, 467 ; 1 Pars. Maritime Law, 207. 204 n (2). 26 JANUARY TERM, 1843. 29 Smith et al. v. Condry. barque Tasso, owned by the defendant, in coming out of the docks, ran foul of the Francis Depau and occasioned considerable damage. A suit was brought in consequence, and upon the trial the verdict of the jury was for the defendant. The following bills of exception were taken by the plaintiffs, upon which the case was brought up. Plaintiffs’ first bill of exceptions: In the progress of this cause, the plaintiffs having offered evidence to prove that on the 15th of February, 1838, the barque Tasso, the property of defendant, in coming out of the dock at Liverpool, on her way to sea in the prosecution of her homeward voyage to the United States, ran foul of and occasioned damage to the Francis Depau, a ship belonging to plaintiffs, and inflicted damage and injury upon the vessel of the said plaintiffs; and having further given evidence tending to prove that said collision was the result of unskilful management on the part of the Tasso. The defendant gave in evidence the statutes of 37 Geo. 3, c. 78; 52 Geo. 3, c. 39, and 6 Geo. 4, c. 125; and further proved that there was on board the Tasso, at the time of her moving from the dock and until after said collision, a regularly licensed pilot of said port of Liverpool; that the said vessel was under the management and direction of said pilot, and that the directions and orders of said pilot were followed and obeyed on board said vessel, the Tasso; that the master of the Tasso was not on board her during the time of her moving from said dock into the river; and that such absence of the master was usual and customary on such occasions. The defendant upon said evidence prayed the court to instruct the jury, that by the true construction of the statutes of Great Britain, 37 Geo. 3, c. 78; 52 Geo. 3, c. 39, and the 6 Geo. 4, c. 125, produced on the trial, the defendant is not responsible to the plaintiffs in this action for any damage occasioned by the default, negligence, or unskilfulness of the pilot proved to have been on board the Tasso; which opinion the court gave as prayed, to which the plaintiffs, by their counsel, excepted. r*30 *Plaintiffs’ second bill of exceptions. In the trial of this cause the plaintiffs produced a competent witness, and offered to prove that the ship of the plaintiff, mentioned in the declaration, at the time of the injury complained of, was loaded with salt and ready to sail for the Georgetown market, and that if the ship had then sailed she would in due course have arrived in Georgetown (as was intended when her lading was taken in) in due time for the sale of the cargo at the fishing season of the Potomac river, when 27 30 SUPREME COURT. Smith et al. v. Condry. there is a great demand for salt; and that the loss occasioned by the injury in the delay of the vessel, preventing her arrival till after the fishing season, as she was compelled to unload and take in another cargo of salt, amounting to between 10 and 11 cents per bushel, making the loss in the whole cargo $2,101.20, and contended that they should be allowed to give this evidence and to recover damages for the said loss, estimating the salt by the price at Georgetown in the fishing season when the vessel would have arrived. But the court refused to allow the said evidence to be given by the plaintiffs, to which the plaintiffs, by their counsel, excepted. Plaintiffs’ third bill of exceptions. And the plaintiffs having, after the foregoing evidence, farther offered evidence to prove that it is the usage of vessels coming out of the docks of Liverpool into the river to have their anchors slung in a tackle ready to be thrust over the bows, and in a situation to be dropped immediately on passing through the lock connecting the dock with the basin, and be • fore passing from the latter into the river; that the anchor was not put over the bow nor attempted to be so done in the present case, on board the Tasso, until this vessel had passed into the river and was approaching the Francis Depau; and the defendant having offered in evidence the deposition of Frederick Lewis to prove that the Tasso, in passing from the basin through the piers thereof into the river had the said vessel in check by a hawser extending therefrom to one of the said piers, which hawser parted as the vessel cleared the pier head, and that the fish penant or tackle suspending the anchors of said vessel broke in the attempt to get them over the bow of the vessel as aforesaid, and they thereupon fell upon the deck of the vessel; and the plaintiffs having further offered 1 evidence by the pilot of the Francis Depau, to prove that J defendant’s *vessel appeared badly furnished, and that the mate thereof (the master being absent) at the time, declared that he had not a rope on board fit to hang a cat. And in a further trial of this cause, the plaintiffs, after the depositions for the plaintiffs and defendant were read, having offered evidence to show that in the management of a vessel when the fish tackle breaks, and it is important that the anchor should be thrown out, that it ought to be and can be accomplished in a short time by fixing another rope by a strop to the anchor and heaving it over the bows, and that such new fixture can be applied in a minute or two. And the defendant having offered the following prayer— “ That if the jury shall believe from the evidence that the 28. JANUARY TERM, 1843. 31 Smith et al. v. Condry. collision between the Tasso and the Francis Depau was occasioned by the breaking of her hawser and fish tackle, yet, from the said facts, the jury are not warranted in inferring that the said vessel, the Tasso, at the time of her sailing, was unseaworthy.” The court gave the instruction as prayed, to which the plaintiffs, by their counsel, excepted. And the plaintiffs then prayed the court to instruct the jury, that if they believed from the evidence that the collision took place as above stated, then such breaking of the said hawser and tackle is no excuse for the collision on the part of the defendants; which the court refused, to which refusal also the plaintiffs excepted. Mr. Chief Justice TANEY delivered the opinion of the court. This case arises from a collision in the port of Liverpool, between the barque Tasso, and the ship Francis Depau, in which the latter sustained considerable injury. The vessels were both Ame 'can; the Francis Depau being owned by the plaintiffs in error, and the Tasso by the defendant. It appears from the evidence, that at the time the accident happened, the Tasso was in charge of a regular pilot, leaving the Prince’s dock on her homeward voyage; and the Francis Depau was at anchor in the harbor, laden with salt, and ready to sail. And in order to prove that the injury arose from the unskilful management of the Tasso, the plaintiffs offered in evidence that it is the usage of vessels coming out of the docks of Liverpool into the river, to have their [-#99 anchors slung in tackle, ready to be *thrust over the bows, and in a situation to be dropped immediately on passing through the lock which connects the dock with the basin, and before passing from the latter into the river; and that the anchor of the Tasso was not put over the bow, nor was it attempted to be done, until she had passed into the river, and was approaching the Francis Depau. The defendant then offered testimony to show that in passing from the basin, between the piers into the river, the Tasso was held in check by a hawser fastened to one of the piers, but that the hawser broke just as the vessel cleared the pier head; and the pilot perceiving that she was approaching the plaintiffs’ ship, thereupon gave orders to get an anchor ready. The anchors were accordingly fixed as soon as possible, in the manner that is customary in going out of the port; and an attempt was made to get one of them over the side, but the tackle broke, and both anchors fell on deck, and the vessel struck the Francis Depau, and thereby occasioned the injury 29 32 SUPREME COURT. Smith et al. v. Condry. for which this suit is brought; that every thing was done on board the Tasso, according to the directions of the pilot, and every effort made to prevent the collision; but that it was blowing fresh, and the tide setting towards the plaintiff’s ship, and the Tasso would not mind her helm. To rebut this testimony, the plaintiff offered in evidence, by the pilot, that the defendant’s vessel appeared to be badly furnished, and that at the time the accident happened, the mate who had charge of her under the pilot, (the master being absent,) declared that he had not a rope on board fit to hang a cat; and further offered in evidence, that where the fish tackle breaks, and it is important that the anchor should be thrown out, it can be accomplished in a minute or two, by fixing another rope by a strop to the anchor, and heaving it over the bows. At the trial, several exceptions were taken by the plaintiffs to different instructions given by the court to the jury; and the verdict and judgment in the circuit court having been in favor of the defendant, the case has been brought here for revision by a writ of error sued out by the plaintiffs. We proceed to examine the directions excepted to, in the order in which they appear in the record. Upon the evidence above stated, the defendant asked the *qqi court to instruct the jury that under the statutes of J Great Britain, of *the 37 Geo. 3, c. 78; 52 Geo. 3, c. 39, and 6th of Geo. 4, c. 125, the defendant was not res ponsible for any damage occasioned by the default, negligence, or unskilfulness of the pilot. The court gave this instruction, and that is the subject of the first exception. The collision having taken place in the port of Liverpool, the rights of the parties depend upon the provisions of the British statutes, then in force; and if doubts exist as to their true construction, we must of course adopt that which is sanctioned by their own courts. The 52 Geo. 3, mentioned in this exception, is a general act for the regulation of pilots and pilotage, within the limits specified in the law, and requires the masters of vessels under a certain penalty to take a pilot, and provides that no owner or master shall be answerable for any loss or damage, nor be prevented from recovering on any contract of insurance, by reason of any default, or neglect on the part of the pilot. But this statute did not repeal the previous one of 37 Geo. 3, for the regulation of pilots conducting ships into and out of the port of Liverpool; and the last-mentioned law required the master to pay full pilotage to the first who should offer his services, whether he was employed or not. This act did not, 30 JANUARY TERM, 1843. 33 Smith et al. v. Condry. however, impose any penalty for refusal; and. contained no clause exempting the master and owner from liability for loss or damage arising from the default of the pilot, where one was taken on board. Upon these acts of Parliament, the Court of King’s Bench held, in the case of Caruthers v. Sydebotham, 4 Mau. & Sei., 77, that the master or owner of a vessel trading to and from the port of Liverpool, was not answerable for damages occasioned by the fault of the pilot. But in the case of the Attorney- Gren-eral v. Case, 3 Price, 302, the same question was discussed in the argument before the Court of Exchequer, and it appears to have been the opinion of that court, that the master and. owner were liable in the same manner as if the pilot had not been on board. The question, it is true, did not necessarily arise in the last-mentioned case, for the vessel was at anchor in the river Mersey when the disaster happened; and a vessel at anchor was not bound to have a pilot on board. If in that situation the master thought proper to employ one, the pilot was undoubtedly his agent, and consequently he was responsible for . his acts. But in *deciding the case, the court expressed their opinions on the two statutes of Geo. 3, before mentioned, in cases where pilots were required to be on board; and held that the provisions of the 52 Geo. 3, exempting masters and owners from liability, did not extend to cases embraced by the local pilot act for Liverpool, and strongly intimated that there was a distinction between the obligation to take a pilot under a penalty, and the obligation to pay full pilotage to the first that offered, whether he was taken or not. Since these decisions were made in the King’s Bench and Exchequer, the 37th Geo. 3 has been repealed by the 5th of Geo. 4, and the 52 Geo. 3 has been repealed by the general pilot act of the 6th of Geo. 4; and these two statutes of Geo. 4 were the laws in force at the time of the collision in question. But although some changes were made in the Liverpool pilot act in the first mentioned statute, and in the general pilot law by the second, yet in regard to the subject now under consideration, these two statutes are the same in substance with the preceding ones which they respectively repealed ; and the adjudged cases above mentioned apply with the same force to the question before us, as if they had been made since the passage of the acts of Geo. 4. Tn determining, however, the true construction of these acts of Parliament, we are not left to decide between the conflicting opinions of the King’s Bench and Court of Exchequer. The same question has since, on more than one occasion, 31 34 SUPREME COURT. Smith et al. v. Condry. arisen in the British Court of Admiralty, and the decision in the King’s Bench has been constantly sustained; and we presume it is now regarded as the settled construction of these pilot acts. Abb. on Ship. (Shee’s edit.), 184, n. (z) ; The Maria, 1 Rob. Adm., 95; The Protector, 1 Rob. Adm., 45; The Diana, 1 Rob. Adm. We think, therefore, that the' circuit court was right in the first instruction given to the jury. The second also is free from objection. The question there was as to the rule of damages in case the plaintiffs should show themselves entitled to a verdict. They offered to prove that if the ship had not been prevented from sailing by the injury complained of, she would in due course have arrived in Georgetown (as was intended when the lading was taken in) *ok-i in time for the sale of her cargo at the fishing season in J the Potomac river, when *there is a great demand for salt; that the injury delayed her, and prevented her arrival until the season was over, and thereby made a difference of ten or eleven cents per bushel in the value of the salt at her home port, and occasioned a loss upon the cargo of $2,101.20. The defendant objected to this testimony, and the court refused to admit it. It has been repeatedly decided in cases of insurance, that the insured cannot recover for the loss of probable profits at the port of destination, and that the value of the goods at the place of shipment is the measure of compensation. There can be no good reason for establishing a different rule in cases of loss by collision. It is the actual damage sustained by the party at the time and place of the injury that is the measure of damages. The third and last exception was taken to an instruction given upon the prayer of the defendant, and also to the refusal of the court to give a direction asked for by the plaintiffs. The defendant prayed the court to instruct the jury, that if they believed that the collision was occasioned by the breaking of the hawser and fish tackle, yet from those facts the jury were not warranted in inferring that the Tasso at the time of her sailing was unseaworthy; which direction the court gave. And thereupon the plaintiff prayed the court to instruct the jury, that if they believed the collision took place as above stated, then such breaking of the hawser and tackle is no excuse for it on the part of the defendant; and this direction the court refused to give. Now these two prayers involve the same principles, and are both liable to the' same objections. By whose fault the accident happened was a question of fact to be decided by the jury 32 JANUARY TERM, 1843. 35 Smith et al. v. Condry. upon the whole evidence before them. And the error in the prayer on the part of the plaintiffs, as well as that offered by the defendant, consists in this, that it sought to withdraw from the jury the decision of the fact, and asked the court to instruct them, as a matter of law, upon the sufficiency or insufficiency of certain evidence offered to prove it; and both prayers are still more objectionable because each of them asks the instruction upon a part only of the testimony, leaving out of view various other portions of it which the jury were bound to consider in forming their verdict. If the collision was the fault of the pilot alone, then the owners of the Tasso are not answerable. But if it was altogether *or in part caused by the misconduct, negligence, or L unskilfulness of the master or mariners, the owner is liable. And if the equipments and tackle were in this case insufficient, and not as strong and safe as those ordinarily used for such vessels in such cases, and thereby rendered the care and skill of the pilot unavailing, it was undoubtedly the fault of the master or owner; and is equally inexcusable as the omission to provide a competent crew. And it was for the jury upon the whole evidence to say whether it was the result of accident, arising from strong wind and tide, against which ordinary skill and care could not have guarded; or the fault of the pilot; or the misconduct, negligence, or unskilfulness of the crew; or the insufficiency of the hawser, ropes, or equipments with which the vessel was furnished. In the two first instances the owner of the Tasso is not answerable; in the two latter he is. The court, therefore, were right in refusing the direction asked for by the plaintiffs, but erred in giving the one before mentioned at the request of the defendants. And for this reason the judgment of the circuit court must be reversed. ORDER. 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 now here ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to award a venire facias de novo. Vol. i.—3 33 *37 SUPREME COURT. Mercers’ Lessee v. Selden. *Richard B. Alexander, Plaintiff in error, v. Moses Graham, Defendant in error. In error to the Circuit Court of the United States for the District of Columbia, in and for the county of Washington. The plaintiff in error having filed an order in writing, directing the clerk to dismiss this suit, it is thereupon now, here, considered, ordered, and adjudged by this court, that this writ of error be and the same is hereby dismissed with costs. Lessee of John Mercer, and Mary Scott Mercer, his wife, Plaintiffs in error, v. William Cary Selden, Defendant. The statute of limitation of Virginia, passed in 1785, barred the right of entry, unless suit was brought within twenty years next after the cause of action accrued. The savings are infancy, coverture, &c., and such persons are barred if they do not bring their action within ten years next after their disabilities shall be removed.¹ The circumstances Under which the defendant held in this particular case, constitute an adverse possession.’² Disabilities which bring a person within the exceptions of the statute cannot be piled one upon another; but a party, claiming the benefit of the proviso, can only avail himself of the disability existing when the right of action first accrued.³ The general rule of law is, that there must be an entry during coverture, to enable the husband to claim a tenancy by the curtesy.⁴ This case was brought up by writ of error from the Circuit Court of the United States for the eastern district of Virginia. The facts in the case are stated in the commencement of ¹ Followed. Hogan v. Kurtz, 4 3 Rich. (S. C.), 438; McFarland v. Otto, 779. Cited. DeMille. Moffat, Stone, 17 Vt., 165. 49 Mich., 130. But where there are two or more ² See Withers v. Jenkins, 14 So. Car., coexisting disabilities in the same per-612. son when his right of action accrues, ³ S. P. Thorp v. Raymond, 16How., he is not obliged to act until the last 247; Doe v. Barksdale, 2 Brock., 436; is removed. Sims v. Everhardt, 12 Den v. Richards, 3 Greene (N. J.), Otto, 310; 1 Morr. Tr., 18, citing this 347; Jackson y. Wheat, 18 Johns. (N. case. Y.), 40; Bradstreet v. Clarke, 12 ⁴ Otherwise as to wild lands, Davis Wend. (N.Y.), 602; Starke v. Starke, v.- Mason, 1 Pet., 503, 506; Barr v. Galloway, 1 McLean, 476. 34 JANUARY TERM, 18 43. 37 Mercer’s Lessee v. Selden, the opinion of the court, which the reader is requested to turn to and peruse, before referring to the sketch of the arguments of counsel. The decision of the court being made to rest entirely upon the statute of limitations, all those branches of the ar- r*oo gument relating *to the invalidity of the deed from b Selden and wife to Dr. Mackay, on account of its not having been read to her, and of a defect in its acknowledgment, are omitted. and Walter Jones, for the plaintiffs. Chapman Johnson, for defendant. On the part of the plaintiffs, it was argued: 1. That Mrs. Swann and her children were within the express exceptions of the statute; under the double disability of infancy and coverture. 2. That no disseisin or adverse possession is operated by any length of continued possession, however hostile may be the new pretence of title under which possession is held over, if the possession were not tortious at its inception, but in subordination to or consistent with the true title. 3. That this is especially true where a husband, who having rightfully come into possession jure uxoris, holds out possession against her heir after descent cast by her death; however hostile the claim and strong the color of exclusive title asserted for himself; and though the heir be sui juris, and in no nearer relation to husband and wife than simply as her heir at law. 4. That the intrusion, even of a mere stranger, on lands descended to an infant, constitutes the intruder, ipso facto, a fiduciary possessor, quasi guardian, subject both at law and in equity to all the duties and liabilities of such fiduciary possessor, and utterly incapable of converting his fiduciary possession into a disseisin or adverse possession. 5. Multo fortiore, when, as in this case, the heirs were not only infants, but united in their persons all the relations of his step-children, of co-heirs to his wife, and his wards; when the guardian care and conservation of all their rights of property and of possession had devolved, as a strict legal duty, on him ex officio. 6. That the right of action had never accrued when the infants had a right to sue, being restrained either by coverture or a tenancy by the curtesy. On the part of the defendant, it was argued, that none of the exceptions in the statute have any application to this case, but those in favor of infants and femes cover'. The right of 35 38 SUPREME COURT. Mercer’s Lessee v. Selden. entry of Mrs. Mercer’s mother, and of her uncle, John Page, *qqi accrued at the death of Mrs. Selden, in 1787; or, at the J latest, accrued to *John Page when he attained full age, prior to 1792, and to Mrs. Swann when she was married, in April, 1794. First, as to John Page. His disability of infancy being removed, and the guardianship account being settled in 1792, his right of entry, if any remained to him, certainly accrued as early as the 21st of December, 1792, when he was under no disability, and so he remained until his death in the year 1800. The statute having begun to run against him in his lifetime, runs over all subsequent disabilities. Adams Eject., 59; 2 Prest. Abst., 339; Blanch. Lim., 19, in the first vol. of the Law Library, 10; Jackson dem. Colden v. Moore, 13 Johns. (N. Y.), 513; Jackson dem. Livingston v. Robins, 15 Id., 169; Fitzhugh v. Anderson, 2 Hen. & M. (Va.), 306; Hudson v. Hudson's Adm., 6 Munf. (Va.), 355; Parson v. McCracken, 9 Leigh (Va.), 501, 507. Secondly, as to Mrs. Swann. Her right of entry accrued either when she was an infant and unmarried at the death of her mother, or when she was both an infant and a married woman, in April, 1794. Her disability of infancy ceased a few months after her marriage, and her disability of coverture ceased at her death, in 1812. But so far as regards her daughter, Mrs. Mercer, there has been a succession of disabilities from the death of Mrs. Selden to the present day. Can these disabilities be united so as to continue her protection ? The authorities relied upon to maintain the power of tacking disabilities, are Blanch. Lim., 19, 20, in 1 Law Lib., 10, 11; 2 Prest. Abst., 340 ; Cotterell v. Dutton, 4 Taunt., 826. But even Blanchard’s opinion is, that successive disabilities in different persons - cannot be connected; and Preston states that the later decisions are, that successive disabilities capnot be united, 2 vol., p. 341; and the following authorities prove that they cannot: Adams Eject., 60; 6 East, 80; approved in Tolson v. Kaye, 3 Brod. & B., 223, decided in Common Pleas, in 1822; Hager and wife v. Commonwealth, 4 Mass., 182; Grris-wold v. Butler, 3 Conn., 227; Floyd v. Johnson, 2 Litt. (Ky.), 114; Clay's heirs v. Miller, 3 T. B. Mon. (Ky.), 148; Thomp-*401 soⁿ v’ Smith, 7 Serg. & R. (Pa.), 209; Demarest and L *wife v. Winkoop, 3 Johns. (N. Y.), Ch., 129; Jackson v. Wheat, 18 Johns. (N. Y.), 40; Jackson v. Johnson, 5 Cow. (N. Y.), 74; Bradstreet v. Clarke, 12 Wend. (N. Y.), 602; 36 JANUARY TERM, 1843. 40 Mercer’s Lessee v. Selden. Doe dem. Lewis v. Barksdale^ 2 Brock., 436; Parsons v. McCracken, 9 Leigh (Va.), 495. In the last case Judge Parker cites the case of Swann v. Selden, as authority for the same proposition, it having been recognized by Judges Cabell and Brockenborough. If the plaintiffs are not within the exceptions to the statute, then the question is, whether, supposing them to be under no disability, they are within the principle of the statute; or, in other words, has there been an actual adversary possession in the defendant, and those under whom he claims, for fifteen years before bringing this suit? Here it must be remembered that we are trying this question, not upon the testimony of witnesses, not upon the evidence of facts from which other facts may be inferred, but upon a special verdict finding all the facts, and leaving to the decision of the court the naked question of law, whether these facts constitute a possession which the statute of limitations will protect. In Bradstreet v. Huntingdon, 5 Pet., 402, it is said, “ Adverse possession is a legal idea, admits of a legal definition, and is therefore a question of law.” Taylor dem. Atkyns v. Horde, 1 Burr., 60, was upon a special verdict finding the facts, and referring the law to the court; and in that case it being ascertained that- the plaintiff’s right of action had accrued more than twenty years before the bringing of the suit, he was regarded as having the onus thrown upon him of showing why he had not sooner entered. This case is reported also in Cowp., 689, and 6 Bro. P. C., 633; it is also stated in 3 Cruise Dig., title 31, c. 2 and 33. In this case (Taylor v. Horde), the verdict did not find that the possession was adversary; but it found the facts upon which the court pronounced that the plaintiff’s title was barred by the statute. The case seems to have been briefly this. There was tenant in tail with power to make leases for lives, and with remainder in tail to the right heirs of the grantor. The tenant in tail made leases for three lives, and afterwards suffered a common recovery with a view of barring the entail, and cutting off the remainders limited thereupon. The [-^4-. person entitled to the remainder *in fee died, having L devised it to the lessor of the plaintiff. The tenant in tail afterwards died in the year 1711 without issue, and his heir, claiming under the common recovery, entered, and he and those claiming under him continued to hold the land till the year 1753. The survivor of the three lessees for life died in 1752, and then the devisee of the remainderman in fee entered and made the lease on which the action was brought. The defendants defended themselves upon two grounds: 1st, 37 41 SUPREME COURT. Mercer’s Lessee v. Selden. that the common recovery had barred the remainder in fee; and 2d, that if it had not, the statute of limitations had barred the entry of the plaintiff. The plaintiff insisted that the common recovery was void for want of a proper tenant to the praecipe, and so the court held. The plaintiff also insisted that his right of action did not accrue till the death of the surviving lessee for life, so that there was no bar of his entry; but the court held that the lease for lives was void, so that the plaintiff’s right of entry accrued in 1711, and was barred by the statute. This judgment of K. B. was affirmed in House of Lords. La Trombois v. Jackson, 8 Cow. (N. Y.), 589, was also a case of a special verdict, finding the facts, which the court held to amount to an adverse possession. The facts which, in the opinion of the court, constituted an adverse possession in the defendant were, long possession under a contract for a future conveyance from a person not shown to have had any title, improvement and cultivation. His long possession and enjoyment of the property, claiming it as his own, was held sufficient. The fact of possession, and the quo animo it was commenced and continued, were regarded as the tests of adversary possession. See page 609. Clay v. Ransome, 1 Munf. (Va.), 454, was the case of a special verdict finding possession in the defendant. Held that the defendant would have been protected if it had been found with certainty that such possession had continued twenty years, besides the five years and one hundred and seventy-four days, included by the act of Assembly on account of the war; and this being left uncertain, a venire de novo was awarded. Let us examine what there is in our case which should make the possession of Dr. Selden and his son fiduciary. Shall fraud or trust be imputed to its origin ? Both these *421 grounds have been fully investigated in the Court of -I Chancery, *and both repudiated by the final decree of that court, affirmed by the Court of Appeals. But if they could be resorted to here, then the statute would run against the fraud from the time it was discovered, and would run in favor of the trustee from the time that the trust was openly repudiated. As to fraud, see Wamburzee v. Kennedy, 4 Desauss, (S. C.), 479; Sweaty. Arrington, 2 Hayw. (N. C.), 129; Thompson v. Blair, 3 Murph. (N. C.), 583; Van Rhyn v. Vincent, 1 McCord (S. C.), Ch. 314. As to trust. It is held that time will bar even an express voluntary trust, beginning to run from the period of its known 38 JANUARY TERM, 1843. 42 Mercers’ Lessee v. Selden. disavowal. See Blanch. Lim., 75, 1 Law Library, 39; Pipher v. Lodge, 4 Serg. & R. (Pa.), 310; Boone v. Chiles, 10 Pet., 223; citing Willison v. Watkins, 3 Pet., 52; Kane v. Bloodgood, 7 Johns. (N. Y.), Ch., 122; Hovenden v. Lord Annesley, 2 Sch. & L., 607, 636, 638. And as to constructive trusts, see the same case of Boone v. Chiles, 10 Pet., 223, where it is said, “ Though time does not bar a direct trust as between a trustee and cestui que trust till it is disavowed, yet where a constructive trust is made out in equity, time protects the trustee, though his conduct was originally fraudulent, and his purchase would have been repudiated for fraud.” Citing for this, Andrew v. Wrigley, 4 Bro. Ch. C., 138; Beckford v. Wade, 17 Ves., 97; Townsend y. Townsend, 1 Bro. Ch. C., 554. So the court of appeals of Virginia, in the case of Harrison v. Harrison, 1 Call, 428, holds this language: “ The act of limitation does not run in favor of trustees, so long as the confidence may be fairly presumed to continue; but it runs both at law and in equity in favor of disseisors and tort-feisors having adverse possession.” So, though it is said in some cases in Johnson’s Reports, cited on the part of the plaintiffs, that the adversary possession, to constitute a bar, must have been hostile in its inception, and so continued for twenty years; yet this phrase, “ hostile in its inception,” does not relate to the original entry of the defendant, but to the act by which the possession became adversary; in other words, whether the possession was originally hostile or not, it must have been hostile twenty years ago, and have continued so ever since. See Jackson v. Brink, 5 Cow. (N. Y.), 483. f*43 *Shall the defendant be treated as tenant for life L holding over, so as to make him tenant by sufferance ? This is repelled by special verdict, which finds that he held under claim of title, and took the rents and profits to his own use. But an express and acknowledged tenancy, as soon as the tenancy is disavowed and the right of the landlord openly denied, will become adversary. See Willison v. Watkins, 3 Pet., 49; Peyton v. Stith, 5 Pet., 485. Cited, 1 Pet. Dig., p. 148, pl. 32; also the pertinent case, Doe dem. Parker v. Gregory, 4 Nev. & M., 308. Husband in possession, in right of his wife, held over after her death, for more than twenty years; there being no evidence to show under what right he held or claimed to hold after her death, this possession barred the wife’s heirs in ejectment. Shall he be regarded as one entering under a void title, so that his possession would be regarded as subordinate to the title of the legal owner ? 39 43 SUPREME COURT. Mercers’* Lessee v. Selden. The special verdict ascertains that the fact is not so. For however ineffectual in law the conveyances may be to pass the legal title of Mrs. Selden, yet Dr. Selden did not enter under her deed, but under the deeds of Robert Mackay and Cary Selden, which, though they might not have conveyed a good title, are not void in law. Under this head the plaintiffs may rely upon the cases of Jackson n. Waters, 12 Johns. (N. Y.), 365; Jackson n. Cairns, 20 Id., 301; also, perhaps, on some other cases referred to in Adams on Ejectment, Appendix A, p. 464—468. After the decision of Jackson v. Waters, by the Supreme Court of New York, the case of Jackson v. La Trom-bois came before the same court, in respect to the same title, but between different parties. The Supreme Court thought the case not distinguishable from Jackson n. Waters, and held, accordingly, that the possession of the defendant was not adversary. But this last case coming before the Court of Errors of New York under the style of La Trombois v. Jackson, 8 Cow., 589, the judgment of the supreme court was unanimously reversed. The Court of Errors thought the case very distinguishable from Jackson n. Waters, which they did not profess to overrule; but the opinions of the judges on the doctrine of adversary possession produce the impression that they would have decided Jackson v. Waters differently. *.. But these cases furnish no warrant for the proposition -• that a *possession commencing under a void title may not become adversary. The case in 12 Johnson, Jackson n. Waters, repudiates all claim under the grant of the French Canadian government, as a government altogether foreign to the colonial government of New York; so as to liken the possession of one claiming under such a grant to the possession of one without claim—upon the ground that such a grant was notoriously void, and so known to be by the person in possession under it. But the possession in that case was manifestly such as not to have created a bar, even if it had been adversary, and there is a strong intimation that it might have been ripened into a complete bar to the action. Jackson n. Cairns, 20 Johns. (N. Y.), was the case of a conveyance in fee of the wife’s lands by deed of husband and wife, not executed by the wife so as to be obligatory upon her, and an immediate re-conveyance of the property to the husband in fee. The husband thenceforward claimed the land as his own, and mortgaged it for the payment of his debts. The wife died in 1795, having had issue by the marriage, and afterwards the husband died in 1802. His son and heir took possession, and made another mortgage upon the lands. The mortgage made 40 JANUARY TERM, 1843. 44 Mercers’ Lessee v. Selden. by the husband was foreclosed in 1805, and under the decree of foreclosure, sold to Cairns, who held possession under the purchase till the heir of the wife brought his action of ejectment in 1817. The court held that as the original conveyance was void as to the wife, it could be regarded as the conveyance of the husband alone; that under the statute 32 Henry 8, and a similar statute in New York, the conveyance of the husband and wife operated to convey only his interest in the estate; that is, his tenancy by the curtesy, and produced no discontinuance of his wife’s estate; that the re-conveyance to him operated only to re-vest him with his former estate. That, in like manner, the mortgage produced no discontinuance of his wife’s estate; so that, after her death, his possession was that of tenant by the curtesy. The title of his wife’s heir to the possession had not yet accrued, and his possession could not be adversary to the heir. They intimated an opinion that the mortgage by his heir did not render the possession adversary, but did not decide this point, as it was unnecessary. They consider the possession as becoming adversary at *the time of Cairn’s purchase in 1805. But this was L within the period of limitation; they therefore held that the action was not barred. Here it is obvious that the right of entry never accrued to the wife’s heirs until the death of the husband, who had good title as tenant by the curtesy; and as but fifteen years had elapsed after the right of entry had accrued, the statute presented no bar. But we maintain that the doctrine which assumes that possession, commencing under a void title, cannot become adversary and be protected by the statute, is in conflict with the principle of the statute and all the authorities. The principle of the statute is to quiet possessions, and to protect tenants, after a reasonable length of time, from the necessity of exhibiting any title whatever. The following considerations and cases are illustrative of the policy of the statute of limitations, and the favor with which it is regarded by the courts. 1. The statute of limitations has been emphatically called a statute of repose, &c. Beatty’s Adm. v. Burners Adm., 8 Cranch, 98; 3 Cond. R., 51. 2. The statutes of limitation ought not to be viewed in an unfavorable light, as an unjust or discreditable defence, but should receive such support from the courts as would make it what it was intended to be, a statute of repose. It is a just and beneficial law, &c. Bell v. Morrison, 1 Pet., 360. 3. “ Of late years the courts of England and in this country 41 45 SUPREME COURT. Mercers’ Lessee v. Selden. 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 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.” McClung v. Silliman, 3 Pet., 270. 4. “ Statutes of limitation have been emphatically and justly denominated statutes of repose. The best interests of society require that causes of action should not be deferred an unreasonable time. This remark is peculiarly applicable to land titles. Nothing so much retards the growth or J prosperity of a country *as insecurity of titles to real estate. Labor is paralyzed when the enjoyment of its fruits is • uncertain; and litigation without limit produces ruinous consequences to individuals.” The court therefore approves the Kentucky statutes of limitation. Bradstreet v. Huntington, 5 Pet., 407. 5. “From as early a date as the year 1705, Virginia has never been without an adt of limitation; and no class of laws is more universally sanctioned by the practice of nations and the consent of mankind, than those laws which give peace and confidence to the actual possessor and tiller of the soil,” &c. Hawkins et al. v. Barney's lessee, 5 Pet., 457. The courts of Kentucky approved, even her “ seven years law; ” same case. And among English cases, see the modern one of Tolson v. Kaye, 3 Brod. & B., 217, decided in Common Pleas, in 1822. t The case of Taylor v. Horde, already cited, is an authority to prove that possession held under a void common recovery was protected by the statute of limitations. In Smith v. Bentis, 9 Johns. (N. Y.), 180, Spencer, delivering the opinion of the court, said: “ It has never been considered as necessary to constitute an adverse possession that there should be a rightful title. Whenever this defence is set up, the idea of right is excluded; the fact of possession and the quo animo it was commenced or continued are the only tests, and it must necessarily be exclusive of all other rights.” In Smith v. Lorillard, 10 Johns. (N. Y.), 356, C. J. Kent said, in delivering the opinion of the court, that “ after a continued possession for twenty years under pretence or claim of right, the actual possession ripens into a right of possession, which will toll an entry.” See also La Trombois v. Jackson, 8 Cow. (N. Y.), 589, especially the opinions of Jones, (Chan-42 JANUARY TERM, 1843. 46 Mercers’ Lessee v. Selden. cellor,) p. 602, 603; and Spencer, p. 609—611, citing Jackson v. Wheat, 18 Johns. (N. Y.), 44; Jackson v. Newton, Id., 355; Jackson v. Woodruff, 1 Cow. (N. Y.), 286. In Jackson v. Newton, 18 Johns. (N. Y.), 355, the possession of the defendant was held under a defective deed, a deed without a seal, which, therefore, passed no title, yet was considered adverse, and having continued for twenty years, barred the plaintiff’s entry. Ewing v. Burnett, 8 Pet., 41, holds that adverse possession *of twenty-one years under claim or color of title [-*47 merely void, is a bar to a recovery under an elder title L by deed, although the adverse holder may have had notice of the deed. This was the case of an unenclosed lot in Cincinnati. Harpending y. The Dutch Church, 16 Pet., 455, held that the title of a devisee, entering under a void devise, may be protected against the heirs by the statute of limitations. See also Hudson v. Hudson's Adm., 6 Munf. (Va.), 355, and 5 Pet., 354; also Patton's lessee v. Easton, 1 Wheat., 479. Lastly, shall Dr. Selden be regarded as having entered as guardian, and therefore holding in subordination to the title of his wards ? This fact is also repudiated by the special verdict, which finds that he entered in his own right; and by the decree of the Court of Chancery, which has rejected all claims against him as guardian. But if he did enter as guardian, that guardianship has been long since terminated and the accounts finally settled. There is no authority to prove that a guardian will not be protected by the statute of limitations after his guardianship has terminated. On the contrary, Littleton, sect. 124; Co. Litt., 896, 90 a; Cro. Car., 229; Cro. Jac., 219; which show that the guardian, whether de jure or de facto, whether proprius tutor or alienus tutor, is liable to the action of account on the part of his ward, show necessarily that he is entitled to the protection of the statute, because the action of account is expressly limited by the statute. It was so by the statute of James, and is so by that of Virginia. So too, in equity, where the guardian is held to account for rents and profits, the court will lay hold of “ any such thing ” as a waiver of the account after the infant came of age, to put an end to the claim. Morgan v. Morgan, 1 Atk., 489. Why should not the possession of a former guardian under a claim of right in himself, and a long and notorious application of the profits to his own use, as effectually disseise his, former wards, and entitle him to the protection of the statute, 43 47 SUPREME COURT. Mercers’ Lessee d. Selden. as the possession of a tenant in common, joint tenant, or coparcener, denying the right of his co-tenant, and applying the profits to his own use, would disseise his co-tenant, and entitle the disseisor to the protection of the statute of limitations? See Adams Eject., 56 ; *Blanch. Lim., 9, 1 Law. Lib., J 5; Fisher v. Prosser, Cowp., 218; Doe. Dem. Stellings v. Bird, 11 East., 50. The case of Swann v. Selden, in the Court of Appeals, has decided the very question we are now considering. The opinions of Judges Brockenborough and Cabell, constituting the majority of the court, have held that the statute was a complete bar to all the equitable claims preferred in that cause. The case is not reported, but adduced in manuscript. The opinion of the court was delivered by Mr. Justice McLEAN. This case is brought before this court, from the Circuit Court of the eastern district of Virginia, by a writ of error. An action of ejectment was commenced by the lessors of the plaintiff, to recover possession of certain undivided interests in a tract of land in Loudon county. On the trial, the jury found a statement of facts, on which the questions of law mainly arise. Mary Mason Selden was seised and possessed in fee simple of certain tracts of land in the county of Loudon, estimated to contain four thousand acres, a part of which is the land in controversy. She intermarried with Mann Page, who died in 1779, leaving his wife and three infant children, John, William Byrd, and Jane Byrd. Mrs. Page continued a widow, seised in her own right, until 1782, when she married Wilson Cary Selden; who in right of his wife entered upon and held the lands. Soon after the marriage, Selden became guardian of the three infant children aforesaid, gave bonds, &c., and continued to act as guardian during the minorities of the two sons, and until the marriage of the daughter. On the 22d December, 1784, Selden and wife conveyed in fee simple to Cary Selden, father of the husband, the whole of the four thousand acres of land, with the exception of two thousand acres deeded to W. B. Page. Mrs. Selden was privily examined as the statute requires. This deed was acknowledged and recorded by Selden the 14th April, 1818, long after the decease of the grantee. On the 1st January, 1785, Cary Selden and wife re-conveyed the land, with the exception above stated, to Wilson C. Selden; which deed was also recorded the 14th April, 1818. Selden and wife, previously to the execution of the above 44 JANUARY TERM, 1843. *49 Mercers’ Lessee v. Selden. *deed to Cary Selden, made a deed to William Byrd Page, son of Mrs. Selden by her first marriage, for two thousand acres, part of the above tract of four thousand acres; which deed was never recorded and cannot now be found. From the time of their marriage, Selden and wife had their permanent dwelling in the county of Gloucester, until they removed to the county of Elizabeth City, where they established their residence. In September, 1787, Mrs. Selden, being in a low state of health, accompanied by her husband on a return from the Springs, was taken extremely ill at Winchester, in Frederick county, Virginia, where she died on the 17th of that month. Two days previous to her death Mrs. Selden, with her husband, executed a second deed to William Byrd Page, for two thousand acres by certain metes and bounds, and also a deed to Doct. Robert Mackay for two thousand acres, being the residue of the four thousand acres in Loudon aforesaid. On the 17th, it being the day of her decease, the privy examination of Mrs. Selden was taken to the above deeds, by three justices of the peace of Frederick county, under a commission issued by the clerk of Loudon county. Selden, on the 8th October, 1787, acknowledged the above deeds, and they were ordered to be recorded. On the 17th September aforesaid, and after the decease of Mrs. Selden, Mackay re-conveyed the land conveyed to him as above stated, to Wilson C. Selden. This deed was recorded the 8th October ensuing. From the time of his marriage to the decease of Mrs. Selden, Selden, in right of his wife, held possession of the premises in controversy.’ After her death he continued to hold possession, taking the rents, issues, and profits for his own use; claiming the land under the above deed. In 1818, when ihe legal sufficiency of that deed was questioned, he caused the deeds to and from his father to be recorded, as above stated, and so continued to claim the premises under both deeds, and to exercise acts of ownership over the land until his death, in 1835. Between the years 1798 and 1812, Selden sold, conveyed and delivered possession to different persons, and among others to Thomas Swann, who had intermarried with Jane Byrd Page, various parcels of the land. In April, 1794, Jane Byrd Page with the consent of her guardian, she being under twenty-one years of age, mar- r*cn lied *Thomas Swann; and died the 31st of October, 1812, leaving seven infant children, her heirs at law. Among others, Mary Scott, one of the lessors of the plaintiff, who, in June, 1818, being under twenty-one years of age, intermarried with John Mercer, one of the lessors of the plaintiff. In 1796, 45 50 SUPREME COURT. Mercers’ Lessee v. Selden. having received from Selden <£640, Thomas Swann executed a receipt, fully discharging him as guardian. John Page, the eldest son of Mrs. Selden, died in 1800, having devised all his estate, real and personal, after the death of his widow, Elizabeth K. Page, to two of the children of his brother William Byrd Page, to wit: William B. Page and Mary M. Page, and to three of the children of his sister, Jane B. Swann, to wit: Edward, Mary, and Thomas, as tenants in common. Edward and Thomas died intestate, and without issue. Mary intermarried as above stated with John Mercer. After John Page, the above testator, had attained full age, on the 21st of December, 1792, he settled with Selden, his guardian, and executed to him a release from all demands. Thomas Swann, surviving his wife, conveyed by deed duly executed all his interest in the premises to his surviving children. After William Byrd Page had attained full age, he made a claim against Selden, on account of inequality in the partition of the aforesaid four thousand acres of land, which claim was finally adjusted by the payment of one thousand pounds, and the purchase of five hundred acres of his land by Selden. And afterwards, on the 23d July, 1794, Page, having received full satisfaction from Selden as guardian, executed to him a release, &c. From the death of Wilson Cary Selden up to the present time, the defendant, his son, has held the actual possession of the premises in dispute, claiming the same as his own, under the will of his father. On the 6th December, 1819, the lessors of the plaintiff, claiming as heirs of Mrs. Swann, with others, instituted their suit in the Superior Court of Chancery held at Winchester, . against Wilson Cary Selden and others, claiming the lands how in controversy, upon certain defects in the conveyances under which Selden claimed, and upon alleged equities. Answers were filed, and upon the final hearing in October, 1830, a decree was pronounced, whereby the court, “disclaiming *^1-, jurisdiction of the alleged imperfections in the convey- -* ances aforesaid, but taking jurisdiction *of the matters of equity, adjudged and decreed that the plaintiffs’ bill should be dismissed with costs, but without prejudice to any suit at law which the plaintiffs might be advised to prosecute on account of the alleged legal defects, or want of validity in the said deeds.” This decree, on an appeal to the supreme Court of appeals, was affirmed the 17th of April, 1837. This cause has been ably and elaborately argued. Some points have been made and illustrated with great research and 46 JANUARY TERM, 1843. 51 Mercers’ Lessee v. Selden. ingenuity, which, from the view taken of the ca se by the court, are not essentially involved in the decision. Among these are the construction of the statutes under which the deed from Selden and wife to Cary Selden, in 1784, was executed and recorded; and also the deed from Selden and wife to Mackay, in 1787. . We will consider the case in reference to the statute of limitations. The statute of 1785 bars the right of entry, unless suit be brought within twenty years next after the cause of action accrues. The savings are “ infancy, coverture, non compos mentis, imprisonment, or not being within the commonwealth at the time the right of action accrued.” And such persons are barred if they do not bring their action within ten years next after their disabilities shall be removed. Selden took possession of the premises in controversy, claiming them as his own under the deed from Mackay, in the fall of 1787. Prior to that time, his possession was in right of his wife. Under the deed from Mackay his possession was adverse to the right of the lessors of the plaintiff. He avowed his ownership by placing the deed upon record, by enjoying the profits of the land, and by selling and conveying different parcels of it. In no sense can he be considered as holding possession, in virtue of his rights as guardian of the heirs of his deceased wife, or as tenant by the curtesy. The right under which he held possession during the life of his wife terminated at her death, there being no issue of the marriage. From this time he possessed and claimed the premises as his own. This was notorious to the public, and especially to the heirs of his wife. John Page, in his lifetime, settled with Selden as guardian, and executed to him a release of all demands. William Byrd Page received from him one thousand pounds, the esti- p™ mated difference in value between *the part of the four *-thousand acres conveyed to him over that which was conveyed to Page. Thomas Swann, the husband of Jane Byrd Page, actually purchased from Selden a part of the land conveyed to him by Mackay. Swann, at the time of the purchase, was a highly respectable lawyer, and not only knew that Selden claimed the land adversely, but he recognized the validity of such claim by the purchase. Until his death in 1835, Selden continued in possession of the premises, and his son, the defendant, still holds the same adversely under his father’s will. From these facts it is clear that the lessors of the plaintiff are barred by the statute, unless they shall bring themselves within its exceptions. 47 52 SUPREME COURT. Mercers’ Lessee v. Selden. The right of action accrued in 1787. At that time Jane Byrd Page, being an infant, was within the exception of the statute, and it is insisted that her marriage with Swann befoie she was twenty-one years of age, added to her first disability that of coverture. Mr. Preston, in his abstracts, (2d vol., 339,) says, “ If the right accrues to a person who is at that time under a disability, the fine will not begin to run against him till he shall be free from disability; and successive disabilities, without any intermission, will continue to him a protection against being barred by nonclaim: but any cessation of disability will call the statute into operative force, and no subsequent disability will arrest the bar produced by the statute.” The saving in the Virginia statute is the same as that of the 21st of Jac. 1, but it has received in this country a different construction from that stated by Mr. Preston. In Parsons n. McCracken and wife, 9 Leigh (Va.), 495, Mr. Justice Parker says, speaking of this statute, “ I am of opinion that cumulative disabilities ought not to prevent its operation; and that upon a sound construction of the act, a party claiming the benefit of the proviso can only avail himself of the disability existing when the right of action first accrued; since, otherwise, the assertion of claims might be postponed for the period of the longest life, and possessions disturbed after sixty, eighty, or even a hundred years.” In that case, as in the one under consideration, the female in whom the right vested, married before the disability of infancy had ceased. -* *In the same case Mr. Justice Brockenborough says, “ If she married after she became of age, her subsequent coverture was not a disability which would obstruct the operation of the statute; and even if she married while yet an infant, we cannot mount one disability on another so as to prevent a continuous obstruction to its operation.” Mr. Justice Tucker says, “It is true that Rebecca was an infant, but she came of age in 1824, when her disability ceased; for, notwithstanding some loose opinions to the contrary, she cannot tack the disability of marriage to that of infancy.” The same doctrine was recognized by the Court of Appeals, in the chancery case lately decided in that court, between the parties now before us. The same principle is sanctioned 2 Hen. & M. (Va.), 306; and in Eager and wife n. Commonwealth,^ Mass., 182; Jackson v. Wheat, 18 Johns. (N. Y.), 40; Demarest v. Wynkoop, 3 Johns. (N. Y.) Ch., 129. Chancellor Kent says, in the last case cited, “ I am clearly of opinion, that the party can only avail himself of the disabilities existing when the right of action first accrued.” In 1 48 JANUARY TERM, 1843. 53 Mercers’ Lessee v. Selden. Plowd., 375, it is laid down that, “if several disabilities exist together at the time the right of action accrues, the statute does not begin to run until the party has survived them all.” In Doe v. Jesson, 6 East, 80, it was held that cumulative disabilities in different persons could not be added. At the time of her marriage, in April, 1794, Mrs. Swann wanted about three months of being of full age. Of course, in July ensuing, she was of age, from which time the statute began to operate, and in twenty years would have barred her right of entry, had she survived. But her death in 1812 arrested the operation of the statute, and gave her heirs ten years within which to bring their action. The proviso in the statute, after enumerating the exceptions, among which are infancy and coverture, declares that “ every such person, and his or her heirs, shall and may, notwithstanding the said twenty years are, or shall be expired, bring and maintain his action, or make his entry, within ten years next after such disabilities removed, or the death of the person so disabled, and not afterwards.” By the settled construction of this proviso, the heir has ten years to bring his action, where his ancestor is not barred. This *time is given him without reference to the time that has elapsed or the disabilities of his ancestor, if the right of entry has not been tolled. But it is insisted that the right of entry did not devolve on the heirs of Mrs. Swann at her decease, as her husband became tenant by the curtesy. In 1 Coke on Litt., 29, c. 4, sect. 35, it is said, “ Tenant by the curtesy of England is, where a man taketh a wife seised in fee simple, or in fee tail general, or seised as heir in tail special, and hath issue by the same wife, male or female, born alive, albeit the issue after dieth or liveth, yet if the wife dies, the husband shall hold the land during his life, by the laws of England.” “And first, of what seisin a man shall be tenant by the curtesy. There is in law a twofold seisin, viz., a seisin in deed and a seisin in law. And here Littleton intendeth a seisin in deed, if it may be attained unto, as if a man dieth seised of lands in fee simple, or fee tail general, and these lands descend to his daughter, and she taketh a husband and hath issue, and dieth before any entry, the husband shall not be tenant by the curtesy; and yet in this case she had a seisin m law; but if she or her husband had during her life entered, he should have been tenant by the curtesy.” The wife at common law was endowable where there had been no actual possession, and the reason is, that during cov- Vol. i.—4 49 54 SUPREME COURT. Mercers’ Lessee ®. Selden. erture she could not take possession of the lands of her husband. But actual seisin was necessary to enable the husband to claim as tenant by the curtesy. This rule was not inflexible. It yielded to circumstances, as in the case of an advow-son, or rent, or where an entry was prevented by force. Litt., §. 417, 418. In like manner, if a man have a title of entry into lands, but does not enter for fear of bodily harm, and he • approach as near the land as he dare, and claim the land as his own, he hath presently, by such claim, a possession and seisin in the land, as if he had entered in deed. Litt., §. 419. And, under some circumstances, living within view of the land will give the feoffee a seisin in deed, as fully as if he had made an entry. It has been held that the husband may claim as tenant by the curtesy, without entry, wild lands of which his wife was seised, and which were not held adversely. J But the general rule of law is, that *there must be an entry during coverture, to enable the husband to claim by the curtesy. At no time during the life of Mrs. Swann, does it appear that there was an entry upon the premises in controversy by herself or her husband. On the contrary, it appears the defendant and his ancestor held the land adversely. It is clear, therefore, that Swann could not claim as tenant by the curtesy, and consequently no such right could interpose to prevent the entry of the heirs of his wife. They were bound, without regard to their infancy or other disabilities, to bring their action in ten years from the decease of their ancestor. This results from the fact, that the right of action accrued in the lifetime of their ancestor, and the rule of law, which does not admit of cumulative disabilities. By the same principles, the devisees of John Page, who died in 1800, are also barred. The statute also bars the right of entry in William Byrd Page. From this view of the case, it can scarcely be necessary to notice the bill of exceptions taken on the trial by the plaintiff. So far as evidence was offered to disprove the consideration named in the deed to Mackay, with the view of rendering it invalid, the evidence was properly rejected. And so far as regards the circumstances which the plaintiff offered to prove, they could have no other, if any effect, than to create a suspicion of unfairness or fraud in the execution of the deed. All matters of fraud and trust arising out of this transaction were considered and decided in the case in equity lately brought before the Court of Appeals of Virginia, by the parties to the present suit. If that jurisdiction were rightfully exercised, it 50 JANUARY TERM, 1843. 55 Buchannon et al. v. Upshaw. concludes all questions of fraud in this case. Upon the whole, we affirm the judgment of the Circuit Court. ORDER. 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 Virginia, and was argued by counsel. On consideration whereof, it is now here 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. *John Buchannon and others, Complainants, v. Edwin Upshaw, Respondent. (Mr. Chief Justice Taney did not sit in this cause.) There were two titles to a tract of land, the senior title held by Upshaw, and the junior by Buckner, both derived from the same person who had sold to both. Buckner soon afterwards sold to Buchannon, who paid Buckner and took possession. Upshaw subsequently agreed to ratify the sale from the original holder to Buckner, upon receiving an assignment of Buckner’s bond for the purchase money, not yet due, and other securities. The bond not being paid, Upshaw brought an ejectment and obtained a judgment. Buckner’s assignees filed a bill to obtain a perpetual injunction. Held: That there was a privity of contract between them and Upshaw, and a perpetual injunction should be granted upon their fulfilling the obligations of Buckner, their assignor ; it was not their duty, under the circumstances, to have tendered the money to Upshaw.¹ A power in Buckner to resell, and a sale made under that power, prior to Upshaw’s giving his assent to the sale from the original holder to Buckner himself, did not extinguish the equitable right of Upshaw to receive the purchase money, or to proceed against the land. Upshaw’s right was not destroyed by lapse of time, because he had brought suit on Buckner’s bond and the other securities, and was not in a condition for a long time to make a valid title. Upshaw, being held bound by his assent to the sale to Buckner, is entitled to the advantage which that paper gave him as to the application of part of the purchase money to one purchase in preference to another. Interest must begin to run from the time when Upshaw asserted his claim to the land, and what is due to Upshaw must be made up by the present holders of the land, each one contributing in proportion to the price which he paid to Buckner. This was an appeal from the Circuit Court of the United States for the district of Ohio, sitting as a court of chancery. The case was this: John Buchannon and others filed a bill in the Circuit Court ¹ See Kimball v. West, 15 Wall., 379. 51 “56 SUPREME COURT. Buchannon et al. v. Upshaw. of Ohio against Upshaw, stating that Upshaw had obtained a judgment in an action of ejectment against them, and praying for two things: 1. That he, Upshaw, might be perpetually enjoined from proceeding in execution upon said judgment; *,-7-1 and, 2. That he might be compelled to convey by deed -J in fee simple, the land *which had been the subject of the suit in ejectment. The Circuit Court, after various proceedings, decreed that the injunction which had been tempo ■ rarily granted, restraining Upshaw from suing out executions upon his judgment in ejectment, should be dissolved; that the bill should be dismissed, and that Buchannon and others should pay to Upshaw a certain sum of money for the rents and profits, after deducting the value of the improvements made upon the land. From this decree an appeal was taken to this court. On the 11th of December, 1789, Beverly Roy obtained from the commonwealth of Virginia a patent for one thousand acres of land in the Virginia military district of Ohio, and within Clermont county. He sold three hundred acres of this tract to one Buchannon, and contracted to convey the remaining seven hundred (the land in controversy in the present suit) to Lyne Shackleford. On the 10th April, 1797, Shackleford sold this tract of ‘seven hundred acres to Upshaw, the defendant in the present appeal; but not having the legal title in himself at that time, he procured it to be made directly from Roy to Upshaw, without passing through himself. On the 20th of July, 1797, Roy accordingly executed a conveyance to Upshaw for these seven hundred acres, and also a bond for further assurance. On the 16th November, 1797, Shackleford, being thus destitute of the legal title, nevertheless sold to Philip Buckner, the same tract of seven hundred acres which he had previously f sold to Upshaw. It was alleged in the bill that this sale was made with Upshaw’s consent, but no evidence of it was fur-‘nished, except that in the contract of 1801 his consent is stated to be given at some time prior to 1801. At the same 'time, Shackleford sold also to Buckner another tract of one thousand acres. The price for both tracts was <£1,020, without saying what was the sum for each tract. No part of it was to be paid in cash. A bond of Anderson for £600 held by Buckner was assigned to Shackleford; a claim against Coats for £250 was also assigned over; and for the balance Shackleford agreed to wait until Buckner sold the one thousand seven hundred acres, provided he sold it prior to January, 1799; if not, payment to be then made, or sooner if Buckner should sell. 52 JANUARY TERM, 1843. *58 Buchannon et al. v. Upshaw. In 1798 and 1799, Buckner sold to the complainants, or to those *under whom they claim, in several parcels, the whole of the seven hundred acres in question, who paid him in full therefor, re®eived conveyances, and entered into possession. On the 18th of April, 1801, Upshaw, having made some payments to Shackleford, entered into a new contract with him, which was endorsed on the original one, stating “ that since the date of the within, Shackleford had, with the consent of Upshaw, sold the seven hundred acres of land to Buckner for <£420, which sum is still dueand it was agreed that Shackleford should assign Buckner’s contract to Upshaw, who was to make a deed as soon as the money should be paid. But if, upon application, Buckner did not pay the said sum of money and interest, Upshaw was immediately to take proper steps to have the land sold to raise the money and interest. On the 16th of May, 1803, Shackleford assigned to Upshaw the contract between Shackleford and Buckner, and authorized Upshaw to receive from Buckner the balance due on the same, amounting on that day to £530. 9s., having previously assigned the claim upon Coats’s bond, and an order which Buckner had given upon one Copland, the attorney who was charged with its collection. The result of that claim may be stated in a few words. Suit was brought in the Circuit Court of the United States at Richmond, by John Marshall, in 1798, against Coats: there was a judgment, a ca. sa., another ca. sa.; and, finally, it got into chancery against Coats’s widow and children. The plaintiff at last gave it up in 1820. Upshaw made more than one effort to obtain the money from Buckner, which was due under the contract assigned by Shackleford. In April, 1804, he empowered John H. Upshaw, who was going to Kentucky, to receive from Buckner the sum due on his contract; and, on the payment of the money, the agent was authorized to make a deed. The agent called on Buckner, who expressed much anxiety to comply with his contract, and induced the agent to remain some days, in the hope of raising the money. But he failed to pay any part of it. The agent, after authorizing John O’Bannon to receive the money from Buckner, and make him a deed, returned to Virginia. Upshaw drew an order on John O’Bannon in April, 1807, for *the money, which was returned protested for non-acceptance. O’Bannon shortly after this died, and in the year 1813, or 1814, Upshaw obtained from his representatives the assigned contract of Buckner, which had been left with him, and on which was endorsed a credit for -$100 on the 53 59 SUPREME COURT. Buchannon et al. v. Upshaw. 10th April, 1805, and another for the same amount, 18th April, 1806. On obtaining the contract, Upshaw caused an action to be brought on it against Buckner for the money. The suit being brought in the name of Upshaw, as assignee of Shackleford, there was a demurrer to the declaration; and at May term, 1815, the Circuit Court of the United States for Kentucky sustained the demurrer, and the action failed. Shortly after this, Upshaw commenced an action of ejectment, in the Circuit Court of the United States for the district of Ohio, against Buchannon and others, who occupied the land, to recover possession of it, which, at May term, 1816, failed, on the ground that the patent emanated from the state of Virginia, subsequently to the deed of cession from Virginia to the United States; and of course Upshaw was only invested with the equitable title to the land. In August, 1817, Roy and wife executed another deed to Upshaw for the land, in compliance with the covenant for further assurance, which he had entered into in 1797. Some short time prior to December, 1820, Buckner died. His will, made in February, 1817, contains bequests of real estate and some small legacies of personalty. The executor filed two accounts, one in 1822, and the other in 1823, the latter showing a balance in the hands of the executor of $50.18. It does not appear that any of his real estate was required to be sold to pay debts. In 1826, Upshaw obtained from the United States a patent for the seven hundred acres. In 1829, he brought another ejectment, in the Circuit Court of the United States for the district of Ohio, against Buchannon and others, occupiers of the land, and having now a patent from the United States, succeeded in obtaining judgment ; upon which, Buchannon and others filed a bill upon the equity side of the same court, and obtained an injunction to stay proceedings. This is the bill mentioned in the com-mencement of this narrative, *which, upon hearing, J was dismissed by the Circuit Court, and the injunction dissolved; and the case now came up by an appeal from that decree. The proceedings in this case were diversified in its history, by two collateral chancery suits, one by John H. Upshaw against E. Upshaw, and another by E. Upshaw against Chamberlayne, the executor of Shackleford; but as the decision of this case does not rest upon any of the facts or principles disclosed in them, they are not further noticed. Stanberry and Leonard, for the appellants. 54 JANUARY TERM, 1843. 60 Buchannon et al. t. Upshaw. 1. Roy, the original owner of the equitable title to the seven hundred acres, sold the land to Shackleford. Shackleford, on the 10th April, 1797, sold the land to Upshaw by title bond, covenanting to make a deed. Afterwards, on the 16th July, 1797, Shackleford again sold the land to Buckner, by title bond, received a part of the purchase money, and agreed to wait for the residue until the money could be raised by a resale by Buckner. In this state of facts the equity to be then administered between the then parties was obvious. Upshaw, as the first purchaser of the equitable title, was to be preferred to Buckner, although he may have purchased from Shackleford without notice. The rule prior in tempore, potior in jure, would then have applied, for there were no laches, acquiescence, or fraud chargeable to Upshaw. Next in order was the resale by Buckner to the complainants, the payment in full to Buckner, execution of deeds by Buckner to the purchasers, and the taking possession of the lands by the purchasers. Notwithstanding all this, at that point of time, so far as any fact is yet developed, Upshaw’s equity was the best. He stood then upon his first purchase of this equity. The subsequent sale by Shackleford to Buckner was in fraud of his title and he had given no authority for such subsequent sale, and stood wholly unaffected by it. But after all this, on the 18th April, 1801, Upshaw enters into communication with Shackleford, the fraudulent vendor, and they enter into an agreement under seal, in which it is recited, that the *sale made by Shackleford to Buckner, r*gi had been made with Upshaw’s consent; they cancel L the prior agreement which witnessed the first sale from Shackleford to Upshaw; and Shackleford agrees to assign to Upshaw the contract with Buckner, and to authorize him to receive the money due from Buckner; that is, the <£420, with interest at 5 per cent. In conformity with this arrangement, on the 7th May, 1803, Shackleford delivered to Upshaw, Buckner’s order on Copland for the Coats money; and on the 16th of the same month assigns to Upshaw the contract with Buckner; and on the 17th of the same month, Upshaw releases Shackleford from the contract in which he had made the first sale to Upshaw. After all this, there remains no question between different equities. The prior equitable title of Upshaw was extinguished. He could no longer assert his prior equitable title as superior to that of Buckner, but must stand in the shoes of 55 61 SUPREME COURT. Buchannon et al. v. Upshaw. Shackleford, and recognize the equity of Buckner. The bill alleges that Shackleford made the second sale to Buckner with Upshaw’s consent. Upshaw denies any prior consent, but says he assented to it qualifiedly afterwards. I do not know that it makes much difference, as to the extinguishment of his prior equitable title, whether the assent was prior or subsequent to the second sale; but as the proof stands, the prior consent is established beyond all denial. He has acknowledged under his seal, that Shackleford had made the sale with his consent, and that stops him from saying the contrary. And again, if the consent to the second sale, whether prior or subsequent, did not extinguish Upshaw’s prior equity, it is extinguished by express release in the agreement between himself and Shackleford of the 17th May, 1803. Upshaw, therefore, must stand upon the contract between Shackleford and Buckner. He must stand as the assignee of the vendor to Buckner. Let us now examine that contract, and ascertain what interest passed by it to Buckner, or upon a resale by him to these complainants, and what interest remained in the vendor. At the date of this contract, the legal title to this seven hundred acres was in the United States. A patent had been granted for it by the state of Virginia to Roy, the warrantee, buf R *was wholly inoperative, being made years after -• the deed of cession. The subject-matter of sale was, therefore, an equitable interest in land. This interest passed effectually to Buckner by a written contract, sufficient to satisfy the statute of frauds; and this, notwithstanding the purchase-money was not paid. Hampson v. JEdelen, 2 Har. & J. (Md.), 64. It passed in the same manner upon the sale by Buckner to the complainants. What remained in the vendor, Shackleford, or in Upshaw, his assignee ? No title, no interest in the land. If any thing remained, it was simply a lien for the unpaid purchase-money, as against Buckner, while the land remained unsold by him. Twenty-nine years after this sale to Buckner, Upshaw, pretending to be the owner of this equitable title, obtained a patent from the United States. If he had, at the time he so procured the patent, no title to the land, and no lien upon it for the purchase-money, the consequence is irresistible that he holds it as trustee for the real owner. I have shown he had no title to the land. Let us now inquire if he had a lien upon it. The lien of the vendor for his unpaid purchase-money arises as well upon the sale of an equitable interest as upon a conveyance of the legal title. It is a creature of equity raised 56 JANUARY TERM, 1843. 62 Buchannon et al. v. Upshaw. between the immediate parties to the contract, and sustained only against subsequent purchasers when affected with notice of it. There is no other lien or charge upon an estate so shadowy and so little obvious as this lien of the vendor. It is never to be found of record; it does not depend upon possession of the estate or the muniments of the title. It is not sustained by any matter of constructive notice, but only exists as to third persons fixed with actual notice. The essence of this lien is that the vendor looks to the land alone for the money, or the land and the purchaser. If he takes collateral security, such as the note of a third person, or if he takes simply a mortgage on the land for only a part of the purchase-money, or if he does any other act manifestativo of an intention to look primarily to any other p™ fund than the land, *the lien never arises. Or when the lien has first attached, if he assigns the note of the vendee, or if he is guilty of laches, the lien is gone. We claim no lien ever existed upon this land in favor of Shackleford, or Upshaw, his assignee. 1. Because the contract of sale looks to a resale, and to the fund arising upon such resale, as the fund for payment, and does not look to the land. Shackleford agrees to wait for the unpaid purchase-money until Buckner should sell the land. The moment the land is sold the purchase-money becomes due; but, if it is not sold, the purchase-money does not become payable until fourteen months after the date of the contract. Whenever the contract contains such consent to a resale, and looks to the fund to be produced on a resale, there is no lien on the land. Sugd. Vend., 552. Ex parte Parker, Glyn & J., 228. Coad v. Pollard, 9 Price, 544; 10 Id., 109. We do not pretend that Buckner was the agent of Shackleford in making the resale, and that, therefore, payment to him was payment to his principal. We do not put this as a case between principal and attorney. The simple question is, after such a contract, after such an agreement, after a sale to a third person, and payment in full by that third person, can the vendor say to the new purchaser, “ You have paid your immediate vendor just as I agreed you should, and I took his covenant. I relied upon his faith to pay me the money; but he has not done so, and I now require that the loss shall fall upon you and not upon me, and that you shall now pay me again lor the same land which I consented you should first pay for to another I” Now, putting the case in the strongest light for Upshaw, 57 G3 SUPREME COURT. Buchannon et al. Upshaw. placing him in the situation of a vendor, not the mere assignee of the vendor, investing him with a legal title retained upon the sale to Buckner, yet, is it not clear, that a court of equity would compel him at once to convey that legal title to the second vendee, who had fully paid his purchase-money ? Whenever the holder of a legal title encourages a purchaser to deal with another for his estate, or invests another person with the means of imposing upon others as the true owner, or -i is silent when a purchaser is dealing with another for -I his estate, a court *of equity will never allow him afterwards to assert that legal title against the purchaser. In a court of equity, when the conscience of the party is not affected, the holding of the legal title is every thing. A satisfied mortgage, an outstanding term, a deed surreptitiously obtained, are equally available; but, where in reference to third persons the conduct of the holder of the legal title has been such as that it would be inequitable to assert it against the holder of the equitable title, then a legal title is no protection. 1 P. Wms., 393; 3 Russ., 1; Sudg. Vend., 728; Finch, 28. It is said the complainants were bound to know what sort of title Buckner had, that they must be taken to know that he held only by contract and had not paid his vendor. Take it as granted, and suppose them to have had notice of the very article under which Buckner held, and what then ? What is the language there held by Shackleford? “I consent that, in order to raise a fund to pay me what is yet due, you may sell this land to others; they are to pay for the land to you, not to me, and you are to pay it to me. I look, not to the land, but to the fund which is to come in place of the land, and I trust you to receive and pay it over to me. I give you fourteen months to pay the money, if you do not sooner sell the land; but the moment you sell it, if it be to-morrow, you are to take the money you receive and out of it pay me my debt.” We say, therefore, because of this clause of resale, there was no lien on the land. II. Lein lost by laches. But, if there was a lien for the purchase-money after the sale to the complainants, we next claim that it was lost long ago by laches of Upshaw. We have shown that Upshaw stood, not as vendor, but simply as his assignee of the debt due for the purchase-money. He was once connected with this land as a purchaser; but we have shown that he released the interest so acquired to Shackleford, and agreed to take a certain sum of money instead of 58 JANUARY TERM, 1843. 64 Buchannon et al. v. Upshaw. the land. He had, therefore, in fact, only a money claim. The land was never his, nor intended to become his. We take it as granted, in this view of the case, that he might look to the land as security or means of payment, but he had *other security, the money due from Coats L for a part, and the responsibility of Buckner for the whole. Time and laches would bar him of all these securities. The debt was the principal thing, the lien on the land the mere incident. Time would bar the debt. It would be most singular that after a lapse of thirty years we should find not only this debt yet valid, but the mere collateral lien which attended it also in full vigor. It would require sleepless vigilance to bring that about. Instead of this, there has been, so far at least as the lien is concerned, the most culpable negligence. The Coats bond covered only part of the debt, ¿£250 out of ¿£420; for the difference, ¿£170, Upshaw could look only to Buckner or the land. Nothing appears to show that any step was taken by Upshaw on the Coats claim. A suit had been brought upon it in 1798, three years before he became the assignee of Shackleford. Judgment was rendered on it in 1800, and the writ of ca. sa. had been in that year returned, not found. The original suit had been commenced by capias, bail given, but no suit appears even to have been brought on the bail bond. An alias ca. sa. in 1801, never returned, is the last step taken upon the judgment. For the nine succeeding years no step is taken. On the 4th January 1809, Buckner takes the matter in hand, and gives a power of attorney to Marshall to collect the money from Coats. In 1810, a bill is filed, in Buckner’s name, against Coats’s representatives, to set aside a fraudulent settlement, which is continued for ten years, and then dismissed upon the default of the plaintiff, December, 1820. There is no evidence of the slightest action of Upshaw in these proceedings, nor is any thing of the sort stated in the answer. The only statement in the answer is, that the suit against Coats “ was diligently prosecuted.” It is not said by whom. We have seen, however, how diligently. Then as to the claim on Buckner. The steps taken by Buckner are the following: . In April, 1804, (three years after the assignment from Shackleford,) Upshaw sent by John H. Upshaw to demand the money. It was not paid, and the claim was put by John H. Upshaw in the hands of O’Bannon for collection, who received $200 from Buckner, but did nothing more. *In December, 1805, Upshaw assigned ¿£500 of the 59 66 SUPREME COURT. Buchannon et al. v. Upshaw. Buckner debt to John H. Upshaw, and gave him an order on O’Bannon, April 1, 1807, to receive the money if collected. This order was protested for nonpayment. Nothing further is done for seven years; until February, 1814, when Upshaw commences a suit, in his own name, against Buckner, on the Shackleford contract. Buckner demurred to declaration, on the ground that the action should have been brought in Shackleford’s name, and the demurrer was sustained, and judgment upon it against Upshaw at May term, 1815. This was the end of all vigilance as to Buckner, who lived until 1820, and then died possessed of large real and personal estate. His estate has since been settled, and it appears it was not necessary to sell his real estate to pay his debts. This is the sum total of vigilance as to Coats and Buckner, showing the most tardy proceedings, and those defeated by the gross ignorance of Upshaw’s agents. Now it would be strange if all this delay has not wholly defeated all prospect of a recovery, of either the Coats claim or the debt against Buckner. In all probability the Kentucky statute has long since barred an action in favor of Shackleford or Buckner; or, if there be no limitation in that state as to specialty debts, as we believe is the case, the presumption of payment is conclusive. And the Virginia statute has barred the action against Coats’s bail, or against the sheriff for failing to return the last ca. sa. Or, if there was no bar by limitation or presumption, the assets of Coats and Buckner are beyond the reach of their creditors. One has been dead nearly forty years, the other (Buckner) twenty-two years. With what conscience can Upshaw, after all this delay and loss, seek to make these purchasers from Buckner again pay for their lands ? If he had come forward in good time, they undoubtedly might have reimbursed themselves, by action against Buckner, either upon the covenants in his deed or (by subrogation) on the contract with Shackleford; but as it is, his negligence has put that beyond reasonable probability. But if Upshaw had been vigilant against Coats and Buckner, it is no excuse for his laches as against these complainants. He did know, as early as 1799, that these complainants *671 were in possession of these lands, claiming and improv-J ing them as their own. *Now in 1815, he was pursuing Buckner for the money; and up to 1820 the suit in chancery was going forward as to the Coats claim. He still considered the contract as open, and never makes any demand of these complainants. , In 1818, he seeks to turn them out of possession by an action of ejectment. He does not ask them for the money. He does not exhibit his right to receive it; but 60 JANUARY TERM, 1843. 67 Buchannon et al. v. Upshaw; demands their land, and when he comes to show his right to that, he exhibits nothing but a void patent. He then lies by for eight years, until 1826, and obtains a patent from the United States by means of his deed from Roy the warrantee, which deed was obtained in confirmation of a contract which he had released and rescinded; and at last in 1829, after these complainants had been in peaceable possession, to his knowledge, for thirty years, he brings his last ejectment, and seeks to turn them off the land. Now, so far as his right to make these complainants pay him Buckner’s debt is concerned, there has been no demand for thirty years, and in the mean time, in consequence of his laches, these complainants have lost all chance of indemnity from Buckner. Such laches will bar not only a mere equitable lien for purchase-money, which is the most that Upshaw ever had, but in equity it would bar a legal title, especially one obtained from a mere trustee, under circumstances like the present. The rule prior in tempore does not apply where the holder of the first equity is guilty of laches. Sugd. Vend., 728, 729. We claim, therefore, that Upshaw is not entitled to demand the Buckner debt from the complainants. If he is entitled to any relief against the complainants, it is only to that. But the decree of the Circuit Court goes quite beyond that, and gives him the land itself, and, in addition, a sum of money for rents and profits larger than the Buckner debt, principal and interest! This part of the decree proceeds upon the idea that he sold this land—that he stands as vendor—his purchase-money unpaid—guilty of no laches; and that these complainants, as purchasers, have refused to pay him their purchase-money, or have wrongfully delayed it so long, that he can rescind it, and take back his land. I have already shown the gross laches on his part, so gross, that if he was the immediate vendor r*z^Q of the complainants, *and they had agreed to pay him L the purchase-money, he could not recover it, but it would long ago have been barred, or presumed to be paid. But the complainants, what have they done to lose their land to Upshaw ? He is not their vendor. He is (as has been shown) the mere assignee of a debt, never looking to this land but as a means of securing its payment. He has never demanded payment of them. With full knowledge, he allowed them to go on for thirty years, wasting the best of their lives in reclaiming this land from the wilderness. They have been guilty of no laches—of no bad faith. They say in their bill that they 61 G8 SUPREME COURT. Buchannon et al. v. Upshaw. were in total ignorance of his claim, or of any defect in their title, until he recovered against them in the last ejectment; and all this Upshaw admits in his answer. They never refused to pay the Buckner debt, for it was never demanded of them. And if they had refused, that refusal would not have prejudiced them; but they still would have saved their land, by application to equity. That debt was not of their contracting. It was res inter alios. They had a right to have it fully sifted in this court. No one can doubt this. Again. If it were the case of vendor and vendee, before the vendor can count time and laches against the vendee, and go for a rescission, he must show himself ready and able to comply with his contract. Wilson v. Tappan, 6 Ohio, 175. Upshaw could not demand either money or land, until 1826, for he could never before that day make a title. And up to this moment he cannot perform that very contract, with which he is connected as assignee—the contract between Shackleford and Buckner. If these complainants are to pay the purchasemoney for Buckner, they can only be asked to do so upon having the benefit of that contract and a performance from the other party. Shackleford stipulates to make Buckner a warrantee deed, and that deed Upshaw has not yet produced. If Shackleford is dead, we must have such a deed from his representatives as binds his estate. Upshaw’s deed will not satisfy the contract. We do not know what he may have done to encumber the title, or how safe we would be with his *6Q1 warrantee. We are not bound to take it as of course. J *Further, before Upshaw could rescind the contract and take the land, he must place us, as Buckner’s assignees, in statu quo. He must give us the claim on Coats; he must transfer to us the claim on Buckner, and he must pay back to us the money he received from Buckner. Lastly. The contract for the one thousand seven hundred acres is one; it must be rescinded in toto, or not at all; and as to the one thousand acres, it can never be rescinded, for that part of it is performed. III. If the court require the complainants to pay the Buckner debt, a question arises, whether a pro rata allowance be made for the <£600 paid by the Anderson bond. It is clearly right to allow that credit. Shackleford sold to Buckner two tracts as one, for an entire consideration of <£1,020. The contract speaks of the two tracts; that is, the tract of one thousand acres, and of seven hundred acres, “ as the one thousand seven hundred acres.” There is no price fixed for one as distinct from the other; the sale is in solido. The ¿£600 is paid and endorsed generally upon the contract. .62 JANUARY TERM, 1843. 69 Buchannon et al. v. Upshaw. No application was made to one of the tracts by the parties at the time of the payment. Indeed, without the concurrence of both the parties, such special application could not be made. The contract did not admit it, for here was no case of two debts, or of two tracts of land, with distinct sums due for each. There was but one debt, due for two tracts of land, sold as one. ' IV. As to the rents and profits and improvements. If the court are of opinion that Upshaw is entitled to the land, the remaining question is upon that part of the decree of the Circuit Court which touches the allowance to be made to Upshaw for rents, and to the complainants for improvements. The decree gives to the complainants their improvements made up to the year 1818, without interest; and to Upshaw the annual rents and interest from 1818 to 1840, by which, in addition to the land, now worth from $15,000 to $20,000, Upshaw recovers a decree against the complainants for $4,762.30, being a little more than the balance due upon the Buckner debt! We claim the true rule to be, to allow improvements up to the time of bringing the ejectment upon which the lard was recovered, and to charge rents from that time. *This is according to the rule fixed by the occupying claimant law of Ohio. It is said that law does not apply to this case, as the title of the complainants is not adverse to that of Upshaw. It is shown that the complainants took the possession under a claim of the fee, having paid their vendor in full, and taken a conveyance in fee. They did not hold in subordination to any one. Their possession was therefore adverse. Jackson v. EUis, 13 Johns. (N. Y.), 118. The occupying claimant law, therefore, furnishes a rule of adjustment which this court will follow. Bank of Hamilton v. Dudley's lessee, 2 Pet., 526. Morehead and Cox argued for the appellee upon the following grounds: The appellants have not sustained by proof the material allegations in their bill. 1. The appellants in their bill charge that Shackleford was authorized by the appellee to sell the land to Buckner; the answer negatives the allegation, and there is no proof contradicting the answer. 2. The appellee, however, admits that in 1800 he gave his conditional assent to that sale ; and if the condition had been complied with on the part of Buckner, his assent would in 63 70 SUPREME COURT. Buchannon et al. v. Upshaw. equity be construed as having relation back to the time of Shackleford’s contract with Buckner, and have bound him to convey the land. The conditions on which his assent to that contract was obtained are, Shackleford agreed to assign him the contract made with Buckner, and give him full power and authority to receive from Buckner the <£420 then due for the land, with interest thereon, at the rate of 5 per cent, per annum, from the 1st day of December, 1797, till paid, and Buckner was to pay him the money thus due; and, on those conditions being complied with, the appellee assented to the sale, and bound himself to convey the land to Buckner. 3. The conditions on the agreement to perform which the assent of the appellee was obtained, as aforesaid, so far as the same were to have been performed by Shackleford, were never performed by him until the 16th of May, 1803. Until those conditions were performed by Shackleford, the appellee had no *711 *power or authority to apply to either Buckner or -* Coats for payment, or to receive and receipt for the purchase-money, if the same had been tendered to him. The written order on Copeland, which Buckner gave to Shackleford, to which we have already referred, was never transferred by Shackleford to the appellee; so that the appellee never had anything to do with the collection of Coats’s bond, or any authority to receive the money due thereon, had it been collected. 4. That part of the condition, namely, the payment of the £420, with interest, &c., which was to have been performed by Buckner, has never been performed, either by him or by any other person for him. The payments credited on the contract between Shackleford and Buckner, while the same remained in possession of O’Bannon, were never received by the appellee. O’Bannon had no authority from the appellee to receive from Buckner partial payments on the contract. His authority was limited and confined to the receipt of the entire sum due and the delivery of the deed. The allegation in the appellant’s bill, that O’Bannon was duly authorized by John H. Upshaw, whom they charge was invested with power of substitution, to receive from Buckner partial payments on said contract, is positively denied by the appellee in his answer, and that denial is fully sustained by the depositions of John H. Upshaw and the receipt given by him to the appellee, for the said original contract left with O’Bannon, and power of attorney dated April 4, 1804, to which the court is respectfully referred. From that denial, and those depositions and receipts, we draw these conclusions: 1st. That the appellee executed a deed to Buckner, as an escrow, and placed the 64 JANUARY TERM, 1843. 71 Buchanrton et al. v. Upshaw. same in the hands of his agent, John H. Upshaw, for the purpose of being delivered to Buckner, upon the receipt from him of the ¿£530 9s., the purchase-money then due on the land. 2d. That, for the purpose of avoiding any difficulty with Buckner respecting the conveyance of said land, the appellee empowered his said agent, on the receipt of the said purchase-money, to execute to Buckner such other or further conveyance or assurance as might be deemed necessary, in order to invest in Buckner a perfect title. 3d. That said agent was not empowered to receive partial payments on said contract, but was limited and confined to the receipt of the entire sum due. The words in the *power referred to [-*79 in said receipt are, “ and to receive of said Buckner L the sum of five hundred and thirty pounds,” &c., “for the above land.” The appellee was willing to confirm the contract upon being paid the entire sum due, but not otherwise. He was not, by the receipt of partial payments, willing to extend the time of payment of the residue to an indefinite period. 4th. That said agent was not, by his principal, invested with power of substitution. This is inferrible from the fact that no such power is referred to in the receipt which he gave to his principal. 5th. That the power given to said agent by his principal does not contain, as charged in the appellant’s bill, a clause authorizing him to receive any balance that might be due on said contract, if any was due. 6th. That the power given by said agent to O’Bannon was not greater than said agent himself' possessed; for said agent deposes and says, “ I certainly did not consider myself authorized to tender Buckner a title until the money was paid, and I certainly did not give to O’Bannon a power greater than the one possessed by myself.” And, 7th. That O’Bannon was not the attorney of the appellee for the purposes charged in the appellant’s bill. If these conclusions are sustained by the premises, it results that O’Bannon had no power derived from the appellee to receive partial payments on the contract, and that the credits endorsed on said contract by him must be laid out of the case. The onus of sustaining O’Bannon’s authority to receive partial payments rests with the appellants, and they have totally failed in proving the truth of their allegation. The credits endorsed on the contract refer to receipts given to Buckner. The appellants claim under Buckner; why, then, if those payments were made on said contract by the authority of the appellee, do not the appellants produce those receipts, and the authority granted to O’Bannon, authorizing him to receive those partial payments? The appellants have presented no valid excuse for their non- Vol. 1.—5 65 72 SUPREME COURT. Buchannon et al. v. Upshaw. production; and the very fact of keeping back those documents, if such really exist, raises a suspicion that all was not right, and that, if they were produced, they would prove the allegations in their bill to be untrue. The two payments endorsed without the authority of the appellee must, therefore, we respectfully submit, be laid out of the case. The £600, the proceeds of Anderson’s bond, was applied in *payment of the money due by Buckner to Shackle-¹ -1 ford on the one thousand acres of land surveyed for Javin Miller, and which was sold by the latter to the former, as aforesaid, and no part of that sum was applied in payment of the lands in question. This position is sustained from the following facts and circumstances: 1st. Shackleford, at the time he contracted with Buckner, was invested with the equitable title to this one thousand acres, but he was not invested with either the equitable or legal title to the seven hundred acres of land in question, and it is therefore reasonable to infer that he applied that sum to the payment of the debt due to himself. 2d. £600 was the precise sum which was to be paid by Buckner to Shackleford for that one thousand acres of land. 3d. In 1803, Shackleford procured Chamberlayne, the patentee of said one thousand acres of land, to execute a deed of conveyance for the same to Buckner, and the said deed and the patent which Chamberlayne had obtained for the land were afterwards transmitted to Buckner by the hands of the appellee or his agent, John H. Upshaw. Would Shackleford have done that if any portion of the purchase-money still remained due to him by Buckner? 4th. When Shackleford, in 1800, first informed the appellee that he had sold to Buckner the seven hundred acres of land in question, and agreed to assign to him the contract he had made with Buckner, he stipulated with him that the entire purchase-money was still due for the land by Buckner. 5th. When Shackleford, in 1803, assigned to the appellee th? contract he had made with Buckner (for the sale to him of the lands in question,) he covenanted with the appellee that there was then due by Buckner, on said contract, the sum of £530 9s. 6th. When John H. Upshaw, as agent of the appellee, afterwards called upon Buckner for payment, he acknowledged that the entire sum was due, and promised to make payment in some short time, if said agent would wait. The said agent did wait, as requested, but no payments were made to him by Buckner. We therefi re assume it as an indisputable fact, that no part 66 JANUARY TERM, 1843. 73 Buchannon et al. v. Upshaw. of the purchase-money for the lands in question was ever paid by Buckner, either to Shackleford or to the appellee, or to any other person authorized by the appellee to receive and pyq receipt for the *same. No money was ever collected, L either by Shackleford or the appellee, on Coats’s bond. The defence successfully made by Buckner in the Circuit Court of Kentucky to the action brought by the appellee, as assignee, to recover the purchase-money due on the land, evinced a determination on his part not to perform the contract he had made with Shackleford, and, by that unequivocal act, the appellee had a right to declare the contract at an end, and no further obligatory on him; and he did so declare it, and immediately thereafter commenced an action of ejectment in the seventh Circuit Court of the United States, district of Ohio, against the tenants in possession, who claimed to have derived their title under Buckner. To that action, the appellants, or the persons under whom they claim, were admitted as defendants, and, on trial, a verdict and judgment were rendered in their favor, on the ground that the appellee, who was the lessor of the plaintiff, was only invested with the equitable title under and in virtue of the deed to him from Roy, which was based on a patent granted to him by the commonwealth of Virginia, which bore date subsequent to the date of the deed of cession of Virginia to the United States. Being thus defeated in every attempt made by him, first, to recover the money for which the land had been sold by Shackleford to Buckner, and, second, to recover possession of the land itself, the appellee procured from Roy and wife a second deed of conveyance, and, in 1826, obtained from the United States a patent for the land, on which he instituted an action of ejectment against the appellants, and obtained a verdict and judgment of eviction against them; and in order to obtain a perpetual injunction against further proceedings on that judgment, and to compel a conveyance of the lands in question, the appellant filed the bill under which the decree complained of was rendered. 5. And the question here occurs, were this a suit prosecuted by Buckner or his legal representatives against the appellee, in order to compel the specific execution of the contract entered into between Shackleford and Buckner, for the sale and conveyance of the lands in question, would this court grant the relief asked? Buckner has neither paid nor tendered payment of the purchase-money. Would this court, then, decree in his favor? Is it not a rule in equity, that where ¡-#75 the party to a contract not only neglects *to perform L it, but, by his conduct, evinces a determination not to perform 67 75 S UP RE AI E COURT. Buchannon et al. v. Upshaw. it, that the opposite party is at liberty to put an end to it; and that where the purchaser neglects for an unreasonable length of time, although often requested, to pay the purchasemoney, and in the mean time, as in the present case, the land has increased in value tenfold, that a court of equity will not interpose in his behalf, by compelling the specific execution of the contract ? If Buckner had made prompt payment, the appellee could readily have invested the avails of the sale in other western lands, which, at this day, would have been worth thousands of dollars more than the lands in question, with all the improvements which have been made on the lands by the appellants, and have avoided the trouble and expense of many long and wearisome journeys, and the expenditure of thousands of dollars in ineffectual attempts to recover his just rights. Is it not also a rule in equity, that he who asks must himself do equity to him against whom he asks it; and that he who claims the aid of a court of equity must show that he has not only been at all times ready, willing, anxious, and eager to perform the stipulations on his part, but that he has either actually performed or tendered performance on his part, and that the opposite party refused compliance on his part ? These principles are so well understood, and have so often received the sanction of this court, that we do not deem it necessary to cite authorities in support of them. We therefore respectfully submit, that were Buckner or his heirs the parties complainant in this suit, that a specific execution of the contract in question would not be decreed by this honorable court. 6. Do the appellants, as against the appellee, stand upon more favorable ground in a court of equity than Buckner or his representative would have stood? No consideration ever moved from the appellants to the appellee as an inducement to the conveyances asked; they never tendered, nor do they, in? their bill, offer to pay the consideration money contracted to be paid by Buckner. They were not parties to the contract made by Shackleford with Buckner, and consequently no privity of contract exists between them and the appellee. Upon what ground or principle, then, are the appellants, as *781 against the appellee, entitled to the relief prayed for in ; -• their bill? Upon the ground of privity of *contract, they are not entitled to relief, because such privity existed. The appellants have, however, invoked the benefit of the contract between Shackleford and Buckner, which has been assigned to the appellee; but can that contract, if it were admitted they are entitled to its benefit, aid them ? The terms of that contract were never performed by Buckner. If they are entitled to the aid of that contract, it must be on the 68 JANUARY TERM, 1843. 76 Buchannon et al. v. Upshaw. ground., that in equity, though not at law, they must be considered as Buckner’s assignees, and consequently, in reference to that contract as standing in his shoes; and with reference to the appellee, as subject to the same equity to which it was subject in the hands of Buckner. As the assignees of Buckner, they acquired no better title in equity than was vested in Buckner at the time of the assignment. If, therefore, Buckner could not in equity compel the specific execution of the contract in question, neither can the appellants compel it. The assignee of a contract for the sale and conveyance of land, where he himself hath neither performed nor tendered performance, must abide the fate which awaited the assignor, where he neither fulfilled nor offered to fulfil the terms of the contracts, the specific execution of which is sought. In Stanley v. G-adsby, 10 Pet., 522, this court is reported to have said, “ If a complainant does not aver in his bill his readiness to pay both principal and interest, he can have no standing in a court of equity.” The payment or tender of the purchasemoney is indispensable on the part of him who asks the specific execution of a contract. Stratford v. Alborough, Ridgw. Ch., and 2 Bligh, 596, 4. Again: both Buckner and the appellants have trifled with the appellee; and it seems to be a settled rule in equity, that where one party to an agreement trifles, and shows a backwardness to perform on his part, equity will not decree a specific performance in his favor. Harrington v. Wheeler, 11 Ves., 856. In the case of Edwards v. Parker, lately pending in Brown county, Ohio, which was a bill to enforce the specific execution of a contract, the Supreme Court of the state refused to decree in favor of the complainant, on account of the lapse of time since the contract should have been complied with. S. P. Mayo v. Deschamps, 13 Ves., 25 ; Grant v. Humphrey, 8 Ves., 815; and Highby v. Whittaker, 8 Ohio, 201. In this last case the purchaser of the land delayed payment of *the principal part of L the purchase-money for about ten years after it was due, and the court decided that he could not compel, in equity, the specific execution of the contract; that the trifling indisposition of the complainant, his want of integrity and intention to pay for the property, and his utter inability to do it, unquestionably gave to Burchard, under whom Whittaker claimed, the right to put an end to the contract; and that as the complainant had occupied the land sold, the fair rent of which was equal to the actual payment made, Brunce, the seller, had a right to rescind without offering to refund the amount received. See, also, Remington v. Kelly et al., 7 Ohio, 103. It is now more than forty-one years since the purchase-money 69 77 SUPREME COURT. Buchannon et al. v. Upshaw. for the lands in question fell due, and during that whole period neither Buckner nor the appellants have either paid or offered to pay the purchase-money; upon what ground, then, can they insist that the decree is erroneous? Every man is to suffer for his own delay or neglect. Speake v. Speake, 1 Ves., 217. The plaintiff in equity, if he either will not, or, through his own negligence, he cannot, perform the whole on his side, has no title in equity to the performance of the other party. Butcher y. Hinton, 1 Ch. Ca., 302; Keen v. Stukely, Gil., 155; Pope v. Roots, 7 Bro. P. C., 184; Earl of Evershap n. Watson, Rep. Temp. Finch, 445; 2 Freeman, 35; Hutton v. Long, Temp. Finch, 12. So, if the plaintiff has not performed his part of the agreement, he must, in equity, show that he was in no default in not performing it, but must also allege that he is still ready to perform it. Fields v. Hooker, Meriv., 224; and Fane v. Spencer, Id., 430, in note. And upon this reasoning it is, that when a man has trifled or shown a backwardness in performing his part of the contract, equity will not decree a specific contract in his favor, especially if circumstances are altered. Hayes v. Caryll, Jan., 1792; 5 Vin. Abr., 538, pl. 18. Neither will equity decree an agreement which appears afterwards to have been discharged by parol, though the original agreement was in writing. Groman v. Salisbury, 1 Ves., 240; Lord Milton v. Edgworth, 6 Bro. P. C., 580; Segal n. Miller, 2 Ves., 299; Inge v. Sippingwell, Dick., 469; Daved v. Simonds, 1 Cox, 406 ; and Stephens v. Cooper, 1 Johns. (N. Y.) Ch., 420, 430. In the case of Heafly n. Hill, the *70-1 specific performance of an agreement to grant a lease -I was refused, *the plaintiff having failed to file his bill for more than two years since notice from defendant of his intent not to perform his contract, on account of the plaintiff’s non-fulfilment of his part of the agreement. In this case, at the time of service of the declarations in the first action of ejectment brought by the appellee against the apel-lants, the appellants had notice that the appellee did not intend to perform the agreement in question, on account of the neglect of Buckner in not paying the purchase-money due on the land; and yet no payment or offer of payment was made by them, nor did they file their present bill until more than ten years had elasped after the receipt of actual notice that the appellee considered the contract at an end, and no further obligatory on him. Even in the bill which the appellants have filed, (but which they never filed until all their efforts to baffle the appellee at law had failed,) they have not tendered payment of the purchase-money, unless that clause in the prayer of their bill which asks for a decree upon such terms 70 JANUARY TERM, 1843. 78 Buchannon et al. ®. Upshaw. as the court may seem just can be construed as an offer to pay the purchase-money due, with interest. To construe that clause in the prayer of the bill as an offer to pay would be giving to it a construction which is incompatible with the general frame of the bill, and the grounds on which the appellants have based their right to the relief invoked. The appellants have based their right to relief on three grounds: 1st. That Shackleford, or the appellee, neglected to collect the amount due on Coats’s bond. 2d. If that be not true, that they, or one of them, neglected to collect the purchase-money of Buckner. And, 3d. That the appellee never acquired his legal title until 1826. And, first, as to Coats’s bond: Were it true, as charged, that it was through the mismanagement or omission of Shackleford, or the appellee, or both of them, that Coats’s bond was not collected, would the condition of the appellants be improved thereby? We think not. The balance due on Coats’s bond was <£250, and the entire sum due was £420. Consequently, there remained due, after deducting Coats’s bond, £170, which fell due in 1799. This balance has never been either paid or tendered to the appellee. If, therefore, the balance of Coats’s bond was lost through the negligence of Shackleford and the appellee, or one of them, that negligence only operated as a release pro tanto of the obligation of Buckner to pay, or tender payment *of the r*7q purchase-money; and from thence it results, as the *-£170, with interest, was never paid or tendered, that the appellants are not entitled to the relief which they ask. But is it true that Shackleford and the appellee, or one of them, had the management of the claim against Coats; and that, through their mismanagement or neglect, or the mismanagement or neglect of any of them, said claim was lost ? Coats’s bond was never assigned by Buckner to Shackleford; nor did the parties stipulate that Shackleford should have the management or control of the suit which had been ordered on that bond. The stipulation on the part of Shackleford was to wait for the amount due on Coats’s bond until judgment was obtained thereon. That stipulation was coupled with this condition, namely: that Buckner gave to him an order in writing, on the attorney in whose hands Coats’s bond had been placed for collection, requesting him to pay over the money to Shackleford, when collected. Buckner did not give the written order which he covenanted to give, but gave to Shackleford an order of the description promised, on Copeland, who never was employed, nor ever had anything to do in the collection of Coats’s bond. Buckner’s covenant was therefore broken; and so much of the purchase-money as was 71 79 SUPREME COURT. Buchannon et al. v. Upshaw. to have been paid by the proceeds of Coats’s bond became due on the day the contract between Buckner and Shackleford was executed. But if this be deemed too rigid a construction of Buckner’s undertaking, as it respects the order, in writing, he obligated himself to give to Shackleford, yet it is clearly discoverable from the words as well as from the general scope and design of the parties, as expressed in the contract, that Shackleford only stipulated to wait for the ¿£250 until judgment was rendered on Coats’s bond. That judgment was rendered in May, 1800, and on that day, at all events, the remaining balance of the purchase-money of the lands in question fell due. Buckner was informed by Shackleford when judgment would be rendered, and that Coats intended to enjoin the judgment. The evidence shows that neither Shackleford nor the appellee had any management or control of the suit on Coats’s bond; that neither of them were guilty of any mismanagement or neglect in relation thereto; that the attorney having the management of that suit procured judgment to be rendered thereon at as early a day as practicable; that, *after judgment, every reasonable 1 effort was made to enforce collection, but without effect; that the insolvency of Coats was ultimately ascertained; that, from weighing the evidence with care, the inference is strong that Coats was insdlvent in 1797, and that Buckner was duly notified of the result. We therefore respectfully submit that the first ground assumed by the appellants, on which they assert their claim to relief, has no solid base on which to rest. Their second ground is equally unsustainable. What has the solvency or insolvency of Buckner, at certain periods, to do with this case ? He stipulated with Shackleford to pay for the land a certain amount, and within certain periods—uncertain, it is true, at the time of contracting, but which were rendered certain by the happening of the events referred to in the contract. Shackleford waited until those events happened. The ¿£170 fell due at all events in 1799, if not before, and the ¿£250 in the May following, when judgment was rendered on Coats’s bond. Shackleford did not stipulate to wait for the purchase-money longer than those periods. If not paid then, he had a right to put an end to the contract. There is no clause in the contract which required him to sue for the purchase-money in case Buckner failed to pay within the stipulated periods. It was therefore optional with Shackleford, on Buckner’s neglecting or refusing to pay within the stipulated periods, either to put an end to the contract or to sue for the money due. If Buckner was able to pay, why did he not pay? Until he made 72 JANUARY TERM, 184 3. 80 Buchannon et al. v. Upshaw. payment, the equitable title to the land purchased, or rather contracted for, did not vest in him. There was no consideration to raise a case in him. If he was able to pay, why did not the appellants compel him to make payment? Why did they not see that the money they had contracted to pay Buckner for the land was applied to the payment of the purchasemoney which Buckner had contracted to pay Shackleford? The appellants claiming under Buckner are chargeable with notice of the fact, that he only held title under his contract with Shackleford, which obligated him to pay ¿£420, with interest, before he could demand of Shackleford the legal title. Was it not, therefore, their duty to have seen that the purchase-money paid by them was faithfully applied to the payment and discharge of Buckner’s contract with Shackleford? Buckner’s solvency or insolvency has therefore nothing r*gi to do with *the case. The consideration has never L been paid or tendered, and consequently the appellants have no right in equity, as against the appellee. But it is also insisted that the appellee never acquired the legal title to the lands in question until 1826; and consequently, until he did acquire the legal title, that neither Buckner nor those claiming under him were bound either to pay or tender the purchase-money. But did they either pay or tender the purchase-money when the legal title was obtained? No ; they neither did the one nor the other. How, then, are they entitled to relief on that ground? They did not offer to do equity when every shadow of suspicion was removed from the appellee’s title. But did the defect in the appellee’s legal title Excuse them from the strict performance, or at least‘a tender of performance, of the original contract between Shackleford and Buckner? We think not. The appellee’s equitable title was perfect, and he, as well as Shackleford and Buckner, believed that he was also invested with the perfect legal title, in virtue of the deed of conveyance from Roy, who had obtained a patent for the land from the state of Virginia. The attorney who instituted the first action of ejectment for the appellee, and the appellee himself, must have been impressed with the belief that the appellee was at that time invested with the legal title, otherwise the conduct of the attorney was dishonorable and dishonest, and that of the appellee simple and foolish. Upon comparing dates, it was found that the patent had issued since the date of the deed of cession, and consequently that the appellee was not invested with the legal title. Did that discovery excuse the appellants from paying or tendering the purchase-money, in pursuance of the terms of the original contract ? The appellants either did or 73 81 SUPREME COURT. Buchannon et al. v. Upshaw. did not know, at the time the purchase-money fell due, that the appellee was not invested with the legal title. If they did know, it was their duty to have tendered the money, demanded a good title, and, at the same time, to have informed the appellee of the defect which existed in the title; and, on the other hand, if they did not know of the defect, they have no excuse for the neglect in making payment. The appellants have presented no valid excuse for the non-payment or tender of the purchase-money, and consequently are not entitled to *091 the relief claimed. -I *The conduct of the appellants, evinced by the institution and prosecution of their separate suits, in Clermont county, against the appellee, to which we have referred in the abstract, at the time this suit was pending in the Circuit Court, does not present them or their case in the most favorable point of view before a court of equity. He who asserts a claim in a court of equity ought to present himself with clean hands and a pure heart, if he expects to receive a favorable response to his petition. Mr. Justice CATRON delivered the opinion of the court. This is an injunction bill, to restrain the defendant from taking out a writ of possession and an execution for costs, on a recovery, of seven hundred acres of land, by Upshaw, in an action of ejectment against the complainants in the Circuit Court of Ohio. They ask a perpetual injunction of the execution, and a specific decree for title. The complainants, and those under whom they claim, purchased from Philip Buckner, paid a full price, and took deeds dated in 1798 and 1799. Buckner purchased from Lyne Shackleford in November, 1797, when the latter had no title to, or interest in the land; Upshaw, the respondent, being the owner. It had been granted to Beverly Roy by the commonwealth of Virginia, in 1789, and sold by Roy to Shackleford. In April, 1797, Shackleford sold to Upshaw, and directed the title to be made to him. On the 20th of July, 1797, Roy conveyed to Upshaw; and in November afterwards, Shackleford sold a second time to Buckner. To remedy this defect of title and want of good faith, in April, 1801, Shackleford entered into a covenant with Upshaw, by which the sale to Buckner, of November, 1797, was confirmed ; and in May, 1803, Shackleford and Upshaw entered into another covenant, again confirming the contract between Shackleford and Buckner; and which is more specific in its terms than the first, of 1801. 74 JANUARY TERM, 1843. 82 Buchannon. et al. v. Upshaw. By these contracts alone Upshaw was bound: and on them the bill is founded, and a specific decree asked. They must be taken together: so the complainants treat them in their bill; nor can the court do otherwise. Upshaw, having stipulated to make title to Buckner, on receiving <£420, the purchase-money, took an assignment r*gg of the covenant *between Buckner and Shackleford; *-on which it appears by the covenant of 1803, £420 was remaining unpaid. It is insisted that a bill for a specific performance of the contracts, could not be maintained until the purchase-money was tendered to Upshaw, the vendor; and of this opinion was the Circuit Court; and principally on this ground, taken in connection with other circumstances, dismissed the bill. We are of opinion that if such a rule exists in any case, it has no application to the one before us. The complainants purchased from Buckner when he had no interest in the land; and at that time they acquired no equity against Upshaw. yet of this fact they had no knowledge, and rested confident that they were occupying and improving the land under a good title. Nor did they have any knowledge of the contracts between Shackleford and Upshaw, after their purchase from Buckner, for many years; probably not until about the time the recovery was had against them in the action of ejectment in 1831. It was not Buckner’s interest to give the information ; and Shackleford took no further trouble on himself in . the matter after 1803; he and Upshaw residing in the remote parts of Virginia, five hundred miles from the complainants. Upshaw admits, in his answer, that he did not know Buckner had sold the land, or that it was in the possession of the complainants, until about the time he brought his first action of ejectment, in October, 1818: that he sued for the land, because he had failed to obtain the purchase-money from Buckner. The suit failed, because the patent from the commonwealth of Virginia was void; the country having been ceded (north of the Ohio river) by Virginia to the United States, before the land was granted. In 1826, Upshaw, on the production of the patent to Roy and his deed, obtained a patent from the United States, in confirmation of the Virginia grant. On this he brought another suit against the complainants; and in 1831, recovered the land. This is the judgment the bill seeks to enjoin. During all this time, Upshaw was a stranger to the complainants : he set up no claim against them for the purchase-inoney due from Buckner to him: he sought the land, and disavowed that Buckner’s contract with the complainants 75 *84 SUPREME COURT. Buchannon et al. v. Upshaw. bound him. And *so he continues to do. His principal defence in the answer to the bill is, That having no contract, or privity of contract, with the purchasers from Buckner, he conceives they can have no right to come into a court of equity to enforce a specific performance of the contract with Buckner.” It is manifest that at no time were these complainants afforded the opportunity to pay the purchase-money due from Buckner to Upshaw. We therefore hold, that complainants were in no default prejudicial to their original equities, for failing to discharge, or offering to discharge, the bond of Buckner. Nor could the complainants be justly charged with sleeping on their rights, had the true state of the facts been known to them. Until 1826, Upshaw was in no situation to comply with his part of the contract; that is, to make title. A court of chancery would have enjoined the payment of the purchasemoney before the patent issued from the United States—and set aside the contract, if the vendor could not have made title. Neither can this be treated as a stale claim, for another reason. The complainants went into possession under Buckner’s deeds, dwelt upon, and in good faith improved the land; and are now seeking to protect their possessions and homes, in affirmance of their deeds. We also hold that there was privity of contract between Upshaw and the complainants. When he sanctioned Shackleford’s contract with Buckner, he became a party to it: Buckner had assigned all its benefits to the complainants, and they must be treated as rightful assignees; with the modifications imposed by the contracts of 1801 and 1803, between Upshaw and Shackleford. The equitable title being in the complainants by a contract complete in all its parts, they are entitled to a specific decree of course, on principles too familiar to require authorities to support them. On this part of the case the court has had neither doubt nor difficulty in arriving at a conclusion favorable to a specific decree. The complainants being entitled to relief, the next question is, on what terms? For as they ask the active aid of the court to coerce performance of the respondent’s contracts, they can #or-| only have such aid on the terms that they do him equity. J A rule * without an exception, within our recollection. Having dealt for an equitable title, complainants took it subject to all the equities existing between their immediate vendor, Buckner, and his vendor, Upshaw. It follows, they must perform the covenants favorable to the defendant found in the 76 JANUARY TERM, 1843. 85 Buchannon et al. v. Upshaw. contracts on which they seek relief. Therefore, before Upshaw can be compelled, to convey the land, he is entitled to receive the purchase-money; unless his right is cut off by the contract, or has been forfeited by his subsequent conduct. The first objection is, that in the contract between Shackleford and Buckner, there is a power given to the latter to sell; until which time Shackleford agreed to wait for a portion of the money: that is, as to £170; provided the resale was made by the 1st of January, 1799: before which time, the sale was made to some of the complainants. It is true in the nature of buying and selling, that where a power of resale is given to the vendee, he has conferred on him the corresponding power to receive payment. But this could not affect Upshaw’s title: Buckner took no interest by his contract with Shackleford; nor did the complainants acquire any by their purchase from Buckner. Their equities originated with Upshaw’s sanction, given after the power had expired. He might sanction the contract of Shackleford with Buckner, or not, at his election; and, of course, modify it to suit his own interest. Having the transaction in his power, he saw proper to become a party to the contract on the terms that he retained a lien on the land for the £420: First, by the covenant of 1801, he bound himself to Shackleford, to proceed against the land if he failed to receive payment from Buckner: and, Secondly, by that of 1803, he bound himself to convey to Buckner on being paid the £420. The bill being founded on these contracts, Upshaw is entitled to be paid the purchase-money, irrespective of the stipulation that Buckner was authorized to resell, by his contract with Shackleford. In the covenants of 1801, and 1803, Upshaw admits that Shackleford sold to Buckner with his consent, and it is insisted for complainants that Upshaw must be held to have authorized Shackleford to sell before the contract of 1797 was made. All the evidence we find in the record of Upshaw’s sanction, is found in the contracts of 1801, and 1803; by these he was not bound to convey until he received payment for j-*™ the land: we think in this modified *form is Upshaw L bound, and that he never intended simply to sanction Shackleford’s sale to Buckner. Next it is contended, respondent was negligent in not collecting a bond upon Coats, on which £250 was due. Upshaw’s covenants have no reference to this security. It was delivered over to Shackleford by Buckner for collection; credit was to be given for the money, if collected, on Buckner s bond. The claim was diligently pursued, but Coats proved insolvent: so that there is nothing in this objection. 77 86 SUPREME COURT. Buchannon et al. v. Upshaw. Again, it is contended, and with much force, that Upshaw was grossly negligent in failing to collect the £420 from Buckner. He received Buckner’s covenant in 1803. In 1804, it was sent by John H. Upshaw from Virginia to Kentucky for collection; the agent was fully authorized to receive the money and to make title to the land on its payment; which Buckner evaded, and the contract was put into the hands of another agent, O’Bannon, who collected $200 from Buckner: and in 1814, Buckner was sued in Upshaw’s name as assignee, and the suit failed because an assignee could not sue upon such an instrument. During this time, Upshaw had no valid title to the land, although there can be no doubt he thought the Virginia patent valid; still he could not have coerced payment from Buckner until 1826, when the patent from the United States was obtained, had the latter resisted payment on this ground. Under all the circumstances we think Upshaw did not forfeit his right to demand the purchase-money from the complainants. Shackleford sold to Buckner two tracts of land; one of a thousand acres, and this in controversy of seven hundred acres, for the gross sum of £1,020; and obtained £600 on Anderson’s bond in part payment. It is insisted that this sum must be applied in discharge of the complainants, as seven hundred is to one thousand; and that they are only bound for the residue. The complainants are compelled to rely on Upshaw’s contracts of 1801 and 1803, to maintain their claim to relief, and to affirm them in all their parts. By these contracts it appears the seven hundred acre tract was estimated at £420, and that no part of the purchase-money for this tract had then been paid by Buckner: he was concluded from asserting the *871 contrary, and so are the complainants. J *The next question is, from what time are the complainants bound to pay interest on the unpaid purchase-money. They insist from the time Upshaw obtained his patent from the United States, in 1826. Respondent insists he is entitled to interest from the time the debt fell due against Buckner, or the 1st of January, 1799. Until the complainants were notified that, as purchasers of Upshaw’s title, they were responsible to him for the purchase-money, and recognized as his debtors, they had no opportunity to make payment: as to them, the debt was payable on demand, express or implied. Respondent admits in the answer that he neither pursued the land, or the purchasers under Buckner, until he failed to obtain payment from the latter. His first assertion of claim, was by the suit in ejectment in 1818; after which the purchasers cannot be 78 JANUARY TERM, 1843. 87 Buchannon et al. v. Upshaw. heard to say, they remained ignorant of the defects in their own title, or of Upshaw’s rights; it was imposed upon them to trace up the outstanding equities, favorable and unfavorable. Had they done so, the contracts of 1801, and 1803, would have been discovered, and the state of the title explained: this complainants did in 1831; and it could have been done quite as conveniently in 1818. We therefore deem the suit equivalent to a demand. That Upshaw had no legal title in 1818, is no excuse: The complainants entered upon, occupied, and enjoyed the fruits of the land, under his title; and could no more be allowed to disavow it while they remained in possession, than could a tenant for years, be permitted to disavow his landlord’s title. So in effect, this court held in Galloway v. Finley, 12 P.et., 264. But being remote purchasers of Upshaw’s title; not from him, but another; and only bound to pay the purchasemoney by the rules adopted by courts of chancery; by the same rules, the complainants are entitled to an abatement of interest in part, accruing on Buckner’s contract: and as the right to receive interest depends on the time when Upshaw notified them that they were held responsible for Buckner’s failure to pay; and the action of ejectment, of October, 1818. being equivalent to a demand of payment, legal interest accrued from that date. This we deem a well-founded principle, where a personal demand existed upon real security, and is brought for- r*oo ward at a late *day. Interest may be allowed at the discretion of the court, only from the time of filing the bill, in such cases. The rule is established in the Court of Chancery in England, and can be properly applied in this case. Pickering v. Lord Stamford, 2 Ves., 272, 582. And under similar circumstances it equally applies where mesne profits are claimed. Acherly v. Roe, 5 Ves., 565. We order that the $200 paid to O’Bannon be deducted from the <£420; leaving $1,200 due: on this sum interest will be allowed from the 15th of October, 1818, until paid. As the record does not show when the action of ejectment was brought, we assume the middle of the month as the true time; the interest to be after the rate of six per cent, per annum. The purchase-money will be apportioned among the complainants, according to the original value of the several tracts when purchased from Buckner: and the price paid to him taken as the measure of value. Those claiming under Buckner’s vendees, will be governed by the same rule, of their vendor’s. If the money is not paid in a limited time, sales 79 88 SUPREME COURT. Buchannon et al. v. Upshaw. will be ordered, of all, or any of the tracts, at the discretion of the Circuit Court, to raise the money. The injunction at law, in so far as to restrain the writ of possession, will be made perpetual: but will be dissolved as to the judgment for costs, so that an execution may issue to collect them. The costs of this suit in the Circuit Court, will be equally divided between the complainants, and the respondent, Upshaw ; they paying half, and he the other half: and the complainants will contribute among each other, in the same proportion that they are bound to do in discharging the decree for the purchase-money. The appellee Upshaw will pay the costs of this court. On the complainants discharging the purchase-money, the contract between Buckner and Shackleford will be assigned to them by Upshaw, if he is required to do so: and he will also be decreed to execute deeds to the complainants for the tracts they respectively claim, in such form, and with such covenants, as the Circuit Court shall direct. The decree of the Circuit Court for the mesne profits, falls of course by the reversal of the principal decree. *ORDER. Edwin Upshaw, Appellant, v. Buchannon and others. 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 on the cross appeal by Edwin Upshaw, and was argued by counsel. On consideration whereof, it is now here adjudged and decreed by this court, that the. said appeal of Edwin Upshaw be and the same is hereby dismissed, with costs. Buchannon and others, Appellants, v. Edwin Upshaw. 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 now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby reversed with costs, and tha this cause be and the same is hereby remanded to the sai Circuit Court, with directions to proceed therein conformab y to the opinion and decree of this court. 80 JANUARY TERM, 1843. 89 Strout et al. v. Foster et al. Jonathan Strout and others, Libellants, &c., Appellants, v. James Foster and others, Claimants, and OWNERS OF THE SHIP LOUISVILLE. If a ship be at anchor, with no sails set, and in a proper place for anchoring, and another ship, under sail, occasions damage to her, the latter is liable.¹ But if the place of anchorage be an improper place, the owners of the vessel which is injured must abide the consequences of the misconduct of the master.² In this case, the anchored vessel was in the thoroughfare of the pass of the Mississippi river. This case originated in the District Court of the United States for the eastern district of Louisiana, was carried, by appeal, to the Circuit Court, and finally brought here. r*nn *There was much contradictory evidence about some L of the facts. Those which were not disputed were these: The Harriet, a ship of about three hundred tons, sailed from New Orleans for London on the 25th of May, 1836. On the 26th, she passed the bar of the Southwest pass, at the mouth of the river, and came to anchor. The ship Louisville, of five hundred tons burden or upwards, was coming in, and a collision ensued between the two vessels. The Harriet was so much damaged that she put back for repairs. Her owners, Jonathan Strout and others, libelled the Louisville. The District Court, after a hearing, decreed in favor of the libellants, and against the ship Louisville, her tackle, apparel, and furniture, in the sum of $2,701.07, and costs of suit. The defendants appealed. The Circuit Court reversed the decree of the District Court, with costs; and remanded the case to the District Court, with instructions to dismiss the libel. The libellants appealed. It was given in evidence on the trial below for the libellants, that, on the 26th of May, 1836, the Harriet was at anchor neai the mouth of the Southwest pass of the Mississippi, outside the bar, on the western side of it, with her sails all furled; that the Louisville was also lying at anchor with her sails ¹ Cited. The Virginia Ehrman, 7 to adopt the means for doing so, she Otto, 315; Hall v. Little, 2 Flipp., 157. is a participant in the wrong and must See Stainback v. Rae, 14 How., 538. divide the loss with the other vessel. S . P. Sterling v. The Jennie Cush- The Sapphire, 11 Wall., 164. man, 3 Cliff., 636; The Lady Frank- ² Cited. The Clarita, 23 Wall., 14. AmT^OW'’ 220; kittle, 18 That the channel is not an im- Alb. L. J., 151; 6 Rep., 577. But if, properplacetoanchor, if room enough during a gale, a vessel at anchor in a be left for vessels to pass, see The Mas-Proper place could avoid a threatened ters, Brown Adm., 342; The Lady collision by another vessel, and fails Franklin, 2 Low., 220. Vol. i.—6 81 90 SUPREME COURT. Strout et al. v. Foster et al. furled, at some considerable distance to the eastward; that the Louisville got under weigh, and stood down to the Southwest pass with all sails set, topsail, and jib, and spanker; that she got within a quarter of a mile of the Harriet, and let go her anchor; that there was no range of cable overhauled; that there was not more than enough cable to let the anchor out of sight; that when the Louisville dropped her anchor, her sails were all set; that she came afoul of the starboard bow of the Harriet, whose helm was hard to starboard, and the jib and fore-top-mast stay-sail set to steer clear; that the people on board of the Harriet bore the Louisville off, and then she came afoul again ; that they bore her off again; that instead of the Louisville making sail aft to bring her up, they set the foretop-sail, and the ship paid off, and came afoul of the Harriet across her bows; that aboard the Harriet they continued to pay out cable, to permit the vessel to go clear; that there was plenty of room for the Louisville to have passed to the eastward of the Harriet, and a good free wind; that the Harriet *qi-i was iying out of the usual track ; that two brigs came down and *went to sea to the eastward of the Harriet, after she had anchored; and that the wind was fresh from the S. E. or S. S. E. On the part of the defendants, it was given in evidence, that the Harriet might have gone to sea when she anchored, as there was wind enough; that she was lying in the thoroughfare of vessels going in and out; that when the Louisville weighed anchor to come in, there was a fresh wind and favorable for coming in; that as she approached the bar, the wind died away; that a strong current set out of the pass; that it was stronger than usual, in consequence of there having been a strong wind the night before from the south; that owing to the lightness of the wind the Louisville drifted; that there was a pilot on board the Louisville, who said some time before, that they would be obliged to go close to the Harriet on one side or the other; that as the Louisville neared the Harriet, the pilot ordered them to let go the anchor and take in sail; that they obeyed the order as soon as they could; that the anchor got afoul of the chain of the Harriet, which had a great scope out; that the chain of the Harriet was not forward of her, but off on the starboard bow; that the Harriet had met with a similar accident in and about the same peace, on a former voyage; that the entrances of passes at the mouth of the Mississippi are very intricate and difficult, on account of the currents and counter-currents ; that as vessels approac the bar, and the water becomes more shoal, they are apt o become unmanageable, particularly when the wind dies away, 82 JANUARY TERM. 1843. 91 Strout et al. v. Foster et al. that when the water is shoal, the under-tow has a great effect, and frequently with the greatest efforts a vessel cannot be steered; that there is one flood-tide every twenty-four hours on the bar, and the under-tow is the consequence of the floodtide setting in and the current out. The opinion of the Circuit Court, as delivered by Mr. Justice McKinley, was as follows: This case comes before this court upon an appeal from the decree of the District Court for the eastern district of Louisiana. The appellees, owners of ship Harriet, filed their libel in the court below, for collision, and upon the trial the court rendered a decree in favor of the libellants, for $2,701.07. By the evidence it appears that the Harriet had passed over the bar through one of the passes or outlets at the mouth of r*p2 the Mississippi river, *outward bound, on the 26th of ■-May, 1836, and came to anchor near the bar. The Louisville, lying below a distance of several miles, weighed anchor with a fresh and favorable wind for coming in, through the same pass; as she approached the bar the wind died away, and the current being stronger than usual, owing to a strong wind from the south the night before, she drifted and ran afoul of the Harriet. These passes, it appears, are intricate and difficult to navigate, and subject to counter and under currents. If the wind die away when a ship is coming in, she is certain to drift and become unmanageable. Knowing these facts, a prudent master would never anchor his vessel in the thoroughfare of one of these passes. The evidence shows, however, that the master of the Harriet did anchor his vessel immediately in the thoroughfare, and that, too, after having been run afoul of by another vessel about a year before, at or near the same place. There are four possibilities under which a collision may occur: First. It may happen without blame being imputable to either party; as when the loss is occasioned by a storm, or any other vis major. In that case the misfortune must be borne by the party on whom it happens to light, the other not being responsible to him in any degree. Secondly. When there has been a want of due diligence or skill on both sides, in such case the rule of law is, that the loss must be apportioned between them, as having been occasioned by the fault of both. Thirdly. It may happen by the misconduct of the suffering party only, and then the rule is, that the sufferer must bear his own burden. 83 92 SUPREME COURT. Strout et al. v. Foster et al. Lastly. It may have been the fault of the ship which run the other down, and in this case, the injured party would be entitled to entire compensation from the other. The Woodrop Sims, 2 Dods., 83. The third rule here laid down, it seems to me, applies with great force to the case under consideration, the misconduct on the part of the master of the Harriet, in anchoring his ship immediately in the thoroughfare, is fully made out by the proof; while, on the contrary, there is no fault proved, going to show mismanagement, want of skill, or negligence on the *qqi Par^ the master of the Louisville. It is true that the -* opinions of some *nautical men, found in the evidence, show that it was possible for the Louisville to have avoided the collision, had everything been done that it was possible to do. But the law imposes no such diligence on the party in this case; so far as the Harriet was concerned, the Louisville was entitled to the full use of the thoroughfare of the pass; the master of the Harriet having obstructed it, with a full knowledge of the danger of doing so, has been guilty of such misconduct as to deprive the appellees of the right of action against the appellants. 3 Hunt’s Con., 230. It was insisted by the counsel of the appellees, that the Harriet being at anchor, and the other ship under sail, that the latter was therefore liable. It is true, if a ship be at anchor, with no sails set and in a proper place for anchoring, and another ship under sail occasions damage to her, the latter is liable. But the place where the Harriet anchored was an improper place, and therefore the appellees must abide the consequences of the misconduct of the master. Wherefore, it is decreed and ordered that the decree of the District. Court be reversed, and held for naught, and that the appellants recover of the appellees their costs in this behalf expended; and it is further decreed and ordered, that this case be remanded to the District Court, with instructions to dismiss the libel of the libellants. Dickens and Hellen, for the appellants. Coxe, for the appellees. The reporter was not present at the argument, and has been furnished only with the notes of Mr. Dickins. Dickins laid down the following propositions: 1. The sea is a public highway or thoroughfare, equally free to all persons and all nations. 84 JANUARY TERM, 1843. 93 Strout et al. v. Foster et al. 2. All persons navigating the high seas have an equal right to sail through, or anchor in any portion of them. 3. All persons navigating the high seas, as aforesaid, are bound to take notice of all such vessels as may have come to an anchor, and so to navigate their vessel as not to run afoul of, or otherwise injure those at anchor. 4. If a vessel under sail runs afoul of a vessel at anchor in the high seas, the vessel in motion is bound to pay all damages. 5. If the universal right of all vessels navigating the high seas to anchor in any part thereof has been restricted, r^gq either by law *or custom, and they are prohibited from L coming to an anchor in certain places, unless at their own risk, it is incumbent upon the party claiming the benefit of such restriction or prohibition, to prove its existence clearly and conclusively; and also to prove, with equal clearness and certainty, the fact, that the vessel complained of was anchored in such prohibited place, and that all ordinary diligence was used by those on board of the vessel in motion, to prevent the accident; otherwise, they will not be released from the payment of the damages sustained by the vessel at anchor. 6. The universal right of all persons navigating the high seas to anchor wherever they may happen to be, or in any place they may think proper, has never been and cannot be restricted, but in certain particular local jurisdictions. 7, and last. If a vessel under sail comes unawares upon one at anchor, they are both bound to use every possible exertion to prevent a collision; and if either is deficient in that respect, it is bound to bear the loss: but should a vessel under sail knowingly and voluntarily attempt to pass one at anchor, and, in so doing, run afoul of her, and thereby cause her to sustain loss or damage, the vessel under sail, although she may have used every possible exertion to prevent the damage, but at a tune when it was too late to avoid the collision, is bound to pay all the losses sustained in consequence thereof by the vessel at anchor. In support of the fourth proposition, he cited Jacobsen’s Sea Laws, (edition by William Frick, in 1818,) p. 339: “ A ship, which, under full sail, occasions damage to another which has no sail set, is liable for all damages.” To sustain the fifth proposition he cited Lock v. Seward, 4 Car. and P., 106; and Foot and Reynold v. Wiswall, 14 Johns. (N.Y.), 304; and for the seventh, Jacobsen’s Sea Laws, 107, art. 36; 1 Bell Com., 580; Story Bailm., 385; 3 Kent Com., 230; Story Bailm., 381, 382; Collinson et al. v. Larkins, 3 Taunt., 1; Haggitt v, Montgomery, 5 Bos. & P., 446; Verplank and another 85 94 SUPREME COURT. City of Mobile ». Emanuel et al. v. Miller and another, 1 Moo. & M., 69; Yates et al. n. Brown et al., 8 Pick. (Mass.), 83; Hawkins v. Dutchess and Orange Steamboat Company, 2 Wend. (N. Y.), 452; Snell, Stagg Co. v. B,ich, 1 Johns. (N. Y.), 305; Dodson’s Admiralty Cases, 471, the case of the Neptune. *qr-. *That all possible diligence should have been used J by the Louisville, he cited Story on Bailments, 334; 3 Pardessus, 79, 652; 1 Wash. C. C., 142; Stone et al. v. Retland, 4 Mart. (La.,) N. S., 399; Martin et al. v. Blythe, 1 McCord, (S. C.), 360. The court being equally divided, the judgment of the Circuit Court was affirmed. order. 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 now here ordered, adjudged 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. Mayor and Aldermen of the City of Mobile, Plaintiffs, v. J. Emanuel and G. S. Gaines, Defendants. The case of the City of Mobile v. Hallett, 16 Pet., 261, examined and con-finned. Under the exception contained in the act of Congress of 1824, no title passed to the City of Mobile, where the land was in the possession of a party claiming to hold it under a Spanish grant which had been confirmed by the United States.¹ This case was brought up by writ of error, from the Supreme Court of the state of Alabama, under the twenty-fifth section of the judiciary act of 1789. The facts in the case were these: On the 26th of September, 1807, the Spanish governor of Florida granted to John Forbes a tract of land immediately adjacent to what is now the city of Mobile, and indeed constituting a part of it. The grant was founded upon, and confirmatory of, an older one issued to Richardson in 1767, by the British government, then in possession of the country. The land was upon the west side of the river Mobile. In the docu- ¹See Pollard v. Files, 2 How., 591; Pollardv. Hagan, 3 Id., 212, 233. 86 JANUARY TERM, 1843. *96 City of Mobile v. Emanuel et al. ment issued *by the surveyor-general, it is said to be “ bounded on the east by said river; ” and in that issued by the intendant, to be “ terminated by the bank of said river on the east side: ” in both, there is a reservation of a “ free passage on the bank of the river.” On the 2d of March, 1819, congress passed “An act to enable the people of the Alabama territory to form a constitution and state government, and for the admission of such state into the Union, on an equal footing with the original states,” by the sixth section of which it was enacted, “ That the following propositions be and the same are hereby offered to the convention of the said territory of Alabama, when formed, for their free acceptance or rejection, which, if accepted by the convention, shall be obligatory upon the United States.” After enumerating many articles, the section concludes with this: “ and that all navigable waters within the said state shall forever remain public highways, free to the citizens of said state and of the United States, without any tax, duty, impost, or toll, therefor, imposed by the said state.” By the original plan of the town a street was laid off, called Water street, on the margin of the river, running nearly north and south, which was afterwards filled up, and by the improvement the water, at high tide, was confined to the eastern edge of the street. On the 26th of May, 1824, congress passed “ An act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city,” which is as follows: 1. “ That all the right and claim of the United States to the lots known as the hospital and bakehouse lots, containing about three-fourths of an acre of land, in the city of Mobile, in the state of Alabama, and also all the right and claim of the United States to all the lots not sold or confirmed to individuals, either by this or any former act, and to which no equitable title exists in favor of any individual, under this or any former act, between high water-mark and the channel of the river, and between Church street and North Boundary street, in front of the said city, be and the same are hereby vested in the mayor and aidermen of the said city of Mobile, for the time being, and their successors in office, for the sole use and benefit of the said city forever. 2. “ That all the right and claim of the United States r*Q7 to so *many of the lots of ground east of Water L street, and between Church street and North Boundary street, now known as water-lots, as are situated between the channel of the river and the front of the lots known under the Span- 87 97 SUPREME COURT. City of Mobile v. Emanuel et al. ish government as water-lots, in the said city of Mobile, whereon improvements have been made, be and the same are hereby vested in the several proprietors and occupants of each of the lots heretofore fronting on the river Mobile, except in cases where such proprietor or occupant has alienated his right to any such lot now designated as a water-lot, or the Spanish government has made a new grant or order of survey for the same during the time at which they had the power to grant the same; in which case the rights and claims of the United States shall be and is hereby vested in the person to whom such alienation, grant, or order of survey was made, or in his legal representative. “ Provided, that nothing in this act contained shall be construed to affect the claim or claims, if any such there be, of any individual or individuals, or of any body politic or corporate.” 7 vol. Laws of the United States, 318; 1 vol. Land Laws, ed. 1838, 398. On the 8th of July, 1835, the mayor and aidermen of the city of Mobile brought an action of trespass to try title against Emanuel and Gaines in the state Circuit Court of Alabama, claiming several lots bounded on the west by Water street, and running eastward to the channel of the river. On the trial of the cause, the jury, under the instructions of the court, found the defendants “ not guilty ” of the trespass. The court charged the jury “that if the place in controversy was, subsequent to the admission of this state into the Union, below both high and low water-mark, then congress had no right to grant it; and if defendants were in possession, the plaintiffs could not oust them, by virtue of the act of congress. “That the grant to Forbes extended to high water-mark, and that if the place claimed was between high water-mark and the channel, in front of the grant, and had been reclaimed by the defendants; then the plaintiffs could not recover in virtue of the act of congress, and this, notwithstanding the reservation of the right of way specified in the confirmation of the grant to Forbes.” *981 *Upon this charge a bill of exceptions was founded, -* and the case carried to the Supreme Court of the state of Alabama, where the judgment of the court below was affirmed. It is necessary to refer to the opinion of the Supreme Court of the state of Alabama, in order to understand the ground upon which the dissentient opinion of Mr. Justice Catron is placed. The Supreme Court of Alabama did not decide the first 88 JANUARY TERM, 1843. 98 City of Mobile v. Emanuel et al. point raised in the bill of exceptions, viz., “ that Congress had -no right to grant the land to the city of Mobile.” But being of opinion that the grant to Forbes conveyed to him the intervening space between high water-mark and the channel of the river, (covering the property in dispute,) and thus precluded the plaintiffs- from ever recovering it; and being moreover of opinion, that a judgment ought not to be reversed for a misdirection of the judge to the jury, if it appears that the party complaining could not have been injured, that court waived all examination into the correctness of the first point, and contented itself with affirming the judgment of the court below. Test, for the plaintiffs in error. Sergeants, for the defendants. I Mr. Justice McLEAN delivered the opinion of the court. This cause is brought to this court by a writ of error to the Supreme Court of Alabama. An action of trespass to try the title to a certain lot or piece of ground in the city of Mobile, was commenced by the plaintiffs against the defendants, in the Circuit Court of the state. Issue being joined, a jury were empannelled, who rendered a verdict of not guilty. As the right of the plaintiffs was asserted, exclusively, under an act of Congress, and the decision being against that right, the plaintiffs, having excepted to certain rulings of the court on the trial, prosecuted this writ of error, under the twenty-fifth section of the judiciary act of 1789. The bill of exceptions states that it was proved the defendants were in possession of the premises described in the declaration, at the time the suit was brought. An act of Congress, entitled “ An act, granting certain lots of ground to the corporation of the city of Mobile, and r*nn to certain individuals of said city,” passed 20th May 1824, was read: also “ A resolution of the mayor and aidermen of the city of Mobile, passed the 23d day of April, 1834, in the following words: ‘ Resolved, that the map of the city as now shown to the board, be accepted and approved; and it is further resolved that the names of the streets be the same as heretofore established.’ ” It was also proved by the plaintiffs that the map referred to was one published by Goodwin & Haise, a copperplate copy of which was offered in evidence; a copy of such parts of said map as is necessary to refer to is annexed. It was also proved that there never had been a street in 89 99 SUPREME COURT. City of Mobile v. Emanuel et al. ’ Mobile, known as North Boundary street. And also, that the premises in question were situate, in May, 1824, between Church street, south of Adams street, and below high water as well as low water-mark, and the channel of the river. It was also proved that the premises were north of St. Louis street, as laid out in said map, and that in 1824, Water street did not extend to St. Louis street, and that at that time buildings were few and scattered above St. Louis street. The defendants offered m evidence a grant from the Spanish government, and proved that they claimed title to the premises under that grant. The court charged the jury that, “ if the place in controversy was, subsequent to the admission of this state into the Union, below both high and low water-mark, then Congress had no right to grant it; and if defendants were in possession, the plaintiffs could not oust them, by virtue of the act of Congress. That the grant to Forbes extended to high watermark, and that if the place claimed was between high watermark and the channel, in front of the grant, and had been reclaimed by the defendants, then the plaintiffs could not recover in virtue of the act of Congress, and this, notwithstanding the reservation of the right of way specified in the confirmation of the grant to Forbes.” It appeared that on the 9th January, 1767, the English government, being then in possession of the country, had granted the land in controversy to William Richardson; and that a grant of the same land was made to John Forbes & Co., the assignees of Richardson, by the Spanish authority, the 26th *1001 September, 1807. In the British grant the land “ was J bounded east by the *river Mobile,” and by the Spanish “ by the bank of the river,” “ leaving a free passage on the bank,” &c. The case was removed by writ of error from the Circuit Court to the Supreme Court of the state, in which judgment was affirmed. The first section of the act of 1824, referred to in the bill of exceptions, vests “in the mayor and aidermen of the city of Mobile, for the time being, and their successors in office, for the sole use and benefit of the city, forever, all the right and claim of the United States to all the lots not sold or confirmed to individuals, either by that or- any former act, and to which no equitable title exists in favor of an individual under that or any other act, between high water-mark and the channel of the river, and between Church street and North Boun dary street, in front of the city.” And the second section of the act “ excepts from the opera-90 JANUARY TERM, 1843. 100 City of Mobile v. Emanuel et al. tion of the law, cases where the Spanish government had made a new grant or order of survey for the same, during the time at which they had the power to grant the same; in which case, the right and claim of the United States shall be and is hereby vested in the person to whom such alienation, grant, or order of survey, was made, or in his legal representative.” In principle this case is similar to that of the City of Mobile v. Hallett, 16 Pet., 261. In that cause the court say, “ From the bill of exceptions, it appears that the defendant was in possession of the land in controversy under a Spanish grant, which was confirmed by the United States; and that the land extended to the Mobile river. It was then within the exception in the act of 1824, and no right vested in the plaintiffs. We think, therefore, that the instruction of the Circuit Court to this effect, was right.” The same language is equally applicable to the case under consideration. And it appears that the judgment of the Circuit Court was affirmed by the Supreme Court of Alabama, on the ground that “ there was no vacant space between high and low water-mark; all having been sold and confirmed to Forbes,” under his Spanish grant. The Spanish grant being an exception in the act, under which the plaintiffs claim, the instruction of the Circuit Court in favor of the defendant was correct. The judgment of the Supreme Court of Alabama is affirmed. *Mr. Justice CATRON dissented. The premises in controversy lie in front of the city of Mobile, and are claimed by the corporation, by virtue of the act of Congress, of May 20, 1824. They lie both below high and low water-mark. The court charged the jury that, if the place in controversy was, subsequent to the admission of this state into the Union, below both high and low water-mark, then Congress had no right to grant it, and if defendants were in possession, the plaintiffs could not oust them, by virtue of the act of Congress. That the grant to Forbes extended to high water-mark, and that if the place claimed was between high water-mark, and the channel, in front of the grant, and had been reclaimed by defendants, then the plaintiffs could not recover in virtue of the act of Congress, and this, notwithstanding the reservation of the rights of way specified in the confirmation of the grant to Forbes. To all of which charge the counsel of the plaintiffs excepted. The jury found a general verdict of not guilty. As Alabama was admitted into the Union, December 14, 1819, the first instruction was conclusive of the plaintiffs’ title. On the 91 101 SUPREME COURT. City of Mobile v. Emanuel et al. admitted fact, that the land lay under the water in 1824, the court pronounced the act of Congress void. The second instruction depends on the fact, “whether the defendant had reclaimed the land in front of the grant of Forbes.” There is no evidence in the record that he had done so; and all the evidence purports to have been set out. A writ of error was prosecuted to the Supreme Court of Alabama. That court simply affirmed the judgment of the Circuit Court: and from that affirmance a writ of error was prosecuted to this court, by the corporation of the city of Mobile, under the twenty-fifth section of the judiciary act. One error assigned in the Supreme Court of Alabama, was, “ That the charge of the circuit judge denies, that the United States had right and power to grant the premises in question.” On the general affirmance, can this court take jurisdiction and reverse, because the first instruction was erroneous. In the case of the same plaintiffs against Eslava, 16 Peters, 246, the majority of the court held, that the opinion of the Su-*1021 Preme Court of Alabama certified as part of the record, -I was no part of it. *Speaking of the opinion, the court says: “ Their opinion constitutes no part of the record, and is not properly a part of the case. We must look to the points raised by the exceptions in the Circuit Court, as the only questions for our consideration and decision.” And so this court held, in even a stronger case (Gordon v. Longest, 16 Pet., 103), where there had been a general affirmance of the judgment below, by the Supreme Court of Kentucky. In Eslava's case, I thought the opinion of the Supreme Court of Alabama formed part of the record: in that case, as in this, the opinion was found in the paper book; but a majority of the court ruled it out, as no part of the record; to which decision I Submit, of course. Looking only to the points raised by the exceptions in the Circuit Court, and we find it established with a plainness admitting of no doubt, that Alabama claims to hold as her own, and does actually hold, by force of her judicial decisions, all the lands within the state, flowed by tide water: and that this claim is founded, on an implied cession of the lands under tide water, by the United States to Alabama, as a consequence of the sanction given by Congress to the state constitution. The disastrous results of this assumption on part of the state courts of Alabama, I endeavored to point out (so far as pressure of circumstances would permit), in my opinions in the cases of these plaintiffs against Eslava and Hallett, 16 Pet., 247 and 263. 92 JANUARY TERM, 1843. 102 City of Mobile v. Emanuel et al. That the United States had the undoubted title before the adoption of the constitution of Alabama, has never been denied by any one; and that the state acquired title by that event has not been proved, nor can it be, as I think: nor is it perceived how the question can be avoided in the cause before us, unless we look beyond the record. I therefore believe the judgment should be reversed because there was error in the first instruction. For my reasons I refer to the opinions in the cases of Eslava and Hallet. To these I will add, that it is impossible for this court to follow the decisions of the Supreme Court of Alabama, without overruling the decision in Pollard’s Heirs v. Kibbie, 14 Pet., 353. William Pollard claimed a square of land below high water-mark fronting the city of Mobile: the claim was founded originally on a Spanish concession, made in 1809. This *was L merely void, as was held in Foster Elam v. Neilson, 2 Pet., 254, and in Garcia v. Lee, 12 Pet., 511. By the 2d section of the act of 1824, the land was excepted from its operation and did not pass to the city of Mobile. 14 Pet., 364, 365, 366. The title to the square claimed by Pollard therefore remained in the United States until it was granted to his heirs, by a private act of Congress of 1836, and a patent founded on the act, dated in 1837. This court maintained the title, and a recovery was had on the act of 1836, and the patent from the government. If the act of 1824 is void, because Congress had no power to grant the lands below the flow of the tides; so is equally, and as certainly, the act of 1836, and the patent founded on it. Forbes owned the land, in front of the land granted to Pollard’s heirs: Forbes’s grant extended to high water-mark; was dated in 1802; and was undisputed. This court held in effect that it was bounded, and could not extend by implication beyond the high water-mark. So is the undoubted construction of grants for lands fronting tide waters. A grant of lands on each side of an arm of the sea, and embracing it, does not pass the land under the water by general words; there must be special words of grant, showing plainly the land covered with water, was intended to be granted: without such explicit words of grant, the high lands only pass. Such is the settled doctrine of this court. Martin v. Waddel, 16 Pet., 367. Forbes therefore could not claim as riparian owner, the land granted on his front, to Pollard: to hold otherwise would overrule the decision of Martin v. Waddel. In any aspect this controversy can be presented, it falls within the decision of Pollard v. Kibbie: that case must be 93 103 SUPREME COURT. United States v. Linn et al. overruled, if the doctrine of the courts of Alabama is maintained. order. This cause came on to be heard on the transcript of the record from the Supreme Court of the state of Alabama, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be and the same is hereby affirmed, with costs. #104-. *The United States, Plaintiffs in error, v. Wil-liam Linn and others. A plaintiff may, in an action in form ex delicto against several defendants, enter a nolle prosequi against one of them. But in actions in form ex contractu, unless the defence be merely in the personal discharge of one of the defendants, a nolle prosequi cannot be entered as to one defendant without discharging the other.¹ Qu. Whether a plea which sets up new matter and concludes “ to the country ” is good. A plea alleging merely that seals were affixed to a bond without the consent of the defendant, without also alleging that it was done with the knowledge, or by the authority or direction of the plaintiffs, is not sufficient. A plea, which has on the face of it two intendments, ought to be construed most strongly against the party who pleads it. A party who claims under an instrument which appears on its face to have been altered, is bound to explain the alteration ; but not so, when the alteration is averred by the opposite party, and it does not appear upon the face of the instrument.² Where the plea is bad and the demurrer is to the plea, the court having the whole record before them, will go back to the first error.⁸ ¹ S. P. Tolman v. Spaulding, 3 Scam. v. Gratz, Pet. C. C., 369; Hodge v. (Ill.), 13; Klinger v. Brownell, 5 Gilman, 20 Ill., 437; Jackson v. Os-Blackf. (Ind.), 332 ; Hallv. Rochester, born, 2 Wend. (N. Y.), 555; Hun-3 Cow. (N. Y.), 374 ; Judson v. Gib- tington n. Fitch, 3 Ohio St., 455. bons, 5 Wend. (N. Y.), 224 ; Ashley v. ⁸ S. P. Townsend v. Jemison, 7 How., Hyde, 6 Ark., 92. If one of the de- 706 ; United States v. Sawyer, 1 Gall., fendants pleads infancy, a nolle may 86 ; Bockee n. Crosby, 2 Paine, 432, be entered against him. Woodward Egbert v. Dibble, 3 McLean, 86 ; Hart v. Newhall, 1 Pick. (Mass.), 500. So v. Rose, Hempst.,238. Wheresever-of the plea of coverture, Bridman v. al pleas are demurred to and any one Vanderslice, 2 Rawle (Pa.), 334 ; Pell of them is good, the defendant win v. Pell, 20 Johns. (N. Y.), 126. And have judgment. Vermont v. Soc. jor in Missouri a nolle may be entered as Propagating the Gospel, 2 Paⁱye> ⁵⁴ ' to one of the defendants in an action A demurrer to a plea reaches the want on a joint note made by both. Brown of a verification, if necessary. Mca v. Pearson, 8 Mo., 159 ; Moore n. pin v. May, 1 Stew. (Ala.), 520. -»ut Otis, 18 Mo., 118. such a demurrer will not open pieaa- ² Explained. Smith v. United ings prior to a previous demurrer. States, 2 Wall., 231. S. P. Prevost Rogers v. Smiley, 2 Port. (Ala.), zw- 94 JANUARY TERM, 1 843. 104 United States v Linn et al. Where the date of a surety bond is subsequent to the appointment of the principal to office, the declaration should allege that the money collected by the principal remained in his hands at the time when the surety bond was executed.⁴ This case came up by writ of error from the Circuit Court of the United States for the district of Illinois, and is a sequel to the case between the same parties reported in 15 Pet., 291, et seq. The circumstances are sufficiently set forth in the opinion of the court. Legarg, the attorney-general, for the United States. Coxe, for the defendants. Mr. Justice THOMPSON delivered the opinion of the court. This case comes up on a writ of error from the Circuit Court of the United States for the district of Illinois. The writ or summons issued in the cause purports to be in a plea of debt for one hundred thousand dollars. And the declaration contains three counts upon the following instrument, which upon oyer craved by the defendants is set out upon the record. *“ Know all men by these presents, that we, William L Linn, David B. Waterman, Lemuel Lee, James M. Duncan, John Hall, William Walters, Asahel Lee, William L. D. Ewing, Alexander P. Field, and Joseph Duncan, are held and firmly bound unto the United States of America, in the full and just sum of one hundred thousand dollars, money of the United States, to which payment, well and truly to be made, we bind ourselves jointly and severally, our joint and several heirs, executors, and administrators, firmly by these presents, sealed with our seals, and dated this first day of August, in the year one thousand eight hundred and thirty-six.” They also crave oyer of the condition of the said supposed writing obligatory, and it is read to them in these words: “ The condition of the foregoing obligation is such, that whereas the President of the United States hath, pursuant to law, appointed the said William Linn receiver of public moneys for the district, of lands Nor will a demurrer relate back to the tley, 31 Ill., 515; Ward v. Stout, 32 first defect if that has been cured by Ill., 399. Nor does it apply to faults appearance. McFadden y. Fortier, 20 of mere form, Aurora City v. West, Ill., 509. The rule is not applicable 7 Wall., 82 ; Failroad Co. v. Harris, where the demurrer is to a plea in 12 Id., 65. In Georgia the rule is not abatement. Ry an v. May, 14 Ill., 49 ; in force. Wynn v. Lee, 5 Ga., 217. or to a plea of the general issue put in ⁴ Cited. Van Sickel v. Buffalo to the whole declaration. Wilson v. County, 13 Neb., 119. Myrick, 26 Ill., 34; Schofield v. Set- 95 105 SUPREME COURT. United States v. Linn et al. subject to sale at Vandalia, in the state of Illinois, for the term of four years, from the 12th day of January, 1835, by commission bearing -- 12th February, 1835. Now, there- fore, if the said William Linn shall faithfully execute and discharge the duties of his office, then the above obligation to be void and of none effect, otherwise it shall abide and remain in full force and virtue. Sealed and delivered in the presence of Presley G. Pollock, as to Wm. Linn, D. B. Waterman, Lemuel Lee, J. M. Duncan, John Hall, Wm. Walters, Asahel Lee, Wm. L. D. Ewing, and A. P. Field; A. Caldwell as to Joseph Duncan. William Linn, [l. s.] D. B. Waterman, [l. s.] Lemuel Lee, [l. s.] J. M. Duncan, [l. s.j John Hall, [l. s.] Wm. Walters, [l. s.J Asahel Lee, [l. s.] Wm. L. D. Ewing, [l. s.j A. P. Field, [l. s.] Joseph Duncan, [l. s.j General Land Office. Approved, August 30, 1836. ETHAN A. BROWN.” To the first count, which purports to be debt on the bond, the defendants plead jointly non est factum and several other pleas not necessary here to be noticed. To the second and third counts which are upon the same *10/>-| instrument, not described however as a bond, but as a -I certain instrument in writing—to these counts the defendant, Joseph Duncan, put in the following plea: “And the said Joseph Duncan impleaded as aforesaid, by Logan and Brown, his attorneys, comes and defends the wrong and injury, when, &c. And as to the said second and third counts in the said plaintiffs’ declaration contained, says that the said plaintiffs their said action on the said second and third counts ought not to have or maintain against him, this defendant; because, he says, that protesting that he executed the supposed written instrument declared upon in the said second and third counts of the plaintiffs’ amended declaration, he says that after he had signed said instrument, and delivered it to his co-defendant, Linn, to be transmitted to the plaintiffs ; and after the securities to the said written instrument had been affixed (approved) by the Hon. Nathaniel Pope, Judge of the District Court of the United States for the state of Illinois, it was, without the consent, direction, or authority of said Joseph Duncan, materially altered in this—that scrawls, by way of seals, were affixed to the signature of said Joseph Duncan to said written instrument, and to the signatures of the other parties to said written instrument, whereby the character 96 JANUARY TERM, 1843. 10Q United States v. Linn et al. and effect of the said written instrument, declared in the second and third counts aforesaid, was materially changed, and said instrument declared on, vitiated. “And so said Duncan says, that the said supposed written instrument declared on in the second and third counts of plaintiffs’ amended declaration, is not his act and instrument, —and of this he puts himself upon the country.” To which plea there is interposed a special demurrer, and the court gave judgment for the defendant Joseph Duncan upon the demurrer, thereby adjudging that the plea was sufficient in law to bar the plaintiffs from maintaining their action against him. And issues being joined upon the pleas to the first count, the cause came on to be tried by a jury, and under the instructions of the court a verdict was found for the defendants upon the issues of fact. Exceptions were taken to the instructions of the court to the jury. And the correctness of such instructions is the first question presented on this writ of error. Upon the trial, after reading the bond to the jury, the defendants called a witness, who testified in substance, that he saw the *bond after it had been signed by the obligors, in the hands of William Linn, the obligor first named therein, after it had been returned from the district judge with his certificate endorsed of the sufficiency of the sureties. That the district judge, in a note in writing, accompanying the bond, had pointed out the omission of seals to the names of the signers of the instrument; and said Linn, saying he would obviate that difficulty, took a pen, and in the presence of the witness, added scrawls, by way of seals, to each name subscribed, as makers of the instrument. Other testimony was given, under the issues of fact, which it is not material to notice. Upon this evidence the court gave the following instruction to the jury: “ If they shall find from the evidence, that after the instrument upon which the action is brought, was signed by the defendants, it was altered by William Linn, one of the defendants, without the knowledge or assent of the other defendants, by adding to the names of the defendants the scrawl seals which now appear upon the face of the instrument, and such defendants have not at any time since the alteration sanctioned it, the instrument is not the deed of such defendants, and the jury will find a verdict in their favor.” And the question is, whether this instruction was in point of law correct, under the pleadings and evidence in the cause. All the defendants united in a joint plea of non est factum, and the proof was that the Vol. i.—7 97 107 SUPREME COURT. United States v. Linn et al. scrawls were added by Linn to his own name and to the - names of the other defendants. The adding the scrawl by Linn to his own name did not vitiate the instrument as to him: he had a right to add the seal, or at least, he can have ’ no right to set up his own act in this respect to avoid his own deed. It was therefore his deed, and the plea of non est factum as to him is false. And the question is, whether it is not false as to all who joined him in the plea of non est factum. It is laid down by Chitty in his Treatise on Pleading, that a plea which is bad in part is bad in toto. If therefore two defendants join in a plea, which is sufficient for one but not for the other, the plea is- bad as to both. For the court cannot sever it, and say that one is guilty, and that the other is not, when they put themselves on the same terms. Chitty, 598. A plaintiff may in an action in form ex delicto against several *1081 defendants, enter a nolle prosequi as to one of them. But -I in *actions in form ex contractu, unless the defence be merely in the personal discharge of one of the defendants, a nolle prosequi cannot be entered, as to one defendant, without discharging the other, for the cause of action is entire and indivisible. Chitty, 599. The rule laid down by Chitty is fully sustained by the English and American decisions. In Smith v. Bouchin et al., 2 Str., 993, the action was trespass and false imprisonment; plea not guilty by all, and a justification as to eight days’ imprisonment. And the court held, that although the officer and jailer might have been excused, if they had pleaded severally, but having joined in the plea with others who could not justify, they had forfeited their justification. In Moors v. Parker and others, 3 Mass., 310, the action was trespass de bonis asportatis against several, and all join in the plea of not guilty, and also in a plea of justification. The court held that the bar set up was no justification for one of the defendants, and if several defendants joip in pleading in bar, if the plea is bad as to one defendant it is bad as to all. So in the case of Schermerhorne and others v. Tripp, 2 Cai. (N. Y.), 108, which was in error from a Court of Common Pleas. The action was trespass against a justice of the peace, the constable, and the plaintiff, and all joined in a plea of not guilty. The court said, the constable having joined with the others in the plea of the general issue, they are all equally trespassers. If he had pleaded separately, he would probably have been excused; but he has now involved himself with others, and we cannot separate their fates. It is unnecessary to multiply authorities on this point, the books are full of them, and it is a well settled and established rule in pleading. The reason is, because the plea, being 98 JANUARY TERM, 1843. 108 United States v. Linn et al. entire, cannot be good in part and bad in part, an entire plea not being divisible, and consequently, if the matter jointly pleaded be insufficient as to one of the parties, it is so in toto. 1 Saund. 28, n. (2,) and cases there cited. It has been suggested that this objection is waived by the following entry in the bill of exceptions: “A judgment having been obtained against Linn for the full amount of his defalcation, a judgment on this bond was not asked against him or any of the defendants, unless the jury shall find against pqqa all the defendants.” *It is not perceived how this can L be considered a waiver of any error. No judgment could have been given against Linn separately, the plea of non est factum being joint. But the plaintiffs, according to the express terms of this memorandum, did ask a verdict and judgment against all the defendants; and if from the pleadings and evidence they were entitled to judgment against all, as we think they were, there was no waiver that will justify the instructions given to the jury. The next question arises upon the special demurrer to the plea of Joseph Duncan to the second and third counts of the declaration. This plea sets up new matter, to avoid the instrument upon which the action is founded, and concludes to the country. And it may well be questioned, whether upon the best and soundest rules of pleading it ought not to have concluded with a verification. Chitty, in his Treatise on Pleading, (1 Chit. Pl., 590,) says it is an established rule in pleading, that whenever new matter is introduced on either side, the pleading must conclude with a verification, in order that the other party may have an opportunity of answering it. And this rule has the sanction of many adjudged cases. In the case of Service v. Heermance, 1 Johns. (N. Y.), 92, the court say there is no rule in pleading, better or more universally established, than, that whenever new matter is introduced the pleading must conclude with an averment. And the reason, say the court, is obvious, because the plaintiff might otherwise be precluded from setting forth matter which would maintain his action, although the matter pleaded by the defendant might be true. And in Henderson v. Whitby and others, 2 T. R., 576, Buller, Justice, in giving the judgment of the court, said : By the rules of pleading, whenever new matter is introduced, the other party must have an opportunity of answering it. So that the replication setting up new matter concluded properly with an averment. Numerous authorities, both in England and in the United States, might be cited iq support of this rule. But there is certainly no littlp confusion and diversity of opinion appearing in the books with 99 109 SUPREME COURT. United States 1?. Linn et al. respect to the question, when the pleadings ought to conclude to the country, and when with a verification. Many of these discrepancies may grow out of rules, said, by Mr. Chitty, to *1101 bave been recently established in the English courts -> relating to pleadings, which have not fallen under our *notice. We will, however, pass by the demurrer for that cause in the present case, and proceed to an examination of the special matter set up in the plea in bar of the action. If this mode of pleading be adopted, the special matter set up must, as in a special plea, be such, that if true in point of fact, it will bar the action and defeat the plaintiff’s right to recover. The matter set up in this plea, when stripped of some circumlocution, is, that after he, Joseph Duncan, and the other parties to the instrument, had signed the same, it was, without his consent, direction, or authority, altered by affixing seals to their signatures. The plea does not indicate in any manner by whom the alteration was made. It does not allege that it was done with the knowledge or by the authority or direction of the plaintiffs; nor does it even deny that it was done with the knowledge of the defendant, Joseph Duncan. The plea does not contain any allegation inconsistent with the conclusion, that it was altered by a stranger, without the knowledge or consent of the plaintiffs, and if so, it would not have affected the validity of the instrument. It is said that the demurrer admits the truth of the matter set up in the plea. The demurrer admits whatever is well pleaded. But it does not admit any more, and certainly does not admit what is not pleaded at all. The demurrer then admits nothing more than that the seals were affixed after the instrument had been signed by the parties and delivered to Linn to be transmitted to the plaintiffs, and that this was done, without the consent, direction, or authority of him, the said Joseph Duncan. Is this enough to avoid the instrument and bar the recovery ? It certainly is not; for the seals might have been affixed by a stranger without the knowledge or authority of the plaintiffs, and would not have affected the validity of the instrument. The plea not alleging by whom the seals were affixed, it is open to two intendments. Either that this was made by the plaintiffs, which would make the instrument void, or that it was done by a stranger, which would not invalidate it. And what is the rule of construction of such a plea ? It is, that it is to be construed most strongly against the defendant. This is the rule laid down by Chitty, 1 Chit. Pl., 578, and in which he is supported by numerous authorities. And the reason *1111 assigned for this rule of construction, is, that it is a J natural presumption, that the party pleading will *state 100 JANUARY TERM, 1843. Ill United States v. Linn et al. his case as favorably as he can for himself. And if he do not state it with all its legal circumstances, the case is not in fact favorable to him; and the rule of construction in such case is, that if a plea has on the face of it two intendments, it shall be taken most strongly against the defendant; that is, says he, the most unfavorable meaning shall be put upon the plea; a rule which obtains also in other pleadings; and a number of cases are put, illustrating this rule. The present plea falls directly within it. The plea not alleging by whom the seals were affixed, it is left open to intendment, that it was done either by the plaintiffs or by a stranger. In the first case, it would make the deed void; in the last, it would not vitiate it. And under the rule that has been stated, the most unfavorable meaning must be put upon the plea; that is, that which will operate most against the party pleading it. And the alteration must be presumed to have been made so as not to vitiate the instrument, if the plea will admit of such construction. Suppose the plea had concluded with a verification, and the plaintiffs had replied that the affixing the seal was done without their knowledge, consent, or authority, and this state of the case had been sustained by the proof, it would not have avoided the instrument. But, it is said, the law imposes upon the party who claims under the instrument the burden of explaining the alteration. This is the rule, undoubtedly, where the alteration appears on the face of the instrument, as an erasure, interlineation, and the like. In such case, the party having the possession of the instrument and claiming under it, ought to be called upon to explain it. It is presumed to have been done while in his possession. But, where no such prima facie evidence exists, there can be no good reason why this should devolve upon a party, simply because he claims under the instrument. The plea avers the alteration, and the defendant, therefore, holds the affirmative; and the general rule is, that he who holds the affirmative must prove it. And this, under the present plea, can impose no hardship on the defendant, for his affirming the fact of alteration affords a reasonable presumption that he knew by whom the alteration was made. And, in addition to this, it is a circumstance deserving considerable weight, that the defendant in his plea does not deny his having such knowledge. He avers that the seal was affixed without *his consent, direction, or authority; but he does not say *-it was done without his knowledge. And it is not an unreasonable inference that if he had, in his plea, disclosed by whom it was done, it would appear to have been done in a. way that did not affect the validity of the instrument. There 101 112 SUPREME COURT. United States v. Linn et al. is not upon the face of this instrument any thing indicating an alteration, or casting a suspicion upon its validity, that should put the plaintiffs upon inquiry. The instrument upon its face admits that it was sealed with the seals of the defend ants, and purports to have been sealed and delivered, in the common conclusion of a sealed bond. So that, when the instrument came into the possession of the plaintiffs, there was nothing on the face of it to raise a suspicion against its validity. The case of Henman v. Dickinson, 5 Bing., 183, has been relied upon to show that the onus of accounting for the alteration is thrown upon the plaintiffs. All that this case decides is, that the party who sues on an instrument which on the face of it appears to have been altered, it is for him to show that the alteration has not been improperly made. The circumstance of the alteration appearing on the face of the instrument is emphatically relied upon by the court to show that the party claiming under the instrument must account for the alteration. This was a question of evidence upon the trial, and did not arise upon the pleadings, and the report of the case does not furnish us with the pleadings. Many other cases might be cited to the same effect. In the case of Taylor n. Mosely, 6 Car. & P., 273, the bill upon which the suit was brought appeared on its face to have been altered, and there was no evidence on either side when or by whom the alteration was made; and the question was submitted to the jury by Lord Lyndehurst, with the remark, that it lay on the plaintiff to account for the suspicious form and obvious alteration of the note, and they must judge from the inspection of the instrument, and if they thought the alteration was made after the completion of the bill, the verr diet must be for the defendant. In the case now before the court, the inspection of the instrument furnishes no ground of suspicion, and from the facts stated in the plea, there must have been a considerable distance of time after the instrument was signed by Duncan before it came into the possession of the plaintiffs. The plea alleges that it was delivered to Linn, one of the defendants, to be transmitted to the *plaintiffs. -• But the plea does not allege that the alteration was made after the instrument came into the possession of the plaintiffs; and under this state of facts alleged in the plea, the onus of proving when and by whom altered, is more properly cast upon the defendant. We are accordingly of opinion that the plea is bad. But it is a settled rule that, when the demurrer is to the plea, the court having the whole record before them will go back to the first error: and when the demurrer is by the plaintiff, his own pleadings must be scruti- 102 JANUARY TERM, 1843. 113 United States v. Linn et al. nized, and the court will notice all exceptions to the declaration that might have been taken on general demurrer. We are accordingly thrown back on the record to examine the sufficiency of the declaration in the second and third counts. The second count sets out the instrument as of the date of the 1st of April, 1836. That Linn’s commission bears date the 12th of February, 1835, and that he was appointed receiver for four years from the 12th of January, 1835. And the count then alleges that after the making and delivering the said instrument in writing, and after the appointment of the said Linn, he entered upon the duties of his office; and that within four years from the said 12th day of January, and while he was receiver of public moneys, there came into his hands, as receiver, the sum of four millions of dollars, which it was his duty to pay over to the plaintiffs when requested, yet the said William Linn hath not, nor would he, although often requested so to do, to wit on the 2d day of April, in the year 1838, account for and pay over to the said plaintiffs the said sums of money or any part thereof, but hath wholly neglected and refused so to do. It is said this count is bad, because from the time stated in the count he might have received the money after the 12th day of January, 1835, the commencement of his office, and before the 1st day of April, 1836, when the instrument signed by the sureties bears date, and that the sureties cannot be responsible for any moneys received before they became sureties. The count alleges a demand of the money and a refusal to pay it on the 2d day of April in the year 1838, long after the defendant became surety. In the case of Farrar and Brown v. The United States, 5 Pet., 373, (which was an action upon a bond given for the faithful discharge of the duties of a surveyor of the public lands,) the breach assigned was, *that at the time of the exe- j-*., . cution of the bond, “ there were in the hands of the L surveyor large sums of money to be disbursed for the use of the United States, which he had neglected to do.” And one of the questions which arose was, whether the sureties could be made liable for any moneys paid to the sur-Teyor prior to the execution of the bond; and the court said ¿here is but one ground on which the sureties can be made answerable, and that was on the assumption that the money was still remaining in his hands when the bond was given. And in the case of The United States v. Boyd, 15 Pet., 208, the court said it matters not at what time the moneys had been received, if after the appointment of the officer they were held by him in trust for the United States, and so continued to be held at and after the date of the bond. In these 103 114 SUPREME COURT. United States v. Linn et al. cases there was a direct allegation that the money was in the hands of the officer at the date of the bond. In the case now before the court, there is no such direct allegation, and this count is therefore bad on this ground. The third count is also bad for the same reason. The judgment of the Circuit Court must accordingly be reversed, and the cause sent back for further proceedings. Mr. Justice McLEAN dissented. The joint plea of non est factum to the first count in the declaration being bad against Linn, is undoubtedly bad against the other defendants. But this point was not raised in the Circuit Court. It was not intended to be raised. On the contrary, the counsel agreed to submit the question under the plea, whether the annexation of the seals by Linn vitiated the bond as against the sureties. And the reason for this was stated in the following entry on the record: “A judgment having been obtained against Linn for the full amount of his defalcation, a judgment on this bond was not asked against him or any of the defendants, unless the jury shall find against all the defendants.” This agreement was treated by the counsel on both sides, in the Circuit Court, as waiving any technical question arising on the pleading. No one could doubt that the bond was good against Linn. And it is equally clear that, technically, the plea was bad for the other defendants, it being bad as to Linn. -< r-. And it was to avoid any technicality of this kind that -* the agreement *was entered into. It is less definite than it should have been, but still its object seems to be manifest. That a construction here would be given to the agreement different from that which was given to it by the United States attorney in the Circuit Court, was not expected. His construction is shown from the fact of his not having suggested any objection to the court below arising on the joint plea. The plea of Joseph Duncan as to the alteration of the bond is held to be bad, because it is not averred that it was altered by the plaintiffs or by their authority. At the same time it is admitted that, on the general issue, the person claiming under the deed must explain any interlineation or alteration upon its face, so as to show the bond is not vitiated. The reason of this is clear. The party having possession of the bond is presumed to have a knowledge of any alteration of it, and is therefore required to explain it. Prima facie, any material alteration vitiates the bond. • Now the special plea in this case states a material alteration, 104 JANUARY TERM, 1843. 115 United States v. Linn et al. by affixing the seals, after the instrument had been approved of by the district judge. The demurrer admits the facts stated in the plea. Does it not follow, then, that the plea is good, if the alteration alleged in it be a material one; such an one as vitiates the instrument unless explained? No rule in pleading is better settled than that a fact which is presumed to be known to the plaintiff, and is not presumed to be within the knowledge of the defendant, the defendant need not aver it in his plea, if he can without the averment set up a prima facie defence. Mr. Chitty says, 1 vol. of Plead., 255, “ It is also a general rule, that matter which should come more properly from the other side need not be stated. In other words, it is enough for each party to make out his own case or defence. He sufficiently substantiates the charge or answer for the purposes of pleading, if his pleading establish a prima facie charge or answer. He is not bound to anticipate, and therefore is not compelled to notice and remove in his declaration or plea every possible exception, answer, or objection which may exist, and with which the adversary may intend to oppose him.” Com. Dig. Pleader, c. 81; Plowd., 376; 2 Saund., 62 a, n. (4); 1 T. R., 638; 8 Id., 167; Steph. Pl. (1st ed.), 354. *No one can doubt that the alteration averred in the i g above plea, appearing on the face of the instrument, L would vitiate it, unless explained by the holder. And it follows then that the plea stating the fact, which the demurrer admits, must be answered and explained. The defendant must know whether an instrument which he has executed has been altered in a material part. But he is not presumed to know by whom it has been altered, while it is in the possession of the party who claims under it. If the defendant must aver this, he must prove it; and this would be impossible. But, on the other hand, the person claiming under the instrument, and who has always been in possession of it, may well be presumed to know by whom it has been altered, and, therefore, he, and he only, can explain it. Any other rule would be most unreasonable and contrary to any proper system of pleading. The rules lately adopted by the courts of England in regard to pleading seem “not to have fallen under the notice of this court.” This is to be regretted, as those rules have been published in the late editions of Mr. Chitty on Pleading, and are known to the profession throughout the country. It is true, as the court say, that intendments are taken against the plea; but intendments must not only be practicable, b reasonable. If a fact in the plea be omitted, which the defendant cannot be presumed to know, and which must 105 116 SUPREME COURT. United States v. Linn et al. be known to the plaintiff, no intendment against the plea can be drawn. Mr. Stephens, in his Treatise on Pleading, 350, under the • head that, “ it is not necessary to state matter which would come more properly from the other side,” says, “ this, which is the ordinary form of the rule, does not fully express its meaning. The meaning is, that it is not necessary to anticipate the answer of the adversary; which, according to Hale, C. J., ‘ is like leaping before one comes to the stile.’ It is sufficient that each pleading should in itself contain a good prima facie case, without reference to possible objections not yet urged.” “ Thus in pleading a devise of land by force of the statute of wills, 32 Hen. 8, c. 1, it is sufficient to allege that such an one was seised of the land in fee, and devised it by his last will, in writing, without alleging that such devisor was of full age. For though the statute provides that wills «--I made by femes covert, or persons within age, &c., shall J not *be taken to be effectual, yet if the devisor were within age, it is for the other party to show this in his answer, and it need not be denied by anticipation.” “ So where an action of debt was brought upon the statute 21 Hen. 6, against the bailiff of a town for not returning a burgess of that town for the last Parliament (the words of the statute being that the sheriff shall send his precept to the mayor, and if there be no mayor, then to the bailiff), the plaintiff declared that the sheriff had made his precept unto the bailiff, without averring that there was no mayor. And after verdict for the plaintiff, this was moved in arrest of judgment. But the court was of opinion clearly, that the declaration was good; for we shall not intend that there was a mayor, except it be showed; if there were one, it should come more properly on the other side.” “ Where the matter is such that its affirmation or denial is essential to the apparent or prima facie right of the party pleading, there it ought to be affirmed or denied.” Now the alteration of the instrument in a material part, after Duncan the defendant had signed it, without his consent or knowledge, did make a prima facie case. It made such a case, as, upon the general issue, would have required the plaintiffs to show by whom it was altered. And this shows that the plea is good. It is the same principle whether it arise on the general issue or by special plea. The same order of proof is required. The plaintiffs, therefore, instead of demurring, should have pleaded over, and alleged that the alteration was made by a stranger, and, consequently, that it did not vitiate the instrument. 106 JANUARY TERM, 1843. 117 United States v. Linn et al. The plea should have concluded with a verification, and not to the country. But this could only be taken advantage of by special demurrer. This defect is not one of the causes assigned in the demurrer, and, therefore, cannot be objected to. The second and third counts of the declaration being bad, as ruled by the court, the judgment of the Circuit Court should, on those counts, have been affirmed, and not reversed. Mr. Stephens, in his Pleading, 144, says again, “ It is a rule, that on demurrer the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled to it.” “ Thus on demurrer to the replication, if the court think the replication bad, but perceive a r*i-(o substantial fault in the plea, they *will give judgment, not for the defendant, but for the plaintiff, provided the declaration be good; but if the declaration also be bad in substance, then, upon the same principle, judgment would be given for the defendant.” Piggot’s case, 5 Co., 29 a; Bates v. Cost, 2 Barn. & C., 474. I believe this case is the first exception to the above rule. Notwithstanding the above defective counts, judgment is given generally against the defendant. It is hoped that this ruling will not establish a precedent in other cases. ORDER. 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 Illinois, and was argued by counsel. On consideration whereof, it is now here 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 proceed therein comformably to the opinion of this court. 107 118 SUPREME COURT. Morris v. Exec, of Nixon et al. Thomas Morris, Complainant and Appellant, v. Maria Nixon, Henry J. Williams and Thomas Biddle, Henry J. Williams and Marla Nixon, executors of the LAST WILL AND TESTAMENT OF HENRY NlXON, DECEASED, and Maria Nixon, sole devisee of the said last WILL AND TESTAMENT OF HENRY NlXON, AND MARY Husband, Amelia M. Morris, Robert Morris, William P. Morris, Charlotte E. Morris, Henry Morris, Sarah Morris, children and heirs at law of Henry Morris, deceased, and Cornelius Stevenson and Samuel C. Clements, administrators of said Henry Morris, deceased. A deed, absolute on the face of it, declared to be a security for money loaned. Where a bill substantially charges that there is a fraudulent attempt to hold property under a deed, absolute on the face of it, but intended as a security for money loaned, evidence will be admitted to ascertain the truth of the transaction.¹ * 11 QI Where there is proof of parties meeting upon the footing of borrowing J and *lending, with an offer to secure the lender by a mortgage upon par- ticular property, if a deed of the property, absolute on the face of it, be given to fhe lender, and the lender also take a bond from the borrower, equity will ¹ Cited. Russell v. Southard, 12 at the time the deed was executed, to How., 148; Babcockv. Wyman, 19Id., reconvey, held inadmissible. Bonham 299; S. C. 2 Curt., 386. S.P. Peugh v. Craig, 80 N. Y., 224. So of evi-v. Davis, 6 Otto, 332; Villa v. Rodri- dence to prove that the deed was deques, 12 Wall., 339; Bently v. Phelps, livered to the grantee on a condition. 2 Woodb. & M., 426; Dow v. Cham- Miller v. Fletcher, 27 Gratt. (Va.), berlin, 5 McLean, 281; Holbrook v. 403. American Ins. Co., 1 Curt., 193; Chick- Parol evidence will be received even ering v. Hatch, 3 Sumn., 474; Andrews where the object is to convert a deed v. Hyde, 3 Cliff., 516; Amory v. Law- of homestead property into a mort-rence, Id., 523; Klein v. McNamara, gage, and thus procure its cancellation 54 Miss., 90; Odell N. Montross, 68 N. under a statute prohibiting the mort-V., 499; Booth v. Robinson, 55 Md., gaging of homesteads. Brewster v. 419; Snavely v. Pike, 29 Gratt. (Va.), Davis, 56 Tex., 478. 27; Davis v. Demming, 12 W. Va., The burden of proof is on the party 246. seeking to convert the deed into a Unless the relation of debtor and mortgage, and the proof must be clear creditor exists between the parties, a and convincing. Bartling v. Brasuhn, deed absolute upon its face will not be 102 Ill., 441; Tilden v. Streeter, 45 deemed to be a mortgage because of Mich., 533; Pierce v. Traver, 13 Nev., an agreement on the part of the 526; Coburn n. Anderson, 62 How. grantee to permit a repurchase by the (N. Y.) Pr., 268; Mackey v. Stafford, grantor: such a transaction is a con- 43 Wis., 653. But compare DeLaigle ditional sale. Randall v. Sanders, 87 v. Denham, 65 Ga., 482. N. Y., 578; Slutz v. Desenberg, 28 An absolute deed instead of a mort-Ohio St., 371. gage maybe properly taken as security Otherwise, where there is an agree- when the amount to be secured is un-ment that grantor may redeem. Vliet certain and depends on future ad-v. Young, 7 Stew. (N. J.), 15; Wilson vances. Abbott v. Gregory, 39 Mich., v. Giddings, 28 Ohio St., 554. 68. Parol evidence of grantee’s promise, 108 JANUARY TERM, 1843. 119 Morris v. Exec, of Nixon et al. interpret the deed to be a security for money loaned, unless the lender shall show, by proofs, that the borrower and himself subsequently bargained upon another footing than a loan. Where a loan is an inducement for the execution of a deed which is absolute on the face of it, though the loan is not recited as the consideration of the deed, or as any part of it, if the lender or grantee in the deed treats it substantially as the consideration, or a part of it, equity will declare the deed to be a security for money loaned.² It seems that the answer of one defendant in equity is not evidence in behalf of another defendant.⁸ If, in equity, it is admitted or proved that one of the documents in a transaction was not intended to be what it purports, it subjects other documents in the same transaction to suspicion. This was an appeal from the equity side of the Circuit Court of the United States in and for the eastern district of Pennsylvania, and arose upon the following facts : On the 2d of January, 1812, Jonathan Williams and Thomas Morris (the complainant) purchased from the Bank of North America a parcel of land upon the Schuylkill river, near the city of Philadelphia, for the sum of 880,000; 820,000 of which was to be cash, and the remaining 860,000 was divided into three payments of 820,000 each, which were to become due on the 25th of March, 1814, 1815, and 1816, respectively. The parties gave their joint and several bonds for these sums, with a warrant of attorney to confess judgment, and a mortgage upon the property. It afterwards appeared that Morris was not exclusively the owner of his moiety. On the 27th June, 1812, Morris gave a power of attorney ² Cited. Laivrence v. DuBois, 16 unable to find an allusion to it, and W. Va., 462. S. P. Budd v. Fan this is true of other similar works. Orden, 6 Stew. (N. J.), 143. In a note to the fifth edition of Dan- ³ Cited. Salmon v. Smith, 58 Miss., iell’s work we find this language: ‘But 409; Frank v. Lilienfeld, 33 Gratt. the answer of a defendant which is (Va.),381. responsive to the bill is admissible as In a recent case in Mississippi evidence in favor of a co-defendant (Salmon v. Smith, 58Miss.,408), Camp- (Davies v. Clayton, 5 Humph. (Tenn.), bell, J., says: “It seems to be well 446); more especially where such co-settled, and on satisfactory grounds, defendant, being the depositary of a that the answer of one defendant can- chattel claimed by the plaintiff, de-not be used against another defendant, fends himself under the title of the unless under certain circumstances other defendant. Mills v. Gore, 20 constituting an exception to the gen- Pick. (Mass.), 28. But see Cannon v. eral rule. The text-books and cases Norton, 14 Vt., 178;’ 1 Dan. Ch. Pr., abound with statements and illustra- 841, n. I.” tions of this rule and its exceptions-; That where the answer in question but there is strange silence in most of is unfavorable to the plaintiff, and re-the text-books, and comparatively few sponsive to the bill, it may be intro-cases in the reports, on the question duced in favor of a co-defendant, es-of the effect of the answer of one de- pecially where the latter relies upon fendant in favor of a co-defendant. the title of the answering defendant, In the text of Daniell’s Chancery see Miles v. Miles, 32 N. H., 147; I ractice and Pleading, voluminous Poivles v. Dilley, 9 Gill (Md.), 222. and elaborate as it is, we have been 109 119 SUPREME COURT. Morris v. Exec, of Nixon et al. to Thomas Biddle and Henry Nixon, to manage the property for him. In 1815, Williams died intestate, leaving Henry J. Williams and Christine, the wife of Thomas Biddle, his heirs at law. In April, 1816, Morris and the representatives of Williams executed a power of attorney to Biddle and Nixon, authorizing them to enter into and take possession of the property, sell or lease it, receive the money, execute deeds, &c. Under this power, they accordingly took possession, and exercised all manner of ownership over it. * 1 A great number of letters between the parties were - ■ given in *evidence, running from this time to the year 1822, relating to the condition and prospects of the property. One of the bonds had been paid out of the proceeds of sales, and considerable payments made on account of another. The third was wholly unsatisfied. In 1822, Morris, residing in New York, applied to Nixon for a loan, under the circumstances stated so particularly in the opinion of the court that it is unnecessary to mention them here. Nixon declined making a loan, but took from Morris a deed, absolute upon the face of it, conveying the whole of Morris’s interest to Nixon, and reciting that Nixon had always been interested in the purchase to the extent of three-sixteenths of the whole, or three-eighths of Morris’s moiety. Nixon then loaned to Morris $5,000, for which he took his bond. The deed also recited that there had been allowed to Nixon for his agency, the sum of $2,000; one-half of which, oi $1,000, had been paid by the representatives of Williams, but paid to Morris; and five-eighths of the other $1,000, (or $625,) were justly chargeable to Morris; thus bringing Morris in debt to him $1,625, which was released in the deed. It also contained other recitals, which are mentioned in the opinion of the court. In 1836, Morris filed a bill on the equity side of the Circuit Court of the United States for the eastern district of Pennsylvania, against Nixon and other parties, alleging that the deed was only a security for the money loaned; that, at the time of its execution, there was not, between himself and Nixon, any contract, agreement, understanding, or negotiation for a sale; that Nixon had furnished no account of his agency; and praying for an account and general relief. The parties all answered; and in April, 1841, the Circuit Court, after a hearing, dismissed the bill with costs. The complainant appealed to this court. Wood, for the appellant. 110 JANUARY TERM, 1843. 120 Morris v. Exec, of Ni ton et al. Sergeant and Williams, for the appellees. Wood made the following points: I. The deed of the 28th May, 1822, explained by the letter of the defendant, Nixon, to the plaintiff, would constitute per se a mortgage of the premises to secure the loan for $5,000. ' II. The said deed was designed by the parties thereto to secure the said loan, and was designed in substance to ni be a mortgage *assuming the shape of an absolute con- L veyance, only as a more effectual security for the loan. III. If said Nixon designed otherwise, yet the complainant was led by his conduct, and by all the circumstances, to consider it a security for the loan, and it ought to be treated as such. IV. A deed, though absolute on its face, may be shown, by parol evidence, to be designed as a security for a loan, or a mortgage, and more especially by written evidence furnished about the time the deed was given, and conducing to show the same. V. If it should appear that said deed was designed by the parties to be an absolute conveyance in fee, it ought to be set aside, or modified and converted into a mere security for said loan. Because: 1. The consideration therein was grossly inadequate. 2. There was no negotiation for a sale between the parties thereto, either personally or through authorized agents, and no estimate of value. 3. The plaintiff, the grantor therein, was not in a condition to deal at arm’s length—being much embarrassed, in want of money, and ignorant of the condition of the property—the grantee being a capitalist, having the property under his management, and fully acquainted with its condition and value. 4. The grantee did not fulfil his duty as steward and agent in apprising the grantor, at the time of said conveyance, of the condition and value of said property. 5. Undue influence was exercised by the grantee upon the grantor, in pressing upon him a sale to himself in the condition in which said grantor was placed, and in the relative condition in which they stood at the time to the property and to each other, as lender and borrower, steward and principal. VI . Lapse of time is no bar to the complainant’s equity under the last-mentioned point. Because: 1. Such a bar is not set up and relied upon in pleading. 2. The influence and control of the said grantee in said deed, over the grantor, and the grantor’s ignorance of the 111 121 SUPREME COURT. Morris v. Exec, of Nixon et al. condition of the property, continued until a short time before exhibiting the bill of complaint. * 1991 3- The relationship in which the parties stood to each - * other *as steward and principal, lender and borrower, will prevent the bar from applying in equity to the relief sought for by the bill. V II. Lapse of time is not a bar to the complainant’s equity, for a full account and relief in regard to the matters arising, as well before as subsequently to the said deed. All which he is fully entitled to. V III. The agreement, for a conveyance from the complainant to Maria Nixon, should be modified so as to embrace only one-eighth of the plaintiff’s moiety of the premises, and she should be decreed to be entitled only to the net proceeds of said one-eighth part. Mr. Justice WAYNE delivered the opinion of the court. The complainant, besides other relief prayed for, asks the aid of this court to decree a deed made by him to Henry Nixon, and which is absolute on the face of it, to be a security for money advanced upon loan, and that he may be at liberty to redeem the premises conveyed, by paying to Nixon, or by allowing to him, on account of the transactions between them, the moneys loaned to him by Nixon and such as he may have advanced on account of the real estate purchased by the complainant and the late General Jonathan Williams from the Bank of North America; for the resale and improvement of which, the defendants, Henry Nixon and Thomas Biddle, were the attorneys and agents of the purchasers. The surviving family, however, of General Williams, are in no way interested in this suit. The controversy is between Thomas Morris and the representatives of Henry Nixon, whose death has occurred since the bill was filed. The deed from complainant to Henry Nixon bears date the 28th May, 1822. It recites the purchase made by Williams and Morris; that certain portions of it had been sold and conveyed to other persons, and that parts had been let on ground-rents, so that the quantity remaining was about seventy acres. That the sales and income of the property had nearly reimbursed the purchasers the first payment which they had made, of $20,000; that there had been paid upon the purchase, out of the income #190-1 and proceeds of sale, from time to time, enough to 1 reduce the sum due by the *purchasers, to about $29,000, which was a charge upon the premises, to be borne by the owners thereof, in proportion to their respective inter- 112 JANUARY TERAI, 18 43. 123 Morris v. Exec, of Nixon et al. ests. It then recites, that at the time of the execution of the indenture to Williams and Morris, Henry Nixon was, and had continued to be interested with Morris, to the extent of threeeighth parts of the moiety, so as to entitle him to the benefits and subject him to the obligations of the purchase in that proportion. The consideration of the deed is then recited to be, one-half part, “ or thereabouts,” of a debt due by the complainant to Thomas Biddle and John Wharton, which was originally $4,000, for the security of which, the complainant had, with the assent of Henry Nixon, mortgaged a part of the moiety of the original purchase; then a debt claimed by Nixon to be due to him by the complainant of $1,625; $1,000 of which it is said the complainant received on account of Nixon’s agency for the moiety of the purchase belonging to Williams, and $625 being the proportion justly chargeable to complainant for Nixon’s agency for the other moiety. There was a further consideration amounting to $4,600; being the amount of two notes which had been discounted, at the Bank of North America, for the accommodation of the complainant, with Nixon’s endorsement. The circumstances attending the execution of the deed are disclosed in the pleadings and by other proofs in the cause. The complainant resided in New York, and Nixon lived in Philadelphia. The former, being in great pecuniary distress, and fearing greater within a few days, unless he could make a loan, sent Iris brother, Henry Morris, to Philadelphia, to obtain from their brother-in-law, Henry Nixon, an advance of $5,000, offering, as security, his interest in the property bought by himself and General Williams. Nixon says, in his answer, • that his feelings being wrought upon by the representation, made by Henry Morris, of the urgent nature of his brother’s wants, and the destructive consequences to be apprehended if he could not meet a demand there was upon him, he concluded to provide the money; that, however, before he finally agreed to do so, he told Henry Morris that he must consult his counsel upon the subject. After consulting counsel, he informed Henry Morris, that he had determined to deal with the complainant upon no other terms than an absolute sale and conveyance of all his ^a interest, *legal and equitable, in the premises bought L by him and Williams; and as there would be a full consideration without it, that the loan would create a new debt, for which he would take a separate evidence or security; that he was advised by his counsel to write out in the deed at large the real consideration, so that the truth of the transaction might at all times appear upon the papers, and to take a bond Vol. i.—8 113 124 SUPREME COURT. Morris v. Exec, of Nixon et al. for the loan, so that if the purchase should turn out well, he would not be bound to enforce the bond, but, in case of mis fortune to the complainant, he would have evidence of his right as a creditor, and, if he should think fit, might use it for the benefit of the complainant or his family. In connection, however, with the foregoing statement, Nixon declares that in the course of his conversation with his counsel, he was asked, whether the interest of the complainant in the property was worth the encumbrances upon it, and what was already due by him to Nixon. To which he replied, as he truly believed, that it would not bring more ; that nothing but the peculiarity of the circumstances would induce him to increase his interest, or become a purchaser of it; and that he determined, as he had been advised by his counsel, to buy out the complainant’s interest entirely and absolutely, without any trust, direct or indirect, express or implied ; nor any understanding whatever, that the complainant or any other person was to have a claim or benefit therefrom, and that he would deal with him on no other terms. Henry Morris arrived in Philadelphia on the 23d of May. His first conversation with Nixon concerning his errand was on that day; on the 24th, Nixon consulted counsel, informed Henry Morris of the result, and on the same day the same counsel made a draft of the deed. On the same day, too, Nixon wrote to the complainant the following letter: Dear Morris :—Henry arrived here early yesterday morning. Having had a conversation with him on the subject of a loan, I have only to say my best exertions will be to obtain this object, and to enable me to do which, Henry will immediately call on you to advise the only mode that he or I can suggest to achieve it. You, I am sure, will have confidence in me as to the mode proposed, which Henry will communicate; and be assured my sincere prayers will be, and best exertions to promote this all important point. In haste, truly yours, H. Nixon. *1251 *This letter was written after Nixon had consulted J counsel; for he says in his answer, after . he had done so, he thereupon returned to Henry Morris, and informed him of the determination he had come to, of dealing upon no other terms than an absolute conveyance, without any trust, and taking a bond for the loan. And in the letter it is stated, that “ Henry will immediately call on you to advise you ot the only mode that he or I can suggest to achieve it. 114 JANUARY TERM, 1843. 125 Morris v. Exec, of Nixon et al. The draft of the deed being made on the 24th May, it was afterwards engrossed by the witness Cash, and he was sent with it to New York. He arrived there on the 28th, the deed was signed by Morris and his wife, Cash and Henry Morris being witnesses. On the same day, Cash left New York on his return to Philadelphia. On the following morning, the 29th May, as it appears by a letter of that date from Nixon to the complainant, Henry Morris arrived again in Philadelphia. * He says in his answer, that he found Nixon resolved to do nothing in the business unless the conveyance was absolute and bona fide, and he was therefore obliged to deliver the deed without any promises of trust. And Nixon declares that Henry Morris delivered to him the deed, and at the same time a bond, in the handwriting of the complainant, for $5,000. It is in proof, also, that when the deed was delivered, there were unadjusted accounts growing out of Nixon’s and Biddle’s agency for the property. That no account had been furnished to the complainant since 1816, except an abstract of one Innes’s account of the excavation and sales of stone and gravel, sent to him by the defendant, Henry J. Williams, in May, 1819. The recital in the deed shows that the accounts were unascertained, for it speaks of the $20,000 which was first paid by Williams and Morris on their purchase as being nearly reimbursed, and that there remained due on the purchase about $29,000. Two years before the deed was executed, the complainant made an agreement with David Walker and Henry Morris, to convey to them in trust for his sister, Maria Nixon, a fourth part of her moiety, upon the terms stated in the agreement, in pursuance of his original intention when Williams and himself made the purchase. r*12C *It was urged in the argument, that the recitals in the deed relating to the sum then due upon the purchase of Morris and Williams, that of Nixon’s interest in it, and the debt claimed by Nixon to be due to him on account of his agency, were incorrect. We shall not, however, consider these objections, or those which were made against the validity of the deed on account of inadequacy of price, undue influence, and surprise. Our object is to dispose of this case for the present, by assigning to the deed its true character in equity, under all the circumstances attending its execution. The charge against Nixon is, substantially, a fraudulent attempt to convert that into an absolute sale which was originally meant, by himself and the complainant, to be a security 115 126 SUPREME COURT. Morris v. Exec, of Nixon et al. for a Ioan. It is in this view of the case that the evidence is admitted to ascertain the truth of the transaction, though the deed be absolute on its face. The transaction was begun by • Morris, with the request of a loan from Nixon, for which he offered a security upon the property, for the management of which, Nixon was his agent. It ended by Morris giving to Nixon a deed for the property, absolute on its face, and also a bond for a loan of $5,000. Unless, then, some proof has been given to show that they truly bargained upon another footing, and that the loan did not form the chief inducement for the execution of the deed, and had not been treated by both parties as a substantial part of the consideration, though not expressed in the recital, equity will interpret it to be a security for money loaned. Is there any such proof in this case ? None that we can see, even if the defendants are allowed to use as evidence, as they contend they have a right to do, the answer of their co-defend-ant, Henry Morris. His account of the transaction is, that in an interview with Nixon succeeding that when he made the application for a loan, and when Nixon declined lending, stating that his own embarrassments required all the funds he could command; that Nixon said, it was very doubtful if the “ Hills property” would more than pay the claims upon it, and he could not consent to make the loan, unless Morris would convey the property to him; and he added, if the property should eventually turn out well, he would account to Thomas Morris for it, and share it with him. And in the third inter-*1271 view Nixon told him that his counsel had *advised J him upon no account to let the complainant have the money, unless an absolute and bona fide conveyance of the whole premises was made; that, upon receiving his answer, he returned to New York, and communicated the determination of Nixon to his brother; and that, upon his return to Philadelphia, he was obliged to deliver the deed without any promises of trust, as he found Nixon resolved to do nothing in the business, unless the conveyance was absolute and bona fide. He says, however, he was satisfied in his own mind that, if the property turned out well, Nixon would give a handsome share of it to the complainant; and that, in consequence of this impression, he always wrote to him as if he was still interested in the successful result of the purchase. We are in no way, though, influenced by the answer o Henry Morris in coming to our conclusion as to the character of the deed. It has been introduced because it was strongly urged to be good evidence in behalf of the defendants, by their counsel; and with the view of showing, even though the facts 116 JANUARY TERM, 1843. 127 Morris v. Exec, of Nixon et al. stated had been proved, that they would not take the case out of the principle,—that a deed absolute on the face of it, for property, offeree! to secure a loan in a case in which tire parties originally met upon the footing of borrowing and lending, will be considered a deed in the nature of a mortgage, to secure a loan, though another consideration shall be in the recital of the deed than the loan, unless it shall be proved that the parties afterwards bargained for the property independently of the loan; or if it shall appear that the chief inducement of the grantor in making the deed, was to procure the loan; or that the grantee, after the execution of the conveyance, treated the money which he had advanced as a substantial part of the consideration, and not as a loan. There is no proof in this case that the parties bargained without a reference to an advance by Nixon of $5000, and it does appear that Morris was only induced to make the deed from the offer of Nixon to make the advance of that sum, and that Nixon treated it substantially as a part of the consideration to be given for the property, as he took a bond from Morris for the amount, and says it was only to be contingently enforced, for the benefit of Morris or his family, in the event of Morris falling into misfortune. Courts of equity will not permit so uncertain a benefit po as is *here expressed, to weigh at all in their considera- L tion of cases like this; for, if they did, it might become a contrivance to give plausible coloring to an originally meditated fraud, or to one induced by the temptation of subsequent gain. But besides the transaction itself, as it appears in the pleadings, there were relations of interest and of agency between Thomas Morris and Henry Nixon, in respect to the property, and such as grew out of the embarrassments of the former, and also out of his particular condition to the recitals of consideration in the deed, which combine to raise a violent presumption of a secret trust, and that the deed was meant to secure Nixon’s advances, loans, and endorsements for Morris. Nixon claimed an interest in the property, besides the onefourth of the moiety which Morris had agreed to convey to Walker and Henry Morris, in trust for Mrs. Nixon. For the former, Nixon had not such satisfactory evidence as he could rely upon. This appears from his correspondence. Morris was much embarrassed; no one knew his pecuniary difficulties better than Nixon did. He remembered, too, that Morris, without consulting him, had offered to mortgage the property to the United States. Fie feared, from the disclosures made by Henry Morris of the pressing necessity of his brother, that 117 128 SUPREME COURT. Morris v. Exec, of Nixon et al. he might mortgage the property to raise the sum he then stood in need of, to some other person if Nixon did not advance it; so that, at some other time, urged by want of money or the demands of creditors, he might be induced to convey to others an interest in the concern: that new parties might interfere with the management of it, to the injury of all who were originally interested: that the bank, by any change in the ownership, and the course which might be pursued in respect to the property, might not continue to be so indulgent as it had been, in postponing the payment of the purchasemoney still due. Besides, sales of this property to individuals and purchases from the city were then anticipated I the latter a slow, but sure speculation; almost at the price of the owners, from the contiguity of public works, which could not be abandoned; nor could they be carried on without more of the property than the city had already bought. Add, the embarrassed condition of Morris; the connection and close oqq intimacy between the parties; their excited expecta- -* tions, extended by exaggerated Representations to the females of the family, that all concerned would realize great pecuniary advantages from the property; the certain interest, also, of Mrs. Nixon in it, and the certainty, that, by keeping it under their own control, it would be managed in their own way; all these considerations were cogent inducements with Nixon to get a legal title from Morris, and the moment when Henry Morris presented himself to solicit a loan for his brother was the occasion upon which it could certainly be obtained. But further, Morris’s condition, in respect to the consideration recited in the deed, was not such as to induce him to wish to part with the property. Nor does Nixon’s assumption of the particular debts of Morris, recited in it, bear the aspect of a genuine purchase. It was not a present payment of anything; and, if genuine, was the purchase of Morris’s speculation, by an advance of $5000, which, according to the face of the transaction, was to be repaid. And may we not say, when in the same transaction we have it admitted that one of the documents was not meant by the parties to be what it purports, that another of them by this fact is subjected to suspicion ? But we have said, though Morris was embarrassed, that he was not pressed by any of the particulars recited in the deed as a consideration. The purchase-money remaining due to the bank on the property, the bank had permitted to remain unpaid, finding no doubt its advantage in the interest. Both principal ana 118 JANUARY TERM, 1843 129 Morris ». Exec, of Nixon et al. interest were ultimately paid, not by Nixon, but by sales of the property. The debt due to Biddle and Wharton was secured by a mortgage upon a part of the property, given by Morris with Nixon’s consent. The notes discounted at the bank for the accommodation of Morris with Nixon’s endorsement, had been renewed, and were running as an accommodation, to be renewed again and again, as they were in fact, without any change of names to the paper, after the deed was executed. Nixon could not press for the commissions claimed as agent of the property, or did not intend to do so; for we find him writing to Morris on the 21st May, two days before Henry Morris arrived in Philadelphia on his errand for the loan, and seven before the deed was executed, to make himself easy as to commissions, as it had not been his intention to ask for them; or acknowledging he had no right to *do so, L until “ the final closing of the accounts, agreeably to the first agreement when the Hills were bought.” Such was the situation of Morris, in respect to the debts named in the deed as the consideration for which an absolute title was to pass. He was an embarrassed man, and hard pressed at that moment for 85,000, and though destructive consequences were to assail him if he could not get it, is it likely that Nixon then could have been insensible to the ties which had united them, and could have made his distress the means of coercing from him an absolute conveyance, without a secret trust of all that he had left, upon which he could rest a hope to raise himself a little above his ruined fortune ? We cannot think so. If we did, it would be our duty to give another aspect to this transaction, from which the defendants would derive no benefit. If a doubt remained upon our minds in respect to the character which should be given to the deed, the letter from Nixon to Morris, of the 24th May, would remove it. It may be considered, either as having been intended by the writer to put Morris at ease in respect to the conveyance and bond which were required, or as a letter calculated to mislead Morris in respect to the use which Nixon would make of the conveyance. The lettef might be, either the artifice of the writer to accomplish an unjust intent, or the language of the letter and manner of using it might innocently mislead. In either event, if the letter is such as is likely to mislead, and from which it can be fairly implied, that it induced a confidence that the receiver of it would have any benefit from or interest in the property, he was required to convey contrary 119 130 SUPREME COURT. Morris v. Exec, of Nixon, et al. to the terms of the deed, it would be fatal to it as an absolute deed. Nixon and Morris were brothers-in-law. There seems to have been between them fraternal intimacy and confidence. It appears to have been unlimited in all the relations of social life and of business. The confidence of Morris was unwavering, and dependent, from the superior business ability of Nixon. Nor can it be denied that it was met by him in Morris’s difficulties by acts of timely assistance and kindness. Nixon had been his agent in the management of the property from 1812. He claimed an equitable interest in it, besides the proportion of Mrs. Nixon. There were unascertained accounts *1Nixon’s agency when the *deed was made. Morris had received no account since 1816, except an abstract of sales of some stone and gravel, furnished to him by one of the defendants in 1819. He did not:know particularly what had been the proceeds of the sales and income of the property, or how they had been applied. No examination or estimate of the value of the residue of the property, as it then stood, was made. No communication had been given by the agent of the effect of public and private improvements upon it, in respect to its then, or prospective value. Nothing was said between Morris and Nixon as to the price that the taker was to give. In this situation, being greatly embarrassed, Morris asked a loan from his agent. The agent says, ‘I am aware of your embarrassment. There are certain claims upon this property which you will have to pay, and other responsibilities of yours for which I am also answerable. I will provide the money of which you stand in need, will take a bond from you for it, which I am not to enforce against you, unless you should fall into misfortune, and then only, should I see fit to do so, for the benefit of yourself or your family, if you will give me an absolute conveyance of the property.’ The conveyance is given, the bond is taken, and now it is said the transaction was intended to be an absolute sale, and not a security for a loan. We do not think that the connection between the bond and the deed can be dismembered. Nor can we reconcile it with what we believe would have been the ordinary conduct of men in like circumstances, to suppose, chat an agent so situated to a principal and friend in distress, could have intended, by asking for an absolute conveyance, to use it for any other purpose than to secure himself in the sum he was about to advance and his other responsibilities for his principal. Morris was a ruined man. Nixon knew it, and treated with him in this instance as if the crisis had come when creditors would no longer be satisfied with postponed 120 JANUARY TERM, 1843. 131 Morris v. Exec, of Nixon et al. promises. It was natural for Nixon, nor was it wrong in the then state of real property, and as he was about to advance to his brother-in-law $5,000, to take the most efficient way to secure himself from loss, and to put it out of the power of Morris to interfere with his security, by subsequently giving to others an interest in the property. We find upon a preceding occasion when Morris was pressed, and had offered to mortgage this property, *that Nixon suggested that it p., should be put into his hands, with the trust expressed L of what was intended. His object then was, that the original intention of the purchase might be carried out for the benefit of all concerned. Nixon’s inducement to do so was greater than it had been at that time. Mrs. Nixon’s interest of onefourth in the moiety of the .property had been in the mean time secured to her by her brother. We will now turn to the letter of the 24th May from Nixon to Morris, to confirm the view we have of this transaction. It begins, “Dear Morris,—Henry arrived here early yesterday morning. Having had a conversation with him on the subject of a loan, I have only to say, my best exertions will be to obtain this object, and to enable me to do which, Henry will immediately call upon you to advise you of the only mode that he or I can suggest to achieve it.” It must be remembered that the letter was written on the day that Nixon consulted his counsel, after the consultation had been had. The answer of Nixon shows this. He says, that he had concluded to provide the money, but that he must consult counsel before he finally agreed. And then that he thereupon returned to Henry Morris, and informed him of the determination he had come to of dealing upon no other terms than an absolute sale and conveyance, and taking a bond for the loan. When, then, Nixon says in the letter, “ Henry will immediately call upon you to advise you of the only mode that he or I can suggest to achieve it,” it is manifest that the mode had been a subject of conversation between them ; and as 'he mentions in the letter, the loan in connection with the mode, which Henry was to communicate to his brother, this contemporary letter must be called on to ascertain what Nixon intended by the mode; and more especially so, as it seems the contents of the letter had not been told to Henry Morris. The mode was an absolute conveyance of the property and a bond. But there is, in connection with the mode, the declaration of an intention, coupled with an ability, in consequence of the mode, to achieve a loan. It would then be a very strained inference, from the words of the letter, to say, 121 132 SUPREME COURT. Morris v. Exec, of Nixon et al. that Nixon did not mean that Morris, to whom he was writing, oo-i should understand *that he meant a loan to be secured J by a conveyance of the property, as well as by a bond; or that he meant that the loan which he could achieve by the mode was to depend upon Morris making to him an absolute sale of the property for the considerations expressed in the deed. If such had been his meaning, it could have been plainly said. But we think there can be no doubt concerning what the writer of this letter meant, or the construction which, in a court of equity, should be put upon it, when we find him saying: “You, I am sure, will have confidence in me as to the mode proposed, which Henry will communicate; and be assured my sincere prayers will be and best exertions to promote this all-important point.” This language indicates a sincere desire in Nixon at that time to relieve the distress of his brother-in-law. That he intended to solicit his confidence as to the mode proposed to secure himself from loss, without depriving Morris of a participation in the prospective advantages which they had mutually indulged for ten years in respect to the property, and which, it cannot be denied, had in a great degree been excited by the representations of Nixon. In Morris’s situation it was a great point gained for the benefit of all concerned in the property, that the legal control of it should be taken from him and vested in Nixon. This letter we think a part of the entire transaction, and stamps its character in a court of equity. It could only have been intended to put Morris at ease in respect to the absolute conveyance which Nixon required; or it was designed to mislead and deceive Morris, by expressions of sympathy which were not felt, and a solicitation of confidence not deserved. If the latter, we should feel bound to pronounce the transaction a meditated fraud, successfully accomplished. We adopt the first as most probable, and in that view of the case decree the conveyance of the 24th May, 1822, to be a deed, with a secret trust, for the security of moneys loaned and advanced by Nixon to the grantor. This conclusion makes it unnecessary for us to consider the effect of time upon the rights in controversy. We order the decree of the Circuit Court to be reversed, and that the cause be remanded, with instructions to the court *1841 ^ave aⁿ account taken, and that the complainant be J allowed his *proportion at the rate of an interest of five-eighths in a moiety of the original purchase of Morris and Williams, and that the court shall take such other proceedings in the cause as equity may require. 122 JANUARY TERM, 1843. *134 Bank of the United States v. Beverley et al. *ORDER. 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 Pennsylvania, and was argued by counsel. On consideration whereof, it is now here considered, ordered, and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said Circuit Court, with instructions to that court to have an account taken; and that the complainant be allowed his proportion at the rate of an interest of five-eighths in a moiety of the original purchase of Morris and Williams, and that the said court shall take such other proceedings in the cause as equity may require. The President, Directors, and Company of the Bank of the United States, and the United States, v. James B. Beverly and Jane his wife, William Ramsay and Elizabeth his wife, Hamilton and James Peter, heirs of David Peter, deceased, and George Peter, surviving executor of David Peter, deceased. The case in 10 Pet., 532, reviewed and confirmed. A fact tried and decided by a court of competent jurisdiction cannot be contested again between the same parties ; and there is no difference in this respect between a verdict and judgment at common law and a decree of a court of equity.¹ But an answer in Chancery setting up, as a defence, the dismission of a former bill filed by the same complainants, is not sufficient unless the record be exhibited.² A disposition by a testator of his personal property to purposes other than the payment of his debts, with the assent of creditors, is in itself a charge on the real estate, subjecting it to the payment of the debts of the estate, although no such charge is created by the words of the will.³ Lapse of time is no defence where there is an unexecuted trust to pay debts, which this court, in 1838, decided to be unpaid in point of fact. ¹ Cited. Parker v. Kane, 22 How., Baldw., 495; McCoy v. Rhodes, 11 17. See Flanagin v. Thompson, 9 How., 131 ; Gaines v. Hennen, 24 Id., Fed. Rep., 177,183 n ; Pulliam v. Pul- 553 ; Randall v. Phillips, 3 Mason, Ham, 10 Id., 40, 45. S. P. Washing- 378. ton Bridge Co. v. Stewart, 3 How., ³ But where the intent to charge the 413 ; Smith v. Kemochen, 7 Id., 198 ; real estate with the payment of lega-Pennington v. Gibson, 16 Id., 65 ; No- cies cannot be gathered from the tions v. Johnsen, 24 Id., 195, 2'2; words of the .vdi, aid the personalty Thompson n. Roberts, Id., 2 is insuflici mt to pry them, they must S. P. Tilghman v. Ti’ghman, abate. Heslop v. < alton, 71 Ill., 528. 123 *135 SUPREME COURT. Bank of the United States v. Beverly et al. *This case grew out of that of Peter v. Beverly, which came before this court in 1836, on an appeal from the Circuit Court of the District of Columbia, in decreeing an injunction on the proceedings of the then, complainants, to sell a part of the real estate of David Peter, deceased. A full report of that case will be found in 10 Pet., 532, et seq., wherein all the facts and circumstances attending it are fully set forth in the opinion of the court, and do not require repetition now. The result of that opinion was a reversal of the decree below; a dissolution of the injunction; an order that the bill of the • complainants be dismissed, and that the cause be remanded to the Circuit Court, with directions to carry the decree of this court into effect. This was done, and the decree consummated by a sale of the property in controversy, which consisted of those parts of the real estate of David Peter which he had by his will charged with the payment of his debts; but they being insufficient for the purpose, the present bill was filed in order to subject the residue of the estate, not so charged directly by the will, to the payment of the residue of the debts of the estate. In March, 1836, the heirs or devisees of David Peter executed a deed to John Marbury, authorizing him to sell certain property, which he accordingly did; the amount of sales being $38,722.32. At a subsequent period of 1836, the Bank of the United States, in behalf of the said bank, and of the United States, and of such of the creditors of the estate of David Peter as should come into court and contribute to the expenses of the suit, filed a bill against George Peter, surviving executor, against the heirs or devisees of David Peter, and against John Marbury, trustee as aforesaid, stating that the personal estate of the said testator had been applied to the use and benefit of the heirs by the executors, in the fulfilment of the trust created by the will, and claiming that the real estate of the said testator, or the proceeds thereof, or as much as might be necessary, should be applied to pay whatever balance might remain due to the creditors, after selling and applying to that purpose the proceeds of the city lots and the land upon which Dulin lived. It prayed, also, an injunction against Marbury, and for other and general relief. *1361 *^ⁿ April, 1836, the following agreement was made -I between the counsel of the respective parties, and filed in the cause: agreement of counsel. It is agreed by the parties in this cause, by their counsel, 124 JANUARY TERM, 1843. 136 Bank of the United States v. Beverly et al. that the Bank of the United States and George Peter, who claim to be creditors of the estate of the late David Peter, for a balance of debt which may remain to them after the application of the trust estate provided in the will of the late David Peter for the payment of his debts, shall, if such balance be established against the defendants, the heirs and devisees of David Peter, as to so much of David Peter’s real estate as is conveyed to John Marbury, by deed filed as an exhibit with complainant’s bill, look to the proceeds of sales of said real estate so conveyed to the said John Marbury, in lieu and stead of the said real estate itself. It is further agreed, that as soon as the purchase-money of said real estate shall become payable and be collected by said John Marbury, he shall invest the same in his own name, as trustee, in Pennsylvania state stock, bearing interest at the rate of 5 per cent., first deducting therefrom the necessary expenses, taxes due on the said property, to the day of sale, and the commissions provided for in the said deed; the whole of the proceeds of the said sales, after such deductions made, to be subject to the order and decree of this court in this cause for the disposal thereof, whether thé said order or decree be for the payment of debts due from the said estate of David Peter to the Bank of the United States, or to George Peter, or other person, or from the said heirs and devisees, or either of them, to the said Bank of the United States, or George Peter, or either of them, on account of any portion of the personal estate of said David Peter, used or retained by them severally; provided, also, that it is the true intent and meaning of this agreement, that the part, portion, or interest of each of said heirs and devisees, should be responsible only for so much of the claims and debts of said heirs and devisees, to said Bank of the United States, or George Peter, as he or she shall be personally responsible for ; and that no one shall be held or deemed responsible for any other than him or herself. It is further agreed, that the Bank of the United States, or George Peter, or either of them, by themselves or r*-|q7 their agent, *may stop or postpone the sale of any por- L tion, or the whole, of the property advertised for the 15th inst., or any future attempted sale of property so conveyed to said John Marbury, if they, or either of them, should be dissatisfied with the prices bid, or offered, for said property, or any portion thereof ; provided, however, that all the said property shall be sold during the present year, unless the said bank and George Peter consent to further delay. It is further agreed, that the three story brick house and 125 137 SUPREME COURT. Bank of the United States v. Beverly et al. lots appurtenant in Washington City, set forth in said deed to John Marbury, as devised in trust for William H. Peter, shall be sold jointly by the said John Marbury and the said George Peter, Sen., executor of David Peter, and upon the terms mentioned in the deed to said John Marbury; and that the proceeds of the sale of the said house and lots appurtenant, after deducting expenses and taxes, shall, when the same becomes due and is collected, be invested by the said John Marbury and George Peter, in their joint names as trustees, in five per cent, stock of the state of Pennsylvania, to abide the order of this court for the disposal of the same. The said John Marbury to charge no commission on the proceeds of said sale, if the court shall be of opinion that the said house and lots appurtenant be part of the real estate of David Peter; and the said George Peter to have no commission on the proceeds thereof, if the court be of opinion that the same is the property of the estate of William H. Peter, deceased. It is understood and agreed, that nothing herein contained is to be taken to amount to an admission by the defendants, the said heirs and devisees, or either of them, that any debt is due from them, or either of them, to the said complainants or the said George Peter; or to prevent them, or either of them, from having the benefit of the statute of limitation, by plea or answer, or any other defence, legal or equitable, against the enforcement of the claims of the complainants, or George Peter, except that the said defendants, the said heirs and devisees, do hereby waive any exception to the jurisdiction of the court, as to the personal estate in this agreement mentioned. F. S. Key, for United States Bank. Jas. Dunlop, Solicitor and Trustee for George Peter. John Marbury, Sol’r for heirs, and devisees, and himself. April 12iA, 1836. 38] * Afterwards all the defendants • answered. George Peter, the executor, claimed to be a creditor of the estate; Marbury admitted the execution of the deed to him and the sales under it; and the devisees, Beverly and others, pleaded the lapse of time and the statute of limitations as a full and complete bar against the claim of the complainants. They also denied all knowledge of an arrangement with the Bank of Columbia; required proof of it; denied the authority of the executors to cast any further burden upon the real estate, than such as would result from a deficiency in the personal estate; denied that the executors applied to the bank for indulgence; averred that the negligence of the executors 126 JANUARY TERM, 184 3. 138 Bank of the United States v. Beverly et al. alone prevented the recovery of the purchase-money of the farm from Magruder;, averred that the children of David Peter were minors at the time of his death, and incapable of consenting to any arrangement whatever with the banks; that Beverlv had no knowledge of, or interest in, the property until 1819, when his marriage took place; that they were never able to acquire any information, and never did, of the complicated affairs of the estate; praying that the decree of the court, dismissing a similar bill in 1827, may be as effectual as if formally pleaded; averring that any agreement with the banks could affect nothing more than the trust part of the real estate; they deny the authority of the court to decree a sale of property situated in Maryland; aver that the executors received large sums of money for which they have rendered no account; that no part of the personal estate came into the possession of Beverly since his marriage; that if any part of it came into the possession of his wife before her marriage, it was very inconsiderable indeed; and that the personal estate continued principally in the possession of George Peter, the executor, by whom it was used, wasted, and otherwise disposed of. On motion of the complainants, by their solicitor, the Circuit Court ordered “ That the decree of the Supreme Court, and the bill, answers, exhibits, depositions, and proofs in the case of Beverly v. Peter in the said record, and on file in the said cause, be read and made use of in the hearing of this cause.” In January, 1840, the papers in the cause, with the evidence already taken and on file, were referred to the auditor to state an account between the parties upon the principles of his former report, and in November, 1840, he reported as follows: *A , . , * *139] * Auditor s Beport. J The Bank of the United States and Peter, ) v. [in chancery. The estate of David Peter, deceased. ) The undersigned, auditor of the Chancery Court for Washington county, District of Columbia, has had the papers filed in this cause under examination, and now submits the following report: That the claim of the Bank of the United States against the estate of David Peter, with interest to the 12th day of November, 1840, and costs, is $46,119.75; and that the claim of George Peter, per statement herewith, is $26,607.78. That the net proceeds of the sales of property sold by George Peter, as executor, is $17,513.66, to which may be added the esti- 127 139 SUPREME COURT. Bank of the United States v. Beverly et al. mated value of two thousand acres of land in Montgomery county, Maryland, called Dulin’s (which originally sold for a little upwards of $20,000), $7,500; of vacant lots in the city of Washington, $1,500, and $2,873.15 being the amount awarded to the proprietor of Dulin’s farm by the Chesapeake and Ohio Canal Company, for damages done by running said canal through that farm, which sum has never been paid by the executor of David Peter. These several items, if the property brings this estimated value, will make the sum of $29,386.81 for trust estate. That the sales made by John Marbury, under an agreement made by the parties to this cause, as per report of sales, amount to $41,731.86, but owing to the non-compliance with the terms of sale, of some of the purchasers, the corrected sales as specified in Mr. Marbury’s account No. 2, the amount is reduced to $38,722.32; the whole amount of the payments received by Mr. Marbury up to the 20th April, 1838, is $21,711.16, from which deduct, for expenses, taxes, surveying, auctioneer’s bills, and the trustee’s commission $1,804.76, leaving in the hands of the trustee, $19,906.40, which amount, according to his report, has been vested in the stock of the state of Pennsylvania, bearing interest at 5 per cent, per annum. The corrected sales, as above, amount to $38,722.32, to which may be added as follows: Wm. Ramsay’s purchase of lots, $2,084, and Wm. Stewart’s, $501, which still remain for the trustee to dispose of, and if they bring the same at *1401 which they were struck off at to Ramsay and Stewart, will make, when added to the $38,722.32, the *sum of $41,307.32 as gross sales; in addition to this sum, there remains twenty-four acres of land, near the city of Washington, bought at the sale by Mr. Upton, who never complied with the terms of sale, and never has paid for, which it is believed will sell for $1,000; this will make the trustee’s sales amount to $42,307.32, and taking the expenses, commissions, &c., as before mentioned, it will leave in the hands of the trustee the sum of $40,502.56. That it thus appears, that the sales of George Peter, acting under the will of David Peter, amount, if the sales shall be equal to the estimate here given, will be $29,386.81, and those by Mr. Marbury, $40,502.56. To these sums are to be added the amount of interest received on the notes given in payment, and the interest on the Pennsylvania stock. The auditor has read and considered the pleas of limitation put forth by the answers of the heirs of David Peter, and by John Marbury, Esquire, as their solicitor in this cause, and is 128 JANUARY TERM, 1843. 140 Bank of the United States v. Beverly et al. of opinion that it is not available, under the circumstances of this case, as it respects either of the creditors. Submitted by Joseph Forrest, Auditor. 10th November, 1840. In the audit of the 10th December, 1833, the executors are charged with the following, being for property sold in the city of Washington to sundry persons, viz.: Shaw and Elliot, lots $1,000; J. Kuhn, $796.86, and Francis Dodge, $175, making in the whole $1,971.86. It is contended by George Peter, the surviving executor, that he never received this amount, or any part thereof, but that the same was received by the heirs; as Major Peter gave deeds to the purchasers, the auditor is of opinion, that it was rightfully charged in said audit. This amount the executor can bring into his settlement with the heirs, but not into a settlement with the creditors of the estate. Joseph Forrest, Auditor. 10th December, 1840. Whereupon the complainants, by their solicitor aforesaid, filed the following exceptions to the auditor’s report: Complainants' Exceptions. Because the auditor has charged George Peter, surviving executor, with the purchase-money of the lots sold to , w Kuhn and *Birth, when it was proved that the same L was not received by him, but by James B. Beverly, or was applied by him to the payment of debts of the deceased, for which the executor is not credited. F. S. Key, for complainant. Whereupon the said defendants, by their solicitor aforesaid, filed the following exceptions to the auditor’s said report, to wit: Defendants' Bill of Exceptions to Auditor's Report. Exceptions on the part of the heirs at law and devisees of David Peter, defendants in the above cause, to the report of Joseph Forrest, Esq., auditor, made in this cause, and filed the day of November, in the year 1840. The said defendants except to the said report, 1. Because the auditor has allowed a claim or debt of $46,119.25, in favor of the complainants, the Bank of the United States, against the estate of the said David Peter and Vol. i.—9 129 141 SUPREME COURT. Bank of the United States v. Beverly et al. the defendants, his heirs and devisees, without legal, competent, and proper evidence of the existence of such debt, or of any debt whatsoever, due from the said David Peter, in his lifetime, and with the payment of which these defendants ought to be charged in this suit. 2. Because, in stating the said pretended debt or account, between the complainants and the said defendants, the heirs and devisees of the said David Peter, the auditor has allowed compound interest, and thus, unjustly, illegally, and oppressively increased the said pretended debt. 3. Because, if any such debt was due from the said David Peter, in his lifetime, and at the time of his death, which happened in the year 1812, the recovery of the same against these defendants, as the heirs and devisees of the said David Peter, in consideration of any real estate descended from, or devised by the said David, to these defendants, was barred by lapse of time and the provisions of the act of limitations; and although these defendants, in their answer to the bill of complaint, and at the hearing before the auditor, insisted on the lapse of time and the provisions of the act of limitations, in bar of the said debt or demand of the complainants, the auditor rejected their said defence, and allowed the said debt or demand. 4. Because George Peter, the surviving executor of David *1421 Pefer, aⁿd oⁿe the defendants to the said bill of -* complaint, *having elected to come in and contribute, with the complainants, to the expenses of this suit, filed an account as a creditor of the estate of the said David Peter, amounting to the sum of $26,607.78, which said sum of $26,607.78, the auditor has allowed as a just and proper charge against the estate of the said David Peter, and for the payment of which, the real estate devised by the said David to these defendants, ought to be sold. Whereas, these defendants say, that there is no evidence in the cause to prove the same, or any part thereof, to have existed as a debt against the said David Peter in his lifetime, or to authorize a decree for the sale of the real estate devised to these defendants, by the said David, for the payment of the same. 5. Because, each and every one of the items of charge contained in the account of the said George Peter, so allowed by the auditor, was of more than three years’ standing before the filing of the said account, by the said George Peter, with the auditor, and before the filing of the bill of complaint in this cause by the Bank of the United States, against these defendants and the said George Peter, and was, at the time of the filing of the said bill of complaint, barred by lapse of time and the provisions of the act of limitations; and these 130 JANUARY TERM, 1843. 142 Bank of the United States v. Beverly et al. defendants, at the hearing before the auditor, and before the making of his said report, as appears by the said report, insisted on the lapse of time, and the provisions of the act of limitations, as a bar to the claim of the said George Peter; notwithstanding which, the auditor allowed the same. 6. Because the report of the auditor and the account accompanying the same, are not in pursuance of the order of reference to the auditor, but relate to claims and accounts not embraced in such reference. 7. Because the said report, accounts and statements, accompanying the same, are unsupported by legal and competent evidence in the cause, and therefore ought to be set aside. 8. Because the sum allowed to George Peter, as surviving executor of David Peter, by the auditor, is for a general balance on the settlement of the executor’s account, as is alleged, for that amount overpaid the proceeds of the estate which came to the hands of the executors, to be administered; and the defendants, as heirs and devisees of the real estate rqin of the said David Peter, *are not chargeable by the L executors, or the survivor of them, with the payment of such balance. John Marbury, Solicitor for the heirs and devisees of David Peter. On the 21st of January, 1841, the cause came on for hearing on the exceptions to the auditor’s report, and the bill, answers and exhibits, depositions and proofs and general replication ; when the court decreed that the exceptions to the auditor’s report, made by complainants, be overruled, and the exceptions of defendants to the auditor’s report be confirmed; and that the bill of the complainants be dismissed with costs. From that decree the complainants appealed to this court. Jones and Sergeant, for the appellants. Cox and Reverdy Johnson, for the appellees. The counsel for the appellants made the following points. That the court erred: 1. In overruling the exceptions of complainants. 2. In confirming the exceptions of defendants, the claims of the bank and of George Peter being sustained in the record by the proof as reported by the auditor. 3. In dismissing the bill— Because: 1. The bill filed in 1827, and the proceedings thereon, were no bar to the relief now sought. 131 143 SUPREME COURT. Bank of the United States v. Beverly et al. 2. Lapse of time and the statute of limitations could not, under the circumstances of the case, operate as a bar. 3. Under the arrangement made between the banks and the executors for the benefit of the heirs, and according to the provisions of the will, the personal estate might properly be applied to the maintenance of the heirs. 4. If so applied (as it was) the real estate was liable to the debts, whether specifically so directed by the will, or not. 5. On that part of the real estate specifically directed to be sold for the payment of the debts appearing to be insufficient, the rest of the real estate was liable; and it was not necessary, in such case, to wait till an actual sale ascertained the extent of the insufficiency. 6. All these grounds were maintained in the opinion of this court in the former case between these parties. *1 441 In that case the court determined that the real estate J specifically *directed to be sold to pay debts, was liable to be sold for that purpose. This bill avers the insufficiency of that part of the real estate (it .having been sold) to pay the debts: which is not denied in the answer. And the appellants contend that, under the will and by the laws of Maryland, the residue of the real estate is liable to the extent of the insufficiency. Jones argued that the act of Maryland of 1785, gave to simple contract creditors the same remedy against heirs as specialty creditors. The heirs and devisees in this case consumed the personal fund, and the testator intended it should be so. He had, in effect, alienated his personal estate from the payment of his debts. Where the legatees have a lien, they must resort to it. 1 P. Wms., 679; 2 Pow. Dev., 654. The executor can come in as a creditor. 3 P. Wms., 398; 3 Gill & J. (Md.), 324; 6 Id., 4. The plea of limitations cannot avail, because the will creates a trust to pay debts which consists mainly in a charge upon the real estate. The form of making the trust is not material. If there is a charge upon the land and no trustee, the court will appoint one. 13 No. of Law Library, page 10. Coxe, contra. The proceeding is exclusively upon the statute of Maryland of 1785, and not upon that of George II., making real estate subject to execution. But the debt must be in existence at the death of the testator, and the executor’s claim, here, has arisen since. See 1 Harr. & J. (Md.), 469; 2 Bland (Md.), 327. In 1 Harr. & G. (Md.), 504, the petition was dismissed because it did not aver a deficiency of personal assets. The 132 JANUARY TERM, 1843. 144 Bank of the United States v. Beverly et al. Court of Appeals reversed this, but only upon the ground that the deficiency might have been proved. But here it is neither averred nor proved. See 1 Bland (Md.), 415; 2 Id., 250, 472; 4 Gill & J. (Md.), 296. In 8 Pet., 144, the court consider this act of 1785 as an enlargement of chancery powers, and say that the real estate is to be sold only when there are no personal assets. This claim was not against the testator ; he died in 1812, and the Bank of the United States was not chartered until 1816. If it be by assignment, none is shown. If a guardian to the infants had been appointed, he could not have touched the real estate. How, then, can the *executor involve it ? Law Reporter of March, *-1840, page 1. As to limitations: there is only a general rep-lification filed, and no special matter set forth in avoidance of the plea. The argument on the other side cannot therefore come in. 6 Pet., 64, says, “ Where the statute is pleaded, replication or amended bill must set forth the facts to take it out of the statute.” As to the effect of limitations, 1 Bland (Md.), 91, 470; 2 Id., 366; 8 Pet., 528; 3 Cond. Ch. Rep., 155; 4 Harr. & G. (Md.), 126, 270; 2 Gill & J. (Md.), 491. As to a trust reviving a debt barred by statute, 1 Russ. & M., 255, or 4 Cond. Ch. Rep., 413. The bill does not aver a trust; and if there be one, who is the trustee ? If it is the executor, the bill ought to have been against him alone. 2 Johns. (N. Y.), Ch., 614, 623, and authorities there cited. R. Johnson, same side, examined, 1. Whether the case as presented by the bill could be sustained, supposing the creditors to be the creditors of the testator at his death. 2. Whether they were in fact such creditors. 3. Whether the answer and proof did not meet the averments of the bill. 4. Whether the complainants could come upon the real estate either upon the ground of an assigned claim to the bank, or that the executor had overpaid. 1. The complainants can succeed only upon one of two grounds—upon the act of 1785, or that there was a general trust created. It is settled in Maryland, that under the act of 1785 there must be an averment and proof of a deficiency of personal assets. 1 Harr. & G., 504. But here the bill says there was a large personal estate. As to a general trust—how can that be, when there is a particular part of the estate devised to pay debts, if necessary? Testator died in 1812, and bill filed in 1836; in the mean time the debt has accumulated, by interest, to $46,000; the executor is a creditor to $26,000, 133 145 SUPREME COURT. Bank of the United States v. Beverly et al. making $72,000. The trust property is estimated at $29,000; the personal estate, which the testator thought might be insufficient, all gone, and the general estate is to make up $43,000. The whole estate will not pay the debt. 2. They were not creditors of the original estate. The *1401 execuf°r’s account begins in 1813, after testator’s J death, and the *other creditors claim by assignment; but none is shown. See 7 Harr. & J., 134; 4 Gill & J., 303; 6 Id., 4. 3; Answers rely upon limitations and lapse of time. Morrison v. Bell, 1 Pet., 351, decided that the court would not try to get out of the statute, and Gray and others, 1 Harr. & G., adopts the same principle. Can the creation of a trust upon a part of the estate prevent the statute from protecting the rest ? Did not the testator intend that his debts should be soon paid, and the residue of his estate go to his children, free from debt ? Between the cestui que trust and the trustee, the statute stops; but if other parties are brought in, it is different. If it is the law which makes this property responsible, then it is not the intention of the testator; and if so, there was no trust, and the statute must run. 2 Story Eq., 735, n; 2 Soh. & Lef., 630. 4. The dismissal of a former bill is a bar to this. 2 Story Eq., 740; Cooper Pl., 269-271; Mitford, 237. Sergeant, in reply, for appellants. The hardship of this case is not on the side of the defendants ; it is one of obstinate ingenuity on their side. Debt has never been paid, and children have had the benefit of the personal estate. No mismanagement of the fund anywhere. The creditors are worse off than the family. The Bank of Columbia broke long ago; if it had exacted its debt immediately, it would have been called a Shy lock. The respondents are residuary devisees; the testator first provides for his wife, and then for his debts, and the will is the law of the case. (Mr. S. here gave a history of the case.) The bill does not profess to be under the act of 1785. There was a special agreement of counsel, in which the defendants waived any objection to the jurisdiction of the court, etc.: they cannot now deny that the debt was due by the testator. We were entitled to the real, in aid of the personal, in 1813, and are so still. A devise of a part of the land to pay debts does not exempt the rest. Whoever takes the land takes it as a trus-tee. Jones v. Scott, 1 Russ. & M., says, that the intention of a testator to make a trust, prevents the statute from running-See 2 Story Eq., 737, 741. The question in the case is, 134 JANUARY TERM, 1843. *147 Bank of the United States v. Beverly et al. whether the executor shall be ruined, and the legatees *get the land for nothing. The family all concurred in what was done: the heirs and devisees had as much right as we had to go into chancery and have the estate settled up. As to the former suit being a bar, the record does not show anything but the answer, or whether it was dismissed “ without prejudice.” Mr. Justice BALDWIN delivered the opinion of the court. A summary of the points decided, and principles settled in the former case between these parties, will save much time in the investigation of those which are involved in this. After taking a condensed view of the will of David Peter, the court declare, that he had unquestionable right, so far as respected his children, to charge the payment of his debts upon any part of his estate he might think proper, and that none but a creditor could control his will in that respect; that he had constituted his widow the trustee of the proceeds of all his estate, for the maintenance and education of his children ; and invested her with unlimited discretion in this respect, so far as the proceeds of his estate would go. Whereby the surviving executor is not accountable for any thing so applied by her, even if she would be chargeable with a devastavit, and that the proceeds of all his estate being thus vested in the widow, would render it necessary, independent of any express direction in the will, that recourse be had to the real estate for the payment of the debts. 10 Pet., 562, 563. The court then decide, that the surviving executor had power to sell, and that it was impossible to draw any other conclusion, than that it was the intention of the testator that the sale should be so made. 10 Pet., 566. On the inquiry whether there is any subsisting debt due from the estate of David Peter to the banks, the court say, there is no pretense that they have been paid in fact, and if not, the trust remains unexecuted, and the land still remains charged with it. If the executors have paid the banks, or the banks have accepted their notes in payment of the notes of the testator, the only effect is, that the executors became the creditors instead of the banks, and may resort to the trust fund to satisfy the debt. But the court also say, that under the circumstances of the case, there is no ground for considering the debt of the banks to be extinguished, and they then proceed to state the result of their consideration to be this. *That the will created a power coupled with an interest that survives; that the surviving executor is the person authorized to execute that power and fulfil that 135 148 SUPREME COURT. Bank of the United States v. Beverly et al. trust; that the debt due the banks has not been extinguished, or the estate in any way discharged from the payment. That the executors are not chargeable with negligence or such misapplication of the personal estate as to make them responsible for the payment of these debts; and that from the auditor’s report on the accounts of the executors, exhibited to, and allowed by him, there has at all times been, and now is, a considerable balance in favor of the executors against the estate. The court, then, refer to the exceptions taken to the auditor’s report, and declare them to have been properly overruled by the court below, and proceed to render their decree as before referred to. 10 Pet., 569, 570. So far, then, as related to the construction of the will, the disposition of the personal property, the charge of existing debts on the real estate, the power of the executor, the existence of a trust, and their duty to execute it by a sale of the property charged by the will, the decision of the court has settled the rules and principles on which the present controversy must be determined if they are applicable; it was made on great consideration, founded on authority, and nothing which has been urged in the argument of this case has caused us to entertain the least doubt of its entire conformity to the well established law of equity. So far as the evidence and facts of that case were considered and adjudicated, the decree of this court is final and conclusive ; the parties and the subjects of controversy between them were the same as are now before us; negligence and misapplication of assets were charged on the executors, the existence of debts to them or the banks was denied by the then complainants, and now defendants, and both facts adjudged and decided adversely to them; and the auditor’s report was confirmed, whereby every fact it contained became established and binding on the parties in any future controversy, as to any matter thus adjudicated. In Hopkins v. Lee, this court state the settled law of all courts to be, that, as a general rule, a fact which has been directly tried and decided by a court of competent jurisdiction, cannot be contested again between the same parties, in *1401 same or any other court. Hence a verdict and J judgment of a court of record, or a *decree in chancery, although not binding on strangers, puts an end to all further controversy concerning the points thus decided between the parties to such suit. In this, there is, and ought to be, no difference between a verdict and judgment in a court of common law and a decree of a court of equity. They both stand on the same footing. 6 Wheat., 113, 114; S. P. 1 Wheat., 355; 136 JANUARY TERM, 1843. 149 Bank of the United States v. Beverly et al. 12 Pet., 492. Whatever, therefore, our opinion might now be as to the facts adjudicated in the former case, the judicial power is incompetent to revise the evidence on which the decree was rendered, on any ground now set up in the answer of the defendants, or apparent on the present record, and they must be taken to be beyond all controversy in this or any future case between the parties. Before proceeding to consider the questions appropriate to this cause, a reference to the case of Fenwick v. Chapman, 9 Pet., 466, will be useful, in order to ascertain what principles were there laid down and are applicable to the present controversy. Adopting the general rule that the personal estate of a testator shall in all cases be primarily applied to the discharge of his personal debts or general legacies, unless he by express words or manifest intention exempt it, the court thus qualify the rule; where the testator’s intention clearly appears that a legacy shall be paid at all events, the real estate is made liable on a deficiency of personal assets. So where without any assistance from the will, the nature of the thing to be done may clearly show the intention to charge the real estate with a debt; as, where the thing to be done cannot be partially performed by the executor, without defeating the instruction which directs it, and the thing itself. On this principle the court holds, that the manu-mission of slaves pursuant to the directions of a will under the law of Maryland (which is the law of the eastern part of this district) operates as a specific legacy to the slaves, and to charge the real estate with the payment of the debts of the testator, even though he may have, at the time of his death, no other personal property than slaves. 9 Pet., 471, 473. That the creditor may be carried into a court of equity, or voluntarily resort to it to obtain his debt, either from the lands or the personalty, when the testator leaves it doubtful from what fund his debts are to be paid; that lands devised for the payment of debts, or which have become pic a chargeable by implication, constitute *a fund for the L payment of debts, and an ample and plain remedy is admitted to exist in the law of Maryland, so to apply them. “ The will is the executor’s law, and he is no more than the testator’s representative in all things lawful in the will. A special legacy of all the personal property is a law to him; ” if there is an insufficiency of “personal assets to pay debts, it is the executor’s duty to file a bill against the creditors and all interested in the estate; ” “ praying that the lands may be made liable to the payment of debts, that equity may be done to all concerned, according to the law of equity.” 9 Pet., 474, 475. When he is charged with the sale of the tes-137 150 SUPREME COURT. Bank of the United States v. Beverly et al. tator’s lands for the payment of debts, it is his duty to execute the whole of the testator’s will, and in such a case the creditors have as good a right to look to the land through him for the payment of their debts, as they have to look to the goods and chattels through him, 9 Pet., 477; and they must pursue their claims in equity, or according to the statutes of Maryland subjecting real estate to the payment of debts, to make their debts out of the land. 9 Pet., 481, 482. These statutes are the 4 Geo. 2, adopted in Maryland, and the act of 1785, c. 72, sect. 5, which is recited in the Bank of the United States v. Ritchie, 8 Pet., 143, and which this court there declare has been construed in that state to be an enlargement of jurisdiction, and that decrees for selling the lands of minors and lunatics, in the cases prescribed by it, have been treated by the Court of Appeals, as the exercise of other equity powers. That these opinions of this court are in accordance as well with the statutes of Maryland, and the established rules of equity in cases of this description, we have no doubt; nor of their application to the present. It must therefore be taken to be a settled point, that a disposition by a testator of his personal property to purposes other than the payment of his debts, with the assent of creditors, is in itself a charge on the real estate, subjecting it to the payment of the debts of the estate, though no such charge is created by the words of the will. A trust is thereby raised which devolves on the executor, who may execute it by his own authority, or be compelled to do it by a bill filed by the creditors, either under the statute of 1785, or in virtue of the powers of a court of equity in relation to the execution of trusts, as the case may be; in this *1511 case ^ere was subh a trust fastened on the property -* *in controversy by implication of law, and the presumed intention of the testator, which can be enforced by these complainants, unless some valid objection has been made out by the respondents. It has been contended that the frame of the bill is too defective to justify any action upon it, for the want of necessary averments, but when we 'take it in connection with the former cause to which it refers, the agreement of the parties on file, and the answer of the defendants, we think that a satisfactory answer is at hand. The object of the bill is clearly stated, such averments are set forth as on its face show some equity which requires an answer; informal as they may be, they would stand the test of a demurrer, especially with the aid of the agreement, by which it appears that the defendants fully understood the nature of the plaintiff’s case, the object sought, and the evidence on which they would rely. The 138 JANUARY TERAI, 1843. 151 Bank of the United States r. Beverly et al. answer is full to every matter of fact or law which could be averred in the best drawn bill; there has been no allegation of surprise, or any want of notice of the grounds on which the plaintiff rested his case, and the parties went to the hearing on the bill as it stood, fully prepared to contest their respective claims, as they had done in the first case, of which this was well known to be the consequence. Under such circumstances the objection is entitled to no favor, and is not sustainable as an obstacle to our action upon the merits of the cause. The answer sets up the dismission of a bill filed by the complainants in 1827, against the defendants, for the same relief as is prayed for in the present bill, as a bar thereto; but no record of such case is set out or exhibited, so that, however true the answer may be in fact, it cannot avail in law. In this respect it is not responsive to the bill; it sets up distinct affirmative matter of defence and bar, which the defendants must prove, or it can have no effect for either purpose. The statute of limitations, and the loss of time from the death of David Peter to the filing of the bill, are also plead and relied on as a bar, but we think that neither can apply to this case, which is an unexecuted trust for the payment of debts adjudged by this court in 1836, to be unpaid in point of fact, and then existing in favor of the banks and executor, and the present bill was filed soon after the decision was made. The confirmation of the auditor’s *report, L made in that case, is conclusive to show the amount of such debts at that time; so is his report in this case as to their present amount: we cannot look through these reports for the evidence on which they were made; they have passed to judgment, and have the sanctity of records. The remaining objections to the relief prayed for by the bill, which are founded on the principles of the law or the rules of equity, are covered by the former decisions of this court; those which arise from the evidence in the cause as to matters of fact material to our decision, are no longer open to controversy, and we are clearly of opinion that the complainants have made out their case in point of law and fact. The decree of the Circuit Court must consequently be reversed. The cause is remanded with directions to make a decree in conformity with this opinion, by ordering a sale of the property in controversy, and consistently with the agreement of the parties filed of record, and the rules of equity as to the time of disposing of the several parts thereof, specifically devised by the will of David Peter. It is also directed, 139 152 SUPREME COURT. Lloyd v. Hough. that the Circuit Court decree on the report of an auditor, or as they may think proper, to what part or items of the account of George Peter, a preference ought to be given in payment over the other creditors of the estate of the testator, and make a final order thereon according to law and equity. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States fdr the district of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to proceed therein according to the opinion of this court, and in conformity to the principles of law and justice. *153] John Lloyd, Plaintiff in error, v. George S. Hough. The action of assumpsit for the use and occupation of lands and houses, existed in Virginia anterior to the cession of the District of Columbia to the United States. But this action is founded upon contract, either express or implied, and will not lie where the possession has been acquired and maintained under a different or adverse title, or where it was tortious and makes the holder a trespasser.¹ This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Alexandria. The facts in the case, and bills of exceptions, are stated in the opinion of the court, to which the reader is referred. ¹ Cited. West v. Smith, 8 How., man, 2 McLean, 180. And the posses-413. S. P. Central Mills Co. v. Hart, sion of defendant may have been un-124 Mass., 123 ; Marquette &c., R. R. der a contract to rent in the future, Co. v. Harlow, 37 Mich., 554; Moore and therefore void under the statute v. Harvey, 50 Vt., 297. of frauds. Smith v. Kincaid, IBradw. Nor will it lie against one who en- (Ill.), 620. tersunder an agreement or understand- The owner may waive the trespass ing that he is to be a purchaser, which as to one holding over after notice to agreement is subsequently carried out. quit and maintain assumpsit for use Carpenter v. United States, 17 Wall., and occupation without any specific 489. But it will lie against a tenant contract oral or written. Nat. Oil who has disclaimed holding under the Refining Co. n. Rush, 88 Pa. St., 335. terms of the lease. Scott v. Hau»- 140 JANUARY TERM, 1843.] 153 Lloyd v. Hough. Semmes, for the plaintiff in error. Neale, for the defendant. Semmes, for the plaintiff, raised the following points: First bill of exceptions.—There was error in the opinion and instructions of the court. 1. Because the instruction was not given upon the whole of the evidence of the witness, Isaac Robbins, but upon only part, which he gave upon cross-examination by the defendant in error. 2. Because the court allowed parol evidence of title to real estate to go to the jury. 3. Because in the opinion and instruction they gave on this portion of the evidence, the court directed the jury, if they believed the testimony therein stated, they “ must ” find for the defendant. Second bill of exceptions.—The court ought to have instructed the jury, that if they believed the evidence therein stated to be true, the plaintiff, being the fee simple owner of the tenement, could recover on the implied contract as stated in the second count of the declaration, without any proof of an actual entry into the premises on the part of the plaintiff, or acknowledgment on the part of the defendant that he considered the plaintiff his landlord, or without any proof that the defendant had actual notice of the legal and fee simple title of the plaintiff to the premises. *Third bill of exceptions.—Evidence ought to have been admitted to show the notoriety of Lloyd’s claim L and title, tending, with other circumstances, to bring the knowledge of it home to the defendant. Fourth bill—governed by same principles as second. On the right of the jury to weigh evidence, he cited Greenleaf, p. 292, 445, 446, 568; 1 Call, (Va.), 161; 2 Mod., 478. That an action will lie on an implied promise, 16 East., 104; 1 Levins, 179; 2 Campb., 18; 1 Id., 466. Debt lies for use and occupation, 6 T. R., 62; 4 Day, (Conn.), 228. Neale, for the defendant, cited several authorities to show that interest could not be recovered upon rent in arrear; and to prove that this action would not lie where there was no privity of contract, cited 1 Esp., 57, 59, 61; 2 Nott. & M., (S. C.), 156; 3 Serg. & R., (Pa.), 500; 6 Conn., 1; Chit. Cont., (3d Am. ed. by Troubat,) 106; 2 Tuck. Com., book 3, c. 1, p. 19, 20; 2 Campb., 11, 12; 1 Id., 466; Bull. N. P., 139. As to the court directing the jury they must find for the defendant, 5 Pet., 197; 14 Id., 327; 1 Cranch, 300; 4 Id., 141 154 SUPREME COURT. Lloyd v. Hough. 71; 4 Leigh, (Va.), 114; 1 Wash. (Va.), 5, 6: 5 Rand. (Va.), 145, 194. Mr. Justice DANIEL delivered the opinion of the court. This cause is brought before this court upon a writ of error to the Circuit Court of the United States for the District of Columbia. The questions for consideration here, arise upon the following statement. The plaintiff in error instituted in the Circuit Court for the District of Columbia, an action of assumpsit against the defendant for the use and occupation of a house in the town of Alexandria. The declaration contains two counts, the first declaring upon an express agreement between the parties for the occupation and rent, and the second counting upon an occupation by the defendant by the permission of the plaintiff, and upon a promise in consideration thereof. The account filed with the declaration claims an annual rent of 8175, from the 1st of January, 1826, to the 1st of January, 1839, inclusive, with interest after the expiration of each year. Upon the above declaration, there was a judgment by default, and a jury being empannelled upon a ~ writ of inquiry assessed damages against the defendant J to the *full amount of the plaintiff’s demand for rent and interest. This verdict the court on motion of the defendant set aside; annexing to its order the condition, that the defendant should not plead the statute of limitations; and issue being joined between the parties on the plea of non-assumpsit, a jury sworn to try that issue on the 10th of May, 1841, returned a verdict for the defendant; and thereupon the court gave judgment against the plaintiff with costs. At the trial instructions to the jury were prayed on behalf both of plaintiff and defendant, and exceptions taken to the rulings of the court in reference to those instructions. The first bill of exceptions states that the defendant, having offered to prove by competent and credible witnesses that during the entire period of his occupation of the premises, he had remaining thereon property sufficient to answer the rent, had the plaintiff chosen to distrain or sue for the same; he thereupon prayed the court to instruct the jury, should they believe from the evidence, that there had always been upon the premises, while occupied by the defendant, property and effects of his sufficient to have satisfied the rent, then that the plaintiff failing or neglecting to sue or distrain for those rents, was not entitled in this action to recover interest.on the rent in arrear whatever it might be, from a period earlier than the date of the writ sued out in this cause. But the court refused 142 JANUARY TERM, 1843. 155 Lloyd v. Hoi gh. the instructions so prayed for, to which refusal the defendant excepted. In the second bill of exceptions it is stated that the defendant, by cross-examination of Isaac Robbins, the plaintiff’s witness, proved that in the spring of 1820, defendant entered the premises as tenant from year to year, under a parol demise from said Robbins as trustee of John Swayne, an insolvent debtor, and at the annual rent of 8175, and continued to occupy the premises under said demise, paying the rent as it became due to Robbins, as trustee of Swayne, till the spring of 1824. That Robbins, in character of trustee of Swayne, paid a portion of the rents collected of the defendant to A. C. Cazenove, and a part of them to the plaintiff, but without the knowledge of the defendant: that since the spring of 1824, the defendant had paid no rent to Robbins, assigning as a reason for refusing to pay, that the collector of the port of Alexandria had forbidden such payment: that the *de-fendant was still the occupant of the premises of which L the plaintiff in this cause had never, to his knowledge, taken actual possession: that Robbins resided in Alexandria and had so resided for the last thirty-seven years: that the defendant also read in evidence a deed from Jonathan Schol-field and wife, to A. C. Cazenove, bearing date on the 13th of June, 1814, and duly recorded in Alexandria county, which deed (made a part of the exceptions) conveyed the premises occupied by the defendant. That upon these proofs the defendant prayed the court to instruct the jury, should they believe that the defendant originally entered, and used and occupied the premises by a parol demise thereof from Robbins, as trustee of Swayne, in 1820, and, as tenant of Robbins, paid him the rent until 1824, after which period Robbins ceased to collect the rent for the reason above stated, although the defendant continued to use and occupy the premises from 1824, and still occupied them; and that the defendant did not hold and occupy the premises either under a written or parol demise from the plaintiff prior or subsequently to his holding under Robbins, or prior to the institution of this suit, but that the defendant held and occupied the premises exclusively under the original parol demise from Robbins as trustee as aforesaid, and that the defendant had no notice of any title in the plaintiff to the premises beyond what might be presumed from the fact then shown in evidence, that a deed had been made for the premises from Robert I. Taylor to the plaintiff and had been admitted to record, that then the jury must find for the defendant, which instruction the court accordingly gave, and the plaintiff excepted. 143 156 SUPREME COURT. Lloyd v. Hough. By the third bill of exceptions it is recited in substance that the plaintiff having offered in evidence a deed to him for the premises, dated March the 10th, 1817, from Robert I. Taylor, trustee in a deed from Jonathan Scholfield and wife, conveying the same property to said Taylor on the 26th of June, 1814, (both which deeds are parts of this exception,) and having farther proved by Isaac Robbins that from the year 1820 to the year 1824, the defendant used and occupied the premises in the declaration mentioned under a verbal renting from Robbins, claiming as trustee of Swayne under the insolvent *1 r^-i law, and that said renting by Robbins was without the J knowledge or consent of the plaintiff, *(no title having been shown by the defendant in Swayne or in Robbins claiming as his trustee under the insolvent law,) and that Robbins collected the rent of the premises from 1820 to 1824 inclusive, claiming as lessor of the defendant, and as trustee of Swayne; that he had paid over a portion of the rent thus collected to A. C. Cazenove, and a portion of it to the plaintiff, who was the owner of the fee simple under the deed from Taylor, of March the 10th, 1817; the witness not knowing whether the defendant knew of the disposition so made of the rent collected of him, and that he, Robbins, had not claimed rent for the premises from the defendant since April, 1824, having been informed that defendant had been forbidden by the collector of the customs of the port of Alexandria, to pay rent to any one, other than the United States, and not having shown that the defendant had, at any time, paid rent either to the collector or the United States. Whereupon, the plaintiff prayed the court to instruct the jury, should they believe the evidence aforesaid, that then the plaintiff had made out such a case as entitled him to recover on the second count, for the use and occupation of the premises, for such time as the plaintiff should prove that the defendant had used and occupied the same, after the 15th day of April, 1824, by permission of the plaintiff. This instruction the court also refused to give, being of opinion that from the evidence so stated, it was not competent for the jury to infer that such occupation by the defendant was by the permission of the plaintiff, to which opinion, and refusal the plaintiff excepted. Fourth bill of exceptions.—The plaintiff offered to prove that the claim of the plaintiff to the premises, for the rent of which this suit was instituted, was a subject of general notoriety in the neighborhood about the year 1820 and since, which being objected, the counsel for the plaintiff insisted he had a right to ask the question objected to, it being introductory to 144 JANUARY TERM, 1843. 157 Lloyd v. Hough. another question designed to bring home to the defendant knowledge of the fact, that the plaintiff claimed the premises used and occupied by the defendant during the time he so used and occupied them. The court refused to permit the question, to which refusal the plaintiff excepted. By the fifth and last bill of exceptions it appears that the plaintiff moved the following instructions: That if the jury should believe *from the evidence stated in the L preceding bills of exception in this cause, that there was a deed from Jonathan Scholfield and wife (said Scholfield being admitted to have been at the time seised of a legal estate in fee of the premises) to Robert I. Taylor, which deed conveyed the fee in the premises, for the use and occupation whereof this suit was brought, and if the jury should further believe that Taylor by a deed, subsequent thereto, and set out in the plaintiff’s second bill of exceptions, conveyed the said premises to the plaintiff and his heirs, then, by the legal operation of the deed from Taylor to the plaintiff, there was such a possession transferred to the use thereby limited and conveyed, as dispensed with proof on the part of the plaintiff, that he had actual entry on, and possession of, the premises; and that the said deed gave to the plaintiff such a legal title thereto, and possession thereof, as could not be divested by a leasing of said premises to the defendant by Isaac Robbins, a stranger, so as to deprive the plaintiff of his remedy against the defendant, tenant of the premises, occupying and using them, though originally leased to him by said Robbins without the plaintiff’s consent; which instruction the court refused to give, and the plaintiff excepted. Although it has been deemed necessary to an accurate description and correct understanding of the points in the case, to state the several bills of exception in the record, yet it is obvious that the four bills sealed at the instance of the plaintiff, and making the second, third, fourth, and fifth in the order of the proceedings, may be embraced within the same view, as they all relate to the establishment of one and the same conclusion, viz., the necessity of establishing an agreement either express or implied by law, for the payment of rent by the defendant to the plaintiff. In the argument of this cause, the counsel for the plaintiff has supposed himself called on to anticipate an objection to the remedy by action of assumpsit, for use and occupation of lands and houses, as not having existed in Virginia anterior to the cession of the District of Columbia to the federal government. Such an objection is regarded without just foundation, this remedy having been declared by the Supreme Court of Vol. i.—10 145 158 SUPREME COURT. Lloyd v. Hough. Virginia to be always a part of the jurisprudence of that state, and having been likewise recognized in her legislation, rq-l not as a remedy created by statute, but as one enlarged 1 and favored, by making it a transitory instead *of a local action. See Sutton v. Mandeville, 1 Munf. (Va.), 407 ; Eppes n. Cole, 4 Hen. & M. (Va.), 161; Sessions Acts, February, 1816, c. 15, s. 6; Tate’s Dig., 465, s. 28. But whenever the action of assumpsit for use and occupation has been allowed, it has been founded and would seem necessarily to be founded upon contract either express or implied. The very term assumpsit presupposes a contract. Whatever, then, excludes all idea of a contract, excludes, at the same time, a remedy which can spring from contract only, which affirms it, and seeks its enforcement. To maintain the action for use and occupation, therefore, there must be established the relation of landlord and tenant, a holding by the defendant under a knowledge of the plaintiff’s title or claim, and under circumstances which amount to an acknowledgment of, or acquiescence in, such title or claim, and an agreement or permission on the part of the plaintiff. The action will not lie where the possession has been acquired and maintained under a different or adverse title, or where it was tortious and makes the holder a trespasser. In Birch v. Wright, 1 T. R., 387, Buller, Justice, declares “that the action for use and occupation is founded in contract, and unless this be a contract express or implied, the action could not be maintained, as was held by Lord Mansfield in the case cited at the bar, of Carmur v. Mercer, which was tried about two years ago.” The same principle is ruled in Smith v. Stewart, 6 Johns. (N. Y.), 46. In the case of Henwood v. Cheeseman, 3 Serg. & R. (Pa.), 500, it is said by the Supreme Court of Pennsylvania, “ If the defendant occupied land by consent and permission of the plaintiff, the jury may presume a promise to pay a reasonable rent; ” again, “ the action for use and occupation is founded on privity of contract, not on privity of estate.” In 2 Nott & M. (S. C.), 156, in the case of Ryan v. Marsh, the law is thus laid down: “ It was argued that a contract might be implied, and certainly as long as the character of the act done by the defendant was doubtful, a contract might be implied; but when it is admitted that the possession was tortious, every characteristic of contract was excluded. No action for use and occupation will lie when possession has been adverse and tortious, for such excludes the idea of a contract, which, in all cases of this action, must be express or implied.” Authorities upon this point might doubtless be multiplied. 146 JANUARY TERM, 1843. *160 Lloyd v. Hough. *We will add two others to those already cited, viz. the cases of Stockett v. Watkins's administrators, 2 Harr. & J. (Md.), 326 ; the opinion of the court on pp. 338, 339 ; and of Stoddert v. Newman, 7 Id., 251. The principles ruled in. the authorities above referred to, appear to be strictly applicable to the case under consideration, and decisive of its fate. Upon an examination of the testimony, introduced by the plaintiffs, as set forth in his four bills of exception, it cannot fail to be perceived, that it imports throughout no proof of a contract between the plaintiff and defendant, of a holding by the latter under the former, of any acquiescence in, or knowledge of title in the plaintiff or of permission by him for the occupation of the defendant. So far from establishing these requisites for sustaining the plaintiff’s demand, it excludes each and all of them. This evidence proves beyond dispute, a possession and holding by the defendant under an agreement with Robbins, as trustee of Swayne, an insolvent debtor ; payment of rent to this trustee in pursuance of such agreement, until a claim was interposed on behalf of the United States, as creditors of the insolvent debtor ; it further proves a failure or forbearance by the plaintiff to assert any interest or right to the subject, anterior to the year 1839, about the time of the institution of the plaintiff’s action, and so far as a negative is capable of proof, a total ignorance on the part of the defendant of any right of the plaintiff, either to the rents or to the subject from which they were to issue. Upon the above view of the evidence as disclosed in the second, third, fourth, and fifth bills of exceptions, we hold thè opinion of the Circuit Court to be correct ; it is therefore affirmed. ORDER. 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 Alexandria, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be and the same is hereby affirmed, with costs. 147 *161 SUPREME COURT. McKnight v. Taylor. *Charles McKnight, Appellant, v. Lawrence B Taylor, Trustee, &c. There must be conscience, good faith, and reasonable diligence, to call into action the powers of a court of equity.¹ In matters of account, where they are not barred by the act of limitations, courts of equity refuse to interfere, after a considerable lapse of time, from considerations of public policy, and from the difficulty of doing entire justice, when the original transactions have become obscure by time, and the evidence may be lost.² This was an appeal from the equity side of the Circuit Court of the United States for the district of Columbia, holden in and for the county of Alexandria. The facts in the case are fully stated in the opinion of the court, to which the reader is referred. Semmes and Jones, for the appellant. Lee and Bradley, for the appellee. Semmes, for the appellant, contended that the decree of the court below was erroneous, and should be reversed for the following, among other reasons: 1. Because there is no equity in the bill or supplemental bill, and no case made for the interference of the court. 2. Because it decrees debts to be paid which the record shows have already been paid. 3. Because it decrees the debt mentioned in the schedule as that due to Thomas Janney & Co., to be paid to John Lloyd, who claims by virtue of various assignments named in said decree. 4. Because it did not allow the appellant a lien on or pro rata dividend out of the trust fund for the debts paid off, and assigned for his use, as shown in the record. ¹ Cited. Landsdale v. Smith, 16 v. Taylor, 12 C. E. Gr. (N. J.), 259. Otto, 393; McCoy v. Poor, 56 Md., Mere delay alone, where the bar of 204. See Bowman v. Wathen, post, the statute of limitations has not in-*189, s. c, 2 McLean, 376 ; Wagner v. tervened, will not preclude the asser-Baird,1 How., 234. tion of an equitable right, unless the ²Applied. Maxwell v. Kennedy, 8 adverse party has been lulled into se- How., 222; Godden v. Kimmell, 9 curity and prejudiced thereby. Gib-Otto, 211; Etting v. Marx, 4 Hughes, bons v. Hoag, 95 Ill., 45. S. P. Hag-323 ; Haggerty v. Mann, 56 Md., 526. erty n. Mann, 56 Md., 522. Cited. Pulliam v. Pulliam, 10 Fed. Where the defendant, in his charac-Rep., 26. S. P. Michoud v. Girod, ter as executor, ought to collect and 4 How., 503 ; Livingston v. Salisbury receive, and, as trustee, to pay over, Ore Bed, 16 Blatchford, 549 ; Lewis he will not be allowed to set up lapse v. Baird, 3 McLean, 56 ; Gould v. of time as a defence to a bill filed to Gould, 1 Story, 516; Spaulding v. compel payment. Colwell v. Miles, Farwell, 70 Me., 17. But see Barnes 2 Del. Ch., 110. 148 JANUARY TERM, 1843. ill McKnight v. Taylor. 5. Because the court should have presumed payment of the debts, in the absence of all evidence showing them still due, after the great lapse of time; or, if the court believed them still unpaid, they should have presumed an abandonment of the claims by the creditors from their laches and the lapse of time; and therefore erred in decreeing relief to claimants whose demands were stale, and who had knowingly slept upon their rights. *6. Because the court should, for like reason, have [-*4^.7 presumed a performance of the covenant contained in the deed of trust executed between the appellant and Robert I. Taylor, for payment of the schedule debts—a release of the same, or that it was abandoned or extinguished. 7. Because, if the said covenant was any part of the grounds or foundation of their decree, the court erred in decreeing upon it in favor of parties between whom and the covenantor there was no privity; or, if there was any such privity, then, because the covenant was a personal matter, disconnected from the trust, and upon which the remedy was by action at law; and more especially as there was no prayer in the bill for an enforcement of the covenant. 8. Because, if it was right under the circumstances to give any relief at all, the court should have decreed only the principal of the debts found due, and should, on account of the laches, have refused to allow any interest, on the principle on which the account of profits was denied in Ackerly v. Roe, 5 Ves., 565; or, upon the principle of Pickering v. Lord Stamford, 2 Ves., 272, 581, interest should have been allowed only from the filing of the bill; the plaintiffs having gone into equity for general relief, and not for an enforcement of the covenant in the deed, on which there was full remedy at law. On the subject of the lapse of time, he cited 5 Leigh (Va.), 350; 6 Wheat., 481; 4 Johns. (N. Y.), 1; 9 Pet., 416; 5 Leigh (Va.), 381; 7 Johns. (N. Y.), 556; 2 Nott & M. (S. C.) 360; 9 Leigh (Va.), 393; 2 Baldw., 477; 1 Cowp., 109. Bradley, for appellee. As to lapse of time: there was a covenant between McKnight and Taylor, the consideration of which was the forbearance of creditors to sue, and they did forbear. 3 Swanst., 417. As to the presumption of payment: it is not well settled whether it is a matter of fact or law. Hughes v. Edwards, 9 Wheat., 489; same case in Cond. Rep., 654, 655; Elmendorf v. Taylor, 10 Wheat., 152; same case in Cond. Rep., 55, 56. See also, 10 Leigh, (Va.), 284. 149 162 SUPREME COURT. McKnight v. Taylor. Jones, for appellant. A decree must follow the equity of the bill, but the court *1631 bel°w has ⁿ°t done it. Hellary v. Waller, 12 Ves., -* settles the rule *that a court of equity will put itself in the position of a court and jury. The trustee, here, had full legal power to sell without coming to equity, and courts act on different principles when called upon to lend their aid, than when acting regularly. Amb., 645. The creditors, generally, do not answer or take any notice, but appear to have abandoned the claim. Only one acts. This circumstance ought to be coupled with the staleness of the demand. Mr. Chief Justice TANEY delivered the opinion of the court. This is an appeal from the decree of the Circuit Court of the District of Columbia, for the county of Alexandria, sitting in chancery. It appears from the record, that the appellant, Charles McKnight, by deed bearing date the 29th day of September, 1813, conveyed to Robert I. Taylor, certain real property described in the deed, situate in the town of Alexandria, upon trust, to permit the appellant to occupy the same, and to receive the rents and profits without account, until a sale should become necessary, under the terms of the deed; and if he, the said Charles McKnight, should not on the 1st day of April, 1818, have paid the several creditors named in a schedule, annexed to the deed, the debts therein mentioned with interest, then the said Robert I. Taylor should, on notice of such default from any one of the said creditors or his representatives, proceed to sell the said property, or so much thereof as might be necessary, for cash at public auction, after giving three weeks notice of the time and place of sale, by advertisement in any paper published in Alexandria, and after defraying the reasonable expenses of sale, discharge the aforesaid debts with all interest due thereon. The bill in this case was filed in August, 1837, by Robert I. Taylor, the trustee above mentioned, and after setting forth the deed of trust, proceeds to state that Thomas Janney & Co. (who are named as creditors in the schedule) had assigned the debts due to them, to Joseph Janney in trust for the payment of their creditors; and that Joseph Janney, under a provision in the deed of assignment, afterwards transferred the same to George Johnson, in trust for the same purpose; *1641 aⁿci ^0 complainant had been required by the said J George Johnson, and by certain *other creditors named in the schedule (but who are not named in the bill), to sell 150 JANUARY TERM, 1843. 1G4 McKnight v. Taylor. the premises, so as aforesaid conveyed to him in execution of the trust; that the debts mentioned in the schedule were due from McKnight, the appellant, and John Stewart, who had been trading under the firm of McKnight & Stewart, and that no part of any of them had been paid. The bill further states that before the execution of this deed, the appellant had, on the 30th of April, 1808, conveyed a part of the same premises to a certain Jacob Hoffman, in order to secure Thomas Janney against his responsibility as endorser on two notes discounted at the Bank of Alexandria and the Bank of Potomac; and that the said notes had been long before paid, although the property had not been re-conveyed to the appellant: that McKnight was giving out that the debts in the schedule had been all paid, and threatened to withhold possession if the trustee proceeded to sell under the deed, and that from these declarations of the appellant, and the outstanding legal title, the sale could not be made without injury to the interests of the parties concerned, without the aid of the Court of Chancery: and prays process against the heirs of Hoffman (he being dead), and against McKnight & Stewart, and all of the creditors named in the schedule; and, among the rest, against George Johnson, in order that they may be compelled to appear and answer the several matters charged in the bill. A supplemental bill was afterwards filed, in order to make additional parties, and for other purposes; but in the view which the court take of this subject it is unnecessary to state its contents. The creditors secured by the deed of trust are eleven in number, their respective claims varying in amount: the lowest being $85.72, and the highest $1,227.19. The trustee, Robert I. Taylor, is himself one, and the debt due him stated to be $214.54. To this bill Hugh Smith, one of the creditors, whose debt was $151, answered, saying merely that his claim is still due. James Carson, another of the creditors, whose claim was $85.72, answered and admitted that he had been paid. The heirs of Hoffman also answered, and admitted that the notes intended to be secured by the conveyance to their father had been paid; and submit themselves to such decree as the court may deem just. The answer of the appellant, so far as it is material to set forth *its contents, states that the claim of *- • Thomas Janney & Co., which was $1,022.69, was due upon open account, and that the respondent was entitled to a deduction of considerably more than $300 for money overpaid by mistake on the settlement of a former account, but that he cannot find a memorandum in writing to establish it, which 151 165 SUPREME COURT. McKnight v. Taylor. he knows did once exist; and that after the execution of the deed of trust he transferred to Thomas Janney, on account of this debt, the note of a certain Jonathan Mandeville, for $467.08, due on the 20th of January, 1815, which, from what Janney himself afterwards told him, he believes to have been paid; and in respect to this item, his answer is responsive to the bill. He also specifies several creditors whose claims he states that he has paid, and among them the trustee, Robert I. Taylor, and he sets forth the manner in which he satisfied that debt. Some of the creditors mentioned in the schedule are not, however, named in his answer; and he mentions three whom he admits that he has not paid, and makes the same admission as to the small balance which would be due to Thomas Janney & Co., after deducting the credits claimed by him as above stated; but he does not admit that these debts are yet due, and insists that there is every reason to believe that they were paid by his former partner, Stewart, who was equally liable with himself; or, if not paid, that it was owing to the negligence and laches of the creditors in not proceeding against him; the respondent alleging that Stewart, after the dissolution of the partnership with him, removed to Martinsburg, in Virginia, about the year 1812, where he carried on a prosperous business until his death in 1825, and was fully able to pay these debts if the creditors had used proper diligence to recover them; and he relies upon the lapse of time as a good defence upon principles of equity against this proceeding. There is a general replication to this answer; and it appears in evidence that upon the dissolution of the partnership of McKnight & Stewart, in 1812, a notice of it was published in the newspapers, stating that McKnight was authorized to collect the debts and settle the business of the concern. And a witness was also examined on the part of the complainant, who states, that from a perfect knowledge of the pecuniary *1661 situation of Stewart, from 1812, until his death, he -• knows that he was insolvent *when he removed from Alexandria to Martinsburg, and that he continued and died insolvent; that he had no property he could call his own, and out of which an old debt of $100 or $200 could have been made. It also appears in evidence, that Thomas Janney & Co., on the 30th of April, 1823, assigned all their effects and claims to Joseph Janney, in trust to pay their debts. That by virtue of a provision contained in this deed of assignment, Joseph Janney afterwards, on the 10th of August, 1829, renounced the further execution of the trust, and transferred all the 152 JANUARY TERM, 1843. 166 McKnight v. Taylor. property and claims that remained in his hands to George Johnson, in trust for the same purposes for which they had been conveyed to him. And on the 14th of November, 1837, after this bill was filed, Johnson sold and assigned all the effects and claims which he then held as trustee of Thomas Janney & Co., to John Lloyd, of Alexandria; and on the same day executed a power of attorney in his favor, authorizing him to receive whatever might be recovered in this suit, or on any other claims of Thomas Janney & Co., and to compromise and settle them in any manner he might think proper. The consideration paid by Lloyd is not stated, nor indeed does it appear by the assignment, that any consideration whatever was paid. The deed of assignment merely states that Johnson had sold these effects and claims to Lloyd, and authorizes him to collect, compromise, and settle them. The bill was taken pro confesso against all of the creditors who had not appeared and answered, and the Circuit Court proceeded on final hearing to decree that the appellant should pay the full amount of the debts mentioned in the schedule, with interest, by a certain day specified in the decree, except those of Joseph Janney, John Leo, and James Carson, which were admitted to have been paid; and in default of payment by the day limited in the decree, the property was directed to be sold and the proceeds applied to discharge the aforesaid debts. This is the case in its material parts, as presented in the record. The omission of the creditors to appear and answer, upon which the bill as against them was taken pro confesso, was not, of course, regarded by the Circuit Court as establishing their claims. The decree, we presume, proceeded upon the ground that the creditors mentioned in the schedule were entitled to the aid of the court *to enforce the pay- „„ ment of the whole amount originally admitted to be due, unless the appellant could show by legal proofs that the debt had been since discharged. Now of the eight creditors in whose favor the decree was made, five of them seem to have taken no concern in these proceedings, and for aught that appears in the record, may not have known that it was pending; certainly there is nothing to show that they ask or desire the interposition of the court in the manner sought for by the bill. Of the remaining three, one has answered and stated that his claim is still due, but does not ask for a sale, nor say anything that sanctions, on his part, the proceedings of the trustee; and the trustee himself does not ground the bill upon his own claim, or allege its nonpayment as the foundation of the suit, but places it entirely 153 167 SUPREME COURT. McKnight v. Taylor. upon the notice and request of George Johnson and other creditors, and his own duty upon such an application to proceed to sell according to the provisions in the deed of trust. But, although the application is alleged to be made by other creditors as well as George Johnson, yet no other creditor has appeared to claim the execution of the trust; and as they were all made defendants and called to answer, and have refused or neglected to appear, the bill,under the provisions of the deed, must be regarded as founded exclusively upon the application of the creditor named in it; and as instituted and conducted without the co-operation or request of any other creditor. In relation to this claim, it appears that nineteen years and three months were suffered to elapse, before any application was made for the execution of the trust by which it had been secured. No reason is assigned for this delay; nor is it alleged to have been occasioned in any degree by obstacles thrown in the way by the appellant. As the record stands, it would seem to have been the result of mere negligence and laches. The original creditors were in business ten years after the deed was made, and five years after the expiration of the credit which it gave to McKnight and Stewart. And as they became insolvent in 1823, it must be presumed that in the last-mentioned period they were themselves pressed for money. The property is situated in the town of Alexandria, where the laws of Virginia have been adopted by Congress; and the trustee, under these laws, had an undoubted right to sell, upon *1application of any creditor, as soon *as default was J made, without asking the interposition of the Court of Chancery. Such delay, under such circumstances, by the original creditors, followed by fourteen years more by the assignees, who afterwards had charge of this claim, can perhaps hardly be accounted for without supposing that this debt had been nearly, if not altogether, satisfied in the manner suggested in the answer of the appellant. If, indeed, the suit had been postponed a few months longer, twenty years would have expired, and in that case, according to the whole current of authorities, the debts in the schedule would all have been presumed to be paid. But we do not found our judgment upon the presumption of payment. For it is not merely on the presumption of payment, or in analogy to the statute of limitations, that a court of chancery refuses to lend its aid to stale demands. There must be conscience, good faith, and reasonable diligence, to call into action the powers of the court. In matters of account, where they are not barred by the act of limitations, courts of equity refuse to interfere 154 JANUARY TERM, 1843. 168 McKnight v. Taylor. after a considerable lapse of time, from considerations of public policy, and from the difficulty of doing entire justice when the original transactions have become obscure by time, and the evidence may be lost. The rule upon this subject must be considered as settled by the decision of this court in the case of Piatt v. Vattier, 9 Pet., 416; and that nothing can call a court of chancery into activity but conscience, good faith, and reasonable diligence; and where these are wanting, the court is passive and does nothing; and therefore, from the beginning of equity jurisdiction, there was always a limitation of suit in that court. It certainly cannot be said that there has been anything like reasonable diligence by any of the creditors in the case before us; and at this distance of time, when many of the parties originally concerned are dead, we should hardly do justice between them if we required the appellant to pay the whole amount stated in the schedule, unless he can establish the credits he claims by legal proofs. In fact, but one of the Creditors appears to have called for this proceeding, or to have sanctioned the institution of this suit; and the party who now holds that claim and seeks to enforce it, has obviously no equitable ground upon which he can ask for a relaxation of the rule in his favor. When the assignment was made to him he knew it was a disputed claim in actual *litigation at the time, which had been allowed to sleep for almost L twenty years, and for which it does not even appear that he paid any valuable consideration. And as to all of the creditors named in the schedule, they had originally an easy and simple remedy in their own hands, to be used or not at their own pleasure; and if they have suffered it to be lost by the lapse of time their own negligence can give them no right to call into action the powers of the Court of Chancery. The decree of the Circuit Court must therefore be reversed, and the bill dismissed with costs. ORDER. 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 Alexandria, and was argued by counsel. On consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby reversed, with costs; and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to dismiss the bill of the complainant with costs. 155 169 SUPREME COURT. Bell et al. v. Bruen. James C. Bell and Robert Grant, Plaintiffs in error, v. Matthlas Bruen. A letter of guarantee, written in the United States, and addressed to a house in England, must he construed according to the laws of that country.¹ Extrinsic evidence may be used to ascertain the true import of such an agreement, and its construction is matter of law for the court. In bonds, with conditions for the performance of duties, preceded by recitals, the undertaking, although general in its terms, is limited by the recital.² Commercial letters are not to be construed upon the same principles as bonds, but ought to receive a fair and reasonable interpretation according to the true import of the terms ; to what is fairly to be presumed to have been the understanding of the parties ; and the presumption is to be ascertained from the facts and circumstances accompanying the entire transaction⁸. The court will not express an opinion upon a matter of defence which was not brought to the consideration of the court below.⁴ *1701 *This case was brought up by writ of error, from the -I Circuit Court for the district of New York. The plaintiffs in this court, who were also plaintiffs below, were merchants and partners, trading under the name and firm of Bell & Grant, and resided in London. The action was brought to recover the value of five several sets of bills of exchange, amounting respectively to ¿£385, ¿£318 12s. 6d., ¿£1,500, ¿£140, and ¿£3,500, which, it was alleged, were guaranteed by the defendant. At the trial of the case in the Circuit Court, the defendant pleaded non-assumpsit and the statute of limitations; but the questions arising under the latter plea were not argued, as the opinion of the court, upon the guarantee, was against the plaintiffs. The facts of the case, according to the evidence, were as follows: Prior to the year 1830, George W. and H. Bruen, two sons of the defendant, had been carrying on commercial business ¹ Followed. Pritchard v. Norton, 254; Downey v. Hicks, 14 Id., 240 ; 16 Otto, 141. Cited. N. J. Steam Lathrop v. Judson, 19 Id., 66 ; Cucul-Nav. Co. v. Merchants Bank, 6 How., lu v. Emmerling, 22 Id., 83 ; Laber v. 421; Fitch v. Remer, 1 Flipp., 17. Cooper, 7 Wall., 565 ; Express Co. v. See Bulkley v. Honold, 19 How., 392 ; Kountze, 8 Id., 342 ; Coddington n. Ottawa v. Nat. Bank, 15 Otto, 346. Richardson, 10 Id., 516. Where the ² Followed. Sanger n. Baumburg- trial has proceeded on the merits and er, 51 Wis., 593. the error has not been pointed out be- ³ Approved. Lawrence v. McCal- low, judgment will net be reversed mont, 2 How., 450. S. P. Decatur even though the plaintiff wholly mis-Bank v. St. Louis Bank, 21 Wall., conceived the form of action and a 298. good defence existed to the case as ⁴ Applied. Newcomb v. Wood, 7 made. Marine Bank v. Falton Bank, Otto, 583. S. P. Garrard v. Reynolds, 2 Wall., 252. 4 How., 123 ; Bond v. Brown, 12 Id., 156 JANUARY TERM, 1843. 170 Bell et al. v. Bruen. under the partnership name of G. W. & H. Bruen, in the city of New York. In that year they failed, and William H. Thorn succeeded to the business of the house; George W. Bruen, one of the former partners, being interested in the business of the said Thorn. In the year 1831, George W. Bruen also transacted business at New York, in the name of his father, the defendant. There was no regular, established house in the name of the defendant, although subsequently adventures were conducted in his name. This agency was carried on under.two very extensive powers of attorney, which were duly recorded, in New York, throughout the years 1831-2-3—4, and part of 1835, when the defendant was preparing to go to Europe, and the powers of attorney were revoked. Early in the year 1831, Thorn had credits furnished to him by Bell & Grant, upon houses in Trieste, Messina, Leghorn, and Marseilles. On the 23d February, 1831, he wrote to Bell & Grant, and among other things said, “ My friends in Marseilles might secure many consignments for me, if I could put them in a situation to make the necessary advances, and I therefore hope you will oblige me by opening the credit I ask for, and, if you require it, Mr. M. Bruen will give you his guarantee. I enclose a letter for Messrs. Archias & r*^-| Co., which you will forward to *them, should you think ■-proper to open the credit; otherwise, I do not wish you to send it, as it relates entirely to this credit, and the manner in which the advances are to be made; it is understood, that no more than ¿£2,000 are to be drawn for at any one time, and that the credit is then to be considered at an end, until your advances are covered by remittances from me, when you will again renew it.” On the 22d of March, 1831, Bell & Grant acknowledged the receipt of the above, by a letter from which the following is an extract: “We have received, since the above, your letter of the 23d ult., with an enclosure for Messrs. Archias & Co., of Marseilles, which we forward to them to-day, with a confirmation of the credit you give them upon us to the amount of ¿£2,000, for the purpose of making advances on consignments, and which we will accordingly thank you to have guaranteed to us, as you propose, by Mr. Matthias Bruen.” On the 23d April, 1831, Mr. Matthias Bruen, the defendant, wrote the following letter to Bell & Grant: “ New York, %Sd April, 1831. “Dear Sir:—Our mutual friend, Mr. Wm. H. Thorn, has informed me, that he has a credit for ¿£2,000, given by you in 157 171 SUPREME COURT. Bell et al. v. Bruen. his favor with Messrs. Archias & Co., to give facilities to his business at Marseilles. In expressing my obligations to you for the continuation of your friendship to this gentleman, I take occasion to state, that you may consider this, as well as any and every other credit you may open in his favor, as being under my guarantee.” On the same day, the 23d of April, Thorn wrote to Bell & Grant a letter, from which the following is an extract: “ Enclosed you will find Mr. M. Bruen’s guarantee, and as you are now fully secured in any credit you may open for me, I hope you will consider on the propriety of allowing me to make insurance here on any goods that may be shipped for my account.” On the 14th June, 1831, Bell & Grant acknowledged the receipt of Bruen’s letter as follows: “Matthias Bruen, Esq., New York: We are in receipt of your favor of the 23d April, guaranteeing the credit opened on behalf of Mr. W. H. Thorn, with Messrs. Archias *1791 & Co., of Marseilles, for <£2,000, for the purpose of -• facilitating his business *with that place, and moreover, desiring us to consider, as under your guarantee, also, all credits existing, or that we may. hereafter open for said friend, of which we take due note. And we trust that Mr. Thorn, as well as your good self, will have every reason to be satisfied with the confidence which we feel a pleasure in assigning to both of you.” It was given in evidence that from 1831 to 1837, Thorn, by means of the credits opened for him at various places, received consignments from those places, upon which advances had been made, and sent remittances, from time to time, to Bell & Grant, in London. On the 3d of March, 1834, Thorn wrote to Bell & Grant as follows: “ I have informed Messrs. R. Anderson & Co. and Messrs. Archias & Co. that the times are such as to render consignments no longer desirable, which I hope will reach them in time to prevent any further draft on you.” On the 7th of March, 1834, Bell & Grant wrote to Thorn, “We beg your reference to the foregoing copy of our letter of yesterday, and have only at present to add thereto an extract of what we write to-day (while communicating with them on other business), to Messrs. Archias & Co., of Marseilles, recommending their refraining from pressing shipments to you on consignment, until the state of commercial matters in the United States shall make business more acceptable, than, under the recent circumstances, we may presume it would be to you. 158 JANUARY TERM, 1843. 172 Bell et al. v. Bruen. “We trust that the next accounts from your side will be less gloomy, and may enable us, as we shall most readily do in such case, to place business for you on its former footing.” On the 24th April, 1834, Thorn wrote to Bell & Grant: “ I have read what you have been pleased to write to Messrs. Archias & Co. on the subject of consignments under advances, which meets my warmest approbation, as you will have seen by my letter of March 3d.” On the 21st of October, 1834, Bell & Grant wrote to Thorn: “ Messrs. Archias & Co., of Marseilles, having inquired of us, under date 9th inst., whether you had opened a credit in their favor upon us, to make advances on shipments to your address, as you had mentioned to them as your intention of doing, and adding that they did so in consequence of the prospect ^9 they then *had of influencing a consignment to you; L we told them, by return of post, that, although we should be ready at any time to confirm any such arrangement, and were yet without your authority to that effect, they might consider themselves at liberty to value upon us for your account to the extent of <£2,000 sterling, on handing us the customary shipping documents (as we would have been sorry to see such business pass your door for want of the facilities in question), expressing a hope at the same time that they would only grant such advances on property, the sale of which, they felt assured by their latest advices, would be of ready sale in the New York market; all of which we trust will meet your entire approbation. We should have extended the credit in question to the former sum of £3,000, but that for the present we conceived you would be better pleased with the lesser amount; you have, however, only to let us know your wishes in this respect to insure our conformity thereto.” On the 31st October, 1834, Thorn wrote to Bell & Grant: “ I have to request that you will open the following credits for my account: To Messrs. R. Anderson & Co., Gibraltar, for the purpose of making advances, per my account, £4,000; to Messrs. Archias & Co. for the same purpose, £4,000; to Messrs. Francia, Brothers & Co., of Gibraltar, £2,500.” On the 3d of December, 1834, Bell & Grant wrote to Thorn: “We have now the pleasure of acknowledging the receipt of your much esteemed favor of the 31st October, in compliance with which we have immediately increased the credits already opened for your account with Messrs. Robert Anderson & Co., of Gibraltar, and Messrs. Archias & Co., of Marseilles, to the sum of £4,000 each, and opened fresh ones of £2,500, say two thousand five hundred pounds in favor of Messrs. Francia, 159 173 SUPREME COURT. Bell et al. v. Bruen. Brothers & Co., of Gibraltar, to enable them to grant advances on consignments to you from thence and from Malaga. “ And it is moreover understood, that so soon as the credits in favor of the three first-named houses have been used and remitted for by you, we are to re-open the same accordingly, which shall be attended to.” One of the bills upon which the suit was brought, was *1741 drawn under the above credit by R. Anderson & Co. J upon the plaintiffs, Mated on the 16th December, 1836, for <£318 12s. 6d., at ninety days after date, which bill was paid by the plaintiffs. On the 31st of March, 1836, Thorn wrote to Bell & Grant: “ I have sold a large parcel of San Lucas wine, consigned to me by Messrs. La Cave & Echicopar, per Lurin, which may lead to further shipments; and as they will require a credit opened to enable them to make advances, you will please authorize them to draw on you, on the usual conditions, to the extent of £2,500, say two thousand five hundred pounds.” Another of the bills upon which the suit was brought, was drawn under this credit by La Cave & Echicopar upon the plaintiffs, dated on the 22d November, 1836, for £385 sterling, which was paid by the plaintiffs at maturity. On the 15th of August, 1836, Thorn wrote to Bell & Grant: “ I intend to send a vessel to Smyrna for an assorted cargo, and will thank you to open a credit to Messrs. G. Amac, Zip-cey & Co., to that place, to the extent of £3,500.” Two other of the bills upon which the suit was brought, were drawn upon the credit thus opened, by Amac, Zipcey & Co. upon the plaintiffs, dated on the 7th of January, 1837, one for £1,590, and the other for £140, which were paid at maturity. In November, 1836, the defendant went to Europe, and did not return until the following August. During his absence he was in London, where he saw the plaintiffs several times. On the 16th of February, 1837, G. F. Darby, the agent of the plaintiffs residing in New York, drew bills of exchange upon them to the amount of £4,000 sterling, which bills he loaned to Thorn, upon collateral security and the guarantee of G. W. Bruen. On the 8th of March, 1837, Thorn wrote to Bell & Grant: . “ As this remittance will very nearly balance my old account, I have prevailed on Mr. Darby to open me a credit similar to the last, and on the same conditions, for £3,500, which shall be punctually provided for on the 8th May next, if not sooner.” 160 JANUARY TERM, 1843. 174 Bell et al. v. Bruen. On the same day, four of the bills upon which the suit was brought were drawn upon the credit thus opened, which amounted, in the whole, to <£3,500, and were accepted'arid paid when due by the plaintiffs. These bills were guaranteed by George W. Bruen, the same person who had guar-anteed the loaned bills for *£4,000, and who, at this time, was in good credit, and could have raised £4,000 on his notes. On the 10th of April, 1837, Thorn failed and was insolvent, and the means of his house exhausted. On the 26th of November, 1839, Grant, then in New York, wrote to the defendant, applying to him for the balance due to his London firm, and saying, “ Any further explanation you may require I am ready to give, but I must request your attention in the mean while to the above claim, which I make under your letter of guarantee to Bell & Grant, for any credits they might open in favor of Mr. Thorn, and of which letter I sent you a copy, at your request, last February twelve-month.” In the trial of the cause in the court below, the plaintiffs proved by the evidence of one Schenck, that he was for many years the cashier of Bell & Grant, and greatly in their confidence ; that he was well acquainted with their daily mercantile operations; that, as well from his perusal, at the time, of the letters which were received and written by them on the subject of their account and transactions with Thorn, as also from various conversations which he had with them, and the directions which he received with regard to the bills, he had no doubt whatever but that the credits given to the various houses who drew the bills, were given by Bell & Grant in full reliance on the letter of guarantee which had been written to them by the defendant. The evidence being closed in the court below, the counsel of the defendant prayed the court to instruct the jury, among other things, as matter of law, that the letter of guarantee, of April 23, 1831, was void, as not expressing a consideration; that the said letter of guarantee was confined to credits to be opened to the house of Archias & Co., or other houses with whom Thorn might deal at Marseilles, and therefore could not cover the advances upon the bills of exchange given in evidence. And thereupon the judges did declare their opinion and decide, as matter of law, that by the true construction of the said letter of guarantee, of April 23, 1831, the same only embraced credits which should be opened for account of William H. Thorn to the house of Archias & Co., of Mar-seilies, and that the evidence *of the other matters in that behalf proved, did not give the said letter of guarantee a Vol. i.—11 161 176 SUPREME COURT. Bell et al. v. Bruen. more enlarged application; and, therefore, that the jury ought to find a verdict for the defendant. To this instruction the plaintiffs’ counsel excepted. Lord and Sergeant, for the plaintiffs in error. Choate, for the appellees. Lord, for the plaintiffs, said that the consideration was sufficient, as the defendant’s son was a partner in the house whose prosperity was to be increased. 9 Cranch, 348; 6 Binn. (Pa.), 201; 15 Pet., 314. In the guarantee there is no limitation of time or amount, as to the credit with Archias & Co. Why limit it to others and not to them ? The defendant relied upon his supervision over the house, and his being able to revoke the credit whenever he might apprehend danger. Such guarantees are not the subject of technical criticism; they are not the work of lawyers, but merchants in the course of business, and are not to be judged by the strict rules of the common law. Being of a continuing character, they involve the highest expression of confidence. The doctrine of construction never arises until some ambiguity exists. Bruen, the son, had the entire confidence of his father, as the powers of attorney show. If the words, “ any and every, etc.” do not mean what we say, they mean nothing. “ Any ” means “ some ”—“ every ” takes in all, and what does “ other ” mean ? 3 Campb., 220. What was the construction that Bell & Grant placed upon it ? Their letter shows, and if defendant thought it was not the correct one, he ought so to have informed them. As to the legal construction, 12 East, 227, says, words must be taken as strongly against the party giving the guarantee as the case will admit. See also, 2 Meriv., 280; 6 Binn. (Pa.), 244; 12 Wheat., 517; 7 Pet., 113; 10 Id., 492; 16 Id., 528, 536; 12 East., 237; 2 Campb., 413; 1 Mete. (Mass.), 225; 12 East, 227; 6 Bing., 244; 6 Mees. & W. (Exchequer), 605; 3 Campb., 220 ; 2 Id., 39. *1771 The cour^ erre⁽l m determining the question, abso- -• lutely, as a *question of law, and declaring that the other circumstances did not allow of an extended view of the guarantee. If these circumstances were admitted, their effect was for the jury. Choate, for defendant, made the following points: 1. That the defendant’s letter of April 21, 1831, was a con-162 JANUARY TERM, 1843. 177 Bell et al. v. Bruen. tract, preceded by a recital, and that the engagement extends no further than the recital. . 2. The recital introduces in direct terms, or by reference, the entire arrangement made between plaintiffs and Thorn, by the letters of the 23d of February, 1831, and March 22,1831; and the words “ this credit,” in the defendant’s letter of 23d April, 1831, mean the first <£2,000; and the words “and any and every other credit,” mean the subsequent credits, to be opened under the same arrangement. 3. The court will adopt the construction which, under all the circumstances of the case, ascribes the most reasonable, probable, and natural conduct to the parties, and this requires the adoption of the defendant’s construction. 4. The plaintiffs never relied upon this guarantee for the credits, the subject of this suit. 5. They gave no such notice to the defendant, of the opening of the credits, which are the subject of this suit, as is required to charge the defendant. 6. They did not, within a reasonable time after the grant of the credits, and after the bills were paid, demand payment of the defendant, or give him notice that they looked to him. 7. The original arrangement made between the plaintiffs and Thorn, in March, 1831, was subsequently, in the spring of 1834, abandoned and deserted; and in the autumn following, a new and inconsistent one, enlarging the credits to be given, and diminishing the security, was made, rendering notice to the defendant necessary, but to which no notice could have given legal effect to charge the defendant for subsequent credits. 8. The apparent diversity of terms between the recital and the engagement in the defendant’s letter, raises a doubt upon the face of the guarantee as to its true extent; and upon that doubt, thus raised, the construction will be in favor of the surety. *Mr. Choate then discussed the two constructions to be placed upon the letter. There is no proof that L Bruen, the son, was a partner in the house. Record only says, “interested and conversant.” He might have had a contingent salary. If he was a partner, there is no proof that defendant knew it. In March, 1834, the arrangement was abandoned, and in the following October, the plaintiffs and Thorn made a new one. In October, 1836 and 1837, plaintiffs made another arrangement with Thorn, opening credits for $50,000. In April, 1837, Thom failed, and in June, 1837, Bell became embarrassed; and yet the defendant was not notified until 1839« 163 178 SUPREME COURT. Bell et al. v. Bruen. As to the letter of 23d April, its language must be limited by the recital and the circumstances. Shep. Touch., 86. Courts habitually so limit instruments. 1 Domat, 248; 3 Ch. Cases, 101; Shep. Touch., 76; Bac. Abr. title “Fait;” 9 Mass., 235; Theobald on Surety, 66; 1 Law Lib., 39. Condition, when larger than the recital, is limited by it. Fell Guar., 116; 1 Wms. Saund., 415, note; Aleyn, 10; 1 Str., 227; 2 Saund., 412, a leading case; 6 East, 507; 2 Smith, 655; 2 New Rep., 175, referred to in Fell, 125; 2 Barn. & Aid., 431; 2 Mau. & Sei., 363; 4 Taunt., 593. Reason of the rule is, that it is supposed to reach the true meaning of the parties, as it is more likely that men will use language improperly than act foolishly. Hob., 304; Shep. Touch., 86. So in the civil law; the court looks to probability. 1 Domat, 248. So in 16 Pet., 534, reference is had to the circumstances of the case. 12 Wheat., 518; 2 Pick. (Mass.), 235; 17 Wend. (N. Y.), 425; 1 Met. (Mass.), 25; 8 Taunt., 208. Reason is stronger in the case of a surety. He is a favorite of courts, and his contract is stricti juris. Where the terms are clear, they are not to be extended; where they are doubtful, the court will adopt the narrower sense, provided it be reasonable and probable. Poth, on Oblig. p. 2, c. 6, s. 4; Code Napoleon, tit. 14, c. 1, arts. 2011, 2015, p. 401; 7 Cranch, 90, never repealed; 7 Pet., 122, does not conflict with it, but adopts it. 1 Mas., 336, that the language should be strong to make a continuing guarantee; in case of doubt, construction in favor of surety; 16 Pet., 537; Ludlow v. Simonds, 2 Cai. (N. Y.) Cas., *1; 10 Johns. (N. Y.), 311, 325; 8 Wend. J (N. Y.), 516; 17 Id., 422; 2 Pick. (Mass.), 224. The law in England is so now. In the cases cited on the other side, there is a plain meaning against the surety. 1 Stark., 192; 8 Taunt. 224; 3 Barn. & Aid., 594, 595; Nicholson and Paget, 52; 6 Mees. & W. (Exchequer Rep.,) 613; 1 T. R., 287; 2 T. R., 370 ; 3 East., 484; 8 Moore, 582, 588; 1 Perry & Dav., 249; 10 Ad. & E., 30. This letter is a contract preceded by a recital of the circumstances. A recital is a prefatory statement to make the meaning plain. The purpose of the credit is stated, and the writer must have referred to the renewed credit. 2 Bos. and Pul., 238. There is only one case carrying the engagment beyond the recital, and that is 2 Campb., 39. But that was different from the present case, the engagement there being for any thing “ due on any other account,” and inconsistent with the recital; but here it is not. No one asked defendant for an unlimited guarantee. Conduct of plaintiffs not likely to 164 JANUARY TERM, 1843. 179 Bell et al. v. Bruen. excite suspicion, because they merely echoed defendant’s own letter. The plaintiffs ought to have notified defendant when they opened new credits. 5 Pet., 624; 12 Id., 213; 4 Greenl. (Me.), 525; 22 Pick. (Mass.), 223; 17 Johns. (N. Y.), 140. Notice of default, at all events, is indispensable. 14 Pick. (Mass.), 353; 18 Id., 536; 8 Id., 423; 22 Id., 223; 3 Wkeat., 144; 9 Serg. & R. (Pa.), 202. The court below was right in deciding the question as a point of law. 1 Pet., 182; 5 Cranch, 190; 1 Paine, 545; 20 Pick. (Mass.), 156. Sergeant, for plaintiffs, in reply, said that he had not had •time, since yesterday, to look at all the authorities cited on both sides, there being about one hundred and fifty. This court have settled the law, in 13 Pet., 89, as to the exclusion or admission of parol evidence of circumstances. In Mauran n. Bullus, 16 Pet., 528, they decided that when there is a valuable consideration, and endorser, though often a mere surety, is governed by the law merchant, and not the commonlaw rules as to sureties. 1. The written guarantee by itself. 2. As explained by evidence. 1. By itself. Every letter is written to some one; ™ but does *not bind until accepted by the other party. L Then the two letters constitute one contract. If the acceptance varies from the offer, the offering party ought to say so. It is a law of correspondence to speak the truth plainly; and hence, if there be ambiguity, the construction must be against the writer. It may be an intentional trap. The case in 16 Peters turned upon this. Bell & Grant answered the letter, saying what they thought of it; but the charge of the court • below was given upon only one of these two letters. In 2 Campb., 39, the recital in a bond did not limit the engagement, because it was a commercial transaction. In 1831, Bruen came forward voluntarily. Bell did not ask him nor inquire his motives. A guarantee always implies that the : thing would not be done without it. If Bruen intended what we say, he would have used the very words he did. There is no ambiguity, and why construe it in ? All the cases except that in Campbell were bonds with collateral conditions. Lord Ellenborough treats them all as bonds given in appointments to office. These are common law instruments, and the recital is put in on purpose to explain. But not so with commercial contracts. There is no recital in a letter or conversation. In the bond cases there is a contradiction, but there is none here. 165 180 SUPREME COURT. Bell et al. v. Bruen. The jury could have inferred Bruen the son’s partnership in Thorn’s house. He was interested in the “ business.” What business? Bruen, from bankruptcy, had become worth <£4000 in seven years. The defendant therefore wished to sustain his son. The question of notice ought to have gone to the jury. Douglas v. Reynolds, 7 Pet., 113, is decisive that notice is a question of fact. Thorn failed on 10th April, 1837; this dispenses with notice of the default. 12 Pet., 213. Mr. Justice CATRON delivered the opinion of the court. The original action was founded upon a guarantee given by Matthias Bruen to Bell & Grant, in favor of Wm. H. Thorn, by the following letter: New York, 23c? April, 1831. Messrs. Bell & Grant, London.—Dear Sirs:—Our mutual friend, Mr. Wm. H. Thorn, has informed me that he *1811 has a credit for £2000, given by you in his favor with J Messrs. Archias *& Co., to give .facilities to his business at Marseilles. In expressing my obligations to you for the continuation of your friendship to this gentlemen, I take occasion to state, that you may consider this, as well as any and every other credit you may open in his favor, as being under my guarantee. I am, dear sirs, your friend and servant, M. Bruen. To this letter the following answer was given by Bell & Grant: London, 14iA June, 1831. Matthias Bruen, Esq., New York.—We are in the receipt of your favor of the 23d April, guarantying the credit opened on behalf of Mr. Wm. H. Thorn with Messrs. Archias & Co., of Marseilles, for £2000, for the purpose of facilitating his business with that place; and, moreover, desiring us to consider as under your guarantee, also, all credits existing, or that we may hereafter open for said friend, of which we take due note. And we trust, that Mr. Thorn, as well as your good self, will have every reason to be satisfied with the confidence which we feel a pleasure in assigning to both of you.” The declaration contains four counts: 1. That the plaintiffs, on the 31st of March, 1836, were requested by Thorn to open a credit in his favor, authorizing the firm of La Cave & Echicopar, of Cadiz, to draw on the plaintiffs to the extent of £2500. That on the 22d November, 1836, La C. & E. drew for £385: which was advanced on 166 JANUARY TERM, 1843. 1«1 Bell et al. v. Brnen. the 12th February, 1837, by the plaintiffs, according to Thorn’s request. 2. That on the 10th of October,'1834, at the request of Thorn, a credit was opened in his favor, authorizing R. Anderson & Co., of Gibraltar, to draw for <£4000. On the 16th December, 1834, Anderson & Co. drew for £318 12s. Od.: which plaintiffs paid, 19th March, 1837. 3. That on the 15th of August, 1836, the plaintiffs opened a credit in favor of Thorn, authorizing Amac, Zipcey & Co., of Smyrna, to draw for £3500. Of this sum, the house at Smyrna drew £1640: which plaintiffs paid, 8th April, 1837. 4. That on the 8th March, 1837, plaintiffs opened a -credit to Thorn, himself, for £3500, for which amount he drew bills; and which were paid, 17th June, 1837. Much other correspondence and evidence was given to the *jury, that need not at present be referred to; L but which appears in the statement of the case made out by the reporter, and presented to us. The evidence being closed, the defendant prayed the Circuit Court to instruct the jury, as matter of law, that the letter of guarantee, of April 23d, 1831, was confined to credits to be opened to the house of Archias & Co., or other houses with whom Thorn might deal at Marseilles; and therefore the plaintiffs could not recover from the defendant, the advances made upon the bills of exchange given in evidence: being for the sums paid, as stated in the four counts of the declaration. Thereupon the court did decide, as matter of law, “ that by the true construction of the said letter of guarantee, of April 23d, 1831, the same only embraced credits which should be opened for account of Wm. H. Thorn to the house of Archias & Co., of Marseilles; and that the evidence of the other matters in this behalf proved, did not give the said letter of guarantee a more enlarged application. And therefore, that the jury ought to find a verdict for the defendant.” The jury found accordingly: and it is this instruction of the court alone, that we are called upon to examine, and revise. Does the letter of guarantee extend to, and cover the debts of Wm. H. Thorn sued for? is the question. It was an engagement to be executed in England, and must be construed and have effect, according to the laws of that country. Bank of the United States v. Daniel, 12 Pet., 54, 55. But it is necessary to remark that the law governing the agreement is the same in this country and in England: had it been made between merchants of different states of this Union, and intended to be executed at home, the same rules of construc- 167 182 SUPREME COURT. Bell et al. v. Bruen. tion would be adopted; and the same adjudications would apply. It is insisted for the plaintiffs, that the Circuit Court erred in determining the question absolutely as a question of law, upon the construction of the letter: that it also erred in declaring the other circumstances did not allow of an applica-cation of the guarantee to the transactions in question: such other circumstances, being admitted, their effect on the extent and application of the guarantee was for the jury; and by deciding on their effect, as matter of law, they were withdrawn £0-. from the jury. -I *The letter of Bruen was an agreement to pay the debt of another on his making default: by the statute of frauds (29 Chs. 2), such agreement must be in writing, and signed by the party to be charged: it cannot be added to, by verbal evidence; nor by written either, if not signed by the guarantor, unless the written evidence is, by a reference in the letter, adopted as part of it. ' But as the statute does not prescribe the form of a binding agreement, it is sufficient that the natural parts of it appear ' either expressed, or clearly to be implied: and correspondence and other evidence may be used to ascertain the true import and application of the agreement; by the aid of which extrinsic evidence, the proper construction may be made. Such is the doctrine of this court, as will be seen by reference to the cases of Drummond v. Prestman, 12 Wheat. 515; Douglass v. Reynolds, 7 Pet., 113; Lee v. Dick, 10 Id., 482. In the present instance, the question having arisen, and construction been called for, the matters referred to in the letter of the defendant, were considered (as circumstances attending the transaction), to aid the court in arriving at a proper understanding of the engagement: so soon as it was understood, its construction belonged to the court, and was “matter of law,” within the general rule applicable to all written instruments. It rested with the court to decide, whether the guarantee extended to, and covered the credits set forth in the declaration; and was the common case of asking the court to instruct the jury, that the plaintiff had not proved enough to entitle him to recover, admitting all his evidence to be true. In England, the same end is attained, by moving for a nonsuit. For the defendant it is contended: That the letter of April 21, 1831, is a contract preceded by a recital, and that the engagement extends no further than the recital. The recital introduces in direct terms, or by reference, the entire arrangement made between plaintiffs and Thorn, by the letters of the 23d of February, 1831, and March 22, 1831; 168 JANUARY TERM, 1843. 183 Bell et al. v. Bruen. and the words “ this credit,” in the defendant’s letter of 23d April, 1831, mean the first ¿£2,000; and the words “and any and every other credit,” mean the subsequent credits, to be opened under the same arrangement. The general rule is well settled in controversies aris- । ing on the Construction of bonds, with conditions for L the performance of duties, preceded by recitals; that where the undertaking is general, it shall be restrained, and its obligatory force limited within the recitals. The leading case is Arlington v. Merricke, 2 Saund., 403. It has been followed by many others: Liverpool Waterwork Co. v. Harpley (6 East, 507); Wardens, ^c., v. Bostock (2 Bos. & P., 175); Leadley v. Evans, (2 Bing., 32); Pepin v. Cooper (2 Barn. & Aid., 431), are some of the principal cases affirming the rule. Where a mercantile guarantee is preceded by a recital, definite in its terms, and to which the general words obviously refer, the same rule applies, of limiting the liability within the terms of the recital, in restraint of the general words. We find the courts constantly referring to the cases arising on bonds with conditions, for the rule of construction, and applying it to commercial guarantees; the most approved text writers on this subject do the same: does the engagement before us fall within the rule ? It recites: “ Our mutual friend, William H. Thorn, has informed me that he has a credit for two thousand pounds, given by you in his favor with Messrs. Archias & Co., to give facilities to his business at Marseilles.” The agreement is: “I take occasion to state, that you may consider this, as well as any and every other credit you may open in his favor, as being under my guarantee.” We are of opinion that the engagement should be construed as if it read—“You may consider this, credit with Archias & Co., as being under my guarantee: as well as, any and every other credit, you may open in favor of William H. Thorn with any and every other person, as also being under my guarantee.” And that therefore the first branch of the undertaking has reference to the recital; and that the latter part is independent of it. To hold otherwise, would reject the general words— “ as well as any and every other credit ”—as unmeaning and useless: the agreement having the same effect, by the construction claimed for the defendant, if these words were struck out, as if they are left in it. The general words, it is insisted, related to the character of the credit opened with Archias & Co., because it was an open and continuing credit, for ¿£2,000. That this appears r^ioc by the letters *of Thorn to Bell & Grant, and to 169 185 SUPREME COURT. Bell et al. v. Bruen. Archias & Co.; which are sufficiently referred to in the recital of the letter to make them part thereof, and to extend it to the continuing credit with Archias & Co. That the two letters of Thorn were sufficiently referred to, and could be read to establish the nature of the credit; and that it was open, we have no doubt; but their adoption was just as certain without the general words, as with them. The special reference to the recital, adopting it as explained by the letters, leaves the general words still without meaning unless the guarantee extends beyond the credit opened with Archias & Co. To make a proper application of the general words, it becomes necessary to lay down a definite rule of construction applicable to them; as the authorities are in conflict, and to say the least, in considerable confusion, on the subject.. The arguments are in direct conflict. For the plaintiffs in error (Bell & Grant), it is contended: “That the guarantee by letters is to be taken, in case of doubt, or ambiguity, on its face or otherwise, in the broadest sense which its language allows, and in which it has been acted on by the parties.” Drummonds. Priestman (12 Wheat.); Douglass v. Reynolds (J Pet., 113) ; Dick v. Lee (10 Pet., 482); Mauran v. Bullus (16 Pet., 528) ; Mason v. Pritchard (12 East); Merle v. Wells (2 Campb., 413); Bent v. Hartshorne (1 Met., Mass.) ; Hargreave v. Smee (6 Bing.; 10 Eng. Com. Law, 69) ; Mayer v. Isaac (6 Mees. & W.); and Bastow v. Bennet (3 Campb.), are relied on to support the construction claimed as the true one. On part of the defendant (Bruen) it is insisted, “ That the apparent diversity of terms, between the recital and the engagement in the defendant’s letter, raises a doubt upon the face of the guarantee as to its true extent; and upon the doubt, thus raised, the construction will be in favor of the surety. The following authorities are relied on to sustain the construction here claimed; Pothier on Obligations, part 2, sec. 34; Code Napoleon, art. 2011, 2015; Russell v. Clarke, 7 Cranch, 69; 1 Mason, 336; 2 Cai. (N. Y.) Cas., 29, 49; 10 Johns. (N. Y.), 180, 325; 8 Wend. (N. Y.), 516; 7 Id., 422; 2 Pick. (Mass.), 234; 16 Pet., 537; 1 Stark., 192; 8 Taunt., 224; 3 Barn. & A., 594, 595; 1 Crompt. & M., 52, ¹⁸b-> 54; 3 Wils., 530; 1 T. R., 287; 2 So., 370; *3 East, 484; 4 Taunt., 673; 8 Moore, 588; 1 Perry & D., 249; 10 Ad. & EL, 30. The adjudged cases referred to, giving a construction to bonds with conditions, and contracts made directly between 170 JANUARY TERM, 1843. 186 Bell et al. v. Bruen. debtor and creditor, afford little aid in arriving at the true understanding of a commercial guarantee. Bonds, &c., are entered into with caution, and often after taking legal advice; they contain the entire contract, beyond which the courts rarely look for circumstances to aid in their construction. And if there be sureties bound by them, and the meaning is doubtful, the construction is restricted, and made most favorable to the sureties. Such is the result of the authorities cited for the defendant. On the other hand: letters of guarantee are (usually) written by merchants; rarely with caution, and scarcely ever with precision; they refer in most cases, as in the present, to various circumstances, and extensive commercial dealings, in the briefest, and most casual manner, without any regard to form; leaving much to inference, and their meaning open to ascertainment from extrinsic circumstances, and facts accompanying the transaction: without referring to which, they could rarely be properly understood by merchants, or by courts of justice. The attempt, therefore, to bring them to a standard of construction, founded on principles neither known or regarded by the writers, could not do otherwise than produce confusion. Such has been the consequence of the attempt to subject this description of commercial engagement to the same rules of interpretation applicable to bonds and similar precise contracts. Of the fallacy of which attempt, the investigation of this cause has furnished a striking and instructive instance. These are considerations applicable to both of the arguments. The construction contended for as the true one on part of the plaintiffs, is, that the letter of the defendant must be taken in the broadest sense which its language allows; thereby, to widen its application. To assert this as a general principle, would so often and so surely violate the intention of the guarantor, that it is rejected. We think the court should adopt the construction which, under all the circumstances of the case, ascribes the most reasonable, probable, and natural conduct to the parties. In the language of this court, #-¡017-1 in Douglass v. Reynolds, 7 Pet. 122, *“ Every instru- J ment of this sort ought to receive a fair and reasonable interpretation according to the true import of its terms. It being an engagement for the debt of another, there is certainly no reason for giving it an expanded signification, or liberal construction beyond the fair import of the terms.” Or, it is, “to be construed according to what is fairly to be presumed to nave been the understanding of the parties, without any strict technical nicety; ” as declared in Dick v. Lee, 10 Pet., 493. 171 187 SUPREME COURT. Bell et al. v. Bruen. The presumption is of course to be ascertained from the facts and circumstances accompanying the entire transaction. We hold these to be the proper rules of interpretation, applicable to the letter before us. The general words not being restricted by the recital, they fairly import that Matthias Bruen was bound to Bell & Grant for the credits they opened in favor of William H. Thorn with Archias & Co.: and for the credits also, they opened in favor of Thorn, with any and every other person; covering those set forth in the three first counts in the declaration: and we think that the Circuit Court erred, by instructing the jury to the contrary. Whether the guarantee covered the credit extended to Thorn himself, directly, it is not thought necessary to inquire, as no argument was founded on such an assumption; Thorn, who was introduced as a witness in the Circuit Court by the plaintiffs, on his cross-examination declared, that the <£3,500, mentioned in the last count in the declaration, “ had no relation whatever to the guarantee of the defendant: ” it being under the guarantee of a different person. It was insisted also: That when Thorn failed, and the dealings between him and the plaintiffs ceased, they were bound to notify the guarantor of the existence of the debts due them by Thorn, and for which Bruen was held liable, in a reasonable time after the dealings ceased: that Thorn failed April 10th, 1837, and the notice was not given until December 31st, 1838 the debts sued for in the three first counts of the declaration being then due: therefore the notice was too late, and the defendant discharged. The record shows that this ground of defence was not brought to the consideration of the Circuit Court: we do not therefore feel ourselves at liberty to express any opinion upon #1 the question. J *Again it is insisted: The original arrangement made between the plaintiffs and Thorn, in March, 1831, was subsequently, in the spring of 1834, abandoned and deserted; and in the autumn following, a new and inconsistent one, enlarging the credits to be given, and diminishing the security, was made, rendering notice to the defendant necessary, but to which no notice could have given legal effect to charge the defendant for subsequent credits. To this, and all other questions raised here, on which the ccurt below was not called to express any opinion, we can only give the same answer, given to the next preceding supposed ground of defence. JANUARY TERM, 1843. 188 Cartwright v. Howe et al. It is ordered, that the judgment of the Circuit Court be reversed, and the cause remanded for another trial thereof. order. 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 was argued by counsel-On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby reversed, with costs; and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to award, a venire facias de novo. Elizabeth R. Cartwright, plaintiff in error, v. Alexander T. Howe, George F. Richards, and William Richards, defendants. 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 it having been stated by Mr. Bradley, of counsel for the defendant in error, that the matters in controversy had been agreed and settled between the parties, to which Mr. R. J. Brent, of counsel for the plaintiff in error, assented; it is thereupon now here ordered and adjudged by this court that this cause be and the same is hereby dismissed, with costs. 173 *189 SUPREME COURT. Bowman et al. r. Wathen et al. *Isaac S. Bowman and George W. S. Bowman, ------------------------ Brinker and Mary, his wife, formerly Mary Bowman, and Rebecca Bowman, by said Isaac S. and George W. S. Bowman, their next friend, the said Mary and Rebecca being infants under twenty-one YEARS OF AGE, AND ALBERT T. BURNLEY, APEL-lants, v. Athanasius Wathen, and the Mayor and Common Council of the City of Jeffersonville. The doctrine laid down by Lord Camden, in the case of Smith v. Clay, 3 Brown’s Ch. Rep. in note, examined and confirmed, viz., “ That a court of equity, which never is active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive and does nothing; laches and neglect are always discountenanced; and therefore, from the beginning of this jurisdiction, there was always a limitation of suit in this court.” ¹ Also the doctrine laid down by Lord Redesdale, in Jlovenden v. Lord Annes-ley, 2 Sch. & L., 636, “that every new right of action, in equity, that accrues to a party, whatever it may be, must be acted upon at the utmost within twenty years.” ² And though the claimant may have been embarrasses by the frauds of others, or distressed, it is not sufficient to take the case out of the rule.³ The doctrine has also been ruled by this court, and should now be regarded as the settled law. • ... Ih this case, the complainants have so long slept upon their rights that this court must remain passive, and can do nothing; and this is equally true, . whether they knew of an adverse possession, or through negligence and a failure to look after their interests, permitted the title of another to grow into full maturity.⁴ This was an appeal from the Circuit Court of the United States for the district of Indiana, sitting as a court of equity. ¹ Applied. Maxwell v. Kennedy, successfully concealed by the trustee 8 How., 222. Followed. Wagner from the knowledge of the cestui que v. Baird, 7 How., 234. See also Ken- trust, followed. Badger n. Badger, 2 nedy v. Georgia State Bank, 8 Id., Wall., 87, 92. 586; De Lane v. Moore, 14 Id., 253. ³ A fraudulent sale took place Jan. ² The dicta of Lord Erskine, that 1, 1836, but the fraud was not discov-“no length of time can prevent the ered until January, 1840. A bill for unkennelling of a fraud,” and of Lord relief filed July 23d, 1841, was held Northington, in Alden v. Gregory, 2 not barred by lapse of time. Veazie Eden., 285: “The next question is, v. Williams, 8 How., 134, 158. But in effect, whether delay will purge a a court of equity applies the rule or , fraud? Never—while I sit here! Every laches according to its own ideas ot delay adds to its injustice and multi- right and justice. Every case is gov-plies its oppression,” controlled and erned chiefly by its own circumstances, limited; and the rule laid down by Whether the time the negligence has Story, J. in Prevost v. Gratz, 6 subsisted is sufficient to make it eiiect-Wheat., 481, that where an attempt is ual is a question to be resolved by the made to establish a stale trust on the sound discretion of the court. ground of fraud or concealment: v. County of Buena Vista,5 Otto, iw. (1) The trust must be clearly estab- ⁴ See notes to McKmght v. lay tor, lished, and (2) The facts must be ante, *161. shown to have been fraudulently and 174 JANUARY TERM, 1 843. 189 Bowman et al. v. Wathen et al. The facts are fully stated in the opinion of the court, and also the authorities referred to in the argument. It is unnecessary to repeat either. Crittenden and Test, for the appellants. Berrien and Legaré, attorney-general, for the appellees. Mr. Justice DANIEL delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of the United States for the seventh circuit and district of Indiana. The complainants in the Circuit Court, the appellants r^-inn here, filed their *bill in the year 1840. It is alleged *-and shown, that with the exception of Albert T. Burnley, who is a citizen of Kentucky, the complainants are citizens of Virginia, and heirs and devisees of Isaac Bowman, deceased, who was an officer in the Virginia regiment, known as the Illinois regiment. That in the division and allotment of the lands appropriated by the state of Virginia for compensating the officers and soldiers of this regiment, a tract of land of five hundred acres on the Ohio river, within the county of Clarke, in the then territory and now state of Indiana, was, in 1786, allotted and conveyed to said Isaac Bowman, for his services in the regiment above mentioned. That Bowman, being seised in fee of this land, afterwards, in March, 1802, by a power of attorney under his hand and seal, constituted one John Gwathney, his attorney in fact, with full authority to lay off a town on the same, beginning at the lower part thereof on the river, and to contain one hundred and fifty acres of land. That by this instrument Gwathney was authorized to lay off the town in any manner he might prefer; to convey the title to the land forming the site thereof to proper trustees; to sell the lots on whatever credit he might think proper, and to do every other act which might be necessary for carrying into effect the powers with which the said agent was vested. That Gwathney proceeded to lay off the one hundred and fifty acres of land, to divide them into lots and streets for a town to be called Jeffersonville; reserving two acres for a public square, and certain lots for the benefit of his principal; designating also a portion of land on the margin of the river as a common. That he likewise caused a map or plan of the town to be made and recorded. This plan is made an exhibit in the cause. That, having laid off the town, Gwathney, on the 23d of June, 1802, by indenture, and for the consideration of five shillings therein expressed, conveyed to Marston G. Clarke and others, as trustees of Jeffersonville, the one hundred and fifty acres of land in conformity with 175 190 SUPREME COURT. Bowman et al. v. Wathen et al. the plan adopted; reserving to himself, as attorney for Bowman, the exclusive right of applying the money to arise from sales of the lots; the right also to have and use for and on behalf of Bowman, “whatever right he may now hold as proprietor, to the establishment of one or more ferries.” It does not appear that Bowman was ever on the land after its allot-*.