REPORTS OF OASES ARGUED AND ADJUDGED IN THE ÜPREME COURT OF THE UNITED STATES, IN AUGUST AND DECEMBER TERMS 1801, AND FEBRUARY TERM 1803. By WILLIAM CRANCH, ASSISTANT JUDGE OF THE CIRCUIT COURT OF THE DISTRICT OF COLUMBIA. Potius ignoratio juris litigiosa est, quam scientia. CIC. DE LEGIBUS, DIAL. 1. VOL. I. THIRD EDITION. EDITED, WITH NOTES AND REFERENCES TO LATER DECISIONS, BY FREDERICK C. BRIGHTLY, AUTHOR OF THE “FEDERAL DIGEST,” ETC. NEW YORK: BANKS & BROTHERS, LAW PUBLISHERS, No. 144 NASSAU STREET. ALBANY: 4 75 BROADWAY. 1883. Entered according to Act of Congress, in the year 1882, By BANKS & BROTHERS, In the office of the Librarian of Congress, at Washington. PREFACE TO THE FIRST EDITION. Much of that uncertainty of the law, which is so frequently, and perhaps so justly, the subject of complaint in this country, may be attributed to the want of American reports. Many of the causes, which are the subject of litigation in our courts, arise upon circumstances peculiar to our situation and laws, and little information can be derived from English authorities, to lead to a correct decision. Uniformity, in such cases, cannot be expected, where the judicial authority is shared among such a vast number of independent tribunals, unless the decisions of the various courts are made known to each other. Even in the same court, analogy of judgment cannot be maintained, if its adjudications are suffered to be forgotten. It is, therefore, much to be regretted, that so few of the gentlemen of the bar have been willing to undertake the task of reporting. In a government which is emphatically styled a government of laws, the least possible range ought to be left for the discretion of the judge. Whatever tends to render the laws certain, equally tends to limit that discretion ; and perhaps, nothing conduces more to that object than the publication of reports. Every case decided is a check upon the judge : he cannot decide a similar case differently, without strong reasons, which, for his own justification, he will wish to make public. The avenues to corruption are thus obstructed, and the sources of litigation closed. One of the effects expected from the establishment of a national judiciary, was the uniformity of judicial decision ; an attempt, therefore, to report the cases decided by the Supreme Court of the United States, cannot need an apology; and perhaps, none can be given for the inadequate manner in which that attempt has been executed. It has been the endeavor of the reporter to give a faithful summary of the arguments of counsel. To do them complete justice, he acknowledges himself incompetent. In no instance, perhaps, has he given the words in which the ideas were conveyed, iii PREFACE. as his attention was almost entirely occupied in collecting the point of the argument. He may have omitted ideas deemed important, and added others supposed to be impertinent; but in no case has he intentionally diminished the weight of the argument. It may possibly be alleged, that he has introduced into the reports of some of the cases more of the record than was necessary. If he has erred in this, he has been led into the error, by observing that many of the cases in the books are rendered useless, by the want of a sufficient statement of the case, as it appeared upon the record ; and he imagined it would be a less fault to insert too much, than to omit anything material. He has been relieved from much anxiety, as well as responsibility, by the practice which the court has adopted of reducing their opinion to writing, in all cases of difficulty or importance ; and he tenders his tribute of acknowledgment for the readiness with which he was permitted to take copies of those opinions. He is indebted to Mr. Caldwell, for his notes of the cases which were decided prior to February term 1803, without the assistance of which, he would have been unable to report them, as his own notes of those cases, not having been taken with that view, were very imperfect. He also feels his obligation to those gentlemen of the bar, whose politeness has prompted a ready communication of their notes, which have enabled him more correctly to report their arguments. Should an apology be deemed necessary for the liberty he has taken in his notes to some' of the cases reported, that apology exists in a wish candidly to investigate the truth. In doing this in a respectful manner, he does not feel conscious of giving cause of offence to liberal and candid minds. If the fate of the present volume should not prove him totally inadequate to the task he has undertaken, it is his intention to report the cases of succeeding terms. JUDGES OF THE SUPREME COURT OF THE UNITED STATES, FROM THE TIME OF ITS FIRST ESTABLISHMENT, WITH THE DATES OF THEIR COMMISSIONS. John Jay, Chief Justice, 26 Sept. 1789. William Cushing, Associate Justice, James Wilson, “ John Blair, “ James Iredell, Thomas Johnson, • “ William Paterson, “ John Rutledge, Chief Justice, 27 Sept. 29 Sept. 30 Sept. 10 Feb. 7 Nov. 4 March • 1 July 1789. 1789. 1789. 1790. 1791. 1793. 1795. Samuel Chase, Associate Justice, Oliver Ellsworth, Chief Justice, Bushrod Washington, Associate Justice, Alfred Moore, “ John Marshall, Chief Justice, William Johnson, Associate Justice, 7 January 4 March 20 Dec. 10 Dec. 31 January March 1796. 1796. 1798. 1799. 1801. 1804. JUDGES OF THE SUPREME COURT OF THE UNITED STATES DURING THE PERIOD OF THESE REPORTS. Hon. John Marshall, “ William Cushing, “ William Paterson, “ Samuel Chase, “ Bushrod Washington, 11 Alfred Moore, Chief Justice. Associate Justices. Levi Lincoln, Esquire, Attorney-General. A TABLE OF THE NAMES OF THE CASES REPORTED IN THIS VOLUME. The references are to the Star * pages. A PAGE Abercrombie v. Dupuis....... 343 Alexander, Lloyd v......... 365 Amelia, The.................. 1 Auld, Hepburn v............ 321 B Bazadone, Clark v.......... 212 C Clark v. Young............. 181 Clark v. Bazadone.......... 212 D Dexter, Hodgson v.......... 345 Dunlop v. Silver........... 367 Dupuis, Abercrombie v....... 343 F Fendall, Turner v.......... 117 Fenwick v. Sears........... 259 G Gardner, Lindo v.............. 343 Groverman, Hooe v.......... 215 H *pAgb Hamilton v. Russell........ 309 Hepburn v. Auld............ 321 Hodgson v. Dexter......... 345 Hooe v. Groverman.......... 215 Hooe, United States v...... 318 I Insurance Company of Alexandria v. Young...............332 J Jameson, Thompson v........ 282 L Laird, Stuart v............. 299 Lenox, Wilson v............ 194 Lindo v. Gardner........... 343 Lloyd v. Alexander.......... 365 M Madison, Marbury v......... 137 Mandeville v. Riddle........ 290 Marbury v. Madison......... 137 Mason, Wilson v............. 45 O Owings, Wood v.............. 239 vii CASES REPORTED. P ♦page Peggy, The Schooner, United States v..................... 103 R Resler v. Shehee............. 110 Riddle, Mandeville v.......... 290 Russell, Hamilton v........... 309 S Sears, Fenwick v............. 259 Seeman, Talbot v............... 1 Shehee, Resler v............. 110 Silver, Dunlop v............. 367 Simms, United States v........ 252 Stuart v. Laird.............. 299 T Talbot v. Seeman............... 1 viii ♦page Thompson v. Jameson......... 282 Turner v. Fendall......... 117 U United States v. Hooe..... 318 United States v. The Schooner Peggy..................... 103 United States v. Simms.... 252 W Wilson v. Lenox........... 194 Wilson v. Mason............ 45 Wood v. Owings............ 239 Y Young, Clark v.............. 181 Young, Insurance Co. of Alexandria v...................... 332 A TABLE OF THE CASES CITED IN THIS VOLUME.' The references are to the Star *pages. A ♦PAGB Abney v. Kendall...............1 Eq. Cas. Abr. 330............. 57 Acheson v. Fountain............1 Str. 557...................... 428 Altham’s Case..................8 Co. 154...................... 327 Ancher v. Bank of England......2 Doug. 617.................422, 442 Aris’s Case....................2 Mod. 260...................... 441 Armistead v. Philpot...........1 Doug. 219........123, 127, 128, 135 Asher v. Wallis................11 Mod. 146..................... 442 Astley v. Reynolds.............2 Str. 915...................... 441 Avery v. Hoole.................Cowp. 825....................... 337 Aylett v. Love.................2 W. Bl. 1221................... 208 B Babington v. Lambert...........Moore 854....................... 429 Baird v. Blaigrove.............1 Wash. 170.................335, 337 Baker v. Hill..................3 Keb. 627 ................ 389, 463 Bamford v. Baron...............4 T. R. 594..................... 317 Bank of North Am. v. McKnight... 2 Dall. 192.................. 278 Bank of England v. Newman......12 Mod. 241.................400, 422 Barbone v. Brent...............1 Vern. 176..................... 442 Barnett v. Watson..............1 Wash. 173..................... 290 Bas v. Tingy...................4 Dall. 37.................15, 22, 26 Beckingbam v. Vaughan..........1 Roll. Abr. 7, pl. 2........... 429 Bell v. Chapman................Hard. 321..................... 429 Bennus v. Guyldley.............Cro. Jac. 505................. 335 Benson v. Flower...............Cro. Car. 166, 176..........124, 128 Bernardi v. Motteaux.........—2 Doug. 557....................... 12 Betsey, The. ..................1 Rob. 84...................... 16 Bickerdike v. Bollman..........1 T. R. 408-10............. 271, 272 Bingham v. Cabot...............3 Dall. 19, 383.............281, 343 Birch v. Bellamy...............12 Mod. 540...................... 86 Bishop v. Young................2 Bos. & Pul. 78............388, 465 ix CASES CITED. ♦page Blackwell v. Harper.............2 Atk. 94-5...................78, 97 Bond v. Nutt....................Cowp. 601, 605...............226, 227 Bottomly v. Brooke..............1 T. R. 621...................... 425 Boulton v. Hillesden............Comb. 450........................ 399 Bourne v. Mason.................1 Vent. 6, 7..................... 430 Brett v. Read...................Cro. Car. 343.................... 335 Bright v. Barrier...... .....___Bull. N. P. 269.................. 271 Bromwich v. Loyd................2 Lutw. 1585...........372, 381, 397 Brown v. Barry.............. .3 Dall. 365............207, 266, 270 Brown v. Bullen.................1 Doug. 408...................... 442 Brown v. Harraden...............4 T. R. 151...................... 416 Brown v. London.................1 Vent. 152.......... 388, 429, 463 Browning v. Morris..............Cowp. 793........................ 442 Buckingham v. Costendine........Cro. Jac. 213.................... 335 Buller v. Crips.................6 Mod. 29...........372, 381, 382, 411 Buller v. Harrison............... .Cowp. 567..................... 442 Bulstrode v. Gilburn............2 Str. 1027...................... 335 Bunniworth v. Gibbs.............Styles 419....................... 448 Burton v. Souter................2 Ld. Raym. 774................ 410 Butcher v. Swift................Com. Dig. 191.................... 404 Byas, Ex parte..................1 Atk. 124....................... 246 C Cadogan v. Kennet...............Cowp. 434....................... 312 Caldwell v. Ball................. 1 T. R. 205.................. 439 Canon v. Smallwood........... .3 Lev. 203, 204................. 128 Carter v. Downish................. 1 Show. 127.............. 370 Carter v. Palmer............... .12 Mod. 380............402, 404, 431 Carter v. Pearce................1 T. R. 163.................... 201 Carthage v. Manby...............2 Show. 90..................... 326 Cary v. Webster.................4 Burr. 1984.................... 442 Castle’s Case.................... Cro. Jac. 643.................. 254 Chamberlyn v. Delarive..........2 Wils. 353..................184, 186-8 Chandler’s Case.................MS............................... 149 Chapman v. Einefy...............Cowp. 280.................... 70 Chat v. Edgar...................1 Keb. 636...................... 386 Clarke v. Nightingale............ . 3 Dall. 415.................. 305 Clarke v. Adair.................4 T. R. 343...................... 427 Clarke v. Shee..................Cowp. 199........................ 442 Claxton v. Swift................2 Show. 501.................... 271 Clerke p. Martin.................2 Ld. Raym. 758...294, 408, 431, 462 Collins v. Emmit................1 H. Bl.‘318..................... 442 Consilia v. Briscoe.............Hughes 43......................... 71 Core v. Woddye..................1 Dyer 21.........................428 Cor ven’s Case..................12 Co. 105..................... 353 Coxe v. Wifrall..................‘Cro. Jac. 193.................. 114 Crainlington v. Evans...........2 Vent. 296.................391, 429 Crawly v. Crowther............... .2 Freem. 257.............294, 404 Cromwell u. Floyd.________........ 1 Com. Dig. 190.............. 390 Crop v. Norton..................*2 Atk. 74....................... 328 x CASES CITED. D ♦page Darrach v. Savage..............1 Show. 155 ................... 391 Dartnal v. Morgan..............Cro. Jac. 598................ 335 Dawes v. Ferres................2 P. Wms, 2..................... 87 Dehers v. Harriot..............1 Show. 163................... 392 Dingwall v. Dunstar............1 Doug. 235................. 200 Disbome v. Denabie.............1 Roll. Abr. 30............... 429 Doe v. Routledge...............Cowp. 708....................... 70 Domingo Franca’s Case..........11 Mod. 345 ....................463 Dougherty v. Crow..............Hughes 21....................... 71 Downman v. Downman.............1 Wash. 26......................113 Draper v. Glassop..............1 Ld. Raym. 153................ 465 Dunstar v. Pierce..............Lill. Ent. 55 ..................270 Dutton v. Poole................T. Jo. 102, T. Raym. 303, 3 Keb. 786. .430 Dymes v. Smith.................Clift Ent. 916............... 407 E Eaglechild’s Case..............Hetley 167.................... 369 Edgar v. Chut..............1 Keb. 592........................ 386 Edie v. East India Company.....2 Burr. 1216........340, 372, 428, 432 Edwards v. Hafben..............2 T. R. 594..................312, 316 Elborough’s Case................3 Keb. 765....................389 Eppes v. Randolph...............2 Call 125....................311 Evans v. Martlett........... .4 Burr. 2051...................439 Ewers v. Benchkin...............1 Lutw. 231...................391 F Farr v. Newman.................4 T. R. 639.................... 87 Feltham v. Terry...............Cowp. 419..................... 442 Feltmakers’ Co. v. Davis.......1 Bos. &. Pul. 101..............430 Fenn v. Harrison...............3 T. R. 759, 761 ...............422 Fenner v. Mears................2 W. Bl. 1269............426, 436, 448 Flewellen v. Rave..............1 Bulst. 68.....................429 Ford v. Hopkins................1 Salk. 283..............•......402 Forward v. Pittard.............1 T. R. 27 .....................359 Foster v. Allanson.............2 T. R. 479..................335, 337 Foster v. Smith................Cro. Car. 31....................335 Fowler v. Brown................Esp. N. P. 563..................466 Fowler v. Padget.......'.......7 T. R. 509.....................246 Freemoult v. Dedire............1 P. Wms. 429, 431............. 12 Fry v. Essery..................Hughes 53....................... 71 G Gerard v. La Coste.............1 Dall. 194.....................439 Geyer v. Aguilar...............7 T. R. 695 .................... 16 Gibbs v. Fowle.................Clift Ent. 916..................407 Gibson v. Minet................1 H. Bl. 586.................427, 442 Glass v. Gibbs.................3 Dall. 6....................... 18 xi CASES CITED. ♦pAGH Gooch’s Case...................5 Co. 60............................ W Goodall v. Dolley..............1 T. R. 712........................272 Goodisson v. Nunn..............4 T. R. 761...................325, 330 Goodright v. Wright............1 P. Wins. 399................... 87 Gordon v. Harper...............7 T. R. 9..........................313 Grant v. Vaughan...............3 Burr. 1516... .294, 386, 391, 392, 399, 403, 416, 433, 442 Green v. Harrington............Hutt. 34.......................... 335 H Hadves v. Levit................Hetley 176 . 430 Hall v. Gittings...............2 Har. & Johns. 112........... .249 Hancock v. Field...............Cro. Jac. 170.................326, 329 Hard’s Case....................1 Salk. 23.........................465 Harris v. Huntbacki............1 Burr. 374........................442 Harry v. Perritt...............1 Salk. 133........................271 Haselinton v. Gill.............3 T. R. 620........................312 Hasser v. Wallis...............1 Salk. 28........................272 Hawes v. Levitt................Moore 550 ........................430 Hawkes v. Saunders.............Cowp. 290.....................441, 449 Hawkins v. Cardy...............1 Ld. Raym. 360...............372, 400 Heylin v. Adamson..............2 Burr. 674 ..............271, 293, 388 Hibberts v. Carter.............1 T. R. 745 .......................439 Hill v. Lewis..................1 Salk. 132...............270, 393, 431 Hinton’s Case..................2 Show. 235................ .294, 390 Kitchen v. Campbell............2 W. Bl. 827, 831....184, 188, 440, 442 Hite v. Stevenson..............Hughes 16.......................... 71 Hodges v. Steward.......7......12 Mod. 37, 1 Salk. 125.. .321, 391, 392, 402, 430, 465 Hoe’s Case.....................5 Co. 70..................123, 326, 328 Hoe v. Marshall................Cro. Eliz. 580 ....................326, 329 Holland v. Downes..............Sav. 91...........................248 Holme v. Lucas.................Cro. Car. 6.................. 335, 338 Hooper v. Smith. ..............1 W. Bl. 441......................242 Hornsey v. Dimocke.............1 Vent. 119........................429, 442 Horton v. Coggs................3 Lev. 296, 299...........391, 402, 406 Hussey v. Fiddall......... 12 Mod. 324 .......................441 I Innes v. Dunlop................8 T. R. 595................... 437 Irving v. Wilson...............4 T. R. 485 .......................441 Isaacs v. Willis...............Hughes 12......................71, 74 Israel v. Douglas..............1 H. Bl. 242..............* *......427 J Jacob v. Allen.................1 Salk. 27........................ 440 Jefferys v. Walton.............1 Wils. 177.......................114 Jennings v. Brig Perseverance ... .3 Dall. 337....................320 Jones v. Barkley...............2 Doug. 684...................325, 330 xii CASES CITED. *PAGB Jones v. Williams.............1 Wash. 231.................... 72 Jordaine v. Lashbrooke........7 T. R. 601.................200, 203 Jordan v. Barloe..............3 Salk. 67..................403, 431 K Kearslake v. Morgan...........5 T. R. 513.............184, 185, 188 King v. Barker................3 Burr. 1067................152, 168 King v. Burrage...............3 P. Wms. 458—61................ 72 King v. Egginton..............1 T. R. 370.................... 135 King v. Newcomb...............4 T. R. 368..................... 71 Kitchin v. Campbell...........3 Wils. 304.................... 184 L Lambert v. Oaks...............1 Ld. Raym. 443.........187, 401, 450 Lavenders. Blackstone.........2 Lev. 147..................... 312 Lawson v. Lamb................1 Lutw. 274.................... 404 Lee«. Love....................1 Call 497-9............184, 186, 458 Leftley v. Mills..............4 T. R. 173.................... 270 Legat’s Case..................Latch 206...................... 430 Le Neve v. Le Neve............Amb. 446; 3 Atk. 654............ 57 Lellingham v. Alsop...........2 Inst. 674.................... 244 Longchamp v. Kenny............1 Doug. 138.................... 294 Losh v. Williamson............7 T. R. 351.................... 445 M McCulloch v. Houston..........1 Dall. 441.................... 459 McQuiHin v. Cox...............1 H. Bl. 249................... 208 McWilliams v. Smith...........1 Call 123..................... 278 Macbeth v. Haldimand..........1 T. R. 181.................352, 356 Mackie v. Davis...............2 Wash. 230... .184, 186, 273, 449, 458 Mallery v. Jennings...........2 Inst. 674.................... 243 Maria, The....................1 Rob. 288..................13, 16, 24 Marsh v. Cutler...............3 Mod. 41..................... 288 Martyn v. Hind................Cowp. 443...................... 430 Master v. Miller..............4 T. R. 340.................... 424 Merediths. Chute..............2 Ld. Raym. 760................ 463 Merry v. Abney................1 Chan. Cas. 38............... 57 Miller v. Fox.................Hughes 51....................... 71 Miller«. Race.........'.......1 Burr. 452................ 294 Milford v. Mayor...............1 Doug. 55.................... 270 Milton’s Case.................Hardr. 485..................387, 462 Minnis v. Pollard.............1 Call 226................... 186 Mogadara v. Holt..............1 Show. 318; 12 Mod. 15...... 371 Monk v. Cooper................2 Ld Raym. 1477............. 358 Moravia v. Levy...............2 T. R. 483.................. 340 More v. Manning................ .Com. 311.................... 428 Morrough v. Cornyns...........1 Wils. 211.................... 424 Mortimer «. Wingate...........Moore 463...................... 188 Moses v. Macferlan ...........2 Burr. 1012................272, 442 xiii CASES CITED. ♦page Mostyn v. Fabrigas,............ Cowp. 174, 175............... 12. Moulsdale v. Birchall.......... .2 W. Bl. 820................. 425 N Newdigate v. Davy................2 Ld. Raym. 742.,............ 442 Nicholson v. Gouthit.............2 H. Bl. 609..............’... 103 Nicholson v. Sedgwick............ .1 Ld. Raym. 180: 3 Salk. 67.. .391, 399 Norfolk v. Howard..........2 Show. 235......................... 390 Norris v. Napper................ 2 Ld. Raym. 1007............. 442 Norton y. Rose...................2 Wash. 240................... 451 O Oble v. Dittlesfield...........1 Vent. 154..................... 429 Owen v. Wilson.................Hughes 64...........*............ 71 P Peacock v. Rhodes..............2 Doug. 614..................422, 451 Pearson v. Garret..............Comb. 227; 4 Mod. 242....... .395, 465 Pelly v. Royal Ex. Assurance Co. .1 Burr. 341.................. 335 Pemberton v. Shetton...........Cro. Jac. 498, 499-............. 288 Pillans v. Van Mierop..........3 Burr. 1669-.............. 373, 443 Pinkney v. Hall................1 Ld. Raym. 175..............371, 398 Platt v. Locke ................1 Plowd. 36-.................... 440 Porter v. Philips..............Cro. Jac. 623................326, 329 Potter v. Pearson..............1 Ld. Raym. 759................. 410 Powell v. Pleydell_____________2 Eq. Cas. Ab. 683............. 70 Princessa, The.................2 Rob. 45........................ 21 Providentia, The...............2 Rob. 126....................... 12 Pyers v. Turner.......'........Cro. Eliz. 283.................. 335 Q Quantock v. England............„4 Burr. 2628................... 466 R Rabies v. Sikes.........A......2 Keb. 711...................... 389 Rann v. Hughes.................7 T. R. 350..................... 445 Read v. Johnson................Cro. Eliz. 242.................. 335 Reed v. Ingraham...............3 Dall. 505..................... 438 R.egina v. Bailiffs of Bewdly..1 P. Wms. 223.................... 87 Reynolds y. Clarke.............1 Str. 635...................... 313 Rex v. Bigg....................3 P. Wms. 319................... 340 Rex v. Bird....................2 Show. 87...................123, 128 Rex v. Borough of Midhurst.....1 Wils. 283.................... 152 Rex v. Hay.....................1 W. Bl. 640.................... 152 Rex v, Loxdale.................1 Burr. 450..................... 86 Rex v. Robinson................2 Burr. 803.................... 254 Rex v. Turkey Co...............2 Burr. 1000.................... 152 Rex v. Webb.. J................2 Show. 166...................... 123 xiv CASES CITED. ♦page Rice v. Shute..................2 W. Bl. 696.................... 87 Rippen v. Norton...............Cro. Eliz. 849................. 430 Robertson v. Bland.............1 W. Bl. 264................... 87 Robertson v. Vogle............ .1 Dall. 252................ 278, 459 Rudder v. Price................1 H. Bl. 550.............211, 388, 464 Rushton v. Aspinall............2 Doug. 653..........201, 210, 273, 338 Russel v. Langstaffe...........2 Doug. 497..................... 273 Ryall v. Rolle.......... i. *..1 Wils. 260.................... 314 S Sadler v. Evans................4 Burr. 1984.........;.......... 442 Sadler v. Paine................Sav. 24......................... 430 Santa Cruz, The.................1 Rob. 57...............5....... 12 Scott v. Call..................1 Wash. 115..................202, 210 Shelden v. Hentley.............2 Show. 161.................... 389 Sheppard v. Flemyng............. .Clift. Ent. 929............ 406 Sharington v. Strotton.........Plowd. 308. ................... 444 Skipwith v. Baird..............2 Wash. 165..............202, 206, 210 Slade’s Case................4.4 Co. 93......................... 463 Slade v. Drake.................Hob. 298......................... 72 Smallwood v. Vernon............1 Str. 479.................... 292 Smart v. Williams.., .. ..s«,.......... Comb. 249, 453......... 248 Smith v. BradfordHughes 55.................................... 71 Smith v. Prager...... .........7 T. R. 62.................... 200 Spieres.v. Parker..............1 T. R. 141................... 337 Staple v. Bird.................Barnes 214..................... 135 Starke v. Cheesman s...«........... Carth. 509................. 402 Starkey v. Mill................Styles 296...................430, 442 Stevens v. White...............2 Wash. 203..................... 207 St. Bernardo, The............. 1 Rob. 240 ................... 21 Standing v. Morgan.............Plowd. 206 ...................... 72 Swearingen v. Briscoe.,.,....... .Hughes 47................... 71 Swearingen v* Higgins..........Hughes 4....................... 71 T Taliaferro v. Robb.............2 Call 258...................... 335 Tarleton v. Staniforth.........5 T. R. 695.................... 335 Tassel v. Lewis................1 Ld. Raym. 743................. 270 Tatlock v. Harris...........3 T. R. 182.................427, 435, 442 Taylor v. Joddrell............... 1 Wils. 254............... 114 Taylor v. Wheeler..............2 Vern. 564.................. 245 Temple v. Welds................10 Mod. 315.................... 442 Tey’s Case.....................5 Co. 39...................... 210 Thornby v. Fleetwood...........1 Str. 329..................... 72 Thorpe v. Thorpe...............1 Ld. Raym. 235..........325, 328, 329 Thurston v. Slatford............1 Lutw. 377.................... 268 Tindall v. Brown...............1 T. R. 167..................273, 278 Tonkins v. Ennis...............1 Eq. Cas. Abr. 334.............. 70 Trueman v. Fenton..............Cowp. 548....................... 466 xv CASES CITED. ♦page Turner v. Toft ................Clift’s Ent. 899.............. 406 Turton v. Benson ..............1 Str. 240...................... 453 Two Friends, The...............1 Rob. 232..............14, 16, 21, 26 Tyman v. Bridges...............Cro. Jac. 300................... 329 U Unwin v. Wolsely......*........1 T. R. 674............354, 357, 365 United States v. Hopkins.......MS.............................. 149 United States v. Lawrence......3 Dall. 42...................... 148 United States v. Peters........3 Dall. 121..................... 149 V Vallejo v. Wheeler.............Cowp. 143..................221, 224 Vanheath v. Turner.............Winch 24..................... 369 Vass'M. Chichester.............1 Call 98..................210, 338 Vere v. Lewis..................3 T. R. 182..................... 442 Vryheid, The...................2 Rob. 23, 24.................. 18 W • Wagstaff v. Wagstaff...........2 P. Wms. 259................... 87 Walker v. Walker...............5 Mod. 13..................... 439 Walker v. Witter...............1 Doug. 6...................208, 210 Walmsley v. Child..............1 Ves. 346...................... 417 Walpole v. Pultencey...........1 Doug. 237..................... 203 Ward v. Evans..................2 Ld. Raym. 930.............295, 416 Ward v. Macauley...............4 T. R. 489..................... 313 War Onskan, The................2 Rob. 246.................. 14, 16 Way v. Tally...................2 Salk. 651...................... 12 Welsh v. Creagh................8 Mod. 373 ; 1 Str. 680....462, 465 Wemys v. Linzee................1 Doug. 310...................... 31 Wethen v. Baldwin..............Sid. 56.......................... 72 Wherwood v. Shaw...............1 Brownl. 82; Yelv. 25.......... 429 Williams v. Cutting............2 Ld. Rayin. 825................ 410 Williams v. Field..............3 Salk. 68...................... 397 Williamson v. Holiday..........Browne’s Prec. 18............... 379 Winch v. Keeley................1 T. R. 619.................245, 425 Winston v. Francisco...........2 Wash. 187..................... 338 Wiscart v. D’Auchy.............3 Dall. 321...................... 11 Woody’s Case...................Cro. Jac. 104................... 209 Woodwards. Rowe................2 Keb. 105, 132.............369, 387 Woolvil v. Young...............5 Mod. 367..................... 399 Worsley v. Wood................6 T. R. 710.................... 335 Wright v. Campbell.............4 Burr. 2051................... 439 xvi RULES AND ORDERS OF THE SUPREME COURT OF THE UNITED STATES. I. 1790, February 3. Ordered, That John Tucker, Esq., of Boston, be the clerk of this court. That he reside and keep his office at the seat of the national government, and that he do not practise, either as an attorney or a counsellor in this court, while he shall continue to be clerk of the same. II. 1790, February 5. Ordered, That (until further orders) it shall be requisite to the admission of attorneys or counsellors to practise in this court, that they shall have been such fox* three years past in the supreme courts of the state to which they respectively belong, and that their private and professional character shall appear to be fair. III. 1790, Februaryj5. Ordered, That counsellors shall not practise as attorneys, nor attorneys as counsellors, in this court. IV. 1790, February 5. Ordered, That they shall respectively take the following oath, viz.: “ I, —--------------, do solemnly swear, that I will demean myself (as an attorney or counsellor of the court) uprightly, and according to law, and that I will support the Constitution of the United States.” V. 1790, February 5. Ordered, That (unless and until it shall otherwise be provided by law) all process of this court shall be in the name of the President of the United States. VI. 1791, February 7. Ordered, That.the counsellors and attorneys, admitted to practise in this court, shall take either an oath, or, in proper cases, an affirmation, of the tenor prescribed by the rule of this court on that , subject, made February term, 1790, viz.: “I,-----------------, do solemnly swear (or affirm, as the case may bo) that I will demean myself, as an attorney, oi’ counsellor of this court, uprightly, and according to law, and that I will support the Constitution of the United States.” VII. 1791, August 8. The chief justice, in answer to the motion of the attorney-general, made yesterday, informs him and the bar, that this court consider the practice of the courts of king’s bench, and of chancery, in England, as affording outlines for the practice of this court; and that they will, from time to time, make such alterations therein as circumstances may render necessary. 1 Cranch—B xvii , xviii RULES OF COURT, VIII. 1795, February 4. The court gave notice to the gentlemen of the bar, that hereafter they will expect to bo furnished with a statement of the material points of the case from the counsel on each side of a cause. IX. 1795, February 17. The court declared that all evidence on motions for a .discharge upon bail must be by way of deposition, and not vivd voce. X. 1796, August 12. Ordered, That process of subpoena issuing out of this court in any suit in equity, shall be served on the defendant sixty days before the return-day of the said process ; and further, that if the defendant, on such service of the subpoena, shall not appear at the return-day con tained therein, the complainant shall be at liberty to procceed ex parte. XI. 1797, February 13. It is ordered by the court, that the clerk of the court to which any writ of error shall be directed, may make return of the same, by transmitting a true copy of ’the record, and of all proceedings in the cause, under his hand and the seal of the court. XII. 1797, August 7. It is ordered by the court, that no record of the court be suffered by the clerk to be taken out of his office, but by the consent of the court;, otherwise, to be responsible for it. XIII. 1800, August 15. In the case- of Course v. Stead's Executors. Ordered, That the plaintiff in error be at liberty to show to the satisfation of this court, that the matter in dispute exceeds the sum or value of $2000, exclusive of costs; this to be made appear by affidavit, on---days’ notice to the opposite party, or their counsel, in Georgia. Rule as to affidavits to be mutual. XIV. 1801, August 12. Ordered, That counsellors may be admitted as attorneys in this court, on taking the usual oath. XV. 1801, December 9. It is ordered, That in every cause where the defendant in error fails to appear, the plaintiff may proceed ex parte. XVI. 1803, February Term. It is ordered, That where the writ of error issues within thirty days before the meeting of the court, the defendant in error is at liberty to enter his appearance, and proceed to trial: otherwise, the cause must be continued. XVII. 1803, February Term. In all cases where a writ of error shall delay the proceedings on the judgment of the circuit court, and shall appear to have been sued out merely for delay, damages shall be awarded at the rate of ten per centum per annum, on the amount of the judgment. XVIIL 1803, February Term. In such cases, where there exists a real controversy, the damages shall be only at the rate of six per centum per annum. In both cases, the interest is to be computed as part of the damages. CASES DETERMINED IN THE SUPREME COURT OF THE UNITED STATES. , o* ----- C whoever the owner of these goods or merchandise may be.” *This decree subjects to condemnation in the courts of France, a neutral vessel, laden, in whole or in part, with articles the growth of England or any of its possessions. A neutral thus circumstanced cannot be considered as in a state of safety: his re-captor cannot be said to have rendered him no service. It cannot reasonably be contended, that he would have been discharged in the ports of the belligerent, with costs and damages. Let us, then, inquire, whether this was the situation of the Amelia. The first fact states her to have sailed from Calcutta, in Bengal, in April 1799, laden with a cargo of the product and manufacture of that country. Here it is contended, that the whole of Bengal may possibly not be in the possession of the English, and therefore, it does not appear that the cargo was within the description of the decree. But to this, it has been answered, that in inquiring whether the Amelia was in danger or not, this court must put itself in the place of a' French court of admiralty, and determine as such court would have determined. Doing this, there seems to be no reason to doubt, that the cargo, without inquiring into the precise situation of the British power in every part of Bengal, being prima facie of the product and manufacture of a possession of England, would have been so considered, unless the contrary could have been plainly shown. The next fact relied on by the defendant in error is, that the Amelia was sent to be adjudged according to the laws of war, and from thence it is inferred, that she could not have been judged according to the decree of the 18th of January. It is to be remembered, that these are the orders of the captor, and without a question, in the language of a French cruiser, a law of his 1 See Ennis v. Smith, 14 How. 427. 24 1801] OF THE UNITED STATES. The Amelia. 39 own country furnishing a rule of conduct in time of war, will be spoken of as one of the laws of war. But the third and fourth facts in the statement admit the Amelia, with her cargo, to have belonged to a citizen of Hamburg, which city was not in a state of hostility with the republic of France, but was to be considered as neutral between the then belligerent powers. *It has been con- r*. „ tended, that these facts not only do not show the re-captured vessel L to have been one on which the decree could operate, but positively show that the decree could not have affected her. The whole statement, taken together, amounts to nothing more than that Hamburg was a neutral city ; and it is precisely against neutrals, that the decree is in terms directed. To prove, therefore, that the Amelia was a neutral vessel, is to prove her within the very words of the decree, and consequently, to establish the reality of her danger. Among the very elaborate arguments which have been used in this case, there are some which the court deem it proper more particularly to notice. It has been contended, that this decree might have been merely in terrorem; that it might never have been executed; and that, being in opposition to the law of nations, the court ought to presume it never would have been executed. But the court cannot presume the laws of any country to have been enacted in terrorem ’ nor that they will be disregarded by its judicial authority. Their obligation on their own courts must be considered as complete ; and without resorting either to public notoriety, or the declarations of our own laws on the subject, the decisions of the French courts must be admitted to have conformed to the rules prescribed by their government. It has been contended, that France is an independent nation, entitled to the benefits of the law of nations; and further, that if she has violated them, we ought not to violate them also, but ought to remonstrate against such misconduct. These positions have never been controverted ; but they lead to a very different result from that which they have been relied on as producing. The respect due to France is totally unconnected with the danger in which her laws had placed the Amelia ; nor *is France in any manner to be affected by the decree this court may pronounce. Her interest L in the vessel was terminated by the re-capture, which was authorized by the state of hostility then subsisting between the two nations. From that time, it has been a question only between the Amelia and the re-captor, with which France has nothing to do. It is true, that a violation of the law of nations by one power does not justify its violation by another ; but that remonstrance is the proper course to be pursued, and this is the course which has been pursued. America did remonstrate, most earnestly remonstrate, to France, against the injuries committed on her; but remonstrance having failed, she appealed to a higher tribunal, and authorized limited hostilities : this was not violating the law of nations, but conforming to it. In the course of these limited hostilities, the Amelia has been re-captured, and the inquiry now is, not whether the conduct of France would justify a departure from the law of nations, but what is the real law in the case ? This depends on the danger from which she has been saved. Much has been said about the general conduct of France and England on 25 41 SUPREME COURT The Amelia. [Aug. the seas, and it has been urged, that the course of the latter has been still more'injurious than that of the former. That is a consideration not to be taken up in this cause : animadversions on either, in the present case, would be considered as extremely unbecoming the judges of this court, who have only to inquire what was the real danger in which the laws of one of the countries placed the Amelia, and from which she has been freed by her re-capture. It has been contended, that an illegal commission to take, given by France, cannot authorize our vessels to re-take ; that we have no right by legislation to grant salvage out of the property of a citizen of Hamburg, who might have objected to the condition of the service. But it is not the authority given by the French government to capture neutrals, which is legalizing the re-capture made by Captain Talbot; it is the state of hostility between the two nations which is considered as having authorized that act. The re-capture having been made lawfully, then the right to salvage, $ .„-j on general principles, depends *on the service rendered. We cannot J presume this service to have been unacceptable to the Hamburger, because it has bettered his condition; but a re-capture must always be made without consulting the re-captured. The act is one of the incidents of war, and is, in itself, only offensive as against the enemy. The subsequent fate of the re-captured depends on the service he has received, and on other circumstances. To give a right to salvage, it is said, there must be a contract, either express or implied. Had Hamburg been in a state of declared war with, France, the re-captured vessels of that city would be admitted to be liable to pay salvage. If a contract be necessary, from what circumstances would the law, in that state of things, imply it ? Clearly, from the benefit received, and the risk incurred. If, in the actual state of things, there was also benefit and risk, then the same circumstances concur, and they warrant the same result. It is also urged, that to maintain this right, the danger ought not to be merely speculative, but must be imminent and the loss certain. That a mere speculative danger will not be sufficient to entitle a person to salvage, is unquestionably true. But that the danger must be such, that escape from it by other means was inevitable, cannot be admitted. In all the cases stated by the counsel for the defendant in error, safety by other means was possible, though not probable. The flames of a ship on fire might be extinguished by the crew, or by a sudden tempest. A ship on the rocks might possibly be gotten off, by the aid of wind and tides, without assistance from others. A vessel captured by an enemy might be separated from her captor, and if sailors had been placed on board the prize, a thousand accidents might possibly destroy them ; or they might even be blown by a storm into a port of the country to which the prize vessel originally belonged. It cannot, therefore, be necessary that the loss should be inevitably certain ; but it is necessary *431 dagger should *be real and imminent. It is believed to have been so, in this case. The captured vessel was of such description that the law by which she was to be tried, condemned her as good prize to the captor. Her danger, then, was real and imminent. The service rendered her was an essential service, and the court is, therefore, of opinion, that the re-captor is entitled to salvage. 26 1801] OF THE UNITED STATES. j 43 The Amelia. 3. The next object of inquiry is, what salvage ought to be allowed ? The captors claim, one-half the gross value of the ship and cargo. To support this claim they rely on the “ act for the government of the navy of the United States,” passed the 2d of March 1799. This act regulates the salvage payable on the ships and goods belonging to the citizens of the United States, or to the citizens or subjects of any nation in amity with the United States, re-taken from the enemy. It has been contended, that the case before the court is in the very words of the act. That the owner of the Amelia is a citizen of a state in amity with the United States, re-taken from the enemy. That the description would have been more limited, had the intention of the act been to restrain its application to a re-captured vessel belonging to a nation engaged with the United States against the same enemy. The words of the act would certainly admit of this construction. Against it, it has been urged, and we think with great force, that the laws of the United States ought not, if it be avoidable, so to be construed as to infract the common principles and usages of nations, or the general doctrines of national law. If the construction contended for be given to the act, it subjects to the same rate of salvage a re-captured neutral, and a re-captured belligerent vessel. Yet, according to the law of nations, a neutral is generally to be restored without salvage. This argument, in the opinion of the court, derives great additional weight from the consideration that the act in question is not temporary, but permanent. It is not merely fitted to the then existing state of things, and *calculated to expire with them, but is a regulation applying to present and future times. Whenever the danger resulting to captured neutrals L from the laws of France should cease, then, according to the principles laid down in this decree, the liability of re-captured neutrals to the payment of salvage would, in conformity with the general law and usage of nations, cease also. This event might have happened, and probably did happen, before hostilities between the United States and France were terminated by treaty. Yet, if this law applies to the case, salvage from a re-captured neutral would stilt be demandable. This act, then, if the words admit it, since it provides a permanent rule for the payment of salvage, ought to be construed to apply only to cases in which salvage is permanently payable. On inspecting the clause in question, the court is struck with the description of those from whom the vessel is to be re-taken, in order to come within the provisions of the act. The expression used is, the enemy: a vessel re-taken from the enemy. The enemy of whom ? The court thinks it not unreasonable to answer, of both parties. By this construction, the act of congress will never violate those principles which we believe, and which it is our duty to believe, the legislature of the United States will always hold sacred. If this act does not comprehend the case, then the court is to decide, on a just estimate of the danger from which the re-captured was saved, and of the risk attending the re-taking of the vessel, what is a reasonable salvage. Considering the circumstances, and considering also what rule has been adopted in other courts of admiralty, one-sixth appears to be a reasonable allowance. It is, therefore, the opinion of the court, that the decree of the circuit court, held for the district of New York, was correct, in reversing the 27 44 SUPREME COURT Wilson v. Mason. [Dec. decree of the district court, but not correct in decreeing the restoration of the Amelia, without paying salvage. This court, therefore, is of opinion, *. „q that the decree, so far as the restoration of the *Amelia, without sal-J vage, is ordered, ought to be reversed, and that the Amelia and her cargo ought to be restored to the claimant, on paying for salvage one-sixth part of the net value, after deducting therefrom the charges which have been incurred.1 DECEMBER TERM, 1801. ( George Wilson v. Richard Mason, devisee of George Mason. Richard Mason, devisee of George Mason, v. George Wilson. Writ of error.—Land law of Kentucky.—Effect of notice. A writ of error upon a caveat, lies from the district court of Kentucky district, to the supreme court of the United States. Waste and unappropriated lands, in Kentucky, in the year 1780, could not be lawfully appropriated by survey alone, without a previous legal entry in the book of entries. A survey in Kentucky, not founded on an entry, is a void act, and constitutes no title whatever; . and land so surveyed remains vacant, and liable to be appropriated by any person holding a land-warrant. Notice of an illegal act will not make it valid. These were writs of error to the District Court of the United States for the district of Kentucky, upon cross caveats for the same tract of land. The caveat of Wilson v. Mason originated in the supreme court for the district of Kentucky, in 1785, whilst Kentucky was a part of the commonwealth of Virginia, and the record stated, “that heretofore, viz., at a supreme court for the district of Kentucky, held at Danville, in the said district, in the month of March 1785, came George Wilson, and caused a certain caveat to be entered against George Mason, which is in the following words, viz.: Let no grant issue to George Mason, of Fairfax county, for 8300 acres of land in Jefferson county, surveyed on the south side of Panther creek, adjoining another survey of the said Mason’s, of 8400 acres, on the upper side ; because the said George Mason has surveyed the same, contrary to his location, for which cause, and also on account of the vagueness of the entry, George Wilson claims the same, or so much thereof as interferes with his entry made on treasury-warrants for 40,926 acres, specially made on the 9th day of April 1784. Entered, 25th March 1785.” 1 The general rule, undoubtedly, is, that salvage is not due, on a re-capture of neutral property, from a belligerent. The Carlotta, 5 Rob. 54 ; The Jonge Lambert, Ibid, n ; The Antelope, Bee 233 ; Peck v. Randall’s Trustees, 1 Johns. 165. Cases arising under the French arrêt of the 18th January 1798 (such as that of The Amelia), formed exceptions to the general rule, but they did not alter the established doctrine of the courts of admiralty. The Huntress, 6 Rob. 104. For a review of the French proceedings in matters of prize, which occasioned the allowance of military salvage, on re-capture of neutral property from French cruisers, see appendix to 2 Robinson, p. 307 (Am. edit.). And see The Acteon, Edw. 254. In The Charming Betsey, 2 Or. 121, the court say, that the case of The Amelia was well decided, under the particular circumstances, and is a precedent not to be departed from in like cases. 2’8* 1801] OF THE UNITED STATES. 45 Wilson v. Mason. “ Whereupon, at October term 1785, a summons issued, commanding the sheriff of Fairfax county to summon George Mason to appear at the next March term, to show cause why the 8300 acres should not be *granted. r*. g to George Wilson, or so much as interferes with his entry for 40,926 L acres, made on the 9th of April 1784.” Afterwards, and after Kentucky became a separate state, at a court held for the district of Bairdstown, in September 1797, “to which court this suit had been removed, and the said George Mason having departed this life, the said suit was ordered to be revived in the name of Richard Mason, the devisee of George Mason, deceased, who was devisee of George Mason, deceased.” Richard Mason then removed the cause from the state court, to the district court of the United States for the district of Kentucky, and it was agreed by the parties, “ that the judgment in this caveat (Wilson v. Mason), if for the plaintiff, should be entered up as a judgment for the defendant in the caveat, Mason v. Wilson ; and if for the defendant, as a judgment for the plaintiff in the said caveat, Mason n. Wilson, which suits are cross caveats between the parties, for the same land.” “And thereupon, came a jury, Ac., who, being elected, tried and sworn well and truly to inquire into such facts as may be material in this cause, and not agreed to by the parties,” found the special verdict hereinafter stated. The cross caveat of Richard Mason v. Wilson was filed on the 13th of March 1799, and seemed to be in the nature of a plea or answer to the claim of Wilson. It was in the following form, viz.: “Let no grant issue to George Wilson, or his assignees, on the said Wilson’s survey of 30,000 acres of land, lying in Jefferson county (now Nelson county), on the south side of Panther creek, a branch of Green river, made by virtue of an entry, dated April the 9th, 1784, for 40,926 acres, upon the five following land-office treasury-warrants, No. 17,639 ; 19,143; 19,614; 19,616; and 12,795. Richard Mason, infant heir and devisee of George Mason, jun., who was heir and devisee of George Mason, Esq., late of Fairfax county, Virginia, a citizen of the commonwealth of Virginia, by Cuthbert Banks, his next friend, enters a caveat against the same, for the following causes : Because the said survey includes a tract of 8300 acres which had been before located and entered by the *said George Mason, in the year 1780, and which r*^ tract had been actually surveyed for him, the said George Mason, L and the certificate of survey thereof, dated October 2d, 1783, returned to the county surveyor’s office, long before the said George Wilson made his Slid entry ; and because the said entry, made by the said George Wilson, on which his said survey is founded, was illegal and fraudulent, the said George Wilson having knowingly and wilfully located his said entry upon lands which had been actually before appropriated and surveyed for others, as appears by the words of the said Wilson’s own entry, which begins at the upper and north-east corner of the said George Mason’s 8400 acre survey, on the bank of Panther creek, upon which survey of 8400 acres, the adjacent survey made for George Mason of 8300 acres, made about the same time, binds, and runs thence, south, 10 deg. east (being the course to a single degree of the dividing line between the said Mason’s two tracts of 8400 and 8300 acres), passing the said Mason’s south-east corner, 2600 poles, north, 80 deg. east (which is the course to a single degree of the back line of George Mason’s said survey of his tract of 8300 acres), 3200 poles, and 29 47 SUPREME COURT [Dec. Wilson v. Mason. off at right angles northwardly, to the bank of Panther creek ; and down the same, according to the meanders thereof, to the beginning ; whereby it includes the whole of Richard. Mason’s said tract of 8300 acres, as devisee as aforesaid of George Mason, as well as some other lands which have been previously located and surveyed for other people ; which above-mentioned courses could not have been inserted in Wilson’s entry, in the manner they are, without his having been acquainted with the said surveys made by George Mason, before mentioned ; the plats and certificates of which were, at the time of Wilson’s said entry, in the county-surveyor’s office ; and from which, it is evident, Wilson gained the information by which he made his special entry.” The original caveat of George- Mason v. Wilson, was entered May 6th 1785. Mason’s entries, in the book of entries, were as follows, viz.: “ 1780, April 29th, George Mason enters 8400 acres of land, to begin on * Panther creek, on the east side *thereof, opposite to a beech on the -* west side, about four miles above the mouth of the west fork, and to run up and down the said creek, and eastwardly for quantity.” “ 1780, April 29th, George Mason enters 8300 acres, to begin at the upper corner of his 8400 acre entry, and to run up the creek, on the east side, and back for quantity.” “1780, October 27th, George Mason desires to make his entry of 8400 acres more special, on Panther creek, viz., to begin four miles above the forks of Panther creek, where it mouths into Green river, on the east side, running up and back for quantity.” The tract of 8400 acres was surveyed on 27th September 1783, beginning four miles above the mouth of Panther creek, where it empties into Green river, and not four miles above the mouth of the west fork of Panther creek, as mentioned in his first entry. The mouth of Panther creek being more than twelve miles below the mouth of the west fork. The tract of 8300 acres was surveyed on the 2d of October 1783, adjoining to the survey of 8400 acres, below the mouth of the west fork, and not above, as it would have been, if surveyed according to the entry of the 29th April 1780. George Wilson’s entry is as follows, viz.: “1784, April 9th, George Wilson enters 40,926 acres upon five treasury-warrants, No. 17,639, 19,143, 19,614, 19,616, 12,795, on the south side of Panther creek, a branch of Green river, beginning at the upper and north-east corner of George Mason’s 8400 acre survey, on the bank of Panther creek, which survey begins, perhaps, about three miles from the mouth of the said creek and 320 poles upon a direct line above the mouth, of the first fork of the said creek from the mouth, thence running south, 10 deg. east, passing the said Mason’s south-east corner, 2600 poles; thence, north, 80 deg. east, 3200 poles; thence, *. -| off at right angles, northwardly, *to the bank of Panther creek, and - * down the same, with the several meanders thereof, to the place of beginning.” Upon four of those warrants, 30,000 acres were surveyed for Wilson, on the 2d June 1784, and located so as to comprehend the whole of Mason’s survey of 8300 acres. The following facts were agreed to by the counsel for both parties, viz.: “ 1. We admit that Panther creek has been known and called by that name, Panther creek, generally, since the begining of the year 1780, and is truly represented on the plat returned in this cause, and also the forks thereof. 30 1801] OF THE UNITED STATES. 49 Wilson v. Mason. “ 2. That at the distance of twelve and one-quarter miles and thirty-six poles, on a direct line from its mouth, the said creek divides itself into two forks, viz., the fork marked on the plat returned in this cause, as the west fork of said creek ; and the other, the fork marked on the plat, Panther creek ; and that from the size and natural descriptions of these forks, they would be remarked and called such by strangers who should explore the waters of that creek. “ 3. That the said forks were generally known and called the forks of Panther creek, from the beginning of the year 1780 ; and that they were notorious as such, to all who had acquaintance with the waters in that part of the country. “ 4. That in the winter before the said entries were made for said defendant, the said agent, Hancock Lee, went down on Panther creek, and explored the country thereabouts ; and encamped thereabouts, four or five weeks, for that purpose ; and there were several others in company with him, who all went on the business of viewing the land in that quarter. “ 5. That James Hord was the surveyor who surveyed the said entries, in September and October 1783. * “ 6. That Hubbard Taylor was the special attorney of the de-fendant Mason, for the purpose of making his surveys on Panther *■ Creek, among which was the one now in controversy, and previous to making said surveys, the said Taylor made out a plat of Panther creek, up to the forks thereof, by actual survey, for the purpose of satisfying himself how the survey of the said defendant ought to be made ; which plat he delivered to the said Hord, when he went to make the surveys of the said lands, for his instruction ; and by the said plat, the said Hord was instructed to make the surveys of the said defendant, as they are now surveyed. The entries alluded to in the 4th fact, are those found by the jury to have been made for the defendant, by Hancock Lee, at the same time with that , of the land in controversy.” The verdict of the jury was as follows, viz.: “We of the jury do find the facts following for the plaintiff, excluding those agreed to by the attorneys : “ 1. That the said Hancock Lee, at the time he made the said entry for the said Mason, did also make the several other entries for him. “ 2. That the plats and certificates of survey lay three weeks in the office, before they were recorded. “ 3. That at the time of making oat and recording the plats of said surveys, William Mason was agent to the said George Mason, and came to this country for the express purpose of attending to his land business ; and had power and instructions to re-survey any of the said Mason’s entries, which he should find to have been erroneously surveyed, or interfering with better claims. “ 4. That it was a general practice in the offices of surveyors, when a survey was found to have been made erroneously, to make the same over again, at the request of the parties concerned ; and the said practice prevailed also in cases of surveys recorded. “ 5. That when William Mason came to the surveyor’s office, to take out the plats in this case, and also those in *the other cases in which p George Mason was concerned, the surveyor told him that the entries 31 61 SUPREME COURT Wilson v. Mason. [Dec. of the said George, the defendant, had been surveyed wrong ; and took a pen and paper and explained to him the calls of the entries, and by comparing them with the surveys, showed him that they were erroneous ; and offered to send a deputy with him, without further or additional expense, to make the surveys aright, with which proposal the said William seemed pleased, and proceeded no further in the business at that time ; but went away, and after some days came back to the said office, and told the surveyor, that the entries of said Mason were so made that they would clash with each other, if surveyed otherwise than they then were ; and he did not see that the surveys could, be amended : whereupon, he took out the plats and certificates of survey, to return them to the register’s office, and actually did so ; which transaction happened at the office of the surveyor, about the 12th of September 1784. “ 6. That the lands, generally, over all the state of Kentucky, except the land reserved by law for entries, are involved in disputes, by different entries and surveys having been made for the same tracts. “ 7. That it was usual for the surveyors, to survey entries, agreeable to the directions of the proprietors, or their agents, when such directions were given. “ 8. That a law, passed by the assembly of Kentucky, in 1792, prohibited any further entry of land with the surveyors, and that ever since that time, no land could be appropriated by virtue of land-warrants. “ 9. That the practice of entering for land, was a general strife for the best legal entry. I “10. That George Mason’s entry of 8400 acres, made the-17th day of October 1780, is surveyed on Panther creek, and a large branch thereof ; and not on either of the main forks of said creek, as appears by the plat; and that the survey of 8300 acres, being the land in controversy, adjoining the last-mentioned survey, above, on said creek, and described in the plat in * , this cause by *the letters and figure, A. E. F. 8, is claimed by the - * defendant Mason, as a survey made by the said Mason, on an entry of his, dated the 29th day of April 1780, for 8300 acres of land ; is on said creek and a branch thereof, and not on either of the main forks, as appears by the plat. “ 11. That the place designated in the corrected plat, by the letter A., on the south side of Panther creek, is the place called for by the plaintiff, as the beginning corner of his entry of 40,926 acres, and described agreeable to the plat. “ 12. That it was a practice in the office of William May, surveyor of Jefferson, with whom the defendant Mason’s entries were made, and by whose deputy-surveyor, James Hord, the defendant’s surveys were made, to alter surveys discovered to be erroneous or wrong, after they were recorded, and survey them aright, without further or additional expense to the owners of such entries, and to proceed on the plats of the amended surveys, as the proper plats of the legal survey. “ 13. That the said Hord, when on his way to make said surveys, called on said surveyor of Jefferson, for copies of the defendant’s entries, and on seeing them, was struck with the variance between the calls of the entries and his instructions, in point of location, and on that account, did not return the plats of the said surveys, until he had seen Hubbard Taylor, and showed 32 1801] OF THE UNITED STATES. 52 Wilson v. Mason. them to him, and represented his opinion of such variance ; but on their being shown to the said Taylor, he directed said surveys to be returned as they were then made. “ 14. That the said Hord was fully informed of the forks of Panther creek, when he was making said defendant’s surveys, and saw the same, and about the same time at which he made the defendant’s said surveys, and before he returned from doing the same. (Signed) Daniel Weisiger, Foreman.” “We of the jury do find the following facts for the defendant Mason : *“ 1. That the entry made in the name of George Wilson, April 9th, 1784, of 46,926 acres, on the south side of Panther creek, claim- L ing under which the said Wilson entered this caveat, although made in his name, was made for the benefit of Christopher Greenup and John Handley, as well as for his benefit, and that the said Greenup and Handley were, at the time of making the entry, and long since, partners with him in the same. “ 2. That John Handley, then a deputy-surveyor of the county, made the said entry of 40,926 acres, for himself and the other partners ; and before he made the same, had obtained information of the surveys made for George Mason, on his entries of 8300, and 8400 acres, on the south side of Panther creek, from the surveys then in the office of the surveyor. " 3. That the said George Wilson, Christopher Greenup and John Hand-ley, had, before and at the time the said entry of 40,926 acres was made, notice of the place where, and the manner in which, the surveys had been made for George Mason, on his entries of 8300 acres, and 8400 acres, on the south side of Panther creek. “ 4. That John Handley, before the said entry of 40,926 acres was made, had notice that the land now in dispute in this caveat, had been included in Mason’s survey, on his entry of 8300 acres. “ 5. That the surveys, made for the said Mason, on his entries of 8400, and 8300 acres, on the south side of Panther creek, were returned to the office of the surveyor of the county, in the course of the fall, 1783. (Signed) Daniel Weisiger, Foreman.” The judgment of the district court of the United States for the district of Kentucky, at June term 1800, in the caveat of Wilson v. Mason, was, “ That the defendant hath the better right to the land in controversy ; it is, therefore, ordered, that the caveat be dismissed, and that the defendant recover against the plaintiff his costs in this behalf expended.” *In the caveat of Mason v. Wilson, the judgment was, “That the p-. plaintiff recover against the defendant so much of the land in con- L troversy as is included within the survey of 8300 acres, made by George Mason, on his entry of 8300 acres, entered March ^quaere? April) the 29th 1780, and designated in the corrected plat returned in the said other caveat, by the letters, D. E. F. 8, and also his costs by him about his suit in this behalf expended.” After these judgments were entered, Wilson, by his counsel, moved the court for a citation on a writ of error to the supreme court of the United States, to which Mason, by his counsel, objected, alleging that by the acts of assembly of Virginia, under which the plaintiff Wilson claimed, it is provided, that no appeal or writ of error shall be allowed on a judgment en- 1 Cranch—3 , 33 54 SUPREME COURT Wilson v. Mason. [Dec. tered on a caveat, and that, therefore, in this case, the plaintiff was precluded from claiming the benefit of a writ of error. But the court overruled this objection, and granted the citation; to which opinion, the defendant excepted, (a) (a) The following is the opinion of Judge Innes, who tried the cause in the district court; and which is alluded to in the subsequent arguments of counsel. After stating the facts of the case, he proceeds : The novelty of this case, the number of facts submitted and found by the jury, as well as the ingenious manner in which it was argued by the counsel of both plaintiff and defendant, have attracted my particular attention, and induced me to weigh the subject deliberately ; the result of my deliberations will appear from the following opinion. The first question which presents itself in this cause is, whether Mason has surveyed 8300 acres of land, contrary to his entry made the 29th of April 1780. The alteration of Mason, on the 27th day of October 1780, to the entry of 8400 acres, dated the 29th day of April preceding, is considered as a withdrawing of, and a total abandonment of the first entry. The first entry calling to lie about four miles above the mouth of the west fork, the second, four miles from the mouth of the main creek. The survey, therefore, of the 8300 acres is made contrary to the entry, as it adjoins the track of 8400, which is made in conformity to the new entry. This decision, that the land in question is surveyed contrary to entry, brings me to the principal question in this cause ; will Mason’s survey for 8300 acres of land, made contrary to his entry, secure the land to him, against the claim of Wilson, founded on a special entry, subsequent to the recording of Mason’s survey—Wilson having, before he made his entry, notice of the place where, and manner in which Mason had surveyed, and of the survey being recorded ? The parties to this suit are both considered as purchasers of the commonwealth (Chancery Revision of the Laws, p. 95, 96, § 3) ; the surveyor of the county, as her ministerial agent; who is authorized to receive warrants for land, make entries, survey the same, receive the surveys, when made, record the plat and certificate, within three months after it is returned to his office, provided, upon examination, he finds it-«truly made, and legally proportioned as to length and breadth. I will here take notice of two arguments urged by the plaintiff’s counsel, viz., that the word “ truly,” used in the law, when speaking of the duties of the surveyor, referred to a power over the entry; that it was his duty to see that the entry and survey agreed. This would be a dangerous construction of the law, as it would authorize the surveyor to determine the rights of claimants, and to judge in his own cause, where a survey should he made that interfered with a claim of his, I conceive him ministerial, except in two cases; he is to examine the plat, that it is truly made: i. e., to see that the courses of the survey are truly laid down, and that it contains its complement of acres. It is to this part of his duty that the word truly refers. Again, he is to examine the legal proportion of the plat. In these two cases, he acts judicially ; and it is right he should be vested with such a power ; because, as he acts generally by deputy, it enables him to correct the work of his deputy, and also to prevent improper combinations between the employer and deputy. The second argument alluded to is this : that neither the entry-book, nor book for entering surveys, are record-books ; and that legislative interference was necessary to constitute them such. (Ch. Rev. 96, 220.) They are books directed to be procured by law. The surveyor is a sworn officer, commissioned agreeable to law. Copies of entries and copies of surveys, attested by him, are good evidence in a court of justice. I, therefore, consider every entry, and every survey, entered in these books, as being of record, and equally valid with those which are usually styled records. Mason, a purchaser of the commonwealth, having surveyed contrary to his entry, returns the survey to the surveyor’s office, where it is examined and recorded, before the claim of any other person appears to the land. Can the commonwealth destroy 34 1801] OF THE UNITED STATES. *55 Wilson v. Mason. *This cause was argued at last term, by Daveiss and C. Lee, for the plaintiff in error, and Jones and Mason, for defendant. *Daveiss, for plaintiff in error.2—As the counsel for the defendant in error have objected to our right of appeal in this cause, I shall, at L Mason’s survey and refuse her grant to the land ? The law has pointed out no mode hy which the commonwealth can set aside Mason’s survey, for her own benefit; neither was such a provision necessary ; because he had paid the purchase-money, for so many acres of unappropriated land. It was vacant ; and so soon as his survey was recorded, his warrant was carried into full execution, and the entry of 8300 acres became vacant, and reverted to the commonwealth, there being no warrant in the surveyor’s office to cover it, the warrant being returned to the owner with the plat and certficate of survey. Or, being recorded, is the same thing in effect, as it can never be again acted upon, being executed by actual survey. (Ch. Rev. § 3, p. 95, 96.) Any practice to the contrary, I deem illegal, and contrary to law. From this statement of facts, I determine Mason’s right to be good against the commonwealth. As the commonwealth can take no advantage of Mason’s surveying, contrary to entry, shall Wilson, by his subséquent special entry, when he had full and perfect knowledge of the place where Mason’s survey was made, and of its being recorded? There are only two ways of destroying a man’s right to a tract of land. By caveat, after survey and before the title is complete ; or, by a suit in chancery after the grant has issued. In the present case, Wilson has chosen to enter a caveat to prevent the emanation of a grant to Mason ; alleging that Mason has surveyed contrary to entry, and that it is vague, for which reasons he claims the land by virtue of a special entry. There are four causes stated in the land-law which authorize the entering of a caveat 1. Failing to register the plat and certificate of survey, within twelve months after making the survey : 2. If the breadth of the plat be not one-third of its length : 3. If any person shall obtain a survey of land to which another' hath by law a better right, the person having such better right may in like manner enter a caveat, &c. : 4. If the plaintiff in a caveat recover judgment and fails to deliver the same, &c., into the landoffice, within six months after judgment, it shall be lawful for any person to enter a caveat, &c. The first two and fourth causes are penalties which any person may take advantage of, and do not apply to the present case. The third requires an existing right in the caveator, at or before the time the survey caveated is recorded. From an attentive consideration of this passage in the law, it conveys to me this idea : “ Shall obtain a-survey of lands,” means, subsequent to the passing of the law, and after the survey is recorded ; and not from the making, because the survey is not complete until it is recorded; neither could he “obtain” it, until the surveyor has performed that part of his duty, after which it is to be delivered to the proprietor with the warrant. Previous to the recording, I consider the survey to be under the direction of the owner, and that he may make any alteration he pleases in it, but not after ; although a different practice has prevailed, and which, upon inquiry, will be found to be contrary to law. It is important to this cause, to consider another passage in the same sentence of the law; “to which another hath by law a better right.” The word hath is in the present tense, and refers to the time of obtaining the survey. If my construction relative to the word obtain be right, the claim of the caveator must exist, before or at the time of recording the survey. I am confirmed in the propriety of this interpretation of the law, for the following reasons. If a deputy-surveyor makes a survey, the principal ought not to sign it, until it is recorded ; then the signature makes it ready to be delivered. If made by the principal, he will not deliver it, before it is recorded. The survey cannot be considered as complete, until all the requisites of the law be performed ; the party is then entitled to it. Neither will the register of the land-office receive it, without that formality. Without these requisites, it is of no more value 35 56 SUPREME COURT Wilson v. Mason. [Dec. first, confine myself to that point ; because, if the court should agree * *with them in opinion on that question, much time will be saved and -* much useless discussion prevented. It is contended, that by the laws of Virginia, upon which the title to the land in dispute depends, and which give the remedy *by caveat, no appeal or writ of error will lie. The J land-law of Virginia, as it is called, viz., the act of May 1779 (Chancery Revision of the Laws of Virginia, p. 94), entitled “ an act for establishing a land-office, and ascertaining the terms and manner of granting waste and unappropriated lands,” which directs the manner of proceeding upon caveats, enacts, that “ the court ” (that is, the general court) u shall proceed to determine the right of the cause in a summary way, without pleadings in writing ; impannelling and swearing a jury for the finding of such facts as are material to the cause, and are not agreed by the parties ; and shall thereupon give judgment, on which no appeal or writ of error shall be allowed.” This law, it is said, was in force at the time of the separation of Kentucky from Virginia; and that by the act of assembly of Virginia, of December 1789 (Rev. Code, p. 56, § 7), which prescribes the terms upon which Kentucky might become an independent state, after the 1st of November 1791, it is provided, that all private rights and interests of lands, within the said district, derived from the laws of Virginia, prior to such separation, than waste paper ; it cannot, therefore, be said to be “ obtained,” without their being performed. The first two and fourth causes, which justify the entering a caveat, I have already said, do not apply to the present case. It remains to be considered, whether Wilson has pursued the statute, so as to bring his case within the third cause: Had he “ a better right ” to the land surveyed for Mason, and for which he has instituted this suit, than Mason had, at the time the survey was recorded ? A caveat is a new and summary mode of proceeding, in derogation of the proceedings at common law, instituted by statute; it is necessary, therefore, to pursue the statute strictly, and show to the court that the caveator has a clear right to pursue that mode of proceeding. 1 T. R. 141. Wilson’s entry was made on the 9th day of April 1784. To the date of his entry, I fix the commencement of his claim to the land in controversy, it being the first certain and evident act of ownership manifested by him; which is upwards of four months after Mason’s survey had been recorded. As Wilson’s right did not exist at the time Mason’s survey was recorded, he has failed to prove the better right required by law ; neither has he pursued the statute, by assigning proper causes for caveating. Surveying contrary to entry, or making a vague entry, are not stated in the law, as exceptions to a survey, or causes for entering a caveat. True it is, that there are instances in which surveying contrary to entry would be a good cause of caveating. But this is where there is an existing right, before the survey is made or obtained ; and the question would then rest on having the better right to the land. The favorable light in which surveys have been viewed by the legislature is apparent in all the laws which have been enacted respecting the titles to land. They are all to be considered as one law, forming one general system on the same subject.1 The surveys here alluded to were injurious to the interest of the commonwealth, but being made by the proper officer, were confirmed. In this case, the commonwealth is not injured, and Wilson, through his partner, Handley, had every information necessary to guard him against an interference with Mason’s survey. 1 Many acts passed the Virginia legislature, giving further time to return plats, &c. 36 1801] OF THE UNITED STATES. 58 Wilson v. Mason. shall remain valid and secure, under the laws of the proposed state, “ and shall be determined by the laws now existing in this state.” *But we shall contend : 1st. That the jurisdiction and powers of this court do not depend upon the laws of Virginia, but upon the L constitution of the United States, and the acts of congress. 2d. That the laws of particular states lose their force, when they contravene the acts of congress. 3d. ‘That by the law of Virginia a right of appeal is allowed upon a caveat. 1. By the constitution of the United States, Art. III. § 2, “ the judicial power shall extend ” “ to controversies between citizens of different states,” and in all cases, except where a public minister, or a state, shall be a party, “ the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the congress shall make.” Congress have not excepted the present case ; it, therefore, follows, that by the constitution of the United States, this court has appellate jurisdiction of the cause. 2. By the constitution of the United States, Art. VI., “this constitution, and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land ; and the judges, in every state, shall be bound thereby, “ anything in the constitution or laws of any state to the contrary notwithstanding.” By the 10th section of the judiciary act of Considering the parties both as purchasers of the commonwealth, deriving their claims from the same source; Mason as the first, and Wilson as the second, the following principles will apply in this case respecting notice. Lord Hardwicke said, in the case of Le Neve v. Le Neve (Amb. 446; 3 Atk. 634); “that the taking of a legal estate after notice of a prior right, makes a person a mala fide purchaser, and is a species of fraud.” If a person does not stop his hand, but gets the legal estate, when he knew the right in equity was in another, he will be rebutted by this maxim, “fraus et dolus nemini patrocinari debent.” In the case of Abney®. Kendall (1 Eq. Cas. Abr. 330, pl. 1; 1 Chan. Ca. 38),1 it was determined, that if A., having notice that lands were contracted to be sold to B., purchases those lands, and takes a conveyance, it shall destroy the purchase, and the land shall be reconveyed to B. Mason being considered the first purchaser of the commonwealth, having obtained his survey through the means of her agent (though contrary to entry, yet of which she can take no advantage, and which worked no iniquity to any person, the land being vacant), by recording the survey, the entry above the forks of the creek was abandoned. Wilson having notice, before he made his entry, that Mason had appropriated the land by the recording of the survey, cannot support his claim under the statute ; judgment, therefore, must be entered for the defendant. The preceding pages contain my opinion delivered in the 'caveat, George Wilson against Richard Mason, devisee, &c., at the June term 1800, of the district court of the United States for the Kentucky district. As the principles on which the decision was founded will be brought before the supreme court of the United States, where I can have no opportunity .of assigning my reasons in support of the judgment, with due deference, I solicit the court to permit the opinion to be read; by which the principles which governed me in the decision will appeal* fully before the court which is to reverse or affirm the judgment I have given between the parties. This request is grounded upon this single consideration, that what I have been officially obliged to do, may be examined, before a final inquiry is had respecting my judicial acts. (Signed) Harry Innes. May 18th, 1801. 11 Chan. Cas. 38, Merry v. Abney, the father, Abney, the son, and Kendall. 37 59 SUPREME COURT [Dec. Wilson v. Mason. 1789, the district court of Kentucky has jurisdiction of all cases by that act made originally cognisable by the circuit courts, and it is enacted, that “writs of error and appeals shall lie from decisions therein, to the supreme court, in the same causes, as from a circuit court to the supreme court, and under the same regulations.” This cause having been removed by the defendant Mason, from the state court into the district court of the United States for the district of Kentucky, under the 12th section of the judiciary act of 1789, is to “proceed in the same manner as if it had been brought there by original process.” And by the 22d section, “final judgments and decrees in civil actions in a circuit court, brought there by original process, *anl or remove^ there from courts of the several states,” * where the mat--* ter in dispute exceeds $2000, may be re-examined, and reversed or affirmed, in the supreme court. A cause may be removed into a circuit court, from a supreme court of a state, from which, by the laws of the state, no appeal or writ of error would lie ; and if the principle contended for by the opposite counsel is correct, it would equally prevent this court from taking cognisance of a writ of error in that case, as in this. Besides, the question, whether a writ of error or appeal will or will not lie upon a caveat, does not affect the title to the land ; and the act of assembly of Virginia, of December 1789, was only intended to protect the rights to land in Kentucky acquired under the laws of Virginia. It says, “ the rights and interests of lands shall be determined by the laws now existing,” and does not say that Kentucky may not give a further remedy. 3. A right of appeal upon a caveat did exist in Virginia, at the time of passing the act of assembly of December 1789, c. 53, respecting Kentucky. By the act of the Virginia assembly, October 1788, c. 67, §11, 12, the cognisance of caveats was given to the district courts, and by the 16th section of the same act, an appeal is allowed as of right in all cases. The act of December 12th, 1792, § 6, 9 (Rev. Code, p. 80, 81), re-enacts those clauses of the act of 1788. Mason, for defendant in error.—It is not denied, that the acts of congress are, in many cases, paramount to the laws of the individual states; but even a general position of that kind will not decide the present question. This action was brought in a state court, under a state law, before congress legislated upon the subject, and even before congress, or the constitution of the United States, had an existence. Can such an action be affected by subsequent acts of congress ? The law by which Kentucky was erected into a separate state passed the Virginia legislature, in December 1789. This is an unalterable law, em-*.,,-1 bracing the citizens *of both states. It is a compact by which they J mutually agreed that the rules of property should not be altered. If we admit, that by the act of 1792, appeals were allowed in the case of caveats, the admission proves nothing in the present question, because the law of 1789 is an unalterable law, and confined to the then existing state of things. It was not in the power of one of the contracting parties to change the terms of the compact. But it is said, that there was a right of appeal at the time of that compact. Let us examine the laws relative to this 'Subject. The first act is 38 1801] OF THE UNITED STATES. 61 Wilson v. Mason. that of 1779, mentioned by the opposite counsel, which declares that caveats shall be tried in the general court, and that there shall be no appeal or writ of error. The next is the act of 1788, which transfers the jurisdiction of the general court to district courts, and declares that “ they shall have the same jurisdiction concerning caveats ” “as the general court heretofore had by law.” But the jurisdiction which the general court heretofore had by law was an exclusive and final jurisdiction, from which there could be no appeal. If, then, the district courts were to possess the same jurisdiction, it must be an exclusive and a final jurisdiction. But it is said, that by the same act of 1788, an appeal in all cases from the district court, was a matter of right. This must evidently mean in all cases where a right of appeal before existed from the general court to the court of appeals; but cannot be understood to give an appeal, in a case where it had been expressly excluded by an existing law. The intention of the legislature was, to put the district court, as to all cases arising within the district, exactly in the place of the general court, and to give them the same jurisdiction, to be exercised in the same manner, with the same limitations, and liable to appeals only in the same cases. But the act of 1788, erecting district courts on the eastern waters, did not affect Kentucky. The legislature had, before, by an act passed in 1782, erected a court on the western waters, called the supreme court for the district of Kentucky, to which it had transferred all the powers and jurisdiction theretofore exercised by the general court of Virginia; and with the rest, the power to try caveats and to give judgment thereon, without any appeal or writ of error to their judgment. The act of 1788 did not take away the *exclusive cognisance which the supreme court for the district of Kentucky had respecting caveats, but they L retained it, until the final separation of Kentucky from Virginia; after which, the legislature of Kentucky passed no law authorizing an appeal; so that under the state laws, it is clear, that no appeal or writ of error would lie. There being then no appeal under the state laws, the question will be, simply, whether a writ of error will lie to the district court of the United States for the Kentucky district, upon an action carried there from the state court, which, under the laws of the state, had a final and exclusive jurisdiction of the cause. The 22d section of the judiciary act of 1789 (1 U. S. Stat. 84), which allows appeals and writs of error, generally, did not contemplate a case like the present. This court is bound to take notice of the laws of the several states. By the 34th section of the same judiciary act (p. 92), the laws of the several states are to be the rules of decision, in cases where they apply. The remedy by caveat is given by the state law, and the party who chooses to take that remedy, must take it with its condition annexed, that no appeal or writ of error shall be allowed. A purchaser under the commonwealth of Virginia acquires his right under this condition. It is a part of the contract, from which this court cannot absolve him. The parties to this suit are not the only parties interested in this question ; for while the right is hung in dubio, whilst it is. uncertain to whom the grant ought to issue, the state taxes cannot be collected, the commonwealth having no tenant to whom to resort. Wilson has sought the summary process by caveat, and ought to be bound by the restrictions of that law under which he claims his remedy. He was not compelled to use the summary remedy; he might have resorted to 39 62 SUPREME COURT Wilson, v. Mason. [Dec., chancery, and then the commonwealth would have had a tenant to pay the taxes. He ought not to have the benefits of this kind of process, without submitting to the inconveniences which may be. supposed to attend it. If this opinion is correct, although the laws of the United States provide generally that writs of error may be had, they can only give them as a remedy, where a right exists ; and if Wilson’s right is gone, by the judgment of the court below, he is precluded from suing it out, by the statute under which Jie claims. *„„1 in reply.—This caveat is brought from the district court of J the United States, and not from a state court. It is true, that it originated in the state court, but it was the defendant, Mason, and not Wilson, the plaintiff, who brought it into the court of the United States ; and if the judgment of that court becomes thereby liable to be reversed upon a writ of error, it is a consequence attributable to the act of Mason alone. There is nothing peculiar in the nature of the proceeding by caveat, to exclude it from the general appellate jurisdiction which is given to this court by the constitution and laws of the United States. It is not true, that this court are to look into the laws of Virginia for their right to correct the errors of the inferior courts of the United States. When a cause is brought from a state court into a court of the United States, it is to be proceeded upon, as if it had originated in the latter court, and the act of congress has expressly provided for an appeal or writ of error, in the very case of an action removed from a state court into an inferior court of the United States. Unless this ease can be shown to be within some express exception to the general rule, none ought to be presumed by implication. With regard to the compact between Virginia and the inhabitants of Kentucky, it is true, that in all matters of substance, where the right of property depends upon it, it is binding upon this court; but in matters of form only, it could never receive the strict construction contended for, even between the parties themselves. The reasoning of the opposite counsel would go to prove that every caveat, depending upon the laws of Virginia, must be tried in the courts of Virginia only, because they had the sole right of trying a caveat, at the time of the compact. It would prevent the states of Virginia and Kentucky for ever from modifying and regulating their system of courts, and neither state could ever afterwards authorize an appeal upon caveat. But an appellate jurisdiction on caveats did exist in Virginia, at the time of the compact. It appears by the act of congress (1 U. S. Stat. 189), that Kentucky did not become an independent state until June 1792. The * , county *courts of Virginia had, before that time, cognisance of cav- J eats as to lands within their respective counties (Laws of Virginia, Rev. Code, p. 92, § 11), and in p. 88, § 53, an appeal is given from the county courts to the district courts, in all cases of a certain value, or where the title of land is drawn in question; and in p. 69, § 14, an appeal or writ of error is flowed from the district courts to the court of appeals, in the same manner as from the county to the district courts. As to taxes, the state may tax the land, before any patent has issued, if they think proper. It is not necessary that there should be a tenant. The Court directed the counsel to proceed in the further argument of the cause, observing, that they would consider this point with the others. 40 1801] OF THE UNITED STATES. ] ; 64 Wilson v. Mason. Lee, for the plaintiff in error.—The question is, who has the better right to the grant for 8300 acres of land, surveyed for George Mason on the 2d of October 1783? 1. The decision of this controversy depends on the laws of Virginia, prescribing the terms and manner of acquiring title to waste and unappropriated lands ; with which there must be a legal and exact compliance, (a) Ac- (a) The following is the substance of those parts of an act of assembly, which are material to this cause, contained in the Chancery Revision of the Laws of Virginia, published in 1785, by order of the general assembly (p. 94), entitled “ An act for establishing a land-office, and ascertaining the terms and manner of granting waste and unappropriated lands,” May session 1779. The preamble recites, “ Whereas, there are large quantities of waste and unappropriated lands within the territory of this commonwealth, the granting of which will encourage the migration of foreigners hither, promote population, increase the annual revenue, and create a fund for discharging the public debt, be it enacted,” &c. § 1. That an office be constituted for the purpose of granting lands, and a register of the said land-office be appointed, &c. § 2. That any person may acquire title to so much waste and unappropriated lands as he or she shall desire to purchase, on paying the consideration of 40 Z. for every 100 acres, and so in proportion, &c. § 3. Register to grant printed warrants, under his hand and seal of office, specifying the quantity of land, and the rights upon which it is due, authorizing any surveyor, duly qualified, according to law, to lay off and survey the same, “ which warrants shall be always good and valid, until executed by actual survey no warrant to be issued other than pre-emption warrants, before the 15th of October 1779. No surveyor to admit the entry or location of any warrant, before the 1st of May 1780. A surveyor to be appointed in every county. “Every person having a land-warrant founded on any of the before-mentioned rights, and being desirous of locating the same on any particular waste and unappropriated lands, shall lodge such warrant with the chief surveyor of the county wherein the said lands or the greater part of them lie, who shall give a receipt for the same, if required. The party shall direct the location thereof, so specially and precisely, as that others may be enabled with certainty to locate other warrants on the adjacent residuum: which location shall bear date on the day on which it shall be made, and shall be entered by the surveyor in a book to be kept for that purpose, in which there shall be left no blank leaves or spaces between the different entries. “The surveyor, at the time of making the survey, shall see the same bounded plainly by marked trees, except where a water-course, or ancient marked line, shall be the boundary, and shall make the breadth of each survey at least one-third of its length, in every part, unless where such breadth shall be restrained on both sides by mountains unfit for cultivation, by water-courses, or the bounds of lands before appropriated. He shall, as soon as it can conveniently be done, and within three months at farthest, after making the survey, deliver to his employer, or his order, a fair and true plat and certificate of such survey, the quantity contained, the hundred (where hundreds are established in the county wherein it lies), the courses and descriptions of the several boundaries, natural and artificial, ancient and new, expressing the proper names of such natural boundaries, where they have any, and the name of every person whose former line is made a boundary ; and also the nature of the warrant and rights on which such survey is made. The said plats and certificates shall be examined and tried by the said principal surveyor, whether truly made and legally proportioned as to length and breadth, and shall be entered, within three months at farthest after the survey is made, in a book, well bound, to be provided by the court of his county, at the county charge. “ Ev ery person for whom any waste or unappropriated lands shall be so located *65 SUPREME COURT [Dec. Wilson v. Mason. cording *to these laws, there must be a warrant, an entry and a survey; the warrant being the foundation of the entry, and the entry directing and controlling the survey. If the *entry be made without a war-J rant, or if the survey be made of other land than that described in the entry, in either case there is a defect of title. *In this caveat, one of the causes assigned is, that the survey of J Mason was made, contrary to his entry, and this we conceive to be a fatal defect in his title. 2. The entries made on the 29th of April 1780, by G. Mason (from whom the defendant derives his title), of his two warrants, No. 1, for 8400 acres, and No. 2, for 8300 acres, were valid and sufficient entries of land on the east side of Panther creek, and above the mouth of the west fork thereof, at the time those entries were made. The entry of warrant No. 1, is “ on 8400 acres and laid off, shall, within twelve months at farthest after the survey made, return the plat and certificate of the said survey into the land-office, together with the warrant on which the lands were surveyed, and may demand of the register a receipt for the same, and on failing to make such return within twelve months, as aforesaid, or if the breadth of his plat be not one-third of its length, as before directed, it shall be lawful for any other person to enter a caveat in the said land-office against the issuing of any grant to him, expressing therein for what cause the grant should not issue; or if any person shall obtain a survey of lands, to which another hath by law a better right, the person having such better right may in like manner enter a caveat to prevent his obtaining a grant, until the title can be determined; such caveat also expressing the nature of the right on which the plaintiff therein claims the said land. The person entering any caveat shall take from the register a certified copy thereof, which, within three days thereafter, he shall deliver to the clerk of the general court, or such caveat shall become void; the said clerk, on receiving the same, shall enter it in a book, and thereupon issue a summons, reciting the cause for which such caveat is entered, and requiring the defendant to appear on the seventh day of thesucceeding court, and defend his right; and on such process being returned executed, the court shall proceed to determine the right of the cause, in a summary way, without pleadings in writing ; em-pannelling and swearing a jury for the finding of such facts as are material to the cause, and are not agreed by the parties; and shall thereupon give judgment, on which no appeal or writ of error shall be allowed; a copy of such judgment, if in favor of the defendant, being delivered into the land-office, shall vacate the said caveat; and if not delivered within three months, a new caveat may for that cause be entered against the grant; and if the said judgment be in favor of the plaintiff, upon delivering the same into the land-office, together with a plat and certificate of the survey, and also producing a legal certificate of new rights on his own account, he shall be entitled to a grant thereof; but on failing to make such return and produce such certificates, within six months after judgment so rendered, it shall be lawful for any other person to enter a caveat, for that cause, against issuing the grant; upon which subsequent caveats, such proceedings shall be had, as are before directed in the case of an original caveat; and in any caveat where judgment shall be given for the defendant, the court shall award him his costs “ and in case the plaintiff in any such caveat shall recover, the court may, if they think it reasonable, award costs against the defendant. “ And for preventing hasty and surreptitious grants, and avoiding controversies and expensive law-suits, be it enacted, that no surveyor shall, at any time within twelve months after the survey made, issue or deliver any certificate, copy or plat of land, by him surveyed, except only to the person or persons for whom the same was surveyed; or to his, her or their order ; unless a caveat shall have been entered against a grant to the person claiming under such survey, to be proved by an authentic certificate of such caveat from the clerk of the general court, produced to the surveyor.” 42 1801] OF THE UNITED STATES. 67 Wilson v. Mason. of land, to begin on Panther creek, on the east side thereof, opposite to a beech on the west side, about four miles above the mouth of the west fork, and to run up and down the said creek, and eastwardly for quantity.” The entry of warrant No. 2, is “ on 8300 acres to begin at the upper corner of his 8400 acre entry, and run up the creek on the east side, and back for quantity.” 3. If the explanation made on the 27th October 1780, of the entry of warrant No. 1, on the 29th of April preceding, for 8400 acres, was a subtraction thereof from the land to which it had been applied, a matter not clear of doubt, and therefore not admitted ; yet the entry of warrant No. 2, upon 8300 acres, was not thereby affected, *but remained un-altered, unimpaired and unsubtracted from the land which it describes L with sufficient legal precision and certainty. The re-location of one warrant is not necessarily the re-location of another. If the warrant No. l,was transferred by a new entry, on the 27th of October 1780, to land some miles below the west fork of Panther creek, yet the warrant No. 2, having been legally located, on the 29th of April antecedent, upon a tract of land some miles above the west fork, remained appropriated to that tract of land. 4. The entry of 8300 acres, under warrant No. 2, being such a special and precise entry as the law requires, is an appropriation of the land described in it; and fixes that warrant upon that tract of land, situate upwards of four miles above the west fork of Panther creek : and the survey made by Mason of 8300 acres on the south side of Panther creek, and below the west fork thereof, and several miles below it, is not a survey of the same land contained in his entry. A survey, of itself, without a previous legal entry of a land-warrant, is not a legal appropriation of waste and vacant land ; and therefore, this survey, unsupported by a legal warrant and a legal entry, was no legal appropriation, by Mason, of the land in controversy; but an unlawful intrusion thereupon ; and the same land remained open’to the appropriation of others, who, having notice of the legal survey of Mason, were not precluded by law, or equity, from proceeding in due course of law, to obtain title to the same land which is described in that illegal survey which had been knowingly made by the agents of Mason, contrary to his legal entry. No grant of the land, therefore, ought to be made to the defendant Mason. 5. If the claim of the defendant be deemed invalid, then there is no impediment in the way of the plaintiff, whose warrants, whose entry, and whose survey, are perfectly conformed to law. The two causes assigned by Mason in his caveat against Wilson, are resolvable into one, viz., that having notice of the survey of Mason, it was not equitable, but fraudulent, *to acquire a title to the same land which r*gg was contained in that survey. But if the law be in favor of the L plaintiff, equity is also : for notice of illegal proceedings in one man to acquire property, is no equitable bar to another who shall in all respects proceed according to law. On the part of the defendant Mason, there was full and complete knowledge of Green river, Panther creek, and the west fork; and with this knowledge, a survey was made of a different tract than the one described and authorized by the entry No. 2, for the purpose of obtaining a grant, in evasion and fraud of the law. Such illegal proceeding ought not to be sus- 43 69 SUPREME COURT [Dec. Wilson v. Mason. tained in a court of justice, against another who shall respect and obey the law in all particulars. The entry of Mason for 8300 acres, on the 29th April 1780, begins at the upper corner of his entry for 8400 acres, as made on the same day. The entry for 8400 acres, well and accurately described a tract of land, lying on the east side of Panther creek, opposite a beech on the west side, and four miles above the west fork. This entry being sufficiently certain, the entry for 8300 acres must be certain also, and describes a particular tract of land, lying more than four miles above the west fork. The west fork was known by that name, to the agent of Mason, at the time he made the entries on the 29th April, having encamped thereabouts four or five weeks in the winter and spring, before he made the entries for Mason. It has always been known by that name, since the first exploring of that part of the country. He was informed, while the surveys were still in his power, that they did not conform to his entries, and shown the manner in which they differed, and yet he obstinately persisted in having them recorded. The warrant No. 2, then, was well and sufficiently located on the land above the west fork, and a removal of the location of warrant No. 1, even if such removal could be made according to law, could not he considered as a removal also of the location of No. 2, without an express declaration to that effect. The location of warrant No. 1 was changed, but the location of No. 2 was not. Mason has surveyed it, as if it was ; and hence results, the fatal difference between *his entry and his survey; by J which his survey is a mere void act, and cannot be the foundation of a claim to a patent. But it may be said, perhaps, that Mason’s survey of 8300 acres, although not authorized by a previous entry, yet, being made before AS iJson’s entry, and Wilson having notice of it, was good against Wilson as well as against the commonwealth. This is denied. As to the commonwealth, it was an intrusion ; and as to Wilson, the land was still vacant; it not having been appropriated in the manner authorized by law. Before a grant for land has actually issued, the only record of appropriations is the surveyor’s book of entries of locations. The book of surveys was not intended by the legislature as the book to resort to, for information as to appropriations ; it furnished no evidence of that kind. And as to notice, the principle is well established, that notice of an illegal act is no equitable bar to him who proceeds according to law ; Chapman v. Emery, Cowp. 280 ; and Doe v. Routledge, Ibid. 708, 711, 712, where Lord Mansfield states the reason for the principle to be, “ because if he knew the transaction, he knew it was void by law.” Gooch?s Case, 5 Co. 60 Sy Tonkins v. Ennis, 1 Eq. Cas. Abr. 334 ; Powell v. Pleydell, 2 Ibid. 682. Notice could not make that act valid, which was void at law. A survey is not the act of appropriation which the law requires. The land, not being appropriated according to law, was such waste and unappropriated land as the act of assembly says any person may acquire a title to, on complying with the terms and by taking the steps prescribed by the act; and Wilson, or any other person, might lawfully appropriate the land, by proceeding regularly according to law. Mason, then, not having taken the steps required by the act of assembly, had no title at law ; and having illegally made his survey, with a full knowl-44 1801] OF TIIE UNITED STATES. 10 Wilson v. Mason. edge of all the circumstances, and after having been warned of his error, has certainly no right in equity. Before he obtained a grant, Wilson, by pursuing the steps of the law, acquired a better right, and was thereby entitled to bring his caveat and obtain a judgment in his favor. ^Daveiss, on the same side.—Notice cannot alter the law, except where the law requires notice. Where a statute requires notice, and *• prescribes the mode, notice in another mode is not sufficient. King v. Newcomb, 4 T. R. 368 ; Amb. 444,445. This is a case in which Wilson and Mason are both contending de damno evitando. The jury have found that, by a law passed by the assembly of Kentucky, in 1792, all further entries of land with the surveyors are prohibited, and that ever since, no land could be appropriated by virtue of landwarrants. Consequently, the princple applies which is laid down by Lord Kaims, in his Principles of Equity, p. 26, 27, 162, 163, 199, “that it is a universal law of nature, that it is lawful for one, certans de damno evitando, to take advantage of another’s error.” A warrant is a transitory chattel, until it has been located according to law. The entry is the appropriation of a particular tract of land, and the fixing of the warrant to that tract. The survey is of no effect, unless it be a survey of the tract so appropriated. In support of these positions he cited Swearingen v. Higgins, Hughes 4; Dougherty v. Crow, Ibid. 21; Isaacs v. Willis, Ibid. 12; Owen v. Wilson, Ibid. 64; Hitey. Stevenson, Ibid. 16; Consilla v. Briscoe, Ibid. 43; Swearingen v. /Sawa^Ibid. 47; Miller’s Heirs v. Fox, Ibid. 51; Smithy. Bradford, Ibid. 55; Fry v. Essery, Ibid. 53, and other cases in the same book, (a) It will probably be contended by the defendant, that the intention of the assembly in requiring an entry, was to give notice to subsequent purchasers; and that notice given or gained in any way is sufficient. But it has been shown, that here was no appropriation by Mason ; and that the land, until appropriated, is waste. The land-law shows this, because nothing but a regular title is protected by that law. In a statute introducing a new law, or prescribing the mode of acquiring new rights, affirmative words imply a negative of all other modes of acquiring that right, or fulfilling the terms of that law. The land-law, by giving one way of acquiring titles, negatives all other modes. In 4 Bac. Abr. 641, it is said, “ If an affirmative *statute, which is introductive of any new law, limits a thing to be done in one *■ manner, it shall not, even where there are no negative words, be done in any other;” and the following cases are there cited : Standing v. Morgan, Plowd. 206 b ; Slade v. Drake, Hob. 298; Wethen v. Baldwin, Sid. 56. He cited also Thornby v. Fleetwood, 1 Str. 329, and The King v. Burr age, 3 P. Wms. 458-61. Where a certain mode is pointed out by a statute, in which a title may be obtained, a conformity to that mode is a condition precedent, without complying with which, no title can be obtained. In the present case, a warrant, an entry, and a survey ape conditions precedent, and a want of either is fatal. Dee.—In the 10th fact found by the jury for the plaintiff, it is stated, the survey of 8400 acres was made on the entry of the 17th of October, and (f) On the argument, these cases were cited from a manuscript volume. Hughes’ Reports not having been published until 1803. 45 72 SUPREME COURT [Dec. Wilson v. Mason. that the survey of 8300 acres was made on the entry of 29th of April. This must prevent the defendant from arguing that the latter survey was made on the entry of October, as well as from pretending that the entry of October applies to the entry of 8300 acres made in April. In order to prove that all lands, not entered for in a regular manner, were to be considered as waste and unappropriated, he cited the case of Jones v. Williams, 1 Wash. 231 ; in which the court call lands waste and unappropriated, although they had been settled and occupied for years. Mason, for defendant in error.—1st. The entry of Mason, upon which his survey of 8300 acres was made, is sufficiently certain, and the survey is in conformity to the entry. 2d. Admitting that the entry was vague, and not corresponding with the survey, yet, Mason having paid for the land, and surveyed it, quoad the commonwealth, he was a bond fide purchaser, for a valuable consideration, and entitled to the land, provided no step had been taken *by any -* other person to acquire title to this land, previous to Mason’s survey. 3d. Mason having appropriated this land, by a survey actually made, returned to the surveyor’s office, and recorded, the land ceased to be waste and unappropriated land : and Wilson having a perfect knowledge of these facts, before and at the time he made his entry, was and is (if he could acquire title at all) in the character of a second purchaser, with notice of a prior sale of the same land, and therefore, was a fraudulent purchaser. 4th. The plaintiff in error is not, under the provisions of the law, entitled to a caveat in this case, because the better right, which the law meant to protect, was a right existing before or at the time the survey to be caveated was made. I. The entry of 8300 acres is sufficiently certain, by its reference to the entry of 8400 acres. The surveys of both entries are upon the identical tracts originally intended to be located. The first description of them, in April 1780, was inaccurate, on account of the mistake in the names of places. The particular forks and branches had, at that time, scarcely acquired any names at all. The facts stated in this case do not admit that the names of the places were known before the beginning of the year 1780, which is the very time when the entries were made. It does not appear, that the place now called the mouth of west fork, was known by that name, before Mason made his entries. It may be a name since acquired, or given by the surveyor or his deputies, who are the persons that generally give names to places in new countries. So soon as the fall of the same year. Mason found that the description was not sufficiently accurate, and made an explanatory entry, declaring what place he meant by the mouth of the west fork, and stating it to be the forks of Panther creek where it mouths into Green river. A mistake of that kind was by no means improbable, in the then wild and uninhabited state of the country on and about Green river, when it was dangerous, on account of the Indians, to attempt to set a compass. That such mistakes were general, is evident, from the names of places which were given. Thus, the west fork is, in fact, a north-east fork ; *741 *w^a^ is called the east side of Panther creek, is truly the south-west J side. The entry of April was, in substance, the location of the tract surveyed; and the memorandum of Mason, in October, was only fixing with 46 1801] OF THE UNITED STATES. 74 Wilson v. Mason. more accuracy, what was before in some degree vague. If this was the fact, then the entry of October was not a re-location of the warrant; it was never removed, but was always fixed to one and the same spot of earth. If, then, the entry of October is nothing more than it purports to be, viz., an explanation of the name of a place which was before uncertain, this same act of explanation, which rendered certain the location of warrant No. 1, must, of necessity, also render certain the location of No. 2, which depends, for its beginning, upon the location of No. 1. Id certum est, quod certum reddi potest. The two locations are dependent upon, and connected with, each other ; and the explanation of the first must also explain the second. It is evident, that it was Mason’s intention that the two tracts should lie alongside of each other, and the rendering certain the first, upon which the second was dependent, could never be considered as withdrawing the one from the other, and placing them many miles asunder. If it was Mason’s intention, in October, to make a new location, why did he not avow it ? No person had applied to appropriate the land he wanted. No one had interfered, or was about interfering, to take up that tract. There was nothing to prevent him from expressly withdrawing the entry of April, and making an entire new location. But his object was, not to remove the location which he had actually made, but only more fully to explain the ideas which he had at first intended to express, but which, on account of the inaccurate knowledge of the names of places, and of the real geography of the country, he had failed to do. Taking, then, the entry of October as an explanation only, it applies as well to fix the true location of warrant No. 2, as of No. 1 ; and the survey of No. 2, is as correspondent to its entry as that of No. 1, is to its entry. Nothing can more clearly prove Mason’s intention to be, to explain, and not to remove his entries of April 1780, than his omitting to say anything respecting his former entry of 8300 acres, at the time he was explaining the entry of 8400. Because, having no idea that his act * would be con-strued to be anything more than an explanation, it must apply as L well to the former as to the latter. But if his intention had been to remove the location of warrant No. 1, he would either have expressly removed No. 2, at the same time, or else would not have ordered the survey of No. 2, to be made contiguous to that of No. 1. He might as easily have explained No. 2, as No. 1. Words are but the representatives, and not always the true representatives, of ideas. They do not always express, nor are they the uncontrollable evidence of the ideas of the person using them. They may be explained by the tone of the voice, by the emphasis, by the gestures, or by the actions, of the person speaking. To determine, at a subsequent period of time, the nature of the act from the words used, and not to suffer the words to be explained, by other proof of the nature of the act, is not a fair mode of seeking for truth. The question is, what particular spot did Mason mean to locate, by his entry of April? He has himself answered the question, by his explanation in October. The only doubt can be, whether he spoke the truth. He certainly had no motive for deception : there were, then, no contending claims : no other person had attempted to locate the land which he wished to appropriate. He had no reason to wish to preserve the priority of his e 47 75 SUPREME COURT [Dec. Wilson v. Mason. entries, because the book of entries was open before him, and he could see that no person had entered for the same land ; a new entry, therefore, in October, would have been as good as his old entry in April. The act of assembly says, that the warrant “ shall be good and valid, until executed by actual survey.” The survey, then, and not the entry, is the execution of the warrant : the warrant merges in the survey. This shows that the legislature attached greater importance to the survey than to the entry. If, then, the land surveyed is the same land which Mason fixed his eye upon, but inaccurately described, in April, then the survey was correctly made, and pursuant to the actual location. *11. But admitting, for the sake of argument, that the survey did not correspond with the entry, yet Mason having paid the money for the land, and surveyed it, he was, as to the commonwealth, a bond fide purchaser for a valuable consideration, and entitled to a grant of the land. The commonwealth could not refuse, because the want of an entry was no injury to her. Mason had his choice among all the waste and unappropriated land in the state. It was of no importance to the commonwealth, whether he took this tract or another : the commonwealth sold all her land at the same price: the land was waste and unappropriated, and the warrant being executed by actual survey, was spent and gone, functus officio. The commonwealth had no means to prevent the emanation of a grant. As between the commonwealth, therefore, and Mason, this was a contract for that specific tract of land : it was as if the warrant had been special for that particular land. The warrant having been originally general, became special, as against the commonwealth, by the survey : the land ceased to be waste and unappropriated, as to the commonwealth, who was bound by the survey, and could not sell it to another. ITT. This being the case, and Wilson having a full knowledge of all these facts, before he made his entry, became a maid fide purchaser. This is one of the grounds upon which Judge Innes decided the case. (Here the opinion of Judge Innes was read, with the authorities there cited.) As a second purchaser with notice, he could take only the right which the commonwealth had, subject to the contract with Mason. The preamble of a statute is said to be a key to unlock its meaning. It appears by the preamble of the act of 1779, to have been the object of the legislature: 1st. To encourage migration, and to promote population: 2d. To increase the revenue. To induce persons to become purchasers, it became necessary to secure their titles, and for this purpose, as the situation of the country would not permit them, in all cases, to make actual surveys, an entry or location of the land entered in the surveyor’s books, was to be considered as equivalent #^-1 to a survey, for.the purpose of appropriating *the land and securing J a title. A survey, returned and recorded, is, in itself, a more unequivocal act of appropriation than an entry, and the law has made it the only means of executing'the warrant. No time is fixed by law for the making the survey, because, in many parts of the state, it was, at that time, impossible to make it, on account of Indians, and no time could be ascertained, with any degree of precision, when it would become possible. For the security of subsequent purchasers, it also became necessary that some means of notice should be prescribed, that they might avoid an inter- 48 1801] OF THE UNITED STATES. 77 Wilson v. Mason. ference with prior rights. Hence, it was enacted, that the locations of warrants should be entered in a book, and should be so special, that others might be enabled, with certainty, to locate other warrants on the adjacent residuum. The object of the commonwealth, in requiring entries, was not to secure her own immediate interest, but that of purchasers, by giving them notice : and if the subsequent purchaser acquires such notice, it is of no importance, whether it be by an entry, which was liable to be changed, or by an actual survey recorded, which was a complete execution of the warrant, and could not be altered. Indeed, the latter seems to be the more complete and effectual notice, and to answer the intention of the legislature better than notice by an entry only. The other object of the legislature was to raise money. If, then, complete notice of the location was given to the subsequent purchaser, and the money paid to the commonwealth, the two objects of the legislature were fully answered, and neither the commonwealth, nor that subsequent purchaser, had any right to complain : no injury was done to either. The person who, with full notice of these facts, insists upon becoming a second purchaser, becomes such in his own wrong, and if a loss must fall upon either, it must light upon him who thus voluntarily put himself in danger. Where the object of a statutory provision is only to give notice, if notice is had by other means, it has the same effect, as if given in the mode required by the statute. Such have been the uniform decisions in England, on the statutes of enrollment, and so well established is the doctrine, that it cannot be necessary to cite authorities to support it. Although, where a new right is given by statute, a strict compliance with the *provisions of the statute is necessary, yet it is not necessary for every purpose. Blackwell n. l Harper, 2 Atk. 94-5. Mrs. Blackwell having designed and engraved certain drawings of plants, but omitted to engrave on the- plate the day of their first publication, as required by the statute, Lord Chancellor Hardwicke decreed a perpetual injunction against Harper, notwithstanding that omission; but did not decree an account of the profits. It will not be forgotten, that Handley, a deputy-surveyor of the county, was the partner of Wilson in this business, and was the person who actually made the entry, and that he fraudulently took advantage of the knowledge of Mason’s surveys, which he acquired by means of his official situation, contrary to the express provisions and spirit of the act of assembly of 1779, which enacts, that “ for preventing hasty and surreptitious grants, and avoiding controversies and expensive law-suits, no surveyor shall, at any time within twelve months after the survey made, issue or deliver any certificate, copy or plat of land by him surveyed, except only to the person for whom the same was surveyed.” This clause of the act was made for the Very purpose of preventing others from taking that advantage of surveys, which the deputy-surveyor himself has here taken ; the law not contemplating the case of a surveyor, so regardless of his duty and of his oath, as to be guilty of an act like this. A title thus founded in fraud can never be supported. Upon a caveat, the court is to exercise a chancery jurisdiction. The act says, “the court shall proceed to determine the right of the cause, in a summary way.” This they cannot do, without chancery powers. The court in Kentucky has so construed the act. Isadcs v. Willis, Hughes 12. If Wilson, by pursuing the strict letter of the law, has acquired 1 Cranch—4 49 78 SUPREME COURT Wilson v. Mason. [Dec. anything like a legal right, the court, as a court of chancery, will consider those circumstances of fraud which go to invalidate his right, in equity. IV. Wilson is not, under the provisions of the law, entitled to a caveat in this case. The proceeding by caveat is in derogation of the common law, * _ and therefore, the act which authorizes it is to *be construed strictly. ’ J The act mentions only four cases in which a caveat may be entered. 1st. If the plat and certificate of survey be not returned into the land-office, within twelve months after the survey made, it shall be lawful for any other person to enter a caveat: 2d. If the breadth of the plat be not one-third of its length : 3d. If any person shall obtain a survey of lands to which another hath, by law, a better right: 4th. When, upon a caveat, judgment shall be given for the defendant, and he shall not lodge a copy of that judgment in the land-office, within three months thereafter. In the 1st, 2d and 4th cases, the caveat is allowed, for the purpose of protecting the rights of the commonwealth ; they do not apply to the present question. In the 3d case, the caveat is given as a remedy to him who hath by law a better right, and it is upon this ground, that Wilson claims the process. If we examine the words of the law, according to their grammatical construction, or compare them with the spirit and object of the law, we shall find, that the better right which can support a caveat, must be a right existing at the time of the survey obtained, and not a right arising afterwards. The words of the act are, “ if any person shall obtain a survey of lands to which another hath by law a better right.” The word hath, is in the present tense, and must apply either to the time of passing the law, or to the time of committing the injury which is the cause of the caveat. It could not apply to the time of passing the act, because, at that time, there existed no rights to those waste and unappropriated lands which were the subject qf that act. The better right, then, was a right to be derived under that law. The injury to be remedied by the caveat was the injury done by a survey of lands to which another should have a better right. But a survey of lands, to which no other person had a right, cannot be an injury to any one, and can be no ground for a caveat. As to Wilson’s being in the situation of one certans de damno evitando, the assertion cannot possibly be deemed correct. If he is in danger of loss, he has knowingly put himself in danger ; he has sought the position he is in, with a full fore-knowledge of all its evils. He was under no necessity of interfering with Mason’s claims. His warrant was general: the wilderness was before him, and he knew where Mason had * , surveyed his land. *The same Lord Kaim, who says, “no man is -• conscious of wrong, when he takes advantage of an error committed by another, to save himself from loss,” says also in the same breath, “ but in Iucto captando, the moral sense teaches a different lesson. Every one is conscious of wrong, when an error is laid hold of, to make gain by it. The consciousness of injustice, when such advantage is taken, is, indeed, inferior in degree, but the same in kind, with the injustice of robbing an innocent person of his goods or his reputation.” Here Wilson evidently had an intention of making gain by the error of Mason : and if, by that means, he has put his purchase-money at risk, it is not for a court of law or of equity to be anxious to assist him. Wilson, finding that Mason had an advantage by the priority of his location, contrived (by the assistance of Hand-ley, his fraudulent coadjutor) a plan by which he hoped to reap the fruits of 50 1801] OF THE UNITED STATES. 80 Wilson v. Mason. Mason’s industry; and now, he would fain make the court believe he was an innocent purchaser, striving to avoid a loss, the danger of which he had incurred by pure misadventure. Upon the whole, then, Mason having obtained a right to this tract of land against the commonwealth, and Wilson having notice of that right, before he purchased, has no claim at all; but if he had, his remedy is not by caveat. ' * Jones, on the same side.—This cause naturally divides itself into two questions. 1st. Whether Mason has acquired a right to the patent. 2d. If Mason has not, whether Wilson has ; for if neither has a right, Wilson can recover nothing. I. The entry of Mason, in April 1780, is supposed to be so absolutely binding upon him, that he could not alter it, without withdrawing it entirely, notwithstanding that he subsequently said he was mistaken in supposing the land to lie above the west fork, when in fact it was below. A man may go upon the land, and fix in his mind a certain tract, but when he goes to the surveyor’s office, he may mistake its situation, and say it is on the east, when it lies on the west, or the north, when it lies on the south; but *when he discovers his mistake, an explanation is no evidence that his choice has been altered. Here is no proof of an intention to withdraw his first entry ; or to appropriate a different tract of land from that which he first intended. The only inference which can be drawn from the entry of October is, that he had been mistaken as to the point of compass, and as to the name of a particular fork of Panthei’ creek. The land which he had chosen lies above a branch of Panther creek, which he supposed to be called the west fork, but which is not now known by that name. Mason was one of the first, if not the very first, adventurer in the lands on Panther creek. There is no evidence, that particular branches of that creek had names given them, before he made his entries in April. He had as good a right to give names to places, as any one else. But a survey itself is as good a location as an entry. Indeed, it is better, because it is an actual location and occupation of the land. The lines are not merely described by words, which are uncertain, but are marked out upon the land itself. It is a pedis possessio, an actual seisin. A survey differs from an entry, as a diagram differs from a problem ; or a proposition from its demonstration. If notice is the object of the statute, a survey recorded is better than an entry, as it is more definite and certain. If the object is to give evidence of an appropriation, it is better than an entry in the surveyor’s book, because it is an act en pais, an actual possession. The one is but the command to locate, the other is the location itself. In this case, entry does not conflict with entry, and survey with survey ; but a prior survey and occupation, with a subsequent entry. A strong difference is made by the act of assembly, between a survey and an entry. The first is a satisfaction of the warrant; and various clauses of different acts speak of a survey, as the execution of the warrant. But the entrj does not affect the warrant, which is declared to be “ always good and valid, until executed by actual survey.” The entry, therefore, is but an intermediate process, by which the party gains a priority of right; it is intended merely as a substitute for a survey, untilan “ actual survey ” can be *made. If, therefore, there had been no entry at all, yet L 51 82 SUPREME COURT Wilson v. Mason. [Dec. Mason’s right is equally good, as if his entry had been free from question. He has done the principal act itself, for which an entry is only a temporary substitute. Perhaps, he ran some risk before his survey was obtained; but when a survey is completed,, the warrant and the entry are no longer of any effect or validity; they merge in the survey as the survey, does in the patent. II. With respect to the plaintiff’s right, it seems clear, that it must be a right existing at the time of the survey. If we were disseisors, as it is contended, then we gained a defeasible inheritance. We had possession, and whether legal or not, is of no consequence ; it was a better right than Wilson’s, and good against all the world but the lawful owner. The acquisition of a legal title takes away the remedy by caveat. The warrant, entry and survey, constitute only an incipient equitable title, to be completed by the patent, which a caveat is the proper process to arrest. This being, then, entirely a contest about equitable rights, the process by caveat must be an equitable remedy, and gives the court an equity jurisdiction. If this caveat had not prevented, there is no doubt that Mason, having obtained and returned his survey in due time, would have had a patent, as a matter of course. Suppose, the commonwealth had attempted, like any other vendor, to defeat the claim of Mason, would not a court of chancery have compelled a conveyance ? Everything had been done by Mason, which the commonwealth had a right to require ; as against her, therefore, there must have been a decree. If so, then, this court, exercising the same chancery powers with the court below, will give the same judgment which that court has rightfully given, in deciding that a contract existed between Mason and the commonwealth, which a court of chancery would have carried into effect; and that Wilson, having a full knowledge of that existing contract, became a subsequent purchaser ; and therefore, as to Mason, he was a purchaser maid fide, and can never defeat the right of Mason. *Daveiss, in reply.—Can lands be appropriated in more ways than J one ? If it is decided, that the mode of appropriation is unique, then there can be no tantamount act : the one mode pointed out by the statute must be pursued. In attempting to come at the true construction of the land-law of 1779, it is highly important, to take into consideration the act which immediately proceeds it, for the settling of certain then existing claims and rights. They may indeed be called twin acts, being passed on the same day, and referring to each other. The preamble of the first act recognises the great variety of claims, and the evils resulting from various modes of gaining a title to lands ; to remedy which, it declares it to be necessary “ that some certain rule should be established,” &c. The legislature, after settling existing claims, go on to provide a mode of acquiring titles in future, and to fix certain rules which should be observed by all future purchasers of public lands. The great evil intended to be remedied, was the existence of multifarious modes of acquiring titles. To give the act its proper remedial effect, it must be construed strictly ; otherwise, the evil would continue to be as great as ever. For if you once decide that titles may be acquired in any other mode than that pointed out by the statute, you open again that door to perplexity and ambiguity, which the legislature intended to close for ever. It may not be improper here to remark, that no objection has been 52 1801] OF THE UNITED STATES. 83 Wilson v. Mason. raised to the intrinsic merits of Wilson’s claim: all the objections arise from its relation to Mason’s. Wilson, therefore, has an intrinsic legal claim, which nothing can defeat but a prior appropriation of the land. This brings us again to the great questions, what is a legal act of appropriation ? and what lands can be called waste and unappropriated ? To ascertain the meaning of these expressions, it is not necessary to consult a glossary. The- manner in which the legislature has used them, on various occasions, will leave no doubt upon the subject. Sometimes, they call land, waste and unappropriated, after it has been settled, and sometimes, even after it has been cleared and cultivated ; and lands once legally appropriated by legal entry, may *again become waste and unappropriated, by the purchaser’s not following exactly the provisions L of the law. Hence, it is apparent, that when the legislature use the terms waste and unappropriated land, they mean lands not appropriated in the manner prescribed by law. We are then to inquire, whether, at the time of Wilson’s entry, the land was such waste and unappropriated land, as, by the act of assembly, Wilson had a right to appropriate. We contend, that an entry is essential, and that Mason never entered for the land in dispute. The entry called for by the survey, is the entry of April 1780. That is clearly an entry for other land. It is a certain and a special entry : its beginning is certain, and is above the west fork : the survey is some miles below the west fork. But we are told, the name of west fork is uncertain; that the fork so called is not a west fork, but a north-east fork. But a name is different from a description : the name is arbitrary, and as long as a thing is known by a particular name, it is of no importance what that name is. But ignorance of the. country, and the danger of acquiring accurate knowledge of it, are alleged both as a proof of, and an apology for, the vagueness of the entry. If evidence and excuses of this kind are to be allowed, they will totally defeat the provisions of the law : it will let in those loose and vague claims which it was the object of the legislature to prevent. It is begging the question, to argue, that Mason was under a mistake, because he chose to alter his entry; and that what was originally in itself certain, was uncertain, because Mason, by a subsequent act, chose so to consider it. But there was a reason why Mason should wish to give it the appearance of a mistake, rather than of a removal of his entry. If he had expressly withdrawn his former entry, he would have lost his priority ; and to save himself the trouble of examining all the intermediate entries, as well as the risk of omitting any of them, he chose to hold up the idea of correcting a mistake. The entry of April, then, being sufficiently certain, the warrant attached itself to it, and the warrant and *entry taken together had the same effect as a special warrant, describing that identical tract of land. If L Mason had bought, or could buy, a special warrant, stating descriptively the land, he could have no other land than that described in his warrant. When he bought his general warrant, he had the power of fixing its location at his election ; having made his election, the power is expended, and the location fixed, (a) (a) Washington, J.—Do you deny the right of removing an entry ? Dawiss.—If it were res integra, I should. But the whole landed property of Ken- 53 85 SUPREME COURT [Dec. Wilson v. Mason. But it is contended, that if the entry for 8400 acres was removed, the entry for 8300 was removed also ; that the one is dependent on the other. This we deny. How is it dependent ? Cannot one exist without the other ? Or is it because both were made by one person ? Suppose, the entry of warrant No. 2, had begun at a mile distance due north from the upper corner of entry No. 1. Would the' removal of No. 1, be a removal of No. 2 ? The description of the beginning of No. 2, was only a description of a certain place, as was that also of No. 1, and his removal of the location of warrant No. 1, did not alter that place. Suppose, you make an entry, the beginning of which is a certain natural boundary : I make an entry beginning at the north corner of yours : you afterwards remove your entry. Does mine follow yours, whether I will or not ? Again, it is said, that No. 2 ■could not be surveyed, without surveying No. 1. But this can make no difference ; it might make some additional trouble, but creates no impossibility. The lines of No. 1 may be run, so as to ascertain the beginning of No. 2. It is said, that a survey is as good an act of appropriation as an entry, and equally answers all the objects of the statute. This might be a good argument, if the court could make laws ; but the law does not so consider’ it. It limits no time in which the survey shall be made. The survey, therefore, cannot be considered as the act of appropriation. By the old land- law, indeed, a survey *was the substantial appropriating act; but the last -* clause of the land-law (p. 98) has altered it in this respect. It is contended also, that a survey is better notice than an entry. When a law only modifies certain existing rights, it is to be considered according, to the rules of equity ; but when a man claims under a law giving a right which did not exist before, he must bring his case strictly within the law. 4 Bac. Abr. 656 ; Birch w Bellamy, 12 Mod. 540 ; Viner,tit. Statute, 506,507. Notice was not the only object of the law in prescribing an entry. The greater object was to avoid confusion in the sale of lands, and perplexity in the titles, which would have a bad effect upon the sale, and to establish a uniform mode of appropriating lands and locating warrants. The argument that a survey is better notice than an entry, goes to prove that an entry is unnecessary. The surveyor is the agent of the commonwealth, with limited powers, which must be strictly pursued, or his acts are void. He is by law directed to proceed in a particular manner, and must not deviate. A special power given by statute must be strictly pursued. Bex v. Loxdale, 1 Burr. 450. The surveyor must pursue the entry, and a survey not corresponding with the entry is void : the statute has made an entry necessary. In a statute creating a new law, affirmative words imply a negative. Appropriation means a legal appropriation. The book of surveys could not be intended to give notice, because it is by law shut up for twelve months from every eye but that of the surveyor and his employer. The survey itself could not be notice, because, at any time within three months, it is alterable by the party, or by the surveyor, and until the end of the three months, it does not bind even the party himself, or the surveyor, and for twelve months afterwards, it is by law kept secret. tucky would bo shaken by such a judgment. I admit, therefore, that an entry may be removed; but Mason, as we contend, has not removed his entry of 8300 acres. 54 1801] OF THE UNITED STATES. 86 Wilson v. Mason. The law being affirmative, that you shall give one kind of notice, implies the negative that no other notice shall be sufficient. The survey, in itself, was wrong, illegal and void. An act in itself wrong can never be the foundation of right. Land Law, p. 90 ; and Talbot y. Seeman (ante, p. 1). *But in the whole course of decisions in Kentucky, a survey has never been considered as giving a right. The adjudications for L eighteen years do not show the date of a survey to be material as to notice, nor has it ever been so considered. There has never been a title supported upon a survey, without an entry, since the year 1779. To overthrow this course of decisions, would shake the titles of half the land in Kentucky. Arguments drawn from the inconvenience of unsettling titles to real estate, have always been respected. If it is an error, yet where “ it is established, and has taken root, upon which any rule of property depends, it ought to be adhered to by the judges, until the legislature think proper to alter it, lest the new determination should have a retrospect, and shake many questions already settled.” 1 Bl. Rep. 264 ; Robertson v. Rland, 1 W. Bl. 264 ; Rice y. Shute, 2 Ibid. 696 ; Regina v. JBallivos and Rurgenses de Rewdley, 1 P. Wms. 223. In Goodright n. Wright, Ibid. 399, the court said, “ that the altering settled rules concerning property is the most dangerous way of removing land-marks.” The same doctrine is held in Dawes n. Ferres, 2 Ibid. 2 ; and in Wagstaff v. Wagstaff, Ibid. 259. The survey could be no notice to Wilson, because it was alterable ; he knew it ought to be altered, and he might well suppose it would be altered. The book of surveys is no record, and is not of more authority than the book of entries, which is the only book to be resorted to, to know what lands have been appropriated. But if the survey was notice, it was notice only of an illegal act. Notice cannot make that lawful which was unlawful in itself, nor that unlawful, which was in itself lawful. Farr v. Newman, 4 T. R. 639. The Court took time until this term to consider, and now the Chief Justice delivered the following opinion : Opinion of the Court.—This is a writ of error to a judgment of the Court of the United States for the district of Kentucky, rendered on a caveat, and is governed by the land-laws of Virginia. *In the year 1779, the legislature of that commonwealth opened a land-office, and offered for sale, with some reservations, so much of L that tract of country lying within its boundaries south-east of the river Ohio, as was then unappropriated : a part of which now constitutes the state of Kentucky. Every person who would pay at the rate of forty pounds for one hundred acres, into the treasury of the state, became entitled to such quantity of waste and unappropriated land as was, at that rate, equivalent to the money paid, for which a certificate was given to the register of the land-office, whose duty it was, on receipt thereof, to issue a warrant for the quantity of land purchased, authorizing any surveyor' qualified according to law, to lay off and survey the same. A warrant might also be issued on certain other rights. A chief surveyor was appointed for each county, whose duty it was, to nominate a sufficient number of deputies for the business of his county, and 55 88 SUPREME COURT [Dec. Wilson v. Mason. the law proceeded to direct, that “ every person having a land-warrant, founded on any of the before-mentioned rights, and being desirpus of locating the same on any particular waste and unappropriated lands, shall lodge such warrant with the chief surveyor of the county wherein the said lands, or the greater part of them, lie, who shall give a receipt for the same, if required. The party shall direct the location thereof so specially and precisely as that others may be enabled, with certainty, to locate other warrants on the adjacent residuum ; which location shall bear date on the day on which it shall be made, and shall be entered by the surveyor, in a book to be kept, for that purpose, in which there shall be left no blank leaves or spaces between the different entries.” George Mason was one of the earliest purchasers under this law. On the 29th of April 1780, he made the following entries : “ 1780, 29th April, George Mason enters 8400 acres of land, to begin on ^q-i Panther creek, on the east side *thereof, opposite to a beech on the J west side, about four miles above the mouth of the west ferk, and to run up and down the said creek, and eastwardly for quantity.” “ 1780, April 29th, George Mason enters 8300 acres, to begin at the upper corner of his 8400 acre entry, and to runjip the creek on the east side and back for quantity.” Panther creek pursues a general westwardly course from its source until it empties into Green river. The creek forks something more than twelve miles and one-quarter of a mile in a straight line above its mouth ; and one of those forks, the direction of which, towards its source, is northwardly, has, from the beginning of the year 1780, been generally termed the west fork, and the other has been termed Panther creek. On the 27th of October 1780, Mr. Mason made the following entry with the same surveyor : “ 1780, October the 27th, George Mason desires to make his entry of 8400 acres, more special, on Panther creek, viz., to begin four miles above the forks of Panther creek, where it mouths into Green river on the east side, running up and back for quantity.” In the months of September and October 1783, these two entries of 8400 and 8300 acres were surveyed by James Hord, one of the deputy-surveyors of the county of Jefferson, which surveys, as was the custom, were made eonformable to the instructions given by Mr. Mason’s agent. The survey of the entry of 8400 acres is supposed to conform to the explanation or amendment of that entry made in October 1780. It begins four miles above the mouth of Panther creek, and something more than eight miles below its forks. The survey of the 8300 acre entry adjoins the survey of 8400 acres on the upper side ; and the plat was shown by the surveyor, before he would *onl return to the then agent *of Mr. Mason, who, after its supposed J variance from the entry was. suggested to him, approved it, and directed it to be returned to the office. These surveys were returned in the course of the Fall, 1783. The supposed variance between the survey and location of the 8300 acres was, afterwards, about the 12th of September 1784, pointed out by the surveyor to a subsequent agent of Mr. Mason, who also approved of the manner in which the surveys were made, and returned them to the land-office. On the 9th of April 1783, George Wilson enters with the surveyor of Jefferson county, 40,926 acres of land on Panther creek, so as entirely to in- 36 1801] OF THE UNITED STATES. 90 Wilson v. Mason. elude George Mason’s survey of 8300 abres. This entry, though in the name of George Wilson, was made by John Handley, a deputy-surveyor for Jefferson county, for his own benefit and that of Christopher Greenup, as well as for the benefit of George Wilson, and at the time of making the entry, full knowledge of the previous survey, made of the same land for George Mason, had been obtained by the said Handley, who had seen the surveys in the office, and had communicated this information to his two partners in the entry. In the month of March 1784, George Wilson entered, in the supreme court of the district of Kentucky, a caveat, to prevent a grant from issuing on George Mason’s survey of 8300 acres, because the survey was made contrary to location, and because the entry was vague, he claiming the same, or so much thereof as interferes with his entry made on treasury-warrants for 40,926 acres on the 9th of April 1784. Pending the caveat, George Mason departed this life, and the suit was revived against Richard Mason, devisee of the said George, at whose petition it was removed into the court of the United States, held for the district of Kentucky. *A cross caveat was entered in the same court, on the part of |-*qi Richard Mason, to prevent the issuing a patent to George Wilson, *-and these causes coming on to be heard, it was agreed, that the judgment rendered in the caveat, Wilson v. Mason, should be also entered in the case of Mason v. Wilson. In June term 1800, the opinion of the court for the district of Kentucky was given, that the defendant Mason had the better right, and it was ordered, that the caveat entered by Wilson should be dismissed. To this judgment the plaintiff Wilson has obtained a writ of error, and the principal question now to be decided by this court is, which of the parties has the better right. But before entering on the question, it may be necessary to notice a preliminary point made by the counsel for the defendant in error. He contends, that in a caveat, the decision of the district court is final, and that the cause cannot be carried before a superior tribunal. To maintain this proposition, he relies on an act of the legislature of Virginia, making the judgments of the district courts of the state final, in cases of caveat; and on the compact between Virginia and Kentucky, which stipulates that rights acquired under the commonwealth of Virginia shall be decided according to the then existing laws. This argument would not appear to be well founded, had Virginia and Kentucky even been, for every purpose, independent nations ; because the compact must be considered as providing for the preservation of titles, not of the tribunals which should decide on those titles. But when their situation in regard to the United States is contemplated, the court cannot perceive how a doubt could have existed respecting this point. The constitution of the United States, to which the parties to this compact had assented, gave jurisdiction to the federal courts in controversies between citizens of different states. The same constitution vested in this court an appellate jurisdiction, in all cases where original jurisdiction was given to the inferior courts, with only “ such exceptions, and under such regulations, as the congress shall make.” Congress, in pursuance to the constitution, has passed a law on the subject, in which the appellate jurisdiction of this court is described in general terms, so as to comprehend this case, nor is there in that law any exception or regulation 57 92 SUPREME COURT [Dec. Wilson v. Mason. which would exclude the case of a caveat from its general provisions. If, then, the compact between Virginia and Kentucky was even susceptible of the construction contended for, that construction could only be maintained, on the principle, that the legislatures of any two states might, by agreement between themselves, annul the constitution of the United States. The jurisdiction of the court being perfectly clear, it remains to inquire, which of the parties has the better right ? The title of Mason being eldest, is, of course, the best, if it be not, in itself, defective. In the caveat of the plaintiff in error two defects in the title of the defendant are assigned. 1st. That his entry is vague. 2d. That he has surveyed contrary to his location. The first was abandoned in argument, and does not appear to the court to have been maintainable. The second shall now be considered. To support the allegation, that the survey has been made contrary to the location, the entry and the survey are produced. The entry calls for a beginning on the upper corner of George Mason’s entry of 8400 acres. To ascertain this spot, reference must be had to the entry Called for. That is to begin on Panther creek, on the east side thereof, opposite to a beech on the west side, about four miles above the mouth of the west fork, and to run up and down the said creek and eastwardly for quantity. *The J branch of Panther creek which was, at the date of the entry, generally denominated the west fork, is something more than twelve miles and one quarter of a mile above its mouth. The entry of 8400 acres is to begin four miles above the west fork, and the land in controversy ought to be placed above that entry: yet it is surveyed below the west fork. To obviate this difficulty, the counsel for the defendant in error produces and relies upon the entry of October 27th, 1780. That entry is in these words: “ George Mason desires to make his entry of 8400 acres more special on Panther creek, viz., to begin four miles above the forks of Pan-ther creek, where it mouths into Green river, on the east side, running up and back for quantity.” This entry is contended to be not a removal, but an explanation, of that which had been made on the 29th of April 1780, and being merely an explanation, the survey of the land in controversy, beginning at the upper corner of the survey of the 8400 acre tract, conforms to its original location, and is, consequently, free from the exception made to it. If this position be true, the entry of the 27th of October 1780, must describe the same land with that which is described, though with less certainty, by the entry of the 29th of April, in the same year. But the entry of the 29th of April calls for a beginning, four miles above the mouth of the west fork of Panther creek, which fork is more than twelve miles in a straight line, above the mouth of the creek, and the subsequent entry begins four miles above the forks of Panther creek, where it mouths into Green river. The west fork of Panther creek, and the mouth of the same creek, where it empties into the river, are perfectly distinct and separate places, and were so understood at the time this location was made. *941 *It is, however, contended, that in the extensive wilderness offered J for sale, accuracy of description was not to be expected, and the point of union betwen a qreek and river might well be mistaken for the forks of a creek. This would not be very probable, in any case, but is 58 1801] OF THE UNITED STATES. 94 Wilson v. Mason. totally inadmissible in this, because names of places which they were generally understood to possess, have been used by the person locating for Mr. Mason, and as there are no other controlling boundaries referred to, they must be understood as designating the water-courses which were commonly described by those names, and which any person inclined to locate the adjacent residuum would necessarily suppose to have been referred to by them. But if the location of October explains, without removing, that of April, then the original entry might, without such explanation, have been there surveyed, and could not have been properly surveyed four miles above the west fork. This would scarcely have been attempted. Indeed, the counsel for the appellee, in admitting that an entry made on the land in controversy, subsequent to Mason’s entry, but before his survey, would have been good, seems to have disclosed an opinion, that the original entry did not comprehend the land in question, and that not the entry, but the survey, is to be relied on, as the foundation Of his title. To the court, it appears perfectly clear, that the entry of the 27th of October was a removal, and not an explanation, of that of the 29th of ApriL It has not been contended, that the removal of the 8400 acre entry has also removed that of 8300 acres. The title of Mason, then, if good, must be shown to be so, by establishing that a survey, without an entry, is a sufficient foundation for a title. With a view to discover whether this question has been settled in Kentucky, all the adjudications contained in the *book of reports furnished by the counsel for the plaintiff in error have been examined. It is not L perceived, either that the question has been directly determined, or that any principles have been settled which govern it. This case, then, is of the first impression. The act of the Virginia legislature must be expounded according to the opinion this court may entertain of its import, without deriving any aid from the decisions of the state tribunals. In 1779, Virginia opened a land office for the sale of an extensive, unsettled, and almost unexplored country, the motives for which áre stated in the preamble of the statute to have been, “ to encourage the migration of foreigners, promote population, increase the annual revenue, and create a fund for discharging the public debt.” Any person whatever might become a purchaser of any portion of these lands, by paying into the treasury of the commonwealth the purchase-money required by law. By doing so, he became entitled to a warrant, authorizing any surveyor to lay off for him, in one or more surveys, the quantity of land purchased. It was apparently contemplated by the law, that the number of purchasers would immediately become very considerable. The condition of these purchasers in this stage of the contract ought to be distinctly understood. They had acquired a right each to appropriate to himself so much of the vacant land belonging to the commonwealth as he had purchased, but no right, either in common or severalty, to the whole or any particular part of the country, until such right should be acquired by further measures. This was, at the same time, the situation of a great number of persons, and a prior was in no respect more eligibly circumstanced than a subsequent purchaser, except in the single case of both applying precisely at the same 59 95 SUPREME COURT [Dec. Wilson v. Mason. time, for the purpose of appropriating each to himself the same land. Had the purchaser of the first warrant been negligent enough to hold it up, until the whole land was appropriated, the title of every subsequent purchaser would have been good against him, and he would have *been without J remedy. The original purchase of a warrant, then, creating only a general claim which gave, of itself, only in a single case, priority of right to the prior purchaser, it became indispensably necessary to prescribe a mode by which this general title should be satisfied, by the appropriation of a particular tract of land. This mode seems to have been prescribed by that part of the act which says, that “every person having a land-warrant, and being desirous of locating the same on any particular waste and unappropriated lands, shall lodge such warrant with the surveyor of the county wherein the lands or the greater part of them lie.” “ The party shall direct the location thereof so specially and precisely that others may be enabled, with certainty, to locate other warrants on the adjacent residuum ; which location shall bear date the day on which it shall be made, and shall be entered by the surveyor in a book to be kept for that purpose.” This mode of appropriation, pointed out by the law as that which must be used by any person desirous of locating a warrant on any particular waste and unappropriated land, requires that the location shall be given to the surveyor, with the warrant, in order to be entered in a book kept for that purposej which is denominated the book of entries. It is apparent throughout the whole act, that the legislature never contemplated a survey as being in itself an appropriation of land, or supposed, that one would be ever made, if not founded on a previous entry. Some few of the many passages which are found in various parts of the law will be selected to evince this position. The surveyor is forbidden to admit the entry of any warrant on treasury rights, except pre-exemption warrants, in his books, before the first day of May next succeeding the passage of the act. But the prohibition does not extend to a survey, and yet this would have been equally necessary, if land could have been appropriated by a survey, without a previous location. *It is declared, that no entry or location shall be admitted for J certain lands which are described in the act, and intended to be reserved; but there is no declaration that they shall not be surveyed. This omission manifests an opinion, that they could not be appropriated by survey alone. In prescribing the duty of a surveyor, the law enjoins him to proceed, with all practicable dispatch, to survey all lands entered in his office ; and many rules are given to regulate the surveying of entries ; but there is not a syllable in the act, which contemplates or makes’ a single provision for surveys not founded on a prior entry made in the book of entries. The mode of appropriation, then, which the law designates, has not been pursued ; but it is contended, that another course has been adopted, which equally produces all the objects designed to be effected by the location in the book of entries, and which, therefore, ought to be received as a sufficient substitute for an entry. The legislature of Virginia, when bringing her lands into the market, had undoubtedly a right to prescribe the terms on which she would sell, and the mode to be pursued by purchasers, for the 60 1801] OF THE UNITED STATES. 97 Wilson v. Mason. • purpose of particularizing the general title acquired by obtaining a landwarrant. The court is by no means satisfied of its power to substitute any equivalent act for that required by the law. The case of Blackwell v. Harper, reported in 2 Atk. 93, has been cited, to show the authority of a court to dispense with part of a statute directing the mode of proceeding to be observed by a person who claims title under such statute. That case arose under an act of parliament which directs that “any person who shall invent, or design, engrave, &c., any historical or other print or prints, shall have the sole right and liberty of printing and reprinting the same, for the term of fourteen years, to commence from the day of the first publishing thereof, which shall be truly engraved with the name of the proprietor on each plate, and printed on every such print or prints.” *The plaintiff had engraved certain medicinal plants, a pno work deemed within the act, and had brought a bill to establish her L right to the sole property in them, and to restrain the defendant from copying and engraving them, upon the penalties within the act of parliament. It was objected, that the day of publication from which the term was to commence, had not been engraved, and so the act had not been complied with, and consequently, the property had not vested. Lord Hardwicke was of opinion, that the property vested, although the day of publication was not engraved, and that the words directing the day of publication to be engraved on each print, were only necessary to make the penalties incur, not to give the title. “ Here,” said his Lordship, “ the clause which vests the property is distinct.” This opinion, however, was given with great doubt, and only an injunction was granted, without costs, and without an order for an account. The case of BlackweU v. Harper has, at the bar, been denied to be law. However this may be, it is certainly essentially variant from that before the court. The opinion of Lord Hardwicke was not, that where any circumstance was required by a statute, in order to vest a title, other equivalent acts might be received as a substitute ; but that the particular statute on which the case depended, did not require the omitted circumstance, since the property was vested by a distinct clause. By a reference to the words themselves, it will be perceived, that the expression of the act of parliament is such as might perhaps warrant this opinion. The property is completely vested, before the direction concerning the date of the publication is given, and Lord Hardwicke supposes it to be a question on which judges would differ, whether the subsequent words were merely directory or descriptive. A perfect property in the specific thing was supposed by that judge to have been given by other words, and on that idea, his decree is declared to have been formed. *But in the case under consideration, no property in the specific r*og thing is supposed to have been given by other words : no title to it is created by any other part of the act. The purchase of the land-warrant gave a power to appropriate, but was no appropriation, and the mode pointed out by the legislature would seem to the court to be that which can alone give title to the particular lands. But if this opinion should even be too strict, if an act entirely equivalent to an entry could be received as a substitute for one, a survey does not appear to be such an act, nor does it seem to have been so considered by the 61 99 SUPREME COURT Wilson v. Mason. [Dec. legislature. From the circumstances under which the act for establishing the land-office was passed, as well as from the expressions of that act, it is apparent, that the entrv was intended to give complete notice to other purchasers, that the land l^atec^jfras already appropriated. The mode of giving this notice, it A^as certainly proper to prescribe. By doing so, the numerous doubts ^pcl qu^tion^cconcerning the sufficiency of notice, which would inevitabl^arise£m>m living that important fact to the discretion of individuals, i^Yhe ^st iqs^tice, and then to the discretion of courts, to be exercised many X^ars after all the lands should be located, would be in a considerable degree obviated. It was, doubtless, an important object to obviate them. The regulations, therefore, respecting entries are all calculated to make them as notorious as possible : not so, of surveys. The entries and surveys are to be kept in separate books. Why so, if a survey amounted to an entry ? The entry must be dated, when made by the locator ; but the time of recording a survey may appear or not, at the discretion of the surveyor, and a subsequent survey may be recorded before one of prior date. There are to be no blanks in the book of entries, and this regulation is well calcu-lated for the prevention of *frauds in the origin of titles : it does not J apply to the book of surveys. The book of entries is open to the inspection of every person : the book of surveys cannot be looked into but at the discretion of the surveyor. If a prior entry be alleged, the person affected thereby has a right to demand a copy thereof ; but no copy of a survey can be given to any other than the proprietor, until twelve months after it shall have been made. From the whole act, a legislative intention to make an entry, and an entry only, the foundation of title to any particular tract of land, is strongly to be inferred ; and if even an equivalent act could be received, a survey does not appear to be such an act. In this particular case, it is true, that complete notice was obtained by it, but titles must rest on general principles, and in the general, a survey would not, without something more than the law requires, be notice. The law, therefore, cannot contemplate a survey as of equal operation with an entry. A question has been made at the bar, whether a caveat is in the nature of an equitable action, and on the supposition that it is of that nature, the counsel for the defendant in error has insisted that Wilson, having express notice of Mason’s survey, was unable to acquire title to the land appropriated by that survey. This would be true, if the survey gave to Mason any title, either in law or equity. But if a survey without an entry, was no appropriation ; if it gave no title, then notice of the survey could not create a title. The doctrine of notice is well established. He who acquires a legal title, having notice of the prior equity of another, becomes a trustee for that other, to the extent of his equity : but if he has no equity, then there is nothing for which the purchaser of the legal estate can be a trustee.1 A point in the case still remains, which appears more doubtful, and cou- nt is on this ground, that a purchaser for value, though with notice of a prior voluntary conveyance, is protected, if his vendor had no notice. Ridgeway v. Underwood, 4 W. C. C. 129; Otley v. Manning, 9 East 59. And see Hildreth v, Sands, 2 Johns. Ch. 35. 62 1801] OF THE UNITED STATES. *101 Wilson v. Mason. ceming which very considerable difficulties have been felt. *Although Mason’s survey may give him no title, it is questioned, whether Wilson can maintain a caveat against it. The caveat is a remedy given to prevent a patent from issuing in certain cases, where the directions of the law have been violated, to the injury of the commonwealth, or where some other person hath a’ better right : the case before the court is that of a better right.. The terms in which this remedy is accorded to the person who would avail himself of it, for the purpose of asserting his own title are, “ or if any person shall obtain a survey of lands to which another hath by law a better right, the person having such better right may in like manner enter a caveat” &c. Considerable doubts were entertained, whether the word “ hath,” in the description of the character by whom a caveat might be maintained, did not absolutely require that the better right should exist at the time the survey should be obtained. This construction, to which some of the court were at first greatly inclined, would have involved considerable inconvenience, and would have defeated what is deemed the essential object for which the remedy was given. It has been already stated to be the opinion of the court, that a survey, not founded on an entry, is a void act, and constitutes no title whatever : consequently, the land so surveyed remains vacant and liable to be appropriated by any person holding a land-warrant. It is difficult to conceive, that a remedy designed to enable an individual who has made his entry in conformity with the law, to prevent another from obtaining a grant for the land he has entered, should be withheld from any person whose entry entitles him to the land he has located. It is not less difficult to impute to the legislature, an intention to protect a survey, to which the law denies all power of appropriating the land it comprehends, or an intention of carrying such survey into grant, while another has legally appropriated to himself the land thus to be granted. It would be difficult to state a case to which the principle, that a remedy should be so extended as to meet the mischief, would apply more forcibly than to this. If, however, the *terms of r*^Q2 the law had been explicit, those terms must have controlled the sub-ject. But the expression of the act is not, if any person shall obtain a survey to which another at the time such survey may be obtained shall have by law a better right, the person having such better right may enter a caveat, &c. The words of the law are not thus express : they are, if any person shall obtain a survey of land to which another hath by law a better right. The word hath, in its most strict and rigid sense, would refer neither to the time of making the survey, nor of entering the caveat, but to the present moment when the word is used, and would require that the better right should exist at the time of the passage of the act. This construction would be universally rejected as absurd, and all would expect the court to understand the words more liberally, and to expound them so as to give some effect to the legislative will. Some latitude of construction, then, must be used ; some words additional to those used by the legislature must be understood, and this being apparent, the court perceive no sufficient motive for extending the remedy to rights existing when the survey shall be made, and denying it to those which are equally valid, and which exist when the caveat may be entered. 63 102 SUPREME COURT [Dec. The Peggy. The caveat entered by Wilson is, therefore, maintainable under the landlaw of Virginia, since his title had accrued when it was entered. The court is of opinion, that the district court of Kentucky has erred, in deciding that the defendant in error hath the better right, and that their judgment ought to be reversed and annulled. In pursuance of this opinion, I am directed to deliver the following judgment. Judgment of the Court.—“ Whereupon, it is considered by the court, that the plaintiff, Wilson, hath by law the better right to the land in controversy, and that the judgment of the Court of the United States for the district of Kentucky be reversed and annulled ; and that the register of the land-office in Kentucky do issue a grant to the said Wilson, upon his survey of 30,000 acres of land, registered in the said office, according to the metes * , and bounds thereof, and *that the said plaintiff do also recover his J costs expended in this court, and in the said district court, all which is ordered to be certified to the said district court, and the said register of the land-office accordingly.” In the case of Mason n. Wilson, the judgment of the court was, “ that the defendant Wilson hath by law the better right to the land in controversy, and that the judgment of the Court of the United States for the district of Kentucky be reversed and annulled; and that the said caveat be dismissed, and that the defendant Wilson recover his costs,” &c.(a) The Peggy. United States v. The Schooner Peggy. Definitive decree.—Judicial notice.—High seas. A final condemnation in an inferior court of admiralty, where a right of appeal exists, and has been claimed, is not a definitive condemnation, within the meaning of the 4th article of the convention with France, signed September 30th, 1800. The court is as much bound, as the executive, to take notice of a treaty, and will reverse the original decree of condemnation (although it was correct when made), and decree restoration of the property, under the treaty made since the original condemnation. Queer« ? as to the extent of the term high seas ? Error to the Circuit Court for the district of Connecticut, on a question of prize. The facts found and stated by Judge Law, the district judge, were as follows : “ That the ship Trumbull, duly commissioned by the President of the United States, with instructions to take any armed French vessel or vessels', sailing under authority, or pretence of authority, from the French republic, which shall be found within the jurisdictional limits of the United States, or elsewhere on the high seas, &c., as set forth in said instructions ; and said ship did, on the 24th day of April last (April 1800), capture the schooner Peggy, after running her ashore, a few miles to the westward of Port au Prince, within the dominions and territory of General Toussaint, and has brought her into port, as set forth in the libel; and it further appears, that (a) As to the necessity of giving notice in the form prescribed by law, see ^Evans’s Essay on Bills, 67, 68, 69, 70, 71, and Nicholson v. Gouthit, 2 H. Black. 609. , 64 1801] OF THE UNITED STATES. 103 The Peggy. all the facts contained in the claim are true ;(a) whereupon, this court *are of opinion, that as it appears, that the said schooner was solely upon a trading voyage, and sailed under the permission of Toussaint, with dispatches for the French government, under a convoy furnished by Toussaint, with directions to touch at Leogane for supplies, and that the arms she had on board must be presumed to be only for self-defence ; neither does it appear she had ever made, or attempted to make, any depredations, and that she was not such an armed vessel as was meant and intended by the laws of the United States should be subject to capture and condemnation ; and that the situation she was in, at the time of capture, being aground within the territory and jurisdiction of Toussaint, she was not on the high seas, so as to be intended to be within the instructions given to the commanders of American ships of war : therefore, adjudge said schooner is not a lawful prize, and decree that said schooner with her cargo be restored to the claimant.” From this decree, the’ attorney for the United States, in behalf of the United States and the commander, officers and crew of the Trumbull, appealed to the circuit court, in which Judge Cushing sat alone, as the district judge declined sitting in the cause, on account of the interest of his son, who was one of the officers on board the Trumbull, at the time of capture, and who, if the schooner should be condemned, would be entitled to a share of the prize-money. The circuit court, on the appeal, found the following facts, and gave the following opinion and decree : * “That David Jewitt, commander of the said public armed ves- r4_. ' A I 1 0 sel, called the Trumbull, being duly commissioned, and instructed by •-the President of the United States, as set forth in the said libel, did, on or about the 23d of April last, capture the said schooner Peggy, after running her aground, about pistol-shot from the shore, a few miles to the westward of Port au Prince, called also Port Republican, on the coast of the island of St. Domingo, and afterwards bring her into port, as set forth in the libel. That at the time of the capture of the said schooner, there were ten persons aboard her. That she was then armed with four carriage-guns, being four-pounders, with four swivel-guns, six muskets, four pistols, four cutlasses, two axes, some boarding-hatchets, tomahawks and handcuffs. That she was a trading French vessel of about a hundred tons, then laden with coffee, (a) The material facts stated in the claim are, that the schooner was the property of citizens of the French republic ; that she was permitted by Toussaint to receive on board the cargo, which was on board at the time of capture; that she had dispatches from Toussaint to France; that she sailed by his authority, on the 23d of April, for France, navigated by ten men, including Buisson, the claimant, and Gillibert, the commander, and having on board four small three-pound carriage-guns, solely for defence against piratical assaults, and being under convoy of a tender, furnished by Toussaint. That on the 23d of April, she was run ashore, a few miles to the westward of Port au Prince, within the dominion, jurisdiction and territory of General Toussaint, so that she was fast and tight aground; at which time, and in which situation, the boats and crew of the Trumbull attacked and took possession of her, and got her off. That Toussaint then was, and still is, on terms of amity, commerce and friendship with the United States, duly entered into and ratified by treaty. That the schooner was on a lawful voyage, for the sole purpose of trade; and not commissioned, or in a condition to annoy or injure the trade or commerce of the United States. 1 Cranch—5 65 105 * SUPREME COURT [Dec. The Peggy. sugar and other merchandise. That she had come from Bordeaux to Port au Prince, where the claimant had taken in said cargo, and from whence he sailed, on or about the said 23d day of April, with said schooner and cargo, having dispatches from General Toussaint for the French government. That the said Buisson sailed from Port au Prince as aforesaid, with the permission and direction of General Toussaint, to proceed to Bordeaux ; that said schooner so sailed from Port au Prince, under convoy of an armed vessel, by order of said Toussaint, without a passport from Mr. Stevens, consul-genera’l of the United States at St. Domingo, but that Buisson had been promised by Toussaint’s brother, that one should be obtained and sent him, which, however, was not done ; that said schooner had sailed from Bordeaux for Port au Prince, with fifteen men, besides eight passengers (according to the roll of equipage), armed with some guns, swivels and muskets ; that said Captain Buisson was without any commission as for a vessel of war, and alleges that he was armed only for self-defence. That at the time of said capture, the guns of said schooner were loaded with canister-shot, one of which being fired, the shot fell near the bow of the Trumbull; but the said Buisson declares that said gun was fired only as a signal to his convoy. That the said Captain Buisson appeared to be in a disposition, and was prepared with f°rce> to resist the boats which were sent from the Trumbull, to J board him, a little *previous to the capture, in case of their atempt-ing it; and that the said schooner and cargo are French property. “ Upon these facts, the court is of opinion, as follows, viz.: However compassion may be moved in favor of the claimant by some circumstances ; such as that he was charged with dispatches from General Toussaint, between whom and the United States there were some friendly arrangements respecting commerce ; that he was not in a capacity of greatly annoying trade, from the fewness of his men ; and his allegation that he was armed only in defence ; yet as the court is bound by law, which makes no such distinctions ; as armed French vessels are not protected by any treaty or convention ^particularly, not by the regulations between General Toussaint and the American consul; and as the said schooner Peggy was in a condition capable of annoying, and even of capturing single unarmed trading vessels, unattended with convoy ; the court cannot avoid being of opinion, that she falls within the description and general design of the expression of the law, an armed French vessel. “ 2d. That she was captured on the high seas : the argument taken by the claimant’s counsel, from the extent of national jurisdiction on sea-coasts bordering on the country, not applying to this case, so as to acquit the said schooner ; the sea-coast of St. Domingo not being neutral ; not made so by any treaty or convention ; but to be considered as hostile, upon our present plan of laws of defence with respect to France ; as much so as any part of the coast of France, as far as regards French armed vessels ; the court is, therefore, of opinion, that the said schooner Peggy and cargo are lawful prize : “It is, therefore, considered, decreed and adjudged by this court, that the decree of the district court respecting the same, so far as regards their acquittal, be and the same is hereby reversed ; and that the said schooner, *1071 her apparel, guns and appurtenances, and the goods and effects J which were found on board of her at the time of capture, and brought 66 1801] OF THE UNITED STATES. 107 The Peggy. into port as aforesaid, be and the same are hereby condemned as forfeited to the use of the United States, and of the officers and men of the said armed vessel called the Trumbull, one-half thereof to the* United States, the other half to the officers and men, to be divided according to law; the said schooner Peggy being of inferior force to the said armed vessel called the Trumbull.” This sentence and decree ’were pronounced on the 23d day of September 1800. During the present term, and before the court gave judgment upon this writ of error, viz., on the 21st of December 1801, the convention with France was finally ratified by the president ; the fourth article of which convention has these words : “ Property captured, and not yet definitively condemned, or which may be captured before the exchange of ratifications (contraband goods destined to an enemy’s port excepted), shall be mutually restored.” “ This article shall take effect from the date of the signature of the present convention. And if, from the date of the said signature, any property shall be condemned, contrary to the intent of the said convention, before the knowledge of this stipulation shall be obtained, the property so condemned shall, without delay, be restored or paid for.” On the 30th of September 1800, this convention was signed by the respective plenipotentaries of the two nations, at Paris. On the 18th of February 1801, it was ratified by the President of the United States, with the advice and consent of the senate, excepting the 2d article, and with a limitation of the duration of the convention to the term of eight years. On the 31st of July 1801, the ratifications were exchanged at Paris, with a proviso that the expunging of the 2d article should be considered as a renunciation of the respective pretensions which were the object of that article. *This proviso being considered by the president as requiring a re-newal of the assent of the senate, he sent it to them for their advice. L They returned it, with a resolve that they considered the convention as fully ratified. Whereupon, on the 21st of December 1801, it waspromulged by a proclamation of the president. The controversy turned principally upon two points : 1st. Whether the capture could be considered as made on the high seas, according to the import of that term, as used in the act of congress of July 9th, 1798 (1 U. S. Stat. 578). 2d. Whether, by the sentence of condemnation, by the circuit court, on the 23d of September 1800, the schooner Peggy could be considered as definitively condemned, within the meaning of the 4th article of the convention with France, signed at Paris, on the 30th of September 1800. The writ of error was dated on the 2d of October 1800. Griswold and Bayard, for the captors. Mason, for the claimant, (a) The Chief Justice delivered the opinion of the court.—In this case, the court is of opinion, that the schooner Peggy is within the provisions of the treaty entered into with France, and ought to be restored. This vessel is not considered as being definitively condemned. The argument at the bar which (a) I regret that not having the notes of this case, I am unable to report the very ingenious arguments of the learned counsel. 188 SUPREME COURT [Dec. The Peggy. contends that because the sentence of the circuit court is denominated a final sentence, therefore, its condemnation is definitive, in the sense in which that term is used in the treaty, is not deemed a correct argument. A decree or sentence may be interlocutory or final, in the court which pronounces it, and „„1 receives its *appellation from its determining the power of that parti- J cular court over the subject to which it applies, or being only an intermediate order, subject to the future control of the same court. The last decree of an inferior court is final, in relation to the power of that court, but not in relation to the property itself, unless it be acquiesced under. The terms used in the treaty seem to apply to the actual condition of the property, and to direct a restoration of that which is still in controversy between the parties. On any other construction, the word definitive would be rendered useless and inoperative. Vessels are seldom, if ever, condemned, but by a final sentence : an interlocutory order for a sale is not à condemnation. A stipulation, then, for the restoration of vessels, not yet condemned, would, on this construction, comprehend as many cases as a stipulation for the restoration of such as are not yet definitively condemned. Every condemnation is final as to the court which pronounces it, and no other difference is perceived between a condemnation and a final condemnation, than that the one terminates definitively the controversy between the parties, and the other leaves that controversy still depending. In this case, the sentence of condemnation was appealed from ; it might have been reversed, and therefore, was not such a sentence as, in the contemplation of the contracting parties, on a fair and honest construction of the contract, was designated as a definitive condemnation. It has been urged, that the court can take no notice of the stipulation for the restoration of property not yet definitely condemned; that the judges can only inquire whether the sentence was erroneous, when delivered, and that if the judgment was correct, it cannot be made otherwise, by anything subsequent to its rendition. The constitution of the United Statés declares a treaty to be the supreme law of the land. Of consequence, its obligation on the courts of the United States must be admitted. It is certainly true, that thè execution of a contract between nations is to be demanded from, and in the general, superintended by, the executive of each nation; and therefore, whatever the decision of this court may be, relative to the rights of parties litigating before it, the claim upon the nation, if unsatisfied, ^,,„1 may still be asserted. *But yet, where a treaty is the law of the J land, and as such affects the rights of parties litigating in court, that treaty as much binds those rights, and is as much to be regarded by the court, as an act of congress; and although restoration may be an executive, when viewed as a substantive act, independent of, and unconnected with, other circumstances, yet to condemn a vessel, the restoration of which is directed by a law of the land, would be a direct infraction of that law, and of consequence, improper. It is, in the general, true, that the province of an appellate court' is only to inquire whether a judgment, when rendered, was erroneous or not. But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, and of that no doubt, in the present case, has been expressed, I know of no . 68 1801] OF THE UNITED STATES. 110 Kesler v. Shehee. court which can contest its obligation. It is true, that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns, where individual rights, acquired by war, are sacrificed for national purposes, the contract making the sacrifice ought always to receive a construction conforming to its manifest import; and if the nation has given up the vested rights of its citizens, it is not for the court, but for the government, to consider whether it be a case proper for compensation. In such a case, the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed, but in violation of law, the judgment must be set aside.1 Jacob Resler v. James Shehee. Practice.—Opening of default. After the first term next following an office-judgment, in Virginia, it is a matter of mere discretion in the court, whether they will admit a special plea to be filed, to set aside that judgment. Sheehee v. Kesler, 1 Cr. C. C. 42, affirmed. This was a writ of error upon a judgment of the Circuit Court of the district of Columbia, sitting at Alexandria, in an action for a malicious prosecution, brought by Shehee v. Pester, originally in the court of hustings for the town of Alexandria, and transferred by act of *congress of the r*m 27th of February 1801, concerning the district of Columbia to the circuit court of that district. (Reported below, 1 Cr. C. C. 42.) The declaration stated, that on the 26th of December 1799, Resler, without reasonable cause, procured a certain false, scandalous and malicious warrant to be issued against Shehee, by F. Peyton, Esq., then mayor of the town of Alexandria, charging Shehee with having received from a certain negro slave, called-----, the property of Baldwin Dade, certain stolen goods, viz., one box of tallow, knowing the same to be stolen ; which warrant was executed upon the said Shehee, who, by means of the false and malicious representations of Resler, was recognised to appear before the court of hustings of Alexandria, at April term 1800, to answer to the charges contained in the warrant, at which court, Shehee was acquitted. At the rules, held at the clerk’s office, on the 2d February 1801, an officejudgment was entered against Resler, for want of a plea, and a writ of inquiry awarded, returnable to the court of hustings, which by law would have been held on the first Monday of April 1801. But the act of congress of 27th February 1801, which provides for the government of the district of Columbia, erected a circuit court for the district, to which it transferred all the causes then pending in the court of hustings ; and enacted, that the circuit court should hold four sessions a year, in Alexandria, viz., on the 2d Mondays of January, April and July, and the 1st Monday of October. Two terms of the circuit court, viz., April and July, having elapsed, without the writ of inquiry being set aside, the defendant Resler, by his counsel, at October term 1801, on the 9th day of the month, appeared and 1 See Hartung v. People, 22 N. Y. 95. 69 Ill SUPREME COURT [Dec. Resler v. Shehee. moved the court to set aside the writ of inquiry, on filing the following special plea in justification, viz. : “ And the said defendant, by his attorney, George Youngs, comes and defends the force and injury, &c., and for plea saith, that on the 26th day of December, in the year 1799, at the town of Alexandria aforesaid, and within the jurisdiction of the court of hustings of said town, a box of tallow belonging to the defendant, as his own proper goods *1121 an<^ the value of two dollars, *was stolen out of the house J of the defendant, by some person unknown to the defendant, and the said defendant being informed by a certain John McGill, his journeyman, that the said box of tallow was in the house of the plaintiff, complained to Francis Peyton, mayor of the said town, of and concerning the said box of tallow, who, by his warrant, dated the 27th day of December, in the year 1799, called the plaintiff before him and examined him ; and upon his examination, and the testimony of sundry persons, bound the plaintiff to appear at the next grand jury court of hustings of said town, to answer the charge contained in said warrant, of and concerning the receiving the said box of tallow, so stolen as aforesaid, and which was found in his possession, whereupon, the plaintiff appearing, was acquitted and discharged by the said court, which is the same procurement of the said warrant and acquittal whereof the aforesaid action is brought, and this the defendant is ready to verify,” &c. The plaintiff objected to the filing of that plea, in this stage of the cause, and upon argument, the court, on the 13th day of October, refused to receive it; whereupon, the defendant took a bill of exceptions, and pleaded the general issue, upon which, on the 14th day of October, there was a verdict for the plaintiff, and judgment for $1000 damages. On that judgment the defendant brought his writ of error to this court, and the error assigned was the refusal of the court below to suffer the defendant to file the special plea above recited. The cause was, at this term, argued by C. Lee, for plaintiff in error, and Simms and Mason, for defendant. Lee.—This case depends upon the law and practice of Virginia. By the act of congress of 3d March 1801, supplementary to the act concerning the district of Columbia, § 3, it is enacted, “ that the circuit court for the county of Alexandria shall possess and exercise the same powers and jurisdiction, civil and criminal, as is now possessed and exercised by the district courts.of *1131 Virginia.” *The act of assembly of Virginia, respecting the district J courts of that state, § 28 (Rev. Code, p. 85), provides, that “ every judgment entered in the office against a defendant and bail, or against a defendant and sheriff, shall be set aside, if the defendant, at the succeeding court, shall be allowed to appear without bail, put in good bail, being ruled so to do, or surrender himself in custody, and shall plead to issue immediately.” And in § 42 of the same act (p. 87), it is further provided, “that all judgments by default, for want of an appearance or special bail, or pleas as aforesaid, and nonsuits or dismissions obtained in the office, and not set aside on some day of the next succeeding district court, shall be entered by the clerk, as of the last day of the term ; which judgment shall be final in actions of debt founded on any specialty, bill, or note in writing, ascertaining the demand, unless the plaintiff shall choose, in any such case, to have a writ of inquiry of damages ; and in all other cases, the damages shall be 70 1801] OF THE UNITED STATES. ( 113 Resler v. Shehee. ascertained by a jury, to be impannelled and sworn to inquire thereof, as is hereinafter directed.” Upon an equitable construction of these sections of the act, the practice in Virginia has been, to permit the defendant to come in at a subsequent term, and avail himself of any such defence as he has, in the same manner as if he had pleaded it, at the particular term mentioned. This question has been discussed in Virginia, and received the construction for which I contend. The case of Downman v. Downmam?s Executors, 1 Wash. 26, was a plea of tender, after office-judgment confirmed. In p. 27, the court say, “ these words, ‘ plead to issue immediately,’ are the same as were used in the old act of 1753, for establishing the general court; under which, the practice of that court was very liberal, in allowing a defendant to plead that which did not make an issue, but required subsequent pleadings, provided the real justice of the case, and not intended delay, was thereby promoted. This is unavoidable in cases of bonds with collateral conditions, where the defendant cannot plead to issue.” This is also agreeable to the principle laid down by Lord Holt, in 2 Salk. 622 : “That though a judgment be ever so regularly entered, it shall be set aside at any time, on payment of costs, so as the plaintiff does not *lose atrial.” And again, in p. 28, “Considering r^... the circumstances of this country, and the dispersed situation of L attorneys and their clients, who can seldom communicate with each other but at court, justice seems to require a relaxation in these rules (English rules) of practice. It would seem to me proper to allow a discretion in the judges to admit any plea which appears necessary for the defendant’s defence, and only to resort to the rigor of the rule, where delay appears to be intended.” This plea, then, if necessary for the defendant’s defence, ought to have been admitted. It contains nothing exceptionable, and the facts stated in it, if true, are a justification. There is no case more proper for special pleading than one in which the prejudices of the people are enlisted on one side nr the other. The law only directs what is to be done, the first term, but afterwards, it is left open to the discretion of the court. In this case, there can be no pretence, that the plea was intended for delay, as it was offered on the 9th, and the cause was not tried until the 14th of October, so that there was full time to answer the plea and make up the issue. To show that this plea is a good justification, I refer to the case of Coxe y. WlrraU, Cro. Jac. 193, where a similar plea was adjudged good, upon demurrer. It is a common practice, even in the English courts, to permit the general issue to be withdrawn, and a special plea filed, where it is not done, with an intent of delay. Jefferys v. Walton, 1 Wils. 177 ; and Taylor n. Joddrell, Ibid. 254. But the case of Downman v. DownmarCs Executors, before cited, seems conclusive upon this question. Chase, J.—Have the rules of the Virginia courts been adopted in the circuit court ? Lee.—I conceive the circuit court of Alexandria to be in the same situation as the district court at Richmond. And as I understand the act of congress, they are obliged to adopt the practice of the courts of Virginia, except where the circuit court has actually made a different rule. *115 SUPREME COURT [Dec. Resler v. Shehee. * Simms, for defendant in error.—I will not deny that the courts of Virginia have gone the length stated in Washington’s Reports. They have used their discretion, and have considered whether the plea offered tends to the justice of the cause, or whether it is intended only for delay. In this case, the time having passed, when the defendant could file his plea as a matter of right, it was entirely in the discretion of the court to admit or reject it. It is certainly not a sufficient justification, for the defendant to say that the magistrate committed the plaintiff; for that neither destroys the evidence of express malice, nor shows probable cause for the prosecution. The magistrate might have committed upon the evidence of the defendant Resler himself ; so that this plea would most probably have been overruled, upon demurrer, and at any rate, would have created delay ; for in a matter of so much consequence, it cannot be presumed, that the counsel for the plaintiff could at once determine whether to demur or to join issue. The defendant was not precluded from making a proper defence. He might have shown probable cause, on the general issue, for the gist of the action is the want of probable cause ; and the court had the power of instructing the jury whether such cause was shown or not. Bull. N. P. 14. It is said, that the plea was offered in a reasonable time. It cannot surely be said, that three days, in the hurry of the court, is a reasonable time to answer such a plea—so say the courts of Virginia. This plea amounts to the general issue, and therefore, ought not to have been received. The justice of the case did not require it, and it is only to promote justice that the courts have ever deviated from the precise terms of the law. .Mason, on the same side.—Admitting for a moment, that the practice of the Virginia courts was binding upon the circuit court, yet the *court J have only exercised the same discretion which a Virginia court might have exercised. There is a particular time allowed for special pleading ; after that time, the admission of a plea is discretionary with the court. The case in Washington’s Reports is clear, to show that it is altogether a matter of discretion. The court might have refused to receive any plea at all; for the right of the defendant to set aside the office-judgment, by pleading to issue, is confined to the court next succeeding the office-judgment. But the defendant had every advantage under the general issue, which he could have had under his plea. It is extremely clear, that the plaintiff must show malice, and the defendant matter of justification. The rules of practice in the courts of Virginia, are confined to Virginia ; the courts of the United States are not bound by them ; they have power to make their own rules. Lee, in reply.—Our complaint is, that the inferior court has not exercised its discretion in the manner it ought to do. I use the word discretion differently from Mr. Mason. The exercise of such discretion is subject to the control of this court. If we look to the decisions of the courts in Virginia, we find, that they have soundly exercised their discretionary power. The practice has constantly been, to let in the parties, notwithstanding any laches. Was it proper in the court to say, that although we have a right to suffer you to bring the question of probable cause before the court, and to take it from the jury, and although you wish so to do, yet we will not permit you, 7-2 1801] OF THE UNITED STATES. Turner v. Fendali. 116 but will compel you to go before the jury ; where facts disclosed, not pertinent to the issue, might make an improper impression ? Cushing, J.—Do you admit, that the defendant might have given in evidence, under the general issue, the facts stated in the plea offered ? Lee.—It is sufficient for us, if it was a matter of doubt. In such a case, a cautious practitioner will always take the safest method, and plead the facts specially. *There is no doubt, but the court had a right to make rules of practice for itself. But not having made such a rule in this case, its discretion ought to have been guided by the practice of the Virginia courts. We, therefore, hope, that this court will correct the indiscreet exercise of the power of the court below in this case. The Court.—It is true, that the courts in Virginia have been very liberal in admitting any plea, at the next term after an office-judgment, which was necessary to bring forward the substantial merits of the case, whether it was strictly an issuable plea, or not.1 But at a subsequent term, it is a matter of mere discretion with the court, whether they will admit any special plea at all. In the present case, the facts stated in the plea offered, might have been given in evidence on the general issue ; the court exercised their discretion soundly in rejecting the plea. Judgment affirmed. Turner v. Fendall. Execution.—Proceedings agai/nst sheriff.—Evidence. A sheriff makes the money upon a ft. fa. at the suit of A. v. B., and afterwards a Ji. fa. against A. is put into his hands, he cannot levy it upon the money of A., made by the Ji. fa. of A. v. B., for it does not become the goods and chattels of A., until it is paid over to him; and by the command of the writ, the sheriff is, in strictness, bound to bring the money into court, there to be paid to the plaintiff. Money may be taken in execution, if in the possession of the defendant. On a motion, in Virginia, against a sheriff, for not paying over moneys by him collected on execution, it is not necessary that the judgment against the sheriff should be rendered at the term next succeeding that to which the execution has been returned. Proceedings before magistrates, in cases of insolvent debtors, are matters en pais, and may be proved by parol testimony. It is not error in the court below, to reject, as incompetent, admissible testimony, tending to prove a fact not relevant to the case before the court. Fendall v. Turner, 1 Cr. C. C. 85, affirmed. This was a writ of error to reverse a judgment of the Circuit Court of the district of Columbia, sitting at Alexandria, rendered on a motion by Fendall against Turner, late serjeant of the corporate town of Alexandria, for the amount of money received by him on a fieri facias issued on a judgment in favor of Fendall against one Towers. (Reported below, 1 Cr. C. C. 35.) This motion was grounded on an act of assembly of Virginia (Rev. Code, p. 317, § 51), by which it is enacted, that “if any sheriff, under-sheriff oi 1 See Mechanics’ Bank of Alexandria v. Withers, 6 Wheat. 106. 73 117 SUPREME COURT [Dec. Turner v. Kendall. other officer shall make return upon any writ of fieri facias or venditioni exponas, that he hath levied the debt, damages or costs, as in such writ is required, or any part thereof, and shall not immediately pay the same to the party, to whom the same is payable, or his attorney,” “ it shall and may be *1181 lawful f°r the creditor at *whose suit such writ of fieri facias, &c., J shall issue, upon a motion made in the next succeeding general court, or other court from whence such writ shall issue, to demand judgment against such sheriff, officer or under-sheriff, or securities of such under-sheriff, for the money or tobacco mentioned in such writ, or so much thereof as shall be returned levied on such writ of fieri facias, &c., with interest thereon at the rate of fifteen per centum per annum, from the return-day of the execution, until the judgment shall be discharged ; and such court is hereby authorized and required to give judgment accordingly, and to award execution thereon; provided, such sheriff or officer have ten days’ previous notice of such motion.” Fendall had recovered judgment against Towers, in the court of hustings, in the town of Alexandria, for $627.52 damages, and $4.91 costs, on which judgment, a fieri facias, issued, directed to the serjeant of the court of hustings, dated the 13th of December 1800, returnable to the said court of hustings, on the first Monday of February then next. Upon this writ, was the following return, viz.: “ Serjeant returns, executed on one large copper boiler and sundry casks, and sold for the sum of $703.98, including serjeant’s commissions, on which money, I have levied a writ of fieri facias, issued from the clerk’s ^office of the court of Fairfax county, on a judgment obtained by William Deneale against Robert Young and Philip R. Fendall, merchants, trading under the firm of Robert Young & Co. Charles Turner, T. S.” Before the next succeeding term of the court of hustings, after the return .of the execution, the act of congress of 27th of February 1801, concerning the district of Columbia, intervened, by which, the laws of Virginia, as they then existed, were declared to be and continue in force in that part of the district of Columbia which was ceded by that state to the United States, and by them accepted for the permanent seat of government; and all suits, process, &c., depending in the court of hustings for the town of Alexandria, were transferred to the circuit court of the district of Columbia estab- . q-1 lished by that *act; and the first session of the circuit court, in Alex- J andria, was by law held on the second Monday of April 1801. To that term (April 1801), Fendall gave Turner notice, in the usual form, that on the first day of the court, he should move for judgment against him for the amount of the execution, with interest thereon, according to law; which notice was signed “ Philip Richard Fendall, for the trustees of Philip Richard Fendall,” and was duly served. Turner not having appeared, the motion was continued to the next term (July 1801), when he appeared and admitted the regularity of the delivery and continuance of the notice; and the court, upon argument, gave judgment for the plaintiff, Fendall; to reverse which judgment, Turner sued out the present writ of error. The record which came up contained three bills of exceptions. The first stated that the defendant. Turner, to prove that Fendall had taken the oath 74 1801] OF THE UNITED STATES. 119 Turner v. Fendall. of an insolvent debtor, and was thereupon discharged out of custody, produced the following writing, viz.: “ Fairfax, ss. Whereas, Philip Richard Fendall, a prisoner confined in the jail of Fairfax county, under execution at the suit of Samuel Love, issued from the district court of Dumfries, and it appearing that legal notice had. been given, and a warrant issued, for bringing before us, for the purpose of taking the oath of an insolvent debtor, and the said Philip Richard Fendall having this day, in the court-house of the said county, delivered in a schedule of his estate and effects, and taken the oath prescribed by law; these are, therefore, in the name of the commonwealth, to command you to discharge the said Philip Richard Fendall out of your jail and custody, and for so doing, this shall be your sufficient warrant. Given under our hands and seals, this 21st day of March, eighteen hundred. William Herbert, [Seal.] R. West. [Seal.] “ To the sheriff or keeper of the jail of Fairfax county.” And offered to prove the handwriting of the said William Herbert and Roger West; and also to prove by oral testimony, that the said Philip Richard Fendall did take the *oath of an insolvent debtor, before the p1OQ William Herbert and Roger West, whose names are subscribed to the said writing, and also to prove by oral testimony, that the said William Herbert and Roger West were magistrates of the county of Fairfax, on the 21st of March 1800, and had acted as such for many years before; but the court gave it as their opinion, that the said writing and oral testimony were not legal evidence to be admitted to prove the above-mentioned facts. The 2d bill of exceptions stated, that the defendant Turner offered to show to the court, that the trustees of Fendall were not entitled, to the money levied on the execution of Fendall v. Towers, but the court refused to suffer him to go into that inquiry. The 3d bill of exceptions stated, that the defendant Turner produced a copy of an execution issued on a judgment obtained by William Deneale against Robert Young and Philip Richard Fendall (the plaintiff in motion below), and a copy of the return, which return was in these words : “Executed on the sum of $682.43, money in my hands, being the amount of the sum received by me for the sale of certain property taken by virtue of a fieri facias, issued from the. clerk’s office of the court of hustings of Alexandria, on a judgment obtained by the within named Philip R. Fendall against John Towers. Charles Turner, T. S.” i And alleged, that he had a right, and was bound, to levy that execution on the money of the said Fendall, which he had levied by virtue of the execution of Fendall n. Towers, and which was in his hands, separate and distinct from any other money, at the time the execution of Deneale v. Young and Fendall was delivered to him, but the court gave it as their opinion that he had not a right, and was' not bound so to do. The case was now argued by Simms, for the plaintiff in error, and by C. Lee and Swann, for the defendant. For the plaintiff in error, it was contended : *lst. That the court r*j2i below was not authorized to render judgment at any other term than 75 121 SUPREME COURT [Dec. Turner v. Fendall. that next succeeding the return of the execution. 2d. That the testimony offered to prove the insolvency of Fendall, was competent for that purpose, and ought not to have been rejected. 3d. That the defendant below ought to have been permitted to prove the trustees of Fendall not entitled to receive the money on the execution of Fendall n. Towers. 4th. That Turner had a right to levy the execution of Deneale n. Young and Fendall, on the money of Fendall in his hands. I. The act of assembly giving this remedy against sheriffs ought to be construed strictly, because it is a penal law, inasmuch as it subjects the officer to a penalty of fifteen per cent, per annum, for not paying over the money levied upon an execution ; and because this summary process by motion is in derogation of the common-law proceedings. The words of the act are, that “ upon a motion made to the next succeeding general court, or other court from whence such writ shall issue,” “ such court is hereby authorized and required to give judgment accordingly that is, “ such next succeeding court.” The court in April was the next succeeding court; but the court in July, at which this judgment was rendered, had no jurisdiction of the cause. And although consent will take away error, yet it will not give jurisdiction. II. The testimony offered to prove the insolvency of Fendall, ought to have been admitted. By the act of assembly respecting insolvent debtors (Rev. Code, p. 314, 315, 40, 41), upon the debtor’s delivering his schedule, and taking the oath, all his estate becomes vested, by act of law, in the sheriff of the county, and debts due to him are to be recovered in the name of the sheriff. This money was either the money of Fendall, and so vested in the sheriff as part of the estate in possession, or else it was a chose in action, and then the *sheriff is the only person entitled to recover it. J In either case, by showing the insolvency of Fendall, we show that the title is out of him, so that he cannot support this motion. The act of assembly does not make the act of the magistrates, in administering the oath, and granting the warrant of discharge of an insolvent debtor, a matter of record. Third persons have no means of proving the fact of insolvency, but by parol testimony : it must be proved like any other matter en pais. We offered the best evidence which the nature of the case will admit: we offered the original warrant of discharge, under the hands and seals of the magistrates, and parol proof that they were magistrates at the time, and had acted as such for many years before, together with evidence of their handwriting. General reputation has always been considered as sufficient proof of the official character of a magistrate. III. The defendant below ought to have been permitted to show that the trustees of Fendall were not entitled to the money. The notice in this case was given by Fendall for his trustees. Turner could not know whose claims he had to oppose, whether those of Fendall alone, or those of his trustees. It was necessary for him, therefore, to show that neither the one nor the others were entitled to recover upon this motion ; and he came prepared to do this, but the court would not suffer him to do it. Fendall, by reason of his insolvency, and the consequent operation of law in transferring all his rights to the sheriff, could not recover in his own name, for his own use and benefit; but still, as courts of law will protect trusts and equitable rights, where they are made to appear, and as the transfer of the estate and 76 1801] OF THE UNITED STATES. 122 Turner v. Fendall. / effects of an insolvent debtor, which takes place by the operation of law, does not transfer those things which the insolvent has merely as trustee, and as the name of Fendall might, therefore, still be used for the benefit of the trustees, it was competent and proper for the defendant below, to show that the trustees had not that equitable right which, the law will protect. IV. The fourth point seems to divide itself into two parts. 1st. Can money be taken upon a fieri facias in any case ? *2d. Can the ofii-cer levy afieri facias on money in his own hands which he has col- •-lected for the use of the debtor? 1. It is a general principle, that all goods and chattels, the property of the debtor, may be taken in execution, and when an officer has it in his power to satisfy an execution to him directed, it is his duty to do it, and he is liable to the creditor, if he fails so to do. The money of a debtor is a part of his goods and chattels ; it follows, that it is liable to an execution : there is no possible reason why it should not be so. It is said, there are some bld authorities to the contrary, and that the reason given is, that money cannot be sold. {Armistead n. Philpot, Doug. 219.) But the reason of selling the goods taken on execution is, that money may be raised, and surely, the execution may as well be satisfied, by taking money itself, as by taking goods which must be sold to raise the money. In Rex v. Webb, 2 Show. 166, it is said, that by a levari facias “ the sheriff may take ready money.” And in this respect, there is no difference between a levari facias and a fieri facias. The law is expressly laid down in Dalt. Sheriff, 145,543, that money may be taken on a fieri facias. 2. If money in the possession of the debtor may be taken, does the money being in the hands of the sheriff make any difference ? In the case of Rex n. Bird, 2 Show. 87, “it was resolved by the court, on motion, that on a fieri facias, the sheriff may sell the goods, and if he pay the money to the party, it is good, and the court will allow of such return, because the plaintiff is thereby satisfied ; although the writ run, “ita quod habeat coram nobis,” &c. The same doctrine is held in Hods Case, 5 Co. 70 a. If, then, the sheriff might have paid this money to Fendall, and had so paid it, he would have been bound to seize it again, instantly, to satisfy the execution of Deneale. If he might have done this, and if it was his duty to satisfy the execution of Deneale, where was the necessity of his *go-ing through the ceremony of a payment of the money to Fendall. L Here, it is stated by the officer, that he kept the money of Fendall distinct and separate from all other money, and that he levied the execution of Deneale on that identical money. This is, in substance, the same thing as if the money had been paid over to Fendall, and afterwards seized by the officer. On the part of the defendant in error, it was said, in reply—1. As to the power of the court to give judgment at a term subsequent to the term next after the return of the execution, that although the act of assembly may be penal, and although the remedy may be in derogation of the common-law proceedings, yet, like all other statutes, it must have a reasonable construction. It could never be supposed to intend, that if the court did not give the judgment at the first term, the jurisdiction which they once had should cease. 2. The fact of Fendall’s insolvency was not material to the question 77 124 SUPREME COURT [Dec. Turner v. Fendall. before the court, because any person who was equitably entitled to the money, would not be precluded from his claim by this judgment ; and by the act of assembly, no one but the creditor in whose name the judgment was rendered, is entitled to this summary process against the officer who refuses to pay the money levied upon the execution ; and if any othei' person was in equity entitled to the money, he must still use the name of Fen-dall. The name of the nominal creditor*must be used, or the remedy given by the statute would be wholly lost. He is the only person who could acknowledge a satisfaction upon record, and it ought not to be in the power of the officer, to allege an equitable claim in another person, to support his own improper act. [Benson v. Flower, Cro. Car. 166, 176.) In that case, the creditor had become bankrupt, after the money was made upon the execution, and before the return ; and upon the return, the assignees contended, that they had the right to receive the money, but the court ordered it to be paid to the bankrupt, because the assignees were no parties to the suit, and the bankrupt was the only person who could acknowledge satisfaction upon the record ; and the money being levied by the sheriff, before the assignment, was to be considered *as in custodia leg is, and so not J assignable. It was not the money of the bankrupt, at the time of the bankruptcy, because it did not become his money until he received it. But if the insolvency of Fendall were material, still, the evidence adduced was not conclusive of the fact, nor even competent to prove it. It was not the best evidence which the nature of the case admitted. If the act of the magistrates was a simple act en pais, yet they themselves were the most competent witnesses to prove the fact, and their testimony would be better evidence than a paper purporting to be signed by W. Herbert and R. West, who do not style themselves magistrates, even if their handwriting should be proved. It does not appear, that they were dead, or that their testimony could not be obtained. And as to common report being evidence of their being magistrates, it certainly was not the best evidence, because their commissions, and the certificate of their taking the requisite oaths of office, were matters of record. Esp. N. P. 741. When the acts of magistrates are questioned, in the county in which they are said to be justices, common report may be sufficient, because all persons are supposed to be obliged to take notice of the officers of their county.1 But in this case, they were alleged to be justices of a foreign county. The county of Fairfax is no part of the district of Columbia. But this was not a trial by jury, and it is very questionable, whether, in such a case, a rejection of admissible evidence can be assigned for error, with any more propriety than an admission of incompetent testimony. 3. It is contended, that Turner ought to have been permitted to show, that the trustees of Fendall had no right to receive the money. The answer to that is, that the court were not trying the right of the trustees, and could not look into their equitable claims. The court were sitting as a court of law, and not as a court of chancery. If the trustees had an equitable right, they were not precluded from asserting it, in a proper manner ; if they had not, it did not affect the present question. If they had a legal right, they would not be barred by the judgment in this case. In whatever light the 1 See Hibbs v, Blair, 14 Perm. St. 413; Kilpatrick v. Commonwealth, 31 Id. 198. 78 1801] OF THE UNITED STATES. 125 Turner v. Kendall. subject is viewed, it appears to be perfectly immaterial to the present question. *4. But the fourth point includes the real merits of this contro- r*, versy. Had the officer a right to satisfy the execution of Deneale v. *■ Young and Fendall, out of the money in his hands levied by virtue of the execution of Fendall n. Towers ? 1st. Money cannot, in any case, be taken by the officer, upon an execution. It is a general principle, that on a fieri facias, the goods taken cannot be delivered to the creditor, in satisfaction of the debt, but must be sold ; and the books give this as a reason why money cannot be taken : another reason may be, that money cannot be identified. But the law is different in Virginia from the English law, in respect to the proceedings on executions. By the act of assembly respecting executions (Rev. Code, p. 309, § 12, 13), the officer, on all executions, having published notice of the time and place of sale, ten days before such sale, “ shall proceed to sell, by auction, the goods and chattels so taken, or so much thereof as shall be sufficient to satisfy the judgment or decree, for the best price that can be got for the same.” Here, it is evident, that the legislature did not contemplate the case of money itself being liable to be taken on execution ; for they have made it the duty of the officer, in all cases of execution, to advertise and sell the goods taken. But the next section is still stronger, for it provides, “ that if the owner of such goods and chattels shall give sufficient security to such sheriff or officer, to have the same goods and chattels forthcoming at the day of sale, it shall be lawful for the sheriff or officer to take a bond from such debtor and securities, payable to the creditor, reciting the service of such execution, and the amount of money or tobacco due thereon, and with condition to have the goods or chattels forthcoming at the day of sale appointed by such sheriff or officer, and shall, thereupon, suffer the said goods and chattels to remain in the possession, and at the risk of the debtor, until that time.” It would be absurd, to suppose an officer obliged to appoint a day of sale for selling money ; yet the giving of a forthcoming bond is a right which the debtor has by law; he is entitled to the delay on giving the security required. But the bond cannot be taken, unless a day of sale is appointed, because there can be no other day on which the *bond can become forfeited. Hence, then, it is clear, that the legislature went upon the ground that money could not be taken on an execution, or they would have excepted such a case from the general words of the law. But if money was liable to be taken on a fieri facias, it was a case which must have often happened, and could not have escaped the recollection of every member of the legislature. A strong argument arises from the want of adjudged cases on this point, and the total deficiency of precedent in practice, within our own knowledge. In the case of Armistead v. Philpot, cited from Doug. 219, Lord Mansfield confesses that there are old cases which say that money cannot be taken in execution, even though found in the defendant’s scrutoire, and does not cite any cases to the contrary. It is true, he says the reason given is a quaint one, but he does not say it was not good. In that case, the money levied for the debtor was ordered to be paid by the sheriff to the creditor who had an execution, but there was no opposition, except as to the attor- 79 127 SUPREME COURT [Dec. Turner v. Fendall. ney’s fees on the first execution, which were compromised, and the court and bar agreed that the motion was of the first impression. 2d. But secondly, this was not the money of Fendall, until it was paid to him ; and therefore, if the law be, as is contended, that money of the debtor may be taken in execution, yet the principle does not apply to this case. By the receipt of the money by the sheriff, Fendall did not become entitled to the individual pieces of coin. The remedy against the officer was not detinue or trover, but an action of debt, or on the case. The officer became the debtor of Fendall for so much money, and there is no reason why it should be more liable to an execution, in the hands of the serjeant, than in those of any other individual; it was neither the goods nor chattels of Fendall, but a mere chose in action. Fendall could not compel the officer to pay it before the return-day of the execution. If, in the meantime, the money had been lost or destroyed by robbery, fire, enemies, lightning or tempest, it must have been the loss of the officer, and not of Fendall. The command of the writ of fieri facias, according to its form as *pre- J scribed by the act of assembly (Rev. Code, p. 306), is, “that you have the said sum of money before the judges of our said court, the--- day of----------------------------------------------------------------, to render to the said (creditor) of the debt and damages aforesaid.” And the form of the return contained in the same act (p. 307), is, “ by virtue of this writ to me directed, I have caused to be made the within-mentioned sum of------------------------------------------------------of the goods and chattels of the within-named A. B., which said sum of-------------------------------------------------, before the judges within mentioned, at the day and place within contained, I have ready, as that writ requires.” The form of the writ and return is the best possible evidence of the duty of the officer. He is obliged to have the money in court, to be there paid to the creditors ; and nothing will excuse him from an exact compliance with the command of the writ, but payment to the person named as creditor in the execution; and even this, not as a matter of right, but of favor. In the case of Rex n. Bird, cited from 2 Shower, 87, it is only said, that a payment to the party will be allowed by the court, and the reason given, is, because the plaintiff is thereby satisfied. “ But this is only by permission of the court, and not by force of the law.” 2 Bac. Abr. 352. Now, if the plaintiff is not satisfied, the reason fails, and consequently, the rule does not hold good. In 2 Bac. Abr. 352, it is said, “ in strictness, the money is to be brought into court.” In the case of Canon v. Smallwood, 3 Lev. 203-4, it is said, that the payment of the money to the plaintiff was by permission of the court, not ex rigore juris; and the court often orders the sheriff to bring the money into court, and does not permit the plaintiff to have it; of which power the court would by this means be deprived. In the case of Benson v. Flower, before cited from Cro. Car. 166, 176, it is expressly stated, that the money, at the time of the bankruptcy, being in custodia legis, that is, in the hands of the sheriff, was not the property of the bankrupt, and did not become so, until he received it. And in the case of Armistead v. Philpot, the money was first brought into court, and there ordered by the court to be paid to the second creditor, on affidavit that othei* goods and chattels could not be found. This case shows, as strongly as pos-*1901 sible> *the necessity of the sheriff’s obeying the command of the writ, J in bringing the money into court, instead of paying it over to the 80 1801] OF THE UNITED STATES. 129 Turner v. Fendall. creditor, out of court, because otherwise the act of the sheriff would deprive the court of the power of making such an order, and might, in many cases, deprive the debtor of the opportunity of obtaining speedy justice, on a motion to quash the execution for irregularity, or any other cause. Besides, the sheriff might go on and levy for one creditor after another, until the whole sum should be swallowed up in his commissions. No case can be found, in which it has been permitted to be done, at the discretion of the sheriff, and yet it is a case which must happen in every day’s practice if it could be done. The Chief Justice delivered the opinion of the court.—This was a motion made by the defendant in error against the now plaintiff, in the circuit court at Alexandria, under an act of the Virginia assembly, which declares that “ if any sheriff, under-sheriff or other officer, shall make return on any writ of fieri facias or venditioni exponas, that he hath levied the debt, damages or costs, as in such writ is required, or any part thereof, and shall not immediately pay the same to the party to whom the same is payable, or his attorney,” il it shall and may be lawful for the creditor at whose suit such writ of fieri facias or venditioni exponas shall issue, upon a motion made at the next succeeding general court, or other court from whence such writ shall issue, to demand judgment against such sheriff, officer or under-sheriff, or securities of such under-sheriff, for the money or tobacco mentioned in such writ, or so much as shall be returned levied on such writs,” “ with interest thereon at the rate of fifteen per centum per annum from the return-day of the execution, until the judgment shall be discharged; and such court is hereby authorized and required to give judgment accordingly, and to award execution thereon ; provided, such sheriff or officer have ten days’ previous notice of such motion.” That Turner had been serjeant of the town of Alexandria, and had returned on a writ of fieri facias, issued on a judgment rendered by the court of hustings for that corporation, r*i go *in favor of Philip Richard Fendall, that he had made the debt, *• and had levied thereon a writ of fieri facias issued on a judgment obtained by William Deneale against Robert Young and Philip R. Fendall, merchants, trading under the firm of Robert Young & Co. 7 0 o Before the next succeeding term of the court of hustings would have arrayed,’that court was abolished, and all its powers and duties transferred to the circuit court of the district of Columbia for the county of Alexandria. To the first term of the circuit court, notice was given, that a judgment would be moved for, and the notice was signed “Philip Richard Fendall, for the trustees of the said Philip Richard Fendall.” The defendant did not appear to the notice, and it was continued to the succeeding term, when the parties appeared, and the defendant, to prove that P. R. Fendall had taken the oath of an insolvent debtor, and was thereupon discharged, offered in evidence a warrant, signed William Herbert and R. West, discharging the said Philip R. Fendall out of custody, as an insolvent debtor, and further offered to prove the handwriting of the said Herbert and West, and also to prove, by oral testimony, that the said Philip Richard Fendall did take the oath of an insolvent debtor, before the said William Herbert and Roger West, and that they were, on the 21st of March 1800, the time of administering the said oath and granting the said certificate, 1 Cranch—6 81 130 SUPREME COURT [Dec. Turner v. Fendall. magistrates for the county of Fairfax. This testimony was rejected by the court, as not ’being legal evidence to establish the fact, and to this opinion an exception was taken. The defendant also offered to show, that the trustees of Philip R. Fendall were not entitled to the money levied by virtue of the execution mentioned in the notice, which testimony was likewise rejected by the court; and to this opinion also, a bill of exceptions was taken. The defendant then produced the execution issued in favor of Deneale y. Robert Young and Philip R. Fendall, merchants, trading under the firm of Robert Young & Co., with the return thereon, showing that it had * , *been levied on the money of Philip R. Fendall, then in his hands, J and alleged, that the officer had a right and was bound to levy the said execution on the said money, but the court was of opinion, that he had not a right so to do, and to this opinion also, an exception was taken. The court then proceeded to render judgment, on the notice, for the plaintiff ; to which judgment a writ of error has been sued out of this court: and the errors assigned and relied on are : 1st. That the court for the county of Alexandria was not empowered to render judgment in this case, at any term subsequent to that next succeeding the return of the execution. 2d. That the testimony offered to the court to prove the insolvency of Philip R. Fendall, and rejected, was legal testimony to prove the fact for which it was adduced, and ought, therefore, to have been admitted. J 3d. That the defendant in the court below ought to have been permitted to prove the trustees of Philip R. Fendall not entitled to receive the money, to recover which the notice was given : and— 4th. That the officer had a right to levy the execution of Deneale on the money of Philip R. Fendall in his hands. To support the first error assigned, the words of the act of assembly giving the motion have been relied on, as only empowering the court to render judgment in this summary mode, at the term next succeeding that to which the execution has been returned. That is, that although the plaintiff has brought his case rightly into court, yet if, from any cause whatever, the court shall be unable to render judgment at the first term, the suit must be-dismissed, and the plaintiff must lose his remedy. The words must be very plain indeed, which will force a court to put upon them so irrational a construction as this. On recurrence to the act relied on, it does not appear, that a restriction so unusual and so unjust in itself, has been imposed. The words 11 such court,” on fair construction, refer to the court in which *1321 *the mo^on has been made, and not to the term to which notice was J given. The difficulty, therefore, which would have presented itself, if the notice had been given to a term subsequent to that next succeeding the return of the execution, has no existence in this case.1 ■ In considering the second error assigned, the court was satisfied that the " proceedings before magistrates, in cases of insolvent debtors, are entirely matters en pais, and are, therefore, to be proved by parol and other testimony. The evidence offered was certainly legal evidence to establish the fact for which it was adduced. The court, however, is not satisfied of its 1See Sheppard’s Case, 65 Penn. St. 20; Stevenson v. Lawrence, 1 Brewst. 126. 82 1801] OF THE UNITED STATES. Turner v. Fendali. 132 sufficiency; but without determining that question, and without determining whether, in a case where there is no jury, a judgment ought, for the rejection of testimony which was admissible in law, to be reversed in any state of things, or the cause should be considered as if the testimony had been received, it is the opinion of all the judges, that the party is bound to show the relevancy of the fact intended to be established, to the case before the court. In the present cause, the fact to be established was the insolvency of Fendall, which insolvency is not shown to have been material in the case, since nothing appears in the record, to induce an opinion that the proceeding could have been in any other name than his. Although, then, the testimony rejected was proper and legal evidence towards establishing the fact, yet the court committed no error in rejecting that testimony, for which their judgment ought to be reversed, because the fact does not appear to have been relevant to the cause under their consideration? On the third error assigned, the opinion of the court is, that whoever might in equity be entitled to the money, or to the use of Fendall’s name, the notice, as given, could only be sustained, by showing the legal right of Fendall to recover. A legal right in the trustees would have defeated the action, for it is instituted in the name of Philip R. Fendall, although it may be for the benefit of his trustees, and neither the reversal or affirmance of this judgment, would affect the right of the trustees to proceed in their own names. *The fourth point is one of considerable importance and difficulty. In discussing it, two questions have been made at the bar. 1st. Can an execution be levied on money ? 2d. Can it be levied on money in the hands of the officer ? The principle that an execution cannot be levied on money has been argued to be maintainable, under the authority of adjudged cases, and under the letter and meaning of the act of the Virginia legislature on the subject of executions. Yet no such adjudged case has been adduced. Lord Mans-field, in the case cited from Doug. 219, said, “he believed there were old cases, where it had been held that the sheriff could not take money in execution, even though found in the defendant’s scrutoire, and that a quaint reason was given for it, viz., that money could not be soldand it is believed, that there may be such cases, but certainly there are also cases in which the contrary doctrine has been held. In 2 Show. 166, it is laid down expressly, that money may be taken on a levari facias, and no difference in this respect is perceived between the two sorts of execution. In Dalton’s Sheriff, 145, it is also stated in terms, that money may be taken in execution on & fieri facias. The court can perceive no reason, in the nature of the thing, why an execution should not be levied on money. That given in the books, viz., that it cannot be sold, seems not to be a good one. The reason 1 Blackwell v. Patton, 7 Cr. 471 ; Campbell v. Pratt, 2 Pet. 364 ; Greenleaf v. Borth, 5 Id. 132 ; Boardman v. Reed, 6 Id. 328 ; Phillips v. Preston, 5 How. 278 ; McMeehen v. Webb, 6 Id. 292; Bandon v. Toby, 11 Id. 493 ; Thomas v. Lawson, 21 Id. 343 ; Chandler v. Van Roeder, 24 Id. 225 ; Thompson v. Roberts, Id. 233; The Water Witch, 1 Black 494 ; Blackburn v Crawford, 3 Wall. 175 ; Dewry v. Cray, 10 Id. 263 ; Brobst v. Brock, Id. 519 ; Gregg v. Moss, 14 Id. 564; Grand Chute v. Winegar, 15 Id. 355 ; New Orleans Ins. Co. v. Piaggio, 16 Id. 378 ; Recatur Bank v. St. Louis Bank, 21 Id. 294; Chambers County v. Clews, Id. 317. 83 133 SUPREME COURT Turner v. Fendali. [Dec. of a sale is, that money only will satisfy the execution, and if anything else be taken, it must be turned into money ; but surely, that the means of converting the thing into money need not be used, can be no adequate reason for refusing to take the very article to produce which is the sole object of the execution. The act of assembly concerning executions has also been relied on as showing that only such articles can be taken as may be sold. But the provisions of the act can only be considered as regulating the sale of such arti-*1341 as *n na^ure require to be sold, and not as exempting *from J execution such property as need not be sold. The object is, not the sale, but money, and if the money can be made, without a sale, it cannot be unlawful to do so. But in the case of an execution for tobacco, money may be sold, and therefore, may be executed, and it would be strange, if, by an execution ordering a sheriff to make money, money could not be taken, and yet might be taken on an execution ordering him to make some other article. It is the opinion of the court, that money may be taken in execution, if in the possession of the defendant; but the question of greater difficulty is, whether it may be taken by the officer before it has been paid to the person entitled to receive it ? The general rule of law is, that all chattels, the property of the debtor, may be taken in execution, and whenever an officer has it in his power to satisfy an execution in his hands, it is his duty to do so, and if he omits to perform his duty, he must be accountable to those who may be injured by the omission. But has money, not yet paid to the creditor, become his property ? That is, although his title to the sum levied may be complete, has he the actual legal ownership of the specific pieces of coin which the officer' may have received ? On principle, the court conceives that he has not this ownership. The judgment to be satisfied is for a certain sum, not for the specific pieces which constitute that sum, and the claim of the creditor on the sheriff seems to be of the same nature with his claim under the judgment, and one which may be satisfied in the same manner. No right would exist to pursue the specific pieces received by the officer, although they should even have an ear-mark ; and an action of debt, not of detinue, may be brought against him, if he fails to pay over the sum received, or converts it to his own use. It seems to the court, that a right to specific pieces of money can only be acquired, by obtaining the legal or actual possession of them, and until this is done, there can be no such absolute ownership, as that an execution may be levied on them. A right to a sum of money in the hands of a sheriff, can no more be seized, than a right to a sum of money in the hands of any other person, and however wise or just it may be, to give such a remedy, the law does not ap-*1 okt pear yet to have given it. The dictum of Judge Buller, *in the case in J The King v. Egginton, 1 T. R. 370, proves that the mere possession of money, as a trustee, does not give to the possessor, before a conversion, such a property in it, as to render it liable for his debts ; but does not manifest an opinion that the person for whose use it was received, but to whose possession it has not come, is to be considered as the legal owner of the specific pieces themselves, so that they have become, in contemplation of law, his goods and chattels. Indeed, it is observable in that case, that if the money had been due to the parish, at the time the bankruptcy of the defendant, who was an overseer of the poor, took place, the parish would have 84 1801] OF THE UNITED STATES. 135 Turner v. FendaU. been in no better condition than other creditors, and would have possessed no exclusive property in the money claimed. Although the dictum of Judge Buller may appear to militate somewhat against this position, yet the principle of the decision is in its favor, for the judgment of the court is declared to be founded on the fact, that the debt was not a debt, until after the bankruptcy. The case cited from Cro. Car. 166, 176 {Benson v. Flower), expressly states the property of the money while in the hands of the sheriff, not to be in the creditor ; and although the inference of the court from that principle does not appear to have been warranted, yet the principle itself is believed to be certainly correct. In the case of Armistead n. Philpot, Doug. 219, the court directed the money of the debtor to be paid to the creditor, whose execution was in the hands of the sheriff holding that money also ; but this direction would have been unnecessary, if the sheriff had possessed a previous right to make the appropriation. It is stated in Barnes’s Notes, 214, to have been adjudged in Trinity term, 32 & 33 of Geo. II., in the case of Staple v. Bird, where a sheriff had levied an execution on money in his hands, that he should, notwithstanding this execution, pay the money to the person entitled to the benefit of the first judgment. It is true, that in that case, the person in whose name the judgment was rendered, was not entitled to the money received under it, but the case is not stated to have been decided on that principle ; and *the very frequency of such a state of things, furnishes an argument of no inconsiderable weight against the right to levy an execution on money so circumstanced. The equitable right of persons, whose names do not appear in the execution, ought to be preserved ; and considerable injustice might result from imposing on the sheriff the duty of deciding at his peril on such rights. Considering the case, then, either on principle or authority, it appears to the court, that the creditor has not such a legal property in the specific pieces of money levied for him, and in the hands of the sheriff, as to authorize that officer to take those pieces in execution, as the goods and chattels of such creditor. But the money becomes liable to such execution, the instant it shall be paid into the hands of the creditor; and it then becomes the duty of the officer to seize it. It appears unreasonable, that the law should direct a payment under such circumstances. If the money shall be seized, the instant of its being received by the creditor, then the payment to him seems a vain and useless ceremony which might well be dispensed with ; and if the money should, by being so paid, be withdrawn from the power of the officer, then his own act would put beyond his reach, property rendered by law liable to his execution, and which, of consequence, the law made it his duty to seize. The absurdity involved in such a construction led the court to a further consideration of the subject. The mandate of a writ of fieri facias, as originally formed, is, that the officer have the money in court on the return-day, there to be paid to the creditor. Forms of writs furnish strong evidence of what was law when they were devised, and of the duty of the officer, to whom they are directed. Originally, it was regularly the duty of the officer, to have the money in court, and it has been held, that not even payment to the creditor himself, could 85 136 SUPREME COURT Turner v. Fendali. [Dec. excuse the non-performance of this duty. The rigor of this rule has been considerably relaxed, but the form of the writ, as directed by a late act of the legislature of Virginia, yet is, that the money shall be in court on the return-day, and there appears no excuse for omitting this duty, unless *it shall have been paid to the creditor. The sheriff may certainly -1 make- such payment out of court, if no circumstance occurs which legally obstructs -or opposes it, such as an injunction from the court of chancery, in which case, by the law of Virginia, the money must be retained ; or an execution against the goods and chattels of the person to whom the money in his hands shall be payable. In the latter case, it seems to the court, still to be the duty of the sheriff to obey the order of the writ, and to bring the money into court, there to be disposed of as the court may direct.' This was done in the case of Armistead v. Philpot, and in that case, the court directed the money to be paid in satisfaction of the second execution. This ought to be done, whenever the legal and equitable right to the money is in the person whose goods and chattels are liable to such execution. In the case of Turner v. Fendall, the sheriff not having brought the money into court, but having levied an execution on it, while in his hands, has not sufficiently justified the non-payment of it to the creditor ; and therefore, the court committed no error in rendering judgment against him, on the motion of that creditor. If the payment of the damages should be against equity, that was not a subject for the consideration of the court of law which rendered the judgment. Judgment affirmed.1 1 He cannot levy on money in his own hands, arising from an execution in favor of the defendant. Baker v. Kenworthy, 41 N. Y. 215 ; nor will the court order it to be paid to the plaintiff in the second execution. Williams v. 86 Rogers, 5 Johns. 163. But, it seems, that the sheriff may levy on a surplus in his hands, arising from an execution against the debtor. Harris’s Appeal, 29 Penn. St. 240. See Means v. Vance, 1 Bailey 39. i 1803] OF THE UNITED STATES. 137 FEBRUARY TERM, 1803. William Marbury James Madison, Secretary of State of the United States. Constitutional law.—Jurisdiction.—Mandamus.—Appointment and removal of officer.—Commission. The supreme court of the United States has not power to issue a mandamus to the secretary of state of the United States, it being an exercise of original jurisdiction not warranted by the constitution. Congress have not power to give original jurisdiction to the supreme court, in other cases than those described in the constitution. An act of congress, repugnant to the constitution, cannot become a law. The courts of the United States are bound to take notice of the constitution. It seems, that a commission is not necessary to the appointment of an officer by the executive. A commission is only evidence of an anointment. Delivery is not necessary to the validity of letters-patent. The president cannot authorize the secretary of state to omit the performance of those duties which are enjoined by law. A justice of peace, in the District of Columbia, is not removable at the .will of the president. When a commission for an officer, not holding his office at the will of the president, is by him signed and transmitted to the secretary of state, to be sealed and recorded, it is irrevocable ; the appointment is complete. A mandamus is the proper remedy, to compel the secretary of state to deliver a commission to which the party is entitled. At the last term, viz., December term 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe and William Harper, by their counsel, Charles Lee, Esq., late attorney-general of the United States, *sever- r*]™ ally moved the court for a rule on James Madison, secretary of state of the United States, to show cause why a mandamus should not issue, commanding him to cause to be delivered to them, respectively, their several commissions as justices of the peace in the district of Columbia. This motion was supported by affidavits of the following facts; that notice of this motion had been given to Mr. Madison; that Mr. Adams, the late president of the United States, nominated the applicants to the senate, for their advice and consent, to be appointed justices of the peace of the district of Columbia; that the senate advised and consented to the appointments; that commissions in due form were signed by the said president, appointing them justices, &c., and that the seal of the United States was in due form affixed to the said commissions, by the secretary of state; that the applicants have requested Mr. Madison to deliver them their said nommis-sions, who has not complied with that request; and that their said commissions are withheld from them; that the applicants have made application to Mr. Madison, as secretary of state of the United States, at his office, for information whether the commissions were signed and sealed as aforesaid ; that explicit and satisfactory explanation has not been given, in answer to that inquiry, either by the secretary of state, or any officer in the department of state; that application has been made to the secretary of the senate, for a certificate of the nomination of the applicants, and of the advice and consent of the senate, who has declined giving such a certificate. Whereupon, a 87 138 SUPREME COURT [Feb’y Marbury v. Madison. rule was laid, to show cause on the fourth day of this term ; this rule having been duly served— Mr. Lee, in support of the rule, observed, that it was important to know on what ground a justice of peace in the district of Columbia holds his office, and what proceedings are necessary to constitute an appointment to an office, not held at the will of the president. However notorious the facts are, upon the suggestion of which this rule has been laid, yet the applicants have been much embarrassed in obtaining evidence of them. Reasonable information has been denied at the office of the department of state. Although a respectful memorial has been made to the senate, praying them to suffer their secretary to give extracts from their executive journals respecting *the nomination of the applicants to the senate, and of -* their advice and consent to the appointments, yet their request has been denied, and their petition rejected. They have, therefore, been compelled to summon witnesses to attend in court, whose voluntary affidavits they could not obtain. Mr. Lee here read tWe affidavit of Dennis Ramsay, and the printed journals of the senate of 31st January 1803, respecting the refusal of the senate to suffer their secretary to give the information requested. He then called Jacob Wagner and Daniel Brent, who had been summoned to attend the court, and who had, as it is understood, declined giving a voluntary affidavit. They objected to being sworn, alleging that they were clerks in the department of state, and not bound to disclose any facts relating to the business or transactions in the office. Mr. Lee observed, that to show the propriety of examining these witnesses, he would make a few remarks on the nature of the office of secretary of state. His duties are of two kinds, and he exercises his functions in two distinct capacities; as a public ministerial officer of the United States, and as agent of the president. In the first, his duty is to the United states or its citizens; in the other, his duty is to the president; in the one, he is an independent and an accountable officer; in the other, he is dependent upon the president, is his agent, and accountable, to him alone. In the former capacity, he is compellable by mandamus to do his duty; in the latter, he is not. This distinction is clearly pointed out by the two acts of congress upon this subject. The first was passed 27th July 1789 (1 U. S. Stat. 28), entitled “ an act for establishing an executive department, to be denominated the department of foreign affairs.” The first section ascertains the duties of the secretary, so far as he is concerned as a mere executive agent. It is in these words, “ there shall be an executive department, to be denominated the department of foreign affairs, and that there shall be a principal officer therein, to be called the secretary of the department of foreign affairs, who shall perform and execute such duties as shall, from time to time, be enjoined on, or intrusted to him by the president of the United States, agreeable to the. constitution, relative to correspondences, *1401 commissions *or instructions to or with public ministers or consuls J from the United States; or to negotiations with public ministers from foreign states or princes, or to memorials or other applications from foreign public ministers, or other foreigners, or to such other matters respecting foreign affairs as the president of the United States shall assign to the said department; and furthermore, that the said principal officer shall con-.88 1803] OF THE UNITED STATES. 140 Marbury v. Madison. duct the business of the said department in such manner as the president of the United States shall, from time to time, order or instruct.” The second section provides for the appointment of a chief clerk ; the third section prescribes the oath to be taken, which is simply, “ well and faithfully to execute the trust committed to him and the fourth and last section gives him the custody of the books and papers of the department of foreign affairs under the old congress. Respecting the powers given, and the duties imposed, by this act, no mandamus will lie : the secretary is responsible only to the president. The other act of congress respecting this department was passed at the same session on the 15th September 1789 (1 U. S. Stat. 68), and is entitled “ An act to provide for the safe-keeping of the acts, records and seal of the United States, and for other purposes.” The first section changes the name of the department and of the secretary, calling the one the department, and the other the secretary, of state. The second section assigns new duties to the secretary, in the performance of which, it is evident, from their nature, he cannot be lawfully controlled by the president, and for the nonperformance of which, he is not more responsible to the president than to any other citizen of the United States. It provides, that he shall receive from the president all bills, orders, resolutions and votes of the senate and house of representatives, which shall have been approved and signed by him; and shall cause them to be published, and printed copies to be delivered to the senators and representatives, and to the executives of the several states ; and makes it his duty carefully to preserve the originals ; and to cause them to be recorded in books to be provided for that purpose. The third section provides a seal of the United States. The fourth makes it his duty to keep the said seal, and to make out and record, and to affix the seal of the United States to all civil commissions, after they *shall have been signed by the president. The fifth section provides for a seal of office, and that all copies of records and papers in his office, authenticated under that seal, shall be as good evidence as the originals. The sixth section establishes fees for copies, &c. The seventh and last section gives him the custody of the papers of the office of the secretary of the old congress. Most of the duties assigned by this act are of a public nature, and the secretary is bound to perform them, without the control of any person. The president has no right to prevent him from receiving the bills, orders, resolutions and votes of the legislature, or from publishing and distributing them, or from preserving or recording them. Whiie the secretary remains in office, the president cannot take from his custody the seal of the United States, nor prevent him from recording and affixing the seal to civil commissions of such officers aS hold not their offices at the will of the president, after he has signed them and delivered them to the secretary for that purpose. By other laws, he is to make out and record in his office, patents for useful discoveries, and patents of lands granted under the authority of the United States. In the performance of all these duties, he is a public ministerial officer of the United States. And the duties being enjoined upon him by law, he is, in executing them, uncontrollable by the president ; and if he neglects or refuses to perform them, he may be compelled by mandamus, in the same manner as other persons holding offices under the authority of the United States. 89 141 SUPREME COURT [Feb’y Marbury v. Madison. The president is no party to this case. The secretary is called upon to perforin a duty over which the president has no control, and in regard to which he has no dispensing power, and for the neglect of which he is in no manner responsible. The secretary alone is the person to whom they are entrusted, and he alone is answerable for their due performance. The secretary of state, therefore, being in the same situation, as to these duties, as every other ministerial officer of jthe United States, and equally liable to be compelled to perform them, is also bound by the same rules of evidence. These duties are not of a confidential nature, but are of a public kind, and his clerks can have no exclusive privileges. There are, undoubtedly, facts, which may come to their knowledge by means of their connection with the *1421 secretary of state, respecting which *they cannot be bound to answer. J Such are the facts concerning foreign correspondences, and confidential communications between the head of the department and the president. This, however, can be no objection to their being sworn, but may be a ground of objection to any particular question. Suppose, I claim title to land under a patent from the United States : I demand a copy of it from the secretary of state : he refuses. Surely, he may be compelled by mandamus to give it. But in order to obtain a mandamus, I must show that the patent is recorded in his office ; my case would be hard indeed, if I could not call upon the clerks in the office to give evidence of that fact. Again, suppose a private act of congress had passed for my benefit : it becomes necessary for me to have the use of that act in a court of law : I apply for a copy : I am refused. Shall 1 not be permitted, on a motion for a mandamus, to call upon the clerks in the office to prove that such an act is among the rolls of the office, or that it is duly recorded ? Surely, it cannot be contended, that although the laws are to be recorded, yet no access is to be had to the records, and no benefit to result therefrom. The Court ordered the witnesses to be sworn, and their answers taken in writing, but informed them, that when the questions were asked, they might state their objections to answering each particular question, if they had any. Mr. Wagner being examined upon interrogatories, testified, that at this distance of time he could not recollect whether he had seen any commission in the office, constituting, the applicants, or either of them, justices of the peace. That Mr. Marbury and Mr. Ramsay called on the secretary of state respecting their commissions. That the secretary referred them to him ; he took them into another room, and mentioned to them, that two of the commissions had been signed, but the other had not. That he did not know that fact of his own knowledge, but by the information of others. Mr. Wagner declined answering the question, “ who gave him that information;” and the court decided, that he was not bound to answer it, because it was not pertinent to this cause. He further testified, that some of the commissions of tbe justices, but he believed not all, were recorded. He did not . know whether the commissions of the applicants were *recorded, as J he had not had recourse to the book, for more than twelve months past. , Mr. Daniel Brent testified, that he did not remember certainly the names of any of the persons in the commissions of justices of the peace, signed by 90 1803] OF THE UNITED STATES. • 143 Marbury v. Madison. Mr. Adams ; but he believed, and was almost certain, that Mr. Marbury’s and Col. Hooe’s commissions were made out, and that Mr. Ramsay’s was not; that he made out the list of names, by which the clerk who filled up the commissions was guided ; he believed, that the name of Mr. Ramsay was pretermitted by mistake, but to the best of his knowledge, it contained the names of the other two ; he believed, none of the commissions for justices of the peace, signed by Mr. Adams, were recorded. After the commissions for justices of the peace were made out, he carried them to Mr. Adams, for his signature. After being signed, he carried them back to the secretary’s office, where the seal of the United States was affixed to them. That commissions are not usually delivered out of the office, before they are recorded ; but sometimes they are, and a note of them only is taken, and they are recorded afterwards. He believed, none of those commissions of justices were ever sent out, or delivered to the persons for .whom they were intended ; he did not know what became of them, nor did he know that they are now in the office of the secretary of state. Mr. Lincoln, attorney-general, having been summoned, and now called, objected to answering. He requested that the questions might be put in writing, and that he might afterwards have time to determine whether he would answer. On the one hand, he respected the jurisdiction of this court, and on the other, he felt himself bound to maintain the rights of the executive. He was acting as secretary of state, at the time when this transaction happened. He was of opinion, and his opinion was supported by that of others whom he highly respected, that he was not bound, and ought not to answer, as to any facts which came officially to his knowledge while acting I as secretary of state. / The questions being written, were then read and handed to him. He re- I peated the ideas he had before suggested, and said his objections were of two kinds. *lst. He did not think himself bound to disclose his of- r*14. J ficial transactions while acting as secretary of state ; and 2d. He I ought not to be compelled to answer anything which might tend to criminate I himself. J Mr. Lee, in reply, repeated the substance of the observations he had before made in answer to the objections of Mr. Wagner and Mr. Brent. He stated, that the duties of a secretary of state were two-fold. In discharging one part of those duties, he acted as a public ministerial officer of the United States, totally independent of the president, and that as to any facts which came officially to his knowledge, while acting in this capacity, he was as much bound to answer as a marshal, a collector or any other ministerial officer. But that in the discharge of the other part of his duties, he did not act as a public ministerial officer, but in the capacity of an agent of the president, bound to obey his orders, and accountable to him for his conduct. And that as to any facts which came officially to his knowledge, in the discharge of this part of his duties, he was not bound to answer. He agreed that Mr. Lincoln was not bound to disclose anything which might tend to criminate himself. Mr. Lincoln thought it was going a great way, to say that every secretary of state should, at all times, be liable to be called upon to appear as a 91 144 SUPREME COURT [Feb’y Marbury v. Madison. witness in a court of justice, and testify to facts which came to his knowledge officially. He felt himself delicately situated between his duty to this court, and the duty he conceived he owed to an executive department; and hoped the court would give him time to consider of the subject. The Court said, that if Mr. Lincoln wished time to consider what answers he should make, they would give him time ; but they had no doubt he ought to answer. There was nothing confidential required to be disclosed. If there had been, he was not obliged to answer it; and if he thought that anything was communicated to him in confidence, he was not bound to disclose it; nor was he obliged to state anything which would criminate himself ; but that the fact whether such commissions had been in the office or not, could not be a confidential fact; it *is a fact which all the world J have a right to know. If he thought any of the questions improper, he might state his objections. Mr. Lincoln then prayed time until the next day, to consider of his answers, under this opinion of the court. The Court granted it, and postponed further consideration of the cause until the next day. At the opening of the court, on the next morning, Mr. Lincoln said, he had no objection to answering the questions proposed, excepting the last, which he did not think himself obliged to answer fully. The question was, what had been done with the commissions ? He had no hesitation in saying, that he did not know that they ever came to the possession of Mr. Madison, nor did he know that they were in the office, when Mr. Madison took possession of it. He prayed the opinion of the court, whether he was obliged to disclose what had been done with the commissions. The Court were of opinion, that he was not bound to say what had become of them ; if they never came to the possession of Mr. Madison, it was immaterial to the present cause, what had been done with them by others. To the other questions, he answered, that he had seen commissions of justices of the peace of the, district of Columbia, signed by Mr. Adams, and sealed with the seal of the United States. He did not recollect, whether any of them constituted Mr. Marbury, Col. Hooe or Col. Ramsay, justices of the peace ; there were, when he went into the office, several commissions for justices of peace of the district made out; but he was furnished with a list of names to be put into a general commission, which was done, and was considered as superseding the particular commissions ; and the individuals whose names were contained in this general commission, were informed of their being thus appointed. He did not know that any one of the commissions was ever sent to the person for whom it was made out, and did not believe that any one had been sent. .fi-| *Mr. Lee then read the affidavit of James Marshall, who had been J also summoned as a witness. It stated, that on the 4th of March 1801, having been informed by some person from Alexandria, that there was reason to apprehend riotous proceedings in that town, on that night, he was induced to return immediately home, and to call at the office of the secretary of state, for the commissions of the justices of the peace ; that as 92 1803] OF THE UNITED STATES. 146 Marbury v. Madison. many as twelve, as ho believed, commissions of justices for that county were delivered to him, for which he gave a receipt, which he left in the office. That finding he could not conveniently carry the whole, he returned several of them, and struck a pen through the names of those, in the receipt, which he returned. Among the commissions so returned, according to the best of his knowledge and belief, was one for Col. Hooe, and one for William Harper. Mr. Lee then observed, that having proved the existence of the commissions, he should confine such further remarks as he had to make in support of the rule, to three questions : 1st. Whether the supreme court can award the writ of mandamus in any case? 2d. Whether it will lie to a secretary of state, in any case whatever? 3d. Whether, in the present case, the court may award a mandamus to James Madison, secretary of state ? 1. The argument upon the first question is derived not only from the principles and practice of that country from whence we derive many of the principles of our political institutions, but from the constitution and laws of the United States. This is the supreme court, and by reason of its supremacy, must have the superintendence of the inferior tribunals and officers, whether judicial or ministerial. In this respect, there is no difference between a judicial and a ministerial officer. From this principle alone, the court of king’s bench in England derives the power of issuing the writs of mandamus and prohibition. 3 Inst. 70, 71. *Shall it be said, that the court of king’s bench has this power, in consequence of its being *• the supreme court of judicature, and shall we deny it to this court, which the constitution makes the supreme court ? It is a beneficial, and a necessary power; and it can never be applied, where there is another adequate, specific, legal remedy. The second section of the third article of the constitution gives this court appellate jurisdiction, in all cases in law and equity arising under the constitution and laws of the United States (except the cases in which it has original jurisdiction), with such exceptions, and under such regulations, as congress shall make. The term “ appellate jurisdiction ” is to be taken in its largest sense, and implies in its nature the’right of superintending the inferior tribunals. Proceedings in nature of appeals are of various kinds, according to the subject matter. 3 Bl. Com. 402. It is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress. 3 Bl. Com. 109. There are some injuries which can only be redressed by a writ of mandamus^ and others by a writ of prohibition. There must, then, be. a jurisdiction somewhere, competent to issue that kind of process. Where are we to look for it, but in that court which the constitution and laws have made supreme, and to which they have given appellate jurisdiction? Blackstone, vol. 3, p. 110, says, that a writ of mandamus is “ a command, issuing in the king’s name, from the court of king’s bench, and directed to any person, corporation or inferior court, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court has previously determined, or at least supposes, to be consonant to right and justice. It is a writ of a most extensively remedial nature, and issues in all cases 93 147 SUPREME COURT Marbury v. Madison. [Feb’y where the party has a right to have anything done, and has no other specific means of compelling its performance.” In the Federalist, vol. 2, p. 239, it is said, that the word il appellate ” is not to be taken in its technical sense, as used in reference to appeals in the course of the civil law, but in its broadest sense, in which it denotes noth-ing more than the power of one tribunal to review the proceedings J *of another, either as to law or fact, or both. The writ of mandamus is in the nature of an appeal as to fact as well as law. It is competent for congress to prescribe the forms of process by which the supreme court shall exercise its' appellate jurisdiction, and they may well declare a mandamus to be one. But the power does not depend upon implication alone : it has been recognised by legislative provision, as well as in judicial decisions in this court. Congress, by a law passed at the very first session after the adoption of the constitution (1 U. S. Stat. 80, § 13), have expressly given the supreme court the power of issuing writs of mandamus. The words are, “ the supreme court shall also have appellate jurisdiction from the circuit courts, and courts of the several states, in the cases hereinafter specially provided for ; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction ; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, undei’ the authority of the United States.” Congress is not restrained from conferring original jurisdiction in other cases than those mentioned in the constitution. 2 Dall. 298. The court has entertained jurisdiction on a mandamus in one case, and on a prohibition in another. In the case of The United States v. Judge Lawrence, 3 Dall. 42, a mandamus was moved for by the attorney-general, at the instance of the French minister, to compel Judge Lawrence to issue a warrant against Captain Barre, commander of the French ship of war Le Perdrix, grounded on an article of the consular convention with France. In this case, the power of the court to issue writs of mandamus was taken for granted, in the arguments of counsel on both sides, and seems to have been so considered by the court. The mandamus was refused, because the case in which it was required was not a proper one to support the motion. In the case of The United States v. Judge Peters, a writ of prohibition was granted. 3 Dall. 121, 129. This was the celebrated case of the French iqI *corvette, the Cassius, which afterwards became a subject of diplo- J matic controversy between the two nations. On the 5th February 1794, a motion was made to the supreme court, in behalf of one John Chandler, a citizen of Connecticut, for a mandamus to the secretary at war, commanding him to place Chandler on the invalid pension list. After argument, the court refused the mandamus, because the two acts of congress respecting invalids did not support the case on which the applicant grounded his motion. The case of The United States v. Hopkins, at February term 179^. was a motion for a mandamus to Hopkins, loan-officer for the district of Virginia, to command him to admit a person to subscribe to the United States’ loan. Upon argument, the mandamus was refused, because the applicant had not sufficiently established his title. In none of these cases, nor in any other, was the power of this court to issue a mandamus ever denied. Hence, it appears, there has been a legislative construction of the constitu- 94 1803] OF THE UNITED STATES. 149 Marbury v. Madison. tion upon this point, and a judicial practice under it, for the whole time . since the formation of the government. 2. The second point is, can a mandamus go to a secretary of state, in any case ? It certainly cannot in all cases ; nor to the president, in any case. It may not be proper to mention this position; but I am compelled to do it. An idea has gone forth, that a mandamus to a secretary of state, is equivalent to a mandamus to the president of the United States. I declare it to be my opinion, grounded on a comprehensive view of the subject, that the president is not amenable to any court of judicature, for the exercise of his high functions, but is responsible only in the mode pointed out in the constitution. The secretary of state acts, as before observe^, in two capacities. I As the agent of the president, he is not liable to a mandamus ; but as a ( recorder of the laws of the United States, as keeper of the great seal, as I recorder of deeds of land, of letters-patent, and of commissions, &c., he is a i ministerial officer of the people of the United States. As such, he has duties assigned him by law, in the execution of which he is independent of all control but that of the laws. It is true, he is a high officer, but he is not above law. It is not consistent with the policy of our political institutions, or the manners of the citizens of the United States, that, any ministerial officer, having public duties to perform, *should be above the compulsion of the law, in the exercise of those duties. As a ministerial officer, he L is compellable to do his duty, and if he refuses, is liable to indictment. A prosecution of this kind might be the means of punishing the officer, but a specific civil remedy to the injured party can only be obtained by a writ of mandamus. If a mandamus can be awarded by this court, in any case, it may issue to a secretary of state : for the act of congress expressly gives the power to award it, “ in cases warranted by the principles and usages of law, to any persons holding offices under the authority of the United States.” Many cases may be supposed, in which a secretary of state ought to be compelled to perform his duty specifically. By the 5th and 6th sections of the act of congress (1 U. S. Stat. i9), copies under seal of the office of the department of state are made evidence in courts of law, and fees are given for making them out. The intention of the law must have been, that every person needing a copy should be entitled to it. Suppose, the secretary refuses to give a copy, ought he not to be compelled? Suppose, I am entitled to a patent for lands purchased of the United States ; it is made out and signed by the president, who gives a warrant to the secretary to affix the great seal to the patent ; he refuses to do it; shall I not have a mandamus to compel him ? Suppose, the seal is affixed, but the secretary refuses to record it: shall he not be compelled ? Suppose, it recorded, and he refuses to deliver it; shall I have no remedy ? In this respect, there is no difference between a patent for lands, and the' commission of a judicial officer. • The duty of the secretary is precisely the same. Judge Paterson inquired of Mr. Lee, whether he understood it to be the duty of the secretary, to deliver a commission, unless ordered so to do by the president ? Mr. Lee replied, that after the president has signed a commission for an office, not held at his will, and it comes to the secretary to be sealed, the president has done with it, and nothing remains, but that the secretary per- 95 150 SUPREME COURT [Feb’y Marbury v. Madison. form those ministerial acts which the law imposes upon him. It imme-* diately becomes his duty to seal, record and deliver *it, on demand. -* In such a case, the appointment becomes complete, by the signing and sealing; and the secretary does wrong, if he withholds the commission. 3. The third point is, whether, in the present case, a writ of mandamus ought to be awarded to James Madison, secretary of state ? The justices of the peace in the district of Columbia are judicial officers, and hold their office for five years. The office is established by the act of congress passed the 27th of February 1801, entitled “An act concerning the district of Columbia” (1 U. S. Stat. 107, § 11, 14). They are authorized to hold courts, and have cognisance of personal demands of the value of twenty dollars. The act of May 3d, 1802 (1 U. S. Stat. 194, § 4), considers them as judicial officers, and provides the mode in which execution shall issue upon their judgments. They hold their offices independent of the will of the; president. The appointment of such an officer is complete, when the president has nominated him to the senate, and the senate have advised and consented, and the president has signed the commission, and delivered it to the secretary to be sealed. The president has then done with it; it becomes irrevocable. An appointment of a judge, once completed, is made for ever: he holds under the constitution. The requisites to be performed by the secretary are ministerial, ascertained by law, and he has no discretion, but must perform them; there is no dispensing power. In contemplation of law, they are as if done. These justices exercise part of the judicial power of the United States: they ought, therefore, to be independent. Mr. Lee begged leave again to refer to the Federalist, vol. 2, Nos. 78 and 79, as containing a correct view of this subject. They contained observations and ideas which he wished might be generally read and understood. They contained the principles upon which this branch of our constitution was constructed. It is important to the citizens of this district, that the justices should be independent; almost all the authority immediately exercised over them, is that of the justices. They wish to know whether the justices of this district are to hold their commissions at the will of a secretary of state. *This cause may seem J trivial at first view, but it is important in principle. It is for this reason that this court is now troubled with it. The emoluments or the dignity of the office, are no objects with the applicants. They conceive themselves to be duly appointed justices of the peace, and they believe it to be their duty to maintain the rights of their office, and not to suffer them to be violated by the hand of power. The citizens of this district have their fears excited, by every stretch of power, by a person so high in office as the secretary of state. It only remains now to consider, whether a mandamus, to compel the delivery of a commission by a public ministerial officer, is one of “ the cases warranted by the principles and usages of law.” It is the general principle of law, that a mandamus lies, if there be no other adequate, specific legal remedy. King v. Barker et al., 3 Burr. 1267. This seems to be the result of a view of all the cases on the subject. The case of Bex v. Borough of Midhurst, 1 Wils. 283, was a mandamus to compel the presentment of certain conveyances to purchasers of burgage tenements, whereby they would be entitled to vote for members of parliament. In the case of Bex n. Dr. 96 1803] OF THE UNITED STATES. 152 Marbury v. Madison. Hay, 1 W. Bl. 640, a mandamus issued to admit one to administer an estate. A mandamus gives no right, but only puts the party in a way to try his right. Sid. 286. It lies to compel a ministerial act which concerns the public (1 Wils. 283; 1 Bl. Rep. 640); although there be a more tedious remedy; 2 Str. 1082 ; 4 Burr. 2188 ; 2 Ibid. 1045. So, if there be a legal right, and a remedy in equity. 3 T. R. 652. A mandamus lies to obtain admission into a trading company. Rex v. Turkey Company, 2 Burr. 1000 ; Carth. 448 ; 5 Mod. 402. So, it lies to put the corporate seal to an instrument. 4 T. R. 699. To commissioners of the excise, to grant a permit. 2 Ibid. 381. To admit to an office. 3 Ibid. 575. To deliver papers which concern the public. 2 Sid. 31. A mandamus will sometimes lie in a *doubtful case (1 Lev. 113), to be further considered on the return. 2 Ibid. 14; *■ 1 Sid. 169. It lies to be admitted a member of a church. 3 Burr. 1265, 1043. The process is as ancient as the time of Edw. II. 1 Lev. 23. The first writ of mandamus is not peremptory, it only commands the officer to do the thing, or show cause why he should not do it. If the cause returned be sufficient, there is an end of the proceeding ; if not, a peremptory mandamus is then awarded. It is said to be a writ of discretion. But the discretion of a court always means a sound, legal discretion, not an arbitrary will. If the applicant makes out a proper case, the court are bound to grant it: they can refuse justice to no man. On a subsequent day, and before the court had given an opinion, Mr. Lee read the affidavit of Hazen Kimball, who had been a clerk in the office of the secretary of state, and had been to a distant part of the United States, but whose return was not known to the applicant until after the argument of the case. It stated, that on the 3d of March 1801, he was a clerk in the department of state. That there were in the office, on that day, commissions made out and signed by the president, appointing William Marbury a justice of peace for the county of Washington ; and Robert T. Hooe, a justice of the peace for the county of Alexandria, in the district of Columbia. Afterwards, on the 24th February, the following opinion of the court was delivered by the Chief Justice : Opinion of the Court.—At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the secretary of state to show cause why a mandamus *should not issue, . directing him to deliver to William Marbury his commission as a justice L of the peace for the county of Washington, in the district of Columbia. No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles on which the opinion to be given by the court is founded. These principles have been, on the side of the applicant, very ably argued at the bar. In rendering the opinion of the court, there will be some departure in form, though not in substance, from the points stated in that argument. In the order in which the court has viewed this subject, the following questions have been considered and decided : 1st. Has the applicant a right 1 Cbanch—7 97 154 SUPREME COURT t [Feb’y Marbury v. Madison. to the commission he demands ? 2d. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3d. If they do afford him a remedy, is it a mandamus issuing from this court ? The first object of inquiry is—Has the applicant a right to the commission he demands ? His right originates in an act of congress passed in February 1801, concerning the district of Columbia. After dividing the district into two counties, the 11th section of this law enacts, “ that there shall be appointed in and for each of the said counties, such numbei- of discreet persons to be justices of the peace, as the president of the United States shall, from time to time, think expedient, to continue in office for five years. *1551 aPPears> from affidavits, that, in compliance with this law, a J commission for William Marbury, as a justice of peace for the county of Washington, was signed by John Adams, then President of the United States ; after which, the seal of the United States was affixed to it; but the commission has never reached the person for whom it was made out. In order to determine whether he is entitled to this commission, it becomes necessary to inquire, whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property. The 2d section of the 2d article of the constitution declares, that “ the president shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for.” The 3d section declares, that “ he shall commission all the officers of the United States.” An act of congress directs the secretary of state to keep the seal of the United States, “ to make out and record, and affix the said seal to all civil commissions to officers of the United States, to be appointed by the president, by and with the consent of the senate, or by the president alone ; provided, that the said seal shall not be affixed to any commission, before the same shall have been signed by the president of the United States. These are the clauses of the constitution and laws of the United States, which affect this part of the case. They seem to contemplate three distinct operations : 1st. The nomination : this is the sole act of the president, and is completely voluntary. 2d. The appointment: this is also the act of the president, and is also a voluntary act, though it can only be performed by and with the advice and consent of the senate. *3d. The commis- -* sion : to grant a commission to a person appointed, might, perhaps, be deemed a duty enjoined by the constitution. “ He shall,” says that instrument, “commission all the officers of the United States.” 1. The acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and the same ; since the power to perform them is given in two separate and distinct sections of the constitution. The distinction between the appointment and the commission, will be rendered more apparent, by adverting to that provision in the second section of the second article of the constitution, which authorizes congress “ to vest, by law, the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments 98 1803] OF THE UNITED STATES. 156 Marbury v. Madison. thus contemplating cases where the law may direct! the president to commission an officer appointed by the courts, or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which, perhaps, could not legally be refused. Although that clause of the constitution which requires the president to commission all the officers of the United States, may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence, the constitutional distinction between the appointment to an office and the commission of an officer who has been appointed, remains the same, as if, in practice, the president had commissioned officers appointed by an authority other than his own. It follows, too, from the existence of this distinction, that if an appointment was to be evidenced by any public act, other than the commission, the performance of such public act would create the officer ; and if he was not removable at the will of the president, would either give him a right to his commission, or enable him to perform the duties without it. These observations are premised, solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration. *This is an appointment made by the president, by and with the advice and consent of the senate, and is evidenced by no act but the *■ commission itself. In such a case, therefore, the commission and the appointment seem inseparable ; it being almost impossible to show an appointment, otherwise than by providing the existence of a commission ; still the commission is not necessarily the appointment, though conclusive evidence of it. •But at what stage, does it amount to this conclusive evidence ? The answer to this question seems an obvious one. The appointment being the sole act of the president, must be completely evidenced, when it is shown that he has done everything to be performed by him. Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself; still, it would be made, when the last act to be done by the president was performed, or, at farthest, when the commission was complete. The last act to be done by the president is the signature of the commission : he has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed : he has decided. His judgment, on the advice and consent of the senate, concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete transaction. Some point of time must be taken, when the power of the executive over an officer, not removable at his will, must cease. That point of time must be, when the constitutional power of appointment has been exercised. And this power has been exercised, when the last act, required from the person possessing the power, has been performed : this last act is the signature of the commission. This idea seems to have prevailed with the legislature, 99 *158 SUPREME COURT [Feb’y Marbury v. Madison. when the act passed converting the department *of foreign affairs into the department of state. By that act, it is enacted, that the secretary of state shall keep the seal of the United States, “ and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States, to be appointed by the president;” “provided, that the said seal shall not be affixed to any commission, before the same shall have been signed by the President of the United States ; nor to any other instrument or act, without the special warrant of the president therefor.” The signature is a warrant for affixing the great seal to the commission ; and the great seal is only to be affixed to an instrument which is complete. It attests, by an act, supposed to be of public notoriety, the verity of the presidential signature. It is never to be affixed, until the commission is signed, because the signature, which gives force and effect to the commission, is conclusive evidence that the appointment is made. The commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the president. He is to affix the seal of the United States to the commission, and is to record it. This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible ; but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the secretary of state, to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the president. It is a ministerial act, which the law enjoins on a particular officer for a particular purpose. If it should be supposed, that the solemnity of affixing the seal is necessary, not only to the validity of the commission, but even to the completion of an appointment, still, when the seal is affixed, the appointment is made, and *the commission is valid. No othei’ solemnity is required by law; J no othei’ act is to be performed on the part of government. All that the executive can do, to invest the person with his office, is done ; and unless the appointment be then made, the executive cannot make one without the co-operation of others. After searching anxiously for the principles on which a contrary opinion may be supported, none have been found, which appear of sufficient force to maintain the opposite doctrine. Such as the imagination of the court could suggest, have been very deliberately examined, and after allowing them all the weight which it appears possible to give them, they do not shake the opinion which has been formed. In considering this question, it has been conjectured, that the commission may have been assimilated to a deed, to the validity of which delivery is essential. This idea is founded on the supposition, that the commission is not merely evidence of an appointment, but is itself the actual appointment; a supposition by no means unquestionable. But for the purpose of examining this objection fairly, let it be conceded, that the principle claimed for its support is established. The appointment being, under the constitution, to be made by the president, personally, the delivery of the deed of appointment, if necessary to its completion, must be made by the president also. It is not necessary, that the delivery should be made personally to the grantee of the office: it never is so made. The law would seem to contemplate, that it should be made to 100 1803] OF THE UNITED STATES. 159 Marbury v. Madison. the secretary of state, since it directs the secretary to affix the seal to the commission, after it shall have been signed by the president. If, then, the act of delivery be necessary to give validity to the commission, it has been delivered, when executed and given to the secretary, for the purpose of being sealed, recorded and transmitted to the party. But in all cases of letters-patent, certain solemnities are required by law, which solemnities are the evidences *of the validity of the instru-ment: a formal delivery to the person is not among them? In cases of commissions, the sign manual of the president, and the seal of the United States are those solemnities. This objection, therefore, does not touch the case. It has also occurred as possible, and barely possible, that the transmission of the commission, and the acceptance thereof, might be deemed necessary to complete the right of the plaintiff. The transmission of the commission is a practice, directed by convenience, but not by law. It cannot, therefore, be necessary to constitute the appointment, which must precede it, and which is the mere act of the president. If the executive required that every person appointed to an office should himself take means to procure his commission, the appointment would not be the less valid on that account. The appointment is the sole act of the president; the transmission of the commission is the sole act of the officer to whom that duty is assigned, and may be accelerated or retarded by circumstances which can have no influence on the appointment. A commission is transmitted to a person already appointed; not to a person to be appointed or not, as the letter inclosing the commission should happen to get into the post-office and reach him in safety, or to miscarry. It may have some tendency to elucidate this point, to inquire, whether the possession of the original commission be indispensably necessary to authorize a person, appointed to any office, to perform the duties of that office. If it was necessary, then a loss of the commission would lose the office. Not only negligence, but accident or fraud, fire or theft, might deprive an individual of his office. In such a case, I presume, it could not be doubted, but that a copy from the record of the office of the secretary of state would be, to every intent and purpose, equal to the original: the act of congress has expressly made it so. To give that copy validity, it would not be necessary to prove that the original had been transmitted and afterwards lost. The copy would be complete evidence that the original had existed, and that the appointment had been made, but not that the original had been transmitted. If, indeed, it should appear, that *the original had been mislaid in the office of state, that circumstance would not affect 161 the operation of the copy. When all the requisites have been performed, which authorize a recording officer to record any instrument whatever, and the order for that purpose has been given, the instrument is, in law, considered as recorded, although the manual labor of inserting it in a book kept for that purpose may not have been performed. In the case of commissions, the law orders the secretary of state to record them. When, therefore, 1 But a pardon is a deed, to which delivery 307. And see Commonwealth v. Halloway, 44 and acceptance are essential. United States v. Penn, St. 210. Wilson, 7 Pet. 150 ; Ex parte De Puy, 3 Ben. 101 161 SUPREME COURT [Feb’y Marbury v. Madison. they are signed and sealed, the order for their being recorded is given ; and whether inserted in the book or not, they are in law recorded. A copy of this record is declared equal to the original, and the fees to be paid by a person requiring a copy are ascertained by law. Can a keeper of a public record erase therefrom a commission which has been recorded ? Or can he refuse a copy thereof to a person demanding it on the terms prescribed by law ? Such a copy would, equally with the original, authorize the justice of peace to. proceed in the performance of his duty, because it would, equally with the original, attest his appointment. If the transmission of a commission be not considered as necessary to give validity to an appointment, still less is its acceptance. The appointment is the sole act of the president; the acceptance is the sole act of the officer, and is, in plain common sense, posterior to the appointment. As he may resign, so may he refuse to accept: but neither the one nor the other is capable of rendering the appointment a nonentity. That this is the understanding of the government, is apparent from the whole tenor of its conduct. A commission bears date, and the salary of the officer commences, from his appointment; not from the transmission or acceptance of his commission. When a person appointed to any office refuses to accept that office, the successor is nominated in the place of the *i«91 Person who *has declined to accept, and not in the place of the per- J son who had been previously in office, and had created the original vacancy. It is, therefore, decidedly the opinion of the court, that when a commission has been signed by the president, the appointment is made ; and that the commission is complete, when the seal of the United States has been affixed to it by the secretary of state. Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern ; because the act is at any time revocable ; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled : it has conferred legal rights which cannot be resumed. The discretion of the executive is to be exercised, until the appointment has been made. But having once made the appointment, his power over the office is terminated, in all cases where, by law, the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute unconditional power of accepting or rejecting it. Mr. Marbury, then, since his commission was signed by the president, and sealed by the secretary of state, was appointed ; and as the law creating the office, gave the officer a right to hold for. five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are-protected by the laws of his country. To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right. 2. This brings us to the second inquiry ; which is : If he has a right, and that right has been violated, do the laws of his country afford him a remedy ? * i *The very essence of civil liberty certainly consists in the right of J every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that pro- 102 1803] OF THE UNITED STATES. 163 Marbury v. Madison. tection. In Great Britain, the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. In the 3d vol. of his Commentaries (p. 23), Blackstone states two cases in which a remedy is afforded by mere operation of law. “ In all other cases,” he says, “ it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded.” And afterwards (p. 109, of the same vol.), he says, “ I am next to consider such injuries as are cognisable by the courts of the common law. And herein I shall, for the present, only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognisance of either the ecclesiastical, military or maritime tribunals, are, for that very reason, within the cognisance of the common-law courts of justice ; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.” The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case. ' It behooves us, then, to inquire whether there be in its composition any ingredient which shall exempt it from legal investigation, or exclude the injured party from legal redress. In pursuing this inquiry, the first question which presents itself is, whether this can be arranged *with that class of cases which come under the description of damnum, absque *-injuria ; a.loss without an injury. This description of cases never has been considered, and it is believed, never can be considered, as comprehending offices of trust, of honor or off profit. The office of justice of peace in the district of Columbia is such an office ; it is, therefore, worthy of the attention and guardianship of the laws. It has received that attention and guardianship : it has been created by special act of congress, and has been secured, so far as the laws can give security, to the person appointed to fill it, for five years. It is not, then, on account of the worthlessness of the thing pursued, that the injured party can be alleged to be without remedy. Is it in the nature of the transaction ? Is the act of delivering or withholding a commission to be considered as a mere political act, belonging to the executive department alone, for the performance of which entire confidence is placed by our constitution in the supreme executive ; and for any misconduct respecting which, the injured individual has no remedy ? That there may be such cases is not to be questioned ; but that every act of duty, to be performed in any of the great departments of government, constitutes such a case, is not to be admitted. By the act concerning invalids, passed in June 1794 (1 U. S. Stat. 392), the secretary at war is ordered to place on the pension list, all persons whose names are contained in a report previously made by him to congress. If he should refuse to do so, would the wounded veteran be without remedy ? Is it to be contended, that where the law, in precise terms, directs the performance of an act, in which an individual is interested, the law is incapable of securing obedience to its mandate ? Is it on account of the character of the person against whom the complaint is made ? Is it to be contended that the heads of departments are not amenable to the laws of their country ? What- 103 164 SUPREME COURT [Feb’y Marbury v. Madison. ever the practice on particular occasions may be, the theory of this principle will certainly never be maintained. *No act of the legislature 0 J confers so extraordinary a privilege, nor can it derive countenance from the doctrines of the common law. After stating that personal injury from the king to a subject is presumed to be impossible, Blackstone (vol. 3, p. 255), says, “ but injuries to the rights of property can scarcely be committed by the crown, without the intervention of its officers ; for whom the law, in matters of right, entertains no respect or delicacy; but furnishes various methods of detecting the errors and misconduct of those agents, by whom the king has been deceived and induced to do a temporary injustice.” By the act passed in 1796, authorizing the sale of the lands above the mouth of Kentucky river (1 U. S. Stat. 464), the purchaser, on paying his purchase-money, becomes completely entitled to the property purchased; and on producing to the secretary of state the receipt of the treasurer, upon a certificate required by the law, the president of the United States is authorized to grant him a patent. It is further enacted, that all patents shall be countersigned by the secretary of state, and recorded in his office. If the secretary of state should choose to withhold this patent; or, the patent being lost, should refuse a copy of it; can it be imagined, that the law furnishes to the injured person no remedy ? It is not believed, that any person whatever would attempt to maintain such a proposition. It follows, then, that the question, whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act. If some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction. In some instances, there may be difficulty in applying the rule to particular cases ; but there cannot, it is believed, be much difficulty in laying down the rule. By the constitution of the United States, the president is invested with *1 ««1 cer^ain important political powers, in the *exercise of which he is to J use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority, and in conformity with his orders. In such cases, their acts are his acts ; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political: they respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived, by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president: he is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts. But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts ; when the rights of individuals are dependent on the performance of those acts ; he is so far the officer of the law ; is amenable to the laws for his conduct; and cannot, at his discretion, sport away the vested rights of others. 104 1803] OF THE UNITED STATES. 166 Marbury v. -Madison. The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to exe- / cute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear, than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear, that the individual who I considers himself injured, has a right to resort to the laws of his country for a remedy.1 If this be the rule, let us inquire, how it applies to the case under the consideration of the court. *The power of nominating to the senate, pjgy and the power of appointing the person nominated, are political pow- L ers, to be exercised by the president, according to his own discretion. When he has made an appointment, he has exercised his whole power, and his discretion has been completely applied to the case. If, by law, the officer be removable at the will of the president, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed, cannot be made never to have existed, the appointment cannot be annihilated; and consequently, if the officer is by law not removable at the will of the president, the rights he has acquired are protected by the law, and are not resumable by the president. They cannot- be extinguished by executive authority, and he has the privilege of asserting them in like manner, as if they had been derived from any other source. The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority. If, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one ; in consequence of which, a suit has been instituted against him, in which his defence had depended on his being a magistrate, the validity of his appointment must have been determined by judicial authority. So, if he conceives that, by virtue of his appointment, he has a legal right either to the commission which has been made out for him, or to a copy of that commission, it is equally a question examinable in a court, and the decision of the court upon it must depend on the opinion entertained of his appointment. That question has been discussed, and the opinion is, that the latest point of time which can be taken as that at which the appointment was complete, and evidenced, was when, after the signature of the president, the seal of the United States was affixed to the commission. It is, then, the opinion of the Court : 1st. That by signing the commission of Mr. Marbury, the President of the United States appointed him a justice *of peace for the county of Washington, in the district of |Columbia; and that the seal of the United States, affixed thereto by the 'secretary of state, is conclusive testimony of the verity of the signature, land of the completion of the appointment; and that the appointment conferred on him a legal tight to the office for the space of five years. 2d. That, I having this legal title to the office, he has a consequent right to the com-| mission; a refusal to deliver which is a plain violation of that right, for I which the laws of his country afford him a remedy. 1 See Gaines v. Thompson, 7 Wall. 347. 105 168 SUPREME COURT [Feb’y Marbury v. Madison. 3. It remains to be inquired whether he is entitled to the remedy for which he applies ? This depends on—1st. The nature of the writ applied for ; and 2d. The power of this court. 1st. The nature of the writ. Blackstone, in the 3d volume of his Commentaries, page 110, defines a mandamus to be “a command issuing in the king’s name, from the court of king’s bench, and directed to any person, corporation or inferior court of judicature, within the king’s dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king’s bench has previously * determined, or at least supposes, to be consonant to right and justice.” Lord Mansfield, in 3 Burr. 1267, in the case of The King n. Taker et al., states, with much precision and explicitness, the cases in which this writ may be used. “ Whenever,” says that very able judge, “ there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern, or attended with profit), and a person is kept out of possession, or dispossessed of such right, and *1691 no other specific legal remedy, this court ought to assist by J mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order and good government.” In the same case, he says, “ this writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.” In addition to the authorities now particularly cited, many others were relied on at the bar, which show how far the practice has conformed to the general doctrines that have been just quoted. This writ, if awarded, would be directed to an officer of government, and its mandate to him would be, to use thè words of Blackstone, “ to do a particular thing therein specified, which appertains to his office and duty, and which the court has previously determined, or at least supposes, to be consonant to right and justice.” Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office of public concern, and is kept out of possession of that right. These circumstances certainly concur in this case. Still, to render the mandamus a proper remedy, the officer to whom it is to be directed, must be one to whom, on legal principles, such writ may be directed ; and the person applying for it must be without any other specific and legal remedy. 1 . With respect to the officer to whom it would be directed. The intimate political relation subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate ; and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received, without much reflection or examination, and it is not wonderful, that in such a case as this, the assertion, by an individual, of his legal claims in a court o.f justice, to which claims it is the duty of that court to attend, should at first view be considered *1 'ml *by some, as an attempt to intrude into the cabinet, and to intermed- J die with the prerogatives of the executive. It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and excessive, could not have 106 1803] OF THE UNITED STATES. 170 Marbury v. Madison. been entertained for a moment. The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.1 But, if this be not such a question ; if, so far from being an intrusion into the secrets of the cabinet, it respects a paper which, according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents ; if it be no intermeddling with a subject over which the executive can be considered as having exercised any control; what is there, in the exalted station of the officer, which shall bar a citizen from asserting, in a court of justice, his legal rights, or shall forbid a court to listen to the claim, or to issue a mandamus, directing the performance of a duty, not depending on executive discretion, but on particular acts of congress, and the general principles of law ? If one of the heads of departments commits any illegal act, under color of his office, by which an individual sustains an injury, it cannot be pretended, that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How then, can his office exempt him from this particular mode of deciding on the legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process ? It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined. Where the head of a department acts in a case, in which executive discretion is to be exercised ; in which he is the mere organ of executive will ; it is *again repeated, that any appli- r*-p| cation to a court to control, in any respect, his conduct would be re- ‘ jected without hesitation. But where he is directed by law to do a certain act, affecting the absolute rights of individuals, in the performance of which he is not placed undei’ the particular direction of the president, and the performance of which the president cannot lawfully forbid, and therefore, is never presumed to have forbidden ; as, for example, to record a commission or a patent for land, which has received all the legal solemnities ; or to give a copy of such record; in such cases, it is not perceived, on what ground the courts of the country are further excused from the duty of giving judgment that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department. This opinion seems not now, for the first time, to be taken up in this country. It must be well recollected, that in 1792, an act passed, directing, the Secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him, by the circuit courts, which act, so far as the duty was imposed on the courts, was deemed unconstitutional ;4 but some 1 Gelston v. Hoyt, 3 Wheat. 247; United States v. Palmer, Id. 610; Garcia v. Lee, 12 Pet. 511; Williams«). Suffolk Ins. Co., 13 Id. 415; Scott v. Jones, 5 How. 343 ; Luther v. Borden, 7 Id. 1; Kennett v. Chambers, 14 Id. 38; Clark v. Braden, 16 Id. 635 ; Fellows v. Blacksmith, 19 Id. 366; United States v. Holliday, 3 Wall. 407; Georgia v. Stanton, 6 Id. 50. 2 Hayburn’s case, 2 Dall. 410 n ; United States v. Todd, 13 How. 52 n. 107 171 SUPREME COURT [Feb’y Marbury v. Madison. of the judges, thinking that the law might be executed by them in the character of commissioners, proceeded to act, and to report in that character. This law being deemed unconstitutional, at the circuits, was repealed, and a different system was established; but the question whether those persons who had been reported by the judges, as commissioners, were entitled, in consequence of that report, to be placed on the pension list, was a legal question, properly determinable in the courts, although the act of placing such persons on the list was to be performed by the head of a department. That this question might be properly settled, congress passed an act, in February 1793, making it the duty of the secretary of war, in conjunction with the attorney-general, to take such measures as might be necessary to *1721 °bfain an adjudication of the supreme court of the United *States J on the validity of any such rights, claimed under the act aforesaid. After the passage of this act, a mandamus was moved for, to be directed to the secretary of war, commanding him to place on the pension list, a person stating himself to be on the report of the judges. There is, therefore, much reason to believe, that this mode of trying the legal right of the complainant was deemed, by the head of a department, and by the highest law-officer of the United States, the most proper which could be selected for the purpose. When the subject was brought before the court, the decision was, not that a mandamus would not lie to the head of a department, directing him to perform an act, enjoined by law, in the performance of which an individual had a vested interest; but that a mandamus ought not to issue in that case ; the decision necessarily to be made, if the report of the commissioners did not confer on the applicant a legal right. The judgment, in that case, is understood to have decided the merits of all claims of that description ; and the persons, on the report of the commissioners, found it necessary to pursue the mode prescribed by the law, subsequent to that which had been deemed unconstitutional, in order to place themselves on the pension list. The doctrine, therefore, now advanced, is by no means a novel one. It is true, that the mandamus, now moved for, is not for the performance of an act expressly enjoined by statute. It is to deliver a commission ; on which subject, the acts of congress are silent. This difference is not considered as affecting the case. It has already been stated, that the applicant has, to that commission, a vested legal right, of which the executive cannot deprive him. He has been appointed to an office, from which he is not re-Ho-i movable at the will of the executive ; and being so *appointed, he -1 has a right to the commission which the secretary has received from the president for his use. The act of congress does not indeed order the secretary of state to send it to him, but it is placed in his hands for the person entitled to it; and cannot be more lawfully withheld by him, than by any other person. It was at first doubted, whether the action of detinue was not a specific legal remedy for the commission which has been withheld from Mr. Marbury ; in which case, a mandamus would be improper. But this doubt has yielded to the consideration, that the judgment in detinue is for the thing itself, or its value. The value of a public office, not to be sold, is incapable of being ascertained ; and the applicant has a right to the office itself, or to 108 1803] OF THE UNITED STATES. 173 Marbury v. Madison. nothing. He will obtain the office by obtaining the commission, or a copy of it, from the record. This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired, whether it can issue from this court ? The act to establish the judicial courts of the United States authorizes the supreme court, “ to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed or persons holding * office, under the authority of the United States.” The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of this description ; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore, absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign. The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States ; and consequently, in some form, may be exercised over the present *case ; because the right claimed is given by a law of the United States. In the distribution of this power, it is declared, that “ the supreme court shall have original jurisdiction, in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.” It has been insisted, at the bar, that as the original grant of jurisdiction to the supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the supreme court, contains no negative or restrictive words, the power remains to the legislature, to assign original jurisdiction to that court, in other cases than those specified in the article which has been recited ; provided those cases belong tothe judicial power of the United States If it had been intended to leave it in the discretion of the legislature, to apportion the judicial power between the supreme and inferior courts, according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage—is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constituton has declared their jurisdiction shall be original ; and original jurisdiction where the constitution has declared it shall be appellate ; the distribution of jurisdiction, made in the constitution, is form without substance. Affirmative words are often, in their operation, negative of other objects than those affirmed ; and in this case, a negative or exclusive sense must be given to them, or they have no operation at all.1 It cannot be presumed, that any clause in the constitution is intended to be without effect; and therefore, such a construction is inadmissible, unless the words require it. *If the solicitude of the convention, respecting p*. our peace with foreign powers, induced a provision that the supreme '1 See Gittings v. Crawford, Taney’s Dec. 1. 109 ^5 SUPREME COURT [Feb’y Marbury v. Madison. court should take original jurisdiction in cases which might be supposed to affect them ; yet the clause Would have proceeded no further than to provide for such cases, if no further restriction on the powers of congress had been intended. That they should have appellate jurisdiction in all other cases, wffh such exceptions as congress might make, is no restriction ; unless the words be deemed exclusive of original jurisdiction. When an instrument organizing, fundamentally, a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish ; then enumerates its powers, and proceeds so far to distribute * them, as to define the jurisdiction of the supreme court, by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be, that in one class of cases, its jurisdiction is original, and not appellate ; in the other, it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning. To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar, that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original. It is the essential criterion ctf appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer, for the delivery of a paper, is, in effect, the same as to sustain an original action for that paper, and therefore, seems not to be-long to *appellate, but to original jurisdiction. Neither is it neces-J sary in such a case as this, to enable the court to exercise its appellate jurisdiction. The authority, therefore, given to the supreme court by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution ; and it becomes necessary to inquire, whether a jurisdiction so conferred can be exercised. The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States ; but, happily, not of an intricacy proportioned to its interest. It seems only . necessary to recognise certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion ; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental: and as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The 110 1803] OF THE UNITED STATES. 176 Marbury v. Madison. government of the United States is of the latter description. The powers of the legislature are defined and limited ; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained ? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited *and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it ; or that the legislature may alter the constitution by an ordinary act. Between these alternatives, there is no middle ground.' The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.' If the former part of the alternative be true, then a legislative act, contrary to the constitution, is not law : if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature, illimitable. Certainly, all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and is, consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not* therefore, to be lost sight of, in the further consideration of this subject. If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect ? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law ? This would be to overthrow, in fact, what was established in theory ; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is, emphatically, the province and duty of the judicial department, to' say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. *So, if a law r*, be in opposition to the constitution ; if both the law and the constitu-tion apply to a particular case, so that the court must either decide that case, conformable to the law, disregarding the constitution ; or conformable to the constitution, disregarding the law ; the court must determine which of these conflicting rules governs the case : this is of the very essence of judicial duty. If then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle, that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the prin- 111 178 SUPREME COURT [Feb’y Marbury v. Madison. ciples and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real-omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. That it thus reduces to nothing, what we have deemed the greatest improvement on political institutions, a written constitution, would, of itself, be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favor of its rejection. The judicial power of the United States is extended to all cases arising under the con-*1H91 st^tu^on> *Could it be the intention of those who gave this power, 1 -* to say, that in using it, the constitution should not be looked into? That a case arising under the constitution should be decided, without examining the instrument under which it arises ? This is too extravagant to be maintained. In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey ? There are many other parts of the constitution which serve to illustrate this subject. It is declared, that “no tax or duty shall be laid on articles exported from any state.” Suppose, a duty on the export of cotton, of tobacco or of flour ; and a suit instituted to recover it. Ought judgment to be rendered in such a ease ? ought the judges to close their eyes on the constitution, and only see the law ? The constitution declares “that no bill of attainder or ex post facto law shall be passed.” If, however, such a bill should be passed, and a person should be prosecuted under it ; must the court condemn to death those victims whom the constitution endeavors to preserve ? “No person,” says the constitution, “shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.” Here, the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to b,e departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act ? From these, and many other selections which might be made, it is appar-* -, ent, that the framers of the constitution Contemplated that instru- -* ment as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it ? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support ! The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: “ I do solemnly swear, that I will administer justice, without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as--------, accord-112 1803] OF THE UNITED STATES. 180 Clark v. Young. ing to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.” Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government ? if it is closed upon him, and cannot be inspected by him ? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned ; and not the laws of the United States, generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. The rule must be discharged. o *Bailey E. Clark v. Robert Y oung & Co. [*181 Promissory notes. In Virginia, it is not absolutely necessary, in all cases, to sue the maker of a promissory note, to entitle the holder to an action against the indorser. If a promissory note of a third person be indorsed by the purchaser of goods to the vendor, as a conditional payment for the goods: queere ? whether the vendor is, in any case, obliged to sue the maker of the note, before he can resort to the purchaser of the goods on the original contract of sale.,1 A suit against the defendant, as indorser of the note, and a suit against the defendant, for the goods sold, are upon distinct and different causes of action; and the first cannot be pleaded in bar of the second. It is not necessary for the plaintiff to offer to return the note, to entitle him to bring suit for the goods sold. Error from the Circuit Court of the district of Columbia, sitting in the county of Alexandria. This was an action on the case, for goods sold and delivered by Young & Co. to Clark. The declaration had three counts; one for the price of the goods; one on a quantum valebant; and one for money had and received. .The cause came on to be tried in the court below, on the general issue, at April term 1802. The facts, on the trial, appeared to be, that on the 9th of September 1794, Young & Co. sold to Clark, 400 bushels of salt, at 4s. 3 ¿4 per bushel, amounting to $283.33. At the time of the sale and delivery of the salt, Clark assigned to Young & Co., a negotiable promissory note, made by one Mark Edgar to Pickersgill & Co., and by them indorsed to Clark, dated September 5th, 1794, for $289, payable sixty days after date, at the bank of Alexandria. That Young & Co. instituted a suit, in Fairfax county court, in Virginia, against Clark, on his indorsement of this note; upon the trial of which cause, Clark, by his counsel, “ prayed the opinion of the court, whether the plaintiffs could maintain their action against him, previous to ’See Harris v. Johnston, 3 Or. 311; Roach v. Hulings, 16 Pet. 326. 1 Cranch—8 113 181 SUPREME COURT [Feb’y Clark v. Young. their having commenced a suit and obtained judgment against the drawer or maker of the note; and until his insolvency should appear;” and the court gave it as their opinion, that they could not; and directed the jury accordingly. Whereupon, a verdict was found for the defendant. It also appeared, that at the time the note was indorsed by Clark to Young & Co., as well as at the time when it became payable, Mark Edgar, the maker of the note, was in bad circumstances, and was supposed and reputed to be insolvent. And that, about the middle or last of December 1794, he left Alexandria, and had never returned to it. * , *The record which came up to this court contained three bills of -* exceptions: 1. The first contained a demurrer, on the part of the defendant below, to the evidence, which the circuit court refused to compel the plaintiffs to join. This exception was abandoned by the counsel for the plaintiff in error. 2. The second bill of exceptions was in these words : “ Memorandum, in the trial of this cause, the defendant gave in evidence to the jury, that the plaintiffs had instituted a suit against him, in the county court of Fairfax, upon the indorsement of the promissory note of Mark Edgar, hereinbefore mentioned ; the proceeding in which said suit are in these words, to wit” (here was inserted the record of Fairfax county court) : “Whereupon, the counsel for the defendant prayed the court to instruct the jury, that if, from the evidence given in this cause, they should be of opinion, that the promissory note aforesaid, was indorsed by the defendant to the plaintiffs, in consequence of the goods, wares and merchandise, sold as aforesaid (although the said indorsement was not intended as an absolute payment for the said goods, wares and merchandise, or. received as such by the plaintiffs, but merely as a conditional payment thereof), yet, the receipt of the said note, under such circumstances, and the institution of the aforesaid suit by the plaintiffs, against the defendant, upon his indorsement aforesaid, made the note so far a payment to said plaintiffs, for the said goods, wares and merchandise, as to preclude them from sustaining any action against the said defendant for the'goods, wares and merchandise, until they had taken such measures against the said Mark Edgar, as were required by the laws of Virginia ; and that the plaintiffs, having instituted the said suit upon the said note, against the defendant, and that having been decided against the said plaintiffs, were barred from sustaining this action against the said defendant. But the court refused to give the instruction as prayed, and instructed the jury, that if they should be of opinion, from the evidence, that the salt was sold and delivered by the plaintiffs to the defendant, and the note was indorsed by the defendant to the plaintiffs, in consequence of the salt sold, although the said indorsement was not intended *as an absolute pay- J ment, and received as such by the plaintiffs, but merely as a conditional payment thereof, then the same is a discharge for the salt sold, unless it is proved, that due diligence has been used by the plaintiffs to receive the money due on the note ; but the bringing a suit against Mark Edgar is not absolutely a necessary part of said diligence ; but the want of such suit may be accounted for, by the insolvency of the said Edgar, if proved ; or by the conduct of the defendant himself preventing such suit; to which refusal and 114 1803] OF THE UNITED STATES. 183 Clark v. Young. direction of the court, the defendant, by his counsel, prayed leave to except,” &c. 3. The third bill of exceptions stated, that “ the defendant, by his counsel, then prayed the opinion of the court and their direction to the jury, that the defendant was entitled to a credit for the amount of the said note, unless the plaintiffs could show that they had instituted a suit thereon against Edgar ; or that Edgar had taken the oath of an insolvent debtor, or had absconded, at the time the note became payable ; or unless the plaintiffs could show that they had offered to return and re-assign the said note to the said defendant, previous to the institution of this suit. But the court having before, in the trial of the said cause, on application by the defendant to instruct the jury in the manner set forth in his second bill of exceptions, given directions to the jury, comprehending all the material points contained in the above prayer, refused to give the instruction as prayed, to which refusal, the defendant, by his counsel, prayed leave to except,” &c. Verdict and judgment for the plaintiffs, for the full amount of the salt sold ; on which judgment, the defendant brought a writ of error to this court. Swann and Mason, for the plaintiff in error. C. Lee and E. J. Lee, for the defendants. Swann.—If a note is indorsed to the vendor, at the time of the sale of goods, although it is not agreed to be an absolute *payment, yet it is a conditional payment, viz., if the note be paid, or if it be indorsed over by the vendor, or if he is guilty of laches. (Kear slake v. Morgan, 5 T. R. 513.) In that casQ, the plea (which was adjudged good on demurrer) stated that the note of one W. Pierce was indorsed by Morgan to Kears-lake, “ for and on account” of the goods sold, and that Kearslake “ then and there accepted and received the note for and on account ” of the sum due for the goods. The defendants in error, if they have been guilty of laches, have made the note their own, and must suffer the loss. (Chamberlin v. Delarive, 2 Wils. 353.) The question then arises, what was due diligence in this case ? As the law stands in Virginia, Young & Co. ought to have sued Mark Edgar, the maker of the note. Such is the opinion of Judge Roane, in the case of Mackie v. Davis, 2 Wash. 230, which is confirmed by the judgment of the court of appeals in the case of Lee v. Love, 1 Call 497. But it is unnecessary to resort to the general law in Virginia on this point, because the court of Fairfax county has decided the law in this case, and while that judgment stands unreversed, it is conclusive. The plaintiffs • have made their election of two modes of proceeding to recover the money ; having failed in one, they are barred as to the other. The same evidence is necessary to support both, and this is the test to prove that they are for the same cause. (Kitchen v. Campbell, 3 Wils. 304.) That court has decided, that Clark was not liable on his indorsement of the note, because Young & Co. had not brought suit against Edgar ; or, in other words, they have decided that Young & Co. have not used due diligence, and therefore, have made the note their own ; and if so, the original contract for the salt is at an end. Yet the court below have decided this 115 184 SUPREME COURT Clark v. Young. [Feb’y very question differently ; they have said that a suit against Edgar was not a necessary part of due diligence. The same question, between the same parties, has been differently decided by the two courts. 1 * Mason, on the same side.—The court below was, concluded by J the decision of the county court of Fairfax. Nemo bis vexari debet. The plaintiffs below had two modes of recovering their money from Clark, viz., by a suit for the salt sold, or by an action against Clark on his indorsement of the note. They made their election of the latter, and it has been decided against them. This ought to end the business. (Kitchen v. Campbell, 3 Wils. 304.) K. J. Lee, contra.—The question seems to turn on the second bill of exceptions. It appears by that, that the note was not given as an absolute, but a conditional payment. It is unreasonable to suppose, that the condition was, that Young & Co. should be obliged to prosecute a suit against Edgar through all the courts of Virginia. The prayer was to instruct the jury that a suit must be proved to have been prosecuted against Edgar, and his insolvency made to appear. The judgment of the county court of Fairfax is no bar. It was not even a bar to a second suit by Young & Co. against Clark, on the same note. For the opinion of that court was not, generally, that the suit would not lie against Clark, on his indorsement, but that it would not lie against him, previous to a suit against Edgar, and his insolvency being made to appear. Therefore, after proving Edgar insolvent by a suit, Young & Co. might have brought a second suit against Clark, and recovered, for anything that appears by the opinion of that court. If, then, Young & Co. might have had a second action upon the note, they may well bring a suit upon their original cause of action. The opinion of the Fairfax court was only that the plaintiffs had brought their action too soon. It is said, this is the same cause of action which has been decided in the county court of Fairfax, and that the judgment in that court is a bar to this *1 Rfil ac^on- *In order to prove this, it is necessary to show, not only ■* that the same evidence applies to both, but the former judgment must have been upon the same point. And that point must be on the merits. 5 Bac. Abr. (new ed.) p. 442. In the case of KearslakcN. Morgan, cited from 5 T. R. 513, it did not appear what had become of the note ; it might have been paid. Besides, that was a case under the statute of Anne, which makes promissory notes a payment. The case of Chamberlyn n. Delarive, in 2 Wils. 353, was decided on the gross negligence of the plaintiff, in holding the order four months, without making a demand of the money, until the drawee failed. The refusal of the court below to give the instruction prayed, and the direction which they did give to the jury, are both justified by the decisions of the court of appeals of Virginia. That court has never decided, that a suit against the maker of the note is, in all cases, necessary, before resort can be had to the indorser. It is true, that in the case of Mackie v. Davis, Judge Roane said, that “the assignee of a bond acquires a legal right to bring suit upon it, and to receive the money, discharged from any control of the assignor over the subjectand that “ it is, therefore, his duty to bring 116 1803] OF THE UNITED STATES. 186 Clark v. Young. suit.” But that was ohly an obiter opinion, not applicable to the point of the cause. It is certainly not a self-evident truth, nor is it very apparent, how the conclusion flows from the premises ; and J udge Carrington, in his opinion, in the same case (p. 231), says, “As to. the lengths which it behooves the assignee to go in pursuit of the obligor, before he can resort to the assignor, it is unnecessary to lay down any general rule ; it may suffice to say, that in the present case, he went far enough.” In that case, indeed, a suit had been brought ; but the courts of Virginia have never laid down any general rule as to what is due diligence in such a case. In the case of Lee v. Lone, in 1 Call 497, and Minnis v. Pollard, Ibid. 226, it seems rather to be inferred, that a suit is not in all cases necessary. In the case of Mackie y. Davis, the court decided, that the remedy of the assignee of a bond against the assignor, was by the common law ; and it is clear, from *the case of Lambert v. Oakes, in 1 Ld. Raym. 443, that, by the com- *-mon law, the indorsee of a note had his remedy against the indorser, if the money was not paid by the maker of the note, on demand. If, therefore, a suit against the maker of a note is not, in all cases, necessary to charge the indorser, the court below were right, both in refusing the instruction as prayed, and giving the opinion which they did. C. Lee, on the same side.—1. The point arising from the first bill of exceptions is, that the court might well refuse to compel the plaintiffs below to join in demurrer to the evidence. This point being now agreed, I shall consider— 2. Whether the court did right in refusing the instruction to the jury, as prayed in the second bill of exceptions. It is not necessary to inquire whether the instruction which they did give was right, but whether they were bound to give that which was asked. If the note was not received, at the time, as absolute payment for the salt, Young & Co. had a right of action for the price of the salt, upon demand and refusal of payment of the note by Edgar. The liability of the indorser to the indorsee of a note is at common law, and not by the custom of merchants, or the statute of Anne. And by the common law, nothing more was necessary to fix that liability, than a demand upon the maker of the note, and his refusal to pay. Upon this, and this only, the right of action accrued against the indorser. It is true, that Young & Co. had two remedies : they might either sue Clark upon his indorsement, or upon the original contract for the salt. Having failed in the former, they are not precluded from resorting to the latter: their election of the first is not a waiver of the last. The action in Fairfax county, on the note, was no bar to the action in the district of Columbia, upon the account. The note was no payment of the account, nor *was the former action for the same cause as the rs(, present: the causes of action, and the evidence necessary to support • them, were entirely different. The declaration in Fairfax county contained three counts : 1st. A special count on Clark’s indorsement of the note; 2d. For money lent; 3d. For money had and received. In the present action, the declaration has also three counts: 1st. For the price of the salt sold ; 2d. A quantum oalebat ’ 3d. Money had and received. The same evidence will not support both actions : The indorsement of Clark is the evidence 117 188 ‘ SUPREME COURT [Feb’y Clark v. Young. necessary in one: the delivery of the salt is the evidence to support the other. In the case of Kitchin v. Campbell, 2 W. Bl. 827, 831, the court said, , “ the principal consideration is, whether it be precisely the same cause of action in both, appearing by proper averments, in a plea ; or by proper facts stated in a special verdict, or a special case. One great criterion of this identity is, that the same evidence will sustain both the actions and cited Putt v. Royston, 2 Show. 211 ; Ld. Raym. 472 ; 3 Mod. 1 ; Pollexfen 634; Mortimer v. Wingate, Moore 463 ; Bro. Action on the Case, 97, 105. And not only must it require the same evidence to support both, but in both, the question must be the same. Kitchin v. Campbell, 2 W. Bl. 832 ; Ruff v. Webb, 1 Esp. R. 130. That was an action for a servant’s wages, against his master, who had given him a draft for the full amount of his wages, on a third person, which was not stamped. And although the plea stated, that he accepted it in absolute payment, yet it was held to be no bar. The case of Kearslake v. Morgan depends on the statute of Anne, which declares that a note given for a debt due by account, shall be a satisfaction, unless the plaintiff uses due diligence : no such statute exists in Virginia. In the case of Chamberlyn v. Ddarive, there was no demand at all upon the drawee of the bill. Neither of those cases, therefore, were like the present. sol * Swann, contra.—If a note is agreed to be taken in payment ab- -I solutely, it is a satisfaction ; but where there is no such agreement, the, law implies a condition, that the holder shall use due diligence. The county court of Fairfax has decided that Young & Co. have not used due diligence : that decision is valid and conclusive all over the world, until reversed by a competent authority. How, then, does this case stand ? Young & Co. sold salt to Clark, and received a note, as a conditional payment, or a collateral security, no matter which ; which note they have made their own by their own laches. The maker of the note has become insolvent and run away. Who ought to bear the loss ? The law says clearly, the person who has been negligent, who has not complied with the requisites of the law. It is immaterial, whether the judgment in Fairfax is an absolute or a temporary bar ; for if it is a temporary bar only, yet Young & Co. have not done what that court decided to be necessary. Mason, on the same side.—A judgment on the same question between the same parties is conclusive, until reversed. What is the same question ? It is the real merits, the matter of right between the parties. The same evidence is not the criterion. Trespass and trover require different evidence ; yet, if the merits of the same question are the gist of both, the one is a bar to the other. Here, the question was the same as in Fairfax, viz., whether Young & Co. had not been guilty of laches in respect to the note; for if they had, they had barred themselves not only from a right to recover upon the note, but upon the original contract for the salt. One and the same question will decide both cases. That question is upon the merits, and is, in fact, the only question in dispute between the parties. It is not important whether the note was received as an absolute or a *1901 ^n^itional payment. For if it was a *conditional payment, the laches J of Young & Co., have made it absolute. There is no evidence of 118 1803] OF THE UNITED STATES. 190 Clark v. Young. notice to Clark of the default of Edgar, until the bringing of the suit in Fairfax county, which was eighteen months after the note began payable. Having two remedies for the price of the salt, Young & Co. could not resort to both. They made their election to sue upon the note, and having pursued that remedy to judgment against themselves, they are for ever barred. The county court of Fairfax have decided the only question which existed between the parties, the negligence of the plaintiffs below, whereby they had made the note their own ; and therefore, they must abide the loss.. February 17th, 1803. The Chief Justice delivered the opinion of the court. This was a suit brought by the defendants in error against the plaintiff, in the circuit court of the district of Columbia, sitting in the county of Alexandria, and the declaration contains two counts for goods, wares and merchandises sold and delivered, and one for money had and received to their use. The cause came on to be tried on the general issue, and a verdict was found for the plaintiffs below, on which the court rendered judgment. At the trial of the cause, it appeared, that the suit was brought for a quantity of salt, sold and delivered by Robert Young & Co. to Clark ; after which, Clark indorsed to Robert Young & Co., a promissory note made by Mark Edgar to John Pickersgill & Co., which had been indorsed by them to the said Clark, and which was payable sixty days after date. This note was protested for non-payment; after which, a suit was brought thereon by Robert Young & Co., in the county court of Fairfax, against Clark; and the declaration contained two counts, one on the indorsement, and the other for money had and received to the use of the plaintiffs. In this suit, verdict and judgment was given for the defendant Clark : the court of Fairfax being of opinion, that a suit could not be maintained against the indorser *of the note, until a judgment had been first obtained against the r*1Q1 maker, and his insolvency made to appear. L After the determination of that action, this suit was instituted on the original contract; and at the trial, the counsel for the defendant moved the court to instruct the jury, that if, from the evidence given in the cause, they should be of opinion, that the promissory note aforesaid was indorsed by the defendant to the plaintiffs, in consequence of the goods, wares and merchandise sold as aforesaid, although the said indorsement was not intended as an absolute payment for the said goods, wares and merchandise, or received as such by the plaintiffs, but merely as a conditional payment thereof, yet the receipt of the said note, under such circumstances, and the institution of the aforesaid suit by the said plaintiffs against the said defendant, on his indorsement aforesaid, made the said note so far a payment to the said plaintiffs, for the said goods, wares and merchandise, as to preclude them from sustaining any action against the said defendant for the said goods, wares and merchandise, until they had taken such measures against the said Mark Edgar, as were required by the laws of Virginia ; and that the plaintiffs, having instituted the suit aforesaid, upon the said note, against the said defendant, and that having been decided against the said plaintiffs, they were barred from sustaining this action against the said defendant. This instruction the court refused to give, but directed the jury, that if they were of opinion, from the evidence, that the salt was sold and delivered 119 191 SUPREME COURT [Feb’y Clark v. Young. as alleged, and that the promissory note aforesaid was indorsed by the defendant to the plaintiffs, in consequence of the salt sold as aforesaid, although the said indorsement was not intended as an absolute payment for the said salt, or received as such by the plaintiffs, but merely as a conditional payment thereof, the same is a discharge to the defendant for the salt sold to him, unless it is proved, that due diligence has been used to receive the money due on the note ; but that the bringing suit on the said note against Mark Edgar, was not essentially necessary to constitute the said diligence ; and that the said diligence may be proved by other circumstances, and their omitting to bring the said suit against Edgar may be accounted for, by the _ -J insolvency of Edgar, *if proved, or any conduct of the defendant J which may have prevented the bringing of the said suit. To this opinion, the counsel for the defendant excepted, and then prayed the court to direct the jury, that the defendant was entitled to a credit for the amount of the said note, unless the plaintiffs could show that they had instituted a suit thereon against Edgar, or that Edgar had taken the oath of insolvency, or absconded, at the time the note became payable, or unless the plaintiffs could show that they had offered to return and re-assign the said note to the said defendant, previous to the institution of this suit. This direction the court refused to give, and referred the jury to their opinion already given on the principal points now stated, and to which an t xception had already been taken. This opinion was also excepted to. A verdict and judgment was then rendered for the plaintiff, without giving credit for Edgar’s note, which judgment is now brought into this court by writ of error. On these exceptions, it has been argued, that the court has erred, because : 1st. The conduct of the plaintiffs, Young & Co., has disabled them from maintaining this action, and such ought to have been the direction to the jury. 2d. The verdict and judgment in Fairfax court is a bar to this action. The conduct of the plaintiffs was entirely before the jury, to be judged of by them from the evidence, excepting only that part of it respecting which the court gave an opinion. We are, therefore, only to inquire whether the opinion given by the court be erroneous. It is agreed on both sides, that the note in this case was not received as payment of the debt, and consequently, did not extinguish the original contract. It was received as a conditional payment only, and the opinion of the court was, that in such a case, the want of due diligence to receive the money due thereon would discharge the defendant. But the court proceeded to state that due *diligence might be proved, although no -• suit was instituted ; and that circumstances, such as the known insolvency of Edgar, the maker of the note, or any conduct of Clark, preventing a suit, would excuse Young & Co. for not having instituted one. This opinion of the court seems perfectly correct. The condition annexed to the receipt of the note cannot be presumed to have required that a suit should be brought against a known insolvent, or that it should be brought against the will of the indorser ; if he chose to dispense with it, or took means to prevent it, nothing can be more unreasonable, than that he should be at liberty to avail himself of a circumstance occasioned by his own. conduct. 120 1803] OF THE UNITED STATES. 193 Wilson v. Lenox. It is not intended to say, that the person receiving such a note is compellable, without special agreement, to sue upon it, in any state of things. It is not designed to say, that he may not, on its being protested, return it to the indorser, and resort to his original cause of action ? it is only designed to say, that, under the circumstances of this case, nothing can be more clear, than that there was no obligation to sue. The court gave no opinion, that the suit in Fairfax was, or was not, a bar to that brought in the county of Alexandria. It is, however, clear, that no such bar was created. To waive the question, whether, in such a case as this, with declarations for such distinct causes, a verdict in a prior suit may be given in evidence as a bar to another suit, really for the same cause of action ? it is perfectly clear, that in this case, the same question was not tried in both causes. In Fairfax, the point decided was, that the suit against the indorser would not lie, until a suit had been brought against the maker; in the suit in Alexandria, the point to be decided was, whether the plaintiffs had lost their remedy on the original contract, by their conduct respecting the note. These were distinct points, and the merits of *the latter case were not p194 involved in the decision of the former. On the second bill of exceptions, the only real new point made, is, whether the action is maintainable, unless Robert Young & Co. had offered to return and re-assign the note, before the institution of the suit? Unquestionably, Clark is entitled to the benefit of the note, but as it was no extinguishment of the original cause of action, there was no absolute necessity to prove an offer of the note, before the institution of the suit. Indeed, it does not appear in this bill of exceptions, whether the note was merely a collateral security or a conditional payment: this is nowhere stated positively. In the first opinion of the court, it is stated hypothetically, and that opinion must be considered, on the presumption that such was the fact. But no such presumption is raised respecting the second bill. Judgment affirmed, with costs. Wilson v. Lenox & Maitland. Action on bill of exchange. A declaration in debt, under the law of Virginia, upon a protested bill of exchange, for the principal, interest, damages and costs of protest, must aver the amount of those costs of protest. Qware ? Whether, if the holder of the bill of exchange, after due notice to the indorser of the nonpayment by the drawee, charge the bill in account-current against the drawer, and upon the whole of that account, the balance due is less than the amount of the bill, the indorser is thereby discharged? Whether the indorser is discharged, by the holder’s receipt of part from the drawer, after due notice given to the indorser ? Whether it be necessary to aver protest for non-acceptance, in an action on protest for non-payment? Whether the drawer be a competent witness for the indorser, in an action against the latter ? Lenox v. Wilson, 1 Or. C. C. 170, reversed. Error to the Circuit Court of the district of Columbia, sitting at Alexandria, on a judgment obtained by the present defendants in error, against the plaintiff in error, in an action of debt, as indorser of a bill of exchange, for 300£ sterling, drawn on the 2d January 1799, at Alexandria, by A. & 121 194 SUPREME COURT [Feb’y Wilson v. Lenox. W. Ramsay, on Findley, Bannatyne & Co., London, at ninety days’ sight, payable to Wilson, the plaintiff in error, and by him indorsed to the defendants. This bill was presented for acceptance, on the 28th of February 1799, and refused, and on the 1st of June 1799, protested for non-payment. The declaration was, “ of a plea that he render unto them the sum of 300Z. sterling, with damages, interest and charges of protest, on a protested ■ , bill of exchange, which *to them he owes, and from them unjustly J detains,” and went on to state the drawing of the bill of exchange “ according to the custom of merchants,” the indorsement by Wilson to Lenox & Maitland ; the refusal of Findley, Bannatyne & Co. to accept the bill, on its being presented for acceptance (but did not. state a protest for non-acceptance, nor notice of the non-acceptance given to Wilson), and the protest, “ in due form, according to the custom of merchants,” for non-payment ; “ of which, the said defendant, afterwards, to wit, on the---day of--------, in the year aforesaid, at the town and county aforesaid, had notice; whereby, and by force of the act of assembly of the commonwealth of Virginia, in such case made and provided, action accrued to the said plaintiffs to demand and have of the said defendant, the said sum of 300Z. sterling, with damages, interest and charges of protest: nevertheless, the said defendant, although thereto often required, hath not paid unto the said plaintiffs, the said sum of three hundred pounds sterling, with damages, interest and charges of protest, but the same to pay, hath hitherto refused, and still doth refuse, to the damage of the plaintiffs, $7.50, and thereupon, they bring suit,” &c. The act of assembly of Virginia, which gives the action of debt on a protested bill of exchange (Rev. Code, p. 121), provides, “that where any bill of exchange is, or shall be, drawn, for the payment of any sum of money, in which the value is, or shall be, expressed to be received, and such bill is, or shall be, protested for non-acceptance or non-payment, the drawer or indorser shall be subject to the payment of fifteen per centum damages thereon, and the bill shall carry an interest of five per centum per annum, from the date of the protest, until the money therein drawn for, shall be fully satisfied and paid.” § 3. “ It shall be lawful for any person or persons, having a right to demand any sum of money upon a protested bill of exchange, to commence and prosecute an action of debt, for principal, damages, interest and charges of protest, against the drawers or indorsers jointly, or against either of them separately ; and judgment shall and may be given for such principal, dam-*1 9RI aSes *and charges, and interest upon such principal, after the rate J aforesaid, to the time of such judgment, and for the interest upon the said principal money recovered, after the rate of five per centum, per annum, until the same shall be fully satisfied.” § 4. “ In all bills of exchange, given for any debt due in current money of this commonwealth, or foi* current money advanced and paid for such bills, the sum in current money that was paid or allowed for the same, shall be mentioned and expressed in such bill, and in default thereof, in case such bill shall be protested, and a suit brought for the recovery of the money due thereby, the sum of money expressed in such bill shall be held and taken as current money, and judgment shall be entered accordingly.” § 6. “ In any action which hath been, or shall be, commenced, and is, or shall be, depending, for the recovery of any sterling money, in any court of 122 1803] OF THE UNITED STATES. 196 Wilson v. Lenox. record within this commonwealth, wherein the plaintiff or plaintiffs shall recover, such courts shall have power, and are hereby directed, by rule to be entered at the foot of their judgment in such action, to order such judgment to be levied or discharged in current money, at such a difference of exchange as they shall think just.” The cause in the court below was tried upon the plea of nil débet, and the jury found a verdict for the debt in the declaration mentioned, and one cent damages ; it was, therefore, considered by the court, “ that the said plaintiffs recover against the said defendant, their debt aforesaid, amounting to three hundred pounds sterling, and their damages aforesaid, by the jurors aforesaid, in form aforesaid assessed, and also their costs by them afyout their suit in this behalf expended ; and the said defendant in mercy, &c. But this judgment (damages and costs excepted) is to be discharged by the payment of eight hundred and fifty-five dollars and twenty-three cents.” The record which came up contained six bills of exception. *1. That the defendant Wilson produced in evidence to the jury, r^g^ the accounts of the plaintiffs, Lenox & Maitland, against A. & W. L Ramsay, the drawers of the bill, whereby the latter were charged as debtors to Lenox & Maitland, on the 22d of August 1799, for the amount of the bill and damages, in dollars and. cents, among many other debts and credits, upon which whole accounts-current, a balance of $1095 only appeared to be due from A. & W. Ramsay to Lenox & Maitland ; and thereupon, prayed the opinion of the court, whether, by making the said bill an item of account, as stated in the aforesaid accounts against the said A. & W. Ramsay, the said Wilson was not thereby, as indorser, discharged; and the court were of opinion, that he was not. 2. That the defendant offered to prove, that the plaintiffs had received part of the money from the drawers of the bill, since the defendant Wilson had notice of the protest; but the court were of opinion, that the same, if proved, would not discharge Wilson as indorser. 3. That the defendant offered to prove, by the bill and protest, that after the protest of the said bill, at the request of Roberts, Curtis & Co., the then holders of the bill, it was paid by Dorin, Strange & Co., to Roberts, Curtis & Co., for the honor of Lenox & Maitland, the plaintiffs, and thereupon, prayed the opinion of the court, whether, as the bill had been so paid, this action would lie against the defendant, as indorser; and the court gave it as their opinion, that it would lie. 4. That the defendant prayed the opinion of the court, whether it was not incumbent on the plaintiffs, to prove the value of current money received here, for the bill upon which this action is brought, which bill is in these words: “Exchange for 300Z. sterling, Alexandria, 2d January 1799. Ninety days after sight of this our first of exchange (second, third and fourth of the same tenor and date unpaid), pay to the order of William Wilson, Esq., the sum of three hundred pounds sterling, for value here received, and place it to account, as advised by Andrew & William Ramsay. To Messrs. Findley, Bannatyne & Co., London.” And the court gave it as their opinion, that it is not necessary for the plaintiffs *to prove the value r^go given here, in current money, for the said bill. *- 5. That the defendant offered to prove, by the account thereunto annexed, that the bill upon which this suit was brought, was given in the 123 108 SUPREME COURT [Feb’y Wilson v. Lenox. commonwealth of Virginia, either for dollars and cents due in the said commonwealth, from A. & W. Ramsay, to the plaintiffs, or for dollars and cents advanced by the plaintiffs, or some other persons, for the said A. & W. Ramsay, in the state of New York, and prayed the opinion of the court, whether, if the said facts were proved to the jury, the said bill ought not to be settled according to its nominal amount, as current money of Virginia. Whereupon, the court instructed the jury, that if they were of opinion, from the evidence offered, that the bill of exchange was given for any debt due from A. & W. Ramsay, in current money of the commonwealth of Virginia, or for current money advanced and paid for the said bill, and the sum in current money that was paid or allowed for the same, is not expressed, in the bill, the sum expressed in the bill shall be held and taken as current money of Virginia; and if, from the evidence offered, they should not be of that opinion, that the sum expressed in the bill shall be taken and held, as so expressed, to wit, in sterling money. 6. That the defendant offered to examine William Ramsay, one of the drawers of the bill, to which the counsel for the plaintiffs objected; and the court gave it as their opinion, that the said W. Ramsay was an incompetent witness in the cause. The 2d, 3d, 4th and 5th exceptions seem to have been abandoned in the argument in this court. C. Lee, E. J. Lee and Swann, for the plaintiff in error. Simms, for the defendants. The errors insisted on by the counsel for the plaintiff in error were— 1st. The opinion of the court below, as stated in the first bill of exceptions. *2d. The rejection of W. Ramsay as a witness. J 3d. That there was no protest for non-acceptance of the bill. 4th. That the declaration does not state any demand of payment of the bill, made on the drawees. 5th. The damages are not laid in the same currency as the debt. 6th. The jury have awarded that the sterling debt should be discharged by the payment of $855.23. 7th. The debt demanded is not certain. E. J. Lee, for the plaintiff in error.—1st. The court below erred, in not instructing the jury, that the defendants in error, by charging the bill in account against the drawers, in the manner stated in the accounts, had discharged the indorser. The court ought, at least, to have left it to the jury, to decide whether the circumstances did not amount to a discharge of Wilson. By the account of Lenox & Maitland against the drawers of the bill, it appears, that after charging the amount of the bill, and damages, interest and charges of protest, and turning the amount into dollars and cents, at such rate of exchange as the defendants in error pleased, there was only a balance of about $1000 due to them from the drawers ; it is not reasonable, that they should recover more than is due to them, against an innocent indorser who must look to insolvent drawers for his indemnification. The defendants have, in fact, given credit to the drawers, for the amount due on the bill, and have agreed to liquidate it in account. If the holder of a bill receives part of the money from the acceptor, without giving notice to the drawer, the latter is 124 1803] OF THE'UNITED STATES. 199 Wilson v. Lenox. discharged.. Bull. N. P. 275. So, if he receives part from the drawer, he discharges the indorser. Here no notice was given to Wilson ;(a) *or r*9nn if there was, it is waived by the conduct of Lenox & Maitland. In the case of Dingwall v. Dunster, Doug. 247 (235), it is true, that Judge Buller says, that nothing but an express agreement can discharge an acceptor, but the court are careful to distinguish between the case of an acceptor, and that of a drawer or indorser. The implication is, that there are many circumstances which will discharge the latter, without an express agreement. The court ought, at least, to have instructed the jury that they might infer a discharge from the circumstances of this case. (5) 2d. W. Ramsay, the drawer of the bill, ought to have been admitted as a witness : he had no interest which would render him incomp’etent. The verdict in this case could not have been given in evidence either for or against the witness ; and whether Lenox & Maitland recovered against Wilson, or not, he was still liable to an action as drawer, to Lenox & Maitland, if they failed against Wilson, or to Wilson, if they succeeded. In the case of Smith, qui tarn, v. Prager, 7 T. R. 62, the rule is clearly laid dpwn to be, that “ no objection could be made to the competency of a witness, upon the ground of interest, unless he were directly interested in the event of the suit, or could avail himself of the verdict in the cause, so as to give it in evidence on any future occasion, in support of his own interest.” The objection only goes to his credit, unless the judgment can be given in evidence for him in any other suit. The same principle is confirmed in the case of Jordaine n. Lashbrooke, 1 T. R. 601, where, in a suit between the indorsee and the acceptor of a bill, the payee was called and allowed as a witness to defeat the action, by proving that the bill, although dated at Hamburg, was, in fact, drawn in London, and so void for want of a stamp. It may be observed in that case, that *it was admitted, that there could r*9n1 be no objection, on the ground of interest, but the objection relied on was, that the witness ought not to be permitted, from motives of policy, as it respected mercantile credit, to impeach a negotiable instrument to which he had assisted in giving currency by his indorsement; and even that objection was overruled. In the case of Carter v. Pearce, 1 T. R. 163, the court said, that “ the bare possibility of an action being brought against a witness, is no objection to his competency and that, “ in order to show a witness interested, it is necessary to prove, that he must derive a certain benefit from the determination of the cause, one way or the other.”(c) 3d. Here was no protest for non-acceptance, nor does the declaration state a demand of payment from the drawees, nor notice of the non-pay- (a) Marshall, C. J.—Does the bill of exceptions state that notice was not given to Wilson ? If it does not, you cannot argue upon the want of notice. E. J. Lee.—It does not. But the declaration does not allege notice of the non-acceptance, nor of the non-payment; but only of the protest for non-payment, and a material fact, not averred, cannot be presumed to have been proved. (&) Chase, J.—There is no doubt, a drawer or indorser may be discharged in express terms; or by facts amounting to a discharge; but where the discharge is not express, but by implication arising from facts, the jury, and not the court, are to decide whether it is a discharge; the court ought not to say it was a discharge. (c) Chase, J.—Upon the statute of gaming, usury, and the like, but in no other case, are the drawers, indorsers, &c., competent witnesses. The cases all show it. 125 201 SUPREME COURT [Feb’y Wilson v. Lenox. ment or non-acceptance given to Wilson. The protest for non-payment is not evidence that the money was demanded at the time the hill became payable. 4 Bac. Abr. 735 (Gwyllim’s edition). In the case of Rushton v. Aspinall, Doug. 679 (653), it is expressly decided,, that the plaintiff must allege in his declaration, a demand and refusal of the acceptor, on the day when the note was payable, and notice thereof to the indorser, before he can be made liable; and that the want of such averments in the declaration, is not cured by a verdict. And Lord Mansfield there lays down the rule to be,11 that where the plaintiff has stated his i title or ground of action defectively, or inaccurately (because, to entitle him / to recover, all circumstances necessary in form and substance to complete । the title so imperfectly stated, must be proved at the trial), it is a fair presumption, after a verdict, that they were proved; but that where the plaintiff totally omits to state his title or cause of action, it need not be proved at the trial, and therefore, there is no room for presumption.” The demand and refusal of the drawee to pay, is the very substance of the plain-* tiff’s title to recover; and therefore, *the not setting it forth in the -* declaration, is a total omission of his cause of action. 4th. The damages are not laid in the same currency with the bills and the promise. To support this objection, he relied on the decision of the court of appeals of Virginia, in the case of Scott's Executors v. Call, 1 Wash. 115, and Skipwith v. Baird, 2 Ibid. 165. C. Lee, on the same side.—1st. The question to the court below was, whether the plaintiffs, by making the bills an item of the accounts, as therein stated, had not discharged the indorser, Wilson. The accounts of Lennox & Maitland against the drawers of the bill, begin in 1798 and end in 1800. The bills are entered in account, on the 22d of August 1799, and charged with interest and damages; and the amount carried out from sterling into dollars and cents, at such rate of exchange as the defendants in error pleased. They have, therefore, changed the nature of the demand, and given credit to the drawers for a certain sum in the currency of the United States. They have, so far as they were able, manifested their intention to give credit to A. & W. Ramsay. These circumstances being subsequent to the notice to Wilson, are a discharge in law, and are equivalent to an express discharge. If I am right, the court ought to have instructed the jury, that these facts discharged all persons but A. & W. Ramsay. Perhaps, the court might have left it to the jury, to infer an intention to discharge the indorser; but the court ought not to have instructed the jury, that Wilson was not thereby discharged as indorser. 2d. The objection to the competency of W. Ramsay as a witness, was not good. If he had any interest, it was in favor of the plaintiffs. The objection was made generally, and goes to his proving any fact whatever. A witness may be competent to prove some facts and not others. He was competent to prove, not only that the bill was charged in account, but that it was given up and came surreptitiously to the possession of the plaintiffs, * if the fact had been so. I state this only to show that he ought not J *to have been wholly excluded. On a criminal prosecution for forgery, the party whose name is forged may be a witness. 1 Dall. 110. 126 1803] OF THE UNITED STATES. 203 Wilson v. Lenox. The doctrine that a man shall not be permitted to disprove a paper to which he has put his name to give it credit, is overruled in the case of Jordaine v. Lashbrooke, 7 T. R. 601. In the case of Walpole v. Pulteney, cited in Doug. 249 (237), in the note, at the second trial of the cause, at Guildhall, at the sittings after Michaelmas term 1779, before Skinner, Chief Baron, Alexander, the indorser of the bill, was sworn as a witness for the acceptor, and no objection made to his competency. But in this case, there is not any interest whatever in the witness. For if the evidence of Ramsay went to discharge Wilson, still it would not go to discharge Ramsay himself. There is a case also in Espinasse’s reports, in which the acceptor was sworn as a witness, in a question between the indorsee and drawer. Simms, contra.—1st. The charge of the bill in account against the drawers, does not amount to a legal discharge of the indorser. It is neither an express nor an implied discharge. The holder has a remedy against all or any of the indorsers or the drawer, until he gets full satisfaction. If he gives due notice to the party to whom he means to resort, he is.not bound to commence suit instanter. If he receives part from the drawer, it is so much to the benefit of the indorser, and he has no right to complain. Due notice is all that the indorser has a right to require, and if he does not then secure himself, it is his own fault. The case from Buller’s N. P. 275, is not denied to be law ; but Buller there says, “ if the indorsee give credit to the drawer, without notice to the indorser, it will discharge him.” But here, it is admitted, that notice was given, and the allegation is, that notwithstanding such notice, the subsequent charge in the accounts of Lenox & Mailland against the drawers, has discharged the indorser. Lenox & Maitland might have brought suit against the drawers, without prejudice to their claim against the indorser; d fortiori, the charging a bill in account against the drawers, cannot prejudice the claim against the indorser. 2d. W. Ramsay was offered as a witness, generally, *without a . release from Wilson. The court were right in rejecting him, both on L the grounds of interest and of public policy. If judgment should be rendered against Wilson, Ramsay, as drawer, would be clearly liable to refund Wilson the costs of suit ; and a relief from that liability was a clear interest. A party to a negotiable paper ought not to be permitted to discredit it : an underwriter cannot be a witness for another underwriter, in an action upon the same policy. The case in Doug. 247, does not affect the present. The note in 249, is of an ancient case; and there, Walpole’s own book was produced, with a memorandum that Pulteney was discharged from his liability as acceptor. All the cases cited are where a party to the bill has been admitted as a witness either ex necessitate, or on the ground of public convenience and policy. The case of Jordaine v. Lashbrooke was one where the revenue would have been defrauded of the stamp duty, if the witness had been excluded ; and to prevent that evil, he was admitted. In the cases of usury, the maker of the note or other security is not admitted, unless the debt has been paid. And' in the case of forgery, it is a public criminal prosecution, in which the injured party is always admitted. The fault of the declaration, if it does exist, is cured by the verdict, under the statute of jeofails of Virginia, which declares, that no judgment, 127 204 SUPREME COURT Wilson v. Lenox. [Feb’y after verdict, shall be stayed or reversed, for mispleading, insufficient pleading, or for omitting the averment of any matter, without proving which the jury ought not to have given such verdict. Rev. Code, 118. But the averment was not necessary. The declaration contains an allegation that the bill • was protested in due form, according to the custom of merchants, for nonpayment ; and, by the custom of merchants, the bill could not have been *2051 protested, until demand and refusal of payment. *But this action is J grounded on the act of assembly, and not on the custom of merchants; and by the act, it is only necessary that it should be a protested bill of exchange. As to notice of the non-acceptance and non-payment not being alleged in the declaration, the fact is not so. The declaration alleges that the bill was presented for acceptance, and refused ;.and afterwards, on the 1st of June, protested, in due form, according to the custom of merchants, for non-payment; of which (that is, of all the facts before recited), the defendant had notice, &c. As to the damages being laid in current 'money; this is always done when tobacco or foreign money is sued for. There are some unintelligible cases in the court of appeals of Virginia ; but they have never decided the present point. In one case, the court said, that if the suit is for a sterling debt, its value must not be laid in current money, because the law of Virginia authorizes an action of debt for sterling money. Simms, on a subsequent day, stated that a demand of payment was not necessary, where the bill was not accepted ; and cited Lilly’s Entries, 44, 45. The declaration states the non-acceptance ; and the protest for non-payment, (a) He also mentioned a case in Peake’s Rep., where a party to a bill of exchange was refused as a witness ; but did not produce the book. Swann, in reply.—1. The plaintiffs below having assumed a rate of exchange, and charged the amount in account against the drawers, is conclusive evidence of their intention to extinguish the sterling debt. 2. The jury have awarded that the sterling debt should be discharged by the payment of $800,(d) the balance *of the account, therefore, J and not the rate of exchange, must have been the guide of the jury 3. The testimony of Ramsay was not to destroy the paper, but to explain the nature of the consideration; to show that it was given for current * money of Virginia, so as to bring it within the operation of the 4th section of the act of assembly, respecting bills of exchange given for current money due in Virginia. This act applies as well between indorsee and indorser, as between payee and drawer ;(c) and if the bill was given for current money due in Virginia, the sum mentioned in the bill is to be taken as current money, and not as. sterling. 4. A protest for non-acceptance, and a demand of payment from the drawee, at the time the bill became payable, were requisite to enable the (a) Chase, J.—A protest for non-acceptance is absolutely necessary, in the case of a foreign bill. (&) The fact does not so appear in the record. (c) Marshall, C. J.—The law has been so construed in Virginia. 128 1803] OF THE UNITED STATES. Wilson v. Lenox. 206 plaintiffs below to recover. Kyd on Bills, 76, 87. It being an action on the statute, makes no difference, because the statute gives the action only to such persons as have “ a right to demand any sum of money upon a protested bill of exchange.” The holder, therefore, must show a right to demand the money, independently of the provisions of the statute; and to ascertain whether he has such a right, we must resort to the custom of merchants, and see whether he has complied with all the requisites of that custom. 5. This is an action of debt; and the demand is uncertain. The debt demanded is the principal, damages, interest and charges of protest, without stating the amount of the charges of protest. The principal is certain, because it is stated to be 300Z., and the damages and interest are certain, because the law has ascertained their relative proportion to the principal; but there is nothing in the declaration, by which the amount of the charges of protest can be rendered certain. 6. The damages ought to have been laid in sterling, and not in dollars. The damages follow the nature of the debt. The act of assembly has authorized sterling debts to be sued for and recovered as such. Sterling'money is not to be considered as foreign money. Skipwith v. Baird, 2 Wash. 165. The court of appeals of Virginia, in *that case, decided that the damages must be laid in sterling, (a) The court are to fix the rate of ex- I-change ; but here the jury have awarded at what sum in current money the sterling debt should be paid, and it is evident that the $800 which the jury' said should discharge the debt, is not the exchange, but the balance of account. (¿) Simms cited Brown v. Barry, 3 Dall. 365, to show that a protest for non-acceptance was not necessary ; and that a protest for non-payment being alleged in the declaration, it was not necessary to aver a demand of payment from the drawee. C. Lee.—The act of jeofails in Virginia is construed to be the same as that of England, although the words are somewhat broader. Stevens v. White, 2 Wash. 203. (c) (a) Marshall, C. J.—In that case, the court spake of the damages which constitute part of the debt, in an action under the statute, upon a bill of exchange, and not of those damages which are demanded at the end of the declaration for the non-payment of that debt. There is no such decision respecting the latter. (&) Chase, J.—If you have no law of Virginia authorizing such a judgment, it is bad, because, at common law, no condition or alternative can be added to the judgment. It is not a good judgment at common law. Marshall, C. J.—If it is bad, the defendant cannot complain. It is for his benefit. Chase, J.—That may be the opinion of the chief justice; but I have considered the question in a greater case than this. I am well satisfied (and it will be difficult to alter my opinion), that at common law, no condition can be annexed to a judgment. Simms.—It is the practice of Virginia. The law of Virginia allows discounts to actions of debt, and the judgment is to be rendered for the debt, to be discharged by the sum really due. (c) Marshall, C. J.—The decisions have been so, although the statute of Virginia is broader than the English statute. The general principle decided by the court ,of appeals of Virginia is, that a verdict will not cure the want of an averment of a material fact, which goes to the gist of the action. 1 Cranch—9- ♦ 129 । 207 SUPREME COURT [Feb’y Wilson v. Lenox. Feb. 22d. At a subsequent day, the court having suggested an error, not noticed by the counsel, or not much relied on at the argument, as being apparently fatal, viz., that the costs of protest, which are uncertain, are joined as part of the debt declared for— *9OR1 * Simms, for the defendants in error, was now permitted to sup- J port the declaration. 1st. The declaration is sufficiently certain. An action of debt will lie for what may easily be reduced to a certainty. Nothing can be more easily ascertained and rendered certain, than charges of protest on a protested bill of exchange. They always appear upon the protest; and the indorsement on the protest is always considered as evidence of their amount: no other evidence is ever required. Debt may be brought for a sum capable of being ascertained, though not ascertained at the time of the action brought. ( Walker n. Witter, Doug. 6.) It is not necessary that the plaintiff, in debt, should recover the exact sum demanded. (Ibid.; Aylett v. Love, 2 W. Black. 1221.) If so, then a demand of the charges of protest on a protested bill of exchange particularly described in the declaration, is good, because the sum or amount of those charges is capable of being ascertained by the protest, without further evidence. It is admitte’d, that the amount of damages or interest need not be stated in the declaration. To ascertain the amount of interest, reference must be had to the protest, to find its date, from which time the interest begins to accrue ; a reference to the same protest, will ascertain the amount of charges. 2d. But if the charges of protest are not demanded with sufficient certainty, yet the judgment ought not to be reversed on that account; because the judgment is not rendered’for the charges of protest, but is rendered for 300^. sterling, the principal of the bill. It is now well settled, that in an action of debt, judgment may be rendered for less than is demanded in the declaration. (Walker v. Witter, Doug. 6 ; Me Quillin n. Cox, 1 H. Black. • 249.) ' *9nol *In Present case, ^he demand is for the principal sum drawn J for by the bill of exchange, with damages, interest and charges ©f protest thereon. It appears by the record, and by the evidence produced by the plaintiffs in error, which is made a part of the record, that a part only of the original demand on the bill was due, the residue having been settled and paid. Shall the judgment, then, be reversed, for not stating the amount, of the charges of protest, which had been previously paid, and for which the judgment was not rendered ? No other action can be brought by Lenox & Maitland against Wilson, for the charges of protest on the bill of exchange stated in the declaration; no judgment has been rendered for them, in the present action. How, then, has he been injured, or how can he be injured, by the omission to state the amount of the charges in the declaration ? In the declaration, four distinct things are demanded, viz.: 1. The principal ; 2. The damages on the protest; 3. The interest; 4. The charges of protest. I take it to be settled law, that if a declaration be good in part, though bad as to another part, the plaintiff is entitled to judgment for so much as ' is well alleged, especially, if it be not of an entire demand. 130 1803] OF THE UNITED STATES. Wilson v. Lenox. 209 An action of debt might be brought for the principal sum due on a bill of exchange, without including the damages, interest and charges of protest. If, then, an action of debt be brought for the principal, damages, interest and charges of protest, and the damages, interest and charges of protest, or either of them, should not be demanded with sufficient certainty, it would not be error, to render judgment for that which was sufficiently alleged. In this case, the principal sum is demanded with sufficient certainty, and for the principal sum only is the judgment rendered. Woody's Case, Cro. Jac. 104 ; 4 Bac. Abr. 25, 26. *A man shall not reverse a judgment for error, if he cannot show r*2io that the error is to his disadvantage. Tey's Case, 5 Co. 39 b. It ap- *■ pears by the record, that judgment was not rendered for the charges of protest, therefore, the plaintiff in error has sustained no damage or injury, by reason of not alleging in the declaration the amount of the charges of protest. 3d. If the omission of the amount of the charges of protest could in any stage of the proceedings be considered as an error, it is cured by the verdict. By the act of assembly of Virginia (Rev. Code, p. 118), it is declared, that after a verdict of twelve men, no judgment shall be stayed or reversed, for any mispleading or insufficient pleading. The omission, if it is an error, must be one or the other. In Jacob’s Law Diet., it is said to be mispleading, if anything be omitted that is essential to the action or defence. The title to recover in the action is the protested bill of exchange ; that is set forth in the declaration. The title, therefore, is not wholly defective in itself, though it may be set forth defectively, in not stating the amount of the charges of protest : so that it comes within the rule in the case of Rushton v. Aspinall; and Vass v. Chichester, 1 Call 98. The court is not bound to inquire into errors, if the party does not show them. 2 Bac. Abr. 217. JE. J. Lee, in reply.—The case of Walker v. Witter, Doug, 6, does not say that the sum demanded may be uncertain, but only that you may recover a less sum than that demanded. The demand must be certainly expressed, if it be possible, at the time of bringing the action. In the cases of Scott's Ex'ry. Call, 1 Wash. 115, and Skipunth v. Baird, 2 Ibid. 165, the amount of the charges of protest are particularly mentioned ; in one they were 4s. Qd., in the other, 7s. Sd. *February 26th, 1803. The Chief Justice delivered the opinion r*211 of the court.—In this case, there was an objection taken to the plain-tiff’s declaration, which was in debt on a protested bill of exchange. The declaration claims 300Z. sterling, with damages, interest and charges of protest, on a protested bill of exchange, without stating, in any part of it, the amount of those charges. The verdict is for the debt in the declaration mentioned, on which judgment is rendered, to be discharged by a less sum. The objection is, that the demand is uncertain, inasmuch as the amount of the charges of protest, which constitute a part of the debt claimed, is not stated. The clause of the act on which this suit is instituted is in these words : “ It shall be lawful for any person or persons,” &c., “ to prosecute an action of debt, for principal, damages, interest and charges of protest, against the drawers,” &c. The charges of protest constitute an essential part of the debt, and the declaration would not pursue the act, if those charges should 131 211 SUPREME COURT [Feb’y Clarke v. Bazadone. be omitted. This part, therefore, cannot be considered as surplusage. It is a component part of the debt for which the action is given. Being a necessary part, its amount' ought to be stated with as much certainty as the amount of the bill. As this is a mere technical objection, the court would disregard it, if it was not a principle, deemed essential in the action of debt, that the declaration should state the demand with certainty. The cases cited by the counsel for the defendant in error do not come up to this case. They relate to different debts ; this to a single debt, composed of different parts. Judgment reversed and arrested, (a) *212] *Clarke v. Bazadone. Jurisdiction in error. A writ of error does not lie from the supreme court of the United States, to the general court for the territory northwest of the Ohio. This was a writ of error issued from this court to the general court for the territory northwest of the river Ohio, to reverse a judgment rendered in that court against Clarke, the plaintiff in error, in favor of Bazadone, on a foreign attachment, for $12,200 damages, and $95.30 costs. The general court of the North-western Territory was established by the ordinance of the old congress, under the confederation, and the principal question was, whether a writ of error would lie from this court to the general court of that territory ? There was no appearance for the defendant in error. Mason, for the plaintiff in error, contended : 1st. That this court possesses a general superintending power over all the other courts of the United States, resulting from the nature of a supreme court, independent of any express provisions of the constitution or laws of the United States. 2d. That this court has the power, under the constitution of the United States. 1. It is a general principle, that the proceedings of an inferior tribunal are to be corrected by the superior, unless the latter is expressly restrained from exercising such a control. This is a principle of the laws of that country from which we derive most of our principles of jurisprudence, and is so intimately connected with them, that it is difficult to separate them. In the Saxon times, the Wittenagemote was the supreme court, and had the general superintendence. But in the time of William the Conqueror, the aula regis was established as the sovereign court of the kingdom, *2131 *an^ to that court devolved all the former judicial power of the -* Wittenagemote ; the power of superintending the other courts was derived from the principle of supremacy. 1 Crompton’s Practice, 3, 5, 12, 21, 22, 26, 27, 28 ; 1 Bac. Abr. 553 ; 2 Ibid. 187. A writ of error is a commission to judges of a superior court, by which they are authorized to examine the record, upon which a judgment was given in an inf erior court, and on such examination, to reverse or affirm the same, according to law. 2 Bac. Abr. 213. The court of king’s bench superintends the proceedings of all (a) See the case of Rudder Price, 1 H. Black. 550. 132 1803] OF THE UNITED STATES. 213 Clarke v. Bazaclone. other inferior courts, and by the plenitude of its power corrects the errors of those courts ; hence it is, that a writ of error lies in that court, to a judgment given in the king’s bench in Ireland. And upon a judgment in Calais, when under the subjection of the king of England, a writ of error lay in the king’s bench. 4 Inst. 282. A writ of error would have laid to the king’s bench from these colonies, before the revolution, but for the particular provisions of charters, &c. 2 Bac. Abr. 194. Wherever a new jurisdiction is erected by act of parliament, and the court acts as a court of record, according to the course of the common law, a writ of error lies on their judgments. The power is inherent in every superior court, to revise the judgments of its inferior. 2. By the constitution of the United States, Art. III., § 1, 2, the judicial power is vested in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish ; and shall extend to all cases arising under the constitution and laws of the United States, and to controversies in which the United States shall be a party. And the supreme court is to have appellate jurisdiction, in all these cases, with such exceptions, and under such regulations, as congress shall make. Congress has made no exception of the present case ; and no regulation of congress was necessary to give this court the appellate power. It derives it from the constitution itself. This is a case arising under the laws of the United States. *The = very existence of the court whose judgment is complained of, is de- *- , rived from the United States. The laws adopted for the North-western Territory derive their whole obligatory effect from the ordinance of the old congress, and are, in fact, laws of the United States, although copied from state laws. All power and authority exercised in that territory have emanated from the United States ; and all offences there committed are against the authority of the United States. If, then, this is a case, by the constitution, cognisable by the judicial authority of the United States; if, by the constitution, this court has appellate jurisdiction in all such cases, and if this case is not within any exception made by the constitution, or by any act of congress, nothing is wanting but to devise a mode to bring the cause before this court. The writ of error is the common and well-known process in like cases, and by the 14th section of the judiciary act of 1789, every court of the United States is expressly authorized “to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.” If, then, the court has jurisdiction, no difficulty can occur as to a mode of exercising it. The Court quashed the writ of error, on the ground, that the act of congress had not authorized an appeal or writ of error from the general court of the North-western Territory, and therefore, although from the manifest errors on the face of the record, they felt every disposition to support the writ of error, they were of opinion, they could not take cognisance of the case. 133 214 J SUPREME COURT [Feb’y Hooe & Co. v. Groverman. Charter-party .-—Demurrage. A charter-party which lets the whole tonnage of a vessel for the voyage, and contains covenants by the owner, that the outward and homeward cargo shall be delivered, damages of the seas excepted, and that he will keep the vessel apparelled and manned during the voyage, does not render the hirer the owner pro lute vice. If, by the terms of a charter-party, the ship is to be navigated at the charge and expense of the owner, and especially, if her whole tonnage is not let to hire, the charterer is not owner for the voyage.1 Error from the Circuit Court of the district of Columbia, in an action of covenant, by Groverman, owner of the brig Nancy, against Hooe & Co., *2151 freighters, for demurrage, at the port of Falmouth, in England, ■* from the 19th of June to the 11th of September 1798, at the rate of Ql. 6s. sterling per diem. The declaration alleged the breach of the covenant in not paying the demurrage, and the cause went to trial in the court below, upon the issue of covenants performed. The jury found the following special verdict, viz.: We, of the jury, find that the defendants and plaintiff made and executed the charter-party hereunto annexed, in these words, to wit: “ This charter-party indented, &c., witnesseth, that the said Groverman hath granted and to freight letten, to the said R. T. Hooe & Co., the brig, whereof he is owner, called the Nancy, commanded by James Davidson, a citizen of the United States aforesaid, now lying in the port of Alexandria, of the burden of 197 tons or thereabouts ; and for and in consideration of the covenants hereinafter mentioned, doth grant and to freight let, unto the said R. T. Hooe & Co., the whole tonnage of the aforesaid vessel, called the Nancy, from the port of Alexandria, in Virginia, to the port of Havre de Grace, in France, and back to the said port of Alexandria, in a voyage to be made by the said R. T. Hooe & Co. with the said brigantine, in manner after mentioned, that is to say, to sail, with the first fair wind and weather that shall happen after she is fully and completely laden, from the said port of Alexandria, with a cargo of tobacco, to be shipped by the said R. T. Hooe & Co. to the said port of Havre de Grace ; and there deliver said cargo to Messrs. Andrews & Co., of that town, merchants, or to their assigns, in good order, the danger of the seas only excepted. And at the said port of Havre de Grace, to take on board a full freight or lading of such goods as the said Andrews & Co. may think proper to put on board said brig, as a returncargo ; with which, said vessel is to make the best of her way directly back to the port of Alexandria, and there safely deliver such cargo, the danger of the seas only excepted, to the said R. T. Hooe & Co. And the said Groverman doth further covenant and agree to and with the said R. T. Hooe & Co., their executors, &c., that the said brig now is, and at all times during , tbe said *voyage, shall be, to the best endeavors of him the said -* Groverman, and at his own proper cost and charges, in all things made and kept tight, stiff, staunch, strong and well apparelled, furnished 1 And see Marcardier v. Chesapeake Ins. Co., Mahogany, 2 Id. 589; The Nathaniel Hooper, 8 Cr. 39; Leary v. United States, 14 Wall. 607; 3 Id. 544 ; The Othello, 5 Bl. C. C. 342. The Volunteer, 1 Sumn. 551; Certain Logs of 134 1803] OF THE UNITED STATES. 216 Hooe v. Groverman. and well provided, as well with men and mariners sufficient and able to sail, guide and govern the said vessel, as with all manner of rigging, boats, tackle and apparel, furniture, provisions and appurtenances fitting and necessary for the voyage aforesaid. And the said Groverman doth further covenant and agree to and with the said R. T. Hooe & Co., that he will allow them twenty-five running days from the date hereof for the lading on board the said vessel, the aforesaid cargo of tobacco, at the port of Alexandria ; ten working days for discharging said cargo at the port of Havre de Grace, to be computed from the day after she comes to her moorings at the said port; and twenty days more, after the said ten days run out, for lading on board the aforesaid return-cargo; also ten working days after said vessel arrives back and is permitted to an entry at the custom-house at Alexandria for receiving her inward cargo, which is to be delivered at the wharves of said R. T. Hooe & Co. “ In consideration whereof, the said R. T. Hooe & Co. do covenant, promise and grant to and with the said W. Groverman, his executors, &c., by these presents, that they the said R. T. Hooe & Co., or their consignee, shall and will pay to the said W. Groverman, or his assigns, at the port of Havre de Grace, the sum of 21,000 livres tournois, in hard money, on discharge of the cargo of tobacco aforesaid; also 7200 livres, in hard money, on shipment of the return-cargo aforesaid ; and further, that they the said R. T. Hooe & Co. shall and will pay, or cause to be paid, to him the said W. Groverman, or his assigns, the sum of 81. 8s., current money of Virginia, day by day, and for every day’s demurrage, if any there should be, by default of them the said R. T. Hooe & Co., at the port of Alexandria. And the sum of 150 livres, in hard money, day by day, and for every day’s demurrage, if any there should be, by default of them the said R. T. Hooe & Co., or their assignee, at the port of Havre de Grace. And the said R. T. Hooe & Co. do further covenant to and with the said W. Groverman, and the afore- r-*91w said * James Davidson, commander of the brigantine aforesaid, that *-Andrews & Co., their consignee aforesaid, shall pay to the said captain, for his primage, five per cent, upon the outward and inward freights at Havre de Grace, and before his departure therefr'om. For the true and faithful performance of the covenants in this charter-party, the parties bind themselves, each to the other, in the penal sum of 3000?. current money of Virginia, to be recovered by the party observing, against the party failing to perform the same. In witness whereof, we have hereunto interchangeably set our hands and affixed our seals, this tenth day of April 1798. W. Groverman. [Seal.] R. T. Hooe & Co.” [Seal.] And the provisional articles in these words, to wit: “ The following provisional articles are concluded upon, made and agreed to by and between William Groverman, owner of the brigantine Nancy, commanded by James Davidson, and R. T. Hooe & Co., since entering into the charter-party hereto annexed. “ 1. The captain or commander shall be instructed by his owner, previous to his sailing from the port of Alexandria, to touch at Falmouth, in such manner as to appear to his crew that there was a necessity for his so doing, there to lay off and on twenty-four hours, or longer if desired, in 135 217 SUPREME COURT [Feb’y Hooe v. Gro verman. J day-light, during which time, there will come off orders from Mr. Fox, the American consul, Mr. Thomas Wilson, of London, or Messrs. Andrews & Co., of Havre de Grace. 2. On receiving these orders, the captain or commander must proceed directly for Havre de Grace, London, Hamburg, Bremen or Rotterdam, as he may be directed, and at one of these ports, deliver his cargo to such-person or persons as the aforesaid orders may direct. 3. If the vessel arrives at any other of the aforesaid ports than Havre de Grace, the time of discharging the outward cargo, taking in her inward cargo, demurrage, if any there should be, her outward and inward freight, primage, &c., shall be the same as if she had arrived at and discharged at #91S-| Havre *de Grace. 4. The outward freight shall be considered as ■* 8754 sterling; the inward freight 3004 sterling, primage five per cent, on the freights, and the demurrage 64 6s. sterling per day. .And if the vessel discharges in London, the payments shall be made in sterling cash; if at any other port, in good bills of exchange, at 60 days, on London, without diminution of the above sums, except so much as the captain may be authorized to receive for his port-charges and disbursements. 5. If the vessel is detained over twenty-four hours at Falmouth, demurrage shall be paid for the time, at the rate stipulated in the charter-party. 6. These articles shall not be made known to any person whatever, except the captain and chief mate. The vessel shall be cleared out for Havre de Grace only, and furnished with a role d'equipage, and all other papers whatever that may be necessary at this custom-house. No letters whatever shall be received on board, except such as the said R. T. Hooe & Co. puts into the possesion and care of the captain. 7. The charter-party first entered into, the copy of which is hereunto annexed, shall be in force and considered as the only contract between the parties for this voyage, and go, unconnected with these articles, to Havre de Grace, and there and from thence govern, unless in the case of the vessel being, from Falmouth, ordered to a different port; then, and in that case, the charter-party shall only be considered as the great outlines of the bargain between the parties, to be positively governed by these articles; but the 4th article to be in force as to payments at any place. In testimony whereof, we have hereunto set our hands and affixed our seals, this 11th day of April 1798. William Geo verman, [Seal.] R. T. Hooe & Co.” [Seal.] We find, that James Davidson, master of the brigantine Nancy, in the said charter-party and provisional articles mentioned, on the morning before the departure of said vessel from the port of Alexandria, signed an acknowledgment, written on said provisional articles in these words, to wit: *2191 d° acknowledge that I am *to act agreeably to the foregoing J provisional articles, notwithstanding the charter-party to Havre de Grace. James Davidson.” We find, that the said James Davidson, before he sailed from Alexandria, on the voyage in the said provisional articles mentioned, was told by R. T. Hooe, one of the defendants and freighters of said vessel, that on his arrival off Falmouth, a town in England, he would receive instructions from 136 1803] ' OF THE UNITED STATES. 219 Hooe v. Groverman. Mr. Fox, the American consul, and that he must abide by such instructions. We find, that on the 20th of June 1798, the said vessel arrived in Falmouth roads, about three leagues from the port of Falmouth, and the said James Davidson, the master thereof, laid the vessel to, off Falmouth, and immediately proceeded in a pilot-boat to Falmouth, went on shore, and applied to the said Fox, the American consul, for orders where to proceed with the said brigantine and cargo. The said Fox told the said Davidson, that he had not received any orders for him, and that, therefore, he must bring the brigantine Nancy into the port of Falmouth, and there remain with the said brigantine and her cargo, until orders were received for him to proceed to his port of discharge. Upon receiving which answer and orders from the said Fox, the said Davidson, in conformity thereto, returned on board his said vessel, with a pilot employed by said Fox for the purpose of conducting said vessel into the port of Falmouth; and on the same day, the said Davidson brought said vessel to anchor in the port of Falmouth aforesaid. We find, that the said Fox informed the said Davidson, that he must wait with said vessel, at anchor in the port of Falmouth, until the said Fox could procure orders for him from Thomas Wilson, of London; which said Fox and Wilson are the same persons mentioned and named in the aforesaid’ provisional articles. We find, that on the 21st day of June 1798, the said James Davidson again went on shore and reported his said vessel, and delivered his papers to the collector of the customs for the port of Falmouth aforesaid, which papers the said collector refused to return, saying that he suspected the cargo on board said vessel was French property, and on the same day, caused the said vessel to be seized. We find, that on the 23d day of the said month of June, the said Davidson received orders from the said *Thomas Wilson, through the said Fox, to proceed with the said *-vessel and cargo to the Downs, and thence to London. We find, that the said vessel was detained in the port of Falmouth aforesaid, from the said 21st day of June 1798, until the 11th of September following, in consequence of the seizure aforesaid. We find, that on the said 11th day of September, the said vessel proceeded from the port of Falmouth to the Downs, by the aforesaid order of the aforesaid Thomas Wilson. We find, that the said brigantine and cargo were the bond fide property of American citizens alone. We find, that by an act of parliament of Great Britain, passed in the 29th year of George III., c. 68, § 12, and in force at the time the said brigantine arrived off Falmouth as aforesaid, it is enacted and provided in the following words, to wit: “ And be it further enacted, &c., and by the 30th section of the said act, it is enacted and provided in the following words, to wit, ‘ Provided always,’ ” &c. We find, that the said Fox urged the danger arising under the said act, as a reason why the said vessel should be brought to anchor in the port of Falmouth, there to wait for the orders of the said Thomas Wilson, of London, and why the said vessel should not lay off Falmouth, without the limits of the said port. We find, that the said vessel was, on the said 20th of June, laden in part with 240,000 pounds of tobacco of the growth of the United States. We find, that the said Davidson, at Falmouth aforesaid, made and entered a protest in these words, manner and form following, to wit, “To all people,” &c. 137 220 SUPREME COURT [Feb’y Hooe v. Groverman. We find, that it was by the default of the defendants or their agents, in failing to have orders ready, on the arrival of the said vessel off Falmouth as aforesaid, designating and directing to which of the ports of discharge mentioned in the second article of the provisional articles aforesaid the said vessel was to proceed, and by the orders given to the said Davidson by the said Mr. Fox, that the said Davidson, did bring the said vessel to anchor in the said port of Falmouth, and that the said vessel and cargo were subjected to the seizure and detention aforesaid. If the law be for the plaintiff, we find * q for the plaintiff 791Z. 19s. 9 c?., Virginia *currency, damages; if the law be for the defendants, we find for the defendants. The court below being of opinion, that the law was for the plaintiff, judgment was entered accordingly ; and the defendants sued out the present writ of error. Swann and Simms, for the plaintiffs in error. C. Lee and E. J. Lee, for the defendant. Simms.—In this case, it is material to ascertain, whether Hooe & Co. ought to be considered as the owners of the vessel, and the master as their agent, for the voyage ; or whether Groverman is to be considered as the owner, and the master as his agent. Whether the freighter or owner of a ship is to be considered as the owner for the voyage, depends upon the nature of the contract between them. If the freighter hires and employs the master, and the master is subject to his orders and direction, during the voyage, then the freighter is considered as the owner for the voyage ; but if the owner hires and employs the master and hands, then he is the owner for the voyage, and liable for their misconduct. This fully appears from the case of Vallejo v. Wheeler, Cowp. 143. In the present case, Groverman was to employ and pay the master and the mariners. He covenants that they shall perform a specific voyage ; that the vessel shall sail with the first fair wind, after she is fully laden; that the cargo shall be delivered in good order, the danger of the seas only excepted; that the vessel was, at the time of making the charter-party, and should continue during the voyage, at his expense, tight, staunch and well found. The master and crew, therefore, must have been subject to the control of Groverman, during the voyage, and he was liable for their misconduct, and if any loss happened thereby, he, and not the freighters, was to bear it. Indeed, it is expressly stipulated, that the owners shall give instructions to the mas-ter to touc^ at Falmouth, *there to lay off and on twenty-four hours, -I or longer, if desired, in day-light, for orders from Mr. Fox, Mr. Wilson, or Messrs. Andrews & Co., and that on the receipt of such orders, he should proceed to the port directed by those orders. If the master has disobeyed his instructions from his owner and employer the freighters surely cannot be liable. Groverman must look to his agent, the master, for redress. It is probable, however, that the master did the best he could for the interest of all concerned ; and there is no more reason that the owner should look to the freighters for indemnification for the detention of his ship, than there is for the freighters looking to the owner for indemnification for the detention of their goods. If the master deviated from his instructions, it was at his and his employers’ risk. But the master was bound by the provisional articles to carry the vessel 138 1803] OF THE UNITED STATES. 222 Hooe v. Groverman. into Falmouth. She was there, in the regular course of her voyage, and by the articles, Hooe & Co. had a right to detain her there, upon payment of the stipulated sum for demurrage. Being, then, in the regular course of the voyage, the detention by a foreign power, gives no right to claim demurrage for the time she was in the hands of the British government, under the seizure. The remedy of Groverman was against his insurers, and not against the freighters. If he has not insured, it was his own fault, and he must stand his own insurer. Park on Insurance, 87, 88,89. Goss v. Withers, 2 Burr. 696. If the owner could recover demurrage from the freighters on the detention by a foreign government, that detention might continue so long that the stipulated demurrage might amount to twice the value of the ship and cargo. He had a right to abandon to the underwriters ; but the freighters can never be presumed to have become insurers. Hooe & Co. contracted to pay demurrage for such detention only as should happen through their default; but here, the detention was by the British government. The court below have, therefore, erred in giving judgment for the plaintiff on the special verdict, for the whole demurrage, from 21st June to 11th of September 1798. The vessel was seized before the expiration of the twenty-four hours, which were allowed by *the agreement. r*99q Hooe & Co. therefore, were not liable to pay any demurrage at all. Or, if it shall be considered, that Hooe & Co. were liable for demurrage after the vessel had been twenty-four hours at Falmouth, until orders were received from Thomas Wilson, they could be bound to pay only for two days, because it is found that the master received his orders to sail for London, on the 23d of June. If Hooe & Co. were liable for those two days’ demurrage, and no more, the court below ought to have awarded a venire facias de novo. But if Hooe & Co. had not a right to order the brig to Falmouth, yet Groverman has not a right to recover the damages he may have sustained thereby, in the present action, but his remedy was by a special action on the case. An action of covenant can only be maintained, for not doing an act covenanted to be done, or foi* doing an act covenanted not to be done. There was no covenant on the part of Hooe & Co., that the vessel should not go into the port of Falmouth ; and if there was, yet the plaintiff in his declaration does not aver such a covenant, nor declare on the breach of it: the only breach assigned is the non-payment of demurrage. If the vessel had no right to go into the port of Falmouth, then her going in is not a case provided for by the contract, and consequently, the contract can form no rule for ascertaining the damages. If the vessel had a right to go into Falmouth, then the consequent seizure is not chargeable to Hooe & Co. If she had not a right to go in, then no damages can be recovered in the present form of action ; nor in any other, because the act complained of is Gro verman’s own act, or the act of his agent, the master, for whose conduct Groverman himself is responsible. It is true, the jury have found that it was by the default of Hooe & Co., in not having orders ready at Falmouth, that the vessel was obliged to go into the port, and that the seizure and detention took place. But if this is a breach of any one of the covenants, yet it is the breach of a covenant not declared upon ; nor is the breach assigned, and therefore, no damages can be given in this action for the breach of that covenant. 139 *224 SUPREME COURT Hooe v. Groverman. [Feb’y *E. J. Lee, for the defendant in error.—Hooe & Co. were owners for the voyage. The master was bound to obey their orders. Fox and Wilson were their agents. They, by their agent, ordered the vessel into port, contrary to the terms of their agreement; the detention was the consequence of their misconduct, and they ought to be liable for demurrage. If a person hires a chattel, the hirer is the owner for the time for which he has hired it. Vallejo v. Wheeler, Cowp. 143. In that case, p. 147, it is said, that “ there seems to be great reason for a distinction between a general ship, and one that is let to freight to a single person only. The former carries the goods of all mankind ; every man that chooses it, is at liberty to load his goods aboard her ; and the merchant who ships his goods in such a vessel has no command over her. He does not hire or employ the master ; neither is the master subject to his order or direction during the voyage. But in the case of a vessel let to freight to one merchant only, and by him alone freighted, he may be supposed to employ the master, and have the direction of the vessel and the voyage ; and therefore, whatever is done by the master is to be considered as done by the merchant’s servant.” The master, therefore, in taking the vessel into the port, when, by the agreement, he was only to lay off and on, acted as the servant of Hooe & Co., and by their orders, expressly given through their agent, Mr. Fox. But if Hooe & Co. were not owners pro hdc vice, yet, having been the cause of the vessel’s going into port, whereby she was seized, they are liable. It is said in Molloy, 375 (257), book 2, c. 4, § 9, that “ if the ship, by reason of any fault arising from the freighter, as lading aboard prohibited or unlawful commodities, occasions a detention, or otherwise impedes the ship’s voyage, he shall answer the freight contracted and agreed for.” It is immaterial, what was the immediate cause of the detention; if it happened by the fault of Hooe & Co., here is a positive covenant to pay demurrage, if the' vessel is detained. *But it is said, we have not brought our action for damages for ■* carrying the vessel into port. It is true, that we have not; and the reason is, that the parties themselves having, by covenant, fixed the rate of damages, no action but covenant would lay. The furnishing the vessel with men, furniture, &c., does not make Groverman the owner. The master signed the provisional articles, by which he bound himself to obey the orders of Fox and others, the agents of Hooe & Co., and whether the master was the agent of Groverman, or not, still, Hooe & Co. have rendered themselves liable, by ordering him to go into the port. C. Lee, on the same side.—It is of no importance, who was the owner ; for the detention is clearly the consequence of the default of Hooe & Co. The action is brought for not paying demurrage, according to express covenant. The defence set up is, that the vessel was improperly carried into the port; and that the master, being the agent of Groverman, he must abide the loss. We admit, that it was unlawful for the vessel to go into the port; this is the ground of our right. Suppose, the master was the agent of Groverman, and Fox the agent of Hooe & Co.; by whose fault or orders was the vessel carried in ? Clearly, by the orders of Hooe & Co. No man has 140 1803] OF THE UNITED STATES. 225 Hooe v. Groverman. a right to order my servant; but if he does, and by that means misleads him, and a loss happens, he must be liable. Hooe gave instructions to the master how to act. If it was lawful for him to do so, then he must be considered as the owner, and the obedience to his orders, in all its consequences, is chargeable to him. If it was not lawful, then his improper interference, if it misled the master, is also chargeable to him. Unless he was the owner, he had no right to instruct the master ; it was a wrongful act. If he was the owner, there is no pretence for not paying the demurrage. If it should be said, that the act of parliament referred to in the special verdict, and which is generally called *the hovering act, justified the [-*226 orders to carry the vessel into port, the answer is, that the parties must be supposed to have understood that business, and agreed to the risk. The finding of the jury, respecting the orders not being ready, although it is apparently in favor of the defendant in error, is not considered as materially affecting the case, because, by the agreement, Hooe & Co. were not bound to have the orders ready, but might keep the vessel waiting, upon paying the stipulated demurrage. Swann, for the plaintiffs in error.—The questions which seem to arise in this case are these : 1. Are Hooe & Co. liable at all for this detention ? 2. If they are at all liable, are they liable in this form of action ? 1st. The vessel had a right to go into the port of Falmouth, and was, therefore, in the regular course of her voyage. If so, then the seizure and detention of the vessel by the British government, was not by the default of Hooe & Co., and the case is not within the contract. Hooe & Co. were not bound absolutely to have the orders ready, on the arrival of the vessel at Falmouth ; but the, contract provides for the case of the orders not being ready, and Hooe & Co. were at liberty to detain the vessel at Falmouth for orders, on paying a stipulated sum for demurrage. The words of the 5th provisional article are, that “ If the vessel is detained over 24 hours at-Falmouth, demurrage shall be paid at the rate stipulated in the charter-party.” The parties are presumed to know the course of trade in the voyage about which they were contracting. {Bond v. Nutt, Cowp. 605.) They must have known that the vessel could not lawfully lay off and on, more than 24 hours, without being liable to seizure under the act of parliament : this created a necessity for the vessel’s going into port. Not indeed a physical necessity ; that was not requisite to justify it: it was *sufficient, if in prudence and discretion it was necessary and advisable for the general benefit of all parties concerned. C 22' Bond v. Nutt, Cowp. 601 ; Park 310 ; Burn’s M. Ins. 103, 133.) The words, “ at Falmouth,” strongly indicate this to have been the understanding of the parties themselves ; and the very action itself, founded upon the contract for demurrage at the port of Falmouth, is a direct affirmance of the right to go into the port. If the vessel had no right to go into the port, then demurrage cannot be claimed under the contract, because it is a case not provided for by the contract. If the vessel had a right to go into the port, then she was still in the regular prosecution of her voyage, at the time when she was seized by the British government, and consequently, the detention cannot be chargeable to Hooe & Co. They have covenanted only 141 227 SUPREME COURT [Feb’y Hooe v. Groverman. against their own default, and their own acts. Groverman had other means of securing himself against all other risks. He ought to have insured ; if he has not, it is his own fault; he stands as his own insurer, and his remedy is by recourse to the British government. Suppose, the vessel had been seized at Havre de Grace, by the French government; can it be supposed, that Hooe & Co. would have been liable ? It will not be contended, that they would ; and yet there is, in fact, no difference between the two cases. Hooe & Co. cannot be considered as the owners, because, in the first place, the hiring of the vessel was not general, it is of the tonnage only ; this excludes the cabin and the master’s perquisites. Groverman employs the master and crew, and stipulates for the good condition of the vessel, during the voyage, and for the safe transportation of the goods, the danger of the seas only excepted ; thereby clearly making himself responsible for the fidelity and good conduct of the master and mariners. Groverman was, therefore, clearly the owner of the vessel for the voyage. He covenants to instruct the master to touch at Falmouth and wait for orders. He covenants that the master shall proceed to such port as shall be mentioned in those orders. Now, he never would have done all this, if the master was not subject to his control. If, then, the master was the servant of Groverman, and has improperly carried the vessel into port, instead of laying off and on, how can Hooe & Co. be liable *for the consequences ? It is J said, because Fox advised or directed it; and Fox was the agent of Hooe & Co. Then it amounts to this, that Groverman, by his agent the master, and Hooe & Co., by their agent, Mr. Fox, finding the vessel to be in danger by laying off and on, have consulted together as to the best means of preventing loss to all parties, and agreed, that the vessel should go into the port. To which of the parties is this error, if it is one, to be imputed ? Certainly, to neither ; it was their mutual act, intended for their mutual benefit, and neither has a right to complain, or to make the other liable for the subsequent, and perhaps consequent, seizure by the British government. Fox had no authority to order the vessel, except as to which of the ports mentioned in the provisional articles, she should go. The directions to the master, therefore, to come into the port, must have been considered by the captain only as a matter of advice : he was not bound to follow it. Suppose, I advise an act to be done, and it turns out unfortunately; am I to be liable for the consequences ? Suppose, even, that the vessel went in, purely to oblige and benefit Hooe & Co., yet they would not thereby become liable for accidents happening without their default. If my friend, in coming to serve me, receives an injury from a third person, am I liable ? If the provisional articles do not provide for the vessel’s going into the port, yet Mr. Fox and the master acted correctly. A case arose, not provided for by express contract; they did right, therefore, in mutually consulting for the common good of their employers, and although the result of their deliberations may have proved unfortunate, yet neither party can criminate the other. 2. If Hooe & Co. are liable at all, it is not in this form of action. The covenants which they are bound to perform are, 1. To pay the freight. *2201 *2, To furnish orders at Falmouth. 3. To pay so much per diem for ■* their own detentions. 142 1803] OF THE UNITED STATES. Hooe v. Groverman. ' 229 Now, it is admitted, that this detention was by the British government, and if the vessel was in her voyage while in the port of Falmouth, there was no default of Hooe & Co., by which that detention can be chargeable to them. But if the vessel was out of her voyage, and had been carried into port by Hooe & Co., contrary to the agreement, then it is a case not provided for by the charter-party, and therefore, demurrage, as such, cannot be claimed. In such a case, the remedy would be only for the tort. Suppose, they had burnt the vessel; no action of covenant would lay for that wrong. The injury complained of, is the ordering the vessel into port. February 23d, 1803. The Chief Justice delivered the opinion of the court.—This is a writ of error to a judgment rendered in the circuit court of the district of Columbia, sitting in Alexandria, on the following case : A charter-party was entered into between the parties, on the 10th day of April 1798, whereby Groverman let to Hooe & Co., a vessel of which he was owner, for a voyage to Havre de Grace. The first article states the indenture to witness, “ that the said Groverman hath granted and to freight letten, to the said R. T. Hooe & Co., the brigantine Nancy, whereof he is owner, commanded by James Davidson, a citizen of the United States, now lying in the port of Alexandria, of the burden of 197 tons or thereabouts ; and for and in consideration of the covenants hereinafter mentioned, doth grant and to freight let, unto the said R. T. Hooe & Co., their executors and administrators, the whole tonnage of the aforesaid vessel called the Nancy, fronTthe port of Alexandria, in Virginia, to the por| of Havre de Grace, in France, and back to the said port of Alexandria, in a voyage to be made by the said R. T. Hooe & Co., with the said brigantine, in manner hereinafter mentioned; that is to say, to sail with the *first fair wind and weather that r* shall happen after she is completely laden, from the said port of Alex-andria, with a cargo of tobacco, to be shipped by said R. T. Hooe & Co., to the said port of Havre de Grace, and there deliver the said cargo to Messrs. Andrews & Co., of that town, merchants, or to their assigns, in good order, the danger of the seas only excepted; and at the said port of Havre de Grace, to take on board a full freight or lading of such goods as the said Andrews & Co. may think proper to put on board said brigantine, as a return-cargo, with which the said vessel is to make the best of her way directly back to the port of Alexandria, and there safely deliver such cargo to the said R. T. Hooe & Co.” Groverman further covenants with the said R. T. Hooe & Co., that the vessel is, and shall, during the voyage, be kept, in good condition, and furnished with all manner of necessary and proper rigging, &c., and with mariners to navigate her. He further covenants to allow twenty-five running days for lading the vessel at the port of Alexandria, thirty days for discharging her cargo and taking on board the return-cargo at Havre, and ten days for receiving her inward cargo at Alexandria. In consideration of these covenants, R. T. Hooe & Co. engage to pay the stipulated freight, and 81. 8s. for every day’s demurrage, if any there should be, by their default, at the port of Alexandria ; and one hundred and fifty-one livres by the day, for every day’s demurrage, occasioned by their default, at the port of Havre de Grace. On the 11th day of April, provisional articles were entered into between the same parties, by which it was stipulated that, 1st. The captain or com- 143 230 SUPREME COURT Hooe v. Groverman. [Feb’y mander shall be instructed by his owner, previous to his sailing from Alexandria, to touch at Falmouth, in such manner as shall appear to his crew that there was a necessity for his so doing, there to lay off and on twenty-four hours (or longer if desired), in day-light, during which time, there will come off orders from Mr. Fox, the American consul, Mr. Thomas Wilson, of # - London, or Messrs. Andrews & Co., of Havre de Grace. *2d. On re- J ceiving these orders, the captain or commander must proceed directly for Havre de Grace, London, Hamburg, Bremen or Rotterdam, as he may be directed, and at one of these ports deliver his cargo, to such person or persons as the aforesaid orders may direct. The third and fourth articles apply the covenants of the charter-party, respecting the conduct of the vessel in the port of Havre, to the contingency of her being ordered to some other port; and to the freight, and stipulate the demurrage to be QI. Qs. sterling by the day. The fifth article is in these words: “If the vessel is detained over twenty-four hours at Falmouth, demurrage shall be paid for the time at the rate stipulated in the charter-party.” On the 20th of June 1798, the vessel arrived in Falmouth roads, about three leagues from the port of Falmouth, where the master laid her to, and immediately went on shore, and applied to Mr. Fox, the American consul, for orders where to proceed. Fox replied, that he had received no orders for him, and that, therefore, he must bring the vessel into the port of Falmouth, and there remain, until orders were received for him to proceed to his port of discharge. These orders were given to avoid the penalties of the British hovering act, which subjected to forfeiture the vessel and cargo, if found in the situation in which the Nancy would have been, if she had waited for orders, without entering the port. The master immediately brought his vessel into port, where she was seized on suspicion of being French property, and detained for nearly three months. After the seizure, on the 23d day of June, the master received orders from Thomas Wilson, through Fox, to proceed with his vessel to London, there to deliver her cargo, This suit is brought by Groverman to recover damages against R. T. Hooe & Co. for this detention. The declaration states the charter-party and * provisional agreement, and then assigns a breach of them in these J *words: “ And the said plaintiff doth aver, that the said brig arrived off Falmouth, on the 19th day of June 1798, when the master, by the orders of the aforesaid Mr. Fox, the agent of the said defendants, conveyed her into the port of Falmouth, by means whereof, the said brig was detained in the aforesaid port of Falmouth more than twenty-four hours, to wit, from the 20th day of June last aforesaid, to the 11th day of September, in the year 1798, when she sailed, by the orders of Andrews & Co., the agents for the said defendants, for the Downs.” And the declaration then charges that the defendants had not paid the demurrage stipulated in the charter-party, or in the provisional articles. Issue was joined on the plea of conditions performed, and the jury found a special verdict, containing the facts already stated, and further, that before the vessel sailed from Alexandria, the master was told by R. T. Hooe, that on his arrival off Falmouth, he would receive instructions from Mr. Fox, the American consul, and that he must abide by such instructions; and that it was by the default of the defendants, or their agents, in failing to have orders ready on the arrival of the said vessel off Falmouth as aforesaid, 144 1803] OF THE UNITED STATES. Hooe v. Groverman. ’ 232 designating and directing to which of the ports of ’discharge mentioned in the second article of the provisional articles aforesaid the said vessel was to proceed, and by the orders given to the said Davidson (the master), by the said Mr. Fox, that the said Davidson did bring the said vessel to anchor in the said port of Falmouth, and that the said vessel and cargo were subjected to the seizure and detention aforesaid; if the law be for the plaintiff, the jury find 7947. 19s. 9 c?., Virginia currency, damages; if the law be for the defendants, then they find for the defendants. The circuit court was of opinion, that the law was for the plaintiff, and rendered judgment in his favor. To support this judgment, the special verdict ought to show that R. T. Hooe & Co., the defendants in the circuit court, have broken some covenant contained in the agreements between the parties; and that the breaches assigned in the declaration are upon the covenant so broken. *The breach assigned is the non-payment of demurrage stipulated to be ‘-paid, for a longer detention than twenty-four hours, at Falmouth; and it is to be inquired, whether the declaration makes a case showing demurrage to be demandable, and how far the special verdict sustains that case. The case made by the declaration is, that on the arrival of the vessel off Falmouth, the master took her into port, by order of Mr. Fox, by means whereof, she was detained more than twenty-four hours. The question arising out of this case, for the consideration of the court, is, does it show a breach of covenant on the part of R. T. Hooe & Co., which subjects them to demurrage for the detention stated ? The fifth article is supposed to be broken. The words of the covenant are: “ if the vessel is detained over 24 hours at Falmouth, demurrage shall be paid for the time, at the rate stipulated in the charter-party.” If this clause provides for every detention whatever, however it may be occasioned, the inquiry is at an end, and the judgment should be affirmed. But on looking into the provisional articles, the general expressions here used will be found to be explained. The first of these articles stipulates that the master should touch at Falmouth, there to lay off and on for twenty-four hours (or longer if desired), in day-light, during which time, there will come off orders from Mr. Fox, the American consul, Mr. Thomas Wilson, of London, or Messrs. Andrews & Co., of Havre de Grace. Here, then, is a power given to R. T. Hooe & Co. to detain the vessel longer than twenty-four hours, lying off and on at the port of Falmouth, waiting for orders, and it is the only rational construction which can be given the contract, to suppose that the fifth article refers to the first. *A certain number of days are allowed for lading the vessel in rsj. Alexandria. But more days may be required, in which case, demur- L rage is to be paid. So with respect to discharging and relading the vessel at the port of delivery in Europe ; and so with respect to the return-cargo in Alexandria: in each case, demurrage is stipulated, in the event of a longer detention than is agreed on. When, then, a time is given to wait for orders at Falmouth, it is reasonable to suppose, that the demurrage, which is to be paid, for a longer detention than the time given, relates to a detention oc-^asioned by waiting for orders, or some breach of covenant by R. T. Hooe The declaration does not state the vessel to have waited, lying off and on, for orders, but to have been taken into port by the orders of Mr. Fox, when 1 Cbanch—10 145 234 SUPREME COURT [Feb’y Hooe v. Groverman. she was seized and detained by the officers of the British government. The covenant, then, was broken by taking the vessel into port, and it is to be inquired, who is answerable for this breach ? It has been argued, that R. T. Hooe & Co. are answerable for it, because, 1. Their orders for the further prosecution of the voyage ought to have been in readiness as stipulated. 2. The vessel was taken into port by the orders of their agent, for whose acts they are accountable. 3. The master was, for the voyage, their captain ; and the stipulation to lay off and on, therefore, being broken by him, was broken by them. To the first argument, founded on the non-reception of orders, the observation already made may be repeated. The declaration does not attribute the detention to that cause, but to a compliance with the orders of Fox in taking the vessel into port. If, however, the charge in the declaration had *9^51 been, that orders were not ready on the arrival of the vessel, *that J charge would have been answered by the contract itself, which allows a delay of twenty-four hours for the reception of orders, without paying demurrage, and a longer time, if required, on paying therefor at the rate of 6/. 6s. sterling by the day. The failure, then, to have the orders, for the further destination of the vessel, in readiness, on the arrival of the master, or even within the twenty-four hours after his arrival, was no breach of contract on the part of R. T. Hooe & Co., since it was an event contemplated and provided for, by the parties; and the question whether, in the actual case which has happened, that is, of a delay longer than twenty-four hours in giving the orders, but of a seizure before that time elapsed, R. T. Hooe & Co. are responsible for demurrage accruing between the termination of the twenty-four hours and the receipt of the orders, cannot be made in this case, because there is no allegation in the declaration which puts that fact in issue. 2. The court will proceed, then, to consider whether, R. T. Hooe & Co. are made accountable for the vessel’s being taken into port, since that measure was adopted, in pursuance of the instructions of their agent, Mf. Fox. The finding of the jury goes fartoprove that the defendants in the court below have made themselves responsible for the conduct of Fox. They find that R. T. Hooe informed the master, before he sailed from Alexandria, that on his arrival off Falmouth, he would receive orders from Mr. Fox, and that he must abide by such instructions. This finding creates some difficulty in the case. But this communication from Mr. Hooe to the master ought to be taken, it is conceived, in connection with the provisional articles. Those articles explain the nature of the orders to be received, and by which the master was directed to abide. In them, it is expressly stipulated, that on receiving these instructions, the master should proceed directly for Havre de Grace, London, Hamburg, Bremen or Rotterdam, as he should be directed. The orders, then, which he was to receive and obey, must be supposed com-*2361 patible with this agreement. *This construction is the more reason- J able, because, annexed to the provisional articles, is an acknowledgment on the part of the master, that he was to act conformable to them. He ought not to have understood declarations of the kind stated in the verdict, as directing a departure from a written agreement entered into by the owner and freighters of the vessel, and to which he had bound himself to conform. This article seems, too, to explain the power delegated by Hooe & Co. to 14§ 1803] OF THE UNITED STATES. 236 Hooe v. Groverman. Fox; and to show that he was their agent, for the purpose of directing the further destination of the vessel, but for no other purpose. If this be the correct mode of understanding this part of the verdict, and it is believed to be so, then the particular conduct of Hooe & Co. did not authorize the master to obey the orders of the American consul, in taking the vessel into port ; nor are they responsible for the consequences of that measure, unless they could be considered as responsible for a violation of the covenant by the act of the master. If these facts are to be differently understood, and the communication made by Hooe to the master is to be understood as authorizing him to obey any order given by Fox, though that order should be directly repugnant to the provisional articles, still the liability of Hooe & Co. in this suit, will depend on the question whether the covenant to lay off and on at the port of Falmouth, was a covenant on the part of the owner, or of the freighters, of the vessel. This depends so much on the question whether Groverman or R. T. Hooe & Co. were owners of the vessel for the voyage, that it will more properly be considered with that point. 3. Was the master under the direction of Groverman or Hooe & Co. for the voyage ? This is to be determined by the whole charter-party, and the provisional articles taken together. It has been observed at the bar, and the observation has considerable weight, that Groverman lets the tonnage of *the vessel, and not the whole vessel, to the freighters. The expression of the charter-party, it will be perceived, varies in the part descriptive of the agreement, from what is used in the part constituting the written agreement. The indenture witnesses, “ that the said Groverman hath granted and to freight letten, to the said R. T. Hooe & Co. the brigantine Nancy, whereof he is owner,” &c., but immediately proceeds to say, “ and for and in consideration of the covenants hereinafter mentioned, doth grant and to freight let, to the said R. T. Hooe & Co., the whole tonnage of the aforesaid vessel, from the port of Alexandria, in Virginia, to the port of Havre de Grace, in France,” &c. As the latter are the operative words which really constitute the contract, it is conceived, that they ought to prevail, in construing that contract. Groverman, then, has only let to Hooe & Co. the tonnage of the vessel, and therefore, is the less to be considered as having relinquished ownership of her during the voyage. There are other circumstances which serve to show that the direction of the vessel, during the voyage, was intended to remain with Groverman. The cargo is to be delivered to Messrs. Andrews & Co., of Havre de Grace, in good order, the dangers of the seas only excepted. This is an undertaking on the part of Groverman, which he certainly would not have made, if he had relinquished the direction of the voyage to Hooe & Co. If the vessel, pro hue vice, had been their vessel, Groverman would not have contracted for the delivery of the cargo ; and for the delivery to a specified person. If the freighters had owned and commanded the vessel, they might have delivered the cargo in Havre to any other person, or have discharged at a port short of Havre, without injury to Groverman. So, the cargo taken on board at Havre js to be such as Andrews & Co. may think proper ; which return-cargo is to be delivered to Hooe & Co., in Alexandria. These stipulations all indicate that the voyage was to be performed under the orders 237 . SUPREME COURT [Feb’y Hooe v. Groverman. of Groverman, because the acts stipulated are to be done by him, and the covenants are his covenants. This is further evidenced by the subsequent language of the charter-party. The succeeding sentence begins with the words, “ and the said Groverman * , further *covenant to and with the said R. T. Hooe & Co.,” &c., J showing that the preceding covenants were all on the part of Groverman. This further covenant is not only for the present condition of the vessel, but that she shall be kept well apparelled and well manned by the said Groverman, during the voyage. The master, then, was Groverman’s captain, the mariners were Groverman’s mariners ; and this furnishes an additional reason for supposing the master and mariners to be under his direction. After some further covenants on the part of Groverman, the charter-party proceeds thus : “ In consideration whereof, the said R. T. Hooe & Co. do covenant, &c., to and with the said W. Groverman, &c., that they will well and truly pay the freight stipulated therein.” Thus, the whole language of the charter-party goes to prove that the covenants respecting the voyage are on the part of Groverman, and on that account, as well as on the account of his letting only the tonnage of the vessel, and furnishing the master and mariners, &c., he is to be considered as the owner of the vessel for the voyage, under the charter-party. This opinion is strengthened rather than weakened by the provisional articles. The first article stipulates that particular instructions respecting the voyage shall be given to the master by Groverman, before its commencement. The words are : “ The captain or commander shall be instructed by his owner, previous to his sailing from the port of Alexandria, to touch at Falmouth,” “ there to lay off and on twenty-four hours' (or longer if desired) in day-light,” &c. These orders, then, to the master were to be given by Groverman, and it was by his authority that the master was to act on that occasion. This explains the doubt as to the person who was to be considered as covenanting that the vessel should lay off and on, for twenty-four hours, at the port of Falmouth, and tends to show who was responsible for the breach of that covenant. This, too, is in addition to covenants in the charter-party, which are plainly Groverman’s, and is, therefore, the more to be considered as a covenant on his part. The act was to be performed by his authority, and the covenant was his covenant. * *On a considerati°n5 then, of the whole contract between the par-J ties, the court is of opinion, that Groverman remained the owner of the vessel during the voyage, and is answerable for any misconduct of the master. The covenant to lay off and on at the port of Falmouth, being the covenant of Groverman, the freighters are not answerable in this action, for the breach of it, should the orders of Fox be understood as their orders. It is probable, that the course taken by the master was the most prudent course ; but were it otherwise, the orders of of Fox might excuse the owner from any action brought by the freighters for loss sustained by them in consequence of going into Falmouth, but could not entitle him to this action against the freighters. It is, then, the opinion of this court, that on this special verdict, the law is for the defendants. Judgment reversed, and the circuit court to enter judgment for the defendants. 148 1803] OF THE UNITED STATES. 239 Gabriel Wood, original defendant, v. William Owings and Job Smith, assignees of William Bobb, a bankrupt, original plaintiff. Bankruptcy.—Deed. A deed of lands in Maryland, signed, sealed and delivered on the 30th of May, and acknowledged on the 14th of June, is to be considered as made on the 30th of May ; and its acknowledgment on the 14th of June, will not cause it to be such a deed as is contemplated in the bankrupt act which came into operation on the 2d®f June. Error from the fourth Circuit Court, sitting at Baltimore. This was an action on the case, for money had and received, by Wood, to the use of Robb, the bankrupt. Judgment below was entered by consent, subject to the opinion of the court on a case stating the following facts, viz. : *On the 30th of May 1800, Robb, being in possession of his r*94n household furniture, and having two vessels, and no other property, on the high seas, signed, sealed and delivered a deed to Charles Garts and Gabriel Wood, trustees in behalf of themselves and other creditors of Robb, therein particularly named, and such others of his creditors as should, by a certain time, assent to the terms of the trust; by which deed, Robb, in consideration of five shillings, and towards payment of the debts due to the particular creditors therein named, in the first place, and in the next place, of such of his creditors as should agree to the terms of the trust; granted, bargained, sold, &c., to Garts and Wood, all his estate, real, personal and mixed, and choses in action, &c., in trust to sell the same, and collect the debts, &c., and on receipt of the money, to retain, in the first place, the amount due to Garts and Wood, for money lent, &c., then to pay the debts due to the other creditors particularly named, and then to pay the debts due to such of his other creditors as should, within a certain time, agree to the terms of the trust; and if there should be a surplus, to pay it over to Robb. This deed was acknowledged on the 14th June 1800. . Robb did not, on the said 30th of May 1800, deliver to Wood his books, but they remained in Robb’s possession. The vessels were not conveyed to Wood by any other conveyance than that before mentioned. Robb continued in possession of his household furniture, books of accounts, and all his papers, until the suing out of the commission of bankruptcy, except the policies of insurance on the vessels, which were delivered to Wood, at the time of delivering the deed. Robb considered Wood as having a right to take possession of the books and papers and personal estate, at any time after the delivery of the deed, but did not then expect to be obliged to stop business; on the contrary, that he actually went on, with the hope of retrieving his affairs, until the 20th June 1800. Robb was a trader, before and after the 1st of June 1800 ; at the time of signing, sealing, and delivering of the said deed, he was the legal proprietor of a lot of ground, in the state of Maryland, as assignee of a term o,f 99 years, renewable for ever, and was also possessed of personal property, and had debts due to him; Garts and Wood, and the other persons in the deed particularly named, were creditors *of Robb; r# and there were other creditors besides those particularly preferred in L the deed. A commission of bankruptcy issued against Robb, on the 12th July 1800, founded on the execution and acknowledgment of the said deed, under which Robb was declared a bankrupt, and his effects were assigned 149 241 SUPREME COURT [Feb’y Wood v. Owings. to the plaintiffs, Owings and Smith, by a deed of assignment, on the 1st of May 1801. And the action was brought to recover all moneys received by Wood, in virtue of the said deed to Garts and Wood. If, on the above state of facts, the plaintiffs were entitled to recover, then judgment was to be entered for the plaintiffs for $3000 ; but if, &c., then judgment of non pros. By the bankrupt act of the United States, § 1, it is enacted, that “ from and after the 1st day of June next (Juno 1st, 1800), if any merchant, &c., with intent unlawfully to delay or defraud his creditors, shall make or cause to be made any fraudulent conveyance of his lands or chattels, he shall be deemed and adjudged a bankrupt.” Two questions were made by the counsel in the court below, viz.: 1st. Whether this deed could be considered as made at the time of its acknowledgment, on 14th June, 1800, so as to constitute it an act of bankruptcy, under the bankrupt law of the United States, which came into operation on the 2d June 1800, or whether the acknowledgment should relate back to the 30th May 1800, the day on which the deed was signed, sealed and delivered, so that the deed should be considered as made on that day ? 2d. Whether, if made after the 1st of June 1800, it could be considered as such a fraudulent conveyance, as is contemplated by § 1 of the bankrupt law ? Martin, for the plaintiff in error, now waived the second point, and relied entirely on the first.— * . This involves three questions: *lst. Whether the deed, signed, J sealed and delivered on the 30th of May, and acknowledged on the 14th of June, is an act of bankruptcy, under the law which came into operation on the 2d of June? 2d. Whether the signing, sealing and delivery shall be considered as going forward to the time of acknowledgment ? or 3d. Whether the acknowledgment shall refer back to the time of the signing, sealing and delivery ? The debtor, independently of the bankrupt act, may prefer one creditor to another. No creditor can prevent him, unless by taking out a commission of bankruptcy. This principle is acknowledged by all the state governments, and by the laws of England, in cases not within the bankrupt law. In the case of Hooper n. Smith, 1 W. Bl. 441, one Hooper, being bond fide indebted to his mother, in the sum of 800Z., at 8 o’clock in the morning, assigned and delivered to his mother, half his stock in trade, which was taken away immediately to his mother’s lodgings. On the evening of the same day, he committed an act of bankruptcy. His assignees, by stratagem, got possession of the goods and sold them: the mother brought trover against the assignees, and recovered. Lord Mansfield, in that case, said, that ‘‘ a preference to one creditor, especially, by assigning only part of his goods, and to pay only part of the debt, has been frequently held to be good; particularly in the case of Cock v. Goodfellow (the case of a parent and child), Small v. Owdley and others.” “ Suppose, he had sold the goods in question to John or Thomas, and with that ready money, had paid his mother part of her debt; would that sale or payment have been void ?” The courts of Virginia, Maryland and Pennsylvania have always recognised the 150 1803] OF THE UNITED STATES. $42 Wood V. Owings. same principles. If the bankrupt law had never passed, this deed would have been protected in courts of law and equity. Is this a fraudulent conveyance, under the bankrupt law ? *The acknowledgment is necessary for some purposes, but not to constitute L it a deed. A deed is defined to be, a writing on parchment or paper, sealed and delivered. Suppose, a mortgage of lands, containing a covenant to pay money, be not acknowledged, it would not, at law, convey a legal title to the land, but it would be good as a covenant to pay the money ; and would be good to pass an equitable title to the land. Suppose, it contained a conveyance of land and chattels ; it would be good as to the chattels. This shows that acknowledgment is not a necessary part of the deed ; but only that a deed, not acknowledged, will not pass a legal estate in lands, as to creditors. But the act of Maryland, November session 1766, c. 14, § 2, says, “ that no estate of inheritance, &c., shall pass or take effect, except the deed or conveyance by which the same shall be intended to pass or take effect, shall be acknowledged before the provincial court, &c., and be also enrolled in the records of the same county,” &c. It must, therefore, be a deed, before the acknowledgment. And by the 5th section of the same act, it is declared, that every such deed shall have relation, as to the passing and conveying the premises, from the day of the date thereof ; thereby evidently contemplating it- to be a deed from its date. This section Was inserted because, by the former act of 1715, the deed took effect only from the time of its acknowledgment. But the law is the same, independent of the positive declaration of this act; 1 Bac. Abr. 27 7, Bargain and Sale ; and 2 Inst. 674-5, where Lord Coke, in his exposition upon the statute of 27 Hen. VIII., c. 16, of enrolments, says, “ And when the deed is enrolled within six months, then it passeth from the livery of the deed. And, albeit, after the delivery and acknowledgment, either the bargainor or bargainee die before enrolment, yet the land passeth by this act.” “ And by the words of this statute, when the deed is enrolled, it passeth db initio” And he cites the case of Mattery v. Jennings, determined in the common pleas, 42 Eliz., which was this : “ One Sewster was seised of certain lands in fee, and acknowledged a recognisance *to Turner, whose executrix brought a scire facias upon the recognisance, bearing date the 9th November, 41 *-Eliz., against Sewster, and alleged him to be seised of those lands in dominico suo ut defeodo, the day of the scire facias brought; and the truth of the case being disclosed by long pleading, was this : Sewster, 7th November, before the recognisance acknowledged, by deed indented, for money, had bargained and sold the said land to another, and the deed was enrolled the 20th November following. The question was, whether Sewster was, upon the whole matter, seised in fee, the 9th of November, the deed being not enrolled until the 20th of the same November. And it was adjudged, und voce, that Sewster was not seised in fee of the land, on the 9th day of November. For that when the deed was enrolled, the bargainee was, in judgment of law, seised of that land, from the delivery of the deed. And it was resolved, that neither the death of the bargainor, nor of the bargainee, before enrolment, shall hinder the passing of the estate. And that a release of a stranger to the bargainee, before enrolment, is good. So that it holds not by relation, between the parties, by fiction of law ; but in point of estate, as well to them 151 244 SUPREME COURT [Feb’y Wood v. Owings. as to strangers also. And that a recovery suffered against the bargainee, before enrolment (the deed indented being, afterwards, within the six months, enrolled), is good, for that the bargainee was tenant of the freehold, in judgment of law, at the time of the recovery. And non refert when the deed indented is acknowledged, so it be enrolled within the six months. And all this was afterwards affirmed for good law, by the court of common pleas, Trim, 3 Jac., upon a special verdict given in an ejectione firm between Lel-Ungham and Alsop; and further, it was there resolved, that if the bargainee of land, after the bargain and sale, and before the enrolment, doth bargain and sell the same, by deed indented and enrolled, to another; and after the first deed is enrolled, within the six months, the bargain and sale, by the bargainee, is good.” In 18 Viner 289, tit. Relation, it is said, “when two times, or two acts, *94^1 are reQuisite the perfection of an *act, it shall be said, upon their J consummation, to receive its perfection from the first.” If A. makes a deed to B., on the 30th of May ; and another, for the same land, to C., on the 1st of June, and acknowledges it the same day ; afterwards, on the 14th of June, he acknowledges the deed to B., this overreaches the deed to C., and the acknowledgment of the deed to B. is not a fraudulent act Suppose, A. makes a bond fide deed to B., for valuable consideration, on the 30th of May : on the 1st of June, A. commits an act of treason : on the 14th of June, he acknowledges the deed to B.: the land is not forfeited by the treason of A. If an indictment had been found for forging this deed, and to support the indictment, evidence had been given of the forgery of the acknowledgment only, would have that supported the indictment ? If a declaration upon this deed, stating it to have been made on the 14th of June, had been drawn, would it have been supported, by producing in evidence this deed signed, sealed and delivered on the 30th of May ? This deed intends to convey choses in action and personal effects, as well as lands. As to the former, the deed is good, without acknowledgment ; for as to the choses in action, the deed, without acknowledgment, is an equitable assignment, and if acknowledged, it would have amounted to nothing more. But if the assignees are entitled, they must take the bankrupt’s estate, subject to all the equity of others. 2 Vesey, sen., 585, 633 ; Cooke’s Bankrupt Law, 203 ; Taylor n. Wheeler, 2 Vern. 564. ’ Courts of law will protect equitable rights ; as in the case of Winch v. Keeley, 1 T. R. 619, where the plaintiff having assigned his right of action to Searle, and having become bankrupt, was still held able to support the action for the benefit of Searle, notwithstanding the assignment of his effects under the bankrupt , laws. *And by the authority of Ex parte Eyas, 1 Atk. 124, if the J assignees had received the money due to Robb, the bankrupt, they would have been obliged to pay it over to Wood, the plaintiff in error, instead of receiving it from him. The deed is not fraudulent in se; and would not now be questioned, if the bankrupt law had not been passed. Although it is a deed of all his effects, yet it is not an absolute deed, nor was it made on any secret trust, or for his own benefit. The only thing which can be alleged against it is, that it gives a priority to some of his creditors, and this he had a clear right to do, both in law and equity. It was not made in secret; it holds up no false colors ; it enables him to receive no false credit. He might have sold the property 152 1803] OF THE UNITED STATES. 246 Wood v. Owings. for ready money, and paid any one of his creditors in full. But making a deed of trust, he has prevented a sacrifice of his property, whereby it is competent to satisfy a greater number of his creditors, and he is himself rendered more able to pay the residue of his debts by his future industry. The committing an act of bankruptcy is, in law, considered as criminal. The bankrupt law is, therefore, in this respect, to be construed strictly. It ought not to be extended beyond the letter of the law. Cooke’s B. L. 67 ; Cowp. 409, 427, 428 ; 5 T. R 575 ; Fowler v. Padget, 1 Ibid. 509. But however fraudulent the deed might have been, yet it was no act of bankruptcy, under the act of congress ; because not executed after the 1st of June ; unless the acknowledgment can. be considered as the making of the deed. And if it was not an act of bankruptcy, the title of the defendants in error fails. Harper^ contra.—The act of bankruptcy charged, is the making a fraudulent deed, after the 1st of June 1800. The counsel for the plaintiff in error having abandoned the second point which was made, and strongly contended for, in the court below, the only question now to be considered is, whether the deed was made before or after the 1st of June. *A deed, at common law, is an instrument in writing, signed, sealed r*, and delivered. If it be signed and sealed, but not delivered, it is no *-deed ; and the reason is, that until the last act of volition is performed, there is still a power of recalling it. The cases from the English books, respecting the statute of enrolments, are not applicable to the law of Maryland respecting acknowledgment. The English laws only protect creditors and purchasers without notice. But the law of Maryland is intended to protect the maker of the deed himself, to prevent forgeries and fraud, and to give a further solemnity, that the grantor may have more time to reflect, and to secure himself from being suddenly entrapped. The law, therefore, superadds to signing, sealing and delivery, a further act of volition. It is said, that a court of equity will set up such a deed ; true, it would, in certain cases ; but not because -it is a paper signed and sealed ; but because it is a contract for a valuable consideration. But this deed would never have been supported, in a court of equity, if it had not been completely‘valid at law. Suppose, Robb had refused to acknowledge it; and application had been made to chancery to carry the deed into effect ; it would have been refused. Can a deed be said to be made, when it is not complete ? It was not complete, on the 30th of May ; something was still to be done, of which it would have been necessary to apply to a court of chancery to compel the performance. If acknowledgment is necessary by statute law, it is the same as if necessary by common law. The one is as binding as the other. They are both derived from the same source, but evidenced in different modes. Signing, sealing and delivery only are necessary by the common law, but acknowledgment also is necessary by the statute. - The deed of land was an act of bankruptcy, and prevented the operation of the deed as a deed of personal estate. The deed for the land and for the chattels was executed eodem instanti. *Chase, J.—The effect of an acknowledgment is to prevent the grantor from pleading non est factum. •- 153 248 SUPREME COURT [Feb’y Wood v. Owings. Harper.—By the law of England, acknowledgment is not necessary. By the law of Maryland, it is a necessary part of the conveyance, and can no more be dispensed with, than the signing, sealing and delivery. Having signed and sealed, the grantor may refuse to deliver ; so, having signed, sealed and delivered, he may refuse to acknowledge, and in either case, it is no deed. The deed, therefore, was not made until the 14th of June. Martin, in reply.—Acknowledgment is absolutely necessary in England, before enrolment; Viner, tit. Enrolment, p. 443 ; “ No deed, &c., can be enrolled, unless duly and lawfully acknowledged, citing Co. Litt. 225 6.” The acknowledgment is the warrant for the enrolment. An acknowledgment in Maryland has no greater effect than in England. There was an enrolment at common law, 'for safe-cusiody, it makes an estoppel, and the party cannot plead non est factum. Per Holt, Ch. J., Comb. 248, Smart v. Williams, cited in Viner, tit. Enrolment, p. 444. And in p. 445, it is said, “ Enrolment of a deed is to no other purpose, but that the party shall not deny it afterwards,” citing Bro., Faits, Enrol., ph 4. And in Sav. 91, Holland v. Downes, cited in Viner, tit. Enrolment, pp. 446, 447, it is said, “the sealing and delivery is the force of such deeds, as deeds of bargain and sale, &c., and not the enrolment.” And again, in the same case, “ Bonds, indentures and deeds take their force by the delivery ; so there is a perfect act, before the conusance is taken, and before any enrolment. The enrolment could not be made upon proof by witnesses. The acknowledgment was the only authority. Harper.—The enrolment is the act of the grantee. The acknowledgment is the last act of volition of the grantor. It is wholly voluntary ; he may refuse; and if he does, the deed has no effect. In England, the acknowledg-* Q-| ment is *a regulation of the courts, not a provision of the statute of -* enrolments. That statute is different from the act of Maryland ; the latter expressly requires the acknowledgment, and no estate passes at law, without it. It, therefore, becomes as much a requisite of a deed as sealing or delivery. It is not only an absolute requisite that the deed should be acknowledged, but the courts of Maryland have been very strict in requiring it to be done precisely in the mode prescribed. In the case of Halltv < Git-tings, decided in the court of appeals in Maryland, the case was, that the grantor resided in Anne Arundel county, but the deed described him as a resident of Baltimore county, where the lands were situated ; the acknowledgment was made in Prince George’s county. This acknowledgment was decided by the court of appeals not to be good, and the cause was lost upon that ground, although the deed was twenty-five years old, and possession had been quietly enjoyed under it. The error was discovered by the court themselves, and had not been suggested by the counsel at the trial. It has also been decided, that the acknowledgment of a feme covert must be precisely in the form prescribed by the act. This shows the great importance of acknowledgments in Maryland. Martin, in reply.—The acknowledgment, in England, is not a regulation of the courts only, but is a principle of the common law relative to enrolment, which existed before the statute of enrolments. It was' known, at the time of enacting that statute, that by the common law, an acknowledgment .154 1803] OF THE UNITED STATES. 249 Wood v. Owings. was a prerequisite to enrolment. It was not necessary, therefore, that it should be expressly prescribed by statute. Acknowledgment and enrolment was a proceeding well known and understood, and was not originated by the statute of 27 Hen. VIII. The statute only applies the process to new cases, or makes it necessary where before it was only voluntary. As to the case of a feme covert, she could not, by the *common law, convey her land, except by fine and recovery. But the law of Maryland authorized L her to do' it in a certain mode. That mode must, therefore, be strictly pursued. March 1st, 1803. The Chief Justice delivered the opinion of the court.—This is a writ of error to a judgment of the circuit court of the fourth circuit, sitting at Baltimore, in the following case : On the 30th of May 1800, William Robb, who was then a merchant, carrying on trade and merchandise, in the state of Maryland, signed, sealed and delivered to Gabriel Wood, an instrument of writing, purporting to convey to the said Gabriel, his real and personal estate, in trust, to secure him from certain notes and acceptances made by him, on account of the said Robb, and afterwards, in trust for other creditors in the deed mentioned. This deed was acknowledged on the 14th of June ; and was then enrolled, according to the laws of Maryland. On the 12th of July 1800, a commission of bankruptcy was sued out, founded , on the execution of the deed above mentioned, and the said William Robb being declared a bankrupt, his effects were assigned to William Owings and Job Smith, who brought this suit against Gabriel Wood, to recover the money received by him under the deed aforementioned. Judg^1 ment was confessed by the defendant below, subject to the opinion of the court on a case stated, of which the foregoing were the material facts. The court gave judgment in favor of the assignees, to which judgment a writ of error was sued out by the present plaintiff. The only question made by the counsel was, whether the deed stated in the case was an act of bankruptcy ? On the 4th of April 1800, congress passed an act to establish a uniform system of bankruptcy throughout *the United States, which declares, among other things, that any merchant who shall, after the first day of June next succeeding the passage of the act, with intent unlawfully to delay or defraud his creditors, make, or cause to be made, any fraudulent conveyance of his lands or chattels, shall be deemed and adjudged a bankrupt. It was admitted, in the argument, that this deed, if executed after the 1st day of June, would have been an act of bankruptcy, but that being sealed and delivered on the 30th of May, it was not within the act, which only comprehends conveyances made after the 1st of June. For the defendants in error, it was contended, that, by the laws of Maryland, a deed is not complete, until it is acknowledged, and therefore, this conveyance was made on the 14th of June, when it was acknowledged; and not on the 30th of May, when it was sealed and delivered. The Maryland act alluded to was passed in 1766, and declares, “that after the 1st day of May next, no estate of inheritance or freehold, or any declaration or limitation of use, or any estate for above seven years, shall pass or take effect, except the deed or conveyance, by which the same shall be intended to pass or take effect, shall be acknowledged in the provincial 155 251 SUPREME COURT United States v. Simms. [Feb’y court, or before one of the justices thereof, in the county court, or before two justices of the same county where the lands, tenements or hereditaments, conveyed by such deed or conveyance do lie, and be also enrolled, &c., within six months after the date of such deed or conveyance.” The 5th section gives the conveyance, so acknowledged and enrolled, relation to the date thereof. It is a well-established doctrine of the common law, that a deed becomes complete, when sealed and delivered. It then becomes the act of the person who has executed it, and whatever its operation may be, it is his deed. The very act of livery, which puts the paper into the possession of the party for whose benefit it is made, seems to require the construction that it has become a deed. *The question now made to the court is, whether the act of the legislature of Maryland has annexed other requisites to an instrument of writing conveying lands, without the performance of which, not only the passing of the estate, intended to be conveyed, is arrested, but the instrument itself is prevented from becoming the deed of the person who has executed it. Upon the most mature consideration of the subject, the opinion of the court is, that the words, used in the act of Maryland, which have been recited, consider the instrument as a deed, although inoperative, until acknowledged and enrolled. The words do not apply to the instrument, but to the estate that instrument is intended to convey. Since, then, the bankrupt law of the United States does not affect deeds made prior to the 1st of June 1800, and this deed was made on the 30th of May 1800, the court is of opinion, that the rights vested by the deed (whatever they might be) are not divested in favor of the assignees of the bankrupt, and therefore, that they ought not to have recovered in this case. Judgment reversed, and judgment of non-pros, to be entered. United States v. Simms. Penal laws of the District of Columbia. The acts of congress of 27th F< bruary and 3d March 1801, concerning the District of Columbia, have not changed the laws of Maryland and Virginia, adopted by congress as the laws of that district, any further than the change of jurisdiction rendered a change of laws necessary.1 Fines, forfeitures and penalties, arising from a breach of those laws, are to be sued for and recovered in the same manner as before the change of jurisdiction, mutatis mutandis. Ebboe from the Circuit Court of the district of Columbia, sitting at Alexandria, to reverse a judgment rendered by that court for the defendant, on an indictment for suffering a faro bank to be played in his house, contrary to an act of assembly of Virginia. ( stitution, best knew its meaning and true construction. But if they were mistaken, yet the acquiescence of the judges, and of the people, under that construction, has given it a sanction which ought not now to be questioned. Lee, in reply.—The acts of 1801 and 1802 were not alike, in abolishing the circuit courts. The former, in abolishing the then existing courts, did not turn the judges out of office, nor in any degree affect their independence; but the act of 1802 strikes off sixteen judges, at a stroke, drives them from their offices, and assigns their duties to others. An error was committed in 1789. That act was unconstitutional, but the act of 1801 restored the system to its constitutional limits. We now contend for the pure construction of the constitution, and hope it will be established, notwithstanding the precedent to the contrary. March 2d, 1803. The Chief Justice, having tried the cause in the court below, declined giving an opinion. 190 1803] OF THE UNITED STATES. Stuart v. Laird. 308 Paterson, J. (Judge Cushing being absent on account of ill health), delivered the opinion of the court.—On an action instituted by John Laird against Hugh Stuart, a judgment was entered in a court for the fourth circuit, in the eastern district of Virginia, in December term 1801. On this judgment, an execution was issued, returnable to April term 1802, in the same court. In the term of December 1802, John Laird obtained judgment at a court for the fifth circuit, in the Virginia district, against Hugh Stuart and Charles L. Carter, upon their bond for the forthcoming and delivery of certain property therein mentioned, which had been levied upon by virtue of the above execution against the said Hugh Stuart. Two reasons have been assigned by counsel fer reversing the judgment on the forthcoming bond : 1. That as the bond was given for the delivery of property levied on by virtue of an execution issuing out of, and returnable to, a court for the fourth circuit, no other court could legally *pro- r*onq ceed upon the said bond. This is true, if there be no statutable provis- L ion to direct and authorize such proceeding. Congress have constitutional authority to establish, from time to time, such inferior tribunals as they may think proper; and to transfer a cause from one such tribunal to another. In this last particular, there are no words in the constitution to prohibit or restrain the exercise of legislative power. The present is a case of this kind. It is nothing more than the removal of the suit brought by Stuart against Laird, from the court of the fourth circuit to the court of the fifth circuit, which is authorized to proceed upon and carry it into full effect. This is apparent from the 9th section of the act entitled, “ An act to amend the judicial system of the United States,” passed the 29th of April 1802. The forthcoming bond is an appendage to the cause, or rather a component part of the proceedings. 2d. Another reason for reversal is, that the judges of the supreme court have no right to sit as circuit judges, not being appointed as such, or, in other words, that they ought to have distinct commissions for that purpose. To this objection, which is of recent date, it is sufficient to observe, that practice, and acquiescence under it, for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed. Judgment affirmed. 191 309 SUPREME COURT [Feb’y Thomas Hamilton v: James Russell. Fraud in law—Retention of possession by vendor of goods.—Charge of the court. An absolute bill of sale of goods, is fraudulent as to creditors, unless possession accompanies and follows the deed. The want of possession is not merely evidence of fraud, but is a circumstance per se, which makes the transaction fraudulent in point of law.1 The court are not bound to give an opinion on an abstract point of law, unless it be so stated as to show its connection with the cause. Hamilton v. Russell, 1 Cr. C. C. 97, affirmed. Error from the Circuit Court of the district of Colûmbia, sitting at Alexandria. ol * James Russell the defendant, having obtained a judgment against J Robert Hamilton, brother of the plaintiff in error, ordered the marshal to' levy the fieri facias upon sundry goods and chattels in the possession of Robert, the debtor ; which was done accordingly ; whereupon, the present plaintiff, Thomas Hamilton, brought an action of trespass against Russell, claiming the goods by virtue of an absolute bill of sale from his brother Robert, dated the 4th of January 1800, and acknowledged and recorded in the circuit court of the district of Columbia, for the county of Alexandria, on the 14th of April 1801. Notwithstanding which bill of Sale, Robert, the vendor, continued in possession, and exercised acts of ownership over the property. There was a general verdict in the court below, and judgment for the defendant, upon the general issue. The transcript of the record contained two bills of exception. The first stated that the defendant “prayed the court to instruct the jury, that if they should be of opinion, from the evidence, that the plaintiff, who claims the slave George, in thé declaration mentioned, under an absolute bill of sale, for a valuable consideration ” (which bill of sale, recorded before the issuing of the fieri facias upon which the property was seized, is set foTth in the bill of exceptions), “ permitted the vendor, Robert Hamilton, to continue in possession of the slave, and to exercise acts of ownership over the same, he, the said plaintiff, has not a good title to the said slave, against the execution of the defendant, who was a bond fide creditor of Robert Hamilton,;” which execution the defendant directed to be served “ on the said slave. And the court so instructed the jury ; ” to which the plaintiff excepted. The second bill of exceptions stated, that the plaintiff prayed the court to instruct'the jury, “that a plaintiff in trespass, whose property is loaned to a friend, and is in that friend’s possession, at the time it is seized by a sheriff, in virtue of an execution against the person so in possession, Can *But see Davis v. Turner, 4 Graft. 422, where it is said, that in Virginia, the retention of possession of personal property by the vendor, after an absolute sale, is primA facie fraudulent, but the presumption may be rebutted by proof. This is a leading case upon the subject, and has been followed by the courts of Virginia, and of other states. Howard v. 192 Prince, 1 Hughes 243. See Bom v. Shaw, 29 Penn. St. 288; Baltimore and Ohio Railroad Co. v. Hoge, 34 Id. 214 ; Callen v. Thompson, 3 Yerg. 475. And this is the doctrine of the modern English cases, where Edwards v. Harben, 2 T. R. 587, is not now recognised in all its strictness. Warner v. Norton, 20 How. 459, and cases there cited. 1803] OF THE UNITED STATES. 810 Hamilton v. Russell. sustain an action of trespass for a seizure upon such possession.” But the court, being divided in opinion, did not give the instruction as prayed. * Swann, for the plaintiff in error, contended that, 1st. The bill of -sale being acknowledged and recorded according to the act of assem- L bly of Virginia, respecting frauds and perjuries (Rev. Code, p. 18), is valid and not fraudulent as to creditors. That act of assembly contains provisions similar to those in the English statutes of 29 Car. IL, c. 3, § 4 ; 13 Eliz., c. 5, § 2 ; and 27 Eliz., c. 4, § 2 ; and has, moreover, a clause in the following words, viz. : “ If a conveyance be of goods and chattels, and be not on consideration deemed valuable in law, it shall be taken to be fraudulent within this act, unless the same be by will duly proved and recorded, or by deed in writing acknowledged and proved (if the same deed include lands also), in such manner as conveyances of land are by law directed to be acknowledged or proved; or if it be of goods and chattels only, then acknowledged, or proved by two witnesses in the general court, or court of the county wherein one of the parties lives, within eight months after the execution thereof, or unless possession shall really and bond fide remain with the donee.” “This act shall not extend to any estate or interest in any lands, goods or chattels, or any rents, common or profit, out of the same, which shall be, upon good consideration, and bond fide, lawfully conveyed or assured to any person or persons, bodies politic or corporate.” Under this act, he contended, the deed would be good against creditors, notwithstanding that the possession did not accompany the deed. And although the deed was not acknowledged within eight months after its execution, yet being acknowledged and recorded before the fieri facias issued, upon which the goods were seized, it was good against that execution ; and for this he cited the case of Eppes v. Randolph, 2 Call 125. 2d. The court ought to have instructed the jury, as prayed in the second bill of exceptions. The law is well established, that he who has the genera! property of goods may maintain trespass against him who *tortiously r*o19 takes them out of the possession of the owner’s bailee. 5 Bac. Abr. *• (Gwillim’s edit.) 164. Simms, for the defendant in error.—As to the first bill of exceptions. This deed is clearly fraudulent as to creditors. In the case of Lavender v. Blackstone, 2 Lev. 147, Lord Hale said, that “ every conveyance shall be esteemed primd facie fraudulent against a purchaser.” And in Edwards v. Harben, 2 T. R. 594; it is said by Buller, Justice, to have been the unanimous opinion of all the judges in England, “ that unless possession accompanies and follows the deed, it is fraudulent and void.” If the possession be inconsistent with the deed, it is clear and conclusive evidence of fraud. Haselinton v. Grill, cited in Jarman v. Woolloton, 3 T. R. 620 ; Cadogan v. Eennet, Cowp. 434. The act of assembly of Virginia has similar provisions with the statutes of 13th and 27th Eliz., and nearly in the same words. Those provisions, however, were nothing more than a declaration of the principles of the common law. But this act of assembly, by making deeds absolutely void, which are not for a valuable consideration, unless acknowledged, cannot be construed to make good, as against creditors, a deed purporting to be for a 1 Cbanch—13. 193 312 SUPREME COURT [Feb’y Hamilton v. Russell. valuable consideration. The act makes the deeds therein mentioned, which are not for valuable consideration, absolutely void, even between the parties themselves; and it cannot be pretended, that the acknowledgment according to that act, would set up such a deed against bond fide creditors. The act was intended to suppress, and not promote or conceal fraud. If such a construction could be put upon the act, as is contended for, it would make valid, deeds which would before have been void, as being fraudulent against creditors. But the act takes no notice at all of such a deed as this, except in the second section of the law, where deeds made with the intent to defraud creditors are expressly declared to be void. So anxious is the act to suppress fraud, that in the case of a loan, if the lender does not demand the property lent in five years, and follow up that demand with a prosecu-*qiqi tion at law to recover possession *of his goods, the possession be- -1 comes conclusive evidence of property. 2d. As to the second bill of exceptions, the court did right in not giving the instruction as prayed. Possession is necessary to support an action of trespass. Bull. N. P. 79. This ought to have been an action on the case, and not trespass. Reynolds v. Clarice, 1 Str. 635; Ward v. Macauley, 4 T. R. 489. C. Lee, on the same side.—The case of Ward v. Macauley has overruled all the cases cited from Bacon’s Abridgment, and has been recognised in the case of Gordon v. Harper, 7 T. R. 9, where the doctrine has been carried even farther, and held, that neither trespass nor trover would lie, unless the possession, or right of possession, was in the plaintiff. In that case, the goods of the landlord had been leased to the tenant, and during the lease, were taken in execution for the debt of a third person. The court held, that during the lease, the landlord had neither the possession, nor the right of possession, and therefore, he could maintain neither trespass nor trover. Now, in the case made by the second bill of exceptions, it is not stated, whether the loan was for a time certain, or at the will of the lender. If the loan was for a time certain, there is no difference between that case and a lease for a time certain. In neither case, is the possession, or the right of possession, in the plaintiff. The bailee by loan, for a time certain, has an equal right to the possession, during that time, with a bailee for hire: and either may maintain trespass against him who violates that possession, whether it be a stranger or the owner. Chase, Justice.—There is here no exception applicable to this case. The bill of exceptions states only an abstract question. It is not, whether the plaintiff in this case can maintain an action of trespass, but whether any plaintiff can maintain trespass for property loaned to a friend. *qi41 * Swann, in reply, relied on the act of assembly of Virginia. The J English cases do not apply ; for in England they have no such statute authorizing the recording of deeds of personal property ; nor any substitute for the actual delivery of possession of goods in any case whatever. Even a mortgage of personal property is there deemed fraudulent as to creditors, unless possession accompanies the deed ; and the reason given in all the books is, that it gives a false credit to the mortgagor, enables him to impose 194 1803] OF THE UNITED STATES. 314 Hamilton v. Russell. upon the world, and gives him a power to deceive' and defraud those who deal with him. Ryall n. Rolle, 1 Wils. 260. But when such a deed is publicly made and exposed to view upon the public records, as this was, such reason must fail; and with the reason, the law must fail also. As to the second bill of exceptions. There is certainly a difference between a loan and a lease. In a loan, the lender does not part with the right of possession, nor, in law, does he part with the actual possession ; for the bailee’s possession is the possession of the lender, who has a right to resume the thing into his own hands, at any moment. There is no adverse possession, nor adverse claim, as there is in the case of a lease. Fraud or no fraud, is a point to be decided by the jury, and not by the court. It is a question of fact ; and the court have instructed the jury as if it were a matter of law. The possession of the vendor’ is not, in itself, a fraud, but only a circumstance from which, connected with others, the jury may presume the fact of a fraudulent intent. February 28th, 1803. The Chief Justice delivered the opinion of the court.—On the 4th January 1800, Robert Hamilton made to Thomas Hamilton an absolute bill of sale, for a slave in the bill mentioned, which, on the 14th of April 1801, was acknowledged and recorded in the court of the county in which he resided. The slave continued in possession *of the vendor ; and some short time after the bill of sale was recorded, L an execution, on a judgment obtained against the vendor, was levied.on the slave, and on some other personal property, also in possession of the vendor. In July 1801, Thomas Hamilton, the vendee, brought trespass against the defendant Russell, by whose execution, and by whose direction, the property had been seized ; and at the trial, the counsel for the defendant moved the court to instruct the jury, that if the slave George, remained in the possession of the vendor by the consent and permission of the vendee ; and if, by such consent and permission, the vendor continued to exercise acts of ownership over him, the vendee, under such circumstances, could not protect such slave from the execution of the defendant. The court gave the instruction required, to which a bill of exceptions was taken. The counsel for the plaintiff then moved the court to instruct the jury, that a plaintiff in trespass, whose property is loaned to a friend, and is in that friend’s possession, at the time it is seized by a sheriff, in virtue of an execution against the person so in possession, can sustain an action of trespass for a seizure, upon such possesssion. The court, being divided, refused to give the instruction required, and the jury found a verdict for the defendant. Judgment was accordingly rendered for the defendant, to which a writ of error has been sued out, and the question is, whether the court below has erred in the instructions given or refused. In the opinion to which the first bill of exceptions was taken, it is contended, on two grounds, that the circuit court has erred. 1st. Because this sale is, under the act of the Virginia assembly against fraudulent sales, protected by being recorded. 2d. That if it be not protected by that act, still, it is only evidence of fraud, and not, in itself, a fraud. *On examining the act of assembly alluded to, the court is of opinion, that it does not comprehend absolute bills of sale, among those •-where the title may be separated from the possession, and yet the conveyance 195 316 SUPREME COURT Hamilton v. Russell. [Feb’y be a valid one, if recorded within eight months. On this point, one judge doubted, but he is of opinion, that this bill of sale was not recorded within the time required by the act, and that the decision in the case of Eppes n. Randolph, which was made by the court of appeals of Virginia, on a different act of assembly, would not apply to this act. On the second point, there was more difficulty. The act of assembly which governs the case, appears, so far as respects fraudulent conveyances, to be intended to be co-extensive with the acts of the 13th and 2 7th of Eliz., and those acts are considered as declaratory only of the principles of the common law. The decisions of the English judges, therefore, apply to this case. In some cases, a sale of a chattel, unaccompanied by the delivery of possession, appears to have been considered as an evidence or a badge of fraud, to be submitted to the jury, under the direction of the court, and not as constituting, in itself, in point of law, an actual fraud, which rendered the transaction as to creditors entirely void. Modern decisions have taken this question up upon principle, and have determined, that an unconditional sale, where the possession does not “accompany and follow the deed,” is, with respect to creditors, on the sound construction of the statute of Elizabeth, a fraud, and should be so determined by the court. The distinction they have taken is between a deed purporting on the face of it to be absolute, so that the separation of the possession from the title is incompatible with the deed itself ; and a deed made upon condition, which does not entitle the vendor to the immediate possession. The case of Edwards n. Sarben, E^r of Tempest Mercer, 2 T. R. 587, turns on this distinction, and is a very strong case. William Tempest Mercer, on the 27th of March 1786, offered to the defendant Harben, a bill of sale of sundry chattels, as a security for a debt due by Mercer to Harben. This Harben refused to take, unless he should be permitted, at the expiration * of fourteen days, if the debt should *remain unpaid, to take possession -I of the goods and sell them, in satisfaction of the debt; the surplus money to be returned to Mercer. To this Mercer agreed, and a bill of sale, purporting, on the face of it, to be absolute, was executed, and a corkscrew delivered in the name of the whole. Mercer died within the fourteen days, and immediately after their expiration, Harben took possession of the goods specified in the bill of sale, and sold them. A suit was then brought against him by Edwards, who was also a creditor of Mercer, charging Harben as executor in his own wrong, and the question was, whether this bill of sale was fraudulent and void, as being on its face absolute, and being unaccompanied by the delivery of possession. It was determined to be fraudulent; and in that case, it is said, that all the judges of England had been consulted on a motion for a new trial in the case of Bamford v. Baron, 2 T. R. 594, and were unanimously of opinion that “ unless possession accompanies and follows the deed, it is fraudulent and void ; ” that is, that unless the possession remain with the person shown by the deed to be entitled to it, such deed is void as to creditors, within the statutes. This principle is said, by Judge Buller, to have been long settled, and never to have been seriously questioned. He states it to have been established by Lord Coke, in 2 Bulst., so far as to declare, that an absolute conveyance or gift of a lease for years, unattended with possession, was fraudulent. “ But if the deed or conveyance be conditional, there the vendor’s continuing in possession, does not 196 1803] OF THE UNITED STATES. United States v. Hooe. 317 avoid it, because, by the terms of the conveyance, the vendee is not to have the possession till he has performed the condition.” “ And that case,” continues Judge Buller, •“ makes the distinction between deeds or bills of sale which are to take place immediately, and those which are to take place at some future time. For, in the latter case, the possession continuing with the vendor till such future time, or till that condition be performed, is consistent with the deed, and such possession comes within the rule as accompanying and following the deed. That case has been universally followed by all the cases since.” “ This,” continues the judge, “ has been argued by the defendant’s counsel as being a case in which the want of possession is only evidence of fraud, and that it was not such a circumstance per se, as makes the transaction fraudulent in point of *law ; that is the point which we have considered, and we are all of opinion, that if there is nothing but the L absolute conveyance, without the possession, that in point of law is fraudulent.”1 This court is of the same opinion. We think, that the intent of the statute is best promoted by that construction; and that fraudulent conveyances, which are made to secure to a debtor a beneficial interest, while his property is protected from creditors, will be most effectually prevented, by declaring that an absolute bill of sale is itself a fraud, unless possession “accompanies, and follows the deed.” This construction, too, comports with the words of the act. Such a deed must be considered as made with an intent “ to delay, hinder, or defraud creditors.” On the second bill of exceptions the court did right in refusing to give the instruction required. The question propounded seems to have been an abstract question, not belonging to the cause. Judgment affirmed, with costs. United States v. R. T. Hooe and others. Practice on appeal.—Statement of facts. Under the judiciary act of 1789, in chancery cases, a statement of facts must accompany the transcript This provision was revived by the repeal of the act of February 1801. This was a writ of error to a decree of the Circuit Court of the district of Columbia, sitting as a court of chancery. The case was, that Colonel Fitzgerald, in the year 1794, was appointed collector of the customs for the port of Alexandria, and gave bond to the United States in the penalty of $10,000, with R. T. Hooe, as his surety, for the faithful performance of the duties of the office. In consequence of misapplication of large sums of money by the chief clerk, who was intrusted with almost the whole *management of the business, Col. r*gjp Fitzgerald became deficient in his accounts with the United States *■ to the amount of $57,000. After this fact was discovered, he executed a deed of trust, of part of his real estate, to trustees, to be sold to indemnify 1 But see Wood v. Dixie, 7 Q. B. 894; Martindale v. Booth, 3 B. & Ad. 498; Benton v. Thornbel, 2 Marsh. 427 ; Lattimer v. Batson, 4 B. & C. 652; Arundell v. Phipps, 10 Ves. 145 Eastwood v. Browne, 1 By. & Moo. 312. 197 3i9 SUPREME COURT [Feb’y United States v. Hooe. Hooe from the demands of the United States against him, as security of Fitzgerald, and also to secure him against sundry notes which he had indorsed for him at the bank of Alexandria, as well as to enable him to take up further sums at the bank, as his exigencies might require. After the death of Col. Fitzgerald, the trustees advertised the property for sale, and the United States obtained an injunction to stay the sale, alleging that by the acts of congress, they were entitled to a prior lien upon the estate of their debtor ; and that the deed, as to them, was fraudulent. In the court below, the claim of the United States was rested altogether upon the prior lien created by the act of congress; and the court being of opinion, that the act did not create a lien on the real estate, and that there did not appear to be any fraud in the transaction, dissolved the injunction, with costs, and ordered $10,000, part of the proceeds of the sale, to be paid into the treasury of the United States, in satisfaction of the bond in which Hooe was the surety, and the residue, after paying the notes due at bank, to be paid into the treasury of the United States, in part satisfaction of the balance due from the estate of Fitzgerald; it having been proved to the satisfaction of the court, that the money, arising from the notes discounted at the bank, had been before paid by Fitzgerald to the United States. To reverse this decree, the present writ of error was sued out by the attorney for the United States. The decree of the court below did not state the facts upon which the decree was founded; and although the record contained the bill, answers, exhibits and all the evidence which was before the court below, yet no statement of facts, according to the provision of the judiciary act of 1789, c. 20, § 19, was made by the parties or by the court. The Attorney-General (Mr. Lincoln) opened the cause on the part of * 1 United States, and was going on to show that the deed was J fraudulent as to creditors, upon general principles of law (a ground not taken in the court below), when he was stopped by an inquiry from the court, whether there was any provision in the act concerning the district of Columbia, by which the case was taken out of the operation of the 19th section of the judiciary act of 1789,-which required a statement of the facts to accompany the record. Upon recurring to the act of congress, 27th February 1801, concerning the district of Columbia, c. 86, § 8, it was found, that writs of error were to “ be prosecuted in the same manner, under the same regulations, and the same proceedings shall be had therein, as is, or shall be, provided in the case of writs of error on judgments, or appeals upon orders or decrees rendered in the circuit court of the United States.” Upon which, The Covet said, that the decisions on the act of 1789, § 19, had been, that unless a statement of facts appeared upon the record, they could not say there was error. Jennings n. The Trig Perseverance, 3 Dall. 337. It is true, that the act of February 13th, 1801, c. 75, § 33, remedied the evil, but that act wTas repealed in 1802, so that the law now stands as it did before the act of 1801. And the act concerning the district of Columbia, by saying that writs of error shall be prosecuted in the same manner as is, or shall be, provided, &c., places this case under the law of 1789. Whatever might be the present opinion of the court, if this were the first time of being called upon to give a construction to that clause of the act, yet the 198 1803] 1 OF THE UNITED STATES. ' 320 Hepburn v. Auld. question has been solemnly settled. One legislature has taken cognisance of the construction given by the court, and has provided for the case, but another legislature has repealed that provision, and thereby given a subsequent legislative construction, or, at least, shown such a legislative acquiescence under the construction which this court formerly gave to the act, as is now conclusive. At the request of the Attorney-General, the writ of error was dismissed. (a) *Hepbuen & Dundas v. Colin Auld. [*321 Tender. A tender must be unconditional; a tender, accompanied by a demand for a release, before delivery of what is tendered, is bad, unless justified by the express stipulation of the parties. This was an action of debt, brought by Hepburn & Dundas against Colin Auld, in the Circuit Court of the district of Columbia, for the penalty of an agreement, dated 27th September 1799, between the plaintiffs, merchants of Alexandria, and the defendant, as agent for John Dunlop & Co., merchants in Glasgow. The agreement recited, that whereas, the plaintiffs had had extensive dealings with Dunlop & Co., in the course of which the former appeared to have fallen in debt to the latter, by the accounts by them exhibited, some articles of which accounts having been objected to by the plaintiffs, they had agreed with the said agent, to submit all matters in dispute to arbitration. And whereas, the plaintiffs, by an article of agreement between them and a certain William Graham, dated 12th March 1796, did covenant with him (for the consideration of $18,000 to be by him paid to him, at certain times in the said article expressed) to convey to him, the said Graham, his heirs and assigns, 6000 acres of land on the Ohio ; but the said Graham failing to make the first payment upon the day stipulated, the plaintiffs considered the said contract as thereby annulled, and in consequence thereof, brought an ejectment to recover possession of the land, which they had permitted Graham to occupy, which ejectment had been abated by his death, and another ejectment had been, or was about to be, commenced. The indenture then witnessed, that each party covenanted to furnish their accounts to the arbitrators, so as to enable them to make their award by the 1st day of January then next, being the time stipulated by the arbitration bonds. That Auld covenanted that he, or the agent of Dunlop & Co., would, on the 2d day of January then next, accept and take of the plaintiffs the amount *which should be awarded to Dunlop & Co., in p bills of exchange of a certain description, or in any money which might by law be a legal tender ; and on such payment being made, in either way, give the plaintiffs a full receipt and discharge of all claims and demands of Dunlop & Co. against them. That the plaintiffs covenanted, that in case (a) Congress being in session at this time, an act was introduced and passed, containing a clause similar to the 33d section of the act of 13th February 1801, respecting writs of error and appeals in cases of equity and maritime jurisdiction, &c. (2 U. S. Stat. 244). 199 322 SUPREME COURT [Feb’y Hepburn v. Auld. they did not, on the 2d of January then next, pay to the defendant, or the then agent of Dunlop & Co., the amount of the award, in bills or money, they would, on that day, assign and transfer to the defendant, or the then agent of Dunlop & Co., in the fullest manner, the aforesaid contract entered into by them with Graham, for the sale of the land, and all and every interest, right and claim, of whatever kind, of the plaintiffs, arising out of and from the said contract ; with full power to proceed and act thereupon and therein, as the defendant or the then agent of Dunlop & Co. should think proper; and that they would, for that purpose, give him a full and ample power of attorney, irrevocable, to pursue in their names, if necessary, all legal ways and * means, either to recover the possession of the land, or to enforce payment of the $18,000 and interest, whichever of the measures he might be inclined to pursue ; and that in case they should so assign the said contract, they would not thereafter in any manner interfere with the measures he might choose to pursue, either for the recovery of the lands, or to enforce the payment of the purchase-money. And that whenever the ejectment should be judicially determined, or settled by compromise, they would convey the lands to the person who, by such determination or compromise, should be acknowledged to be entitled to them. And that in case the said purchase-money, which, with interest to the said 2d day of January, would amount to $21,112, should not prove sufficient to satisfy the award, they would, on that day, pay the balance to the defendant, or the then agent of Dunlop & Co. And the defendant covenanted, that in case it should not be convenient for the plaintiffs to pay the amount of the award in bills or money, on the 2d day of January, he would accept and take an assignment of the said Graham’s contract, at $21,112, towards the discharge of the said award ; and that in case it should exceed the amount of the award, he would, at the time of making the said *assignment, pay them the excess. For the faith-■* ful performance of these articles, the parties bound themselves to each other in the penal sum of $45,000. The sum of $21,112 exceeded the amount of the award, by the sum of 494Z. 6s. ^d., Virginia currency. For the nonpayment of this excess, the present action was brought by the plaintiffs, after having tendered an assignment of Graham’s contract and a power of attorney, which was refused by the defendant. There were four issues in fact, but to the 5th plea, there was a general demurrer and joinder. Judgment below being in favor of the defendant upon this demurrer, the issues in fact were not tried, and the plaintiffs sued out the present writ of error. The fifth plea was as follows : “ and the said defendant, by virtue of the act, &c., and by leave of the court, for further plea, protesting that the said deed of assignment of the contract aforesaid, with the said William Graham, so as aforesaid pretended to have been executed, sealed and tendered by the plaintiffs, on the 2d day of January, in the year 1800, was not a good, lawful and sufficient assignment thereof, according to the true intent and meaning of the said articles of agreement between the plaintiffs and defendant, he, the defendant, saith, that the said deed of assignment was not tendered to him unconditionally, but upon the condition that the said John Dunlop & Co. should first sign, seal and deliver, by the said Colin Auld, their attorney, on the same day, unto the plaintiffs, a release and acquittance of all the claims and demands of the said John Dunlop & Co. against the said plaintiffs; and the said def end-200 1803] OF THE UNITED STATES. ¡ 323 Hepburn v. Auld. ant then and there refused to comply with the said condition, and the said plaintiffs then and there refused to deliver the aforesaid deed of assignment to the said defendant, unless he complied with the condition aforesaid ; and this he is ready to verify ; wherefore, he prays judgment, whether the plaintiffs their action aforesaid against him ought to have and maintain,” &c. Swann, for the plaintiffs in error.—It will be perceived by the agreement, that the plaintiffs had the choice of three modes of paying the award; *1. By bills of exchange ; 2. By cash ; and 3. By an assignment of Graham’s contract. It is true, that the words are, that the defendant *-will take the assignment “ towards ” the discharge of the award. But the reason of using the word “towards” is plainly, because the amount of the award not being then known, it remained an uncertainty, whether the the $21,112 of Graham’s purchase-money would be sufficient in amount to meet and satisfy the award. The word towards, therefore, was not used to exclude the idea that the assignment should be a complete discharge of the award, in case the award did not exceed the purchase-money ; but only to prevent Auld from being compelled to accept the assignment in full discharge of the award, if the purchase-money should fall short of the sum awarded. 1st. We contend, that the assignment was a good and sufficient assignment, within the meaning and intention of the agreement. 2d. That the plaintiffs had a right to a release of all demands, upon tender of the assignment. 3d. That the plaintiffs had a right to make such release a condition of their tender. I. It is no objection to the assignment, that it expresses the consideration to be a release of all demands from Dunlop & Co.; for if the plaintiffs had a right to such a release, it was proper to state it, as part of the consideration. 2. The preamble of the assignment states the defendant to be agent of Dnn-lop & Co., and the habendum is to the said Colin Auld, which refers to the premises where he is styled agent; so that it is, in fact, as it ought to be, to Colin Auld, agent of Dunlop & Co. II. As to the right of the plaintiffs to insist upon a release of all demands. 1st. It is due, by the terms of the contract. 2d. If not due by the terms of the contract, yet it was due of common right. *1. It is due by the contract. Every contract ought to have a r*q9fl reasonable construction, according to the intention of the. parties. *■ Such a release is expressly agreed to be given in case of payment by bills or cash. A payment by the assignment was as complete a discharge the award, as payment in either of the other modes. The discharge of the amount of the award, and not the particular mode of discharge, was to be the consideration of the release : and having stipulated to give it, in the one case, it ought to be presumed to be the intention of the parties, that it should be given, in the other, unless there can be shown some difference in the consideration, or some reason operating upon the mind of the defendant which might have induced the omission of an express agreement to that effect. By agreeing to give it, in case of payment by cash or bills, he allows that the plaintiffs have a right to such a release, upon discharge of the award. The submission was of all demands ; a discharge of the award, then, was a discharge of all demands ; and, therefore— 2. Such a release was due of common right. A man has a right to de-201 325 SUPREME COURT [Feb’y Hepburn v. Auld. mand evidence of his payment, and of the claims ^hich are thereby satisfied. It is true, he may call witnesses, but they may die. If a man pay money upon a specialty, he has a right to written evidence of the payment. Ship. Touch. 348. III. The plaintiffs had a right to make the release a condition of the tender. All things were to be done on the same day: they were concurrent conditions, to be performed at the same time. If one party is ready and willing, and offers to perform, and the other will not, the first is discharged from the performance of his part, and may maintain an action against the other, Coodisson v. Nunn, 4 T. R. 761; Jones v. Barkley, 2 Doug. 684. Such a release could not operate to the injury of the defendant, or of Dunlop & Co. It would not have released any right accruing under the agreement, as was decided in the case of Thorpe v. Thorpe, 1 Ld. Raym. 235. The covenants of the plaintiffs respecting the lands and the’ ejectment $ 9 -> are all future and contingent, and therefore, *could not have been re- -1 leased by a release of all demands. Nor was the penalty a present duty. It could, only be incurred by a future breach, and therefore, is not like a bond to pay a smaller sum at a future day. Shep. Touch. 339, 340. Bull. N. P. 160. Carthage v. Manby, 2 Show. 90; Esp. N. P. 307; Hancock v. Field, Cro. Jac. 170; Porter n. Philips, Ibid. 623; Hoe v. Marshall, Cro. Eliz. 580; Hoe’s Case, 5 Co. 70 ó. F. J. Lee, contra.—The assignment in this case tendered, was not good, because it stated part of the consideration to be a release of all demands, which the defendant was not bound to give; and if he had accepted of the assignment, in that form, it would have been an acknowledgment that he was bound to give it. Whether Auld might with safety have given such a release, is not now the question; he has not contracted to give it, and it is not for us to inquire, why he did not. He was unskilled in the law, and he plight have supposed that in some way or other it would embarrass the claims of Dunlop & Co. against the plaintiffs, for a future performance of their covenants respecting the land. 2. The assignment is made to the use of Colin Auld, and not to the use of Dunlop & Co. The rents and profits are to be received to his use, and not to that of his constituents. In the operative parts of the assignment he is not named as agent. 3. The power of attorney is insufficient, because it does not give full power to act therein, as the defendant should think proper, and does not au-authorize him to compromise the ejectment. But the principal question is, whether the defendant was bound to give a release of all demands. The plaintiffs only tendered the papers, but did not deliver them, so that the defendant could not see whether they were correct. They were to do the first act: they were first to make and deliver the assignment before they *were entitled to the balance: the J words of the agreement plainly show this. The agreement does not require him to give such a receipt, in the case of payment by the assignment of Graham’s contract. It would certainly have been as easy to have covenanted to give such a release in that case, as in the event of payment by bills or cash. The not doing so, in the former case, and the express agreement for it in the latter cases, creates the strongest presumption that it was 202 1803] OF THE UNITED STATES. 327 Hepburn v. Auld. not intended by the parties to be given in the former case; and the intention of the parties constitutes the agreement. Admitting that, by common right, they were entitled to a receipt, it could only be a receipt for the assignment itself. There was at least a doubt whether such a release as was demanded would not have discharged the penalty annexed to the contract, or at least, the covenants respecting the land, j A release of all demands is certainly a release of all present duties, and it is । said, in Altham’s Case, 8 Co. 154 a, that a release of all demands is a release I of all causes of demand. As the plaintiffs have demurred to our plea, we have a right to look into their declaration ; to which there are two objections. 1st. That it contains no profert of the award, which is the foundation of their action ; and 2d. That it does not aver the difference between the amount of the award and the purchase-money due upon the contract tendered. The declaration only states that the arbitrators awarded the sum of 43794 9s. 0|<4, sterling, to be due from the plaintiffs to Dunlop & Co., and that the plaintiffs having elected to assign Graham’s contract in discharge of the award, tendered an assignment thereof, together with a power of attorney, according to the true intent and meaning of the agreement, in consequence whereof, the plaintiffs then and there became entitled *to have and receive of the said de- r*q9o fendant the sum of 4944 6s. Id., Virginia currency, which said sum the defendant, although required, had not paid, whereby action accrued to the plaintiffs to have $45,000, the penalty of the articles of agreement. C. Lee, on the same side.—The protestando in the plea saves all objections to the'sufficiency of the assignment; and we conceive the objections which have been stated are substantial. But the principal question is, whether any release at all could be demanded. The contract does not, in any of the cases of payment of the award, require a release ; which is a technical word, and means an instrument under seal. But we do not insist upon this distinction, as the law is full in our favor upon the other points. We might safely admit, that the defendant was bound to give a receipt for the assignment; but even that is not due, under the contract, nor of common right. However, such a receipt was not demanded, and therefore, it is unnecessary to inquire whether the defendant was, or was not, bound to give it. The release required would have discharged the penalty of this agreement. Viner, tit. Release, P. pl. 18. It is not contended, that a release contained in an instrument, will release demands growing out of that instrument ; this was the case of Thorpe v. Thorpe. Hods case does not apply to the present; that was a case of mere possibility of a demand. The covenant of the plaintiffs not to interfere with the ejectment, was a present duty. This is a case of construction only, and the only question is, what was the intention of the parties.- If the deed of assignment was not a proper one, or the release demanded was such a one as the defendant was not bound to give, the plea is good, and the judgment must be affirmed. Mason, in reply.—All the instruments are to be taken together. Crop v. Norton, 2 Atk. 74. Through the whole, it appears, that what *the r*o9Q plaintiffs are bound to do, the defendant was bound to receive. The L payment by the assignment was not more for the benefit of the plaintiffs 203 329 SUPREME COURT [Feb’y Hepburn v. Auld. than of the defendant. If they did not, on the 2d of January, pay in bills or cash, they were absolutely bound to assign Graham’s contract ; and the defendant might then refuse the bills or cash, and insist on the assignment; and a court of chancery would have compelled a specific assignment, if they had refused. The discharge of the award by the assignment, was the same thing as the discharge by bills of exchange or cash. It would have been a complete discharge of the award, and there is no reason why he should not give a release as well in the one case as the other. It is alleged, that the release would have discharged the other covenants, and the penalty of the agreement. But the case cited from Viner shows that the covenants would not have been discharged by the release, nor would it have discharged the penalty. The covenant not to interfere was not a present duty ; the covenant of the plaintiffs is, that after the assignment they would not interfere. But a release of all demands does not discharge a covenant, before it is broken ; until that time, it is no demand. The same observation applies to the penalty; it is not a present duty, until a breach of the covenant. A bond in the penalty of 200Z. to pay 100Z. at a future d'ay, is a present duty. But in a bill penal, the penalty is not a duty until after the day appointed for the payment of the smaller sum. The difference in declaring upon the two instruments shows their different nature. On a bond, you only declare that he bound himself in the penalty ; and you take no notice of the condition. But on a bill penal, you declare that the defendant having failed to pay the smaller sum, an action has accrued to recover the penalty. To support these positions, he cited Esp. N. P. .307; Bull. N. P. 166 ; Hancock v. Field, Cro. Jac. 170; Tyman n. Bridges, Ibid. 300 ; Porter v. Philips, Ibid. 623 ; Thorpe v. Thorpe, 1 Ld. Raym. 662 ; and Hoe n. Marshall, Cro. Eliz. 579. The plaintiffs having offered to perform their part of the agreement, are *3301 entitled to their action. Esp. N. P. *284 ; Jones v. Barkley, 2 Doug. J 684 ; Groodisson v. Nunn, 4 T. R. 761. As to the protestando, it is only an estoppel, or, as Lord Coke says, it is an exclusion of a conclusion. It does not put in issue the validity of the assignment ; but if it did, the objections are not well grounded. Whether the release ought to have been mentioned as part of the consideration, depends upon the question whether the defendant was bound to give such a release ; and the objection that the assignment is made to Colin Auld, and not to Colin Auld, as agent of Dunlop & Co., is not grounded in fact: for in the preamble of the assignment, he is named as agent for Dunlop & Co., and throughout the residue of the instrument, he is called the said Colin Auld, which refers back to the premises, to show in what capacity he was to take the assignment. In the premises, a complete interest is conveyed to Auld, as attorney in fact of Dunlop and Co., and the habendum cannot, in this case, control the premises. 2 Bl. Com. 298. February 28th, 1803. The Chief Justice, after stating the case, delivered the opinion of the court.—To entitle themselves to the money for which this suit was instituted, it is incumbent on the plaintiffs, to show that they have performed the very act, on the performance of which the money became payable ; or that they are excused by the conduct of the defendant for its non-performance. The act itself has not been performed : but a ten-204 1803] OF THE UNITED STATES. 330 Hepburn v. Auld. der and refusal is equal to a performance ; and it is contended, that there has been such a tender and refusal in this case. The pleadings show that the tender was not unconditional; but the plaintiffs insist, that the condition/annexed to the tender, was such as they had a right to annex to it, and on their correctness in this opinion, depends the judgment now to be rendered. The plea does not contest the sufficiency of the deed of assignment and power of attorney, which were tendered ; *and consequently, no question concerning their sufficiency can arise in the present case. The only cause relied on, as doing away the L operation of the tender, is, that it was made on condition that a release of all the claims and demands of the said John Dunlop & Co., on the said Hepburn & Dundas, should first be signed, sealed and delivered to them by Colin Auld. The only question in the case is, whether Hepburn & Dundas had a right to insist on this previous condition ; and it is admitted, that this question depends entirely on the agreement of the 27th of September 1799. That an acquittance should be signed, sealed and delivered, before the act itself was performed, which entitled the party to such acquittance, is a mode of proceeding very unusual, and which certainly could only be rendered indispensable by express stipulation. There is in this case no such express stipulation. If the payment had been made in bills or money, the release of all the claims and demands of John Dunlop & Co. against them, was to have been given, not previous thereto, but upon receiving such payment. If, then, as has been argued, the deed of assignment and power of attorney are substituted for the payment in money, or in bills, and to be made on the same conditions on which payment in either of those articles was to have been made, yet there could exist no right to demand a delivery of the receipt, before the payment. If we inspect those covenants which relate to the deed of assignment of Graham’s contract, we find no stipulation respecting a release of any sort. The agreement is, that he will receive the said deed of assignment at $21,112, towards the discharge of the award, but he does not engage to give any release whatever. It is contended, that upon the general principles of justice and of law, Hepburn & Dundas had a right to the evidence of the payment they had made, without expressly contracting for such evidence; and this is true, so far *as to entitle them to a receipt for the deed and power delivered; pggn but neither the general principles of justice, nor of law, give Hep-burn & Dundas a right to insist upon any release as a previous condition. The case has been argued at bar as if the condition of the tender of the deed of assignment and power of attorney had been a release of all claims and demands, to be given at one and the same time with the delivery of such deed and power, but this is not the case as presented in the pleadings. According to the plea, Hepburn & Dundas required the delivery of the release, as a condition precedent to their delivery of the deed of assignment. This demand seems not to have been countenanced by the contract; and of consequence, the tender was not such as it was incumbent on Hepburn & Dundas to have made, in order to entitle themselves to the money for which they have brought this suit. Judgment affirmed, with costs. 205 332 SUPREME COURT [Feb’y Marine Insurance Company ok Alexandria v. James Young. Assumpsit.— Verdict.—Former recovery. Assumpsit will not lie upon a policy of insurance, under the corporate seal, unless a new consideration be averred.1 Quaere? Whether an aggregate corporation can make an express assumpsit, unless specially authorized by statute ? Whether an action on a policy will lie against this company, in their corporate name ? Or whether the declaration must not be against the president alone ? A verdict will not cure a mistake in the nature of the action. A judgment in assumpsit upon a policy, is a bar to a subsequent action of covenant on the same policy. After verdict, every assumpsit in the declaration is to be taken as an express assumpsit. This was an action brought in the Circuit Court of the district of Columbia, by James Young against the Marine Insurance Company of Alexandria, upon a policy of insurance on the brigantine- Liberty, at and from Anaca-bessa, in Jamaica, to a port in the United States. The declaration stated, that “ James Young complained of the Marine Insurance Company of Alexandria in custody, &c., of a plea, for that whereas,” &c., setting forth the policy in the usual form. “ In witness whereof, the president and directors of the said Marine Insurance Company * 1 of *Alexandria, by William Hartshorne, their president, subscribed the sum assured, and caused the common seal, and the attestation of their secretary, to be affixed to the said presents.” It then alleged the property of the vessel to be in the plaintiff, and that it was of the value of $5000, the sum insured. That the said Marine Insurance Company, in consideration of the premium to be paid by the plaintiff, “ did undertake and agree, by their policy aforesaid, subscribed by their president aforesaid, with the proper hand and name of the said president thereto affixed, to assure the said vessel, &c., at the said sum of $5000, against the risks specified in the said policy.” That the plaintiff had paid the premium; and that the vessel was totally lost, of which loss the company had notice; “by means of which said premises, the said Marine Insurance Company of Alexandria became liable to pay to the said plaintiff the said sum of $5000, and being so liable, the said Marine Insurance Company, afterwards, to wit, on the same day and year aforesaid, at the county aforesaid, assumed upon themselves, and to the said plaintiff then and there faithfully promised,” to pay him the said sum of money, when thereunto afterwards required. There was another count, stating, generally, that in consideration that the plaintiff would pay the, premium of four per cent, upon the value of the vessel, the insurance company “ undertook and agreed ” to insure, &c., at the sum of $5000, against sea risks only, at and from Anacabessa, in Jamaica, &c., to a port in the United States ; that he had paid the premium, and that the vessel was stranded and lost, of which the insurance company had notice ; by means of which said premises, the said company became liable, &c., and so being liable, assumed upon themselves, and promised to pay, &c. Nevertheless, the said defendants, not regarding their several promises and undertakings aforesaid, but contriving, &c., refused to pay, to the damage of the plaintiff $10,000. Plea non assumpserunt, and issue. 1 See January v. Goodman, 1 Dall. 208, and notes let that case. Also, Fresh v. Gilson, 16 Pet. 327. 2J3 1803] OF THE UNITED STATES. 333 Marine Insurance Co. of Alexanderia v. Young. Verdict for plaintiff on the first count, and for defendant on the other count. Motion in arrest of judgment; “ because the first count is in assumpsit upon a sealed instrument set forth in the said count, as containing the contract whereupon *the action aforesaid is brought.” Judg- r*ooj ment for the plaintiff ; to reverse which judgment the insurance com- L pany obtained the present writ of error ; and the errors assigned were, 1. That assumpsit is brought upon a sealed contract. 2. That the Marine Insurance Company of Alexandria, being an aggregate corporation, is sued upon assumpsit instead of upon covenant. 3. That the judgment upon the verdict aforesaid ought to have been arrested. 4. That according to the act of incorporation, the action aforesaid, if maintainable at all, should have been commenced and prosecuted against William Hartshorne, President of the Marine Insurance Company.” E. J. Lee, and C. Lee, for the plaintiffs in error. Simms and Swann, for the defendant. For the plaintiffs in error, it was said.—1st. That the declaration states the policy to be under the common seal, and the law is clear that assumpsit will not lie upon a sealed instrument : the action ought to have been covenant and not case. The difference is, that when the specialty is only inducement to the promise, and a new consideration intervenes, assumpsit will lie ; but where the only contract, which is stated as the cause of liability of the defendant, is fully and entirely contained in the specialty, and no circumstance is added, but such as is provided for by the specialty, there it will not sustain a general indebitatus assumpsit, which is the present form of action. The declaration states that the insurance company, by their policy, under the common seal, insured $5000 on the brig, and that the vessel was lost, whereby the company became liable, and, being so liable, assumed to pay. *This is the whole substance of the declaration. No new considera-tion is alleged. •- The whole ground of liability of the plaintiffs in error is their policy under their common seal: and in such a case, the action must be covenant or debt. Marshall on Insurance, 596 ; Park 396. “The act of parliament, 6 Geo. I., c. 18, by which the two insurance companies (of England) were erected, ordered that they should have a common seal, by affixing which all corporate bodies ratify and confirm their contracts. Hence, a policy made by either of those companies is a contract under seal; and if the contract is broken, the action must be debt or covenant. ”( that although the said Dexter ceased to be secretary of war, J on the 1st day of January 1801, and that on the 5th day of March, in the same year, a certain Henry Dearborn became his successor, duly appointed secretary of the department of war, and still remains such, yet that the house and premises in the lease aforesaid mentioned, were burnt down 216 1803] OF THE UNITED STATES. 349 Hodgson v. Dexter. and consumed by fire arising from within the same, from the negligence or default, not of the said Dexter, but of some person unknown, during the term aforesaid, viz., on the 8th of November 1800, while the said Dexter was secretary of war, and whilst he had possession of the said premises, and before the appointment of the said Dearborn ; and that neither the said Dexter, nor any other person, hath, during the continuance of the said lease, or at any time, built up and repaired the said premises ; and this the said Hodgson is ready to verify,” &c. To this replication, there was a general demurrer and joinder. The sixth plea was, “that on the 15th day of May 1800, the President of the United States, for the time then being, in pursuance of authority given to him by law,” ordered the executive offices to be removed to Washington, &c., as stated in the fourth plea, “and that it became.proper and necessary that a suitable building should be hired, in which the several offices of the department of war aforesaid might be holden and kept, and that for these purposes, and for no other purpose whatever,” the buildings, &c., “ were, by the said indenture, leased to the said Dexter, by the said Hodgson ; and that at the time when the said Dexter executed the indenture aforesaid, he wras secretary of the said department of war ; and this he is ready to verify,” &c. To this, there was a general demurrer, and joinder. Upon these demurrers, the judgment below was against the plaintiff, who thereupon, sued out the present writ of error. Martin, attorney-general of Maryland, and Key, for plaintiff in error. * Dexter, and Mason, attorney of the United States for the district of Columbia, for defendant. L Key made three points. 1st. That the defendant is individually and personally liable and bound to the performance of the covenant in the indenture contained, by him executed, and on which the suit is brought. 2d. That the defendant’s first plea is bad in law, is argumentative, and does not put in issue matters competent to bar the plaintiff’s action. 3d. That the defendant’s first plea is bad in substance, is no bar, and wants form. I. The sixth plea and demurrer are calculated to bring into view the question, whether the defendant has bound himself personally to the performance of the covenant. Although a public agent is not generally liable for contracts made by him in that capacity : still, he is capable of binding himself as well as his government, by using apt words for that purpose. This case is not of importance from any general principles which it will establish. The decision must depend upon the expressions and operation of the indenture of lease., The defendant has used strong obligatory expressions, of plain unequivocal import. “ And the said Samuel Dexter, for himself and his successors, doth hereby covenant, promise and agree to and with the said Joseph Hodgson, his heirs and assigns. ” To weaken the force of these expressions, it is said, that he only intended to bind himself in his official character, as secretary at war, 1st. Because he is styled in the premises secretary at war ; 2d. Because the term “ successors ” is used throughout the instrument; 3d. Because the words “ said Samuel Dexter,” and “ said parties have hereunto set their hands and seals,” refer to Samuel Dexter, in the official character in which he is first named in the premises. 217 *351 SUPREME COURT [Feb’y Hodgson v. Dexter. *lst. As to the styling him secretary at war, in the premises, it is only a description of the person, designatio personae. It is the office of the premises to identify the contracting parties, and it is most common, to use any honorable title which they may enjoy. It is not in the preamble, that we are to look for the force of the expressions.of the covenant, but in the covenant itself. It is a rule of construction, that when obligatory words, of plain unequivocal meaning, are used, you cannot resort to other parts of the instrument to contradict them; but when equivocal or doubtful words are used, you may. A party using expressions that legally bind him, is estopped to say, he did not intend to be bound in his individual capacity. The word “ himself,” is to be taken separately from the words “ his successors,” and each is to be applied to the obligatory words of the covenant; reddenda singida singulis. The said Samuel Dexter covenants, for himself, and for his successors. He covenants that he will surrender the premises in good repair; and if he does not so surrender them, he covenants that they, his successors, will. Words cannot be stronger than those which he has used. 2d. As to the word ° successors,” Mr. Dexter can have no successors in the legal sense of the word. It is true, that Mr. Dearborn filled the office posterior to Mr. Dexter, and hence, in point of time, succeeded him, and was, in that sense, his successor; but he is not his successor in any known legal sense of the word: there is no legal connection between them. Mr. Dexter was not competent to bind his successor in any manner. He was not a corporation sole; and there is no law of the United States which authorizes him to bind his successor. The word “ successors,” has no operation whatever. Mr. Dearborn was not obliged to occupy the house, nor would an action have been maintainable against him for the rent. If he had been disturbed in the possession, he could have had no action upon the covenant; if he had been ousted, he could not have supported an ejectment. Even if Mr. Dexter had been a corporation sole, his successors would not be bound. No chattel can be limited to the successors of a corporation sole; but it will go t° th® executor, and not to the successor. *If these observations arc -* correct, then the word “ successors,” is surplusage, and the lease inured to Mr. Dexter in his individual capacity; but this point will be resumed. 3d. As to the words “ said Samuel Dexter,” and “ said parties have hereunto set their hands and seals;” they can have no operation to let in Mr. Dexter’s official character. Either he bound himself in his official capacity, or as an individual. Nothing can be inferred from the word “ said,” but that it related to him in one capacity or the other; and in which, is the very question before the court. Let us now examine this instrument upon principle. 1st. With reference to the person executing it: 2d. As to the legal operation of its expressions. All agents, acting as such, for avowed principals, Only bind their principals; but it must be admitted, that they are competent to bind themselves, as well as their principals, if they use apt and adequate words. Government cannot carry on its operations but through agents, who are distinguished as its officers. I admit, that an officer of government, contracting as such, for government, is not personally liable. The law neither creates nor implies any liability on the officer; but he may make himself individually liable, by his express promise and contract. Macbeath v. Haldimand, 1 T. R. 181. 218 1803] OF THE UNITED STATES. 352 Hodgson v. Dexter. There is nothing, then, in the character of secretary of war, that prevents him from using words that will render him liable. This leads to the second question, which is, whether he has used such words. This lease is for eight months; but if for eight years, the same law must govern its construction. I hold it an undeniable position, that Mr. Dexter was not competent to bind his successors in office. If he could not, then the lease must have some operation: it cannot be intended to be a void lease. If not void, then it inures to Mr. Dexter and his executors: if it inures to them, they *only are liable on the covenant, that is, he in r*qcq his lifetime, and they after him. A much stronger case exists in the books. A bishop is a corporation sole; he has successors, technically speaking. Here, then, is a person who has a double capacity, competent to contract in either. So had Mr. Dexter. But, say the books, if a lease be made to a bishop and his successors, it inures to him and his executors. 1 Bac. Abr. 508, Corporation, E. 4 ; Co. Litt. 46 b ; Corvels Case, 12 Co. 105. The word “ bishop ” in such a case is as much the description of his politic capacity, as the word secretary at war in the present case. A bishop has legal “successors;” and is not an habendum “to a bishop and his successors,” as strong as the words “ to the said Samuel Dexter and his successors ? ”• If, in the case of the bishop, such a lease would inure to him in his individual capacity, d fortiori, in the case of Mr. Dexter, who has no legal successors. Again, the covenant to leave the demised premises in good repair, is a covenant real. 1 Bac. Abr. 534, 536. If it be a covenant real, and runs with the estate and interest, then, as +he estate and interest passes to Mr. Dexter and his executors, he and they only can be bound. Suppose, the lease had been for five years, and a stranger had taken possession ; who could support an ejectment ? Not the lessor, because he had parted with his interest: not the successor of Mr. Dexter, because he is neither a party nor a privy. Mr. Dexter only could have maintained the action, the estate and interest being in him. It never was out of him, during the term. If the operation of law casts this lease upon Mr. Dexter, he who has the benefit must bear the burden; and he must be bound by this covenant to repair, which runs with the estate. The defendant’s ideas violate all the rules of construction. 1st. In a deed, when words of a precise import are used, you cannot resort to other expressions, for a supposed intent. The word “ himself,” in the covenant, is too plain to admit of doubt. 2d. No words shall be rejected, which can be made to operate. By their construction, the word “himself,” r* . *which has a definite meaning, must be rejected, and give way to the *■ word “ successors,” which, in this instrument, can have no meaning. 3d. Such construction shall be given, ut res magis valeat quam pereat. According to our construction, the deed is operative; but according to theirs, it is mere waste paper. 1st. They say that Mr. Dexter is not bound. 2d. All must agree that his successor is not bound. 3d. Ex consequent^ nobody is bound. The case of Unwin v. Wolsely, 1 T. R. 674, is clearly in our favor. In that case, the contract was by an officer of government who expressly com tracted “ on account of his majesty,” and covenanted “ on account of the king,” that “ government should be answerable.” In our case, there are no 219 354 SUPREME COURT [Feh’y Hodgson v. Dexter. such words, nor anything except the styling himself secretary at war, and using the term successors, which can possibly indicate any intention to bind the government. II. The first plea in bar is bad. The matter is insufficient to bar the plaintiff from his action. The substance of it is, that the house was burnt, without the negligence or other default of the defendant. This is no answer to an express covenant. Due care and diligence is nothing more than every bailee for hire, where there is no express agreement, is bound to use. The plea puts in issue the negligence or default of the defendant, and throws the onus probandi on the plaintiff to show actual negligence ; whereas, the defendant ought to show such an inevitable casualty as to bring himself within the benefit of the exception. He states, that the fire happened without his default, from some cause to him unknown ; but it does not thence follow, that the destruction of the house was inevitable. It is immaterial, whether it happened with his knowledge and will, or without. The plea does not *„.¿1 *bring in issue the fact whether the destruction was inevitable, or not; J but only whether it happened with his knowledge and by his default. Default or negligence means the want of ordinary care. III. The merits of this plea have already been discussed in speaking of the word “ successors,” in the lease. The demurrer here is not by the plaintiff to the defendant’s plea ; but by the defendant to the plaintiff’s replication ; but if the replication is bad, yet, if the plea is bad, judgment must be for the plaintiff, unless the court should be of opinion, that the declaration also is bad, inasmuch as it is not supported by the indenture of which apro-fert is made, whereby it becomes part of the declaration. In that case, the fate of this demurrer must depend upon the question of personal liability of the defendant. Dexter^ contra.—1st. It is admitted by Mr. Key, that the defendant had a right to make a public contract, and thereby to bind the government; and we admit, that he was also competent to bind himself. The question then is, whether this is a public contract; or whether the defendant has bound himself personally. In addition to the internal evidence of the deed itself, the plea states othei’ material facts, which are admitted by the demurrer, and which tend to prove the intention and understanding of the parties at the time of contracting. These facts are, 1st. The order of the president, pursuant to law, to remove the offices to Washington ; 2d. Their consequent removal; 3d. The necessity of providing a house in which they might be held ; 4th. That for these purposes, and for no other purpose whatever, the buildings were, by the plaintiff, leased to the defendant; 5th. That the defendant was at that time secretary of the department of war. These facts show the authority which the defendant had to bind the government, and the purpose for which the contract was made. The contract, then, being (made by a public officer of the government, having authority therefor, and *3561 ^or use g°vernment> i® primd *facie a public, and not an J individual, contract. The question then is, whether the defendant has pledged his individual credit, in addition to that of his government. This depends upon the intention of the parties ; for the intention of the parties in all cases constitutes the contract. This intention is to be known by the words they have used ; 220 1803] OF THE UNITED STATES. 356 Hodgson v. Dexter. but if those words are doubtful, resort may be had to other facts, such as the subject-matter of the agreement, the purpose for which it was made, and the official character of the parties, or either of them. But in the present case, the words of the instrument itself seem to leave no room to doubt. In the premises, the defendant is styled secretary at war} and throughout the whole deed, when he is mentioned, he is called the said Samuel Dexter, referring to the official description contained in the premises ; and in the conclusion, it is said, that the said parties have thereunto set their hands and seals. The word “ successors ” also is used, wherever the name of the defendant occurs in the instrument; and whether he was competent to bind his successors or not, yet it shows the intention of the parties, and the character in which the defendant meant to contract. It shows also, who was to occupy the premises, after the defendant should cease to be secretary at war. The plaintiff himself also has clearly shown what his understanding was, at the time, by covenanting on his part that the successors of the defendant should quietly occupy and enjoy the premises during the term. This shows that the plaintiff understood he was contracting with a public officer, for public purposes. But great stress is laid upon the word “ himself.” The said Samuel Dexter, for himself, and his successors, covenants to keep the premises in repair. How does he covenant for himself ? Clearly, for himself while in office, and as the representative of the government, his principal. The same arguments which show this to be a public contract, explain and limit the meaning of the word himself. Who is “ himself ” ? The said Samuel Dexter. Who is the said Samuel Dexter ? The premises say, Samuel Dexter, secretary at war. The case of Macbeath v. Ilaldlmand, 1 T. R. 172, is a much stronger case against the individual than the present, and yet the court had no hesitation in declaring it to be a public contract, and that the individual was *not liable. In that case, nothing was said expressly of contracting on account of the government, or for himself and his successors. In order to show that the defendant meant to pledge his individual credit, in addition to that of his government, the plaintiff ought to make out a very strong case, in express terms ; for if public agents are to be made liable upon presumptions arising from equivocal expressions, no prudent man will undertake to conduct the public business, where, of necessity, contracts must be made to an immense amount. If a doubt exists, the construction ought certainly to be in favor of the agent. The case of Unwin v. Wolsely, 1 T. R. 674, clearly shows that no difference, in the construction of the contract, can arise from the circumstance of its being under seal. The intention of the contract being to bind the go\ -ernment, it shall not, by reason of the seal, become the contract of the individual who did not mean to bind himself. The only operation of the seal is to raise the agreement from a simple contract to a specialty. The seal, therefore, does not make it the deed of the individual. It is immaterial whether the words “ on account of his majesty,” make the case of Unwin v. Wolsely, a stronger case in favor of that defendant than the present. The case is not cited to compare those facts with these, but to show that the seal makes no difference between that case and the case of Macbeath v. Hal-dimand. 2d Point. Inevitable casualty. The objections to this plea seem to be, 221 357 SUPREME COURT [Feb’y Hodgson v. Dexter. that it throws the onus probandi upon the plaintiff ; and that the facts do not show an inevitable casualty. The plea has stated all that was possible to state ; all that was within our knowledge ; and if they do not show the case to be primd facie within the exception of the covenant, the plea is bad. No form of plea which the defendant could have pleaded, as to this point, would have laid the onus probandi on him. The exception of inevitable casualties is in its nature a negative. One of the counts in the declaration * 1 avers the *destruction of the buildings to have been by an evitable J casualty. Upon this averment, the defendant might have taken issue, and said, it was not by an evitable casualty, or, in the words of the lease, that it was by an inevitable casualty, which is equally a negative proposition ; and in either case, the proof would lay on the plaintiff. So, if the defendant had pleaded, that the accident happened notwithstanding he had used the utmost care and diligence to prevent it, the plaintiff must have replied some act of negligence. For it cannot be supposed, that the defendant should show particular instances of his care for every moment of his occupation, during the whole term. Suppose, the defendant had pleaded, that the fire arose by accident in the adjoining house, and communicated to the house in question (this example is assumed under an impression that such was the fact), would that have been more satisfactory to the plaintiff than the present plea ? He would still have to show that the defendant had not used reasonable means to avoid its effects. In the case of Monk v. Cooper, 2 Ld. Raym. 1477, the form of pleading is not more certain than the present; and is the form which has been ever since used in cases of destruction by fire. It is understood, that the learned gentleman who is to close this argument has given an opinion, and means to contend, that inevitable casualty means the act of God. But surely, it cannot mean an accident only evitable by the power of the supreme being. Death is usually termed the act of God ; but death may be by human means, which may often be avoided ; as in the case of murder. So, death may be the consequence of unskilfulness of the physician, and might have been avoided by employing a man of more skill. So, a man, by exposing himself to a storm, may take cold, and death may ensue; which might have been avoided, by not exposing himself to the storm. Yet in all these cases, the death is said to be the act of God. An inevitable casualty, therefore, is not always the act of God ; but must mean, in the present case, a casualty inevitable by the defendant. It cannot mean, a casualty evitable only by the united exertions of the whole human race. * n A whirlwind is said to be the *act of God, yet its effects may be -* prevented, by building a wall of brass about the house of sufficient strength. So, the effects of lightning may be prevented by proper conductors ; and the ravages of enemies may be impeded by a sufficient human force. These examples are cited, to show that the term inevitable casualty cannot be confined to those accidents which are usually termed the acts of God ; nor to such as are inevitable, notwithstanding the united exertions of all the world. Where, then, is the line to be drawn ? It is believed, that the true meaning of the expression is, such accidents as cannot be prevented by reasonable care and diligence. But even taking the expression to be confined only to those accidents which are called the act of God/yet there are not wanting old authorities 222 1803] OF THE UNITED STATES. 359 Hodgson v. Dexter. which expressly call a sudden fire the act of God, although more modern writers have very properly termed it an inevitable accident. 1 Roll. Abr 808, pl. 6, under the head of “ what acts shall excuse an escape,” says, “ so if the prisoners escape by sudden fire, this shall excuse the escape, for this is the act of God.” And in Dyer, 66 b, 15, it is said, “ if he plead that the prison was broken by enemies of the king, or by sudden fire, which is the act of God, or by such force or vehement power that he could not resist, this is good matter. The case of Forvoa^rd v. Pittard, I T. R. 27, is a very strong one upon this point. There was a verdict for the plaintiff, subject to the opinion of the court upon the following case : That th®-defendant was a common carrier from London to Shaftesbury ; that on Thursday, the 14th October 1784, the plaintiff delivered to him, on Weyhill, twelve pockets of hops to be carried by him to Andover, and to be by him forwarded to Shaftesbury, by his public road-wagon, which travels from London, through Andover, to Shaftesbury. That by the course of travelling, such wagon was not to leave Andover until the Saturday evening following. That in the night of the following day after the delivery of the hops, a fire broke out in a booth, at the distance of about 100 yards from the booth in which the defendant had deposited the hops, *which burnt for some time, with unextinguishable violence, and r*ofin during that time, communicated itself to the said booth in which the L defendant had deposited the hops, and entirely consumed them, without any actual negligence in the defendant. That the fire was not occasioned by lightning.” The counsel for the plaintiff in that case contended, that a carrier is liable in all cases, except the loss be occasioned by the act of God or the king’s enemies : and a distinction is taken between the act of God and inevitable accident. The counsel for the defendant insisted, that he was not liable for accidents happening without any default or negligence of the carrier. Lord Mansfield said, there was “ a nice distinction between the act of God, and inevitable necessity. In these cases (of common carriers), actual negligence is not necessary to support the action.” Afterwards, Lord Mansfield delivered the unanimous opinion of the court. “ It is laid down, that a carrier is liable for every accident, except by the act of God, or the king’s enemies. Now, what is the act of God ? I consider it to mean something in opposition to the act of man : for everything is the act of God that happens by his permission ; everything by his knowledge. But to prevent litigation, collusion and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless he shows it was done by the king’s enemies, or by such act as could not happen by the intervention of man, as storms, lightning and tempests. If an armed force come to rob the carrier of the goods, he is liable ; and the true reason is, for fear it may give room for collusion, that the master may contrive to be robbed on purpose, and share the spoil. In this case, it does not appear but that the fire arose from the act of some man or other. It certainly did arise from some act of man; for it is expressly stated not to have happened by lightning. The carrier, therefore, in this case is liable, inasmuch as he is liable for inevitable accident.”1 *The court in that case call a fire arising from the act of man, an inevitable accident, but decide, that the carrier is liable, inasmuch as 1 And see Merritt v. Earle, 29 N. Y. 115. 223 361 SUPREME COURT [Feb’y Hodgson v. Dexter. he is liable for inevitable accident; being considered as an insurer. There, the case shows that the fire arose from the act of man ; but inasmuch as it was without any default of the carrier, the court called it an inevitable accident. In the present case, the plea states, that against the will, and without the negligence or other default of the defendant, the building was consumed by fire, arising from some cause then and yet wholly unknown to the defendant. The only difference in the two cases is, that in the case of the carrier, the fire appeared to have arisen from the act of man, but in the present case, the cause of the fire is wholly unknown. If the former was justly called an inevitable accident, d fortiori^ the latter ought to be so called. In Cornyns’ Rep. 631, destruction by fire is admitted by the counsel on both sides to be an unavoidable accident. In Jones on Bailments, a work remarkable for the correctness and precision of its language, p. 90, Amer, ed. (p. 49, English ed.), is this expression : “If they be destroyed by wreck, pillage, fire or other inevitable misfortune.” In page 93 (51), he cites a paragraph from Puffendorf, “ that the borrower ought to indemnify the lender, if the goods lent be destroyed by fire, shipwreck or other inevitable accident.” In page 97 (53), he says, “there are other cases, in which a borrower is chargeable for inevitable mischance ; for example, if the house of Caius be in flames, and he be able to secure one thing only,” &c. And in p. •142 (78), “ there is no obligation in the bailee to suggest wise precautions against inevitable accident, and he cannot, therefore, be obliged to advise insurance from fire.” In page 146 (79, 80), he says, “ although the act of God be an expression which too long custom has rendered familiar to us, yet, perhaps, on that very account, it might be more proper, as well as more decent, to substitute in its place inevitable accident.” See alsop. 135 (73), 146 (79, 80), 149 (81, 82), 82 (18), as to the peculiar law respecting innkeepers and common carriers, and as to the general principle, that the bailee is liable only for negligence, the degree of which is regulated by the nature of the bailment. *3621 *The authorities thus cited show that fire, in former times, was J called the act of God, but in latter days, it is termed, in the very expressions of the lease, an inevitable accident, an inevitable casualty, an inevitable mischance, or an unavoidable accident, by lawyers, by judges, and by elementary writers. The presumption, therefore, is strong, that the case of fire was the very case of inevitable casualty, which the exception in the lease was intended to guard against. 3d. As to the third point. It is immaterial, whether this be considered as the contract of the officer in his official capacity, or of the government, and whether an action will or will not lie against the successor. That question can only be of importance, as it concerns the mode of the remedy, but does not affect the point of personal liability. It would be ruinous, not only to the agent, but to the government itself, if this doctrine of individual responsibility is to be established. Suppose, the defendant, or his successor, had been dispossessed by the plaintiff, during the term, who would have the right of action? If the defendant, after he was out of office, had the sole right to sue, the office must be at his mercy. He might release the contract. Suppose, a contract made by the secretary at war, for supplying the army, and advances, as usual, made to the contractor. Suppose, the sum advanced to be $50,000 (which in such cases is not a large sum), and the contractor pockets the money, and refuses to 224 1803] OF THE UNITED STATES. 362' Hodgson v. Dexter. make the supplies. The secretary becomes bankrupt, or refuses to bring suit, or dies, and his executors refuse to sue. How are the public to compel them ? Is it consistent with the dignity of the United States, to ask their leave to bring suit ? There is now existing a contract for the casting of cannon, made by the defendant while in office. Can the secretary, out of office, release this contract ? Can he give a valid release of the contract for supplies to the army ? These examples show that the ex-secretary is not the person contracting, and that the suit is brought against the wrong person. Mason, on the same side, was stopped by the court, who said, they were satisfied with the argument on the *part of the defendant, upon the r*qfio first, point, and wished to hear the counsel in reply. Mr. Martin L observed, that he did not suppose that anything he had to offer would shake the opinion which the court seemed to have formed, and should not insist upon replying. March 2d, 1803. The Chief Justice, after stating the terms of the lease, and the pleadings, delivered the unanimous opinion of the court. The plaintiff in error has made two points. 1st. That under this contract, the defendant was bound in his private capacity. 2d. That the matter pleaded in his plea, did not show the casualty, by which the buildings were destroyed, to have been inevitable. This court give no opinion on the second point, being unanimous in favor of the defendant on the first. It appears from the pleadings, that congress had passed a law authorizing and requiring the president to cause the public offices to be removed from Philadelphia, to Washington ; in pursuance of which law, instructions, by the president, were given, and the offices belonging to the department of war were removed ; that it became necessary to provide a war-office, and that for this purpose, and no other, the agreement was entered into by the defendant, who was then at the head of this department. During the lease, the building was consumed by fire. It is too clear to be controverted, that where a public agent acts in the line of his duty, and by legal authority, his contracts made on account of the government, are public and not personal. They inure to the benefit of, and are obligatory on, the government ; not the officer. A contrary doctrine would be productive of the most injurious consequences to the public, as well as to individuals. The government is incapable of acting otherwise than by its agents, and no prudent man would consent to become *a public agent, if he should be made personally responsible for contracts on the public account. This subject was very fully discussed in the case of Macbeath n. Haldimand, cited from 1 Term Reports ; and this court considers the principles laid down in that case as consonant to policy, justice and law. The plaintiff has not controverted the general principle, but has insisted, that, in this case, the defendant has, by the terms of his contract, bound himself personally. It is admitted, that the house was taken on account of the public, in pursuance of the proper authority ; and that the contract was made by the person at the head of the department, for the use of which it was taken ; nor is there any allegation, nor is there any reason to believe, that the plaintiff preferred the private responsibility of the defendant to that of the government; or that he was unwilling to contract on the faith of $ov- 1 Cranch—15 225 »64 SUPREME COURT [Feb’y Hodgson v. Dexter. eminent. Under these circumstances, the intent of the officer to bind himself personally must be very apparent indeed, to induce such a construction of the contract. The court can perceive no such intent. On the contrary, the contract exhibits every appearance of being made with a view entirely to the government. The official character of the defendant is stated in the description of the parties. This, it has been said, might be occasioned by a willingness in the defendant to describe himself by the high and honorable office he then filled. This, unquestionably, is possible, but is not the fair construction to be placed on this part of the contract, because it is not usual for gentlemen, in their private concerns, to exhibit themselves in their official character. The tenement is to let to “ the said Samuel Dexter, and his successors ; ” an expression plainly evidencing that it was not for himself, otherwise than as secretary of war ; and that the lessor so understood the contract. It is also evincive of the correctness of the observation of the defendant, that the words “ said Samuel Dexter V refer to him in his official character, as described in the premises. The habendum is, “ to have and to hold the said demised *premises to him, the said Samuel Dexter, and his succes-J sors,” &c., showing, that to the knowledge of the lessor, if Mr. Dexter should go out of office the next day, the successor to the war department would succeed also to the occupancy of the office. The covenant for quiet enjoyment during the term is with the said Samuel Dexter, and his successors, and is, that they, as well as he, shall enjoy. The covenant on the part of Mr. Dexter, on which the suit is brought, is for himself, and his successors. The whole face of the agreement, then, manifests very clearly a contract made entirely on public account, without a view, on the part of either the lessor or lessee, to the private advantage or responsibility of Mr. Dexter. The only circumstance wrhich could excite a doubt was produced by the technical operation of the seal. This, in plain reason and common sense, can make no difference in designating the person to be responsible for the contract ; and so it has been determined in the case cited from 1 T. R. 6^4 ( Unwin v. Wolsely). The court is unanimously and clearly of opinion, that this contract was entered into entirely on behalf of government, by a person properly authorized to make it, and that its obligation is on the government only, Whatever the claims of the plaintiff may be, it is to the government, and not to the defendant, he must resort to have them satisfied. Judgment affirmed, with costs. 226 1803] OF THE UNITED STATES. 1 365 Lloyd w. Alexander el al. A citation must accompany the writ of error. The writ of error in this case was quashed, because it was not accompanied by a citation. * fi„-| *Marshall, Ch. J.—The law respecting the thirty days’ notice on a J writ of error, and the ten days allowed for filing it, was predicated upon the existing state of things, at the time of passing the act; at which time, there was no circuit court whose term would not be finished more than forty days before the sitting of the supreme court. The times of the session of the courts have been altered, but no alteration has been made in the law respecting the thirty days’ notice, which makes it difficult to form a rule in the case. At present, if the citation has not been served thirty days, the court will not take up the cause until the thirty days have expired, unless the defend-dant in error shall appear. A citation not served is as no citation. 227 [ *367 ] APPENDIX. Note (A) to Mandeville v. Riddle, ante, p. 299. Dunlop v. Silver. The question of liability of a remote indorser of a promissory note, in Virginia, came before the court below, about a year before their decision in .the present case. It was in the case of Dunlop v. Silver and others, argued at July term 1801, in Alexandria. The court took the vacation to consider the case, and examine the law, and, at the succeeding term, judgment was rendered for the plaintiff by Kilty, Chief Judge, and Cranch, Assistant Judge, contrary to the opinion of Judge Marshall. The case was this. James Cavan made a promissory note, by which he promised to pay to Silver et al., or order, sixty days after date, $600 for value received, negotiable at the bank of Alexandria. Silver et al. indorsed the note to Downing & Dowell, in these words, “pay the contents to Downing & Dowell,” who indorsed, “pay the contents to John Dunlop, or order.” Dunlop had obtained judgment on the note against Cavan, the maker, who was taken upon the execution, and took the oath of an insolvent debtor. The declaration had two counts. 1st. A special count, stating the making and indorsing the note, the suit, judgment, execution and insolvency of Cavan, by reason whereof, the defendant became liable, &c. 2d. Indebitatus assumpsit for money had and received. The plea was non assumpsit, and a verdict was taken for the plaintiff subject to the opinion of the court, upon the point, whether the holder could maintain an action against the remote indorser of a promissory note. The statute 3 & 4 Ann. c. 9, respecting promissory notes, is not in forde in Virginia; but there is an act of assembly, 1786, c. 29, by which it is enacted, that “an action of debt may be maintained upon a note or writing, by which the person signing the same shall promise or oblige himself to pay a sum of money, or quantity of tobacco, to * another;” and that “ assignments of bonds, billsand promissory notes, and other writings obligatory, for payment of money or tobacco, shall be valid; -and an assignee of any such may, thereupon, maintain an action of debt in his own name; but shall allow all just discounts, not only against himself, but against the assignor, before notice of the assignment was given to the defendant.” It will be observed, that this act gives no action against the indorser or assignor, nor does it make any distinction between notes payable to order, and those payable only tc the payee. Hence, perhaps, it may be inferred, that it left such instruments as the parties themselves, by the original contract, had made (or intended to make) negotiable, to be governed by such principles of law as may be applicable to those instruments. At any rate, it seemed to be admitted, that the act did not affect the present case. The principal question, then, is, whether this action could have been supported in England, before the statute of Anne. 229 368 APPENDIX. Dunlop v. Silver. I. In order to ascertain how the law stood before that statute, it may be necessary to examine how far the custom of merchants, or the lex mercatoria, was recognised by the courts of justice, and by what means the common-law forms of judicial proceedings were adapted to its principles. A distinction seems to have been made, very early, between the contracts of merchants (especially of foreign merchants), and those of other people. Nearly six hundred years ago, we find their “ old and rightful customs ” protected by the great char ter of English liberties. (Magna Charta, c. 30.) Peculiar privileges were also granted them, more than 500 years ago, by the statute of Acton Burn el, de mercatoribus, 11 Edw. I., and the statute of merchants, 13 Edw. I. And in the reign of Edw. III., many statutes were made for their encouragement, in some of which, particularly 27 Edw. III., c. 19 & 20, the law-merchant is expressly recognised. In the 13 Edw. VI., 9, 10 (cited by Molloy, book 3, c. 7, § 15), it is said, that “ a merchant stranger made suit before the king’s privy council, for certain bales of silk, feloniously taken from him, wherein it was moved that, this matter should be determined at common law ; but the lord chancellor answered, that this suit is brought by a merchant, who is not bound to sue according to the law of the land, nor to tarry the trial of twelve men.” The custom of merchants is mentioned in 34 Hen. VIII., cited in Bro. Abr., tit. Cus *3391 toms, pl. 59, where it was pleaded, as a custom between merchants *throughout the whole realm, and the plea was adjudged bad, because a custom throughout the whole realm was the common law. And for a long time, it was thought necessary to plead it as a custom between merchants of particular places, viz., as a custom among merchants residing in London and merchants in Hamburg, &c. By degrees, however, the courts began to consider it as a general custom. Co. Litt. 182; 2 Inst. 404. And in the time of James I., Ch. J. Hobabt, in the case of Vanheath v. Turner, Winch 24, said, that “ the custom of merchants is part of the common law, of which the judges ought to take notice.” It was still, however, deemed necessary to set forth the custom specially ; and in that form, the precedents continued, for some time after. Indeed, the pleadings continued in that form, long after the courts had decided it to be unnecessary. Lord Coke, in his Commentary on Littleton (first published in 1628), folio 182 a, speaking of the lex mercatoria, says, “ which, as hath been said, is part of of the laws of this realm.” See also 2 Inst. 404. But after this, in the year 1640, in Eaglechild's Case, reported in Hetly 167, and Litt. 363, 6 Car. I. (it was said to have been ruled in B. R.), “ that upon a bill of exchange between party and party, who were not merchants, there cannot be a declaration upon the law-merchant; but there may be a declaration upon assumpsit, and give the acceptance of the bill in evidence.” This decision seemed to confine the operation of the law-merchant, not to contracts of a certain description, but to the persons of merchants : whereas, the custom of merchants is nothing more than a rule of construction of certain contracts. Jac. Law Diet. (Tomi, edit.) tit. Custom of Merchants. Eaglechild's Case, however, was overruled in the 18 Car. IL, B. R. (1666), in the case of Woodward v. Eowe, 2 Keb. 105, 132, which was an action by the indorsee against the drawer of a bill of exchange. “ The plaintiff counted on the custom and law of the realm, that if any man writes a bill to another, then if he to whom the bill is directed, do not pay for the value received by the maker, the maker of such bill should pay.” “It was moved in arrest of judgment, that this count is ill, the general custom being the law; and it doth not appear to the court, that there is any such law. Sed curia, contra;, that by the common law, a man may resort to him that received the money, if he to whom the bill was directed, refuse.” It was afterwards moved again, that this “is only a particular custom among merchants, and riot common law; but, per curiam, the law of merchants is the law of the land; and the custom is good enough, generally, for any man, without naming him merchant; judgment pro plaintiff, per totam curiam, and they will intend that he, of whom the value is said to be received by the defendant, was the plaintiff’s servant.” * u *The same principle was, two years afterwards, recognised in an Anonymous ' J case (but believed to be Milton's Case, ride 1 Mod. 286), in the exchequer, reported 230 APPENDIX. Dunlop v. Silver. inHardres 485, Mich. 20 Car. II. (1668), where the plaintiff declared on the custom of England, and after verdict, Offley moved in arrest of judgment, because the “ plaintiff had declared that per consuetudinem Anglia, &c., which he said was naught, because the custom of England is the law of England, and what the judges are bound to take notice of; and that, therefore, the consuetudo Anglia ought to have been omitted.” But the Chief Baron said, “ but for the plaintiff’s inserting the custom of the realm into his declaration here, I hold that to be mere surplusage and redundancy, which does not vitiate the declaration.” And again he says, “it were worth while to inquire, what the course has been amongst merchants; or to direct an issue for trial of the custom among merchants in this case; for although we must, in general, take notice of the law of merchants ; yet, all their customs we cannot know, but by information.” Afterwards, in declaring their opinions, the court said “ that this course of accepting bills being a general custom amongst all traders, both within and without the realm,'and having everywhere that effect to make the acceptor subject to pay the contents, the court must take notice of that custom.” Notwithstanding these decisions, the question was again made, about twenty years afterwards, in the case of Carter n. Downish (1 W. & M., Anno 1688), 1 Show. 127, in the exchequer, on a writ of error from the king’s bench. The defendant had covenanted to pay all bills which should be drawn on him, in favor of the plaintiff, on account of 1000 kentals of fish, and the breach assigned was, the non-payment of a certain bill. The defendants pleaded, that the plaintiff by indorsement on the bill, according to the custom of merchants, appointed the payment to Herbert Aylwin, or his order, who indorsed it to Tassel, to whom the defendant paid it. To this plea, there was a demurrer, and joinder. One of the errors assigned was, that the defendant had not set forth a particular custom, to warrant the indorsement. To which it was answered, “ that the law and custom of merchants warrant the indorsement of foreign bills of exchange, and for that, all the book cases on foreign bills are a proof; and that such indorsement doth really transfer the property of the money, or contents, in such bills to the indorsee, and that all this law of merchants is part of the law of the land, and the judges are obliged to-take notice of that as well as of any other law.” And the following cases were cited: 1 Inst. 182 a; 2 Inst. 58, 204; F. N. B. 117, Reg. 135; 13 Edw. IV., 9; Holland's Case, 4 Co. 76; Fitz. Abr. tit. Account, 127. *Lord , Chief Justice Pollexfen.—“As to that of the law of merchants, I think, we are bound to take notice of it, as we do of that of survivorship and account, and this is as well known.” Ventris concurred, and they all inclined to reverse the judgment; but upon Tremayne’s importunity, adjornatur. Three years after this, however, the point was again made, in the case of Mogadara v. Holt (3 W. &M.), 1 Show. 318, and 12 Mod. 15, 16 (Anno 1699), where it was held by Holt, Chief Justice, and the whole court, “that the law of merchants is jus gentium, and part of common law, and ergo, we ought to take notice of it, when set forth in pleading.” And “ though the plaintiff hath alleged a custom contrary to fact, yet that is but surplusage; and he needed not to have alleged a custom.” Jud. pro quer. Not satisfied with these adjudications, the question was again agitated, two years afterwards, in the exchequer, on a writ of error from the king’s bench, in the case of Williams v. Williams, Carth. 269 (Pasch., 5 W. & M., Anno 1693), where “ the only error insisted on was, that the plaintiff had not declared on the custom of merchants in London, or any other particular place (as the usual way is) but had declared on a custom through all England, and if so, ’tis the common law, and then it ought not to be set out by way of custom; and if it is a custom, then it ought to be laid in some particular place from whence a venue might arise to try it. To which it was answered, that this custom of merchants, concerning bills of exchange, is part of the common law, of which the judges will take notice ex officio, as it was resolved in the case of Carter n. Downish ; and therefore, it is needless to set forth the custom specially in the declaration, for it is sufficient to say, that such a person, secundum usum et consuetudinem mercatorum, drew the bill; therefore, all the matter in the declaration concerning the special custom was merely surplusage, and the declaration good without it. The judg- 231 371 APPENDIX. j Dunlop v. Silver. ment was affirmed.” Similar doctrine was also held by Lord Holt, in the same term, in the case of Hodges v. Steward, 12 Mod. 37 (Pasch., 5 W. & M., Anno 1693). Again, in Hilary term (B. R., 8 & 9 Wm, III., Anno 1697), Pinkney v. Hall, 1 Ld. Raym. 175, the exception was taken, “that the declaration being per consuetudinem .Anglia, &c., was ill, because the. custom of England is the law of England, of which the judges ought to take notice, without pleading. Sed non allocatur. For though, *3721 here^ofore, *this has been allowed, yet, of late time, it has always been over- J ruled.” And another exception was “ that though lex mercatoria is part of the law of England, yet it is but a particular custom among merchants ; and, therefore, it ought to be shown, in London, or some other particular place. Sed non allocatur. For the custom is not restrained to any particular place.” The same principles were, in the same term, in the common pleas, held, in the case of Bromwich v. Loyd (Hilary term, 8 Wm. HI.), 2 Lutw. 1585, where Treby, Chief Justice, said, “ That bills of exchange, at first, were extended only to merchant strangers, and afterwards to inland bills between merchants trading one with another here in England; and after that, to all traders and dealers, and of late, to all persons trading or not; and there was no occasion to allege any custom: and that was not denied by any of the other justices.” In 10 Wm. III., Anno 1698, B. R., Hawkins v. Cardy, 1 Ld. Raym., 360, an action was brought on a promissory note, made by the defendant, and indorsed by the payee - to the plaintiff for part only, who declared oil the custom of merchants for such an indorsement. But on demurrer, it was adjudged ill. “ For a man cannot apportion such personal contract, for he cannot make a man liable to two actions, where by contract he is liable but to one.” And Holt, Chief Justice, said, “ This is not a particular local custom, but the custom of merchants, of which the law takes notice; and therefore the court cannot take the custom to be so.” Judgment for defendant. Four years after this, in the case of Buller n. Crips, 6 Mod. 29 (B. R., 2 Ann., Anno 1702), Lord Holt said, “I remember when actions upon inland bills of exchange did first begin ; and there they laid a particular custom between London and Bristol, and it was an action against the acceptor. The defendant’s counsel would put them to prove the custom; at which, Hale, who tried it, laughed, and said, ‘they had a hppeful case on’t.’ And in my Lord North’s time, it was said, that the custom in that case was part of the common law of England, and the actions since became frequent, as the trade of the nation did increase; and all ;he difference between foreign and inland bills is, that foreign bills must be protested before a public notary, before the drawer may be charged; but inland bills need no protest.” In the year 1760 (1 Geo. HI.), in the case of Edie v. The East India Company, 2 Burr. 1226, Mr. Justice Foster said, “ Much has been said about the *custom of J merchants; but the custom of merchants, or law of merchants, is the law of the kingdom, and is part of the common law. People do not sufficiently distinguish between customs of different sorts. The true distinction is, between general customs (which are part of the common law) and local customs (which are not so). This custom of merchants is the general law of the kingdom, part of the common law, and, therefore, ought not to have been left to the jury, after it has been already settled by judicial determinations.” And in the same case, p. 1228, Mr. Justice Wilmot says, “The custom of merchants is part of the law of England; and courts of law must take notice of it as such. There may, indeed, be some questions, depending upon customs among merchants, where, if there be a doubt about the custom, it may be fit and proper to take the opinion of merchants thereupon ; yet, that is only where the law remains doubtful. And even there, the custom must be proved by facts, not by opinion only; and it must also be subject to the control of law.” In the case of Pillans & Rose v. Van Mier op & Hopkins, 3 Burr. 1669, Lord Mansfield says, “ the law of merchants and the law of the land is the same; a witness cannot be admitted to prove the law of merchants; we must consider it as a point of law.” Sir Matthew Hale, in his History of the Common Law of England, first published in 1713 (3d edit.), p. 24, 25, speaking of the common law, as it is taken in its 232 APPENDIX. 373 Dunlop v. Silver. proper and usual acceptation, says, “ And besides these more common and ordinary matters to which the common law extends, it likewise includes the laws applicable to divers matters of very great moment; and though by reason of that application, the said common law assumes diverse denominations, yet they are but branches and parts of it; like as the same ocean, though it many times receives a different name from the province, shire, island or country to which it is contiguous, yet these are but parts of the same ocean. Thus the common law includes lex prerogativa, as it is applied with certain rules to that great business the king’s prerogative; so it is called lex forest®, as it is applied, under its special and proper rules, to the business of forests; so it is called lex mercatoria, as it is applied, under its proper rules, to the business of trade and commerce.” To these authorities will be added only that of Christian, in his note to 1 Bl. Com. 75. “ The lex mercatoria, or custom of merchants, like the lex et consuetudo parliamenti,'(iQscn})^ only a great division of the law of England. The la6, 7. ——