REPORTS OF OASES ARGUED AND ADJUDGED IN THE OF THE UNITED STATES, IN FEBRUARY TERM 1805, and FEBRUARY TERM 1806. By WILLIAM CRANCH, CHIEF JUDGE OF THE CIRCUIT COURT OF THE DISTRICT OF COLUMBIA. Potius ignoratio juris litigiosa est, quam scientia. CIC. DE LEGIBUS, DIAL. 1. VOL. III. . THIRD EDITION. EDITED, WITH NOTES AND REFERENCES TO LATER DECISIONS, BY FREDERICK C. BRIGHTLY, author of the “Federal digest,” etc. NEW YORK: BANKS & BROTHERS, LAW PUBLISHERS, j No. 144 NASSAU STREET. ALBANY: 475 BROADWAY. 1882. Entered according to Act of Congress, in the year 1882, By BANKS & BROTHERS, In the office of the Librarian of Congress, at Washington. JUDGES OF THE SUPREME COURT OF THE UNITED STATES PRESENT AT THE FEBRUARY TERM, 1806. Hon. John Marshall, Chief Justice. “ William Cushing, “ William Paterson, Associate " Bushrod Washington, Justices. “ William Johnson, Judge Chase was absent the whole term, on account of ill health ; and Judge Cushing was prevented, by indisposition, from attending until the 19th of February. On the 12th of February 1806, the Hon. John Breckenridge was sworn as Attorney-General of the United States, in the place of the Hon Levi Lincoln, resigned. iii A TABLE OF THE NAMES OF THE CASES REPORTED IN THIS VOLUME. The references are to the Star * pages. B G ♦page ♦page Barry, Manella v........... 415 Gadsby, Levy v.......... 180 Bell, Hopkirk v............ 454 Gordon v. Caldcleugh...... 268 Brooke, Peyton«............. 92 Graham, Cooke v........... 229 Buddicum v. Kirk........... 293 Grundy, United States «....337 Burford, Ex parte......... 448 Butts, Hodgson v........... 140 H Hallet«. Jenks........... 210 C Hannay «. Eve............. 242 ~ , „„„ Harris«. Johnston....... 311 Caldcleugh, Gordon „....... 268 8........ 899 Codman «. Wilson....... 193 ir A T> ,, , „„„ Hodgson«. Butts......... 140 Cooke «. Graham............ 229 TT Tt -x j ax x ho x. o. . Hooe, United States«...... 73 Curtiss, Strawbridge v.... 267 .............. Huidekoper «. Douglass.... 1 Dixon «. Ramsay.......... 319 Dobynes «.United States... 241 Jackson, Winchester «..... 515 Douglass, Huidekoper«........ 1 Jenks, Hallet «............210 Douglass «.McAllister..... 298 Johnston, Harris «........ 311 E K * _ Kirk, Buddicum «.......... 293 Eve, Hannay v.............. 242 Knox> Sands „............. 499 Knox «. Summers...........496 F Faw«. Roberdeau........... 174 Field «. Milton............ 514 Lambert «. Paine.......... 97 vi CASES REPORTED. *PAGE *PAGE Law, Ray v.................. 179 Scott v. Negro London....... 324 Lawrason v. Mason........... 492 Shattuck, Maley v........... 458 Levy v. Gadsby.............. 180 Silsby v. Young............. 249 Simms v. Slacum............ 300 M Slacum, Simms v............. 300 McAllister, Douglass v...... 298 Speed, Wilson v............. 283 m i Strawbridge v. Curtiss...... 267 McFerran v. Taylor.......... 270 „ ,, , ci. xx i jeo Summers, Knox v.............496 Maley v. Shattuck........... 458 ’ Manella v, Barry........... 415 Marine Ins. Co. v. Tucker... 357 T Mason, Lawrason v........... 492 T . McFerran »............... 270 Milledge, Milligan».,;...... 220 Tucker, Marine Ins. Co. ».... 357 Milligan v. Milledge....... 220 Milton, Field v............ 514 Montalet v. Murray......... 249 More, United States v....... 159 United States, Dobynes v....241 Murray, Montalet v.......... 249 United States v. Grundy.... 337 United States v. Heth..... 339 United States v. Hooe....... 73 Negro London, Scott v....... 324 United States v. More........ 159 P W Paine, Lambert v............ 97 Peyton ». Brooke............. 92 Ware, Rando ph o........... 503 Wilson v. Codman........... 193 p Wilson v. Marine Ins. Co.... 187 Wilson v. Speed............ 283 Ramsay, Dixon v............. 319 Winchester v. Jackson....... 515 Randolph v. Ware............ 503 Wise v. Withers............. 331 Ray v. Law.................. 179 Withers, Wise v...... /..... 331 Roberdeau, Faw v........... 174 S Y Sands v. Knox............... 449 Young, Silsby v............. 249 A TABLE If B OF THE. CASES CITED IN THIS VOLUME, The references are to the Star *pages. A ♦PAGB Adams«. Savage..;................6 Mod. 13'4..................198, 322 Aguilar v. Rodgers...............7 T. R. 421...................... 374 Attorney-General v. Freeman......Hardr. 101....................... 360 B Bailis«. Gale....................2 Ves. 48.,..................... 112 Balfour«. Meade..................1 Wash. C. C. 18................. 45 Barry«. Edgeworth................2 P. Wms. 523................... Ill Beachcroft «. Beachcroft......2 Vern. 690..................... 118 Beatson «. Haworth...............6 T. R. 531..................370, 378 Bempde «. Johnstone..............3 Ves. Jr. 200.................. 320 Bernard «. Saul..................1 Str. 498...................... 184 Betsey, The......................1 Rob. 18....................... 480 Betty Cathcart, The..............1 Rob. 184...................... 377 Blenkinson «. Iles.............. ..2Ld. Raym. 1544............... 497 Bowes «. Blackett................Cowp. 235...................... 102 Bowman «. Milbanke...............1 Lev. 130...................... 118 Bridgewater «. Bolton............1 Salk. 236..................... 110 Bright v- Eynon..................1 Burr. 395..................... 304 Bristow «. Wright................2 Doug. 665.................... 199 Bruce «. Bruce...................2 Bos. & Pul, 229, 230........... 320 Burrows «. Jemino................2 Str. 498....................... 184 C Calder «, Bull.................. 3 Dall. 386..................... 399 Calvin’s Case....................7 Co. 2..............104, 105, 106, 123 Carter p. Boehm..................3 Burr. 1909.................... 377 Carter p. Royal Ex. Assurance Co.2 Str. 1249..................... 388 Chapman «. Turner................1 Atk. 54..................... 226 vii viii CAGES CITED. *PAGB Charming Betsy, The............2 Cr. 64.....................483, 502 Chester v. Painter.............2 P. Wms. 335............103, 111, 116 Chinnery v. Blackburne.........1 H. Bl. 117.................... 146 Christie v. Secretan...........8 T. R. 198..................... 377 Clarke v. Bazadone.............1 Cr. 212....................... 170 Clarke v. Young................1 Cr. 181....................... 315 Cole v. Rawlinson..............1 Salk. 234..................... 120 Cooke v. Oxley ................3 T. R. 653..................... 494 Cowslad v. Cely................Prec. in Ch. 83................. 227 D Darwent v. Walton..............2 Atk. 510...................... 227 Delaneys. Stoddert.............1 T. R. 22...................... 381 Denn v. Gaskin.................Cowp. 659....................... 112 Doe v. Burt....................1 T. R. 701..................... 191 Doe v. Jones...................4 T. R. 308................ 107, 117 Duchess of Kingston’s Case.....1 Eaöt P. C. 468................ 323 E Englefield’s Case..............Moore 325....................... 109 F Faikney v. Reynous........... .4 Burr. 2069.................. 183 Fenwick v. Sears...............1 Cr. 259....................320, 321 Field v. Biddle............... .2 Dall. 171.................... 191 Fletchers. Smiton..............2 T. R. 656..................103, 112 Floyer v. Edwards..............Cowp. 115....................... 183 Fosters. Wilmer................2 Str. 1249..............378, 393, 398 Frogmorton v. Wright...........3 Wils. 418..................103, 112 G Georgia v. Brailsford..........3 Dall. 1.................... 457 Gibson v. Fristoe..............1 Call 74, 81.................. 184 Goodwin v. Goodwin.............1 Ves. 228..................... 118 Goss v. Withers................2 Burr. 683.................... 374 Gregory v. Setter..............1 Dall. 193.................... 191 H Sail v. Gurney................ .Co. Bank. L. 337............... 148 Hamiltons. Eaton...............Mart. (N. C.) 1......"...........457 Hamilton v. Mendez.............2 Burr. 1198.................... 374 Hamilton v. Russell............1 Cr. 309.....................89, 148 Henshaw v. Marine Insurance Co. .2 Caines 274...........378, 385, 390 Hilliard v. Cox................1 Ld. Raym. 562 ............... 322 Hodges v. Middleton............2 Doug. 434.................... 112 Hogan v. Jackson...............Cowp. 306..................... 112 Hole v. Finch..................2 Wils. 394..................... 221 CASES CITED. ix ♦page Holman v. Borough............2 Salk. 658.................203, 231 Hunter v. Potts..............4 T. R. 184.................... 320 I Ibbotson v. Beckwith.........Cas. temp. Talb. 159........Ill, 113 J Jackson v. Vernon............1 H. Bl. 114.................. 146 Jones v. Ashurst.............Skin. 357...................359, 365 Jordain v. Lashbrooke........7 T. R. 601.................... 286 Jordan v. Jordan.............Esp. N. P. 105, 106............ 494 K Kearslake v. Morgan....... .5 T. R. 513...................315 Kewley v. Ryan................ .2 H. Bl. 343.......... ,.372, 381, 385 King v. May..................’1 Doug. 193.................. 203 Knight v. Duplessis......... 2 Ves. 362................... 109 L Lechmere v. Thorowgood.......3 Mod. 236.....,............... 361 Loveacres v. Blight.... .....Cowp. 355...................102, 112 M McMaster v. Shoolbred.........1 Dall. 173............... 191 McMinn v. Owen........... .2 Esp. 237................. 374 Marbury v. Madison........ .1 Cr. 139.................. 168 Markant v. Twisden............1 Eq. Cas. Ab. 211.......... 118 Marsh v. Evans................1 P. Wms. 668............. 254 Middlewood v. Blakes..........7 T. R. 162.......373, 381, 390, 397 Mills v. Fletcher............1 Doug. 219............. ,376, 380 Moore v. Denn. ..............2 Bos. & Pul. 247............... 118 Morris v. Neighman...........4 Dall. 209................... 38 Moses v. Macferlan...........2 Burr. 1009................... 346 Murdoch v. Potts.............Park Ins. 299.................. 390 Murry v. Wyse............. .2 Vern. 564,,.......Ill O Orr v. Kaines................2 Ves. 193................... 255 Owenson v. Morse.............7 T. R. 64................... 316 P Page’s Case...................5 Co. 52...............,..... 109 Page v. Pendleton............Wythe 127...................... 457 Perry v. Jackson..............4 T. R. 516................. 177 Petrie v. Hannay........... .3 T. R. 418.................. 183 Pringle v. Hartley............3 Atk. 195................374, 380 Puckford v. Maxwell...........6 T. R. 53.................... 315 X CASES CITED. ♦page R Rhodes v. Barnes...............1 Burr. 9................... 296 Right v. Sidebotham............i. 2 Doug. 759..............102, 112 Roberts v. Arthur..............2 Salk. 497.................. 201 Roberts v. Withered............5 Mod. 193.......... .340, 346, 359, 361 Ross v. Norvell................1 Wash. 15..................... 191 Rudgard’s Case.................2 Vent. 22..................... 458 Ryall v. Rolle.................1 Wils. 260.................... 148 Ryall v. Rowles................1 Ves. 361... *................ 144 S Scott v. Hornsby...............1 Call 41....................... 95 Shaw v. Bull...................12 Mod. 594.................... 118 Shelton v. Barbour.............2 Wash. 64..................... 191 Smith v. Harman................6 Mod. 142..................... 198 Spendlove v. Aldrich...........2 Ld. Raym. 1320............... 255 State of Georgia v. Brailsford.3 Dall. 1...................... 457 Stevens v. Cole................Co. Bank. L. 339............... 148 Stitt v. Wardell...............2 Esp. 610...............372, 378, 381 Story v. Strettell.............1 Dall. 11..................... 374 Stot v. Vaughan................Marsh. Ins. 232................ 372 Strithorst v. Graeme...........3 Wils. 145.................... 176 1 T Tanner v. Morse................Cas. temp. Talb. 284........... 118 Tannery. Wyse..................3 P. Wms. 295.................. 118 Tate v. Wellings...............3 T. R. 538................... 184 Telfair v. Stead...............2 Cr. 407...................... 227 Thellusson v. Fletcher.........1 Esp. 73...................... 376 Timewell v. Perkins............2 Atk. 103..................... 117 Tuffnel v. Page................2 Atk. 37.................... 135 Twyne’s Case...................3 Co. 81..................80, 89, 365 U United States v. Fisher........2 Cr. 358....................... 82 United States v. Hamilton......3 Dall. 17..................... 449 United States v. King..........Wall. C. C. 13.................. 88 United States v. La Vengeance.. .3 Dall. 301................92, 174 W jWalcotv. Hall.................3 Vin. Sup. 432......,......... 257 Walton v. Shelly...............1 T. R. 296.................... 286 Ware v. Hylton.................3 Dall. 199.................... 457 Way v. Modigliani........... .2 T. R. 30............370, 378, 381, 389 Wilkins v. Despard.............5T. R. 112.................... 341 Williams v. Smith..............2 Caines 8.................. 381 Wilson v. Mason................1 Cr. 66..................... 287 CASES CITED. xi ♦page Wilson v. Robinson............2 Lev. 91................... 110 Winch v. Keely................1 T. R. 619................. 202 Wooldridge v. Boydell........„1 Doug. 16.......370, 378, 381, 389 Worseley v. Demattos..........1 Burr. 474.................. 84 Wymark’s Qpse.................5 Co. 74.................... 201 CASES DETERMINED IN THE SUPREME COURT OF THE UNITED STATES. i ? ------- FEBRUARY TERM, 1805. Huidekoper’s Lessee v. Douglass, (d) Land titles in Pennsylvania.—Holland Land Company. Under the act of Pennsylvania, of 3d April 1792, for the sale of the vacant lands, &c., the grantee, by warrant, of a tract of land, lying north and west of the rivers Ohio and Allegheny, and Conewango creek, who by force of arms of the enemies of the United States, was prevented from settling and improving the said land, for the space of two years from the date of his warrant, but during that time, persisted in his endeavors to make such settlement and improvement, is excused from making such actual settlement as is described in the ninth section of the act, and the warrant vests in such grantee a fee-simple. This was a case certified from the Circuit Court of the United States, for the district of Pennsylvania, in which the opinions of the judges of that court were opposed. The action was an ejectment to try the title of the “Holland Company ” to a very large tract of land in Pennsylvania, lying north and west of the rivers Ohio and Allegheny, and Conewango creek, purchased of that state, under the act of assembly of the 3d of April 1792 (3 Dall. Laws 209), which act is as follows, viz : An act for the sale of the vacant lands within this commonwealth. Whereas, the most valuable lands within the commonwealth, included within the purchase made from the native Indians, in the year 1768, have been taken up, located and appropriated *for the use of divers pur-chasers, at prices heretofore established by law, and those which re- *■ main unsold and unsettled, being inferior in quality or situation, cannot be sold at the same prices : And whereas, the prices fixed by law for other lands (a) Present, Marshall, Ch. J., Cushing, Paterson, Washington and Johnson, Justices. 3 Cranch—1 1 2 SUPREME COURT [Feb’y Huidekoper v. Douglass. "belonging to the commonwealth are found to be so high as to discourage actual settlers from purchasing and improving the same : § 1. That from and after the passing of this act, the price of all the vacant lands within the limits of the purchase made of the Indians in the year 1768, and all preceding purchases, excepting always such lahds as have been previously settled upon or improved, shall be reduced to the sum of fifty shillings for every hundred acres ; and the price of vacant lands within the limits of the purchase made of the Indians, in the year 1784, and lying east of Allegheny river and Conewango creek, shall be reduced to the sum of five pounds for every hundred acres thereof ; and the same shall and may be granted to any person or persons applying for the same, at the price aforesaid, in the manner and form accustomed under the laws heretofore enacted and now in force. § 2. That from and after the passing of this act, all other lands belonging to this commonwealth, and within the jurisdiction thereof, and laying north and west of the rivers Ohio and Allegheny, and Conewango creek, excepting such parts thereof as heretofore have been, or hereafter shall be, appropriated to any public or charitable use, shall be and are hereby offered for sale to persons who will cultivate, improve and settle the same, or cause the same to be cultivated, improved and settled, at and for the price of seven pounds, ten shillings, for every hundred acres thereof, with an allowance of six per centum for roads and highways, to be located, surveyed and secured to such purchasers in the manner hereinafter mentioned. *0-1 3. That upon the application of any person who may have settled J and improved, or is desirous to settle and improve, a plantation, within the limits aforesaidj to the secretary of the land-office, which application shall contain a particular description of the lands applied for, there shall be granted to him a warrant for any quantity of land within the said limits, not exceeding four hundred acres, requiring the surveyor-general to cause the same to be surveyed for the use of the grantee, his heirs and assigns for ever, and make return thereof to the surveyor-general’s office, within the term of six months next following, the grantee paying the purchase-money, and all the usual fees of the land-office. § 4. That the surveyor-general shall, with the approbation of the governor, divide the lands thus offered for sale, into proper and convenient districts, in such manner as he may think expedient, so that the boundaries of each district, either natural or artificial, may be known, and appoint one deputy-surveyor for each district, who shall give bond and security, as is customary with other deputy-surveyors in this commonwealth, and shall reside within, or as near as possible, to his respective district ; arid every such deputy-surveyor shall, within sixty days next after his appointment, certify to the surveyor-general, the county, township and place, where such deputysurveyor shall keep his office open, for the purpose of receiving warrants, in order that all persons who may apply for lands as aforesaid, may be duly informed thereof ; and every deputy-surveyor who shall receive any such warrant, shall make fair and clear entries thereof in a book, to be provided by him for that purpose, distinguishing therein the name of the person therein mentioned, the quantity of land, date thereof, and the day on which such deputy-surveyor shall receive the same, which book shall be open, at all seasonable hours, to every applicant, who shall be entitled to copies of any 2 1805] OF THE UNITED STATES. 3 Huidekoper v. Douglass. entries therein, to be certified as such, and signed by the deputy-surveyor, the party paying one-quarter of a dollar therefor. *§ 5 . That the deputy-surveyor shall, at the reasonable request p. and proper cost and charges of the respective grantees, in such war- L rants named, proceed to survey the lands in such warrants described, as nearly as may be, according to the respective priorities of their warrants ; provided, that they shall not, by virtue of any warrant, survey any tract of land, that may have been actually settled and improved, prior to the date of the entry of such warrant with the deputy-surveyor of the district, except for the owner of such settlement and improvement ; and having perfected such surveys, shall enter the same in a book, to be kept by the deputy-surveyor, and to be called the survey-book ; and the same book shall remain in his office, liable to be inspected by any person whatsoever who shall demand to see the same, upon the payment of eleven pence for every search ; and the deputy-surveyor shall cause copies of any such survey to be made out and delivered to any person, upon the payment of one-quarter of a dollar for each copy. § 6. That in making any survey by any deputy-surveyor, he shall not go out of his proper district to perform the same, and that every survey made by any deputy-surveyor, without his proper district, shall be void and of non effect. And the surveyor-general and his deputies, are hereby severally directed and enjoined to survey, or cause to be surveyed, the full amount of land contained and mentioned in any warrant, in one entire tract, if the same can be found, in such manner and form, as that such tract shall not contain in front on any navigable river or lake, more than one-half of the length or depth of such tract, and to conform the lines of every survey, in such manner as to form the figure or plot thereof, as nearly as circumstances will admit, to an oblong, whose length shall not be greater than twice the breadth thereof ; and in case any such survey should be found to contain a greater quantity of land than is mentioned in the warrant on which it shall be made, so that such excess be not more than one-tenth of the number of acres mentioned in such warrant, besides the usual allowance for roads and highways, the return thereof Shall, nevertheless, be *admitted under the warrant, provided, the party procuring such return to be made, shall forthwith pay to the receiver-general of the land-office, the price or value of such excess or overplus land, at the same rate at which he paid for the land mentioned in the warrant. § 7. That every deputy-surveyor, to be appointed by virtue of this act, shall, within the month of February in the next year, make and return into the office of the surveyor-general, plots of every survey which he shall have made in pursuance of any warrant, connected together in one general draft, so far as they may be contiguous to each other, with the courses and distances of each line, the quantity of land contained in each survey, and the name of the person for whom the same was surveyed ; and every succeeding year, he shall make a like return of the surveys made in the year preceding. § 8. That the deputy-surveyor of the proper district shall, upon the application of any person who has made an actual settlement and improvement on lands, lying north and west of the rivers Ohio and Allegheny and Conewango creek, and upon suclf person paying the legal fees, survey and 3 5 SUPREME COURT [Feb’y Huidekoper v. Douglass. mark out the lines of the tract of land to which such person may, by conforming to the provisions of this act, become entitled by virtue of such settlement and improvement : provided, that he shall not survey more than four hundred acres for such person, and shall, in making such survey, conform himself to all the other regulations by this act prescribed. § 9. That no warrant or survey, to be issued or made in pursuance of this act, for lands lying north and west of the rivers Ohio and Allegheny and Conewango creek, shall vest any title in or to the lands therein mentioned, unless the grantee has, prior to the date of such warrant, made, or caused to be made, or shall, within the space of two years next after the date of the same, make, or cause to be made, an actual settlement thereon, by clearing, fencing and cultivating, at least two acres for every hundred acres contained in one survey, erecting thereon a messuage for the habitation of inan, and *residing, or causing a family to reside thereon, for the J space of five years next following his first settling of the same, if he or she shall so long live ; and that in default of such actual settlement and residence, it shall and may be lawful to and for this commonwealth, to issue new warrants to other actual settlers for the said lands, or any part thereof, reciting the original warrants, and that actual settlements and residence have not been made in pursuance thereof, and so often as defaults shall be made, for the time and in the manner aforesaid, which new grants shall be under and subject to all and every the regulations contained in this act: Provided always, nevertheless, that if any such actual settler, or any grantee, in any such original or succeeding warrant, shall, by force of arms of the enemies of the United States, be prevented from making such actual settlement, or be driven therefrom, and shall persist in his endeavors to make such actual settlement as aforesaid, then, in either case, he and his heirs shall be entitled to have and to hold the said lands, in the same manner as if the actual settlement had been made and continued. § 10. That the lands actually settled and improved according to the provisions of this act, to whosesoever possession they may descend or come, shall be and remain liable and chargeable for the payment of the consideration or purchase-money at the rate aforesaid, for every hundred acres, and the interest thereon, accruing from the dates of such improvements ; and if such actual settler, not being hindered as aforesaid, by death, or the enemies of the United States, shall neglect to apply for a warrant, for the space of ten years after the time of passing this act, it shall and may be lawful to and for this commonwealth to grant the same lands, or any part thereof, to other, by warrants, 'reciting such defaults ; and the grantees, complying with the regulations of this act, shall have, hold and enjoy the same, to them, their heirs and assigns ; but no warrant shall be issued in pursuance of this act, until the purchase-money shall be paid to the receiver-general of the land-office. ^h-| § 11. That when any caveat is determined by the *board of prop- J erty, in manner heretofore used in this commonwealth, the patent shall, nevertheless, be stayed for the term of six months, within which time, the party against whom the determination of the board is, may enter his suit at common law, but not afterwards ; and the party in whose favor the determination of the board is, shall be deemed and taken to be in possession, to all the intents and purposes of trying tile title, although the other party 4 1805] OF THE UNITED STATES. 7 Huidekoper v. Douglass. should be in actual possession, which supposed possession, shall, nevertheless, have no effect upon the title ; at the end of which term of six months aforesaid, if no suit is entered, a patent shall issue, according to the determination of the board, upon the applicant producing a certificate of the prothonotary of the proper county, that no suit is commenced, or if a suit is entered, a patent shall, at the determination of such suit, issue, in common form, to that party in whom the title is found by law ; and in both cases, the patent shall be and remain a full and perfect title to the lands, against all parties and privies to the said caveat or suit; saving, nevertheless, to infants, femes covert, persons beyond sea, non compotes mentes, and others under disabilities, their respective rights, until twelve months after such disabilities are removed. § 12. That no direct taxes shall be levied, assessed or collected, for the use of this commonwealth, upon or from any of the lands or tenements lying north or west of the purchase made of the Indians, in the year 1768, or the personal .estate found thereupon, for the full space or term of ten years, from and after the passing of this act. § 13. That the following tracts of land shall be reserved for the use of the commonwealth, that is to say, at Presqu’ Isle, formed by Lake Eriei, the island or peninsula which forms the harbor, and a tract extending eight miles along the shore of the lake, and three miles in breadth, so as to include the tract already surveyed by virtue of a resolution of the general assembly, and the whole of the harbor formed by the said Presqu’ Isle, at the mouth of Harbor creek, which empties into the *Lake Erie, and along the shone of the lake, on both sides of said creeek, two thousand acres. *• § 14. That all the lands within the triangle on Lake Erie, purchased from the United States, shall be taken and deemed, and they are hereby declared to be, within the limits of the county of Allegheny. § 15. That it shall and may be lawful to and for the holder and holders of any unsatisfied warrant or warrants, heretofore issued for lands, agreeably to the 7th section of the act, entitled *( an act to alter and amend an act of assembly, entitled an act for opening the land office, for granting and disposing of the unappropriated lands within this state,” passed on the 21st day of December, in the year 1784, to locate the quantity of land for which such unsatisfied warrant and warrants was and were granted, in any district of vacant and unappropriated land within this commonwealth; provided, the owner or owners of such unsatisfied warrants shall be under the same regulations and restrictions, as other owners of warrants taken for lands lying north and west of the Allegheny river and Conewango creek, are made subject by this act, the said recited act, or any other act or acts of the general assembly, to the contrary thereof in anywise notwithstanding. The points upon which the opinions of the judges of the court "below were opposed, were certified to be as follows, viz : 1. Whether, under the act of the legislature of Pennsylvania, passed on the 3d day of April, 1792, *entitled M an act for the sale of the vacant lands within this commonwealth,” the grantee, by warrant of a tract •-of land lying north and west of the rivers Ohio and Allegheny and Conewango creek, who, by force of arms of the enemies of the United States, was prevented from^ settling and improving the said land, and from residing 5 9 SUPREME COURT [Feb’y Huidekoper v. Douglass. thereon from the 10th day of April 1793, the date of the said warrant, until the 1st day of January 1796, but who, during the said period, persisted in his endeavors to make such settlement and residence, is excused from making such actual settlement, as the enacting clause of the 9th section of the said law prescribes, to vest a title in the said grantee ? 2d. Whether a warrant for a tract of land lying north and west of the rivers Ohio and Allegheny and Conewango creek, granted in the year 1793, under and by virtue of the act of the legislature of Pennsylvania, entitled “ an act for the sale of the vacant lands within this commonwealth,” to a person who, by force of arms of the enemies of the United States, was prevented from settling and improving the said land, and from residing thereon from the date of the said warrant until the 1st day of January 1796, but who during the said period, persisted in his endeavors to make such settlement and residence, vests any, and if any, what title, in or to the said land, unless the said grantee shall, after the said prevention ceases, commence, and within the space of two years thereafter, clear, fence and cultivate at least two acres for every hundred acres contained in his said survey, erect thereon a messuage for the habitation of man, and reside, or cause a family to reside thereon, for the space of five years next following his first settling the same, the said grantee being yet in full life ? 3d. Whether a grantee in such a warrant as aforesaid, wrho has failed to make such settlement as the enacting clause of the said 9th section requires, and who is not within the benefit of the proviso, has thereby forfeited his *101 right and title to the said land, until the commonwealth has *taken J advantage of the said forfeiture, so as to prevent the said grantee from recovering the possession of said land, in ejectment against a person, who, at any time after two years from the time the prevention ceased, or at any subsequent period, has settled and improved the said land, and has ever since been in possession of the same ? Dallas, for the plaintiff, contended for three general propositions. 1. That a warrantee (meaning thereby a person claiming under a warrant from the commonwealth) who has been prevented, by force of arms of the enemies of the United States, from improving, settling and residing on the land, but has persisted in his endeavors to do so, during two years from the date of his warrant, is forever and totally released, by the operation of the proviso, from the obligation of making the improvement, settlement and residence described in the enacting clause of the 9th section of the law. 2. If not for ever and totally excused, under the specified circumstances, yet the warrant vests in such warrantee and his heirs, a title to the land under one of three aspects: 1st. Provided, during and for a reasonable time after the period of prevention, he persists in his endeavors to accomplish an improvement, settlement and residence, although his endeavors should not be successful: 2d. Provided he accomplishes the settlement and improvement, within two years, and the residence within five years, after the prevention by hostilities ceased : 3d. Provided he has accomplished the improvement, settlement and residence, at any time before the commonwealth has taken advantage of the forfeiture. 3. The inceptive title of the warrantee gives a right of possession, which 6 1805] OF THE UNITED STATES. 10 Huidekoper v. Douglass. can only be defeated by an act of the commonwealth, taking advantage of a forfeiture for non-compliance with the terms of the grant. I. In order to understand the act of 1792, it will be necessary to take a view of the situation of the state of *Pennsylvania at that period, Her finances were embarrassed, and an Indian war existed on her *-frontiers. Hence, she had two great objects in view, the protection of those frontiers, and the accession of wealth to her treasury. To accomplish the first, no means were so sure as to establish on the frontiers a firm, hardy and vigilant population, bound by their dearest interests to watch and repel the predatory incursions of the Indians. And to attain the second, no means presented themselves so obviously as the sale of the vacant lands. Although the war was raging, at the time when the act passed, yet negotiations were pending, and peace was expected. The general provisions of the act, therefore, especially those which relate to settlement and residence, are predicated upon a state of peace, while the legislature also took care to provide for a state of war. The extent of that provision is the principal subject of litigation. Without resorting to the words, but considering the law: as a contract, what are the motives and ideas which may be reasonably ascribed to the parties ? 1st. As to the state. 1. The settlement might be prevented by two means ; public calamity, or negligence in the grantee. For the one, it was just that the state should answer ; for the other, the grantee. 2. It was unreasonable, for the state to require the same from him who should be prevented, as from him who should not be prevented from making a settlement. • A mere enlargement of time, diminishes, but does not obviate the objection. It does not put both on an equal footing. The man who has spent years in fighting and toiling to obtain a settlement, is still to do just -as much as the man who has stayed at home by his fire-side till war is over, and then purchases his warrant. The former has no credit for his toil and wounds. This construction is evidently contrary to the spirit of the act, which was to *gain hardy adventurers, who should join their exer- r* tions to those of the state and of the United States, to subdue the Indians ; for it totally destroys all motive for such exertions. The state, therefore, might say, and, without doubt, meant to say, to the war warrantee, that a persistence in the endeavor to settle, during the period prescribed, shall be accepted in lieu of actual settlement. That the man who has actually accomplished the settlement and residence, in time of peace, and he 'who shall have persisted in his endeavors to settle and reside for the stipulated time, during a state of war, but who has been prevented by the enemy from accomplishing his settlement and residence, are equally meritorious, and shall be put on the same footing. 2d . As to the warrantee. Would he purchase, during the war, if he was liable to forfeit his warrant although he persists during the limited time, and if all his expenses and dangers were to go for nothing, and if, at the end of the war, he would be in the same situation as if he had remained at home? The situation of the state, then, called for money, population and improvement. The means were a sale of the land, subject to settlement, if not prevented by a public calamity. The words and spirit of the act are conformable to these ideas. The title is, for the sale of vacant lands. The 12 SUPREME COURT [Feb’y Huidekoper v. Douglass. preamble states, that the prices at which they have been heretofore held were found so high as to discourage actual settlers from purchasing and improving. The second and third sections contain the offer of the lands for sale, and the ninth describes the terms. On this overture, companies and individuals became purchasers. Among the rest, the Holland Company, in April 1792, and August 1793, purchased 1162 tracts of 400 acres each, which, by losses upon re-surveys, *and J bounties to actual settlers, are reduced to 776 tracts, which have cost the company $222,071.10 for purchase-money, and (up to the year 1802) $202,000 in expenses, endeavors to settle, and actual improvements. The Population Company also expended nearly the same amount. The consequence was, that the public treasury was supplied ; a bank was established, which furnishes revenues adequate to the whole expenses of the government, so that no taxes have been since imposed; industry and improvements have been stimulated, and the state has advanced rapidly in wealth and prosperity. The persistence aild prevention of the Holland company are admitted. The treaty made with the Indians in 1795, is considered as the epoch from which the two and the five years mentioned in the 9th section begin to run. But there was still further prevention by distance, by the season (for the treaty was ratified in the winter), by intruders (who were pushing in upon the lands, under pretence that the warrants were forfeited by want of settlement within,the two years), and by the construction of the act given by the board of property. How, then, are the terms of the contract to be expounded ? Not by the words (for they are inconclusive and repugnant), but by the nature of the transaction. By the 3d section, a fee-simple is granted; but the 9th section annexes a condition precedent. The warrant shall not vest any title “ unless,” &c. The nature of the transaction, however, gives a possessory title, and an usufructuary property, at least, for the two and the five years, else the warrantee could not go and make a settlement. It is always spoken of in the act as a grant. It may be devised, sold, descend, be taken in execution, &c. By the 9th section, what is given can only be divested by default. The whole estate does not remain in the grantor, until performance of the condition. * *But the settlement and residence for the time mentioned, is not a J sine qua non to vest an absolute title. There are cases within the 9th section, in which the title becomes absolute, although the residence shall not have been completed. The words of the act are, “ reside thereon for the space of five years next following his first settling of the same, if he shall so long live.” If the warrantee, having begun his settlement, should die, before the expiration of the five years, his title is complete. So, if he puts a family on the land to reside, and. dies before the end of the term, and the family quits its residence before the expiration of the five years, the title is absolute. So, if an actual settler shall, by force of arms of the enemies of the United States, be driven from his settlement. And so (as we say), “ if any grantee shall,” by like force, “be prevented from making an actual settlement, and shall persist in his endeavors to make such actual settlement,” during the time allowed for making the same, that is, for two years, “ he and his heirs shall be entitled to have and to hold the said lands, in the same 8 1805] OF THE UNITED STATES. 14 Huidekoper v. Douglass. manner as if the actual settlement had been made and continued.” In each of these cases, the condition is released. If the legislature meant anything less, words were not wanting in which to express their ideas, and here was an opportunity of using them. The particular words of the proviso are important. “ If any grantee shall be preventedthis implies an attempt and failure : “ and shall persist,” implying still the want of success : “ in his endeavors still holding up the idea that the thing is not accomplished; “ to make,” not, until he make, not persist to make, but persist in his endeavors to make, implying a continued attempt, not a performance. “ Shall be entitled to have and to hold, in the same manner as iff Here the words as if, necessarily imply that the thing itself is not done. The first part of the section gives the lands, if the thing is done, but the proviso also gives it, in a certain case, if it be not done, in the same manner as if it had been done. They who contend that the persistence must continue, until the object is accomplished, make the legislature speak this absurd language : persist until *the settlement has been made, and you shall have the land in the same manner as if the set-tlement had been made. But we make them speak much more ra- *■ tionally. If you are prevented by the enemy from making the settlement, but persist in your endeavors for two years, you shall have the land, in the same mannei- as if the settlement had been made. We will take your endeavors for success. If settlement and residence were necessary, in all cases, the proviso is useless. If the legislature meant, by the proviso, only to extend the time, they have been very unfortunate in their language, for there is no expression which indicates such an idea, and it is contradicted by the preceding part of the section, by which the commonwealth reserve the right to grant new warrants as often as defaults shall be made, for the time, and in the manner aforesaid. No time is expressed in the act, but the two and the five years. If the time is to be enlarged, who shall say, how long ? There is no provision for trying by a jury the question, what is a reasonable time. The act contemplates but two cases. An actual settlement, within the time, or a prevention, during the time, by the act of God, or of the public enemy. In both cases, the title was to’ be absolute. The same reason that releases the warrantee who dies, applies more strongly to the warrantee prevented by the eiiemy, and the 10th section puts them both on the same footing. Let us consider what is required by the 9th section, and what is relinquished by the proviso? 1. It requires, within two years, a settlement, by clearing two acres for every hundred, by erecting a habitation and by residing five years. Here is evidently a confusion of terms, by requiring a settlement, consisting of five years’ residence, to be accomplished in two years. *There are also other absurdities in the same section, equally glaring, Thus, it is declared, that in default of such actual settlement, the *■ commonwealth may issue new warrants to other actual settlers; and that if such actual settler shall be prevented from making such actual settlement, he shall be entitled in the same manner as if the actual settlement had been made. 2. What is relinquished. The condition of residence is released by the death of the warrantee, and prevention releases both residence and settlement. The enacting part of the section may be considered as a covenant to settle ; and the proviso as a covenant to convey in case of prevention. 9 16 SUPREME COURT [Feb’y Huidekoper v. Douglass. II. If persistence for two years does not for ever and totally release the condition of settlement, yet the warrant vests a title, under one of three aspects. 1st. Provided, during and for a reasonable time after the period of prevention, he persists in his endeavors to accomplish an improvement, settlement and residence, although his endeavors should not be successful. To suppose the title to be forfeited, although an accomplishment of the condition has been prevented by the enemy, is to make the proviso of no use whatever. But giving a use to the proviso, and supposing it to mean an extension of time, everything is at sea. Every case would have a different rule, and decisions would vary with every jury. No case could be decided without a lawsuit. But if you allow the warrantee to gain a title by persisting, during the war, and for a reasonable time after, although without success, you render the law intelligible, and give effect to every part. *This construction comports with the peculiar expressions of J the act, and is justified by the nature and equity of the case. Endeavors during war would be more expensive than success in time of peace, and equally beneficial to the state. By this means also, you put the war-warrantee and the peace-warrantee upon an equal footing. But the legislature fixed a positive period, and left nothing to discretion. Who shall change the nature of the contract ? Who give discretion to courts and juries ? Who substitute endeavor for performance, in reference to any other time than the legislature contemplated? 2d. The second aspect is, provided he persists, after the war, and accomplishes the improvement in two years, and continues the residence for five years from the cessation of the prevention. This is what is contended for on the other side, but this is not the express contract which fixes the time, as well as the acts which are to be done. It is not a contract which can be implied; for an undertaking to act in two years from the date of the warrant, does not imply an undertaking to act in two years after a war, which may be fifty years from the date of the warrant. The proviso contemplates no new act, no new epoch, but under the specified circumstances gives a title as if the act had been done in the time prescribed. This construction would make the proviso a mere mockery. It would place the warrantee, who had toiled through the dangers of the war, at a heavy expense, in no better situation than if he had used no exertions at all. 3d. The third aspect is, provided he persists during and after the war, and perform the conditions at any *time before the commonwealth -* takes advantage of the forfeiture. This regards the case as a condition subsequent, the estate continuing after the contingency, until the grantor enters and claims. But this is contrary to the words, which call for endeavors, not performance. This construction destroys all limitation of time. Upon the whole, there is no clear, safe, equitable and satisfactory construction, but that which supposes the condition to be released by the impossibility of performance within the time prescribed. III. The inceptive title of the warrantee gives a right of possession, which can only be defeated by an act of the state. All forfeitures are to be construed strictly. And where compensation 10 1805] OF THE UNITED STATES. 18 Huidekoper v. Douglass. can be made, they are never enforced in equity. The forfeiture claimed is entitled to no favor. The contract itself was ambiguous, and rendered more so by official misinterpretations. The price has been paid. Time, labor and money have been expended in improvements, and attempts to set-i tie. The prevention has been by a public calamity, not by private negligence. The operation of the forfeiture is dishonorable to the state. She seizes the land with all their amelioration, to sell them again to a stranger. Even the state herself, therefore, ought not to be countenanced in taking advantage of the forfeiture. *But what pretext can justify a stranger in intruding upon the possession of the warrantee ? This is the case of a trespasser, who L thrusts himself in upon the land, pretending that the warrantee has forfeited his title. Is every person, who chooses to intrude, to be the judge whether the possessor has forfeited his title ? This would encourage forcible entries and riots; riot would grow to rebellion. The peace of the commonwealth is at stake. N o man can acquire a title by his own tort. But turn to the words of the act. “ That in default of such actual settlement and residence, it shall and may be lawful to and for this commonwealth to issue new warrants to other actual settlers, for the said lands, or any part thereof, reciting the original warrants, and that actual settlements and residence have not been made in pursuance thereof,” &c. There must be proof of default; the party must be heard. The commonwealth may, not shall, grant new warrants. It is said, however, that they are to be issued to other actual settlers ; which gives a right to any person to enter on a forfeiture. The terms of the act, as well as the nature of the transaction, show that the case of a warrantee, and not a mere settler, is meant. It supposes a new warrant, where an old one had issued. Actual settler, is a descriptio personae It does not mean a man who has completed, but who contemplates, an actual settlement. This appears from the manner in which the terms actual settler are used in the preamble, *and in the 5th, 8th and 10th sections r*9n of the act, and even in the 9th section itself. *■ The commonwealth may grant new warrants to other actual settlers. Other than whom ? Other than the actual settlers who had failed to make an actual settlement in the manner described in the beginning of that section. It means a person who had purchased with an intention, or under a stipulation, to make an actual settlement. There is no express authority given to any person to enter on a warrantee. Can it be implied, by saying that the state may grant to another actual settler ? Her act must constitute the forfeiture of the old title : her act must grant the new. IS. Tilghman, on the same side, confined his argument principally to the 1 support of the proposition, that a persistence for two years, after the date 1 of the warrant, and in time of war, in endeavors to make a settlement, gave the same title as if the actual settlement had been made and continued. He contended, that revenue and population were equally the objects of the legislature in passing the act. It ought not, therefore, to be construed with a sole view to population. The act, like a will, ought to be so construed as to carry into effect th intention of the legislature, and to give operation to all its parts. 11 20 SUPREME COURT [Feb’y Huidekoper v. Douglass. To understand the true meaning of the proviso of the 9th section, it is necessary to distinguish between settlement and residence. The warrantee is, by the first part of the section, to make a settlement, “ by clearing, fencing and cultivating at least two acres for every hundred, and by *^1 *erecting thereon a messuage for the habitation of man.” Thus a J much was to be done in two years, and this may with propriety be called “ actual settlement.” But this alone was not sufficient to give a title. The party must also “ reside, or cause a family to reside, thereon, five years next following his first settling of the same, if he shall so long live.” Residence is superadded to settlement, which is the principal requisite. It is absurd to say, that residence is comprehended in settlement, because settlement must be within two years from the date of the warrant ; but the residence is to continue five years following the first settlement. The smaller number (2) cannot include the larger number (5), which must be the case, if residence is a part of settlement. It certainly is not. But it is a requisite additional to settlement, and which must be complied with, to complete the title. Settlement may be begun and completed in the last three months of the two years. Residence, the other requisite, is to commence with the inception of the settlement, and to continue five years, unless the party die : so that settlement is one thing, and residence another. Unless they are different, how can the one commence from the other ? If residence be a part of settlement, and not a distinct member of the condition, the death of the grantee, within two years from the date of the warrant, would vest a complete title. A construction plainly inconsistent with the views of the legis-ture. That residence is considered a distinct part of the condition, is evident from other parts of the section. Thus it says : “ And that in default of such actual settlement and residence, it shall and may be lawful,” &c. Again, “ reciting the original warrants, and that actual settlements and residence have not been made.” The proviso also considers settlement and residence as distinct. The party is to persist in endeavors to make an actual settlement-; and if he does so persist, is to hold and enjoy in the same manner as if the actual settle-ment had been made and continued. If actual *settlement included J residence, why say continued ? Settlement is considered as a distinct thing, separately existing, and continued by residence. If the settlement is not made in two years, in peace, is there not a forfeiture ? If so, residence is another essential. If residence is a part of settlement, it must be had in two years ; but residence is to be five years from the first settlement. Then, if you abolish two years, as incompatible with five years, you set all at large ; no time is prescribed for either settlement or residence; because residence is not to be five years from the date of the warrant, but from the first settlement, which may, on this construction, be at any time. There is no means to reconcile the whole, but to construe settlement to be one thing, to be done in two years from the date of the warrant ; and residence to be another, to continue five years from the first settling. Such, then, were the requisites to a complete title. But at the time of making the act, there was an Indian war, which might probably last more than two years. It was necessary, then, for the legislature to do justice as well to the warrantee who paid money, as to the actual 12 1805] OF THE UNITED STATES. 22 Huidekoper v. Douglass. settler: one of whom might, by the bontinuance of the war, be prevented from commencing and completing settlement and residence ; the other be driven from settlement and residence actually commenced. The provision is, that if the actual settler (with or without warrant) shall be driven therefrom, or the warrantee be prevented from making such actnal settlement, “ and shall persist in his endeavors to make such actual settlement as aforesaid” “ then, in either case, he and his heirs shall be entitled to have and to hold the said lands, in the same manner as if the actual settlement had been made and continued.” The plaintiff and defendant are at issue upon a great question : Is the condition to be performed, according to the terms of the enacting clause, at some time? *If this is determined in the negative, in what time is r^9„ the matter substituted in lieu of what was required by the enacting clause, to be performed ? These questions are distinct and independent of each other ; not to be blended together in argument, and if blended, will introduce the utmost confusion. In considering the proviso, it is natural to inquire, 1st. Who are the objects of relief against the condition ? 2d. On what terms, is such relief to be granted ? and 3d. What is that relief ? 1st. The objects of relief under the proviso certainly are persons not having done what was necessary under the former part of the section, to complete their titles ; who had not united settlement and residence ; settlers without warrant; and warrantees, having commenced settlements or not. < 2d. If any such “ actual settler, or any grantee shall be prevented, by force of arms of the enemies of the United States, from making such actual settlement, or be driven therefrom, and shall persist in his endeavors to make such actual settlement as aforesaid, then, in either case, 3d. “ He and his heirs shall be entitled to have and to hold the said lands, in the same manner as if the actual settlement had been made and continued.” The terms of relief are, persisting in endeavors to make such actual settlement as aforesaid. The whole question is as to the legitimate meaning of “persist in his endeavors.” For if the grantee or actual settler complies with the proper construction as to the thing intended to be done, the condition is done away. It is contended, that the party must persist, until settlement and residence are actually achieved. This we say is utterly inconsistent with the letter and spirit of the proviso. Had the legislature intended this, *it f . would have been so expressed, and might have been readily done, by a *-declaration that, during war,, time should not run against the warrantee or settler. Instead of which, a substitute for settlement and residence is plainly introduced. That substitute is a persisting in endeavors to make such actual settlement as aforesaid. Instead of requiring a persisting in endeavors, until settlement and residence actually obtained or made, the law contemplates something short of settlement and residence, which, being performed, was to operate in the same manner as if the actual, settlement and residence had been made and continued. Such actual settlement, in the proviso, is considered as distinct from residence ; and to it, as such, the proviso relates. And if the party persists in his endeavors to make such actual set- 13 24 SUPREME COURT [Feb’y Huidekoper v. Douglass. tlement as aforesaid (that is, clear, fence, cultivate and build, not reside), then he is to hold in the same manner as if the actual settlement had been made and continued; to wit, by residence. In the proviso, residence is nowhere contemplated, except where the effect of persistence in endeavors is declared to be, to hold “ in the same manner as if,” &c. The legislature having thus plainly considered settlement and residence as different things, have declared that persistence in endeavors to attain the one, shall be equivalent to the actual accomplishment of both. The proviso affords relief on the ground, and solely on the ground, that settlement and residence were not had. How strange is their construction ! If the actual settler or warrantee persists in his endeavors, until he actually makes a settlement, with residence, he shall hold the land as if actual settlement had been made and continued. This renders all the words “ in the same manner as if,” &c., entirely nugatory. This is not the case to which the proviso applies. It applies only to a case in which settlement and residence had not taken place, but in which, from a proper consideration of circumstances, the party v as to hold as if, &c., looking to something dther which is to be as if. Nullum simile est idem. As if, does not mean, the same. , *Persisting in endeavors is all the proviso requires. If unsuccess- -* ful, they are still endeavors, within the meaning of the proviso. Attaining the end, is not the only evidence of persisting in endeavors ; else all endeavors must necessarily be successful, as, without success, on their principles, there cannot be no endeavors persisted in. If attaining the end was to be absolutely necessary, why did not the legislature expressly prescribe the end and not the means ? Or rather, why, having already prescribed the end, in the former part of the section, did they say anything of the endeavor (the means) in the proviso ? By the construction on the other side, the only benefit the grantee or actual settler gains from the proviso, is time, during the actual existence of the impossibility to perform ; so that, if the then raging war should last ten years, and the party persist in his endeavors the whole time, his title would still be incomplete, without actual settlement and residence. The legislature never intended to impose such ruinous hardships on persons whose money they had taken, or on actual settlers. If time only was their object, why not give it absolutely, during the war, without requiring a circumstance that must be attended with great expense and trouble to the party ? Why make endeavors and persistence necessary, unless intended as a substitute for settlement and residence? On these principles, the proviso does the party more harm than good ; it was better for him, at once, to fall a victim to the strict letter of the condition. Had these principles been fairly and clearly avowed and stated in the act, would any man, flagrante bello, have paid his money for warrants ? No. The state would have remained involved in debt, until the close of the war. But it is said, you are not to persist in your endeavors during war, but you are to begin, after the peace. There is nothing of this sort in the law ; and why, after peace, is persistence required ? Why should not the enacting * *clause, after some certain time, recur in full force, if this was the J intention ? Why not say, that during war, and for such a time after 14 1805] OF THE UNITED STATES. 26 Huidekoper v. Douglass. ' peace, the condition shall not run against you ? Surely, the persistance in endeavors to make a settlement refers to the time during which a hindrance existed ; and cannot apply to a time when there would be nothing to hinder the compassing the thing itself. What is the relief granted ? They say, it is only time ; a suspension of the forfeiture, during the war. There is no idea of this kind held up in the law. Instead of dispensing with a forfeiture, it dispenses with the condition. It declares, that if something is done, it shall amount to a performance of the condition, and the party shall hold in the same manner as if the condition itself had been performed. It is not enough to say, that the general intention and spirit of the law is only to suspend the forfeiture for a time. Such spirit and intention must be shown and extracted from the bowels of the act. By our construction, viz., that two years’ persistence from the date of the warrant gives a complete title, everything is rendered intelligible and consistent, and every word of the act has its proper meaning and effect. But upon theirs, all is confusion and inconsistency. They confound the larger with the smaller number ; they make the legislature speak without any meaning, and they reject whole passages of the law. If it is settled, that persistence in endeavors to make actual settlement, is a performance of the condition, how long 4s such persistence to be ? Surely, two years only from the date of the warrant, that being the time within which, by the enacting clause, the settlement is to be made, and as persistence is a substitute for settlement, must be for the same term, and not longer. *The act affords no other terms, no other rule of construction. * Persistence cannot apply to the five years’ residence, because there can L ‘ be no residence without settlement ; and when there had been a fruitless perseverance, for two years, in endeavors to attain a settlement, there cannot, in the nature of things, be a persistence to attain residence ; for settlement being out of the question, there cannot be residence, which presupposes settlement, and which cannot exist without settlement. Besides, the proviso excludes all ideas of endeavor being applied to residence ; they are attached to settlement, and are to operate as if actual settlement had been made and continued. Consequently, endeavors are only to be commensurate with the time required for settlement, viz., two years from the date of the warrant. McKean (Attorney-General of Pennsylvania), contrà.—The defeat of Harmer in 1790, and of St. Clair in 1791, show that the power of the United States, aided by that of Pennsylvania, was insufficient to protect that part of the country. The view of the legislature, therefore, was the settlement, not the sale of the lands. They reduced the price from $80 to $20 per 100 acres. Settlement was not a condition subsequent, but precedent ; or rather, it was a part of the consideration of the sale. With the same view, the legislature reduced the size of the tracts from 1000 to 400 acres, so that on every tract of 400 acres theymight have a soldier. It was not their intention, that a large tract should be purchased by any one person or body of men. They meant to have a family upon every tract of 400 acres. The Holland Company purchased 1162 tracts, which was to produce 1162 soldiers, dis IS 27 SUPREME COURT [Feb’y Huidekoper v. Douglass. tributed among the same number of tracts. The object was, that the country should be settled, during the war, if possible, so as to form a barrier against the incursions of the Indians. But it is said, a peace was in contemplation. If so, why did they enact the proviso ? why stipulate for immediate settlement? why oblige purchasers to persist in their endeavors? Immediate settlement was the object; and if so, they could not mean to limit the * perseverance to *two years ; they meant a perseverance as long as J there was any obstacle. Everything in the act shows this to be their meaning. Tne preamble states that the price at which they had been held was so high as to discourage, not purchasers, but actual settlers. The 2d section offers the lands “ for sale to persons who will cultivate, improve and settle the same, or cause the same to be cultivated, improved and settled.” The 3d section declares, that “upon the application of any person who may have settled and improved, or is desirous to settle and improve, a plantation, within the limits aforesaid, to the secretary of the land-office, there shall be granted to him a warrant for any quantity of .land within the said limits, not exceeding 400 acres, requiring the surveyor to cause the same to be surveyed for the use of the grantee, his heirs and assigns for ever.” The 5th section prohibits, the deputy-surveyor, by virtue of any warrant, to survey any tract of land that may have been actually settled and improved, prior to the date of the entry of such warrant with the deputy-surveyor of the district, except for the owner of such settlement and improvement. The 8th section authorizes the deputy-surveyor, upon application of any person who has made an actual settlement and improvement, to survey and mark out the lines of the tract to which such person may, by conforming to the provisions of this act, become entitled, by virtue of such settlement and improvement, provided it does not exceed 400 acres. The 10th section provides, that the lands thus actually settled and improved, according to the provisions of this act, shall remain liable for the purchase-money and interest from the dates of the improvements. And if such actual settler, not being hindered as aforesaid by death, or the enemies of the United States, shall neglect to apply for a warrant, in ten years after the passing *of this -* act, the commonwealth may grant the same lands to others, by warrants reciting such defaults. The 9th section contains a condition precedent, and if it be not strictly complied with, the purchaser has not title. It is a part of the contract, made with his eyes open. The act must be construed as a contract. The several parts must be considered together. The second and third must refer to the ninth section, and be controlled by it. What is a condition precedent ? It is a condition to be performed, before the estate can vest. As, if a man grant that if A. pay 100 marks before such a day, he shall have the land. No title will vest, until the 100 marks are paid. It has been considered as a condition precedent, by every judge who has passed sentence upon it. Thus, Judge Yeates, in giving his opinion in the case of the mandamus, says, “ It is admitted on all sides, that the terms of actual settlement and residence are, in the first place, precedent, conditions to the vesting of absolute estates in these lands, and I cannot bring myself to believe, that they are dispensed with, by unsuccessful efforts, either in 16 1805] OF THE UNITED STATES. 29 Huidekoper v. Douglass. the case of warrant-holders or actual settlers. ”( the actual settler who has been driven from his settlement. He is not to persist in his endeavors at residence, or, in other words, to continue his settlement, but is to hold the land. From the warrantee who has been prevented from making a settlement, no endeavors at residence are required. He is to “ persist in his endeavors,” not to make and to continue such actual settlement, but “ to make such actual settlement as aforesaid.” And if he does persist in those endeavors, he is to hold the land, “ as if the actual settlement had been made and continued.” The construction of the defendant would make the legislature say, in substance, that if the warrantee shall persist in endeavoring to accomplish a particular object, until he does accomplish it, he should hold the land, as if he had accomplished it. But independent of the improbability that the intention to dispense only with the time in which the condition was to be performed, would be expressed in the language which has been noticed, there are terms used, which seem to restrict the time during which a persistence in endeavors is required. The warrantee is to persist in his endeavors “ to make such actual settlement as aforesaid.” Now, “ such actual settlement as aforesaid,” is an actual settlement within two years from the date of the warrant. As it could only be made within two years, a persistence in endeavoring to make it, could only continue for that time. If, after being prevented from making an actual settlement and persisting in endeavors, those endeavors should be successful, within the two years after which the person should be driven off, it is asked, what would be his situation ? The answer is a plain one. By persisting, he has become an actual settler ; and the part of the proviso which applies to actual settlers protects him. If, after the two years, he should be driven off, he is still protected. The application of external violence dispenses with residence. The court feels itself bound *to say so, because the proviso contains J a substitute, which, in such a state of things, shall be received instead of a performance of the conditions required by the enacting clause ; and of that substitute, residence forms no part. In a great variety of forms, and with great strength, it has been argued, that the settlement of the country was the great object of the act; and that the construction of the plaintiff would defeat that object. That the exclusive object of an act to give lands to settlers, would be the settlement of a country, will be admitted ; but that an act to sell lands to settlers, must have for its exclusive object the'settlement of the country, cannot be so readily conceded. In attempting to procure settlements, the treasury was certainly not forgotten. How far those two objects might be consulted, or how far the'one yielded to the other, is only to be inferred, from the words in which the legislative intention had been expressed. How far the legislature may have supposed the peopling of the district in question to have been promoted by encouraging actual settlements, though a subsequent residence on them should be rendered impracticable by a foreign enemy, can only be shown by their own language. At any rate, if the legislature has used words, dispensing with residence, it is not for the court to say, they could not intend it, unless there were concomitant expression, which should explain those words in a manner different from their ordinary import. 42 1805] OF THE UNITED STATES. 70 Huidekoper v. Douglass. There are other considerations in favor of the construction to which the court is inclined. This is a contract; and although a state is a party, it ought to be construed according to those well-established principles which regulate contracts generally. The state is in the situation of a person who holds forth to the world the conditions on which he is willing to sell his I property. *If he should couch his propositions in such ambiguous terms, that they might be understood, differently, in consequence of L which sales were to be made, and the purchase-money paid, he would come with an ill grace into court, to insist on a latent and obscure meaning, which should give him back his property, and permit him to retain the purchasemoney. All those principles of equity, and of fair dealing, which constitute the basis of judicial proceedings, require that courts should lean against such a construction. It being understood that the opinion of the court on the two first questions, has rendered a decision of the third unnecessary, no determination respecting it has been made. It is directed, that the following opinion be certified to the circuit court. Certificate of the Opinion.—1st. That it is the opinion of this court, Jhat under the act of the legislature of Pennsylvania, passed the 3d day of April, A. D. 1792, entitled “ an act for the sale of the vacant lands within this commonwealth,” the grantee, by a warrant of a tract of land lying north and west of the rivers Ohio and Allegheny and Conewango creek, who, by force of arms of the enemies of the United States, was prevented from settling and improving the said land, and from residing thereon from the 10th of April 1793, the date of the said warrant, until the 1st of January 1796 ; but who, during the said period persisted in his endeavors to make such settlement and residence, is excused from making such actual settlement as the enacting clause of the 9th section of the said law prescribes to vest a title in the said grantee. 2d. That it is the opinion of this court, that a warrant of a tract of land lying north and west of the rivers Ohio and Allegheny and Conewango creek, granted in the year 1793, under and by virtue of an act of the legislature of Pennsylvania, entitled “ an act for selling the vacant lands in this commonwealth,” to a person, who, by force of arms of the enemies of the United States, was *prevented from settling and improving the said land, and from residing thereon from the date of the said warrant until L the 1st of January 1796, but who, during the said period, persisted in his | endeavors to make such settlement and residence, vests in such grantee a । fee-simple in the said land, although, after the said prevention ceased, he did not commence, and, within the space of two years thereafter, clear, fence and cultivate at least two acres for every hundred acres contained in his survey for the said land, and erect thereon a messuage for the habitation of man, and reside, or cause a family to reside thereon, for the space of five years next following his first settling of the same, the said grantee being yet in full life.1 1 The case was subsequently tried in the circuit court on these principles, and resulted in a verdict in favor of the plaintiff. 4 Dall. 392; 1 W. C. C. 258. Thus establishing the validity of the title of the Holland Land Company. 43 72 SUPREME COURT [Feb’y Huidekoper v. Douglass. Johnson, J.—I concur in the decision given by the court in this case ; but there was a question suggested and commented on in the argument, which has not been noticed by the court, but which appears to me to merit some consideration. It was inquired by the counsel for the defendant, should the court adopt the principle that persistence for two years is to be substituted for an actual settlement and residence, what is to be the effect of a partial prevention? Is the warrantee to be subjected to the necessity of making good his settlement, should the prevention cease or commence at any point of time during the two years, without any, or under what, limitation ? It is undoubtedly true, that any construction of a statute which will produce absurdities, or consequences in direct violation of its own provisions, is to be avoided. It were better not to depart from their literal sign iication, than to involve consequences so inconsistent with the nature and very idea of legislation. But it does not appear to me, that any embarrassment will attend the construction of this act which the court has adopted; that the case of a partial duration of the existence of the preventing cause is not within the view of the proviso; that it is not excepted from the operation of the enacting clause. It would be absurd, to impose upon the warrantee the necessity of performing in a few months, perhaps, at the most inconvenient season of the year, a condition for which the act proposes to hold out to him an indulgence *of two years; when prevented too by a cause ■* not within his control, and against which the state was bound to protect him. If such were the case now before the court, I should be of opinion, that we must resort to general principles for a decision. With regard to the performance of conditions, it is a well-known rule, that obstructions interposed by the act of God, or a public enemy, shall excuse from performance, so far as the effect of such preventing cause necessarily extends. In cases of partial prevention, I should, therefore, be of opinion, that it would be incumbent upon the warrantee to satisfy the court that he had complied with the conditions imposed by the act, so far as he was not necessarily prevented by the public enemy. It may appear singular, that a deficiency of a single day, perhaps, should produce so material an alteration in the rights or situation of the warrantee. But the legislature of Pennsylvania were fully competent to make what statutory provisions they thought proper upon the subject; and the court is no further responsible for the effect of the words which they have used to express their intent, than to endeavor to give a sensible and consistent operation to them, in every case that can occur. 44 1805] ' OF THE UNITED STATES. 73 United States v. Hooe et al. Priority of the United States.—Costs. The United States have no lien on the real estate of their debtor, until suit brought, or a notorious insolvency or bankruptcy has taken place; or, being unable to pay all his debts, he has made a voluntary assignment of all his property; or, the debtor having absconded, concealed or absent* ed himself, his property has been attached by process of law.1 A mortgage of part of his property, made by a collector of the revenue, to the surety in his official bond, to indemnify him from his responsibility as surety on the bond, and also to secure him from his existing and future indorsements for the mortgagor at bank, is valid against the United States, although it turns out that the collector was unable to pay all his debts, at the time the mortgage was given, and although the mortgagee knew, at the time of taking the mortgage, that the mortgagor was largely indebted to the United States.2 Costs are not to be awarded against the United States. Error to the Circuit Court of the district of Columbia. (Reported below, 1 Cr. C. C. 116.) Mason, attorney of the United States for that district, on the 17th of August 1801, filed a bill in equity against Robert T. Hooe, W. Herbert, John C. Herbert, and the executors, widow and heirs .of Col. John Fitzgerald, late collector of the customs for the port of Alexandria, and obtained an injunction to prevent the sale of certain real *estate, in Alexan- . dria, advertised for sale by W. and J. C. Herbert, under a deed of *-trust made by Fitzgerald for the indemnification of Hooe. The material facts appearing upon the record were, that Fitzgerald, upon being appointed collector, executed a bond to the United States, on the 10th of April 1794, with Hooe as surety, in the penalty of $10,000, for the faithful performance of the duties of his office. In April 1798, he was found to be greatly in arrears, and upon a final adjustment of his accounts, on the 15th of August 1799, the balance against him was $57,157. On the 16th of January 1799, Hooe having knowledge that Fitzgerald was largely indebted to the United States, but believing that he had sufficient property to discharge the debt, and Fitzgerald being desirous of borrowing money from the bank of Alexandria, to meet the drafts of the treasury of the United States, and for other purposes, made a deed of trust to W. and J. C. Herbert, reciting that Hooe had become surety for Fitzgerald in the bond to the United States, and Fitzgerald proposing, when he should wish to obtain a loan of money from the bank of Alexandria, to draw notes, to be indorsed by Hooe, whereby the latter might be liable and compelled to pay the same, and the former being desirous of securing and indemnifying Hooe from all damages, costs and charges yvhich he might, at any time thereafter, be subject and liable to, by reason of any misconduct of Fitzgerald in the discharge of his duty as collector, or for or on account of any notes drawn by him for his particular use and accommodation, and indorsed by Hooe, and negotiated at the bank of Alexandria. The indenture then witnessed, that for those purposes, and (a) Present, Marshall, Ch. J., Cushing, Paterson, Washington and Johnson, Justices. 1 See note to United States v. Fisher, 2 Cr. debtor’s property, it overreaches the general 858. . lien of a judgment. Thelusson v. Smith, 2 2 But although the priority of the United Wheat. 396. States is subject to a specific lien upon the 45 14 SUPREME COURT United States v. ïïooe. [Feb’y in consideration of the trusts and confidences therein after expressed, &c., and of one dollar, &c., Fitzgerald bargained and sold, &c., to the trustees, W. and J. C. Herbert, the real estate therein described, to have and to hold the same to them, and the survivor of them, &c., “ in trust, to and for the uses and purposes hereinafter mentioned, and to and for no other use and purpose whatsoever; that is to say, in case he the said John Fitzgerald shall neglect any part of his duty as collector of the said port of Alexandria,” &c., “ or in case any note or notes so drawn, indorsed and negotiated at the bank of Alexandria, for the particular use *and accommodation J of him the said John Fitzgerald, shall not be taken up and discharged by him, when the same shall become payable ; that in either case, as soon as any demand shall be made upon him the said R. T. Hooe,” &c., “ for the payment of any sum or sums of money which ought to be paid by the said John Fitzgerald,” &c., then the trustees should, upon notice given them by Hooe of such demand, proceed to sell the property for ready money, and after paying the expenses of sale, should pay and satisfy the sum or sums of money so demanded of Hooe, either as security for Fitzgerald’s due and faithful execution of the office of collector of the said port of Alexandria, or as indorser of any note or notes so drawn by Fitzgerald, “ and negotiated at the bank of Alexandria for the particular accommodation of the said John Fitzgerald ; and lastly, to pay over to him the surplus. And in further trust, that if Fitzgerald,should duly keep Hooe indemnified, &c., and should duly pay the several notes which should be so drawn by him, and indorsed by Hooe, and negotiated at the said bank, “ for the particular accommodation of him the said John Fitzgerald, as the same shall become payable,” then the trustees should reconvey, &c. Hooe had indorsed Fitzgerald’s notes at the bank to a large amount, and at the time of his death, there were unpaid two notes of $1000 each, and one of $1800, one of which for $1000, together with interest upon the whole, amounting to $288.94, was afterwards paid by Mr. Keith, one of the executors, in order to prevent a sale of the property under the trust. There was also evidence tending to show that the money borrowed from the bank upon Hooe’s indorsement, was applied in discharge of warrants drawn by the treasury upon Fitzgerald. Fitzgerald died in December 1799, having by his will directed his real estate to be sold for the payment of his debts. There was no positive «evidence of his insolvency. The bill charged, that he died insolvent, and that the United States had a right, in preference to all others, to apply his property to the discharge of the debt, and if there should be a deficiency, to resort to the surety for the balance, so far as the penalty of the bond would justify ; *and that J the deed of trust was fraudulent as to the United States. On the 1st of May 1802, the injunction was dissolved by consent, and an interlocutory decree entered, ordering the trustees to pay the proceeds of the sale into court, subject to future order touching the contending claims of the United States and Hooe. At November term 1802, the court passed the following decree. “ The objects of the bill filed in this cause were to set aside a deed, executed on the 16th of January 1799, by John Fitzgerald to William Herbert and John Carlyle Herbert, conveying certain property therein mentioned, in trust, for 46 1805] OF THE UNITED STATES. 76 United States y. Hooe. the purpose of indemnifying Robert Townsend Hooe, as indorser of certain notes negotiable in the bank of Alexandria, and as surety of John Fitzgerald, in his office of collector of the port of Alexandria ; to oblige the said trustees to account with the United States for the said real property, and to compel the executors to account for the personal estate of the said John Fitzgerald, and to pay the same to the United States towards the discharge of the balance due from him ; and further to restrain and enjoin the said trustees from making sale of the said real property. “An injunction for the said purpose was granted by one of the judges of this court, in vacation ; and afterwards, viz., at April term 1802, after the appearance of the defendants, who were of full age, an agreement was made, and entered on the records and proceedings of this court, to the following effect, viz., that so much of the former order of this court as restrained the defendants, W. Herbert and John C. Herbert, from selling the property in the deed of trust, in the bill mentioned, be discharged ; and it was further decreed and ordered, that the said trustees should pay the proceeds arising from the sale of the said property, or of any part thereof, into this court, subject to the future order of the court, touching the contending claims of the United States and of R. T. Hooe, one of the defendants to the said bill: And now, at November term 1802, the said cause came *on, by con-sent of parties, and by order of the court, on the bill, and on the L answers of the defendants (those of the infants being taken by their guardians, appointed for that purpose), and on the exhibits in the said bill and answers referred to, and on those afterwards admitted, and the arguments of counsel being heard in the said cause, and the same being by the court fully considered : It is the opinion of the court, that the deed of trust, in the said bill mentioned, was made bond and for a valuable consideration, and was fairly executed by the said John Fitzgerald, to indemnify and save harmless the said R. T. Hooe from all loss and damage, by reason of his indorsement of several notes, negotiated at the bank of Alexandria, amounting to the sum of $3800, to enable the said John Fitzgerald to pay that sum to the United States; which appears to have been paid accordingly ; and also, to indemnify and save harmless the said R. T. Hooe against all loss and damage, by reason of his having become bound in a bond, in the penalty of $10,000, payable to the United States, as security for the said John Fitzgerald’s faithful performance and due discharge of the office of collector of the customs in the district of Alexandria. That there does not appear to have been any fraud in the said parties, or either of them, and that the said deed is not invalidated by any law of the United States. “ It is, thereupon, by this court, decreed and ordered, that the bill in this cause, as to all the defendants, except R. T. Hooe, W. Herbert and J. C. Herbert, be retained for the further order and decree of this court, and that as to the said defendants, R. T. Hooe, W. Herbert and J. C. Herbert, the said bill be dismissed, with costs to the said defendants. And as to the money which has arisen from the sale of the said real property, the net amount of which is $14,318.66, after deducting the charges of the sale, and which has been, by the order of this court, deposited by the clerk thereof in the bank of Alexandria; this court doth decree and order, that the said clerk do pay the sum of $4318.66, part thereof, to the said trustees, W. r*^ Herbert and J. C. Herbert, to be by them applied to the discharge *of *■ 47 78 SUPREME COURT United States v. Hoôe. [Feb’y the sum of $3127, due upon certain notes negotiated in the bank of Alexandria, on which the said R. T. Hooe was an indorser for the said John Fitzgerald ; and also to the repayment to the executors of the said John Fitzgerald, of the sum of $1185, advanced and paid by them to the bank of Alexandria, for and on behalf of the said R. T. Hooe, in part payment of the notes negotiated in the said bank for the said John Fitzgerald, and indorsed by the said R. T. Hooe, which it was intended the said R. T. Hooe should be indemnified against by the said deed ; and the residue, if any there should be, of the said sum of $4318.66, to be paid by the said clerk into the treasury of the United States, in discharge of so much of the balance due from the estate of the said John Fitzgerald; and that as to the residue of the proceeds of the said sale, being the sum of $10,000, the t said clerk do pay the same into the treasury of the United States, expressly in discharge of the said sum of $10,000, for which the said R. T. Hooe is bound in the bond, which, in the said bill and answers is referred to, and to go also in discharge of so much of the claim of the United States against the said John Fitzgerald, and the same is decreed and ordered accordingly. To reverse this decree, a writ of error issued returnable to February term 1803, which was dismissed, for want of a statement of the facts upon which the decree was founded. (1 Cr. 318.) The November term 1802, of the circuit court, at which the original decree was entered, being continued by adjournment to April 1803, Mason, after the dismissal of the writ of error, moved the court below to make a statement of the facts upon which the decree was founded, to be sent up with a new writ of error; and urged, that as it was, in contemplation of law, the same term in which the decree was made, it was competent for the court to open it for that purpose. But the court, being of opinion, that by the * _ writ of error, the record was completely removed, *and the decree -• thereby made absolute, refused to make the statement. A new writ of error was sued out by the United States, returnable to February term 1804 ; upon the return of which— Swann, for the defendant in error, contended, that the late act of congress of 3d March 1803 (2 U. S. Stat. 244), did not apply to this case, because it was passed after the final decree rendered ; and that the court was still precluded from looking into this case, and correcting the errors in the decree, if any such existed, without a statement of the facts upon which the decree was founded ; but— By the Court.—The words of the act are, “ that from all final judgments or decrees, rendered .or to be rendered, in any circuit court,” “ in any cases of equity,” &c., “ an appeal shall be allowed,” “ subject to the same rules, regulations and restrictions, as are prescribed in case of writ of error.” A perfect analogy exists between the cases of appeals and of writs of error, as to the time in which they may be granted, and the judge who can grant the one, may allow the other. The act of congress comprehends past cases as well as future. The cause was continued for argument, and at this term (Saturday, February 23d, 1805), was argued by Mason, for the United States, and by C. Lee and Swann, for the defendants in error. < 48 1805] OF THE UNITED STATES. 79 United States v. Hooe. Mason, after observing that the evidence did not support the allegation that the money borrowed of the bank, upon Hooe’s indorsements, was applied to the use of the United States, contended, 1. That the deed was fraudulent as to all the world, because it empowered Fitzgerald to borrow money *upon it, for his own use, while it protected the property from pgQ his creditors. 2. That Hooe has no preference to the United States ; L and even if the deed was not fraudulent as to all the world, yet Hooe stands in such a situation that he must be postponed to the United States and all other creditors. 1. Hooe admits that he had notice of Fitzgerald’s default, to at least the amount of $30,000, but the exact amount is unimportant. . And although, in his answer, he gives an opinion as to the value of Fitzgerald’s estate, at the date of the deed, yet he admits, that such as it then was, it now is, excepting any depreciation which it may have suffered. The deed, inasmuch as it contains a power to raise money upon it, in future, for his own use, is a deed in trust for himself, and therefore, fraudulent, upon general principles of law. His power to borrow money upon it, is unlimited by anything but the value of the property and the good will of Hooe ; and the money thus raised upon it might have been applied exclusively to his own use. The words of the statute of 13 Eliz. c. 5, which have, in substance, been inserted into the Virginia code of laws, are large enough to take in this case ; and the cases decided under it clearly apply to the present deed. Indeed, that part of the statute which makes such deeds void as to creditors, is no more than a declaration of the pre-existing rule of the common law. 2 Bac. Abr., tit. Fraud; 2 Com. Dig., tit. Covin. The 5th sign of fraud mentioned in Twynds Case, 3 Co. 81 b, is, that there “was a trust between the parties ; for the donor possessed all, and used them as his proper goods, and fraud is always apparelled and clad with a trust, and a trust is the cover of fraud.” And.it is unimportant, whether the trust be expressed or implied. Every gift made on a trust is out of the proviso of the act. Here, it was part of *the trust, that Fitzgerald should raise money upon the deed, to his own use; and a deed which L covers the property from his creditors, and gives the grantor the whole benefit and use of it, is the very kind of deed which the statute meant to avoid. If, then, the deed is void as to creditors, Fitzgerald is dead, and the United States must be preferred in payment. 2. Hooe cannot be preferred to the United States, in consequence of this deed, even supposing it not to be fraudulent under the statute of Elizabeth, but must be postponed to the United States and all other creditors. This case stands on the same ground as a bond given for duties, in which case it is enacted by the act of 4th of August 1790, § 45 (1 U S. Stat. 169), that “ in all cases of insolvency, or where any estate in the hands of executors or administrators shall be insufficient to pay all the debts due from the deceased, the debt due to the Unite’d States, on any such bond, shall be first satisfied.” The insolvency here mentioned, means an inability to pay all his debts, and is so expounded by the act of 2d of May 1792, § 18 (1 U. S. Stat. 263), in which it is “ declared, that the cases of insolvency in the said 44th (45th) section rilentioned, shall be deem.ed to extend as well to cases in which a debtor, not having sufficient property to pay all his or her debts, shall have made a voluntary assignment thereof, for the benefit of his or 3 Cranch—4 49 81 SUPREME COURT [Feb’y United States v. Hooe. her creditors, or in which the estate and effects of an absconding, concealed or absent debtor, shall have been attached by process of law, as to cases in which an act of legal bankruptcy shall have been committed.” A voluntary assignment, for the benefit of his creditors, made by a debtor, unable to pay all his debts, is one of the cases in which the United States are to have a preference. The word * voluntary ” does not mean, without consideration, but without compulsion of law, as in cases under a bankrupt law. A deed made to secure a just debt may, in this sense of the * 1 word, be a voluntary deed of assignment. The instant a man *makes such a voluntary assignment, the preference of the United States attaches, if, upon subsequent inquiry, it shall appear that he is unable to pay all his debts. The act of 2d of March 1799, § 65 (1 U.. S. Stat. 676), has the same words, explanatory of the term insolvency, with those of the 18th section of the act of 1792. (Ibid. 263). The legislature did not mean to confine it to cases of insolvency, under a bankrupt or insolvent law of any of the states, or of the United States, nor to voluntary conveyances of all the property of a debtor, for the benefit of his creditors. In the present case, all the property remains in the same state in which it was at the time of the deed, and it is not contended, that it is sufficient to pay all the debts ; for if it is, Hooe can receive no injury ; but if it is insufficient, then he can derive no benefit, until the United States are first satisfied. We do not contend that the United States had a lien upon the property. That is a distinct question, and has been decided by this court, at the present term, in the case of United States v. Fisher et al. (2 Cr. 358.) But it is right, that the interest of all should prevail over that of an individual. We admit,, that Fitzgerald had the right to sell and alien the property, but it does not follow, that he could, by a mortgage, or an assignment, prefer a particular creditor to the United States. The object of the legislature was, that if a man is unable to pay all his debts, and attempts to give a particular preference, his hand shall be stopped, until the debt due to the United States shall be satisfied. If it turn out that he was actually insolvent, the United States, and not the individual creditor, shall have the preference. The object of the deed is, that if Fitzgerald’s estate should be insufficient * to Pay a^ his. debts, Hooe shall be preferred. *But the act of con-J gress says, that in that event, the United States shall be preferred. The deed and the act are inconsistent with each other, and the deed must yield to the act. Among individual creditors, he had a right to prefer one over another, and such deeds would, have been effectual, saving the priority of the United States. This question is the same as if it had arisen upon a bond given for duties; for by the act of 3d of March 1797, §5 (1 U. S. Stat. 515), it is enacted, “ that where any revenue officer, or other person, hereafter becoming indebted to the United States, by bond or otherwise, shall become insolvent,” “the debt due to the United States shall be first satisfied; and the priority hereby established, shall be deemed to extend as well to cases in which a debtor, not having sufficient property to pay all his debts, shall make a voluntary assignment thereof,” &c., “as to cases in which an act of legal bankruptcy shall be committed.” This is a voluntary assignment, and Fitzgerald died insolvent. It is not necessary that he should have been so, at the time of executing the deed. 50 1805] OF THE UNITED STATES. 83 United States v. Hooe. If he become so afrerwards, and before the trust is executed, it is sufficient. It is the intention of the law, if there is an actual insolvency, that all priorities should yield to that of the United States. The United States, therefore, have a right to the whole of Fitzgerald’s estate, in the first place ; and if that is insufficient to pay the debt, they may resort to Hooe for the whole penalty of the bond, if necessary. C. Lee and Swann, contra, contended, 1st. That the deed was made bond fide, and for a valuable and good consideration, and therefore, valid upon general principles both of law and equity. 2d. That it was not invalidated by any statute of the United States. *1. Indemnity is a good consideration, within the statute of Eliz. . ~Worseley n. Demattos, 1 Burr. 474, to the whole of which case the L attention of the court is requested, because, in almost every part, it is applicable to the present. The deed was also bond fide. There is no evidence that Hooe knew of Fitzgerald’s inability to pay his debts, at the date of the deed. Indeed, there is no positive evidence of the insolvency of the estate, even at this moment. It has none of the marks of fraud mentioned in Twyne's Case. 1. It is only for a part, perhaps, not a third part, of his estate. 2. Although Fitzgerald remained in possession, yet, it being real estate, possession was no mark of fraud, and could not deceive and defraud others, because the deed must of necessity be upon record. 3. It was not made, secretly. 4. It was not made pending any process against Fitzgerald. 5. Here was no secret trust for the benefit of the grantor. 6. It contains no unusual clauses in support of its honest and fair intentions, which, Lord Coke says, always induce suspicion. The whole evidence in the case shows, that the only intention of the parties was that which is expressed fully and fairly in the deed. He had a right to indemnify Hooe, at the time of giving the bond, and it can make no difference, whether he executed the deed at that time or afterwards; the consideration was equally good at one time as at the other. It could be no fraud in Hooe, to wait for security as long as he thought himself safe ; and it could be no fraud in Fitzgerald, to give a security, which he was bound in honor and conscience to give, whenever it should be demanded. Mason, in answer to a question from the - Chief Justice, whether there was any act of congress which subjected the lands of the debtors of the United States to a specific lien, said, he knew of none, unless it was the act of 11th July 1798, § 15. (1 U. S. Stat. 594.) But in the present case, Fitzgerald, by his will, charged his lands with the payment of his debts; and if he had not, they would have been liable to an elegit. *Chief Justice.—I have considered the act of 1798; it only creates r* a lien when a suit is commenced. L Monday, February 25th, 1805. Marshall, Ch. J.—I am directed by the court to inform the counsel in this case, that they do not wish to hear any argument from the counsel of the defendants in error, upon the general question of fraud, being satisfied on that point. The court also wishes to draw the attention of the counsel, to the question, whether there is any evidence of Fitzgerald’s insolvency in the record. 51 85 SUPREME COURT United States v. Hooe. [Feb’y Mason, for the United States.—The deed in this case is contingent; the power to the trustees to sell is contingent. They can only sell, to indemnify Hooe. Until he is damnified, they have no power to sell. The rents, issues and profits, are to be taken by Fitzgerald only; and the legal estate being in the trustees, the property is protected from the elegit of the creditors. Suppose, the property conveyed to be double the value of Hooes’ claim, the residue would be protected from creditors, and would still be a fund from which Fitzgerald might draw supplies to himself. But the insolvency mentioned in the act of congress, means an inability to pay his debts, in contradistinction to an insolvency under a bankrupt law, or an insolvent act. A voluntary deed, in the act, means a deed by a person unable to pay all his debts, made without coercion of law, to give a preference to some of his creditors. It is not necessary, that it should be a conveyance of all his effects. Suppose, he should make three separate deeds; one, to one of his creditors, for one-third of his estate; a second, to another creditor, for another third of his estate; and a third deed, to a third creditor, for the residue. The two first deeds would not be less fraudulent than the third, be-cause they conveyed only a part of the estate. *The decree of the J court below is erroneous, because the answers and evidence specified the estate and effects of Fitzgerald, and the court ought to have ascertained the value, and from thence inferred his insolvency. An insolvency so ascertained would have been such an insolvency as would have given the United States a preference. As to the question, whether the insolvency appears upon the record, the bill charges the fact, and none of the answers or depositions denies it. A comparison of the balance due with the effects and estate disclosed in the answers, affords the strongest corroboration ; and even Hooe, in his answer, does not deny a knowledge of it. But whether he knew it or not, it is sufficient, if we establish the existence of the fact; for in all cases, “where any revenue officer,” “indebted to the United States,” “ shall become insolvent,” “ the debt due to the United States shall be first paid.” C. Lee and Swann, contra.—The insolvency contemplated by congress means a legal insolvency, not a mere incapacity to pay, unattested by some notorious act of failure, such as a voluntary assignment of all the effects for the benefit of creditors, or the- closing of doors to prevent process being served, &c. The cases provided for by the act are, 1. If the debtor “ shall become insolvent.” 2. Where the estate of a deceased debtor “ shall be insufficient to pay all the debts.” 3. Where “a debtor, not having sufficient property to pay all his debts, shall make a voluntary assignment thereof.” 4. Where “ the estate and effects of an absconding, concealed or absent debtor, shall be attached.” The 1st case is that of legal and public insolvency, where the estate and *g_-| effects are assigned by law. If it *meant every case where a man J was actually incapable of paying all his debts, it would frequently look back and undo all the negotiations of an extensive trade, for many years ; for it often happens, that a merchant continues in business and credit, long after his capacity to pay all his debts has ceased. Besides, it would have been unnecessary for the legislature to add expressly the case of a voluntary assignment, where there was an inability to pay all the debts, if 5.2 1805] OF THE UNITED STATES. 87 United States v. Hooe. such inability alone was within the meaning of the words “ shall become insolvent.” 2. The case of a deceased debtor, whose estate shall be insufficient to pay all the debts, would also have been included in the term insolvent, if it is to have so large and loose a construction as is contended for by the counsel for the United States. 3. And so would be the case of a voluntary assignment. But it is said, that the present deed is such a voluntary assignment as is contemplated in the act. The words of the act are, “ a debtor not having sufficient property to pay all his debts,” that is to say, the whole of whose property shall be insufficient to pay all his debts, “ shall make, a voluntary assignment thereof,” that is, of the whole of his property. The assignment contemplated in the law must, therefore, mean an assignment of the whole; but this is only an assignment of a part, certainly, not so much as half his property, and is, therefore, a complete answer as to that point. 4th. The fourth case is of an attachment of the estate and effects of an absconding, concealed or absent debtor, and does not absolutely require an insolvency, or even an inability to pay all the debts ; but is a case of suspicion, in which a public act has been done and suffered, giving notice of the insolvency, if it really exists. Even supposing, then, that Fitzgerald was actually unable to pay all his debts at the time of executing this deed of trust (which fact, however, does not appear), yet, as his property was not divested by act of law, nor by such a voluntary assignment as is contemplated by the act of congress, the priority of the United States had hot attached, *so as by any possibility to avoid the deed of trust. This pgg construction of the act of congress is warranted by the decision of a very respectable circuit court of the United States, in the case of United States v. King, Wall. C. C. 13. The United States are plaintiffs in equity for an injunction, and the burden is on them to prove all the material allegations of their bill. It is on them to prove the insolvency, not on us to disprove it. If, then, the deed is not fraudulent in itself, nor made void by any act of congress, the judgment of the court below was correct, and ought to be affirmed. Wednesday, February 27th, 1805. Marshall, Ch. J., delivered the opinion of the court. The first point made in this case, by the attorney for the United States, is, that the deed of the 16th of January 1799, is fraudulent as to creditors generally. It is not alleged, that the consideration was feigned, or that there was any secret trust between the parties. The transaction is admitted to have been, in truth, what it purports to be ; but it is contended, that the deed, on its face, is fraudulent as to creditors. The deed is made to save Hooe harmless on account of his having become the security of Fitzgerald to the United States, and on account of notes to be indorsed by Hooe for the accommodation of Fitzgerald in the bank of Alexandria. These are purposes for which it is supposed this deed of trust could not lawfully have been executed ; and the deed has been pronounced fraudulent under the statute of 13th of Elizabeth. That statute contains a proviso, that it shall not extend to conveyances made upon good consideration, and bond fide. *The goodness of the p* consideration, in the case at bar, has been admitted ; but it is alleged, 9 53 89 SUPREME COURT [Feb’y United States v. Hooe. that the conveyance is not bond, fide,; and for this, Twynds Case has been principally relied on. But in that case, the intent was believed by the court to be fraudulent, and in this case, it is admitted not to have been fraudulent. It is contended, that all the circumstances from which fraud was inferred in that case, are to be found in this ; but the court can find between them no trait of similitude. In that case, the deed was of all the property ; was secret; was of chattels, and purported to be absolute, yet the vendor remained in possession of them, and exercised marks of ownership over them. In this case, the deed is of part of the property ; is of record ; is of lands, and purports to be a conveyance which, according to its legal operation, leaves the property conveyed in possession of the grantor. In the case of Hamilton n. Russell (1 Cr. 310), this court declared an absolute bill of sale of a personal chattel, of which the vendor retained the possession, to be a fraud. But the difference is a marked one between a conveyance which purports to be absolute, and a conveyance which, from its terms, is to leave the possession in the vendor. If, in the latter case, the retaining of possession was evidence of fraud, no mortgage could be valid. The possession universally remains with the grantor, until the creditor becomes entitled to his money, and either chooses or is compelled to exert his right. That the grantor is to receive the rents and profits until the grantee shall become entitled to demand the money which the deed is intended to secure, is a usual covenant. That the property stood bound for future advances is, in itself, unexceptionable. It may, indeed, be converted to improper purposes, but it is not positively inadmissible. It is frequent, for a person who expects to become more considerably indebted, to mortgage property to his creditor, as a security for debts to be contracted, as well as for that which is already due. All the covenants in this deed appear to the court to be fair, legitimate and consistent with common usage. It will barely be observed, that the validity of this conveyance is to be tested by the statutes of Virginia, which embrace this subject. But this is not mentioned as having any influence in this case. *The second point for which the plaintiffs contend is, that this is J a case in which the priority of payment claimed by the United States in cases of insolvency, intervenes and avoids the deed. This claim is opposed on two grounds. It is contended, 1st. That at the time of making this deed, Fitzgerald was not insolvent in point of fact; and 2d. That this deed was not a transaction which evidences insolvency under the act of congress. In construing the statutes on this subject, it has been stated by the court, on great deliberation, that the priority to which the United States are entitled does not partake of the character of a lien on the property of public debtors. This distinction is always to be recollected. In the case at bar, it will be observed, on the first objection made by the defendants, that the insolvency, which is the foundation of the claim, must certainly be proved by the United States. It must appear, that at the time of making the conveyance, Fitzgerald was “ a debtor not having sufficient property to pay all his debts.” The abstract from the books of the treasury is undoubtedly complete evidence so far as it goes ; but it is not intended to show the state of Fitzgerald’s accounts in January 1799. If that had been its object, it would have credited him for the bonds then reported to be on band. If the case turned entirely on this point, the court would probably 54 1805] OF THE UNITED STATES. 90 United States v. Hooe. send it back for further explanation respecting it. But this would be unnecessary, as it is the opinion of the court, that the decree is right, however this fact may stand. If a debtor of the United States, who makes a bond fide conveyance of part of his property for the security of a creditor, is within the act which, gives a preference to the government, then would that preference be in the the nature of a lien, from the instant he became indebted ; the inconvenience of which, where the debtor continued to transact business with the world would certainly be very great. *The words of the act extend the meaning of the word insolvency r^qi to cases where “ a debtor, not having sufficient property to pay all his debts, shall have made a voluntary assignment thereof, for the benefit of his or her creditors.” The word “ property ” is unquestionably all the property which the debtor possesses ; and the word “ thereof ” refers to the word “ property ” as used, and can only be satisfied by an assignment of all the property of the debtor. Had the legislature contemplated a partial assignment, the words “ or part thereof,” or others of similar import, would have been added. If a trivial portion of an estate should be left out, for the purpose of evading the act, it would be considered as a fraud upon the law, and the parties would not be enabled to avail themselves of such a contrivance. But where a bond fide conveyance of part is made, not to avoid the law, but to secure a fair creditor, the case is not within the letter or the intention of the act.. It is observable, that the term insolvency was originally used, and the subsequent sentence is designed to explain the meaning and intent of the term. The whole explanation relates to such a general divestment of property, as would, in fact, be equivalent to insolvency in its technical sense. It is the opinion of the court, that there is no error in the decree of the circuit court, and that it be affirmed. After the opinion was given, it was stated, that the court below had decreed the United States to pay costs, and it was suggested, that that circumstance might have escaped the notice of this court, in affirming the decree generally. Mason observed, that costs were only given by statute, and that the United States are not bound by a statute, unless they are expressly named in it. That there was no means of compelling the United States to pay them. Marshall, Ch. J.—That would make no difference, because we are to presume they would pay them, if bound by law so to do. *Mason.—There is no precedent of a judgment against the United States for costs. In the case of the United States v. La Vengeance, 3 Dall. 301, the decree of the circuit court was affirmed, with costs. But the next day the Chief Justice directed the words “ with costs ” to be stricken out, as there appeared to have been some cause for the prosecution. But he observed, in doing this, the court did not mean to be understood as at all deciding the question, whether, in any case, they could award costs against the United States, but left it entirely open for future discussion. 55 92 SUPREME COURT [Feb’y Peyton v. Brooke. March 6th. The Court directed the decree of the court below to be affirmed, except as to costs, and reversed so much of the decree as awarded the United States to pay costs, and directed that no costs be allowed to either party in this court. Peyton v. Brooke.1 Costs of execution. • In Virginia, if the first ca. sa. be returned non est, the second may include the costs of issuing both. This case came before the court, upon a bill of exceptions to the opinion of the Circuit Court of the district of Columbia, for the county of Alexandria, upon a motion for execution on a forthcoming bond, taken under the act of assembly of Virginia. Rev. Code, p. 309. The bond, upon which the motion was made, recited a ca. sa. against Peyton, in favor of Brooke, for $525 and 624 pounds of tobacco, at thirteen shillings and four pence per hundred weight, and marshal’s fees and commissions, and all costs, $19.96, amounting in the whole to $578.82. The execution on which the bond was taken was for $525 and $20, and 624 pounds of tobacco, at thirteen shillings and four pence per hundred weight. *931 *The whole amount of costs taxed on the original judgment was J $20.12, and 602 pounds of tobacco, including the costs of issuing an execution. The bond was taken upon an alias ca. sa., the first having been returned non est. The first execution was for $525, and $20.12, and 602 pounds of tobacco. The execution upon which the.bond was taken included 22 pounds of tobacco (the clerk’s fees for issuing Vaenlias ca. sa.}, and did not include 12 cents, part of the costs taxed upon the original judgment. The plaintiff, in the court below, released 44 pounds of tobacco, the costs of issuing both executions, and the court below gave judgment for the plaintiff. The defendant brought his writ of error. Wednesday, February 27th, 1805. The Court called for statements of the case, agreeable to the rule of the court. Swann, for the defendant in error, said, he had supposed the rule to extend only to plaintiffs in error. The court said, they expected them from both sides. No statements were prepared. Marshall, Ch. J.—We wish to give general notice to the gentlemen of the bar, that unless statements of the case are furnished, according to the rule, the causes must either be dismissed or continued. Jones, for the plaintiff in error.—There are two objections to the proceedings of the court below. 1st. That the alias capias and the bond include 22 pounds of tobacco for the clerk’s fee, in issuing the alias capias. 2d. That the alias capias does not include 12 cents, taxed as part of the costs on the original judgment. For this variance between the bond and the original judgment, the court *041 below ought not to have awarded *execution upon the bond, but ought J to have quashed both the bond and the execution upon which it was 1 See s. c., in the court below, 1 Cr. C. C. 96, 128. 56 1805] OF THE UNITED STATES. 93 Peyton v. Brooke. founded. Every execution must pursue the judgment, or it is void. The judgment having included all the costs, a ministerial officer cannot add anything, unless warranted by statute. No fee is given by statute for issuing an alias capias. The execution was, therefore, void, and no subsequent release of the fee by the plaintiff can make it good. The plaintiff, if he takes out an alias ca. sa., must do it at his own cost. The words of the act of assembly (Rev. Code, p. 308, § 2) are, “ when any writ of execution shall issue, and the party at whose suit the same is issued, shall afterwards desire to take out another writ of execution, at his own proper costs and charges, the clerk may issue the same, if the first writ be not returned and executed.” Marshall, Ch. J.—Does not that relate to an alias taken out before the return-day of the first execution ? Jones.—No alias execution can issue, until after the return-day of the first. If the first execution be returned, not executed-; or if it be executed and not returned, the plaintiff may have an alias, but it must be at his own expense. Marshall, Ch. J.—Would not an action at common law lie on the bond, even if the execution was quashed upon which the bond was founded ? C. Jee.—If the bond was erroneous, the court would quash it, as well as the execution. l^Simm v. Johnson, in the court of appeals of Virginia, reported in Washington’s or Call’s Reports.) Marshall, Ch. J.—The plaintiff may quash the bond, and proceed on the original judgment; but the defendant can only quash the execution. A difference *was taken between a bond on a ca. sa. and a bond on bfi.fa. r*q-under the construction of the statute of Hen. VIII., respecting sheriffs *■ taking bonds colore officii. The case is reported. I was counsel and argued the case. I believe it was that of Simm n. Johnson. Simms, f. r the defendant in error.—At common law, a creditor might have an alias capias, if the first was returned non est. The statute provides, that he may also have an alias, if the first be not returned executed. If the first be not returned, the alias must be at the plaintiff’s costs ; if it be returned, the alias is to be at the costs of the defendant. In no case is judgment given for the costs of an execution. The clerk never taxes it, until he issues the execution. The constant and uniform practice of the courts of Virginia is, to add the cost of the alias, if the first be returned and not executed. But if the clerk had not a right to insert the cost of the alias ca. sa., that does not vitiate the bond. It is but the act of a ministerial officer, and the court have a right to correct it. The sheriff is to take the bond for the amount mentioned in the execution. It is not right, that the error of the clerk should deprive the plaintiff of his security; especially as the bond is given for the benefit of the debtor, and the creditor has released the whole amount in dispute. It is no cause to quash the bond ; nor to render it void at common law. 1 The case of Syme v. Johnson is reported in 3 Call 558. 57 95 SUPREME COURT [Feb’y Lambert v. Paine. Swann, on the same side.—The judgment is for costs; all the costs which have accrued or shall accrue. It is admitted, that we have a right to recover the costs of the first execution; and even if the clerk has mistaken the law, in adding the costs of the second, yet, that error is cured by the plaintiff’s release. In the case of Scott v. Hornsby, 1 Call 41, the court of appeals of Virginia decided, that if a forthcoming bond be taken for more than the sum due by the execution, and the plaintiff release the excess, the bond will support a judgment. *Qfil * Jones, in reply.—The awarding of execution on a forthcoming J bond, upon motion, is a summary.remedy given by statute, in derogation of the common law, and therefore, the provisions of the statute must be strictly pursued. The release cannot aid an error in the exercise of this summary jurisdiction. I admit, the practice to be, that if the bond be for more than the judgment, and the plaintiff releases the excess, it will support a judgment. So, if the bond be for too small a sum, it is still good as a bond at common law. But in neither case, will it support the summary proceeding, by motion. The taking a forthcoming bond is one mode of executing the writ. If the defendant be arrested, the quashing of the execution releases his body. So, if goods be taken on a fi. fa., and the fi. fa. be quashed, the goods are discharged. So, in this case, the bond (being taken in lieu of the goods or of the body) would be discharged, by the quashing of the execution. It is true, the judgment is for costs; but it cannot be in the alternative; that is, if one execution, then for 22 pounds of tobacco; and if two executions, then for 44 pounds of tobacco. Marshall, Ch. J.—The court is of opinion, that the act of assembly contemplates the case where the first execution is not returned nor executed; that is, where it is out and may be served. The clerk is right in adding the costs of the alias ca. sa. The judgment is for costs, generally; which includes all the costs belonging to the suit, whether prior, or subsequent to the rendition of judgment. If new costs accrue, the judgment opens to receive them. Judgment affirmed, with costs. *97] ^Lambert’s Lessee v. Paine. Devise in fee. A devise of “ all the estate called Marrowbone, in the county of Henry, containing by estimation 2585 acres of land,” carries the fee.1 Qucere? Whether a British subject, born in England, in the year 1750, and who always resided in England, could, in the year 1786, take and hold lands in Virginia, by descent or by devise? This was an ejectment brought in the Circuit Court of the United States, for the middle circuit in the Virginia district; in which John Doe, a subject of the King of Great Britain, residing without the state of Virginia, lessee of John Lambert, another subject of the King of Great Britain, complains of Richard Roe, a citizen of Virginia, residing within the said state, and 5 Abbott v. Essex Co., 18 How. 262 ; s. c. 2 Curt. 126. 58 1805] OF THE UNITED STATES. ; Lambert v. Fame. 97 claims possession of a messuage and tenement, containing 156 acres of land, in the county of Henry, being part of a tract of land called Marrowbone. The jury found the following special verdict, viz : “ That George Harmer, being seised in fee of the lands in the declaration mentioned, on the 25th of June 1782, made a paper writing, purporting to be his last will and testament, all written with his proper hand, and signed by him ; which will we find in these words : “ ‘ In the name of God, Amen. I, George Harmer, of the commonwealth of Virginia, being perfectly well and of sound mind and memory, do make and ordain my last will and testament, in manner and form following, that is to say, all the estate, both real and personal, that I possess or am entitled to, in the commonwealth of Virginia, I hereby give and devise unto my friend, Thomas Mann Randolph, of Tuckabo, and Henry Tazewell, of the city of Williamsburgh, in trust, upon these conditions, that when John Harmer, my brother, now a subject of the King of Great Britain, shall be capable of acquiring property in this country, that they, or the survivor of them, do convey, or caused to be conveyed, to him, in fee-simple, a good and indefeasible title in the said estate ; and in case the said John Harmer should not be capable of acquiring such right, before his death, then that my said trustees, or the survivor of them, do convey the said estate in manner aforesaid, to John Lambert, son of my sister, Hannah Lambert, when he shall be capable of acquiring property in this country ; and in case John Lambert should not, before his death, be capable of acquiring a title to the said estate, then I direct the same to be conveyed *to my sister, Hannah Lambert, if she, p^g in her lifetime, can acquire property in this country. But if the said John Harmer, John Lambert and Hannah Lambert should all die before they can acquire property legally in this country, then I desire that my trustees aforesaid may cause the said estate of every kind to be sold, and the money arising from such sale, together with the intermediate profits of the said estate shall be by them remitted to the mayor and corporation of the city of Bristol, in England, to be by them distributed, according to the laws of England, to the right heirs of my said sister, Hannah Lambert, to whom I hereby give all such money, excepting the sum of 100Z. lawful money to each of the afore-mentioned trustees, which shall be paid out of the first money arising from the sales afore mentioned, or from the profits arising to my heirs. In witness whereof, I have hereunto set my hand and affixed my seal this 25th of June, 1782.’ • “We find, that on the 12 th day of September 1786, the said George Harmer, being seised as aforesaid, duly executed another writing testamentary, which we find, in these words : “ ‘ In the name of God, Amen. I, George Harmer, being sick and weak in body, but in perfect mind and memory, do give and bequeath unto Doctor George Gilmer, of Albemarle county, all the estate called Marrowbone, in the county of Henry, containing, by estimation, 2585 acres of land ; likewise, one other tract of land in said county, called Horse-pasture, containing, by estimation, 2500 acres ; also, one other tract, in the county aforesaid, containing, by estimation, 667-^ acres of land, called the Poison-field. It is my desire that all my negroes, horses and other property be sold, and after pay-ing my debts, the balance, if any, be remitted to my nephew, John Lambert, out of which he shall pay his mother five hundred pounds,’ &c. 59 98 SUPREME COURT [Feb’y Lambert v. Paine. “Afterwards, on the 12th or 13th day of September 1786, he departed this life, without revoking the will or writing testamentary last mentioned ; and without any other revocation of the will first mentioned, than the said writing testamentary of the 12th of September 1786. We find, that John Harmer, mentioned in the paper writing of June 1782, departed this life about the year 1793. We find, that John Lambert, named in the paper *qq1 writings *aforesaid, the lessor of the plaintiff, was, if capable of in- J heriting lands in Virginia, heir-at-law to the said George Harmer; that he was born in England, on or before the year'1750 ; that he has never resided in any of the United States of America, and is, and ever has been, from the time of his birth, a subject of the King of Great Britain. We find, that George Gilmer aforesaid, under whose heir and devisees the defendant holds, died in the month of November 1793. We find, that in the December session 1798, the general assembly of Virginia passed an act, which we find at large in these words : “‘An act vesting in the children of George Gilmer, deceased, certain lands therein mentioned (passed January 12th, 1799). § 1. Be it enacted by the general assembly, that all the right, title and interest, which the commonwealth hath, or may have, in or to the following lands, lying in the county of Henry, which George Harmer, by his last will and testament, devised to a certain George Gilmer, and which, since the death of the said George Gilmer, it is supposed have become escheatable to the commonwealth, to wit, one tract called Marrowbone, containing, by estimation, 2585 acres; one other tract called Horse-pasture, containing, by estimation, 2500 acres ; and one other tract called the Poison-field, containing, by estimation, 667^ acres, shall be, and the same are hereby released to, and vested in, the children, whether heirs or devisees, of the said George Gilmer, deceased; to be by them held and enjoyed, according to their respective rights of inheritance, or devise under his will, , as the case may be, in the same manner as if the said George Gilmer had died seised of the lands in fee-simple, and an office had actually been found thereof ; saving, however, to a certain John Lambert, who, as heir-at-law to the said George Harmer, claims the said lands, and to all and every other person or persons, bodies politic and corporate (other than the commonwealth), any right, title or interest, which he or they might or would have had in or to the said lands, or any part thereof, against the said children and devisees, if this act had never been made. § 2. This act shall commence in force from the passing thereof.’ “We find, that George Harmer was, at the time of his death, seised in fee *1 ool ^an(^s *declaration mentioned, which are of the value of J $3000, and that George Gilmer, at the time of his death, was seised of the same, under the devise to him from the said George Harmer. W e find the lease, entry and ouster in the declaration mentioned. On the whole matter, if the court shall be of opinion, that the law is for the plaintiff, we 1 find for the plaintiff the lands and tenements in the declaration mentioned, and 20 cents damages ; and if the court shall be of opinion, that the law is for the defendant, we find for the defendant.” Upon this verdict, the judgment of the court below was for the defendant. The transcript of the record contained a bill of exceptions by the defendant, to the refusal of the court to the admission of testimony to prove that George Harmer, at the time he made the will in favor of Gilmer, de- 60 1805] OF THE UNITED STATES. 100 Lambert v. Paine. dared to the person who wrote it, that it was his intention to give Gilmer the fee-simple. There was also an agreement of counsel, that if the court should be of opinion, that the first will ought not to have been admitted in evidence, because not proved before a court of probate, then so much of the verdict as related to that will should not be considered as forming any part of this case. The writ of error was sued out by the plaintiff, and general errors assigned. The case was argued at February term 1803, by Minor and Mason, for the plaintiff in error, and by Key, for the defendant. Minor, for the plaintiff, insisted on the following points, viz : 1st. That the devise from George Harmer to George Gilmer, dated 12th of September, 1786 ,of all the estate called Marrowbone, is only a devise for life. 2d. That John Lambert, heir-at-law of George Harmer, is not an alien as to the citizens of this country, and is capable of taking the reversion by descent. *3d. That the will of 12th September 1786, is only a partial, and not a r*rni total revocation of the will of 25th June 1782; and that this will passes and disposes of the reversionary interest of the testator’s estate, according to the legal import of that will. 4th. That by virtue of the Virginia statute transferring trusts into possession, the devise of 1782 transferred the legal estate to John Lambert. 5th. That John Lambert, if an alien, is capable of taking by devise, and is protected by the treaty of 1794 between the United States and Great Britain. 6th. Or that, if not, the property remains in him until office found for the commonwealth. 1. That the devise to Gilmer is only for life. In the first will of 1782, which is wholly written with the testator’s own hand, he evinces not only a knowledge of the import, but of the necessity of technical words of limitation or perpetuity; yet, in the will of 1786, he uses expressions which convey a life-estate only, and uses no words which can be construed into an intention wholly to revoke the will of 1782. The first will disposes of the fee to his near relations; and hence results a strong presumption, that he meant to give only a life-estate by the will of 1786. The will of 1782 makes use of strong terms of limitation or perpetuity, and clearly shows his intention of securing the fee-simple to his brother and heir, John Harmer, who had, in fact, given him this very land. In the last will, he does not notice his former will, nor mention his brother and heir, but devises “ all the estate called Marrowbone, in the county of Henry, containing, by estimation, 2585 acres of land,” &c., to Doctor George Gilmer. It is generally true, that a devise of real property without words of limitation, conveys only an estate for life. This is the general rule, and must prevail, unless such circumstances appear, as are sufficient to satisfy the conscience of the court, that the testator *intended to convey a fee. r*-^ Bowes v. Blackett, Cowp. 235. So, in the case of Hogan v. Jackson, Ibid. 306, Lord Mansfield said, “ if the words of the testator denote only a description of the specific estate, or lands devised; in that case, if no words of limitation are added, th. ? devisee has only an estate for life. But if the words denote the quantum of interest or property that the testator has in the lands devised, there, the whole extent of his interest passes, by the gift, to the devisee. The question, therefore, is always a question of construction, upon the words and terms used by the testator. It is now clearly 61 102 SUPREME COURT [Feb’y Lambert v. Paine. settled, that the words ‘ all his estate,’ will pass everything a man has ; but, if the word ‘ all ’ is coupled with the word ‘ personal,’ or a local description, there the gift will pass only personalty, or the specific estate particularly described.” And in the case of Loveacres n. Slight, Cowp. 355, Lord Mansfield said, “ in general, wherever there are words and expressions, either general or particular, or clauses, in a will, which the court can lay hold of, to enlarge the estate of a devisee, they will do so, to effectuate the intention. But if the intention of the testator is doubtful, the rule of law must take place ; so, if the court cannot find words in the will, sufficient to carry a fee, though they themselves should be satisfied, beyond the possibility of a doubt, as to what the intention of the party was, they must adhere to the rule of law. Now, though the introduction of a will, declaring that a man means to make a disposition of all his worldly estate, is a strong circumstance, connected with other words, to explain the testator’s intention of enlarging a particular estate, or of passing a fee, where he has used no words of limitation, it will not do alone. And all the cases cited in the argument, to show that the introductory words in this case would alone be sufficient, fall short of the mark ; because they contained other words, clearly manifesting the intention of the testator to pass a fee.” The case of Right n. Sidebotham, Doug. 759, is also very strong. There, the introductory clause testified the intention of the testator to dispose of all his worldly goods and estates, and also a disinheriting legacy to the heir. The devise, then in question, was coupled by the word “ and ” with another *1031 Revise to *the same devisee, her heirs and assigns, yet it was held not J sufficient to carry the fee. Lord' Mansfield says, “ the rule of law is established and certain, that express words of limitation, or words tantamount, are necessary to pass an estate of inheritance. All my estate, or all my interest, will do ; but ‘ all my lands lying in such ’ a place, is not sufficient. Such words are considered as merely descriptive of the local situation,, and only carry an estate for life.” The same principle is laid down in Gilbert on Devises 24. Thus, we find that the intention of the testator must be sought by fixed rules, and when found, it must not only be sufficiently proved, to satisfy the conscience of the court, but must be coupled with apt and sufficient words to pass a fee. See the case of Frogmorton n. Wright, 3 Wils. 418, which is a strong case for the plaintiff. So is also the case of Chester v. Painter, 2 P. Wms. 335. In the case of Fletcher v. Smiton, 2 T. R. 656, the words were,. ¥ all my estates/’ and the decision was upon the ground of an intention clearly appearing to dispose of his whole interest. There is nothing in the present case, to show an intention of conveying a fee, unless it be the words “ all the estate called Marrowbone, in the county of Henry, containing 2585 acres of land.” The testator does not, in the beginning of his will, as in most of the cases cited, declare an intention of disposing of all his estate and interest. There is a difference between the terms “ all the estate ” and “ all my estat<.” The latter is certainly a more evident allusion to the degree of interest than the former. The expressions “ all the estate called Marrowbone,” are clearly words of locality, and not of interest. What idea would a lawyer have of an estate called Marrowbone, containing 2585 acres ? Could he ascertain whether it was an estate for 62 1805] OF THE UNITED STATES. 103 Lambert v. Paine. years, for life, or in fee ? Besides, the expression is coupled with two others which are most clearly descriptive of the thing, and not of the degree of interest. 11 Likewise one other tract of land, called Horse-pasture; also one other tract, called the Poison-field.” Here, by the word “ likewise,” is implied that the testator meant to devise the same degree of interest in each of the tracts ; and by the word “ other,” it is evident, that he intended the- former description as a description of a tract of land *as to locality only, and not of his p degree of interest in it. Having, in the first part of the sentence, used *-an equivocal word, and having, in the subsequent clause of the sentence, used synonymously a word which is certain in its meaning, and deafly descriptive of the thing, and not of the interest, it is fair to conclude, that the equivocal meaning of the former is explained and rendered certain by the latter; and that he meant no more by the word “ estate,” than by the expression “ tract of land.” It is a rule, that where words are used synonymously, the word most frequently used shall govern the sense. Here, the term “ tract of land ” is twice used as synonymous to “estate;” the former, therefore, ought to control the sense of the latter. It is true, that “ all my estate ” has sometimes carried the fee ; but to induce a departure from the general rule, the intention must be clear to pass a fee. The word “ all ” is coupled with a local description ; it relates to the number of acres, and not to the degree of the testator’s interest in the land. The word “ estate,” as used in Virginia, is generally understood to mean a description of the property or thing, and not of the interest; and this court will respect the provincial meaning, to come at the true intention of the testator. It is not probable, and therefore, is not to be presumed, that he would give his estate to a stranger, and disinherit his heir, who had given him this very estate ; and it is to be observed, too, that he does not, in his last will, even mention his brother John, to whom, by the first will, he had given all his estate. 2. The second point is, that John Lambert, heir-at-law of George Harmer, is not an alien as to the citizens of this country, and is capable of taking the reversion by descent. If he is incapable of holding lands in this country, it must be, because he is an alien born. Is he such, under the legal acceptance of the word alien ? A definition of an alien is thus given in Calvin’s Case, 7Co. 16 a; “An alien is a subject that is born out of the ligeance of the king, and under the ligeance of another.” Wood’s Inst. 23 ; 1 Inst. 198 b ; 1 Woodd. 386. John Lambert, the lessor of the plaintiff, was born in England, in *the year 1750, under the allegiance of the king of Great r4i Britain. At his birth, he had inheritable qualities, of which he can be *-deprived by one mode only, and that is the commission of a crime sufficient to work corruption of blood. 1 Bl. Com. 371. This is not pretended. Lambert was born within the ligeance of the king, the then common sovereign of this country and England ; and therefore, is not an alien born. Those born under common allegiance may acquire and hold lands ; and in time of war, they may join the one, but must render service to the other, for the land. Bracton, lib. 5, c. 24, fol. 427 b ; 1 Hale’s P. C. 68; Calvin's Case, 7 Co. 27 b. The words of Bracton are: “ Estetiamet alia exceptio quae tenenti com. petit ex persona petentis propter defectionem nationis, qaoe ditatoria est, et non perimit actionem, ut si quis alienigena qui [non] fuerit ad fidem regis Anglice, tali non respondeatur, saltern donee terroe fuerint communes, neo 63 105 SUPREME COURT [Feb’y Lambert v. Paine. etiarn sive rex ei concesserit placitari, quia sicut Anglicus non auditur in placitando aliquem de terris et tenementis in Francia, ita nee débet Fran-cigena, et alienigena, qui fuerit ad fldem régis Francice, audiri placitando in Anglia, Sed tamen sunt aliqui Francigenoe in Francice, qui sunt ad ftdem utriusque, et semper fuerunt ante Normanniam deperditam, et post, et qui placitant hic et ibi, ea ratione qua sunt ad fidem utriusque, sicut fuit TE comes Marreschallus et manens in Anglia, et M. de Feynes manens in Francia, et alii plures ; et ita tamen sicontingat guerram moveri inter reges, remaneat personaliter quilibet eorum cum eo cui fecerit ligeantiam, et faciat servitium debitum ei cum quo non steterit in persond. See also Calvin’s Case, 1 Co. 25 a, b. A man born in the English plantations, is a subject. Wood’s Inst. 23. He that is born in the mother country must, à fortiori, be a subject, and capable of all the rights of a subject in the colonies. One of these rights is that of acquiring property. “ All persons may convey, as well as purchase, except men attainted of treason,” &c., “aliens born,” &c. Wood’s Inst. 233 ; 1 Inst. 42 b. But it has been proved, that the lessor of the plaintiff is not an alien born ; he, therefore, may purchase or take. If he once had an inheritable quality, or a capacity to take, and has not forfeited it by any crime, it follows, that he has it yet. The separation of the colonies from England, could । not, in law or *reason, deprive him of this right. Calvin’s Case, 7 Co. J 27 a, b. Calvin’s Case was shortly this : Calvin was born in Scotland, after the crowns of England and Scotland were united on the head of James I. The question was, whether he could maintain an assise of novel disseisin of lands in England. 'The plea was, “ that he was an alien, born at Edinburgh, within the kingdom of Scotland, and within the ligeance of the king of Scotland, and out of the ligeance of the king of England.” One of the objections on the part of the defendants was, that if post-nati were, by law, legitimated in England, great inconvenience and confusion would follow, if the king’s issue should fail, whereby those kingdoms might again be divided. But to this, it was answered by the judges, that “it is less than a dream of a shadow, or a shadow of a dream : for it hath been often said, natural legitimation respecteth actual obedience to the sovereign at the time of the birth : For as the ante-nati remain aliens as to the crown of England, because they were born when there were several kings of the several kingdoms, and the uniting of the kingdoms, by descent subsequent, cannot make him a subject to that crown to which he was an alien at the time of his birth, so albeit the kingdoms (which Almighty God of his infinite goodness and mercy divert ! ) should, by descent, be divided, and governed by several kings ; yet it was resolved, that all those that were born under one natural obedience, while the realms were united nnder one sovereign, should remain natural-born subjects, and no aliens ; for that naturalization, due and vested by birthright, cannot, by any separation of the crowns afterwards, be taken away ; nor he that was, by judgment of law, a natural subject, at the time of his birth, become an alien, by such a matter ex post facto. And in that case, upon such an accident, our post-natus may be ad fidem utriusque régis, as Bracton saith, in the afore-mentioned place, fol. 427.” The present case is stronger than Calvin’s. There, the question was, whether he had gained a right ; but here, it is, whether he has lost one. The* 64 1805] OF THE UNITED STATES. Lambert v. Paine. 106 same rule prevailed when the Saxon heptarchy became united under the King of the West Saxons. Calvin’s Case, 7 Co. 23 b. And also with regard to the possessions held by the kings of England in France, at various times, such as the Dukedom of Acquitain, and the Earldoms of Poitiers, Normandy and Anjou. So, with regard to the islands of Jersey, Guernsey, *Man, r4s Ireland, &c. Calvin’s Case, 1 Co. 19, &c. ; 1 Hale’s P. C. 68, 69. Sup- L pose, a division of these states, it would follow, from the doctrine contended for by the opposite counsel, that people born in the same country, and under one common allegiance, would be aliens to each other. The Kings of England themselves did homage to the Kings of France for provinces which they held, such as Normandy, Guienne, Brittany, &c. This was also the case with many of their subjects ; as in the case of the Duke of Richmond, Duke D’Aubigny, &c. Hale’s P. C. 68; Calvin? s Case, 7 Co. 27 b. In this country, the personal services are dispensed with, but the land pays the common tax or duty. Alienage is incident to birth only. Doe ex dem. Duroure v. Jones, 4 T. R. 308. It is not just or reasonable, that a man should be punished, without committing a crime, or for an act committed by a superior power which he could not control. Suppose, a secession of one of these states; would it be just, that the citizens of the other states, holding property in that state, should forfeit it, or lose their rights ? The reasons of policy for prohibiting aliens from holding lands are stated in Calvin?s Case, 7 Co. 18 b, to be three : 1. The secrets of the realm might thereby be discovered ; 2. The revenues of the realm should be taken and enjoyed by strangers born; 3. It should tend to the destruction of the realm. But none of these apply to the present case. Lambert lives out of the realm, and therefore, cannot betray its secrets. The land will continue to pay the taxes, which, being the sinews of war, will preserve the realm. Besides, the case applying only to the ante-nati, is limited in extent, and its operation will be constantly diminishing by failure of heirs, by alienations, by naturalization, &c. The English, who understand the principles of the common law at least as well as we do, have allowed our citizens to inherit in similar cases. The cases of the Chichester estate, and an estate recovered by Mr. Boyd, and the Earl of Cassel’s estate, are examples. A liberal policy should dictate a reciprocation of the-same principle. *3. The third point, viz., that the will of 12th September 1786, is only a partial, and not a total, revocation of the will of 25th June *■ 1782; and that this will passes and disposes of the reversionary interest of the testator’s estate, according to the legal import of that will, was admitted by the opposite counsel, in case the second will devised a life-estate only. 4. The fourth point, that by virtue of the Virginia statute transferring trusts into possession, the devise of 1782 transferred the legal estate to John Lambert, was also admitted, if he is not to be considered as an alien. 5. The fifth point is, that John Lambert, if an alien, is yet capable of taking by devise, and is protected by the treaty of 1794, between the United. States and Great Britain. By the 9th article of the treaty, “ it is agreed, that British subjects who now hold lands in the territories of the United States, and American citizens who now hold-lands in the dominions of his majesty, shall continue to hold them, according to the nature and tenure of their respective estates and titles therein; and may grant, sell or devise the 3 Cranch—5 65 108 SUPREME COURT [Feb’y Lambert v. Paine. same to whom they please, in like manner as if they were natives; and that neither they nor their heirs or assigns shall, so far as may respect the said lands, and the legal remedies incident thereto, be regarded as aliens.” The only doubt which can be raised upon this article arises from the word “ hold.” But treaties ought to be liberally expounded, so as to meet the full intention of the contracting parties. There can be no doubt, but the intention was to secure, not only actual possession, but rights which would have vested but for the alienage of the parties. This is apparent, from the provision made for legal remedies, which would be wholly useless, if the former, expressions were meant to comprehend only lands in actual possession. If, therefore, Lambert is to be considered as an alien, yet the treaty destroys that bar to his recovery. *6. The sixth point is, that although Lambert should be consid- J ered as an alien, and is not protected by the treaty, yet he is capable of taking by devise, and of holding the land, until office found for the commonwealth. He certainly has a good right against all the world, except the sovereign. In England, land purchased by an alien does not vest in the king, until office found. Co. Litt. 2 ó, Hargrave’s note 3 ; Page’s Case, 5 Co. 52 b; 1 Jones 78, 79 ; Englefield’s Case, Moore 325 ; 2 Bl. Com. 293. If he had been tenant-in-tail, he might have barred the remainder. Goldsb. 102 ; 4 Leon. 84. An alien may take by devise, Powell on Devises 316, 317, 318 ; Knight v. Duplessis, 2 Ves. 362, and may hold until office found. “For,” says Powell, “when an alien takes by will, the estate, on the will’s being consummate, vests in him, and he is in, to all intents and purposes, as any other devisee would have been, until something further be done to take the estate devised out of him again ; for as long as the alien lives, the inheritance is not vested in the king, nor shall he have the land, until office found ; but if he die before office, the law casts the freehold and inheritance upon the king, for want of heirs, an alien having none. So that the title of the crown is collateral to the title by the devise, has no retrospect to the time of its being consummate, nor does it affect the land in the hands of the devisee, until another thing is done to entitle the king, not under the devise, but by right of his prerogative, viz., office found ; the tenant being an alien, and consequently, though of capacity to take lands in his own right, yet not of capacity to hold them.” Key, contrà, contended, 1st. That George Harmer, by the will of 1786, devised a fee to Gilmer. 2d. That if he did not, yet the lessor of the plaintiff cannot recover. 1. The word “estate,” in the devising clause of a will, where it refers to land, denotes and carries the testator’s interest in the land. And there is no difference in construction *of law, whether the words are “all my es- J tate,” or “ all the estate.” Both carry the whole interest of the testator. In the present case, there are no words of locality that operate as description, and prevent the fee from passing. It is admitted, that the word estate, where it is coupled with personalty, shall be restrained, and will not carry the fee of lands ; upon the principle noscitur a sociis. This case is not within this distinction, because the word estate refers wholly to the land, and the whole personal estate is disposed of by a subsequent, independent clause. Consequently, no cases can apply but where the expressions 66 1805] OF THE UNITED STATES. Lambert v. Paine. 110 are similar to those of the present will, and refer to lands. In the case of Wilson v. Robinson, 2 Lev. 91 ; 1 Mod. 100 (25 Car. II, Anno 1672), the words were, “all my tenant-right estate at Brigisend, in Underbarrow,” and it was held, that they passed the fee. This is the general rule of law, and is uniformly supported by the authorities from the year 1672 to the present time ; except the case cited by the plaintiff’s counsel, from 2 P. Wms. The case in 2 Lev. 91, is exactly like the present ; the word lands is used in the same sentence, and in the same manner as in the present case. The word “ estate,” in wills, always means the interest, unless controlled by words of restriction. Words of locality will not restrain the force of the word estate. In the case of The Countess of Bridgewater v. Duke of Bolton, 1 Salk. 236; s. c., 6 Mod. 106, the words were, “all other my estate, real and personal, not otherwise disposed of by this my will, for to be given by him to his children as he shall think convenient, I solely trusting to his honor and discretion that he will give them such provision as will be necessary.” “Et per Holt, Ch. J., who delivered the resolution of the court, the rents pass by these words ‘ all my real and personal estate,’ for the word estate is genus generalissimum, and includes all things real and personal, and the fee of the rents passes, at least, the whole estate of the devisor; for all his estate is a description of his fee. In pleading a fee-simple, you say no more than seisitus in dominico suo ut de feodo; and in formedon, or other action, if a fee-simple be alleged, you say cujus statum the demandant now has.” And he held, “that devising all his estate, and *all his r^. estate in such a house, was the same, and that all his estate in the L thing passed in either case.” The next case is that of Barry v. Edgeworth, 2 P. Wms. 323 {Anno 1729), which overrules the case of Chester v. Pannier, cited by the plaintiff’s counselfrom 2 P. Wms. 235 {Anno 1725). In this case of Chester v. Painter, the court probably took the whole will together, and from the testator’s having used the word heirs, in some of the devises, and omitted it in the devise in question, concluded, that it was not his intention to pass the fee. In the case of Barry v. Edgeworth, the words were, “ all her land and estate in Upper Catesby, with all their appurtenances,” and the Master of the Rolls held it to be decided by the case of The Countess of Bridgewater v. Duke of Bolton, 1 Salk. 236, and said, “the word estate naturally signifies the interest rather than the subject, and its primary signification refers thereto; and although the devise be of all her land and estate in Upper Catesby, this is not restrictive with respect to the estate intended to pass by the will, but only as to the land.” “ And as the word estate has been agreed and settled to convey a fee in a will, it would be dangerous to refine upon it; for then none could give any opinion thereupon.” This case refers to that of Murry v. Wyse, 2 Vern. 564 {Anno 1706), where the words “ all the rest and residue of his real and personal estate whatsoever,” were held to pass a fee. s. c., Precedents in Chan. 264. In the case of Ibbetson v. Beckwith, Cats. temp. Talbot 157, the words were, “ as touching my worldly estate, wherewith it hath pleased God to bless me, I give, devise and dispose of the same in the manner following.” Then follow two devises of “ estates,” burdened with the payment of debts and legacies, which were admitted to carry a fee; after which came the devise in question: “Item, I give unto my loving mother all my estate at 67 Ill SUPREME COURT Lambert v. Paine. [Feb’y Northwith close, North closes, and my farm held at Roomer, with all my goods and chattels as they now stand, for her natural life, and to my nephew Thomas Dodson, after her death, if he will but change his name to Beckwith; if he does not, I give him only 204, to be paid him for his life out of Northwith close, North, close, and the farm held at Roomer; which I give *1121 her, upon my nephew’s refusing to change *his name, to her and her J heirs for ever.” The question was, whether Thomas Dodson took an estate for life or in fee. The Lord Chancellor decreed that he took the fee; and said, that the word estate carries the fee, and that no case had been cited “to warrant the altering the known legal signification of it.” See also Gilb. Devises 25. So, in the case of Bailis v. Gale, 2 Ves. 48 (Anno 1750), testator devised to. his wife all that estate he bought of Mead, for so long as she shall live; and in another clause said, “ I give to my son, Charles Gale, all that estate I bought of Mead, after the death of my wife.” The Lord Chancellor said, that the word estate is admitted to be sufficient to make a description not only of the land, but the interest in the land; and he held that the fee passed to Charles. • The case of Hogan n. Jackson, Cowp. 306, shows that the word estate is sufficient to pass all the interest of the testator in the thing devised. So, in the case of Loveacres n. Blight, cited from Cowp. 355, Lord Mansfield says, “ the word estate comprehends not only the land or property a man has, but also the interest he has in it.” And in Denh^. Gaskin, Cowp. 659, he puts the words, “ all my estate,” as an example of an expression tantamount to words of limitation. See also the case of Hodges v. Middleton, Doug. 434, where the argument of counsel is strong to the same effect. All the subsequent cases refei* to that of Barry v. Edgeioorth, 2 P. Wms. 523, and none of them refer to that of Chester n. Painter, in 2 Ibid. 335. The case of Bight v. Sidebotham, cited from Doug. 763, does not apply to the present case, as the words of that devise were, “ all my lands, tenements and houses,” and not all the estate, as in our case. The authority from Gilb. on Devises, p. 24, is answered by p. 25, and a reason why a fee did not pass in the case in p. 24, is, because the word estate was coupled with personalty. The case of Frogmorton v. Wright, cited from 3 Wilson 418, had no words descriptive of the testator’s interest, and the case of Fletcher v. Smit on, cited from 2 T. R. 660, is a strong case to show that the word estates will carry the fee, unless restrained by other words, clearly showing a contrary intention. A description of the place cannot, in reason, restrict the *1131 °Perati°n the word *estate, because, unless the place be named, you J cannot tell either what land, or what estate the testator meant to pass. But it is said, there is a difference between the expressions, “ all my estate,” and “ all the estate,” and that the former more clearly indicates the interest than the latter. Nothing but the refinement of ingenious men could find a diversity in these expressions. When a testator is disposing of his worldly affairs, it is his own property that* he means to dispose of, and not that of another person. When, therefore, he uses the expression, the estate, it means the same as his estate. But this subtlety of construction was soon exploded in express terms. It was suggested by the counsel, in the case of Bailis v. Gale, 2 Ves. 48, but Lord Hardwicke held, that it makes no difference which mode of expression is used. So, there was once an attempt made to distinguish between the words “ at ” and “ in,” such a place ; but 68 1805] OF THE UNITED STATES. " 113 Lambert v. Paine. this was overruled by Lord Talbot, in the case of Ibbetson v. Beckwith, Cas. temp. Talbot 157. The word “ at” was used in the case in 2 Lev. 91, and in the case before Lord Talbot. But the word “ in ” was used in the case of Barry x. Edgeworth, 2 P. Wms. 523, yet the decisions in those cases were all the same way. From this chronological view of cases, it seems clear, that the word estate, in a will, carries the whole interest of the testator, unless there are other words clearly indicating an intention to give a less estate. No such words appear in the present will; hence it follows, that the whole interest of the testator was devised to the defendant. 2. But if Doctor Gilmer took only a life-estate, yet the lessor of the plaintiff is not entitled to recover. 1st. Because John Harmer stands before him in the first will; and if the doctrine of ante-nati is correct, it applies to him as much as to Lambert, and therefore, upon the death of Doctor Gilmer, the estate vested in John Harmer, who was the person last seised. But *the special verdict does not find Lambert to be the heir of John Harmer, but of George Harmer, which is wholly immaterial. If Lam-bert is not the heir of the person last seised, he cannot recover. For if the first devise to John Harmer took effect, the contingent devise to Lambert could not ; and therefore, if the latter is entitled at all, it must be as heir of John Harmer, and not as devisee of George Harmer. Equitable estates are governed by the same rules as estates at law. George Harmer died in 1786; John Harmer died in 1793. Either John Harmer was an alien, or he was not. If he was not an alien, then he took , under the devise, and it is not stated who was his heir. If he was an alien, then he was, or was not, competent to take as devisee. If competent to take, then the record does not state Lambert to be his heir. If he was was not competent to take under the devise, neither is Lambert, for the same reason. But if Lambert can take as devisee, so could John Harmer, and the lessor of the plaintiff must then show a title under him. The will states John Harmer to be the testator’s brother, and Lambert to be his sister’s son ; but it does not thence, follow, that he was heir-at-law of John Harmer ; for the sister might be of the half-blood. Everything must appear in the special verdict to complete the plaintiff’s title ; and upon the strength of his own title only can he recover. But the doctrine of ante-nati is not correct. The king, under whose allegiance the two were born, is the common bond which connects the inheritable blood. The English doctrine is, that a man can never expatriate himself, and hence, they have allowed our citizens, born before the revolution, to inherit to British subjects. But, by the revolution of 1776, and the declaration of independence, new relations took place. A new sovereignty was created, to which British subjects, not in this country at that time, never owed allegiance, and therefore, they can have no inheritable blood as to lands in this country. But it is said, that Lambert, if an alien, could take and hold, until office found. *If Lambert, as an alien, could take, so could John Harmer, and therefore, upon his death the inheritance devolved upon the com- ‘ mon wealth, without office. Co. Litt. 2 b; 1 Bac. Abr. 81. An alien can never take by operation of law, and therefore, a £eme alien cannot be endowed, nor can an an alien be tenant by the curtesy. 1 Bac. Abr. 83. An 69 115 SUPREME COURT [Feb’y Lambert v. Paine. alien purchaser may take and hold, until office found ; and may protect himself against an ejectment, because no one who has not a better title, can recover against the possessor. But he cannot maintain an ejectment. If John Harmer took anything, it was the reversion in fee, subject to the lifeestate of Gilmer. If John Harmer died before Gilmer, then, upon the death of John Harmer, this reversion vested in the commonwealth. If Gilmer died before John Harmer, then, upon the death of the latter, the whole estate vested in the commonwealth. Then, as to the treaty of 1794. John Harmer having died in 1793, and the inheritance being, by his death, cast upon the commonwealth, it was not a subject within the meaning of the treaty. John Lambert did not, at that time hold the land, for it had gone to the commonwealth of Virginia. The treaty did not intend to divest a right actually vested in the commonwealth. Mason, in reply.—The word estate may mean the interest as well as the thing ; but whether it is to have that sense annexed to it or not, depends upon the intention of the testator, collected from the whole circumstances of the case. All the facts found- by the verdict are to be taken into consideration, to form a correct idea of the testator’s intention. By the first, he clearly meant to give the fee to his brother and his heirs. The second will does not expressly revoke the first, and contains nothing which can be construed into an implied total revocation, unless the word estate conveys a fee to Doctor Gilmer. All the cases which have been cited, are governed entirely by the intention of the testator. Where the intention was to pass a fee, there the word estate has been adjudged sufficient to carry the intention into effect. The words “the estate called Marrowbone,” in common acceptation, mean the tract of land called Marrowbone. They cannot neces-sarily *mean the fee-simple, because the estate would still be called J Marrowbone, whether the interest was for life or for years. The case of Chester v. Painter, 2 P. Wms. 336, has not been overruled. It is consistent with all the other cases. It did not appear to be the intention of the testator to give the fee, and therefore, although the word estate was used, it was held, that the fee did not pass. • This shows that the word estate is not alone sufficient. Where words may be used in a large or in a contracted sense, the true construction is to be sought only by the intention of the person using them. In the present will of 1786, there is no preamble stating it to be the intention of the testator to dispose of all his estate by that will; nor is there any residuary devise. As the first will is not expressly revoked, the two wills are to be considered as forming but one will. In such a case, the rule of construction is, that every clause shall be carried into effect, if possible. No repugnance shall be presumed, if the whole can stand together ; and if one construction will reconcile the various parts, and another will make them repugnant, the former is to be adopted. To suppose, that the word estate, in the last will, conveyed the fee, would be to create a repugnance to the first will, and therefore, that construction is not to be given to the word, if it will bear another. It must be admitted, that it uay be used in two senses. In one, it means the thing and the interest; in the other, it means the thing only. The one may be termed the technical, and the other the 70 1805] OF THE UNITED STATES. Lambert v. Paine. 116 common sense of the word. By giving it the latter construction, the two parts of the will can be reconciled, and therefore, that construction ought to be adopted. * It is conceded, that the legal estate in the trustees cannot be set up against the cestui que trust. It ought also to be admitted, that this doctrine holds between those parties only ; but as to everbody else, the trust and the legal estate remain separate, to support the trust. In such a case, the commonwealth cannot take by office found, but must sue in chancery to have the trust executed for its benefit. It will not be contended, that the trustees were not competent to take and hold the property in trust. The *de vises to John Harmer and r*jj^ John Lambert were contingent. If the contingency has not happened, the trustees still hold, for the purpose of executing the trust, when the contingency shall happen. John Harmer died in 1793, before the contingency happened upon which his devise depended. Upon his death, John Lambert’s right under the will accrued. He had a title under the trust ; and the treaty of 1794 protects it. The treaty is a nullity, unless it protects such rights as this. If it protects, only good and indefeasible titles, it is wholly-useless, for such titles can protect themselves. But if any right vested in J ohn Harmer, then the title of Lambert is good as his heir-at-law. For the jury have found him to be heir-at-law of George Harmer; but he could not be the heir of George, if John left any children ; and if John left no children, then is Lambert heir to John. The conclusion is irresistible; as much so, as if the jury had found it. As to the objection that Lambert’s mother might be sister of the half-blood, it would prevent him from being heir to George as well as to John. February 18th, 1805. This cause was again argued at this term by the same counsel, before Cushing, ^aterson, Washington and Johnson, Justices. Marshall, Ch. J., having formerly been of counsel for one of the parties, did not sit, and Chase, J., was absent. The argument took nearly the same course as before. Minor, for the plaintiff in error, in addition to his argument as already reported, contended, that the rule of the common law, which requires words of limitation to create a fee-simple, was never departed from, until after the statute of wills ; and even then, the courts did not depart from, but only softened, the rule ; and that only in cases where the intention was clear to pass, the fee. Timewell v. Perkins, 2 Atk. 103. He then went into a minute examination of the following cases, viz : Beawes v. Blackett, Cowp. 240; Bailis v. Gale, 2 Ves. 48; Wilson v. Bobertson, 2 Lev. 91; s. c., 1 Mod. 100; Countess of Bridgewater n. Duke * of Bolton, 1 Salk, 236; Goodwin v. Goodwin, 1 Ves. 228; Tanner n. Morse, Cas. temp. Talb. 284; Tanner v. Wgse, 3 P. Wms. 295; Beachcroft v. Beachcroft, 2 Vern. 690; and Ibbetson v. Beckwith, Cas. temp. Talb. 157; and from the whole, deduced this principle, that the intention of the testator must be so clear as not to admit of a doubt; for if there is the smallest ground of doubt, the court will not disinherit the heir. He also cited the case of Markant y. Twisden, from Eq. Cas. Abr. 211, pl. 22, where it was held, that the words “ all the rest and residue of my estate, chattels, real and personal,” carried only a life-estate; and the case of. 71 118 SUPREME COURT [Feb’y Lambert, v. Paine. Howman n. Mitbanke^ 1 Lev. 130, in which the words were, “ I give all to my mother, all to my mother.” Yet there, although every feeling of the heart is engaged in support of that filial piety which could so fervently speak its intention of giving his whole estate to his mother, it was held, that the land did not pass. In our case, the feelings are all thrown into the opposite scale: the devise is to a stranger, in exclusion of the heir; and that heir the very brother to whose bounty the testator was indebted for this very estate. “ Uncertain words in a will must never be carried so far as to disinherit the heir-at-law. And though there be words which of themselves would disinherit him, yet, if they come in company with other words which render their import less forcible, they ought to be construed favorably for the heir ;” Shaw n. Dull, 12 Mod. 594; in which case, thè words of the devise were, “ and all the overplus of my estate to be at my wife’s disposal, and make her my executrix.” In the case of Moore v. Denn, 2 Bos. & Pul. 247, the words of the will were, “ First, I give and devise unto my kinsman, Nicholas Lister, all that my customary or copyhold messuage or tenement, with the appurtenances, situate and being in Ecclesfield aforesaid, as the same is now in the tenure or occupation of Valentine Sykes ; all the rest of my lands, tenements and hereditaments, either freehold or copyhold, whatsoever or wheresoever, and also all my goods, chattels and personal estate, of what nature or kind soever, *1191 after payment *of my just debts and funeral expenses, I give, devise J and bequeath the same unto my loving wife, Sissily Carr, and I do hereby nominate and appoint her sole executrix of this my last will and testament.” Upon this devise, it was decided, by the house of lords, on a writ of error, that the wife took only an estate for life. In the present case, it is sufficient for us, if the words of the will are doubtful; for if the intention to devise the fee is not clear, beyond all doubt, the presumption is in favor of the heir-at-law. 2. Upon the question of alienage, in addition to the authorities produced on the former argument, he cited Vaughan 279, pl. 5, and 286, pl. 3, that a person born in the plantations may inherit lands in England; and 2 Tuck, edit, of Bl. Com., App. p. 53, 54, 61, 62, that the ante-nati of England, who remained British subjects, after the declaration of independence, were still capable of inheriting lands in America, or holding those which they already possessed, (a) Key, for the defendant in error, upon the question of the devise, took the same ground as in his former argument. (6) There is a difference in the (a) Johnson, J.—Does not the last clause of the will of 1786 show that the testator meant, by that will, to dispose of his whole estate ? Mason.—That clause relates only to personal estate. The word property is coupled with negroes and horses, which shows in what sense he meant to use it. But if it comprehends the reversion of the real estate, yet, as he appointed no person to make the sale, the reversion would descend to the heir-at-law, until some person should be appointed by proper authority, to carry that clause of the will into effect. (&) Washington, J.—Is the will of 1782 so executed and recorded as to pass lands ? Key.—The jury have found that he executed it, and it is not necessary that a will 72 1805] OF THE UNITED STATES. 119 Lambert v. Paine. effect of the word “ estate ” when used in the preamble of a will, or in the residuary *clause, and when used in a specific devise. When used in pigo the devising clause, it always carries the whole interest of the testator in the thing devised. An argument has been drawn from the manner in which the two othex’ estates are described ; and it is said, that because they are not called estates, but tracts of land, the devise clearly gives only a life-estate in those two tracts, and therefore, it is to be presumed, that the testatox* only meant to give a life-estate in the Marrowbone tract ; because he has coupled them all togethei’ by the words “ likewise” and “ also.” But we say, that he meant to give the fee of all the tracts to George Gilmer, and that the words are sufficiently large to carry that intention into effect. In the case of Cole, v. Rawlinson, 1 Salk. 234, the words of the devise were, “ I give, ratify and confirm, all my estate, right, title and interest, which I now have, and all the term and terms of years which I now have, or may have, in my power to dispose of, after my death, in whatevex* I hold by lease from Sir John Freeman, and also the house called the Bell Tavern, to John Billingsley and it was adjudged, that the fee of the Bell Tavern passed, by force of the words “ and also,” which caused the preposition “in” to be understood, so as to read “and also in the Bell Tavern.” So, in the present case, the three specific objects of the devise are connected by the words “ likewise ” and “ also,” and you must apply the first part of the devising clause to each subject, and read it thus : “ likewise, I give and bequeath unto Doctor George Gilmer, of Albemarle county, all the estate in one other tract of land called Horse-pasture.” The word “ likewise ” shows that he meant to give the same interest in the two other tracts, which he had given in Marrowbone. Upon the question of alienage, he contended, that by the common law, every man is an alien to that government under whose allegiance he was not born. The capacity to inherit results from the fact that the heir and ancestor both owe allegiance to the sovereign of the country where the lands lie. The right of inheritance is *derived only through one common sov- r*121 ereign. The allegiance due to that sovereign is the commune vincu- L lum which connects the heir with his ancestor, as to the tenure of lands. This common allegiance must exist at the time of the birth of the heir, and continue unbroken until the time of the descent. If this allegiance is not to be confined to the sovereign of the country where the lands lie, it would follow, that where the ancestor and heir were both natural-born subjects of a foreign state (for instance, subjects of France), and the ancestor should be naturalized in this country, and become a purchaser of lands here, the heir, although not naturalized, would still have a right to inherit those lands, because they both owed allegiance to France, their common and natural sovereign. The American ante-nati may inherit lands in England, because the ancestor and heir both owed a common allegiance to the sovereign of that country where the lands lie. But the British ante-nati never owed allegi- of lands should be recorded, under the laws of England, and the law is considered the same in Maryland. I do not object to the will on that account. 73 121 SUPREME COURT [Fob’y Lambert v. Paine. ance to the government of this country, and therefore, the British heir cannot inherit the American lands of his American ancestor. If, then, the capacity to inherit depends upon a common allegiance to the sovereign of that country where the lands are, it will follow, that when that common allegiance ceases to exist, the capacity to inherit mubt cease also. The common allegiance to the sovereign of this country ceased by the declaration of independence, or, at least, when that independence was acknowledged by the King of Great Britain, at the treaty of peace, whereby he assented to the withdrawing our allegiance ; and the principle of the common law, that natural allegiance must be perpetual, is not so rigid, but that it may be shaken off with the assent of the sovereign to whom it was due. For in 1 Hale H. P. C. 68, Lord Hale says, “that though there may be due from the same person, subordinate allegiances,” “ yet there cannot, or, at least, should not, be two or more co-ordinate absolute allegiances, by one person to several independent or absolute princes ; for that lawful prince that hath the prior obligation of' allegiance from his subject, cannot *1221 l°se ^nteres^’ without his own consent, *by his subject’s resigning J himself to the subjection of another ; and hence it is, that the natural born subject of one prince cannot, by swearing allegiance to another prince, put off or discharge him from that natural allegiance ; for this natural. allegiance was intrinsic and primitive, and antecedent to the other, and cannot be divested, without the concurrent act of that prince to whom it was first due. Indeed, the subject of a prince, to whom he owes allegiance, may entangle himself, by his absolute subjecting himself to another prince, which may bring him into great straits ; but he cannot, by such a subjection, divest the right of subjection and allegiance that he first owed to his lawful prince.” Hence, it is clearly the opinion of Lord Hale, that natural allegiance may be divested and dissolved, with the concurrent act of that prince to whom it was due ; and by a note of the editor, in the same page, it seems, that the doctrine of perpetual allegiance refers only to a private subject’s swearing allegiance to a foreign prince, and has no relation to a national withdrawing of allegiance. If the American revolution is to be considered as such a national withdrawing of allegiance, then that withdrawing was complete and perfect, even before the assent of the King of England was obtained, and the American ante-nati are as totally absolved from all allegiance to the British king, as if they had been natural-born aliens. There being, then, no common allegiance between the British and the American ante-nati, at the time of the descent cast, there can be no capacity to inherit the one to the other, even were it not necessary that the common allegiance should be to the sovereign of the country where the lands lie. Lord Holt, also, in the same page, shows in what sense Lord Coke, in Calvin's Case, and Bracton, before him, have used the expression, “ adfidem utriusque regis” He says, “it appears by Bracton, that there were very *1231 many had been anciently adfidem regis *Anglice et Francice, es- J pecially, before the loss of Normandy; such were the comes mare-schallus that usually lived in England, and M. de Faynes, manens in Francia, who were adfidem utriusque regis, but they ever ordered their homages and fealties, so that they swore or professed ligeance, or lige homage, only to one; and the homage they performed to the other, was not purely lige 74 1805] of the United states. Lambert v. Paine. 123 homage, but rather feudal, as shall be shown more hereafter ; and therefore, when war happened between the two crowns, remaneat personaliter quilibet eorum cum ei, cui fecerat ligeantiam, et facial servitium debiturn ci cum quo non steterat in persona, namely, the service due from the feud or fee he holds.” The opinion of the court in Calvin’s Case, 7 Co. 27, that if the kingdoms of England and Scotland “ should be, by descent, again divided and governed by several kings,” “those born under one natural obedience, while the realms were united under one sovereign, would remain natural-born subjects and not aliens,” was at least an extra-judicial opinion ; and it is not very clear, what is the meaning of it. Does it mean, that they would be natural-born subjects of both kingdoms, or only of that which should remain governed by the same king ? If the former, yet the case is not parallel to ours. Ours is a case where a new sovereignty has sprung up, and no person could be born under its allegiance, before its existence. According to Calvin’s Case, allegiance does not depend upon the country in which the person is born, but upon the obedience and subjection of that country at the time of the birth. A person, therefore, born before the independence of the United States, cannot be called a natural-born subject of the United States ; and if he was not here, at the time of the revolution, he cannot maintain a suit, as to lands in this country, but by virtue of some express stipulation in a treaty. Mason, in reply.—If the declaration of independence, and the treaty, totally divested all allegiance, so that the British ante-nati are aliens to us, it would equally make American ante-nati aliens to the British. But we all know, that cases have happened, in which American ante-nati have been adjudged capable of inheriting *lands in Great Britain ; and if those pi 24 British decisions were correct, they must have been grounded upon the L principle that our ante-nati were not aliens to the King of Great Britain ; and if the declaration of independence did not make us aliens to them, it could not make them aliens to us. The American revolution only discharged the political relation which subsisted between us and the crown of England. It did not destroy individual rights or capacities. The revolution was to accomplish a great national object. No one individual can be charged with it. It was a national act, to maintain national rights, and only such rights were affected by it. It only absolved our allegiance, but did not, ex necessitate, take away the capacity to inherit. Cushing, J.—Are not allegiance, and the capacity to inherit, connected together ? Mason.—Yes ; and therefore, the common law will not consider the allegiance so totally absolved, as to make him an alien who was born a subject, and thereby deprive him of the right of inheritance. Although, by the act of Virginia, in 1779, Lambert was to be considered as an alien, and incapable to sue, &c., yet that act was repealed by the treaties, and therefore, he stands just where he did before the revolution. The private rights of individuals were not affected by the revolution, except by the laws of the several states. The object of the treaties was to put individuals as nearly as possible on the same footing as before the revolution ; and the words of the treaties are sufficiently large to accomplish 75 124 SUPREME COURT Lambert v. Paine. [Feb’y that purpose. They are, “ and that no person shall, on that account, suffer any future loss or damage.” If Lambert is, on that account, to be deprived of his right of inheritance, it will be such a loss and damage as will be a violation of the treaty of 1783. *1251 *What is common law in England is common law in Virginia ; J what is law and justice there, is law and justice here. Policy, justice and magnanimity require that.we should apply the same beneficial rule to them which they have extended to us. Paterson, J.—Would not the decisions have been the same in England, if there had been no such article in the treaty ? Mason.—Yes, if there are no British statutes to prevent it; and the decisions would have been similar in Virginia, if there were no act of assembly on the subject. In >this position, I am supported by a very learned judge in Virginia (Judge Tucker), who is not suspected of any improper partiality to Great Britain, or her subjects. In his notes to Blackstone’s Commentaries, vol. 2, Appendix, p. 53, 54, -he says, “ all persons born within the United States, whilst colonies of Great Britain, were natural-born subjects of the crown of Great Britain.” “ The natives of the colonies, and the natives of the parent state, were, in consequence thereof, of equal capacity to inherit or hold lands in the different parts of the British empire, as if they had been born, and their lands situated in the same country. And, in fact, many native Americans did hold estates in England, and on the other hand, great numbers of natives of .Great Britain, who had never been in America, possessed estates in lands in the colonies. By the declaration of independence, the colonies became a separate nation from Great Britain; yet, according to the principles of the laws of England, which are still retained, the natives of both countries, born before the separation, retained all the rights of birth; or, in other words, American natives were still capable of inheriting lands in England, and the natives of England, who remained subjects of the crown of Great Britain, were still capable of inheriting lands in America, *1261 *or folding those which they already possessed.” And again, in J p. 61, he says, “by the common law, upon the separation between America and Great Britain taking place, the natives of Great Britain were constructively natural-born in America, and notwithstanding that separation, might hold lands here, as if they had been residents in America.” After mentioning the act of assembly of Virginia of May 1779, c. 55, by which they were declared aliens, he says, “by the treaty of peace, the common-law principle that the ante-nati of both countries were natural-born to both, and as such, capable of holding or inheriting in both, seems to have been revived; in consequence of which, they are now capable of holding, purchasing or inheriting, in the same manner as if they were citizens.” As to the question of the devise, it is not denied, that the word estate is sufficiently large to carry the fee ; nor, that the intention of the testator is to govern the construction of the will. But we contend, that the word estate is not alone sufficient to carry the fee. It is only a word which courts will lay hold of, to effectuate the intention of the testator : but then the intention to pass a fee must be clear, beyond all manner of doubt, before the court will disinherit the heir-at-law. 76 1805] OF THE UNITED STATES. 126 Lambert v. Paine. March 1st, 1805. The judges now delivered their opinions seriatim. Johnson, J.—This is a writ of error from the circuit court of Virginia to reverse a judgment in ejectment given for the defendant. The circumstances of the case come out on a special verdict, from which it appears, that George Harmer, under whom both parties claim, was a citizen of the state of Virginia. That on the 25th June 1782, he made a will, by which he devised “ all the estate, both real and personal,which (he) possessed, or was entitled to, in the commonwealth of Virginia,” to certain trustees *“ in trust and upon these conditions : that when John Harmer, (his) brother, (then) a subject of Great Britain, shall be capable of acquiring L property in this country, then they, or the survivor of them, do convey, or cause to be conveyed, to him, in fee-simple, a good and indefeasible title in the said estate;” and in case John Harmer should not be capable of acquiring such right, before his death, he then directs the conveyance to be executed to his nephew, the plaintiff; and in case of his not being capable of acquiring lands, before his death, he directs the estate to be sold and the proceeds paid over to other relations. In the year 1786, George Harmer executes another will, which, as every part of it is material to the case before us, I will peruse at length. (Here he read the will of 1786.) The testator died soon after executing the last mentioned will. His brother, John Harmer, died in 1793, having never become a citizen. The jury further find, that John Lambert, the plaintiff, is a British subject, was born before the revolution, viz., in the year 1752, and is heir-at-law to the testator. The treaties with Great Britain, and.an act of Virginia, vesting in George Gilmer any interest that may have escheated, are also found in the verdict. The land sued for is a part of the Marrowbone tract. The questions suggested are, 1. What estate is conveyed to George Gilmer by the will of 1786 ? 2. If but an estate for life, does the will of 1782 remain unrevoked as to the remainder, so as to convey it to the plaintiff ? 3. And last. Is John Lambert disqualified to inherit as an alien ; oV, if incapable, generally as such, is he not protected by the treaties existing between this government and Great Britain, particularly the 4th article of the treaty of London ? To form a judgment on the first point, it is necessary to -consider, *1. The general import and effect of the word estate, as applied to a devise of realty. 2. Whether its general import is controlled or L altered by the subsequent words, used in a similar sense, in the will of 1786. I consider the doctrine as well established, that the word estate, made use of in a devise of realty, will carry a fee, or whatever other interest the devisor possesses. And I feel no disposition to vary the legal effect of the word, whether preceded by my or the, or followed by at or in, or in the singular or plural number. The intent with which it is used is the decisive consideration ; and I should not feel myself sanctioned in refining away the operation of that intent, by discriminations so minute as those which have been attempted at different stages of English jurisprudence. The word estate, in testamentary cases, is sufiiciently descriptive both of the subject and the interest existing in it. It is unquestionably true, that its meaning may be restricted, by circumstances or expressions indicative of its 77 .128 SUPREME COURT [Feb’y Lambert v. Paine. being used in a limited or particular sense, so as to confine it to the subject alone ; but certainly, in its general use, it is understood to apply more pertinently to the interest in the subject. To one not accustomed to the discriminations of technical refinement, it would seem, that no doubt could be entertained as to the interest devised to Gilmer. The plain, ordinary import of the words would convey the idea of an absolute disposition of every article of property disposed of by the will. That words of inheritance are necessary to convey a fee, is certainly a good general rule of the common law ; but, in the case of wills, it is entirely subordinate to expressions of the testator’s intention. In the case before us, there is no necessity for extending the decision of the court beyond the words made use of in disposing of the Marrowbone tract. But it is contended, that the words adopted by the testator, in devising the two other tracts, are used in the same sense as those in the first * q devising clause, and being of a *more restricted signification, ought -I to limit the word estate to a description of the mere locality. I think otherwise. When a word is made use of, to which a clear legal signification has been attached, by successive adjudications, it ought rather, in my estimation, to control the meaning of those of a more equivocal purport. But the construction of a will ought to depend much more upon the evident intent of the testator, than upon the strict import of any term that he may make use of. Too critical an examination of the diction of a will, is rather calculated to mislead the court, than to conduct it to a just conclusion. I infer the intent of the testator, in the case before us, from the following circumstances, extracted from the special verdict. 1. In the first clause of the will of 1782, the testator makes use of the expression “ all the estate, both real and personal, which I possess, or am entitled to, in the commonwealth of Virginia,” evidently under an impression that the word estate is sufficient to convey a fee ; because, out of the estate, thus devised to his trustees, he instructs them to convey to his brother, or nephew, in the alternative stated, a good and indefeasible title in feesimple. 2. There is no reason to infer, from anything in this case, that the testator intended only to make a partial disposition of his property; that he intended to die intestate as to any part of it. The fair presumption generally is, that he who enters upon making a will, intends to make a full distribution of everything that he possesses. That such was the particular intention of this testator, I think fairly inferrible from the general nature of the residuary bequest. The word other, in my opinion, is referrible to the whole preceding part of the will, and excludes, as well the lands devised to Gilmer, as the negroes and horses which he directs to be sold. We must give it this construction, or else suppose, either that the word property, here used, is confined to personalty, or, that it includes everything that he possessed, both real and personal; in which latter case, it would comprise even „ „1 the lands previously disposed *of. It follows, therefore, that in the J clause in which he proposes to dispose of the whole residue of his property, he omits making any disposition of any interest in the lands in question ; evidently, as it impresses me, upon the supposition, that he had already disposed of his whole interest in them. What object could the testator propose to himself, by dying intestate as to the remainder in fee, in 78 1805] OF THE UNITED STATES. Lambert v. Paine. 130 the lands in question ? He knew that his heir-at-law was an alien, and, as, such, incapable of holding lands under a government to which he did not owe allegiance. This circumstance is evident, from the will of 1782 ; and it is equally evident, from the same will, that he felt that repugnance, which is common to all men, at the idea of suffering his lands to escheat, and knew the means of preventing it. I am, therefore, of opinion, upon the first point, that George Gilmer took a fee in the land which is the subject of this suit, and this opinion disposes also of the second point, and renders it unnecessary for me to consider the third. Washington, J.—The only question in this cause which I mean to consider is, whether the will of George Harmer, made in 1786, passes to George Gilmer an estate in fee, or for life, in the Marrowbone land. The words of the clause containing the bequest are “ I give to Doctor George Gilmer, of Albemarle county, all the estate called Marrowbone, lying in Henry county, containing, by estimation, 2585 acres, and likewise, one other tract called Horse-pasture, containing, by estimation, 2500 acres; also one other tract containing, by estimation, 66 7£ acres, called the Poison-field.” The rule of law most certainly is, that where, in a devise of real estate, there are no words of limitation superadded to the general words of the bequest, nothing passes but an estate for life ; -but since, in most cases, this rule goes to defeat the probable intention of the testator, who, in general, is unacquainted with technical phrases, and is presumed to mean a disposition of his whole interest, unless he uses words of limitation, courts, to effectuate this intention, will lay hold of general expressions in the will, which, from their legal import, comprehend the whole interest *of the testator in the thing devised. But if other words be used, re- L straining the meaning of the general expressions, so as to render it doubtful, whether the testator intended to pass his whole interest or not, the rule of law which favors the right of the heir must prevail. Thus, it has been determined, that the words “ all my estate at or in such a place,” unless limited and restrained by other words, may be resorted to, as evidence of an intention to pass, not only the land itself, but also the interest which the testator had in it. But words which import nothing more than a specification of the thing devised, as “ all my lands,” “ all my farms,” and the like, have never been construed to pass more than an estate for life, even when aided by an introductory clause, declaring an intention to dispose of all his estate. Except for the establishment of general principles, very little aid can be procured from adjudged cases, in the construction of wills. It seldom happens, that two cases can be found precisely alike, and in the present instance, I do not recollect that a single one was read at the bar which bears an analogy to it. The case of Wilson v. Robinson, which comes the nearest to it, is of doubtful authority. No reasons are given by the court for their opinion, and consequently, it is impossible to know, whether it was or was not influenced by other parts of the will. Ibbetson v. Beckwith was decided upon a manifest intent to pass the inheritance, arising out of the different parts of the will taken together, amongst which is to be found an introductory clause which, the chancellor says, affords evidence that the testator had in view his whole estate. The cases of The Countess of Bridge- 79 131 SUPREME COURT [Feb’y Lambert v. Paine. water v. The Dulce of Bolton, ¿nd Bailis v. Gale, only lay down the general principle, which is not denied, that the' word 11 estate ” in a will, standing alone, and unqualified by other words, is sufficient to pass the whole of the testator’s interest. The words “ all my land and estate,” in the case of Barry n. Edyeworth, express so plainly an intention to give a fee, that I only wonder a question could have been made of it. They are quite as strong as if the testator had given the land, and all his interest in the land, where the word estate or interestj unless construed as was done in that case, would have been perfectly nugatory. In Goodwin v. Goodwin, the Chancellor doubted whether the word estate was not so limited and restrained by strong words of locality and description as to deprive it of the interpretation generally given to it. * 1 *In the case now under consideration, there is no introductory . J clause, declaratory of an intention in the testator to dispose of the whole of his estate ; yet, I admit, that if he had devised all his estate called Marrowbone, without using other words calculated to limit the technical meaning of the word estate, the cases cited by the defendant’s counsel would establish, beyond a doubt, that a fee passed. But I cannot read this clause of the will, without feeling satisfied, that the testator did not mean to use the word estate in its technical sense. For he not only varies the description of the tracts of land called Horse-pasture and the Poison-field, so as to show that, with respect to them, he only meant to describe their situation and quantity ; but by using the word 11 other,” it is plain, that with respect to the Marrowbone estate, his design was the same. Unless, in the disposition of this latter estate, he had described or intended to describe it, as so much land, he could not, with any propriety, speak of the Horse-pasture estate as another tract of land. It will hardly be said, that the devise of the last tracts passes more than an estate for life, unless the word estate, before used, can be transferred to those tracts, so as to impart to the expressions there used, the technical meaning given to the word estate, where it stands alone. But I cannot perceive how this is to be done, without supplying words not used by the testator, and which there is no necessity for doing, in order to make sense of the clause as it stands. It would, I think, be going too far, to supply more than is necessary to make each devise a complete sentence, and then to introduce the preposition “ in ” for the purpose of making sense of the whole. Yet, if this be not done, the word estate cannot, in respect to the Horse-pasture and the Poison field tracts, be pressed into the service, and made in any manner to fit the sentence. If only an estate for life in the Horse-pasture and the Poison-field tracts passed to George Gilmer, it will, I think, be very difficult to maintain that the word estate, in the same sentence, governed by the same verb, and coupled with the words which describe those tracts of land, can be construed to pass a fee. The testator certainly uses the words estate and tract of land as synonymous expressions ; and then the question will be, whether the generality of * the first shall enlarge *the plain and usual import of the latter words, J or, the latter restrain the technical meaning of the former ? I know of no case, where the word estate is used at all, in which its general import is limited and restrained by so many and such strong expressions descriptive of the land, and totally inapplicable to the interest of the testator, as 80 1805] OF THE UNITED STATES. 133 Lambert v. Paine. in the present. The words, the estate called Marrowbone, lying in Henry county, containing, by estimation, so many acres, excite, at first, no other ideas than such as respect the name and situation of the land,with the number of acres contained "in it. The description would be equally accurate, whether the interest of the testator were a fee, or a term for years. If, then, we are to search after and to effectuate the intentions of men, supposed to be unacquainted with legal phrases, and are, on that account, to construe the words they use, with indulgence, I think, we shall be more likely to fulfil this duty, by limiting the general import of a technical word, which, in its common use, is entirely equivocal, and is rendered particularly ambiguous in this case, by the words which immediately attend it, than by giving to the words “ tract of land,” a meaning which they do not, in themselves, import, and are seldom, if ever, used to express more than a local description of the thing itself. As the opinion of a majority of the court is in favor of the defendant, upon the construction of the will, I do not think it necessary to say anything upon the doctrine of alienage, as that question may possibly come on, in some other case, in which it must be decided. Paterson, J.—The devise in the will of George Harmer was intended to convey some interest in the Marrowbone farm to George Gilmer ; and the quantity of interest, whether for life or in fee, is the question now to be considered. It is a fundamental maxim, upon which the construction of every will must depend, that the intention of the testator, as disclosed by the will, shall be fully and punctually carried into effect, if it be not in contradiction to some established rule of law. In such case, the intention must yield to the rule. This intention is to be collected from the instrument itself, and not from extrinsic circumstances: and therefore, the *will of . A. can afford little or no aid in discovering the intention and expound- L ing the will of B. Indeed, the number of cases which are usually cited in arguments on devises, tend to obscure rather than to illuminate. When, however, a particular expression in a will has received a definite meaning, by express adjudications, such definite meaning must be adhered to, for the sake of uniformity of decision, and of security in the disposal of landed property. It cannot be questioned, that the word “ estate” will carry everything, both the land and the interest in it, unless it be restrained by particular expressions ; for estate is genus generalissimum^ and comprehends both the land and the inheritance. 1 Salk. 236; 6 Mod. 106; Pr. Ch. 264; 2 P. Wms. 524; Cas. temp. Talbot 157; 1 Ves. 226 ; 2 Ibid. 179; 3 Atk. 486; 5 Burr. 2638; 1 T. R. 411. The word “estate” is the most general, significant and operative that can be used in a will, and according to all the cases, may embrace every degree and species of interest. If the word “estate” stand by itself, as if a man devise “all his estate to A.,” it carries a fee, from its established and legal import and operation. Standing thus per se, it marks the intention of the testator, passes the inheritance to the devisee, and controls the rule in favor of the heir-at-law. It is true, that this word, when coupled with things that are personal only, shall be restrained to the personalty. Nbscitur à sociis. The word “ estate ” may also, from the particular phraseology, connected with the apparent intent of the testator, assume a local form and habitation, so as to limit its sense to the land itself. Here, uncommon par- 3 Ceanch—6 81 134 SUPREME COURT [Feb’y Lambert v. Paine, ticularity of description is requisite, so as to leave the mind perfectly satisfied, that the thing only , was in contemplation, and nothing more. A description merely local cannot be extended beyond locality, without departing from the obvious import of the words ; and thus "making, instead of construing, the will of the testator. But when no words are made use of, to manifest the intention of the testator, that the term “ estate ” should be taken, not in a general, but in a limited signification, then it will pass a fee; because the law declares, that it designates and comprehends both the subject and the interest. Nay, such is the legal import and operation of the word “ estate,” that it carries a fee, even when expressions of locality are annexed. *1351 ^o illustrate this position by apposite and adjudged *cases : If a J man, in his will, says,.“ I give all my estate in A.,” it has been held, that the whole of the testator’s interest in such particular lands passed to the devisee, though no words of limitation are added. 2 P. Wms. 524. So, the word “estate” was held to carry a fee, though it denoted locality, “as my estate at Kirby-Hall.” Tuffnel v. Page, 2 Atk. 37; s. c. Barnard. Ch. 9. On which, Lord Hardwickr observed, that though this is a locality, yet the question is, whether it is such a locality as is sufficient to show the testator’s intention merely to be to convey the lands themselves, and not the interest in them. He was of opinion, that the words were descriptive both of the local situation, and the quantity of interest. And in Ibbetson v. Beckwith, Lord Talbot observed, that the word “ estate,” in its proper, legal sense, means, the inheritance, and carries a fee. Why, indeed, may not locality and interest be connected, and the same words express and convey both. To exclude interest in the subject, the expressions coupled with the word “ estate ” must be so restrictive and local in their nature, as to convey solely the idea of locality, and not to comprehend the quantum of interest, without doing violence to the words and intention of the testator. Besides, it is a just remark, repeatedly made by Lord Hardwigke and Lord Mansfield, that where a general devise of land is narrowed down to an estate for life, the intention of the testator is commonly defeated, because people do not distinguish between real and personal property; and, indeed, “common sense would never teach a man the difference ;” and therefore, judges have endeavored to make the word “ estate,” in a will, amount to a devise of the whole interest, unless unequivocal and strong expressions are added, to restrict its general signification. It would be a laborious and useless task, to enter into a minute and critical investigation of the great variety of cases which bear on this subject. They are collected in a note by the editor of Willes’ Rep. 296. From the whole scope and complexion of the will of George Harmer, it is evident to my mind, that the testator intended to dispose of all his property, both with regard to the quantity and quality thereof. He did not mean to die intestate, as to any part of his estate; but on the contrary, it was his manifest intention, to leave nothing undisposed by his will. He *1361 ^rects ^at a^ his negroes, *horses and other property be sold, &c., J which plainly indicates what his intention was in regard to the lands which he had previously devised. This last clause evinces and illustrates the meaning of the testator, and removes every particle of doubt from my mind, as to the true construction which ought to be put on the word “ estate.” 82 1805] OF THE UNITED STATES. 136 Lambert v. Paine. To effectuate this intention, the term “ estate ” is to be taken in its largest signification, as comprehending both the subject and the interest, the land and the inheritance. Amidst the great mass of cases arising on wills, it is impossible to select any two that are exactly similar. The variety of expressions is infinite; and it is from the language, that we are to discover the intent. The same word, indeed, may be taken in a different sense in different wills, and even in different parts of the same will, owing to its juxtaposition, its associations, and the manner in which it is placed and used. The case of Bailis v. Gale, in 2 Ves. 48, may serve to elucidate the devise under review, in more points than one. “ I give to my son, Charles Gale, all that estate I bought of Mead, after the death of my wife.” These expressions seem strongly to mark locality in contradistinction to interest. But, what says my Lord Hardwicke? “I am of opinion, that both the thing itself, and the estate, property and interest the testator had, pass by the devise. Several questions have arisen in courts of law and equity, on devises of this kind; but all the latter determinations have extended and leaned as much as possible to make words of this kind comprehend, not only the thing given, but the estate and'interest the testator had therein. But it is objected, the pronoun “ my ” is not added; there was no occasion for it. It was necessary, he should use such words as point out the whole interest in the land, which is sufficiently done by the other words ; for he bought of Mead, the land and the fee-simple in the land; which is agreeable to the construction of the word estate, being sufficient to describe the thing, and the interest, as it is in the case of all my estate.” So, in the present will, the words, “ I give all the estate called Marrowbone,” contain a description of the land, and the interest in it. The case in Vesey is particularly *applicable, and worthy of attention, in another * , respect, as it affords a complete answer to the distinction which was •- 137 ingeniously raised, and attempted to be sustained between the import of the word “ my ” and “ the ” in devises like the present. The counsel for Lambert contended, that the word the, “ all the estate,” was descriptive of the thing ; whereas, the word my, “ all my estate,” was descriptive of the interest as well as of the thing. But, in the case of Bailis v. Gale, Lord Hardwicke held, with great clearness, that there was no difference between a device of all my estate at N., and a device of all the estate at N.; and that a fee passed, in either case. Nor ought this opinion to be considered as extrajudicial; for the counsel in Bailis v. Gale insisted, that the pronoun my was necessary to make the devise carry a fee; and therefore, it claimed, very properly, the notice and decision of the court. According to this opinion, a devise of the estate called Marrowbone, in the county of Henry, must have precisely the same construction and effect, as a devise of all my estate called Marrowbone, in the county of Henry; which, it appears to me, would unquestionably give a fee. Some expressions in a will, as, “I give my farm, my plantation, my house, my land,” do, of themselves, contain no more than a description of the thing, and carry only an estate for life, because unconnected with words of inheritance, or other words of a similar import. For we are not permitted to enlarge the estate of a devise, unless the words of’ the devise itself be sufficient for that purpose. In the present devise, the words, “ all the estate 83 137 SUPREME COURT [Feb’y Lambert v. Paine. called Marrowbone,” are competent to carry the degree of interest contended for on the part of the defendant; and this construction accords with the intention of the testator, as disclosed by his will. Whether it would not have been more beneficial to society, to have observed, from the first, the same technical phraseology and strictness of legal terms in devises, as in conveyances of landed property, is a question which may amuse the theoretical jurist; but which, as judges, we cannot seriously discuss; for it is a leading axiom in our system of jurisprudence, not to be shaken by judicial authority, *1 qsl intent of the testator, so far as it is consistent with the prin- J ciples of law, must be attended to, and control the decision. I am, therefore, of opinion, that the words, “ I give to George Gilmer all the estate called Marrowbone, in the county of Henry,” give a fee, being descriptive equally of the quantity of interest, and locality of the thing devised. Cushing, J.—The first question in this case is, whether the devise to George Gilmer, in the will of George Harmer, made in 1786, carries a fee, by the words “ all the estate called Marrowbone, in the county of Henry, Containing, by estimation, 2585 acres of land,” &c. Wills are expounded more favorably, to carry the intent of the testator into effect, than conveyances at common law, which take effect in the lifetime of the parties; wills being frequently made by people enfeebled by age or indisposition, and without the aid of counsel learned in the law. Therefore, words not so technical for the purpose, have, in a great variety of cases, for above a hundred years, been construed by the judges, to carry a fee, which would not do so in a deed. In a number of cases, the word “ estate ” has been determined to comprehend the whole interest in the land. Among those adduced, there are several which appear to me essentially in point to the present case. In the case, 2 Lev. 91 (a case which has since been held, by good judges, to be good law), a devise of “ all my tenant-right estate, at B., in Underbarrow,” was determined to import a fee. I see no essential difference between that case and this ; except the particle “ the ” instead of the pronoun “ my,” which, in common sense, and in the opinion of Lord Hardwicke, makes no difference. “ All the estate ” is, at least, as extensive and comprehensive as “ all my estate.” In 2 P. Wms. 523, the words 11 all my lands and estate in Upper *1 on] Catesby, in Northamptonshire,” were adjudged *to carry a fee. That J agrees with the case at bar, except that the word “ lands,” precedes “ estate,” which I think immaterial. “ Estate ” is the most operative word. In the case of Ballis v. G-ale, 2 Ves. 48, a devise of “ all that estate that I bought of Mead,” was determined by Lord Hardwicke to be of a fee. This, I think, is substantially like the case at bar ; and by him, that, the or my, makes no material difference. Add to this, what seems to make the point conclusive, the testator appears to have a design to dispose of his whole estate. The other cases cited do not appear to contradict these ; but, varying in some circumstances, seem not so directly applicable ; yet, by the spirit and reasonings attending them, they tend to confirm the rectitude of the other decisions which are more directly in point. The latter part of the devise in question, of several tracts of land immediately succeeding the devise of “ all the estate called Marrowbone, in the county of Henry,” &c., if considered as not carrying a fee, I conceive, would 84 1805] OF THE UNITED STATES. 139 Hodgson v. Butts. not, however, control or restrict the prior part of the devise of " all the estate called Marrowbone,” &c. Rather than that, I should suppose the former part would carry spirit and meaning to the latter. But that is not necessary now to be determined. This first point being determined in favor of the defendant, the former judgment must be affirmed. *Hodgson v. Butts.1 [*140 ClMttd-mortgage. A mortgage of chattels, in Virginia, is void as to creditors and subsequent purchasers, unless it be acknowledged, or proved by the oaths of three witnesses, and recorded in the same manner as conveyances of land are required to be acknowledged or proved, and recorded.2 Error to the Circuit Court for the district of Columbia, sitting at Alexandria, in an action for money had and received, to recover from the defendant, who was master of the schooner Mississippi, the amount of freight received by him, subsequent to the mortgage of the said schooner, by R. & J. Hamilton (the former owners) to the plaintiff. On the trial of the general issue, the plaintiff took two bills of exception, and the verdict was for the defendant. The first bill of exceptions stated the following facts : That the plaintiff, to support his claim, produced a deed from R. & J. Hamilton, by which they bargained and sold to the plaintiff, the schooner Mississippi, then in the port of Alexandria, and the cargo of the ship Hannah, then at sea, as security to indemnify and save harmless the plaintiff, as indorser of their notes, to the amount of $10,000. If they should indemnify him within-----------days after the arrival of the cargo on the ship Hannah, if it should arrive before the return of the schooner Mississippi from her then intended voyage to New Orleans ; or, if the cargo of the Hannah should not arrive, before the return of the schooner, then within-------------------------------------days after her return, the deed should be void: but, if they should fail to indemnify the plaintiff, within the periods mentioned, then he was to sell the cargo of the Hannah, and the schooner and cargo, o The deed also contained the following covenant: “ And we do moreover bind ourselves, our executors and administrators, and also the freight and inward cargo of the said schooner Mississippi, to exonerate the said William Hodgson from,” &c. “ It being the true intent and meaning of these presents, to bind ourselves, our schooner called the Mississippi, her tackle, *apparel and furniture, her freight and inward cargo, and the cargo of the ship Hannah, to exonerate,” &c. L The execution of the deed was in the following form : “ In witness whereof, the said Robert and James Hamilton have hereunto set their hands and affixed their seals, this fourth day of May 1800. Signed, sealed and delivered, ) Robt. & Jas. Hamilton. (Seal.) in the presence of j Ch. Simms, James D. Lowry. 1 See s. o., in the court below, 1 Cr. 0. 0. Lee v. Huntoon, Hoffm. Ch. 447; Sturtevant’s 447, 488. Appeal, 34 Penn. St 149. 2 United States Bank v. Lee, 13 Pet. 107; 85 141 SUPREME COURT [Feb’y Hodgson v. Butts. “ At a court of hustings, held for the town of Alexandria, the 6th of October 1800, this bill of sale, from Robert and James Hamilton to William Hodgson, was proved to be the act and deed of the said Robert Hamilton for self and for James Hamilton, by the oaths of Charles Simms and James D. Lowry, witnesses thereto, and ordered to be recorded. G. Deneale, Clerk.” The plaintiff also produced in evidence the register of the schooner, with an indorsement thereon in these words, “ At the request of the within named Robert and James Hamilton and William Hodgson, merchants, of the town of Alexandria, I hereby certify, that the within mentioned vessel is mortgaged by the said Robert aud James Hamilton to the said William Hodgson, to secure the payment of the sum of ten thousand dollars, as witness my hand, this thirteenth day of May, one thousand eight hundred. Chas. Page, D’y Coll’r.” It was proved, that the said register, with the indorsement thereon as aforesaid, was delivered to the defendant, previous to the sailing of the said schooner. That *she sailed from Alexandria to New Orleans, about J the 14th of May 1800, from New Orleans to Jamaica, and from Jamaica, she arrived at Alexandria, about the 27th of November 1800 ; at which time, and not before, she was put into the actual possession of the plaintiff, under a new. and absolute bill of sale, executed by Robert and James Hamilton to the plaintiff, at that time. That the defendant received the freight of the cargo carried from New Orleans, at Jamaica. No evidence was adduced to show that the plaintiff had ever given notice to the defendant, that he should look to him for the freight (other than the indorsement on the register). On the part of the defendant, evidence was adduced, to prove that R. & J. Hamilton, on the 12th May 1800, were indebted to a certain John Haynes, in the sum of $384, for wages as a seaman, previously earned ; $184 of which were earned on board the said schooner, and $200 on board another of their vessels. That being so indebted,_ R. Hamilton, on the 13th of May 1800, gave the said Haynes an order on his brother James, then in New Orleans, stating a balance of $384 to be due to him, with some interest, and requesting his brother to pay it. That on the same day, they were indebted to the defendant, in the sum of $800, for wages due him, as master of, and disbursements on account of, the schooner, on a previous voyage, which sum R. Hamilton requested his brother James, at New Orleans, to pay, by letter of that date. That the defendant received his sailing orders and instructions from R. Hamilton, in the name of R. & J. Hamilton, on the 14th of May 1800, before he sailed from Alexandria. That the vessel was conducted entirely under the directions of R. & J. Hamilton, from the date of the mortgage, on the 4th of May 1800, until the 27th of November 1800, when she was delivered to the plaintiff. That on the voyage from Alexandria to New Orleans, the defendant met James Hamilton, in the river Mississippi, and showed him the orders in favor of the defendant and of John Haynes, and requested payment. That James Hamilton replied, that he had no money to satisfy the said orders; that the defendant *must wait until the vessel earned enough to pay J them, and desired the defendant to pay them out of the first money 86 1805] OF THE UNITED STATES. 143 Hodgson v. Butts. the vessel should earn, by freight or otherwise. That the vessel proceeded to New Orleans, and from thence, with a cargo, to Jamaica, where the freight was received, and out of the same, the defendant paid Haynes the $384, and applied $800 to the discharge of his own claim. That the vessel then sailed from Jamaica, and arrived at Alexandria on the 27th of November 1800. That after her arrival, and after possession delivered to the plaintiff, the latter paid the expenses and disbursements of the voyage, which became due on her arrival, by the orders of the defendant. The plaintiff also insured the vessel for the said voyage, and paid the premium thereon, after her departure for New Orleans. It was also proved, that on the defendant’s return to Alexandria with the vessel, and before the plaintiff took possession of her, and received his absolute bill of sale as aforesaid, the defendant rendered to, and settled with, R. & J. Hamilton, an account-current of the expenses and profits on the said voyage, in which they gave credit for the order in favor of himself, and that in favor of Haynes. Upon this statement of the evidence, the plaintiff prayed the court to instruct the jury, that he was entitled to recover of the defendant the sum of $1184, thus admitted to have been received for freight, and applied to the discharge of the two orders; which the court refused to do, and directed the jury to find a verdict for the defendant, if they found the facts to be as stated. • The 2d bill of exceptions stated, that the plaintiff prayed the court to instruct the jury, that if they should be of opinion, from the evidence aforesaid, that the defendant received information of the mortgage from Robert Hamilton, before the schooner sailed upon the said voyage, the plaintiff was entitled to recover the said $1184; which the court also refused to do, and directed the jury, as before, that their verdict ought to be for the defendant. This case was first argued at February term 1804. *February 27th, 1804. «Z Lee, for the plaintiff in error.—The law of mortgages is the same both as to land and personal property. •-The case is to be considered, 1st, upon common-law principles ; and 2d, upon the statute law of Virginia.” 1st. That the mortgagee is the legal proprietor of the mortgaged subject ; and as such, he is entitled to receive the rents and profits, after notice of the mortgage, unless the contrary be stipulated. The mortgagee of lands leased becomes entitled to the rent, from the time of executing the conveyance ; for the rents and profits, as well as the land, are liable for the debt. As soon as the conveyance is executed, the estate is, in law, vested in the mortgagee, and his power to take actual possession exists from that moment. For these principles, see Powell on Mortgages, 79, 80, 81. The mortgagee is the absolute proprietor and the true owner. Ryall n. Rowles, 1 Ves. 361. If lands be mortgaged to one, the interest in them is in the mortgagee, before forfeiture ; for he has purchased the lands upon a valuable consideration, as the law will intend ; and though the mortgagor may redeem, by means of an agreement between the parties, if he does not, the estate, in law, is absolute, without any other act to be done, to pass the estate; 87 144 SUPREME COURT [Feb’y Hodgson v. Butts. although the mortgagor has in him the equity of redemption. 15 Vin. Abr. 44. A mortgage is defined to be the appropriation of a specific thing to certain purposes. It does not, in the case of a mortgage, require the delivery of the article, in order to transfer the right and title to it. *A mortgagee of real property may bring an ejectment to get pos-J session, against any person in possession ; and may also bring an action for the mesne profits ; so he may bring trover for personal property, and in the estimation of his damages, a charge for the intermediate produce or profits of the article converted, would not be rejected, but would be taken into the account. So, he may bring detinue, without any proof of possession in the mortgagee. 2d. Possession, upon common-law principles, is not necessary, in order to give title in the transferree of property. It is true, that possession in the vendor, after the transfer, is primd facie evidence of fraud, and this is the only effect of such possession ; but as to the proof of fraud, it is not conclusive. It may be rebutted, by testimony showing the transaction bond fide. The only use in delivering possession, is to prevent strangers being deceived by a false credit, which the possession in the vendor is calculated to produce. This reason cannot be applicable, in this case, to Butts : 1. Because Butts knew of the mortgage : 2. Because the debt due to him from the Hamiltons was an antecedent debt. If the Hamiltons had been declared bankrupts, their assignees could not have claimed the vessel or the freight; because both were pledged as a security to Hodgson. See the bankrupt law of the United States. Upon common-law principles, the mortgagee must be considered as the legal proprietor of the vessel. 3d. But the act of the legislature of Virginia places the question beyond a doubt, and proves that possession is not necessary to constitute the ownership. See Virginia Laws, 157, Revised Code of 1802 ; 1 Wash. 177. The legal owner of the vessel is entitled to receive the freight. Marshall on In-*1401 surance> $3. *The mortgagee of a vessel, in a late case, has been J considered as the owner, and as such, liable for repairs done to her before he received actual possession. 7 T. R. 306. In this case, the decision in Chinnery n. Blackburne, 1 H. Bl. 117, is not considered as correct. The two cases of Jackson v. Vernon, 1 H. Bl. 114, and Chinnery v. Blackburne, which will be relied on by the defendant, will, upon examination, be found not to meet the question which arises in this case. In the case of Jackson v. Vernon, the question was, whether the mortgagee was liable for the repairs to the ship ; it was decided, he was not, because, the mortgagor himself ordered the repairs ; as the person who makes repairs on a ship, has a claim on the person ordering them, it was supposed, the credit was given to him, and upon this ground, it was held, the mortgagee was not liable. In the case of Chinnery v. Blackburne, Merryfield acted as the owner ; he navigated the vessel, and made all contracts about her, from London to Antigua. He was on board of her, on the voyage, and at Antigua, gave the command of the vessel to another master ; he also insured the vessel; and at Antigua, acted personally in command of the ship. This is not like the case at bar ; for in this, Hamilton did not furnish the vessel, nor man her, after the mortgage, nor did he insure her; but Hodgson did the last act. 88 1805] OF THE UNITED STATES. 146 Hodgson v. Butts, But both cases are doubted in the case 7 T. R. 306, and by Abbott 16, who says, they do not furnish a case for the decision of the question, who is entitled to the freight, which a case of a contract made by the master in that character will ; which is our case. There is a distinction in a court of equity and a court of law, where the mortgagor acts as the master of the vessel. In the court of equity, he is considered as owner ; but not so, in a court of law. Marsh. 452-3. Hamilton never acted as master. *4th. The contract, in words, binds and includes the freight. To which it is objected, that future freight is too remote an interest to *-be transferred ; freight, or a hope, or expectation, is such an interest as may be insured ; and if insurable, it may be granted. Goods, as well as their expected produce, may be granted. Free, in Chan. 285. It is not competent for Butts, who claims under Hamilton, to object that the freight is not included or passed by the deed. Cowp. 600. 5th. The objection, that Robert Hamilton exercised authority over the vessel, by giving instructions, is not of any weight, in the mouth of Butts ; because Butts had a full knowledge of the lien of Hodgson ; and also, because it does not appear that Hodgson authorized this interference. The directions of James Hamilton, that Butts was to wait until the vessel earned enough to pay him, is also without weight ; because James Hamilton was ignorant of the arrangement which his partner had made ; and of which Butts might have informed him ; but not having done so, he is the more culpable. 6th. Hamilton had no right to appropriate the freight to any other person, than that specified in his deed of mortgage. If he had not, Butts, his servant, had not. Butts must be considered, either as the servant of Hamilton, or of Hodgson ; if the servant of the former, and undertakes to act as such, he had no right to apply the money in the manner he did. If he undertook the command, as Hodgson’s servant, he had no right to apply the freight to the payment of a debt due from Hamilton. 7th. Butts having accepted of the command of the vessel, with a full knowledge of the lien upon her, and her future freight, he tacitly consented to apply the freight according to the agreement between Hamilton and Hodgson ; if he intended otherwise, at the *time, he has been guilty of a fraud which ought not to avail him in a court of law. *• 8th. The master had no lien for his $800, due for his own wages on the vessel. The mate had no lien on this vessel for $200, they being earned on board of a different vessel, and in a different voyage. The balance of the mate’s wages was only $184. The mate, by accepting an order on James Hamilton, for $384, the whole of the wages due him, agreed to accept payment in a different way from the usual one ; which destroys the lien on the vessel for the $184. Salk. 131. Besides, for this $184, Butts, as the master of the vessel, when it was earned, was liable ; and the moment he paid that sum, the mate’s lien was gone. The master has no lien on the vessel, for the wages he pays the seamen, but has on the freight, for the wages of the voyage in which the freight was earned. The mate, by assigning the bill on James Hamilton, could not assign any lien he had on the vessel. 9th. As to the justice of the case. Hodgson has paid the seamen’s 89 148 SUPREME COURT [Feb’y Hodgson v. Butts. wages for the voyage which earned the freight; and Butts is to receive the benefit. Jones, control.—1st. As to the validity of the deed; and 2d. As to its effect, if valid. 1st. The vessel was in port at the time of the deed, and therefore (possession not having been delivered), it is void as to creditors. The possession is dispensed with, only when the vessel is at sea. Stevens v. Cole, 1 Cooke’s B. L. 339; Hall v. Gurney, Ibid. 357; Ryall v. Rolle, 1 Wils. 260; and the case of Russell v. Hamilton, in this court (1 Cr. 309). As to the act of assembly, if the deed would have been bad, without recording, there is nothing in the act to make it good. From affirmative words, a negative may be sometimes implied, but not £ converse. The words of the act are, “all deeds of trust and mortgages whatsoever *shall J be void as to all creditors and subsequent purchasers, unless they shall be acknowledged or proved, and recorded according to the directions of this actthat is to say, a deed, although good in every other respect, yet if not acknowledged or proved, and recorded, shall be void. It cannot possibly be construed, to make good a deed which would have been before fraudulent. 2d. The deed is also void, for want of containing the register according to the directions of the act of congress. (1 U. S. Stat. 294, § 14.) This act is mandatory, and if the construction of the act of assembly contended for is correct, the register is necessary ; for the affirmative words of the act of congress imply a negative as strongly as the act of assembly implies an affirmative. 3d. The plaintiff waived this deed, by taking possession under a new and absolute deed of the same property, before the mortgage was forfeited, and before he had exercised any right of ownership. This new deed implies a new consideration, and that a new bargain was made, by which the old contract was waived. 4th. The consideration of the deed was indemnity. A mere possibility of suffering is not a sufficient consideration against third persons. It is only good between the parties. II. As to the effect of the deed, if valid. The plaintiff, by the terms of the deed itself, could not meddle with the schooner, until — days after her return from her then intended voyage-to New Orleans, and a failure on the part of the mortgagors to indemnify him ; and his only authority then would be to sell the vessel and cargo, if not previously sold by the mortgagors. If, then, the defendant did know of the mortgage, he must be presumed to know the whole terms, and that the plaintiff could not interfere until long after his return. He also knew that, before a forfeiture of the mortgage, and while the mortgagor holds the possession, the latter is to be considered the owner. Jackson v. Vernon, 1 H. Bl. 114, and Chinnery n. Blackburne,VvA. 117. Even in the case of lands, a mortgagor has been * -. held to *be a freeholder, and entitled to vote at elections. And the J mortgagee of a leasehold estate cannot be sued by the lessor, as assignee of the lessee, until the mortgagee is in possession, although the mortgage be forfeited, and he has a right of possession. Eaton v. Jacques, Doug. 455 ; Keech v. Hall, Ibid. 22. 90 1805] OF THE UNITED STATES. 150 Hodgson v. Butts. The mortgagors had a right to receive the freight, and if so, they had a right to appropriate it. The freight is not like rent, which is said to grow out of the land. It depends upon a mere personal contract. If they had received the freight, their receipt would have been good against the plaintiff. As to the payment of the expenses of the voyage by the plaintiff, it was voluntary. He had his reasons. He made a new contract, and paid the money after he had possession undei- his absolute purchase of the vessel. The extrajudicial doubts of Lord Kenyon and Abbott cannot control the strong and decisive cases of Jackson v. Vernon, and Chinnery n. Blackburns. As to the covenant respecting the freight, it is merely a personal contract, and the plaintiff trusted to the personal security of the mortgagors. Even if they had sold the inward cargo, the plaintiff could not recover against the vendees. But the freight was not even a chose in action ; it was only a possibility; it was not in being, and therefore, not capable of a legal assignment. Swann, in reply.—The vessel was of less value when she returned, than when she was mortgaged, by at least the difference of the freight. Hodgson paid the expenses of the voyage. It is equitable, therefore, that he should receive the freight. The defendant had no lien on the vessel or freight. Two questions seem to arise in this cause. 1. What relation does the mortgagor stand in to the mortgagee ? 2. What relation does the defendant stand in to both ? *1. By the English law, possession must accompany the deed, except as to vessels at sea. But here possession is not necessary, if the L deed be proved and recorded in a certain manner. It is then as valid, to all intents and purposes, as if possession had been delivered with the deed. The Court said, he need not argue that point: it had been settled, (a) Swann.—What, then, are the rights which it conveys ? As to mortgages of lands, the law is settled ; but not so in the case of a mortgage of a ship. In England, it is settled, that a mortgagee of a ship in possession, is entitled to all the rights of property : but if a vessel be mortgaged while at sea, some doubts have arisen. But here, by the statute, the deed has the same effect as if possession had been given. The mortgagee, therefore, has all the right of property ; and if in the thing itself, he has it also in its profits. But this is not a mere mortgage. It is also an assignment of the freight itself. It is said to be the general understanding, that the mortgagor shall enjoy the profits, until forfeiture, or possession given to the mortgagee. But if the mortgagor covenants expressly that the mortgagee should receive the profits, this destroys the tacit presumption that the mortgagor should receive them. At best, a mortgagor is only “ like a tenant at will,” and the mortgagee may put an end to his right of taking the profits whenever he pleases. He has the legal title to the rent.' Moss v. Gallimore, Doug. 282. But it is said, that the freight was not in esse, and therefore, could not be the subject of an assignment. But if the covenant doesnot operate as an assignment of the freight, it is sufficient to destroy the tacit understanding, that the mortgagors were to receive and might dispose of it as they pleased. (a) Probably alluding to the case of Claiborne v. Hill, 1 Wash. 177. 01 151 SUPREME COURT [Feb’y Hodgson v. Butts. 2. In what relation does the defendant stand to the other parties ? Here was no fraud on him. He had notice of the mortgage, and the appropriation *1521 the freight to secure *the plaintiff, before the vessel sailed. He J took an order for his money on James Hamilton ; which shows that vzhen he sailed, he did not depend upon the profits of this voyage, as to his claim of $800. If he had any lien on the freight, it was only for his wages arising during the same voyage. If there was any fraud, it was on his side. He never disclosed his claim to the plaintiff, before he sailed, nor after his return, until the plaintiff had paid the expenses of the voyage. The record of the mortgage was notice to him, even if we had not proved actual knowledge on his part. The mortgagors and the defendant, as their agent, were trustees for the plaintiff. If a mortgagee of lands chooses to lie by, and not demand the rents, and the tenants pay them to the mortgagor, they shall be protected. But why ? Because they had not notice. But if they pay the rent to the mortgagor, after notice from the mortgagee, they pay in their own wrong. This is the case of the defendant: he knew that the mortgagors had no right to appropriate the freight. February 28th, 1804. Marshall, Ch. J., mentioned to the counsel, that the court had doubts whether the mortgage was not void, for want of three witnesses, under the act of assembly (Revised Code, p. 165), for regulating conveyances. They, therefore, continued the cause, to ascertain whether any, and what decisions, has been made in Virginia upon that point. February 25th, 1805. E. J. Zee, for the plaintiff in error.—The question now is, is it necessary that the mortgage should be proved by three witnesses ? By the second member of the 2d section of the statute to prevent frauds and perjuries, it is declared, “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 that act, unless the same be, by will duly proved and recorded, or by deed in writing acknowledged or proved ; if the same deed include lands *also, in such manner as conveyances for lands are J directed to be proved and recorded, or if the conveyance be of goods and chattels only, then acknowledged or proved by two witnesses in the general court, or the court of the county in which* one of the parties live, within eight months, or unless possession shall really and bond fide remain with the donee,” &c. By this law, if the conveyance is of goods and chattels, for a consideration not deemed valuable in law, and is proved by two witnesses, or possession is with the donee, it gives a title. From this part of the act, the natural and only inference is, that if a conveyance is for a consideration deemed valuable in law, it must be valid, and transfer property as absolutely as a conveyance for a consideration not deemed valuable, proved by two witnesses. The latter part of this section includes a mortgage, or any other conveyance with a condition or limitation. The first branch of the 2d section declares, that all conveyances not made with a view to defraud creditors or purchasers, are good, and does not require its being recorded. The 3d section of this act refers to the first branch of the 2d section, both being taken from the statute of Elizabeth. The whole of the 4th section of the act regulating conveyances, relates to four different objects : 1st. An estate of freehold in lands; 2d. An estate of inheritance in lands; 3d. An estate for a 92 1805] OF THE UNITED STATES. 153 ! Hodgson v. Butts. term of years in lands; 4th. Deeds of settlement upon marriage, wherein lands, slaves, money or other personal thing shall be settled or covenanted to be left, or paid at the death of the party, or otherwise, and all deeds of trust or mortgages whatsoever, that is, the consideration of which is marriage, or which relate to lands. These general words are to be construed as referring to thie previous subject-matter of this section, and of the previous sections. *If the act against frauds and perjuries include not this deed, then we are to inquire, what was necessary, at common law, to pass a *-title to property. Personal property, at the common law, might be acquired, the books say, in twelve different ways. Among them, one is by grant or contract. A contract is an agreement, upon a sufficient consideration, to do, or not to do, a particular thing. No particular form is prescribed as to making the contract, whether it must be in writing or otherwise ; it is sufficient, if the contract is proved. And all persons who have notice of the contract are bound by it. If A. sell to B., verbally, in the presence of C., a horse, and C. afterwards buy the same horse of A., will it be said C.’s title is good ? No, because the contract with B. transfers the property. 2 Black. Com. 447, 448. The contract for the freight is good ; the law does not require a contract to pay money out of a particular fund to be recorded. The whole tenor of the act for regulating conveyances shows that it relates to real estate only, except in the single case of marriage settlements, which are specially provided for. But there is another error apparent in the record. The plaintiff paid to the defendant the seamen’s wages, upon the faith of receiving the freight. If he was not entitled to receive it, he has paid those wages by mistake, and may recover them back in this action against the defendant, to whose orders they were paid. Swann, on the same side.:—The 4th section of the act for regulating conveyances says, that all deeds of trust and mortgages whatsoever, shall be void, unless they shall be recorded according to the directions of that act; that is, in the county where the “land conveyed lieth.” Where, then, is a deed of mere personal property *to be recorded ? This shows, that the legislature meant only deeds of trust and mortgages of land. *- C. Lee, on the same side, contended, that there was no statute respecting conveyances of personal property on valuable consideration. The statute of frauds speaks only of conveyances made on consideration, not deemed valuable in law. The word good consideration, in the 3d section, means valuable consideration, otherwise it would be repugnant. Jones, contra.—It is contended, now, that if the mortgage is void, and the plaintiff had no right to receive the freight, he has paid the expenses of the voyage by mistake, and can recover upon that ground. But there is no evidence that the expectation of the freight was his motive for paying those expenses. On the contrary, he did not pay them, until after he had taken possession of the -vessel, under a new contract, as an absolute purchaser. The record does not state how much he disbursed, and therefore, we cannot say, how much he is entitled to recover back, even if he is entitled to recover anything. But the defendant never received the money from the plaintiff 93 155 SUPREME COURT [Feb’y Hodgson v. Butts. for those disbursements. It is true, he gave orders to the plaintiff to pay, but those orders were not for his own use, and he never actually received the money. ' ' March 2d, 1805. Marshall, Ch. J., delivered the opinion of the court. —This suit was instituted to recover the freight of a vessel of which the plaintiff was a mortgagee. Upon inspecting the deed, which is the foundation of the action, it appears to have been admitted to record, on the oath of only two subscribing witnesses. This suggested the preliminary question, whether a deed of mortgage, so recorded, was not absolutely void as to creditors and subsequent purchasers ? This question depends on the construction of two acts of the legislature of Virginia. The first is entitled “ an act for regulating conveyances the 4th section of that act is in these WOrds, *a All bargains, sales,” &c. The first member of the sentence • J relates to lands only ; the second to marriage settlements, wherein either lands or personal estate should be settled ; and the third relates to deeds of trust and mortgages. Terms descriptive of personal estate are omitted, but the word “whatsoever” would certainly comprehend a mortgage of a personal chattel, as well as of lands, if not restrained by other words manifesting .an intent to restrain them. .It is argued, that this intent is clearly manifested. The whole act relates to real estate, except that part of it which respects marriage settlements. Its title is “ an act concerning conveyances,” and all its provisions are adapted to the conveyance of lands, except in thè particular case of marriage settlements ; and in that case, the act provides expressly for recording a settlement of chattels. This act, it is said, contains no “ directions ” for recording a deed of trust or mortgage for a personal thing, and consequently, such deed cannot be within it. The first section of the act respects conveyances of lands only, and directs, that they shall be acknowledged or proved by the oath of three witnesses in the general court, or court of the district, county, city or corporation in which the lands lie. The second respects marriage settlements, and directs, that if lands be conveyed or covenanted to be conveyed, they shall be proved and recorded in the same manner as had been prescribed in the first section ; but if only slaves, money or other personal thing be settled, the deed is to be proved and recorded before thè court of the district, county, or corporation in which the party dwells, or as afterwards directed. The third section relates only to the proving and recording of livery of seisin. Then follows the fourth section, which requires, among other enumerated conveyances, that “all deeds of trust and mortgages whatsoever” shall be void as to creditors and subsequent purchasers, if not acknowledged or proved, and recorded “according to thè directions *of the act.” There being no “direc-tions” which are applied to mortgages, unlèss lands be conveyed in them, it has been argued, that such mortgages only as convey lands, are comprehended within the act. The act, it must bè acknowledged, is very obscurely penned, in this particular respect, and there is so much strength in the argument for confining it to mortgages of lands, that, if a mortgage of a personal chattel could be brought within the provisions of any other act, the court would be disposed to adopt the construction contended for. 94 1805] OF THE UNITED STATES. 157 Hodgson v. Butts. The plaintiff insists, that such a mortgage is comprehended in the 2d section of the “ act to prevent frauds and perjuries.” That act avoids fraudulent conveyances ; and declares, that deeds of personal chattels, not upon a valuable consideration, where the possession remains with the donor ; or a reservation of interest in the donor, where possession passes to the donee, shall be fraudulent and void, unless proved and recorded according to the directions of the act. A mortgage made on a valuable consideration would be very clearly excluded from the 2d section, although the act contained nothing further on the subject. But to remove the possibility of doubt, the 3d section declares, that the act shall not extend to any conveyance made “ upon good consideration and bond fide.” The meaning of the word “ good,” in the statute of frauds, is settled to be the same with “ valua-. ble.” It is, therefore, perfectly clear, that the case is altogether omitted, or is provided for in the act concerning conveyances. In a country where mortgages of a particular kind of personal property, are frequent, it can scarcely be supposed that no provision would be made for so important and interesting a subject. The inconvenience resulting from the total want of such a provision would certainly be great ; and the court, therefore, ought not to suppose the case to be entirely omitted, if there be any legislative act which may fairly be construed *to comprehend it. The act concerning con- r*jgg veyances, although not penned with that clearness which is to be L wished, does yet contain terms which are sufficient to embrace the case, and the best judicial opinions of that state concur in this exposition of it. Although the point was not directly decided in the case of Hill v. Claiborne^ the court of appeals appear to have proceeded on this construction; and Judge Tucker, in discussing this subject, avows the same opinion. Upon a consideration of the acts on this subject, Butts being a creditor, it is the opinion of the court, that the deed of mortgage, in the proceedings mentioned, was void as to him. The counsel for the plaintiff contends, that, although the mortgage deed be void, yet Hodgson is entitled to recover, because he has paid money to the order of Butts, under the mistaken opinion that he was entitled to the freight. This allegation is not made out, in point of fact. Hodgson was in possession of the vessel, as the absolute purchaser, before he paid for the disbursements he is now endeavoring to recover. It does not appear, that he paid these disbursements, in the confidence of receiving the freight, or that he was not compellable to pay them, as owner of the vessel. The freight had previously been applied by Butts, under the authority of the Hamiltons, to the payment of a debt due to himself. He had a right, as a general creditor, to retain that freight, as against the original owners, or their assignee. The court is of opinion, that the judgment of the circuit court is to be affirmed, with costs. 95 *159 SUPREME COURT [Feb’y ^United States v. Benjamin More, (a) Jurisdiction in error. No appeal or writ of error lies in a criminal case, from the judgment of the circuit court of the District of Columbia. Queers ? Whether the act of congress, abolishing the fees of justices of the peace, in the District of Columbia, can affect those justices who were in commission when the act was passed ? Error to the Circuit Court of the district of Columbia, sitting at Washington, upon a judgment in favor of the traverser, on a demurrer to an indictment for taking unlawful fees, as a justice of the peace for the county of Washington. The indictment was as follows : “United States, District of Columbia and County of Washington, to wit: The jurors for the United States, for the district of Columbia, and county of Washington aforesaid, upon their oath present, that Benjamin More, late of the county of Washington aforesaid, gentleman, on the 10th day of December, in the year of our Lord, one thousand eight hundred and two, then being one of the justices of the peace of the United States, for the county of Washington aforesaid, at the county of Washington aforesaid, by color of his said office, unlawfully and unjustly did demand, extort, receive and take of and from one Richard Spalding, constable, acting for and on behalf of one Joseph Hickman, the sum of twelve cents and a half cent, lawful current money of the United States, for and as his fee, for executing and doing the duties of his said office, to wit, for rendering and giving judgment upon a warrant for a small debt, in a case between the said Joseph Hickman, plaintiff, and one Joseph Dove, defendant; in Contempt of the law, to the great damage of them the said Richard Spalding and Joseph Hickman, and against the peace and government of the United States. John T. Mason, United States Attorney, for the district of Columbia.” *To this indictment there was a general demurrer and joinder, and J judgment in the court below for the traverser, at July term, 1803.(6) (a) Present, Marshall, Ch. J., Cushing, Paterson, Chase, Washington and Johnson, Justices. (6) In the court below, the opinions of the judges were delivered to the following effect. C ranch, J.—The question to be decided upon this demurrer is, whether the act of congress, for abolishing the fees of justices of the peace, in the District of Columbia, can affect those justices who were in commission before, and at the time when that act passed, and who accepted their commissions, while those fees were legally annexed to the office. The points made in the argument of this cause are important, and some of them not altogether clear of doubt. It has been contended, that congress, in legislating for the District of Columbia, are not bound by any of the prohibitions of the constitution. But this is a doctrine to which I can never assent. Can it be said, that congress may pass a bill of attainder for the District of Columbia ? That congress may pass laws ex post facto in the district, or order soldiers to be quartered upon us in a time of peace, or make our ports free ports of entry, or lay duties upon our exports, or take away the right of trial by jury, in criminal prosecutions. Yet, all this they may do, if, in legislating for the District of Columbia, they are not restricted by the express prohibitions of the constitution. The words must be positive and strong, indeed, to justify such a construction. The only clause from which such an inference can possibly seem to flow, is that 96 1805] OF THE UNITED STATES. 4 *161 United States v. More. * Mason, attorney for the United States for the district of Columbia. The act of congress, February 27th, 1801, *§11 (2 U. S. Stat. 107), declares, “that there shall be appointed in and for each of *- which says, “congress shall have power to exercise exclusive legislation, in all cases whatsoever, over such district,” &c. But the whole instrument is to.be taken together, and every part is to be made consistent with the residue, if possible. That congress may legislate “ in all cases whatsoever, over such district,” &c., is the general proposition, and the prohibitions are the exceptions. The true construction is, that congress may legislate for us, injill cases where they are not prohibited by other parts of the constitution. The express commands of "the constitution operate as prohibitions of everything repugnant to such commands. In every case, therefore, where congress are not bound, either by the commands or prohibitions of the constitution, they have a discretionary power to legislate over the district. The constitution was made for the benefit of every citizen of the United States, and there is no such citizen, whatever may be his condition, or wherever he may be situated, within the limits of the territory of the United States, who has not a right to the protection it affords. If congress are bound by the constitution, in legislating for this district, then it becomes proper, to test the validity of their legislative acts, respecting the district, by the provisions of the constitution. The 3d article of the constitution provides for the independence of the judges of the courts of the United States, by certain regulations ; one of which is, that they shall receive, at stated times, a compensation for their services, which shall not be diminished during their continuance in office. The act of congress of 27th of February 1801, which constitutes the office of justices of the peace, and empowers them to try personal demands, of the value of $20, ascertains the compensation which they shall have for their services in holding their courts, and trying those causes. This compensation is given in the form of fees, payable when the services are rendered. The causes of which they have cognisance, are causes arising under the laws of the United States, and therefore, the power of trying them is part of the judicial power mentioned in the third article of the constitution, which expressly declares, that the judicial power of the United States shall extend to all cases arising under those laws. It is difficult to conceive, how a magistrate can lawfully sit in judgment, exercising judicial powers, and enforcing his judgments by process of law, without holding a court. I consider such a court, thus exercising a part of the judicial power of the United States, as an inferior court, and the justice of the peace as the judge of that court. It is unnecessary, in this cause, to decide the question whether, as such, he holds his office during good behavior ; but that his compensation shall not be diminished, during his continuance in office, seems to follow as a necessary consequence from the provisions of the constitution. It has been contended, that the compensation of the justice of the peace is not within this provision of the constitution, because the act of congress has not appointed the stated times at which it shall be paid. It is true, that the act of congress has not said, that the compensation shall be paid on any particular day and month ; but it may, perhaps, be a compliance with the clause of the constitution, which requires that it shall be receivable at stated times, to say, that it shall be paid when the service is rendered. And we are rather to incline to, this construction, than to suppose the command of the. constitution to have been disobeyed. If, therefore, the constitution of the United States is obligatory upon congress, when legislating for this district; if a justice of the peace is a judge of an inferior court of the United States ; and if his compensation has once been fixed by law, a subsequent law for diminishing that compensation (à fortiori, for abolishing it) cannot affect that justice of the peace, during his continuance in office ; whatever effect it may have upon those justices who have been appointed to office since the passing of the act. Marshall, J., concurred. 3 Cranch—7 97 *163 SUPREME COURT [Feb’y United States v. More. the said counties (in the district of Columbia), *such number 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 five *liUl *years. And such justices, having taken an oath for the faithful -1 and impartial discharge of the duties of the office, shall, in all mat- Kilty, Ch. J.—This is an indictment at common law, against the defendant, a justice of the peace, for having, under color of his office, exacted and taken an illegal fee, as therein described. The demurrer admits his being a justice, and the exaction and receipt of the fee, and rests the defence on the legality of such conduct. The legality of exacting and taking fees, under color of a public office, must depend on the express authority of law, and, therefore, the question must turn upon the acts which have passed on this subject, as it respects the district of Columbia. The justices of the peace were allowed, expressly, to receive fees for their services, by the act of February 1801, § 11, and by the 4th section of the act of March 1801, they were, as commissioners, entitled to certain fees and emoluments. It is possible, that if the 11th section had only provided for the appointment of justices, without speaking of their fees, the .1st section, adopting the laws of the two states, might have had the effect of giving them the fees provided by the laws of Maryland. But an inquiry into this part of the subject is not important, because, as it has been observed in the course of the argument, so much of those two acts as provides for the compensation to the justices, is repealed by the act of May 1802 ; and it is not material, to determine by which of the sections the provision was made. The act of 1802, § 8, having positively declared that this provision was repealed, and having thereby left no power existing to demand the fees before allowed, it remains only tv examine into the ground on which the latter act is alleged to be unconstitutional ano oid. According to the course which has been pursued by the suprem court, it appears unnecessary to say anything about the power of a court to examine into the constitutionality of a law, until a case has been made out to justify such an inquiry. But, taking the power for granted, we are to inquire how it is called for in the present instance. In testing an act of the legislature by the constitution, nothing less than the positive provisions of the latter can be resorted to, and without absolute restriction by the constitution, the legislative power is omnipotent over subjects submitted to it. We must, therefore, reject the idea of judging this act on the principles of a contract, and setting it aside as an infraction of such contract. In support of the position, that the act of May 1802, is unconstitutional and void, the following arguments have been urged: 1. That a justice is a judicial officer. 2. That a justice is a court. 3. That a justice shall receive for his services a compensation, which shall not be diminished, during his continuance in office; and that, therefore, taking away his fees, by repealing the act which gave them, is diminishing his compensation, and is contrary to the constitution. The nature of some of the duties confided to a justice of the peace may make him a judicial officer ; and he might even be admitted to be a court, without bringing him .within the provisions of the constitution. The first section of the third article speaks of the judicial power of the United States. It declares what courts it shall be vested in, and then provides, that the judges of such courts shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. When we consider this instrument as constituting a general government, and defining, amongst others, its judicial power, we must take it in its most extensive sense, as applying to the whole of the United States, and not to a particular territory. I consider, therefore, that the judicial power given to the traverser, as a justice of the peace, is not, in the sense of the constitution, the judicial power of the United States; and that such justice is not such a court as is provided for in the article and section in question. The justice does not, according to that article and section, hold his office 98 1805] OF THE UNITED STATES. *165 United States v. More. ters, civil and criminal, and in whatever *relates to the conservation of the peace, have all the powers vested in, and shall perform all the duties required of, justices of the peace, as individual magistrates, by the laws herein before continued in force in those parts of the said district for which they shall have been respectively appointed ; and they shall have during good behavior ; nor can the power of receiving certain fees, which was given by the act of 1801, be strained to mean “ receiving at stated times a compensation for his services.” The second section of the third article declares what subjects the judicial power, given by the first section, shall extend to. And by comparing these subjects with those which are cognisable by the justice in the present case, it will confirm the position, that this judicial power is not that of the United States, and is not provided for by this part of the constitution. Congress, in organizing the judiciary, according to the constitution, have created a supreme court, and inferior courts. Some of the latter extend over certain circuits composed of different states, and others are confined to the respective states ; but in all of them, it is the judicial power of the United States which is carried into effect. I consider this judicial power as being different in its object and nature from that which may be the effect of the legislative power given to congress over this territory, or of their power to make rules, &c., for such places as may become their property. • In order to show that the restrictions contained in the first section of the third article of the constitution do not extend to a justice, in the district of Columbia, it may be necessary to make some inquiry into the principles on which the district is erected. Without endeavoring to solve all the difficulties which have been mentioned in the course of the argument, I am persuaded, that the following positions are correct : That the district of Columbia, though belonging to the United States, and within their compass, is not, like a state, a component part, and that the provisions of the constitution, which are applicable particularly to the relative situation of the United States and the several states, are not applicable to this district. That the $ower of congress to legislate for the district arises from the positive direction of the constitution, in the 8th section of the first article ; and it may be here material to attend to the words “ exclusive legislation,” and to discover their meaning and origin. By the constitution, the legislative power of congress is confined to certain objects, and leaves to the several states a portion of the legislative power which they before possessed. But it was the intention of the framers of the constitution, to divest the ten miles square of the privileges of a state, and to give to congress the whole and exclusive power of legislation, as well on the subjects which had been left to the states, as on those which had been taken from them and given to the general government ; that the ten miles square is not in a situation to become a state, wifhout an amendment in the constitution, and therein differs from the other territories belonging to the United States ; that the word “exclusive” meaning only free from the power exercised by the several states, the legislative power to be exercised by congress may still be subject to the general restraints contained in the constitution, though it includes subjects both of a general and local nature. Thus, they are restrained from suspending the writ of habeas corpus, unless in the cases allowed ; from passing (within and for the district) a bill of attainder, or ex post facto law; from laying therein a capitation tax ; from granting therein any title of nobility ; from making therein a law respecting the establishment of religion, or abridging the freedom of speech, or of the press and from quartering soldiers therein, contrary to the third amendment. But when congress, in exercising exclusive legislation over this territory, enact laws to give or to take away the fees of the justices of the peace, such laws cannot be tested by a provision in the constitution, evidently applicable to the judicial power of the whole United States, and containing restrictions which cannot, in their nature, affect the situation of the justices, or the nature of the compensation. 99 165 SUPREME COURT [Feb’y United States v. More. cognisance in personal demands to the value of §20, exclusive of costs, which sum they shall not exceed, any law to the contrary notwithstanding ; and they shall be entitled to receive for their services, the fees allowed for like services by the laws herein before adopted and continued in the eastern part of said district. By the 4th section of the act of congress of 3d March 1801 (2 U. S. Stat. 115), the magistrates are constituted a board of commissioners, with certain duties and fees annexed to that office. And by the act of 3d of May 1802, § 8 (2 U. S. Stat. 194) it is enacted, “ that so much of two acts of congress, the one passed on the 27th of February 1801, entitled “an act concerning the district of Columbia,” the other passed the 3d day of March 1801, supplementary to the aforesaid act, as provides for the compensation to be made to certain justices of the peace thereby created,” “ shall be, and the same is hereby repealed.” The question for the decision of this court is, whether congress had a constitutional right thus to abolish the fees. Jones, contra.—By the act of 1801, certain fees were annexed to the office of justice of the peace. The traverser was appointed under that act, and * ^ees *were thus annexed, (a) The principle we contend for J is, that he was a judge of an inferior court of the United States, and protected by the third article of the constitution, which declares, that “ the judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive a compensation for their services, which shall not be diminished during their continuance in office.” A law for the abolishing the fees can only affect those justices who have been appointed since the passage of that law. It has been decided in this court, in the case of Marbury v. Madison (1 Cr. 162), that a justice of the peace in the district of Columbia does not hold his office at the will of the president. The power to make laws is expressly given; the power to repeal is not, but necessarily follows. So, the power of appointment necessarily implies the power of removal, according to the maxim, cujus est dare, eras est disponere. This principle was settled in congress, in the year 1789, after long debate upon the tenure of office of secretary of state, and was expressed by means of a clause in the law directing what officer should take charge of the papers in that department, when the secretary of state should be removed by the president. Congress has no power to limit the tenure of any office to which the president is to appoint, unless in the case of a judge, under the constitution. The position for which we contend is justified by principle. The jurisdiction given to a justice of the peace makes him a judge of an inferior court. Judge Coke defines a court to be a place where justice is judicially administered ; and this definition is recognised by Blackstone. Certain powers are incident to all Courts, as to However ingeniously the question has been argued, I cannot feel any doubt in my mind on it.’ Nor can I perceive any legal or justifiable ground, under which the direction of the act of 1802 has been disregarded. I am, therefore, of opinion, that the judgment on the demurrer should be for the United States. But the judgment of the court is for the defendant. (a) This fact does not appear in the record, but it was agreed by the counsel on both sides, that the record should be so amended, as to bring the whole merits of the cause before the court. 100 1805] OF THE UNITED STATES. 166 • United States v. More. commit for contempts in court ; for there is a difference between courts of record, and courts not of record, as to contempts out of court. *By the act of 1801, the justices of the peace are to have the same powers, in all matters, civil and criminal, as were exercised by the *-justices of the peace in Maryland. In resorting to the Maryland code of laws, we find a very early act of assembly, which gives to justices of the peace the power of punishing contempts in their presence. Indeed, they possess a vast accumulation of powers. They may inflict whipping, imprisonment, and fine as high as 500 pounds of tobacco. They have a much more extensive jurisdiction than many more regular courts. They have cognisance of civil controversies of the value of $20. They hold courts, they try causes, they give judgments, and issue executions. Every one who consults the index to the laws of Maryland, must be satisfied, that the justices of the peace constitute very important tribunals, and it is immaterial by what name they are called ; they administer justice judicially ; they have, therefore, the power to hold a court. The traverser was appointed, before the repeal: he had a compensation which is taken away by the repeal; it is, therefore, so far, unconstitutional. It is no objection, that the tenure of office is limited to five years. It is not the tenure, but the essence and nature of the office, which is to decide this question. If the limitation of five years makes a difference, it would be an evasion of the constitution. But it is of no consequence, how congress have determined the tenure : it is established by the constitution. Mason, in reply.—The constitution does not apply to this case. The constitution is a compact between the people of the United States in their individual capacity, and the states in their political capacity. Unfortunately for the citizens of Columbia, they are not in either of these capacities. The 2d section of the third article of the constitution declares, “ that the judicial power of the United States shall extend to all cases in law and equity, arising under this constitution, the laws of the United States and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls ; to all cases of admiralty and maritime jurisdiction; to controversies to Which the United Stated shall be a party; to *controversies between two or more states ; be-tween a state and citizens of another state ; between citizens of dif- •-ferent states ; between citizens of the same state claiming lands under grants of different states; and between a state and the citizens thereof, and foreign states, citizens or subjects.” The judicial power of the United States can only extend to the cases enumerated; but the judicial power exercised in the district of Columbia extends to other cases, and therefore, is not the judicial power of the United States. It is a power derived from the power given to congress to legislate exclusively in all cases whatsoever over the district. And it is under this clause of the constitution, that congress have created justices of the peace, and given them power. Congress are under no control, in legislating for the district of Columbia. Their power, in this respect, is unlimited. If congress cannot limit the tenure of the office, but it must be during good behavior, then a Jaw might be passed, without the concurrence of the legislative will. 101 168 SUPREME COURT [Feb’y United States v. More. I understand the case of Marbury v. Madison to have decided only that the justices held during good behavior, for five years, under the law; and not, generally, during good behavior, under the constitution. The general provisions of the constitution do not apply to our case. We are the people of congress. They are to legislate for us, and to their laws we must submit. Jones.—The executive power exercised within the district of Columbia, is the executive power of the United States. The legislative power exercised in the district, is the legislative power of the United States. And what reason can be given, why the judicial power exercised in the district, should not be the judicial power of the United States ? If it be not the judicial power of the United States, of what nation, state or political society is it the judicial power? All the. officers in the district are officers of the United States. * *By the 2d section of the third article of the constitution, the -* judicial power of the United States is to extend to all cases arising under the laws of the United States. All the laws in force in the district are laws of the United States, and no case can arise which is not to be decided by those laws. What judicial power is that, which is exercised by the circuit court of the district ? They certainly exercise a very respectable part of the judicial power of the United States. Was it ever contended, that congress could limit the tenure of the offices of the judges of that court ? or that the judges were not liable to impeachment under the constitution ? February 13th. The Chief Justice suggested a doubt, whether the appellate jurisdiction of this court extends to criminal cases. February 22d. Mason, in support of the appellate jurisdiction of this court in criminal cases.—By the 1st section of the third article of the constitution, the judicial power of the United States is vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish. By the 2d section, it is extended to all cases in law and equity, arising under the laws of the United States. This is a case in law, arising under the laws of the United States, and is, therefore, within that section. “ In all cases affecting ambassadors,, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such * 1 exceptions, and under such regulations, as the congress shall make.” J *Congress has made no exception of criminal cases. I understand it to have been said by this court, that it is necessary that congress should have made a regulation, to enable this court to exercise its appellate jurisdiction. Upon this point, I consider myself bound by the case of Clarke v. Bazadone. (1 Cr. 212.) It is clear, then, that this court has the jurisdiction, and the only question is, whether congress has made such a regulation as will enable this court to exercise it. Such a regulation is contained in the 14th section of the judiciary act of 1789 (1 U. S. Stat. 81), which enacts, “that all the before-mentioned courts of the United States shall have power to issue writs of scire facias, habeas 102 1805] OF THE UNITED STATES, United States v. More. 170 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.” The writ of error in a criminal case is a writ not provided for by statute, and necessary for the exercise of the appellate jurisdiction given to the supreme court by the constitution, and agreeable to the principles and usages of law. This court has, therefore, the power to issue it. There is no reason why the writ of error should be confined to civil cases. A man’s life, his liberty and his good name, are as dear to him as his property; and inferior courts are as liable to err in one case as in the other. There is nothing in the nature of the cases which should make a difference; nor is it a novel doctrine, that a writ of error should lie in a criminal case. They have been frequent in that country from which we have drawn almost all our forms of judicial proceedings. It is true, that it is expressly given by the act of congress of 1789, in civil cases only, but it does not thence follow, that it should be denied, in criminal. Mapshat/l, Ch. J.—If congress had erected inferior courts, without saying in what cases a writ of error or appeal should lie from such courts to this, your *argument would be irresistible ; but when the constitution has given congress power to limit the exercise of our jurisdiction, and to L make regulations respecting its exercise ; and congress, under that power, has proceeded to erect inferior courts, and has said in what cases a writ of error or appeal shall lie, an exception of all other cases is implied. And this court is as much bound by an implied as an express exception. Mason.—When legislating over the district of Columbia, congress are bound by no constitution. If they are, they have violated it, by not giving us a republican form of government. The same observation will also apply to Louisiana. The act of congress which gives a writ of error to the circuit court of this district, differs, in some respects, from that which gives the writ of error to the other courts'of the United States. The words of the judiciary act of 1789, § 22, are, “and upon a like process (that is, by a writ of error, citation, &c.), may final judgments and decrees in civil actions, and suits in equity in a circuit court,” &c., “be reversed or affirmed in the supreme court.” But in the law concerning the district of Columbia, § 8 (2 U. S. Stat. 106), the expressions are, “ that any final judgment, order or decree in said court, wherein the matter in dispute, exclusive of costs, shall exceed the value of one hundred dollars, may be re-examined, and reversed or affirmed in the supreme court of the United States, by writ of error or appeal, which shall 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.” In this section, if the words respecting the value of the matter in dispute were excluded, a writ of error would clearly lie in a criminal case, under the general expression, any final judgment. Then do those words respecting the value, exclude criminal cases ? Suppose, *the court below had imposed r* a fine of more than $100, the case would have been within the express 103 172 SUPREME COURT [Feb’y United States v. More. words of the act. So it would have been, if a penalty of more than $100 had been imposed by law. But this court has exercised appellate jurisdiction in a criminal case. 'United States v. Simms, 1 Cr. 252. Marshall, Ch. J.—No question was made, in that case, as to the jurisdiction. It passed sub silentio, and the court does not consider itself as bound by that case. Mason.—But the traverser had able counsel, who did not think proper to make the objection. March 2d, 1805. Marshall, Ch. J., (a) delivered the opinion of the court as follows :—This is an indictment against the defendant, for taking fees, under color of his office, as a justice of the peace in the district of Columbia. A doubt has been suggested, respecting the jurisdiction of this court, inappeals'or writs of error, from the judgments of the circuit court for that district, in criminal cases ; and this question is to be decided, before the court can inquire into the merits of the case. In support of the jurisdiction of the court, the attorney-general has adverted to the words of the constitution, from which he seemed to argue, that as criminal jurisdiction was exercised by the courts of the United States, under the description of “ all cases in law and equity arising under the laws of the United States,” and as the appellate jurisdiction of this court was Hoi extended to all enumerated cases, other than those *which might be -* brought on originally, “ with such exceptions, and under such regulations, as the congress shall make,” that the supreme court possessed appellate jurisdiction in criminal, as well as civil cases, over the judgments of every court, whose decisions it would review, unless there should be some exception or regulation make by congress, which should circumscribe the jurisdiction conferred by the constitution. This argument would be unanswerable, if the supreme court had been created by law, without describing its jurisdiction. The constitution would then have been the only standard by which' its powers could be tested, since there would be clearly no congressional regulation or exception on the subject. But as the jurisdiction of the court has been described, it has been regulated by congress, and an affirmative description of its powers must be understood as a regulation, under the constitution, prohibiting the exercise of other powers than those described. Thus, the appellate jurisdiction of this court, from the judgments of the circuit courts, is described affirmatively : no restrictive words are used. Yet, it has never been supposed, that a decision of a circuit court could be reviewed, unless the matter in dispute should exceed the value of $2000. There are no words in the act, restraining the supreme court from taking cognisance of causes under that sum ; their jurisdiction is only limited by the legislative declaration, that they may re-examine the decisions of the circuit court, where the matter in dispute exceeds the value of $2000. This court, therefore, will only review those judgments of the circuit court of Columbia, a, power to re-examine which, is expressly given by law. (a) Johnson, J., was absent, when this opinion was delivered. 104 1805] OF THE UNITED STATES. Faw v. Roberdeau’s Executor. 173 On examining the act “ concerning the district of Columbia,” the court is of opinion, that the appellate jurisdiction, granted by that act, is confined to civil cases. The words “ matter in dispute,” seem appropriated to civil* cases, where the subject in contest has *a value beyond the sum men-tioned in the act. But in criminal cases, the question is the guilt or L innocence of the accused. And although he may be fined upwards of $100, yet that is, in the eye of the law, a punishment for the offence committed, and not the particular object of the suit. The writ of error, therefore, is to be dismissed, this court having no jurisdiction of the case, (a) Faw v. Roberdeau’s Executor. Statute of limitations. If an act of limitations have a clause “ saving to all persons non compos mentis, femes covert, infants imprisoned, or out of the commonwealth, three years after their several disabilities removed,” a creditor, resident of another state, removes his disability by coming into the commonwealth, even for temporary purposes; provided, the debtor be at that time within the commonwealth.2 This was an action in the Circuit Court of the district of Columbia, for the county of Alexandria : and the question arose upon the construction of the act of assembly of Virginia, for “ reducing into one the several acts concerning wills,” &c. (Rev. Code, p. 169, c. 92, § 56), which is in these words, viz.: “ If any suit shall be brought against any executor or administrator, for the recovery of a debt due upon an open account, it shall be the duty of the court, before whom such suit shall be brought, to cause to be expunged from such account, every item thereof which shall appear to have been due five years before the death of the testator or intestate. Saving to all persons non compos mentis, femes covert, infants, imprisoned, or out of this commonwealth, who may be plaintiffs in such suits, three years after their several disabilities removed.” The declaration was for plank, scantling and foundation-stone, lent by the plaintiff to the defendant; *f or the like materials, sold and de-livered ;. and for money had and received. The defendant pleaded the general issue, and a verdict was taken for the plaintiff, subject to the opinion of the court, upon the following facts : “ That the debt found by the verdict was due by the defendant’s testator to the plaintiff, in the year 1786. That the testator died in 1794. The plaintiff was a resident of, and in, the state of Maryland, and out of the commonwealth of Virginia, when the articles were delivered for which the suit was brought, and when the debt was contracted ; and continued so, in Maryland, and out of the said commonwealth, until the month of June 1795, when he removed to Alexandria to live, and hath lived there ever since. That in the year 1786, after the cause of action accrued, the plaintiff passed through the (a) See the case of United States v. La Vengeance, 3 Dall. 297, where it seems to be admitted, that in criminal cases, the judgment of the inferior court is final.1 1 And see Ex parte Kearney, 7 Wheat. 38; Ex parte Watkins, 3 Pet. 193 ; s. c. 7 Id. 574. 2 See Bond v. Jay, 7 Cr. 350; Chomqua v. Mason, 1 Gallis. 342 ; Dorr v. Swartwout, 1 Bl. C. C. 179; Richardson v. Curtis, 3 Id. 385; Thurston v. Fisher, 9 S. & R. 288. 105 175 SUPREME COURT [Fcb’y Faw v. Roberdeau’s Executor. town of Alexandria, and was for a short time therein, but not as a resident thereof.” Upon this statement of facts, the judgment of the court below was for the defendant; and the plaintiff brought the present writ of error. JK J. Lee, for the plaintiff in error.—The plaintiff was not a citizen of Virginia, when the debt was contracted. It does not appear, that he did not commence his action within the limited time after his becoming a citizen. Washington, J.—Does it not appear, that Faw was in Virginia, after the cause of action accrued ? JE. J. Lee.—Only as a traveller. It does not appear, that the testator lived in Virginia at that time. The plaintiff had three years to bring his action, after removal into Virginia. The writ is no part of the record, unless made so by a bill of exceptions, and it is not stated, when the action was I brought. Swann, contra.—The act of limitation begins to run from the time the plaintiff passed through Alexandria, after the cause of action had accrued. His disability * (according to the expression of the act of assembly) J was then removed, and he ought to have brought his action, within three years from that time. The plaintiff came to reside in Alexandria, in 1795. The suit was tried in 1802 ; hence, the presumption is, that it was commenced at that time, and the plaintiff can only show the contrary, by producing his writ. The state of the case negatives the idea of a loan. The claim, therefore, was upon the open account, and the court had a right to expunge all the articles charged five years before the death of the testator. Marshall, Ch. J.—That act has nothing to do with the lapse of time, after the death of the testator. The five years are before his death. The three years are also three years, during the life of the testator, and the plaintiff must, therefore, have been in the state three years, during the life of Roberdeau, to make the limitation attach to his claim. The court will hear you upon that point, if you think this opinion not correct. Swann said, that no objection occurred to him at present. Marshall, Ch. J.—The court is satisfied with that opinion, unless you ■ can gainsay it. Washington, J.—There is another point. Did not the plaintiff’s coming into the state, in 1786, after the cause of action accrued, cause the limitation to attach ? Swann.—The words of the act are, “saving to persons out of this commonwealth,” not persons residing out of this commonwealth. Being “ out of the commonwealth ” is the disability ; coming into the commonwealth, therefore, is a removal of that disability. If the saving had been to persons residing out, &c., then, possibly, a mere coming in, without residing, would not have been a removal of the disability. Strithorst v. Graeme, 3 Wils. 145. 106 1805] OF THE UNITED STATES. *177 Faw v. Roberdeau’s Executor. *E. J. Lee.—Under the British stat, of 1 Jac. I., c. 16, § 3, the plaintiff must have been a resident in England ; and he then has six years, after his return. Here, the plaintiff was not a resident of Virginia, at any time during the life of the testator. Perry v. Jackson, 4 T. R. 516. Marshall, Ch. J.—Beyond sea, and out of the state, are analogous expressions, and are to have the same construction. The whole case turns upon the question, whether the plaintiff’s being in the state, in 1786, after the cause of action had accrued, takes him out of the saving clause ?(a) E. J. Lee.—The casual coming into the state is not within the meaning of the act. It means the coming in to reside. The “ act for the limitation of actions,” &c. (Revised Code, p. 116, § 13), speaks of persons residing beyond seas, or out of the country. If, in such case, the plaintiff has a factor in this country, the statute runs against him ; but if no factor, then it does not. Suppose, the plaintiffs should be foreign partners, and one of them should be driven, by stress of weather, into a remote part of the state, he may be ignorant of the place of residence of his debtor. Shall the plaintiffs, in such case, be barred by the act of limitation ? The case in 2 W. Bl. 723, turned upon the question of residence. I can find no positive authority. I believe the point has never been expressly decided. March 2d, 1805. Marshall, Ch. J., after stating the case, delivered the opinion of the court.—There being a general verdict for the plaintiff, it is necessary, in order to justify a judgment for the defendant, that the statement of facts, upon which he relies, should contain all the circumstances necessary *to support such a judgment ; otherwise, the judgment must be rendered upon the verdict for the plaintiff. The five years mentioned in the 56th section of the act of assembly, must have elapsed, before the death of the testator. If they did not, no lapse of time, after his death, can bring the case within the purview of this act. In the present case, the five years had elapsed. But there is a saving clause, in the following words, “ saving to all persons non compos mentis, femes covert, infants, imprisoned, or out of this commonwealth, who may be plaintiffs in such suits, three years after their several disabilities removed.” It is one of the facts stated, that the plaintiff was /within the commonwealth of Virginia, in the year 1786, after the cause of action accrued: and hence, it is argued, that he is not within the saving clause of the section, and that, to exclude him from the benefit of that clause, it is not necessary, that he should have become a resident of that state. The court has not been able to find any case in which this question has been decided. We are, therefore, obliged to form an opinion from a consideration of the act itself. The words of the act are, “ out of this commonwealth,” and such persons may bring their actions within three years after their “ disability ” removed. The court is of opinion, that the disability is removed, at the moment when the person comes into the commonwealth ; and he must bring his action within three years from that time. (a) See the case of Duroure v. Jones, 4 T. R. 300, which seems decisive as to that point. 107 178 SUPREME COURT [Feb’y Ray v. Law. But something further than this was necessary, to authorize a judgment for the defendant. It ought to have appeared, that Roberdeau was a resident of the state of Virginia, at the time the plaintiff came into that state in 1786 ; and that fact is not in the case stated. The judgment, therefore, ought to have been for the plaintiff, and not for the defendant. Judg-ment reversed, with costs, and judgment entered for the plaintiff on the verdict. *179] *Ray v. Law. Appeal.—Fvnal decree. A decree for a sale of mortgaged property, upon a bill to foreclose, is a final decree, from which an appeal will lie.1 Law having a mortgage on real estate in the city of Washington, and Ray having a subsequent mortgage on the same estate, Law had filed his bill in chancery in the Circuit Court of the district of Columbia, for a foreclosure and sale of the mortgaged property, and made Ray a defendant. The bill having been taken for confessed against Ray, a decree was obtained by Law for a sale. The sale had been made under the decree, and notice given, that on a certain day, the sale would be ratified, unless cause was shown. On that day, Ray appeared, but not showing good cause, in the opinion of the court, the sale was confirmed. Ray prayed an appeal to this court, on the decree for the sale, which the court refused, on the ground, as it is understood, that the decree for the sale was not a final decree in the cause. Ray, on this day, presented a petition to this court, setting forth those facts, among others, praying relief, and that this court would direct the court below to send up the record. At the same time, he produced sundry papers, purporting to be the substance of that record, but not properly authenticated. Marshall, Ch. J.—The act of congress points out the mode in which we are to exercise our appellate jurisdiction, and only authorizes an appeal or writ of error on a final judgment or decree. C. Lee, for the petitioner, contended, that this was a final decree as to Ray, and cited 2 Fowler’s Exchequer Practice 195, to show that such a decree would, in England, be considered such a final decree as would authorize an appeal. March 5th, 1805. Marshall, Ch. J.—We can do nothing, without seeing the record, and the papers offered cannot be considered by us as a record. ani *^e court, however, is of opinion, that a decree for a sale under a J mortgage, is such a final decree as may be appealed from. We suppose, that when the court below understands that to be our opinion, it will allow an appeal, if it be a case to which this opinion applies. 1 Whiting v. United States Bank, 13 Pet. 6 ; Bronson v. La Crosse and Milwaukee Railroad Co., 2 Black 524. And see French v. Shoe maker, 12 Wall. 86. 108 1805] OF THE UNITED STATES. 180 Levy v. Gadsby.1 Usury. If A. lend money to B., who puts it out at usurious interest, and agrees to pay to A. the same rate of interest which he is receiving upon A.’s money, this is usury between A. and B., and an indorser of B.’s note to A. may avail himself of the plea of usury.2 If the usury be specially pleaded, and the court reject the evidence offered upon such special plea, it may be admitted upon the general issue, notwithstanding it has been refused upon the special plea. The court has the exclusive power of deciding whether a written contract be usurious.8 Error to the Circuit Court of the district of Columbia, sitting at Alexandria. This was an action of assumpsit, by Levy, the indorsee of a promissory note, against Gadsby, payee and indorser of McIntosh’s note. The declaration consisted of three counts. The 1st, in addition to the common averments, alleged, that the plaintiff had brought suit upon the note against McIntosh, in Maryland, and recovered judgment, but that before execution made, McIntosh died insolvent. The 2d count was in the usual form, excepting that it alleged that Gadsby became liable by the custom of merchants. The 3d count was for money had and received. The defendant pleaded, 1st. Non assumpsit; 2d. As to the first count, usury between McIntosh and Levy, stating the transaction as a loan by the latter to the former ; 3d. As to the first count, usury between the same parties, stating -the transaction as a forbearance of an antecedent debt. The 4th and 5th were like pleas of usury to the second count. The 3d and 5th pleas, by mistake, alleged thie note given, in pursuance of the corrupt agreement, to be a note made by Gadsby to McIntosh, and by him indorsed to Levy ; whereas, the note in the declaration mentioned, was a note made by McIntosh to Gadsby, and by him indorsed to Levy. To the pleas of usury, there were general replications and issues, and a general verdict for the defendant. *On the trial, three bills of, excep- r*181 tion were taken by the plaintiff. L 1 . The first stated that the plaintiff gave in evidence a promissory note in the usual form, dated November 1st, 1797, whereby McIntosh, six months after date, promised to pay to Gadsby, or order, $1436.62, for value received, negotiable at the bank of Alexandria. And it was proved, that Levy and McIntosh carried on trade and commerce in copartnership, under the name and firm of Levy & McIntosh, at Alexandria, Levy residing at Georgetown, about eight miles distant from Alexandria. That they so continued to carry on trade and commerce, from some time in the year 1796, until the 12th day of November 1797, on which day, the partnership was dissolved ; and that the dissolution was advertised in the public papers, on the 19th of October 1797, to take place on the said 12th day of November 1797. And the defendant, to support the issues on his part, offered in evidence a paper in the handwriting of the plaintiff, and by him subscribed, as follows : “ Georgetown, November 9th, 1797. Received of Mr. John McIntosh, his 1 In Oates v. National Bank, 100 U. S. 249, Judge Harlan says, this case is so meagerly reported, that it is difficult to see the precise ground upon which the conclusion of the court was placed. 2 And see Gunther v. Fanners’ and Mechanics’ Bank, 1 Pet. 87. 3 Walker v. Bank of Washington, 3 How. 62; And see Goddard v. Foster, 17 Wall. 142. 109 181 SUPREME COURT [Feb’y Levy v. Gadsby. two notes, one payable to John Gadsby, for $1436.62, dated the first instant, negotiable at the bank of Alexandria, at six months after date, indorsed by said Gadsby ; the other to Thomas J. Beatty, of same date, at three months after date, for $1270.87, negotiable at the bank of Columbia, and indorsed by said Beatty. The two notes making the sum of $2707.49, which, when paid, is on account of money due me from the firm of Levy & McIntosh, equal to $2210.24, as by their account, handed me by the said McIntosh, dated October 23d, 1797 ; and as the said McIntosh agrees he is receiving an interest equal to the difference twixt the sum due me, as per their account-current, and the notes payable, he, therefore, allows me the same interest, as the one he is receiving for my money. Therefore, on a settle-ment of accounts, I am *only to stand debited for $2210.24, due as per account-current; $497.25, interest; $2707.49. N. Levy.” The plaintiff’s counsel objected to the said writing being given in evidence by the defendant, on the pleas of usury, and the court refused to permit it to go in evidence on those pleas. The plaintiff’s counsel then objected to its going in evidence on the general issue of non assumpsit, but upon that issue, the court admitted it. 2 % The 2d bill of exceptions, after repeating the same facts, stated that the plaintiff’s counsel prayed the opinion of the court, and their instruction to the jury, whether the circumstances given in evidence as aforesaid, amounted to proof of a usurious contract between Levy and McIntosh ; and the court, thereupon, instructed the jury, that those circumstances did amount to proof of a usurious contract between those parties. 3 . The 3d bill of exceptions was to the opinion of the court, that the agreement mentioned in the receipt given by Levy to McIntosh, having been read in evidence, and having been, by the court, declared a usurious agreement, the note given in pursuance thereof, is void, and that the plaintiff is not entitled to recover thereon, against the defendant in the present action. Swann and Simms, for plaintiff in error: C. Lee, Mason and Jones, for defendant. The questions arising in this case were, 1st. Whether the court below was correct in instructing the jury, that the agreement contained in Levy’s receipt was usurious. 2d. Whether that receipt was admissible in evidence upon the issue of non assumpsit; and 3d. Whether it was admissible upon either of the other issues. *1831 * Swann, for the plaintiff in error.—1. As to the usury. The court J below undertook to say that the agreement and other circumstances amounted to conclusive proof of usury, when it ought to have been left to the jury, under all the circumstances of the case, to say, whether the contract was usurious or not. There appears to have been a partnership in usury between Levy and McIntosh. During that partnership, McIntosh had loaned Levy’s money at usury, and on the 23d of October 1797, was indebted to Levy in the sum of $2210.24, for money thus lent out at three and six months. And being satisfied that he should receive that money at those periods, he was willing to bind himself absolutely to pay it over to Levy, whose money it, in truth, 110 1805] OF THE UNITED STATES. 183 Levy v. Gadsby. was. This, we say, is the true construction of the receipt. It is no more than the case of an agent binding himself to pay over, at a particular time, the money of his principal which shall at that time be in his hands. To constitute usury under the act of assembly (Rev. Code of Virginia, p. 37), there must be either a loan of money, or forbearance of a debt already due. In this case, there was neither a loan from Levy to McIntosh, nor a debt due from McIntosh to Levy. Floyer v. Edwards, Cowp. 115. A note given without consideration, is not usurious. McIntosh was to receive the money, at a certain time, and pay it over to Levy. This is the whole of the contract. He only bound himself expressly to do what in equity and conscience he ought to do. At the time the notes were given, if Levy had sued McIntosh for the money, it would, have been a sufficient answer to say, that McIntosh had not received it. If I authorize a man to lend $1000 of my money, on usury, for my benefit, and he does so, and has received $500 for such usury, can I not compel him to pay it over to me ? This is really the only question upon the merits of this case; and this seems to be decided by the case of Faikneyv. Reynous, 4 Burr. 2069, and that of Petrie v. Hannay, 3 T. R. 418, in which it was held, that if two be engaged in a transaction illegal, but not malum in se, and one of them pay the whole money, he *may recover a proportion from the other, if this other has expressly promised to pay it. From I hence it may be inferred, that although the original transaction between McIntosh and the person to whom he lent the money on usury was illegal, and although Levy knew all the circumstances, and assented to the transaction, yet, inasmuch as it was not malum in se, and McIntosh agreed to pay over the money to Levy, when received, the illegality of the original transaction shall not discharge McIntosh from such agreement, or render it void. Simms, on the same side.—An objection was made in the court below, to allowing usury to be given in evidence on the plea of non assumpsit, but it was overruled by the court. If there had been no other plea, perhaps, the question would be doubtful; but when the defendant has pleaded usury in a particular way, he ought not to be permitted to resort to a different kind of usury. Tate n. Wellings, 3 T. R. 538. It tends to surprise and entrap the plaintiff. C. Lee, contra.—1st. Whether usury can be given in evidence on non assumpsit. Everything which goes to show that the contract is void, may be given in evidence, on that plea; for if the promise was void, when made, then, in law, it was no promise. Bernard Saul, 1 Str. 498; Burrows v. Jemino, 2 Ibid. 733; 1 Esp. Rep. 178. There being two special pleas of usury makes no difference, the court having been of opinion, that the evidence did not support those pleas. 2d. As to the construction of the agreement. If the usury is reserved for forbearance of a debt already due, it is the same thing as if reserved on an original loan. Gibson v. Fristoe, 1 Call 74, 81. And it makes no difference, whether the usurious interest is stated to be received from others or not. Usury is not to be covered by such devices as that. It is only an indirect way of receiving the usury. *No argument can make the transaction plainer than it is stated in the receipt itself. Res ipsa lo- *- ° guitur. Ill 185 SUPREME COURT Levy v. Gadsby. [Feb’y Mason, on the same side.—There can be no ground for the plaintiff to allege surprise in the admission of the receipt as evidence, on the general issue. The special pleas set forth precisely the same facts, and nothing but a blunder in copying the pleas, and inserting the name of McIntosh for Gadsby, prevented the evidence from being admitted on those pleas. The agreement is, that as McIntosh is receiving usury from others, therefore, he will pay it to the plaintiff. If the debtor receives usury from his debtors, it is no justification of the creditor in demanding from him. There is no evidence that the partnership of Levy and McIntosh was a partnership in usury. - The receipt does not directly aver that McIntosh is receiving the rate of interest mentioned. It only states that he agrees he is receiving it. A man may agree to a false statement of facts; and, indeed, that is always the case, when usury is attempted to be covered. Jones, on the same side.—The evidence offered was not only applicable to the general issue, but to the first special plea of usury. The agreement shows it to be a loan in the sense of the statute. No precedent can be found of a plea of usury, which does not state it as a loan. The cases cited do not apply. The agreement itself does not state it to be accounting for profits received. But McIntosh gives an absolute note for the payment of money, although it is agreed that it is outstanding. The question is upon a written agreement, and the construction of all such agreements is exclusively with the court. *March 4th, 1805. J court. Marshall, Ch. J., delivered the opinion of the It was slightly contended by the counsel for the plaintiff in error, that when usury has been specially pleaded, and the evidence adduced to support such plea has been adjudged by the court to be inapplicable to the facts so pleaded, the same evidence cannot be admitted upon the plea of non assumpsit. No cases in support of this position have been cited, and it does not appear to be supported by reasoning from analogy. In cases where there are special and general counts in a declaration, and the evidence does not support the special counts, the plaintiff is allowed to apply the same evidence in support of the general counts. On a parity of reasoning, the defendant should be permitted to give in evidence, upon the plea of non assumpsit, the same facts which were adjudged inapplicable to the special pleas, but which might have been received on the general plea, if the special pleas had not been pleaded. The counsel for the plaintiff has also contended, that although the paper writing produced would, on the face of it, import a usurious contract, yet, as the jury might possibly have inferred from it certain extrinsic facts, which would have shown the contract not to have been within the act, the jury ought to have been left at liberty to infer those facts. But in this case, the question arises upon a written instrument, and no principle is more clearly settled^ than that the construction of a written evidence is exclusively with the court. This court is of opinion, that the court below has correctly construed the instrument upon which the question arose, and that, therefore, there is no error in the judgment. Judgment affirmed, with costs. 112 1805] OF THE UNITED STATES. *18? *Marine Insurance Company of Alexandria v. Wilson, (a) Marine insurance.—Seaworthiness.—Surrey. If a policy upon a vessel have a clause “ that if the vessel, after a regular survey, should be condemned as unsound or rotten, the underwriters should not be bound to pay,” a report of surveyors, that she was unsound and rotten, but not referring to the commencement of the voyage is not sufficient to discharge the underwriters. Queer e? Whether such report, even if it related to the commencement of the voyage, would be conclusive evidence?1 This was an action of covenant in the Circuit Court of the district of Columbia, sitting at Alexandria, brought by Wilson, the defendant in error, against the Marine Insurance Company of Alexandria, upon a policy of insurance on the brig George, from Alexandria to Havre de Grace, &c. One of the clauses in the policy was in the following words, viz : “ If the above vessel, after a regular survey, shall be condemned for being unsound or rotten, the underwriters shall not be bound to pay the subscription on this policy.” The declaration was for a total loss, and averred that the brig sailed from Alexandria on the 24th of October 1802, upon the voyage insured. The defendants pleaded : 1st. “ That on the 24th day of October 1802, the said brigantine, called the George, was unsound in her timbers, and by reason of the said unsoundness, was not capable of performing the voyage in the policy mentioned, viz., at and from Alexandria aforesaid, across the Atlantic ocean to Havre de Grace, Rotterdam or Bremen, with liberty to call at Falmouth for orders; and this they are ready to verify,” &c. 2d. “ That after the said brigantine had gone from Alexandria aforesaid, upon the voyage aforesaid, and while she was proceeding upon the voyage aforesaid, upon the high seas, she sprung a leak, viz., on the 31st day of October, in the year aforesaid, in consequence of her not having been tight, staunch and strong enough for performing the voyage aforesaid, on the said 24th day of *October, in the year aforesaid, at Alexandria aforesaid, and, at the instance of her crew, her voyage was interrupted upon account of her incapacity to perform the same. And the said brigantine was put back and conducted into a convenient port to be examined and repaired, viz., into Norfolk, in Virginia, and that a regular survey of the said brigantine was made at Norfolk, on the--------day of -------, in the year-------, and thereupon, the said brigantine was condemned for being unsound to that degree as not to be worthy of being repaired, and rendered fit and able to perform the voyage aforesaid, whereof the plaintiff, afterwards, to wit, on the day and year last mentioned, at the county of Alexandria aforesaid, had notice ; and this they are ready to verify,” &c. To this (a) Present, Marshall, Ch. J., Cushing, Paterson and Washington, Justices. 1 See Dorr v. Pacific Insurance Co., 7 Wheat. Insurance Co., 3 Cow. 96. Otherwise, if it do *581; Watson v. Insurance Co., 2 W. C. G 152; not appear, that such unseaworthiness arose Steinmetz v. United States Insurance Co., 2 solely from rottenness or unsoundness. Haff«. 8. & R. 93. It has been determined, that, under Marine Insurance Co., 8 Johns. 163; Innes the clause in question, a regular survey, find- v. Alliance Mutual Insurance Co., 1 Sandf. 310; ing unsoundness, without more, is conclusive Amroyd v. Union Insurance Co., 2 Binn. 394. upon the parties. Brandegee v. National Insur- And see Janney v. Columbian Insurance Co., 10 ance Co., 20 Johns. 328; Griswold v. National Wheat. 411, as to what is a regular survey. 3 Cranch—8 113 188 SUPREME COURT [Feb’y Marine Insurance Co. v. Wilson. last plea there was, at first,’ a general demurrer, which was afterwards withdrawn, and general replications and issues to both pleas. On the trial, two bills of exception were taken by the defendants. The first stated, that the defendants moved the court to instruct the jury to find a verdict for the defendants, if they should be satisfied by the testimony, that the George, on the 24th of October 1802, after a regular survey, was condemned as being unsound or rotten, by the surveyors, whose report is as follows, to wit: “ The brig George, of Alexandria, Caspar Hayman, master, having put into this port in distress, we, the subscribers, at the request of said master, did this day attend on board, for the purpose of ascertaining and reporting the situation of the said vessel, and the circumstances of said distress. We found, from the report of said master and others, that they sailed from Alexandria, on the 24th of October last past, with a cargo of tobacco, coffee and staves, bound on a voyage to Falmouth in England; that on the 31st of the same month, in consequence of having met with heavy gales of wind, the vessel sprung a leak, and that with much difficulty and continued labor at the pumps, having seldom less than three feet water in the hold, they gained this port. Considering the foregoing circumstances, and the appearances which, in our minds, confirm the same, we think proper to recommend, that the vessel be haled to some convenient wharf, the *carsro *1891 . • 7 ® J landed, and the hull carefully examined. Given under our hands, at Norfolk, Virginia, 17th November 1802. James Hunter, Paul Peoby.” “ The cargo of the brig George, of Alexandria, having been unladen, pursuant to a recommendation contained in a report, dated the 17th instant, and signed by two of the present subscribers, we, the undersigned, at the request of Caspar Hayman, master of said brig, did this day attend on board for the purpose expressed in said report. We find, on a minute examination of the hull of said vessel, that without going into an extensive repair, the intended voyage cannot be prosecuted ; and considering the heavy expense that must necessarily attend such a measure, and which, in our opinion, would exceed the value of the vessel, when completed, we are clearly of opinion, that the vessel and materials, in their present state, should be immediately sold, on account of those concerned. Given under our hands, at Norfolk, Virginia, this 26th Nov. 1802. James Huntee, Merchant Paul Peoby, Ship-Master, Tros Nash8* Carpenters.” But the court refused to give the instruction as prayed. The second bill of exceptions stated, that the defendants’ counsel moved the court to instruct the jury to find a verdict for the defendants, if they should be satisfied by the testimony, that the brig George, after a regular survey, was condemned as having been unsound or rotten, oik the 24th day of October 1802, by the surveyors, whose report is as follows (here was inserted the same report): and shall also be satisfied by the evidence, that the said vessel, while she was performing the voyage insured, upon the high 114 1805] OF THE UNITED STATES. 189 Marine Insurance Co. v. Wilson. seas, sprung a leak on the 31st day of October, in the year aforesaid, and at the instance of her crew, the said voyage was interrupted *upon ac- r*. count of her incapacity to perform the said voyage; and that the *-said brigantine was put back, and conducted into a convenient port to be examined, namely, into Norfolk, in Virginia, where the survey herein before mentioned was made. But the court refused to give such instruction. C. Lee, for the plaintiffs in error.—Three points arise in this cause. 1st. That the report of the surveyors is conclusive upon the question of seaworthiness, unless partiality, corruption or misbehavior on the part of the surveyors, in making the survey, can be.shown. 2d. That it is competent for the defendant to explain, by parol testimony, the grounds upon which the surveyors condemned the vessel. 3d. That it was not necessary for the insurers to plead specially the report of the surveyors, and their condemnation of the vessel, but that it might be given in evidence. 1st. If the parties have agreed upon a tribunal to decide a particular question, they must be bound by the decision of that tribunal. So, in tLe case of an award: it is binding upon the parties, all over the world. But, it may be said, how are the surveyors to ascertain the condition of the vessel on the 24th of October ? The answer is, that they might examine witnesses; they might judge from the universal decay of the timbers, &c. The covenant in the policy does not say at what time the vessel must be proved to have been unsound. But we admit, that she must be proved to have been unsound at the time the voyage commenced. We pleaded, that she was unsound on the 24th of October, when the voyage commenced; and we prayed the court to instruct the jury, that if they should be satisfied by the evidence, that she was condemned *as being unsound and rotten on the 24th of October, after a regular sur-vey, they ought to find a verdict for the defendants. This instruction, we contend, the court ought to have given; for the report of the surveyors is like an award of arbitrators, which cannot be set aside, unless partiality, fraud or misbehavior be proved on the part of the arbitrators. In the case of Shelton v. Harbour, 2 Wash. 64, it was held, that a former verdict and judgment between the mother of the plaintiff, who sued for his freedom, and the defendant, by which it was adjudged, that the mother was a slave, were conclusive evidence that the plaintiff, her son, was a slave. And this was in a question where freedom was concerned, and where the natural leaning of the court is presumed to be in favor of freedom. The judgment of a court is to be admitted as conclusive evidence, without being specially pleaded. So is an award, and the judgment of a foreign court, which has jurisdiction over the subject-matter and the parties. 2d. If the report of the surveyors does not refer to the 24th of October, as the time when the vessel was unsound, it was competent for us to explain the report by testimony not inconsistent with it. There is, however, enough in the report to induce a presumption that she was not sound on the 24th. The unsoundness was in the hull, not in the rigging, masts, &c. To show that parol testimony might be admitted to explain any ambiguity of the report, the following cases were cited : Doe dem. Freeland n. Burt, 1 T. R. 701 ; Gregory n. Setter, 1 Dall. 193 ; Field v. Biddle, 2 Ibid. 171; McMinn v. Owen, Ibid. 173 ; Boss n. Norvell, 1 Wash. 15. 115 191 SUPREME COURT [Feb’y Wilson v. Codman’s Executor. March 5th, 1805.—Marshall, Ch. J., declined giving an opinion, conceiving himself to be, in a remote degree, interested in the stock of the insurance company. *1091 *The other three judges delivered their opinions seriatim, as J follows: Washington, J.—It does not appear upon the record, that any other evidence was offered, to prove the vessel unsound on the 24th of October, than the report of the surveyors. No parol testimony appears to have been offered, to explain the report, or to apply it to the time of commencing the risk. The bill of exceptions is repugnant. It asks an opinion, predicated upon the unsoundness of the vessel on the 24th of October, and relies upon the report of the surveyors, which applies only to the 31st of October. If it was intended to bring before this court, the propriety of admitting parol evidence to explain the report, that question does not appear to arise from the record. I see no reason for reversing the judgment. I do not, however, mean to be understood, that if parol evidence had been offered, it would have been proper to receive it. I give no opinion upon that point. Paterson, Ji—No parol evidence appears upon the record to show that the report of the surveyors referred to the 24th of October. The conclusiveness of the report, therefore, did not come before the court. It is not a point in the cause. Cushing, J.—This is an action on a policy of insurance. The defence set up is, that the vessel was unsound and rotten on the 24th of October, when the risk commenced ; and it is alleged, that the report of the surveyors is conclusive evidence of that fact. But the report does not apply to that time. Let the judgment be affirmed, with costs. *193] W ilson v. Codman’s Executor, (a) Pleading—Set-off.—Death of party. In a declaration, the averment that the assignment of a promissory note was for value received is an immaterial one, and need not be proved. If the defendant plead the bankruptcy of the indorser in bar, a replication, stating that the note was given to the indorser, in trust for the plaintiff, is not a departure from the declaration, which alleges the note to have been given by the defendant, for value received. Claims against an agent cannot be set off against the principal. Upon the death of a plaintiff, and appearance of his executor, the defendant is not entitled to a continuance.1 But he may insist on the production of the letters testamentary, before the executor shall be permitted to prosecute. Error from the Circuit Court of the district of Columbia, sitting at Alexandria. This was an action of debt, originally brought by John Codman, as as- (a) Present, Marshall, Ch. J., Cushing, Paterson and Washington, Justices. 1 Alexander v. Patten, 1 Cr. C. C. 338. 116 1805] OF THE UNITED STATES. 193 Wilson v. Codman’s Executor. signee of a promissory note, made by the defendant, Wilson, to Andrew and William Ramsay, (a) The declaration was as follows, viz : “ John Codman, assignee of Andrew Ramsay and William Ramsay, complains of William Wilson, in custody, Ac., of a plea that he render unto him the sum of $1038.80, which to him he owes, and from him unjustly de-ains, Ac., for this, to wit, that whereas, the said defendant, on the 26th. day of June, 1799, at Alexandria, in the county aforesaid, by his certain note in writing, subscribed with his proper hand and name, and to the court now here produced, the date whereof, Ac., did promise to pay to the said Andrew and William Ramsay, or order, forty-five days after date, $1038.80, for value received, negotiable in the bank of Alexandria; and the said Andrew and William Ramsay, afterwards, to wit, on the 23d day of October, in the year of our Lord 1802, at the county aforesaid, by their certain writing indorsed on the said note, and subscribed with their proper hands and names, assigned the said note to the said plaintiff, for value received, of which assignment the said defendant, afterwards, to wit, Ac., had notice; by means whereof, and by force of the act of assembly of Virginia in such case made and provided, before the year 1801, action accrued,” Ac. There was an office judgment against the defendant, and his appearance bail, *to set aside which, the latter pleaded nil debet for his principal, at June term 1803. At December term 1803, the suit was entered I abated by the plaintiff’s death. Afterwards, at the same term, on the motion of Stephen Codman, by his attorney, it was ordered, “ that the said Stephen Codman, executor of John Codman, deceased, be made plaintiff in this suit, with leave to prosecute the same.” At June term 1804, the defendant gave special bail, and “ moved the court for a rule upon the plaintiff to grant oyer of his letters testamentary, to enable the defendant to answer the plaintiff, which was opposed by the plaintiff’s attorney, and the motion was refused by the court;” whereupon, the defendant took a bill of exceptions. The plea put in by the appearance bail, for the principal, was withdrawn, and the latter pleaded, 1st. Nil debet, upon which issue was joined: and 2d. That before the 23d day of October 1802, the time stated in the declaration, when A. A W. Ramsay are supposed to have assigned the said note to the said John Codman, the said A. A W. Ramsay had been declared bankrupts, Ac., and on the--------day of March 1802, had duly obtained their final discharge, Ac. To this plea, the plaintiff replied, that on the 20th of June 1799, the defendant was justly indebted to John Codman, the testator, in the sum of $1038.80, and in consideration thereof, on that day, made and executed the promissory note in the declaration mentioned, for that sum, to A. A W. Ramsay, as the agents of, and- in trust for the use of, the said John Codman, the testator; and concluded with a verification. To this replication, the defendant demurred specially; 1st. Because it is a departure from, and is inconsistent with, the declaration, in this, that the declaration affirms that the said note was payable to Andrew and William Ramsay, for value received, and was by them assigned, for value received. (a) An act of assembly of Virginia authorizes an assignee of a promissory note to maintain an action of debt, in his own name, against the maker of the note. 117 194 SUPREME COURT [Feb’y Wilson v. Codman’s Executor. to the said John Codman; and the replication affirms, that the said note was executed and delivered to the said A. & W. Ramsay, as the agents of, and in trust for she use of, the said John Codman : 2d. Because the plaintiff, in his replication, ought to *have traversed the plea, and tendered an J issue thereupon, and ought not to have replied the said special matter, and concluded with a verification : 3d. Because the said replication is informal and insufficient, &c. Upon this demurrer, the court below adjudged the issue in law for the plaintiff. Upon the issue in fact, the jury found a verdict also for the plaintiff; and on the trial, four bills of exception were taken by the defendant. The 1st was to the refusal of the court to instruct the jury, that the plaintiff ought to produce in.evidence his letters testamentary, to enable him to maintain the issue on his part. The 2d bill of exceptions stated, “ that the defendant produced testimony to the following facts, viz., that A. & W. Ramsay, on the 13th of August 1799, when the note in the declaration mentioned became due, were indebted to him, on their own account, in a large sum of money, to wit, in the sum of $8000, and continued indebted to him always thereafter, to that or a greater amount, until they became bankrupt, in November 1801. That they bad taken the said note, for the use and benefit of John Codman, and not for their own, and were authorized, as his agents, to receive payment of the said note, for his use, from the date thereof, until the ------day of May 1800. That the said John Codman urged payment to be made; and during this period of time, sundry payments in money were made to the said A. & W. Ramsay, by the defendant, who, at the time of making such payments, did not mention any definite purpose or use for which they were made. That the said Andrew & William Ramsay, during the period aforesaid, viz., from the 13th of August 1799, to the time of their bankruptcy, had authority to receive no other debt from the said William Wilson, except the debt due on the note aforesaid, and on another note, for about the same sum, due for the use of said John Codman. And the defendant moved the court to direct the jury that if they should be of opinion, that, at the times respectively, when Wil-q«i ^am Wilson, the defendant, made payments in money to * Andrew & J William Ramsay, of sundry sums, after the note became due upon which this action is brought, they, the said A. & W. Ramsay, were indebted to him on their own account, always after the said note became due, to an amount exceeding $8000, and were not authorized, during the whole of the time, from the 13th August 1799, until their bankruptcy, to receive any other debt due from W. Wilson, the defendant, for the use of any other person, except the debt due on the note, which is the ground of this action, and another note for about the same sum, which they held as the agents of John Codman, and in trust for his use ; in such case, those payments of moneys may be applied to the discharge of those two notes ; unless the jury shall be satisfied by testimony, that the said defendant did make those payments, or any of them, for some other purpose or purposes respectively. “ The plaintiff had offered to prove, by the testimony of Andrew Ramsay, that the payments or advances of money to him and William Ramsay, charged in the account offered by the defendant, William Wilson, in the words and figures following [here was inserted an account-current made out by the defendant against A. & W. Ramsay, containing among others. 118 1805] OF THE UNITED STATES. 196 Wilson v. Codman’s Executor. sundry debits and credits of cash, subsequent to the time when the notes became payable, and before the bankruptcy of the Ramsays ; by which it appeared, that they had paid to the defendant, during that time, more cash than he had paid to them, without specific appropriation ; but the balance of the whole account (which commenced in April 1797, and continued to October 15th 1801) was against the Ramsays, to about the sum of $10,000] “ were not made on account of the notes due to John Codman, or either of them, and that they were not received by the said A. & W. Ramsay on account of the said notes, or either of them ; and had also offered in evidence two letters from the defendant, admitted to be in his handwriting, in the words and figures following There were inserted two letters from the defendant to John Codman, the first dated 21st January 1800, saying, that he had paid a small part of the notes to A. & W. Ramsay, and would gladly settle the remainder, if it was in his *power ; the second dated 25th February 1800, offering to pay the notes in real estate or to give a mortgage] *-“ whereupon, the court refused to give the instruction as prayed to which refusal the defendant excepted. The 3d bill of exceptions was .to the opinion of the court, that it was necessary for the plaintiff to prove the assignment of the note, but that it was not necessary for him to prove that the same was made for value received, by the said A. & W. Ramsay from the said John Codman. The 4th bill of exceptions was to the admission of the note and indorsement in evidence to the jury, the indorsement being in these words : “We assign this note to John Codman, without recourse,” and signed by A. & W. Ramsay, the payees of the note ; inasmuch as the indorsement varied from that set forth in the declaration ; the former being “ without recourse,” and the latter “ for value received.” E. J. Lee, for the plaintiff in error, made the following points : 1st. That the defendant below was entitled to oyer of the letters testamentary at the time he demanded it. 2d. That the plaintiff was bound to produce them on the trial, upon the issue of nil débet. 3d. That the plaintiff was bound to prove the assignment to have been made for value received, according to the averment in the declaration. 4th. That the defendant below had a right, at any time, to apply the payments of money made to A. & W. Ramsay, to the account of the notes in question ; the Ramsays being, at that time, personally his debtors, and having no right to demand of him money upon any other account. 5th. That the replication to the second plea was bad upon special demurrer. *lst. The executor was bound to produce his letters testamentary, r*jgg and the defendant was entitled to oyer, at any time. In Virginia, if L the plaintiff dies before office judgment, the suit abates, and the executor1 must proceed de novo. If the plaintiff dies after judgment, the executor must take out a scire facias, in which he must make ^profert of his letters testamentary. When the scire facias issues, the cause goes to the rules, and the defendant has a month to plead. In the present case, the change of parties was made in court, and the defendant had not yet appeared ; he had, therefore, time until the next term to appear and plead, and had then a right to demand oyer. Adams v. Savage, 6 Mod. 134 ; Smith v. Harman, Ibid. 142. By the act of congress (1 U. S. Stat. 90, § 31), a scire facias is to issue 119 198 SUPREME COURT [Feb’y Wilson v. Codman’s Executor. in case of the death of a party before judgment. The law of Virginia (Rev. Code, p. 117, § 20) is nearly the same. The act of congress does not do away the necessity of an executor’s showing his letters testamentary, nor deprive the defendant of his right of oyer. Paterson, J.—Under the act of congress, do not the proceedings go on of old ? Are there to be any proceedings de novo ? A’. J. Lee.—There is no doubt, that the executor must show his letters testamentary, on admission to prosecute, and the defendant has a right to demand oyer at some time. Marshall, Ch. J.—The question is, whether, under the act of congress, a scire facias is necessary ? Washington, J.—There is another question, whether the defendant did not crave oyer in due time ? E. J. Lee.—The plaintiff ought to produce his letters testamentary, at the time he is admitted, or when oyer is prayed, or at the trial, to support his title. ^Marshall, Ch. J.—No doubt, the defendant was entitled to oyer, J but the question is, has he demanded it in proper time ? E. J. Lee.—3d. The plaintiff ought to have proved that the note was assigned, for value received. The assignment on the note is expressed to be “ without recourse.” There was, therefore, a variance between the assignment on the note, and that set forth in the declaration. The court, therefore, ought either to have prevented the assignment from being produced in evidence, or have compelled the plaintiff to prove it was really for value received. By thus admitting the assignment to go in evidence, they have prevented the defendant from his right to set off his payments to A. & W. Ramsay, before the assignment. If there be a variance between the evidence and the declaration, it is fatal, how trivial soever it may be. If the plaintiff undertakes to recite an instrument, although he is not bound so to do, and misrecites it, he must fail. Thus, in trover for a debenture, the plaintiff must prove the number of the debenture, as laid in the declaration, and the exact sum to a farthing, or he will be nonsuited But he need not set out the number (any more than the date of a bond for which trover is brought), for being out of possession, he may not know the number, and if he should mistake, it would be a failure of his suit. Buller’s N. P. 37. So, in the case of Bristow v. Wright, Doug. 665, it was held, that in an action against the sheriff, for taking goods, without leaving a year’s rent, the declaration need not state all the particulars of the demise ; but if it does, and they are not proved as stated, there shall be a nonsuit. Marshall, Ch. J.—You consider the declaration as setting forth the indorsement in hoec verba. E. J. Lee.—I do. Marshall, Ch. J.—The only question upon this point is, whether the 120 1805] OF THE UNITED STATES* 199 Wilson v. Codman’s Executor. plaintiff has undertaken to set forth the indorsement in haze verba ; for if so, and there is a variance, there is no doubt, it would be fatal. *L. J. Lee.—4th. The defendant below had a right to apply all the cash paid by him to A. & W. Ramsay, to the discharge of the notes. L They had no right to say it was a gift or a loan, and they had no other right to demand money of him, than for those notes. If the appropriation was not made, at the time of the payment, yet it could not be applied to the single debt due. 5th. As to the demurrer. 1st. The declaration states the assignment to be “ for value received.” The replication, instead of fortifying the declaration, states, that it was not for value received, which, being repugnant, is a departure in pleading. Thus, if the plea be conditions performed, and the rejoinder shows matter in excuse for not performing, it is a departure. 4 Bac. Abr. 123, Departure in Pleading, L. If a note is given tome, as agent for another, it is not given to me for value received. 2d. There is no traverse, denial or confession of the matter of the plea. 4 Bac. Abr. H. 70. C. Lee, on the same side.—If the plaintiff is not the true executor, a judgment in this suit would be no bar to an action by the rightful executor. Hence, it is necessary, that he should produce his letters testamentary. It does not appear, that he ever produced them in the court below, at any time. He ought to have been compelled to produce them at the trial, on the issue of nil debet, to support his title. The plea of nil debet put the plaintiff on the proof of everything necessary to entitle him to recover. It has been considered as law in Virginia, that, on that plea, the defendant may give in evidence the statute of limitations, which he could not do on non assumpsit ; because the latter plea is in the past tense, and the statute does not prove that he never promised. But the plea of nil debet is in the present tense, that he does not now owe, and therefore, if the debt is barred by the statute, the plea is well supported. If an executor bring an action of assumpsit, the defendant pleads non assumpsit in manner and form as the plaintiff has declared, that is, he did not assume to pay to the testator in his lifetime. The plaintiff, in such case, is only bound to prove that the defendant promised to pay the testator, and his own title as executor does not come in question. But if an executor bring an action of debt, and the defendant *pleads r*2oi nil debet, he says, that he owes nothing to the present plaintiff, who *• sues as executor, and if the plaintiff be not the true executor, the plea is supported ; the defendant, in truth, owes him nothing. Hence arises the difference, between the necessity of producing letters testamentary in evidence on the trial, in actions of assumpsit, and in those of debt on simple contract. Simms, contra.—In this case, there was an office judgment against Wilson and his appearance bail. The bail came in and set aside the office judgment, by pleading foi' his principal (as he had a right to do, under the act of assembly of Virginia), in the lifetime of John Codman, and the issue was made up. Afterwards, John Codman died, and Stephen Codman, his executor, appeared, and had leave to prosecute the action. We differ from the opposite counsel as to the construction of the act of congress. They seem to think, that the pleadings must be de novo. But it 121 201 SUPREME COURT [Feb’y Wilson v. Codman’s Executor. is in the discretion of the court, what pleas to admit, after the issue had been made up. It is said, Wilson was not in court. But it was his own fault to suffer judgment to go against him. No man can take advantage of his own neglect. It was a matter of discretion with the court, to admit the principal to appear and plead, after the issue had been made up by the bail. It is to be presumed, that the executor produced his letters testamentary, and that the court was satisfied, when they admitted him to prosecute as plaintiff. If the defendant did not then pray oyer, it was his own neglect. He can only demand oyer at the term when the letters were produced. WymorC s Case, 5 Co. 74 But letters testamentary need not remain in court, even during the whole of that term. Roberts v. Arthur, 2 Salk. 497. As to the demurrer, two causes are assigned. 1st, that the replication is a departure ; and 2d, that it does not traverse the matter of the plea. *9091 *lst. Unquestionably, if it is a departure, it is bad. But if it is -• the only fortification of the declaration against the plea, it must be good. Co. Litt. 304 a. The replication is not repugnant to, nor inconsistent with, the declaration. It is the same, in substance, with that in the case of Winch v. Keely, 1 T. R. 619, which was adjudged good on demurrer. 2d. It is said, that the replication ought to have traversed the matter of the plea. What part could the plaintiff have traversed ? The bankruptcy is impliedly admitted in the replication. Washington, J.—Part of the objection is, that the replication does not confess the matter of the plea. Simms.—That is not set down as a cause of demurrer, and it is but matter of form. But it is no cause for demurrer, even if it had been specially shown. In a plea of the statute of limitations, the defendant does not confess that he ever promised at all. So, in a replication to such a plea, that the plaintiff was out of the country, he does not confess, that the five years have elapsed. So, in pleading a release, it is not necessary to admit the execution of the bond, &c. No authorities can be produced in support of such an objection. As to payments of money, it appears from the account itself, that Wilson, after the notes became due, received more cash from A. & W. Ramsay than they received from him ; and it is evident, that the cash transactions were mere matters of mutual accommodation, by loans of small sums, for short periods of time. As to the first bill of exceptions, it is said, that the plaintiff ought to have produced his letters testamentary on the trial; and that a judgment in this suit, would not be a bar to an action by the rightful executor. This we deny. In a suit brought by the name of John, it is not necessary, on the trial of the $ generai issue, *to prove that the plaintiff was baptized by that name. -* So, if the plaintiff sue as executor, when he is only administrator, and no advantage taken by plea in abatement, it is not necessary, on the trial, to produce letters testamentary. The 3d and 4th bills of exception raise two questions. 1. Whether the assignment ought to have been proved, on the trial, to be for value received. 2. Whether the assignment on the note varies from that stated in the declaration. 122 1805] OF THE UNITED STATES. 203 Wilson t. Codman’s Executor. It is said, that the probata and the allegata must precisely agree. This is not the law. It is sufficient, if they agree in substance. In an action of assault and battery, the declaration, alleging it to be done with sticks, staves and swords, is sufficiently supported by evidence that the defendant pulled the plaintiff’s nose. So, if the declaration allege that goods were sold and delivered at the request of the defendant, it is sufficient to prove, that the defendant reluctantly received them at the solicitation of the plaintiff. It is only necessary to prove the material averments to be substantially true. The substance, in the present case, is the note and the assignment. The manner is totally immaterial. No form of assignment is prescribed by the act of assembly ; and it is not necessary, under the act, to state the precise words of the assignment. If the assignment had been in consideration of a horse received, it would have been sufficient to have stated, generally, that it was for value received. The words “ without recourse ” do not imply “ without value,” nor do they alter the effect of the assignment, as it regards the defendant. The declaration does not pretend to set forth the assignment in hac verba ; and therefore, the case from Doug. 665, does not apply. Holman v. Borough, 2 Salk. 658 ; The King v. May, Doug. 159. *Mabshall, Ch. J.—Does not your defence rely on there being no . value received ? Simms.—I contend not. I shall presently take the distinction. Washington, J.—The departure is alleged upon that ground. Simms.—A moral obligation upon the part of A. & W. Ramsay is a sufficient consideration for the assignment. They were bound, in honesty and good faith, to assign, and that is sufficient to support the allegation of value received. The maker of the note has no right to inquire into the consideration which passed between the assignor and assignee. If the note had not been, from the first, held in trust for Codman, the defendant might have set off all his claims against the Ramsays, which were due before notice of the assignment. No set-off against the trustee can be set up against cestui que trust. The authorities cited in Winch y. Keely can be produced, if the court should require it. Marshall, Ch. J.—There is no necessity to produce authorities. There can be no question on that point. If the agent, appointed to collect a debt, is indebted to the debtor, the latter cannot set off, against the,debt due from him to the principal, claims against the agent. It cannot be contested. No man ever thought that a person who employs an agent to collect his debts, by this agrees to take on his hands the debts owing by his agent to his debtors, instead of looking to the original debtors themselves. C. Lee, in reply.—1st. As to the letters testamentary. *The act of congress does not take away the necessity of giving notice to the other party. It does not essentially alter the law on that subject. By that law, a scire facias must have issued, and would have been returnable to the next term. One of the clauses of each act is in the same words. The act of congress is equally applicable to the death of plaintiffs and defendants. A scire facias must issue in both cases. And if it had issued, the defendant would have been in time. 123 205 SUPREME COURT Wilson v. Codman’s Executor. [Feb’y 2d. The plaintiff ought to have produced his letters testamentary, at the trial, to support his title, on the issue of nil débet. This has been spoken to before. 3d. As to the demurrer. It is an answer to the case of Winch v. Keely, 1 T. R. 619, that in our case, the demurrer is special, in the Other, it was general. It will also appear, that in that case, the facts of the pleas were expressly admitted in the replication. The demurrer there was for the purpose of bringing into consideration an important question of law. The 1st cause of demurrer assigned is, that the replication is a departure. It is only necessary to know what the declaration is. The expression, for value received, means value received by the defendant of the Ramsays, and by them of the plaintiff. The declaration states it to be Ramsay’s debt ; the replication alleges it to be Codman’s debt. 4th. The variance between the declaration and the note offered in evidence is material. If they had produced a note, assigned for value received, the plea of bankruptcy of the Ramsays would have been good. If they had proved their declaration, they would have defeated their action. It is admitted, however, that it would be a question of some doubt, whether the * _ variance would be absolutely fatal, if the action were on a *parol J agreement, upon the authority of the note at the end of the case of Bristow v. Wright, Doug. 669 (3d edition), which confines this strictness of pleading to records and written contracts. But the present action is upon a written contract, and therefore, according to all the authorities, a misrecital is fatal. 5th. As to the bill of exceptions respecting the testimony, it is only necessary to read the prayer of the defendant to the court (without intermixing the testimony offered by the plaintiff, which only confuses the question), to show the impropriety of the court’s decision. The amount of the prayer is, that the payments ought to be presumed to be made on the notes, unless it is proved that they were made for some other purpose, or on some other account ; it having been proved that the Ramsays had no right to demand money from the defendant, except on account of those notes. March 6th, 1805. Marshall, Ch. J„, delivered the opinion of the court.—The first question which presents itself in this case is, was the defendant entitled to oyer of the letters testamentary at the term succeeding that at which the executor was admitted a plaintiff in the cause ? It is contended, on the part of the defendant, that on the suggestion of the death of either plaintiff or defendant, a scire facias ought to issue, in order to bring in his representative ; or, if a scire facias should not be required, yet, that the opposite party should have the same time to plead and make a proper defence, as if such process had been actually sued. The words of the act of congress do not seem to countenance this opinion. They contemplate the coming in of the executor, as a voluntary act, and give the scire facias to bring him in, if it shall be necessary, and to enable the court “to render such judgment against the estate of the * , *deceased party,” “ as if the executor or administrator had volun- z ‘J tarily made himself a party to the suit.” From the language of the act, this may be done instanter. The opinion that it is to be done, on 124 1805] OF THE UNITED STATES. 207 Wilson v. Codman’s Executor. motion, and that the party may immediately proceed to trial, derives strength from the provision that the executor or administrator, so becoming a party, may have one continuance. This provision shows that the legislature supposed the circumstance of making the executor a party to the suit, to be no cause of delay. But as the executor might require time to inform himself of the proper defence, one continuance was allowed him for that purpose. The same reason not extending to the other party, the same indulgence is not extended to him. There is, then, nothing in the act, nor is there anything in the nature of the provision, which should induce an ©pinion, that any delay is to be occasioned, where the executor makes himself a party, and is ready to go to trial. Unquestionably, he must show himself to be executor, unless the fact be admitted by the parties ; and the defendant may insist on the production of his letters testamentary, before he shall be permitted to prosecute ; but if the order for his admission, as a party, be made, it is too late to contest the fact of his being an executor. If the court has unguardedly permitted a person to prosecute, who has not given satisfactory evidence of his right to do so, it possesses the means of preventing any mischief from the inadvertence, and will undoubtedly employ those means. The second point in the case is thé demurrer of the defendant to the plaintiff’s replication. Two causes of demurrer are assigned. 1st. That it is a departure from the declaration : 2d. That the plea ought to have been traversed, and an issue tendered thereon. On the first cause of demurrer, some difference has existed in the court, but the majority of the judges concur in the opinion, that the replication fortifies, and does not depart from the declaration. *The averment, r*9ns that the assignment was for value received, is an immaterial averment. The assignee, without value, can as well maintain his action as the assignee on a valuable consideration. It is, therefore, mere surplusage, and does not require to be proved ; nor does it affect the substantial part of the declaration. It is also the opinion of a part of the court, that the duty created by the trust, and which was discharged by the assignment, may be considered as constituting a valuable consideration to support the averment, and prevent the replication from being a departure from the declaration. 2d. The second case of demurrer is clearly not maintainable. The matter of the replication does not deny, but avoids the allegations of the plea, and consequently, the conclusion to the court is proper. It has, indeed, been argued, that the replication is faulty, because it does not confess the matter alleged in the plea ; but this is not assigned as a cause of demurrer, and it is, therefore, not noticed by the court. The demurrer having been overruled, several exceptions were taken at the trial to the opinion of the court. The first was to the admission of the note as evidence. This was objected to, because the declaration averred the note to be assigned for value received, and the assignment contained no expression of a valuable consideration, but was declared, to be made “ without recourse.” As the assignment is not set forth in hœc verba, this exception is so clearly unmaintainable, that it will require only to be mentioned. The 2d exception requires more consideration. It is, that although the averment that the assignment was made for value received, was immaterial, yet the plaintiff, having stated the fact in his declaration, is bound to prove 125 208 SUPREME COURT [Feb’y Wilson v. Codman’s Executor. it. In support of this position, Bristow v. Wright, Doug. 665, has been quoted and relied on. The strictness with which, in England, a plaintiff is * , bound to prove the averments of his declaration, although *they J may be immaterial, seems to have relaxed from its original rigor. The reasons stated by Lord Mansfield, in the case reported by Douglas, for adhering to the rule, do not apply in the United States, where costs are not affected by the length of the declaration. Examining the subject, with a view to the great principles of justice, and to those rules which are calculated for the preservation of right and the prevention of injury, no reason is perceived for requiring the proof of a perfectly immaterial averment, unless that averment be descriptive of a written instrument, which, by being untruly described, may, by possibility, mislead the opposite party. Where, then, the averment in the declaration is of a fact dehors the written contract, which fact is in itself immaterial, it is the opinion of the court, that the party making the averment, is not bound to prove it. In this case, the averment, that the assignment was made for value received, is the siVerment of a fact which is perfectly immaterial, and which forms no part of the written assignment ; nor is it averred to be a part of it. It is an extrinsic fact, showing how the right of action was acquired, but which contributes nothing towards giving that right of action. The party making this useless averment ought not to be bound to prove it. No case which has been cited at bar, comes up to this. The averments of the declaration, which the plaintiff has been required to prove, are all descriptive of records, or of written contracts ; not of a fact, at the same time, extrinsic and immaterial. The court is, therefore, unanimous in the opinion, that this exception cannot be maintained. In the progress of the trial, the counsel for the defendant in the court below, also required that court to instruct the jury, that unless the plaintiff *9inl show that the Ramsays, who were his agents, had the power *to J collect some other debt from the defendant, the payments made by him, to them, should be credited on the notes given to them in trust for Codman, which instruction the court very properly refused to give. Independent of the proof made by the plaintiff, that the sums of money received by the Ramsays from Wilson, were really on their own account, the instruction would not have been proper, as this case actually stood. There was a running account between the Ramsays and Wilson, who had large transactions with each other, and who reciprocally advanced large sums. This running account is not stated by the defendant, in the proposition for the opinion of the court. The effect it produces is to make it proper for Wilson to prove, that advances made by him to the Ramsays were not designed to satisfy their particular engagements with each other, but were intended to discharge the debt due to Codman. Terms are improperly used in the bill, which imply a fact contradicted by the testimony. The word “ payment ” is used instead of the word “ advance,” and this, at first view, may produce an obscurity, which is dissipated on investigating the record. The judgment is to be affirmed, with costs. 126 1805] OF THE UNITED STATES. | 210 Hallet & Bowne v. Jenks and others. Marine i/nsura/nce.—Illegal voyage. A vessel belonging to citizens of the United States, in the year 1799, driven by distress into a French port, and obliged to land her cargo, in order to make repairs, and prevented by the officers of the French government from relading her original cargo, and from taking away anything in exchange but produce or bills, might purchase and take away such produce, without incurring the penalties of the non-intercourse act of 13th June 1798. And such voyage was not illegal, so as to avoid the insurance. Hallett v. Jenks, 1 Caines Cas. 43; s. c. 1 Caines Rep. 64, affirmed. This was a writ of error to the “ Court for the Trial of Impeachments,, and the Correction of Errors, in the state of New York,” under the act of congress of the 24th September 1789, § 25 (1 U. S. Stat. 85), which gives the supreme court of *the United States appellate jurisdiction upon a judgment in the highest court of a state, in which a decision in the suit could be had, where is drawn in question the construction of any clause of a r* ’. *statute of the United States, and the decision is against the right, privilege or exemption, specially set up or claimed by either party, under such statute. The action was upon a policy of insurance', and the only question to be decided by this court was, whether the risk insured was illegal, under the act of congress (commonly called the non-intercourse law) of the 13th June 1798 (1 U. S. Stat. 565). For although another question appears to arise upon the record, viz., whether a condemnation in a foreign court, as enemy’s property, be conclusive evidence of that fact, yet this court is prohibited by the same 25th section of the act of 1789, to consider any other question than that which respects the construction of the statute in dispute. On the trial of the general issue, a special verdict was found, containing the following facts : That on the 27th day of April 1799, the defendants, for a premium of 25 per cent., insured for the plaintiffs against all risks, $1000,. upon 25,000 pounds weight of coffee, valued at 20 cents per pound, on board the sloop Nancy, from Hispaniola to St. Thomas. That in the margin of the policy was inserted a clause in the following words, “ warranted the property of the plaintiffs, all Americans,” but that the words “ all Americans,” were added, after the policy was subscribed ; that the sloop Nancy was built at Rhode Island, and belonged to citizens of the United States, resident in Rhode Island, as well when she left that state, as at the time of her capture, and being chartered by the plaintiffs, sailed from Newport, in Rhode Island, on the 12th day of December, in the year 1798, on her first voyage to the Havana ; that in the course of the said voyage, she was compelled, being in distress, to put into Cape François, in the island of Hispaniola, a country in the possession of France, where she arrived on the 5th day of January 1799 ; that the master and supercargo of the sloop were part owners of the cargo, and two of the plaintiffs in this suit ; that having so put into Cape François, the cargo was landed to repair the vessel ; that the public officers • acting under the French government there, *took from them nearly r!js ‘ all the provisons on board the sloop, and the master and super-cargo were permitted to sell, and did sell, the remainder, to different persons there ; that the master and supercargo made a contract with the public officers, by which they were to be paid for the provisions in 127 212 SUPREME COURT [Feb’y Hallet v. Jenks. thirty days, but ths payment was not made ; that, with the proceeds of the remaining parts of the cargo, they purchased the whole of the cargo which was on board, at the time of the capture, and also seventeen hogsheads of sugar, which they sent home to New York, on freight ; that the said officers forbade the said master and supercargo of the sloop, from taking on board the cargo landed from the said vessel, or from conveying from the said island any specie, by reason whereof they were compelled to sell the same, and to take the produce of that country in payment. That the sloop, with 30,000 weight of coffee on board, 25,000 pounds weight of which was intended to be insured by the present policy, sailed from Cape François, on the 23d day of February, in the year last aforesaid, on the voyage mentioned in the policy of insurance, having on board the usual documents of an American vessel ; that the sloop, in the course of her said voyage, was captured by a British frigate, and carried into the island of Tortola, and vessel and cargo libelled, as well for being the property of the enemies of Great Britain, as for being the property of American citizens, trading contrary to the laws of the United States ; that, at the time of the capture of the sloop, besides the documents aforesaid, the following paper was found on board : “ Liberty—Safe Conduct—Equality. “At the Cape, 11th Termidor, sixth year of the French Republic, one and indivisible. The general of division and private agent of the executive directory at St. Domingo, requests the officers of the French navy and privateers of the republic, to let pass freely the American vessel called the -------,-------master, property of Mr. E. Born Jenks, merchants at Providence, state of Rhode Island, in the United States, arrived from the said place to the Cape François, for trade and business. The citizen French consul, in the place where the said vessel shall be fitted out, is invited to fill with her name, and the captain’s, *the blank left on these pres- J ents ; in attestation of which, he will please to set his hand hereupon. (Signed) J. Hedouville. Gauthier, the general secretary of the agency.” Which paper was received on board the sloop, at Cape François, and was on board when she left that place ; that the property insured by the policy aforesaid was claimed by the said Zebedee Hunt, and was condemned by a sentence of the said court of vice-admiralty, in the following words : “ that the said sloop Nancy, and cargo on board, claimed by the said Zebedee Hunt, as by the proceedings will show to be enemy’s property, and as such, or otherwise, liable to confiscation, and condemned the same as good and lawful prize to the captors.” That the plaintiffs are Americans, and were owners of the property insured, and that the same was duly abandoned to the underwriters. That part of the act of congress, which the underwriters contended had been violated by the defendants in error, is as follows : § 1. “ That no ship or vessel, owned, hired or employed, wholly or in part, by any person resident within the United States, and which shall depart therefrom, after the first day of July next, shall be allowed to proceed directly, or from any intermediate port or place, to any port or place within the territory of the French republic, or the dependencies thereof, or to any place in the West Indies, or elsewhere, under the acknowledged government 128 1805] OF THE UNITED STATES. 213 Hallet v. Jenks. of France, or shall be employed in any traffic or commerce with or for any person, resident within the jurisdiction, or under the authority of the French republic. And if any ship or vessel, in any voyage thereafter commencing, and before her return within the United States, shall be voluntarily carried, or suffered to proceed to any French port or place as aforesaid, or shall be employed as aforesaid, contrary to the intent hereof, every such ship or vessel, together with her cargo, shall be forfeited, and shall accrue,” &c. *The 2d section enacts, that after the first of July 1798, no clear- r*91 A ance for a foreign voyage shall be granted to any ship or vessel owned, hired or employed, wholly or in part, by any person resident within the United States, until a bond shall be given, in a sum equal to the value of the vessel and cargo, “ with condition, that the same shall not, during her intended voyage, or before her return within the United States, proceed or be carried, directly or indirectly, to any port or place within the territory of the French republic, or the dependencies thereof, or any place in the West Indies, or elsewhere, under the acknowledged government of France, unless by distress of weather, or want of provisions, or by actual force or violence, to be fully proved and manifested before the acquittance of such bond; and that such vessel is not, and shall not, be employed, during her intended voyage, or before her return, as aforesaid, in any traffic or commerce with or for any person resident within the territory of that republic, or in any of the dependencies thereof.” June 13th, 1798. (1 U. S. Stat. 565.) , Mason, for the plaintiffs in error.—If the insurance was upon an illegal transaction, the defendants in error have no right to recover. The only question for the consideration of this court is, whether it be a transaction prohibited by the act of congress. If the purchase of this cargo in Cape François was lawful, the policy is good. The first section of the act has two branches, and contemplates two separate offences : 1st. That no vessel shall be allowed to go to a French port. But this prohibition must be subject to the general principle, that the act of God, or of the public enemy, shall be an excuse. 2d. That if driven into such port by distress, or involuntarily carried in, yet, there shall be no trade or traffic. The words are, “ if any vessel shall be voluntarily carried, or suffered to proceed to any French port or place as aforesaid, or shall be employed as aforesaid.”- The going in must be voluntary, but the legislature carefully omit the word voluntarily, when speaking of the offence of trading for all trading must be voluntary; it cannot *be by compulsion. The p object was to prevent intercourse, and the statute only makes the same saving of the forfeiture which a court would have made without such a saving clause. The condition of the bond mentioned in the 2d section confirms this construction of the 1st. It is divided into two clauses, agreeable to the two offences to be provided against. The proviso “ unless by distress of weather,” &c., is annexed only to the offence of going into the port, but there is no saving or exception as to the offence of trading. If she had not been driven in by distress of weather, she would have been liable to forfeiture, under the first offence. But having been employed in traffic with persons resident, &c., she is equally liable to forfeiture, under the second, and the condition of the bond has been substantially broken. The special verdict states, “ that the master and supercargo were per-3Ckanch—9 129 215 SUPREME COURT [Feb’y Hallet v. Jenks. mitted to sell, and did sell, the residue of the cargo, to different persons there.” Here was no compulsion. This selling was a violation of the law; but it is not that which avoids this policy. The fault was, that with the proceeds of those sales, the plaintiffs below purchased the cargo insured. There was no compulsion to do this, except what I shall presently notice, as stated in the verdict. It will probably be contended, that the following words of the verdict show a compulsion, viz., “ that the said officers forbade the said master and supercargo from taking on board the cargo landed from the said vessel, or from conveying from the said island any specie, by reason whereof, they were compelled the sell the same, and to take the produce of that country in payment.” But this is only the reasoning of the jury, and the words, by reason whereof, show what kind of compulsion it was, and that it was not that inevitable necessity which can excuse the express violation of the law. The owners ought to have said to them, if you forbid us to take away our property, we must leave it, and look to our government for an indemnification; for they have forbidden us to sell it to you, or to purchase a new cargo. The forbidding them to relade their goods, and *91 Rl take *away specie, was no compulsion to purchase produce. The J verdict does not state that the master or supercargo attempted to resist the force ; it may be wholly a colorable transaction. ( The act of the 27th February 1800 (2 U. S. Stat. 7), shows what the construction of that of 1798 ought to be. The 3d section of the former provides, that in case the vessel shall be compelled, by distress or superior force, to go into a French port, and shall there necessarily unlade and deliver, or shall be. deprived of any cargo then on board, the master may receive payment in bills of exchange, money or bullion, and not otherwise, “ and shall not thereby be understood to contravene this law.” This is a clear implication, that if there had not been such an express permission to receive payment in bills of exchange, money or bullion, it would have been a contravention of the law ; and that law, excepting this provision, is substantially the same as the law of 1798. Harper, contH.—I might safely agree to the first position taken by the opposite counsel, that the 1st section of the act of 1798 creates two distinct offences. But this is not so. The whole constitutes but one offence. How is a ship to be employed in traffic ? She must bring and carry. If she did not go voluntarily, she was not employed in trafficking. If the master sell the cargo, under such circumstances, the vessel is not employed in traffic. But if the act creates two separate offences, how is the vessel employed in the traffic ? She did not carry the cargo there voluntarily. But it being there, and landed, necessarily landed, how is the vessel concerned in the sales and purchases made by the master ? The necessity of repairing the vessel is as much an excuse for landing the cargo, as stress of weather was for going in. The master was forbidden to relade it. But a difference is taken between prohibition and prevention. It is said, that the forbidding is not preventing. But by whom was the prohibition ? By the officers of the Government, having authority and power to carry the prohibition into effect. It was, therefore, actual prevention. *91*71 * What was the mischief intended to be remedied by the act of J congress ? Not such a sale as this. It was to prevent a voluntary 130 1805] OF THE TOTTED STATES. Hallet v. Jenks. 217 intercourse, not to prevent citizens of the United States from rescuing their property from impending loss. What is traffic ? A contract by consent of both parties. If one is under compulsion, it is no contract, no traffic. The transaction disclosed by the verdict, is only the means of saving property from a total loss. The owners were not obliged to abandon, as the gentleman contends, property thus put in jeopardy. The master and supercargo were not free agents. They were not obliged to take bills, which they knew would not be paid. If I could have had a doubt upon this case, it would have been removed by the decisions of the circuit courts of the United States. In a case before one of your Honors, (a) in Baltimore, a vessel had brought home from the French West Indies, a cargo of the produce of those islands, after having been compelled to go in and sell her outward cargo ; and it was decided, that “the case was not within this act of congress. A similar case is understood to have been decided by another of your Honors,^) in New York. If those cases were not within the law, I am warranted in saying, this is not. Those decisions produced the 3d section of the act of 1800, which the gentleman has cited, and which was introduced, to shut the door that had been left open. It was perceived, that the law, as it stood before, would give an opportunity of fraud. The 3d section was enacted to take away the temptation ; because, although there might be cases, clear of fraud, it was thought best to sacrifice these particular cases, that fraud might be prevented in others. This section, therefore, has given a sanction to the decisions of the circuit courts. Key, in reply.—It is clear, that there are two distinct prohibitions in the act. The two parts of the section are connected by the disjunctive “ or,” and not by the copulative “ and.” This is rendered still more evident, by the form of the condition of the bond described in the second section. *Whenever you rely on the necessity of the case, to justify your acts, you must not go beyond the necessity. All beyond is volun-tary. In this case, it might go to the landing, and to the seizure of part, but not to the sale of the residue. The probability of loss is not necessity. If they took produce, it was only to avoid a greater loss. It was not an inevitable necessity. Another fact shows that it was trading; not merely taking on board, to bring home, property which they were compelled to receive. She was not coming home with the property, when she was captured, but going on a trading voyage. And the French pass states that she came to Cape François for trade and business. The intention of the act was to prevent all trading and intercourse with France or her dependencies. In the case at Baltimore, before his Honor Judge Washington, the vessel returned directly home to Baltimore, with produce, which she had been compelled to take or abandon. Mason, on the same side.—It is said, there must be a pre-existing intention to go to a French port. If the sloop had arrived safe at the Havana, and been there sold to an agent of the French government, it is clear, she (a) Judge Washington. (5) Judge Paterson, in September 1799, in the case of Richardson and others, cited in 1 Caines’ Rep. p. 63. 131 218 SUPREME COURT [Feb’y Hallet v. Jenka. would have been liable to forfeiture. So, if the French agent, who signed the passport, had freighted the vessel. These cases show that a pre-existing intention is not necessary. The construction contended for would, indeed, open a wide door to fraud, as the gentleman has contended. It would only be necessary to start a plank, in sight of the port, and then go in to stop the leak, and the whole law is evaded. March 6th, 1805. Marshall, Ch. J., delivered the opinion of the court, to the following effect:—The court is of opinion, according to the best con-*91 q1 sideration they have been able to give the subject, that this *case is J not within the act of congress of 1798, usually called the non-intercourse law. It is contended by the counsel for the defendant, that the circumstances stated in the special verdict, do not show an absolute necessity for the trading therein described. And it is said, the plaintiff might have abandoned the property, and sought redress of his government; and that it was his duty to do so, rather than violate the laws of his country. But the court is of opinion, that the act of congress did not impose such terms upon a person who was forced by stress of weather to enter a French port, and land his cargo, and was prevented by the public officers of that port to relade and carry it away. Even if an actual and general war had existed between this country and France, and the plaintiff had been driven into a French port, a part of his cargo seized, and he had been permitted by the officers of the port to sell the residue, and purchase a new cargo, I am of opinion, that it would not have been deemed such a traffic with the enemy, as would vitiate the policy upon such new cargo. The terms of the act of congress seem to imply an intentional offence on the part of the owners. The case, put, of a French agent going to the Havana, and there purchasing the cargo for the use of the French government, under a preconcert with the owners, would certainly be an offence against the law; but when there is no such intention ; when the vessel has been absolutely forced, by stress of weather, to go into a French port, and land her cargo ; when part has been seized for the use of the government of France, and the master has been forbidden by the public officers of the port to relade the residue,and to sell it for any thing valuable, except the produce of the country; the mere taking away such produce, cannot be deemed such a traffic as is contemplated by the act of congress. Judgment affirmed, with costs, (a) (a) See the opinion of the supreme court of New-York, in this case, in 1 Caines’ Rep. 64, and that of the High Court for the Trial of Impeachments and Correction of Errors, in the State of New York, delivered by Lansing, Chancellor, in 1 Caines’ Cases in Error, p. 43. 132 1805] OF THE UNITED STATES. *220 *Milligan, Administrator of Milligan, v. Milledge and Wife, (a) Equity pleading.— Want of parties. A plea in bar to a bill in chancery, denying only part of the material facts stated in the bill, is not good. A mere denial of facts is proper for an answer, but not for a plea.1 The want of proper parties is not a good plea, if the bill suggests that such parties are out of the jurisdiction of the court. The want of proper parties is not sufficient ground for dismissing the bill. Ekbok to the Circuit Court for the district of Georgia, in chancery sitting. The object of the bill was to recover from the defendants, as legatees and devisees of George Galphin, deceased, a debt due by him to the complainant’s intestate, as surviving partner of Clark & Milligan. The bill charged, that Clark & Milligan were merchants in London; that Milligan survived Clark, and that the complainant was the administrator of Milligan, the survivor; that in the year 1770, they supplied George Gal-phin with goods; that in 1773, George Galphin requested them, by letter, to supply goods to his three sons, Thomas, George and John, his nephew, David Holmes, and John Parkinson, under the firm of Galphin & Holmes ; that on the credit of G. Galphin, the elder, they shipped goods, &c., to the said company. That in 1776, G, Galphin, the elder, wrote to Clark & Milligan to furnish goods to the said company, at their store in Pensacola, and that he would see them paid; that relying on the said engagement, they shipped further goods to the said company, at Pensacola, and on the 31st of December 1780, G. Galphin, the elder, owed— sterling For himself, £1120 1 2 For Galphin, Holmes & Co. 1206 5 3 And Jan. 1st, 1784, for the Pensacola firm, 3959 15 9 all of which was due and unpaid. *That G. Galphin, the elder, died p. testate in 1781 or 1782, and duly appointed James Parsons, John *-Graham, Laughlin McGillvray, John Parkinson, William Dunbar, and his sons, John, George and Thomas Galphin, his executors; and left real and personal estate sufficient to pay all his just debts. That all the executors declined the trust, excepting the three sons ; that the copartnership of Galphin, Holmes & Co. was dissolved on the----------day -------------------------------------------------------------------------> without any funds for the payment of their debts ; that John and George Galphin, two of the executors, never meddled with the deceased’s estate, having been long insolvent, were not within reach of the process of this court, were unknown to the complainant, and gone to places out of his knowledge. That William Dunbar was dead, leaving no assets of the deceased’s estate. That David Holmes was dead, and left no property, to the knowledge of the complainant. That Thomas Galphin and John Parkinson ( and their *claim upon the master. Had no communica- -I tion taken place between the master and his crew, whereby a portion of the prize-money was allotted to him, in trust for the owners, which would not have been allotted to him as a captor, in virtue of his station in the vessel, it would have been a plain case of prize, under the resolution of congress, and any intention under which the capture was made, whether declared or not, would have been, like other acts of the will, controllable and alterable by the persons who had entertained it. But if, by a contract with the crew, stipulating certain advantages for the owners of the ship and cargo, the vessel has been carried in, when she would not otherwise have been carried in, or a larger proportion of the prize has been allowed to the master than would have been allowed to him, for his own use, a plain fraud has been committed by him, and the question, whether the trust which he assumed upon himself, and under which he obtained possession of the property, can be enforced in this court, is one of more difficulty, upon which a difference of opinion has prevailed. It has been thought, by some of the judges, that the contract being, in itself, compatible with the strictest rules of morality, and being opposed by only a temporary and war regulation, which exists no longer, may now be enforced. But upon more mature consideration, the majority of the judges accede to the opinion, that the contract being clearly in fraud of the law, as existing at the time, a law to which, under the circumstances attending it, no just exceptions can be taken, its execution cannot be compelled by the courts of that country to evade whose laws it was made. • The person in possession must be left in possession of that which the decree of a competent tribunal has given him. This opinion seems completely to decide the point made under the treaty of peace. According to it, a debt never existed, to which the treaty could apply. No debt was due from the master to his owners, but in virtue of the confiscation of the ship and cargo ; and it has never been alleged, that the treaty extended to captures, made during the war, of property in the actual possession of the enemy, whatever might be the means employed in making them. , *If the allegations of the bill had stated any contract, subsequent 249-l to the condemnation, by which Captain Eve had made himself a trustee, the previous moral obligation might have furnished a sufficient consideration for that contract. But the allegations of the bill are not sufficiently explicit on this point: they do not make out such a case. His declarations appear to have been contemporaneous with the transaction, and only to have manifested the intention under which he acted, an intention which he was at liberty to change. Judgment affirmed. 148 1806] . . OF THE UNITED STATES. 249 Montalet v. Murray. Practice in error. If the plaintiff in error does not appear, the defendant may either have the plaintiff called, and dismiss the writ of error, with costs, or he may open the record, and go for an affirmance. Marshall, Ch. J., stated the practice of* the court to be, that where there is no appearance for the plaintiff in error, the defendant may have the plaintiff called, and dismiss the Writ of error ; or may open the record, and pray for an affirmance. P. B. Key, for the defendant, had the plaintiff called. Dismissed. The Chief Justice also stated, in answer to a question from the clerk, that, in such cases, costs go, of course. Sarah and Abigail Silsby v. Thomas Young and Enoch Silsby. Construction of will.—Abatement of legacy. D. devised all his estate to his executor, in trust to convert the same into money, and after payment of debts, to invest the surplus in the funds, or put it out on interest. He then bequeathed 15004 to E., to be paid at the age of 21, subject to the subsequent provisos; and directed 10004 to be set apart, and the interest to be paid to S., during her life, and after bequeathing other pecuniary legacies, said, provided “ that in case the personal estate, and the produce arising from the real estate, which I shall die seised and possessed of, shall not be sufficient to an swer the said annuities and legacies herein before by me bequeathed, then and in such case, I direct, that the said annuities and legacies so by me bequeathed, shall not abate in proportion; but the whole of such deficiency (if any there shall be) shall be deducted out of the 15004 bequeathed to E.,” whom he also made his residuary legatee. The estate was more than sufficient at the time of the testator’s death, to pay all debts, annuities and legacies, but afterwards, by the bankruptcy of the executor, became insufficient: Held, that E.’s legacy of 15004 should be liable to S.’s annuity.1 This was a writ, of error to the Circuit Court of the United States for the district of Georgia, to reverse the decree of that court, which dismissed the bill of the complainants, Sarah and Abigail Silsby. Daniel Silsby, the brother of the complainants, and uncle of the defendant, Enoch Silsby, being seised and possessed *of real and personal p250 estate in England and in the state of Georgia, by his will, made in L England, on the 11th of January 1791, devised all his estate to his executor, W. Gouthit, of London, in trust, to turn the same into money, or securities for money, and after payment of his debts, to place out the surplus upon any public or private securities, upon interest, or to invest it in the public funds. He then bequeathed to his nephew, Enoch Silsby, 1500?. sterling, to be paid to him at twenty-one years of age, “ subject to the provisos hereinafter mentioned,” and directed the interest to be paid to his guardian, during his minority, to be applied to his maintenance and education. He then directed his trustees to set apart 1000Z. sterling, and pay the interest thereof to his sister Sarah, during her life, for her sole and separate use and disposal, and in case of her death, without issue, the principal was to be paid over to 1 See Murdock’s Appeal, 31 Penn. St. 47. 149 250 SUPREME COURT [Feb’y Silsby v. Young. Enoch. A similar provision was made for his sister Abigail, the other complainant. And after bequeathing several other pecuniary legacies, he used the following words : “ Provided always, and I do hereby expressly declare it to be my will and meaning, that in case the personal estate, and the produce arising from the real estate, which I shall die seised and possessed of, shall not be sufficient to answer the said annuities and legacies herein before by me bequeathed, then and in such case, I direct that the said annuities and legacies, so by me given and bequeathed, shall not abate in proportion ; but that the whole of such deficiency (if any there shall be) shall be deducted out of the said sum of 1500?. herein before by me' bequeathed to my said nephew, Enoch Silsby. And in case the personal estate, and the produce arising from the sale of the real estate, which I shall die seised and possessed of, shall be more than sufficient to answer and satisfy the several annuities or legacies herein before by me bequeathed, then and in such case, I give and bequeath the surplus and residue which shall so exceed the purposes of this my will, unto my nephew, Enoch Silsby, subject to such conditions as are herein before, in this my will, mentioned and contained, touching and concerning the said sum of 1500?. sterling, so by me bequeathed as is herein before particularly mentioned.” *The testator died at Ostend, on his way to the United States, in J February 1791, leaving real and personal estate more than sufficient to pay all the debts and legacies, and which came to the hands of Gouthit, the executor, who paid all the debts and all the legacies, excepting those bequeathed to the complainants, and to the defendant, Enoch Silsby, and another legacy of 500?. to Daniel Silsby Curtain ; but upon these, he regularly paid the interest, until the year 1796, when he became bankrupt. The testator, in his will, mentioned, that he had in the hands of Harrison, Ansty & Co., of London, 5000?. sterling, for which they allowed him an interest of five per cent, per annum. Gouthit, in his letter to the complainants, of September 9th, 1791, said, “ I have an excellent offer; a mortgage for 2000?. which, if you think well, I will take it; for if I should, at any time, see well to place it anywhere else, by giving six months’ notice, it would be paid. It is on an estate in Manchester, one of the greatest trading towns in this kingdom, and I can make you five per cent, sterling on it, which will, you know, be 50?. a yeai for each of you, and you may have it paid as you please, but every six months, I think, would be best. The gentleman I mean to lend the money to, is an old acquaintance of your brother’s, and the estate is worth 5000?. He does but want 2000?., so, you know, nothing can be safer on earth, and I will have the deed so recited as to set forth the money is for your use, &c. This, I doubt not, but will meet your approbation. I have taken no money out of Harrison’s hands, nor even interest, as I have no doubts of its safety, and the ■interest is going on.” In answer to which, the complainants wrote him, on the 1st of February 1792, “ Yours of September the 7th, you mention an old friend of our dear brother’s wanting to hire the 2000?. on mortgage. We would willingly oblige him, but cannot. We choose to let it remain, just as our brother left it, and shall draw on you every six months for our interest.” * *Gouthit, before his bankruptcy, drew all the money out of the -* hands of Harrison, Ansty & Co., who were, and always had been, 150 1806] OF THE UNITED STATES. 252 Silsby v. Young. solvent and in good credit. He never placed out in any specific funds the 2000?. from which the complainants’ annuities were to arise. On the 20th December 1791, Gout hit sent a power of attorney to the defendant, Thomas Young, of Savannah, in Georgia, to collect the effects of the testator in that state, under which power, Young obtained letters of administration with the will annexed, and took into' his possession all the property there, some part of which he paid over to Gouthit. He also in the year 1800, paid the legacy due to Daniel Silsby Curtain, and part of the 1500?. legacy to Enoch Silsby. Considerable debts due to the estate were still outstanding in Georgia. At the time of Gouthit’s bankruptcy, he was indebted to the estate of his testator in the sum of 5380?. 12s. 2c?. sterling, but the commissioners refused to admit him, as executor of the testator, to prove the same as a creditor of his own estate, whereupon, the legatees, who had not been paid, petitioned the Lord Chancellor of England, that Gouthit might be so admitted toprove the debt for their benefit, which his Lordship decreed accordingly ; and a dividend of 403?. 10s. 10 ^at notice *shall be given to the party at whose suit the pris-oner is in execution. It declares also, that the warrant of discharge shall be sufficient to indemnify the sheriff against any action of escape. And that the prisoner shall not be again imprisoned upon any judgment obtained previous to his taking the oath, unless by virtue of a ca. sa. issued by order of the court in which the judgment shall have been rendered. The estate of the insolvent is vested in the sheriff, But the creditor may, on scire facias, have a newy?. fa. to seize any property which the debtor may afterwards acquire. C. Lee, for the plaintiffs in error. A prisoner in the bounds is as much in jail as if within the walls of the prison. The oath of the insolvent debtor was provided as the guard against fraud ; but the bond is only a substitute for walls to the prison-bounds. As to the surety, a discharge by a competent authority is conclusive. The warrant of discharge is an indemnity to the sheriff, whether obtained by fraud or not. The act of assembly does not (a) P. P. is used in this book as a reference to Pleasant & Pace’s edition of the laws of Virginia, published in 1803, 8vo. 180 ♦ 1806] OF THE UNITED STATES. 303 Simms v. Slacum. expressly provide, that it shall indemnify the surety as well as the sheriff, hut he is within the same reason. The body of the debtor cannot be retaken, unless by order of the court, on proof of fraud. In the case of fraud in the debtor alone, the remedy of the creditor is not by an escape-warrant, but by a new ca. sa. against his person, or a ft. fa. against his goods. The sheriff is bound to discharge the prisoner upon receipt of the warrant ; if he disobeys it, he is liable to an action of false imprisonment; and after obeying it, he cannot go before a justice of the peace, and swear it was an escape, so as to obtain an escape-warrant. If he cannot get an escapewarrant, he cannot assign the prison-rules bond ; for he is, by the act, only authorized to assign it, when an escape has actually happened. The creditor is not bound to take an assignment ; nor can he demand it. When, therefore, the debtor is discharged by a competent authority, the obligation of the bond ceases. It is functus officio ; the surety is no longer liable for an escape, and is *as much discharged as if, after an escape, the debtor is retaken on an escape-warrant, and committed to jail. *- The act of assembly did not intend that the bond should give the creditor a new security for his debt, or to place him in a better situation than he would be, if his debtor were to remain within the stone walls of the jail. The bond was intended for the ease and benefit of the debtor. If the bond is a security against the fraud of the debtor, there are no bounds to the responsibility of the surety. The words “ in due course of law,” mean by authority of law; that is, by a competent legal authority. The notice required by the act to be given to the creditor, is to enable him to attend and show fraud, if he can. But if the surety is answerable for fraud, it would be more for the interest of the creditor not to show the fraud at that time, but to wait until it has had the effect of obtaining a discharge. If a judgment at law is obtained by fraud, it is still a valid judgment, until reversed. Swann, for the defendant in error. In England, it is settled, that a discharge under an insolvent act, must be free from fraud or collusion, and in every respect regular. It is true, that the warrant of discharge is primd facie evidence of a due discharge, and throws the burden of proof of fraud upon the other party. Esp. N. P. 167, 245. But fraud, when proved, will “avoid every kind of act.” Bright v. Eynou, 1 Burr. 395. In order to guard a creditor against the risk of his debtor’s escape, when allowed the liberty of the prison rules, the law requires that the debtor should bind himself in a penalty, and if he escapes, he is as much liable at law for the penalty as his surety is, and the surety is as much bound as the debtor. The one is bound exactly as the other is bound. If the penalty is forfeited as to one, it is forfeited as to the other. Whatever would make Simms liable upon the bond, would make Wise equally *liable. If, then, Simms had voluntarily escaped, he would have been liable to the penalty of his bond. But a discharge obtained by fraud and imposition is, as to him, at least, void ; otherwise, you permit a man to take advantage of his own fraud ; for if the discharge is valid, it puts an end to his obligation upon his bond. A discharge obtained by fraud is, in substance, as much an escape, as if the prisoner had merely gone off in disguise, or imposed upon his jailers by a borrowed dress. But it is a maxim of law, that no man 181 305 SUPREME COURT [Feb’y Simms v. Slacum. shall gain an advantage by his own fraud. If this fraudulent discharge dissolves the obligation of the bond, Simms gains an advantage by his own fraud ; therefore, the fraudulent discharge cannot dissolve the obligation of the bond. If the obligation of the bond be not dissolved as to Simms, it is not as to Wise, for both are equally bound. But the words of the condition of the bond are, that Simms shall not depart therefrom “ until he shall be discharged by due course of lawy A discharge obtained by fraud and imposition is not a discharge in due course of law ; on the contrary, it is a perversion of the course of law ; the law is turned aside from its due course. Shall Simms be permitted to say., that his discharge, grounded on falsehood, fraud and imposition, is a discharge in due course of law ? If Simms cannot say it, Wise cannot say it. Wise can avail himself of no defence at law, which would not equally avail Simms. There is a vast difference between the case of the sheriff and that of the surety. The sheriff is bound to obey the warrant : all he has to inquire is, whether the justices had jurisdiction : he is only the officer of the law, and bound to execute all lawful precepts. Not so, the surety : he is a volunteer: he undertakes for the good faith of the debtor : he substitutes himself in his place, to the extent of the penalty. It is not necessary that the sheriff should swear an escape, before he can assign the bond. It is true, he cannot oblige the creditor to take the bond, unless an escape has been sworn to ; but there is nothing in the law which forbids the sheriff to assign the bond, or the creditor to receive it, without such an oath. *February 19th, 1806. Marshall, Ch. J., delivered the opinion -* of the majority of the court.—This case depends on the construction of an act of the legislature of Virginia, which allows the prison rules to a debtor whose body is in execution, on his giving bond, with sufficient security, not to go out of the rules or bounds of the prison ; that is, while a prisoner. The condition usually inserted is, not to depart therefrom until he shall be discharged by due course of law, or shall pay the debt. The act further provides, that the prisoner, on delivering a schedule of his property on oath, to a tribunal constituted for the purpose, and pursuing certain steps prescribed in the law, shall be discharged, and all his property shall be vested in the sheriff, for the benefit of the creditors at whose suit he is in execution. In the case at bar, the forms of the law were observed, and a certificate of discharge obtained, after which the debtor departed from the rules. Conceiving this discharge to have been obtained by fraud, the creditor brought a suit upon the bond, and the court instructed the jury, that if a fraud had been practised by the debtor, although neither the justices who granted the certificate, nor the surety, partook thereof, yet it avoided the discharge, and left the surety liable in this action. To this opinion, the defendant’s counsel excepted, and upon that exception, the cause is before this court. The certificate of discharge may be granted either by the court, sitting in its ordinary character for the transaction of judicial business, or by two magistrates, who are constituted by law an extraordinary court for this particular purpose. Whether granted in the one mode or the other, it is of 182 1806] OF THE UNITED STATES. 306 Simms v. Slacum. equal validity. In either case, the judgment of discharge is the judgment of a court, and, as such, is of complete obligation. The judgments of a court of competent jurisdiction, although obtained by fraud, have never been considered as absolutely void ; and therefore, all acts performed under them are valid, so far as respects third persons. A *sheriff who levies an execution, under a judgment fraudulently ob-tained, is not a trespasser, nor can the person who purchases at a sale under such an execution, be compelled to relinquish the property he has purchased. All acts performed under such a judgment are valid acts ; all the legal consequences which follow a judgment are, with respect to third persons, precisely the same in one obtained by fraud, as if it had been obtained fairly. When the person who has committed the fraud attempts to avail himself of the act, so as to discharge himself from a previously existing obligation, or to acquire a benefit, the judgment thus obtained is declared void as to that purpose ; but it may well be doubted, whether a penalty wonld be incurred, even by the person committing the fraud, for an act which the judgment would sanction. Thus, if a debtor, taken on mesne process, escapes, he may be retaken by the authority of the sheriff, and if not retaken, the sheriff may be liable for an escape ; but if he fraudulently obtains a judgment in his favor, in consequence of which he goes at large, it has never been imagined, that the sheriff could retake him, on suspicion that the judgment was fraudulent, or be liable for an escape, on the proof of such fraud. Thus, too, where, as in Virginia, an injunction has been adjudged to discharge the body from confinement, if a debtor in execution, by false allegations, obtains an injunction, whereby his body is discharged from prison, or from the rules, it has never been conjectured, that the injunction thus awarded was void, and the acts performed under it were to be considered as if the injunction had not existed. In that case, it would not be alleged that there was an escape, and that the security to the bond for keeping the rules was liable for the debt, because the discharge was fraudulently obtained ; but the discharge would have all its legal effects, in like manner as if no imposition had been practised on the judge by whom it was granted. The judgment rendered in his favor may not shield the fraudulent debtor from an original claim, but it is believed, that no case can be adduced, where an act, which is the legal consequence of a judgment, has in itself created a new responsibility, even with respect to the party *himself, much less with r^ respect to third persons, who do not participate in the fraud. *- It would seem, then, upon general principles, that a debtor who has departed from the prison-rules under the authority of a judgment of discharge, granted in due form by a competent tribunal, has not committed an escape, even to charge himself, much less a third person. Such a discharge might not be permitted to protect him from the original debt, even if the case had not been particularly provided for by statute ; but the act of departing from the rules, after being thus discharged, could not charge him with a new responsibility, to which he was not before liable, much less will it impose on his security, a liability for the debt. Departing from the rules, after being discharged in due course of law, is not a breach of the condition of his bond. This opinion receives great additional strength from those arguments, 183 308 » SUPREME COURT [Feb’y Simms v. Slacum. drawn from the objects and provisions of the act, which have been forcibly urged from, the bar. The objects of the act unquestionably are, not to increase the security of the creditor, but to relieve the debtor from close imprisonment in the confined jails of the country, and to consult his health, by giving him the benefit of fresh air. But as this indulgence would furnish the means of escaping from the custody of the officer, and thereby deprive the creditor of his person, it was thought necessary to guard against the danger which the indulgence itself created, not to guard against dangers totally unconnected with this indulgence. Security, therefore, ought, in reason, to be required against a departure from the rules, without a lawful authority so to do, because the means of such departure were furnished by being allowed the use of the rules ; but security against a fraud in obtaining such authority need not be required, because the means of practising that fraud are not facilitated by granting the rules. They may be used by a debtor in close jail, as successfully as by a debtor admitted to the rules. It is also a material circumstance in the construction of the act, that *SOQ1 amP^e provision is made for the very case. *A new capias may be J awarded, to take the person of the debtor. This remedy is not allowed in the case of an escape ; and it is strong evidence that the legislature did not contemplate a departure from the rules, under a certificate issued by proper authority, as an escape, that the remedy given the creditor is competent to a redress of the injury, replaces him in the situation in which he was before it was committed, and is not founded on the idea that there has been an escape. The arguments founded on the provisions respecting the property of the debtor, also bear strongly on the case. They confirm the opinion, that a departure from the rules, under a certificate of discharge, granted by a proper tribunal, ought not to be considered as an escape. So, too, does that provision of the act, which requires notice to the creditor, and not to the security. Without reviewing the various additional arguments which have been suggested at the bar, the court is of opinion, that upon general principles, strengthened by a particular consideration of the act itself, a departure from the rules, under such an authority as is stated in the proceedings, is not an escape which can charge the security in the bond for keeping the prisonrules, although that authority was obtained by a fraudulent representation on the part of the debtor, neither the magistrates nor the security having participated in that fraud. There is error, therefore, in the instruction given to the jury, as stated in the third bill of exceptions, for which the judgment is to be reversed, and the cause remanded for further trial. Judgment reversed. Paterson, J. (dissenting.)—As to the third exception, which embraces the main point in the cause, my opinion differs from the opinion of the majority of the court, and accords with the direction given by the court below. The condition of the bond is, “ that Simms do well and truly keep himself within the prison-rules, and thence not to depart until he shall be discharged by due course of law, or pay the sum of $1285.45 to George *3101 Slacum, *assignee,” &c. The act that will not exonerate the princi- J pal, will not exonerate the surety from the obligation which they 184 1806] OF THE UNITED STATES. 310 Simms v. Slacum. have entered into ; for the surety stands on the same floor as the principal, and assumes the like character of responsibility, in regard to the terms specified in the condition of the bond. The benefit of the act of insolvency, if obtained by fraud or perjury on the part of Simms, will be unavailing, and his going beyond the limits of the prison, in consequence or under color of a discharge, thus procured, will be an invalid and unwarrantable departure. Fraud infects the decision ; and the legal principle is, that the fraudulent person shall not be suffered to protect himself by his own fraudulent act. If he should, then a judgment, which is laid in fraud, will, as in the present case, operate to the extinction of a legal, pre-existing obligation or contract. But a discharge, fraudulently obtained, is of no virtue ; of no operation ; and is, in truth and in law, no discharge ; it has neither legal effect, nor even legal existence as to the party himself, and the surety who stands in his shoes. If -the judgment be of no avail as to the principal, it will be of no avail as to the surety ; it cannot be ineffectual as to the one, and operative as to the other. The discharge must be legal, to be valid, and to exonerate the surety from the special condition of the bond. The judgment itself is a fraud on the law ; and I can discern no difference between the debtor’s going beyond the prison-bounds voluntarily, or under color of a judgment so obtained ; except that the latter is a case of deeper die, and less excusable in a legal and moral view than the former.1 Although Simms is liable to be imprisoned by virtue of a new process, yet he may have gone out of the jurisdiction of the court; or, if not, Slacum will be deprived of the benefit of the bond which Simms and Wise executed. The sheriff stands on different ground ; for he is exonerated from all liability, by an express provision in the statute. Besides, if the justices have jurisdiction of the subject, and should not exceed their jurisdiction, it is not incumbent on the sheriff, to examine into the regularity, fairness and validity of their proceedings and judgment ; he looks at the instrument of discharge, which, emanating *from a competent authority, it is his* duty to obey. But though the discharge may excuse the sheriff, as an officer of the court, it will not excuse the party, nor his surety. As to them, it .is inoperative and of no legal efficacy. 1 See the remarks of Judge Iredell, in Maxfield v. Levy, 4 Dall. 335. 185 3'11 SUPREME COURT [Feb’y Harris v. Johnston. Conditional payment.—Action for price of goods.—Promissory note. An action cannot be maintained on an original contract for goods sold and delivered, by a person who has received a note as conditional payment, and has passed away that note.1 A bill of parcels, delivered by J., stating the goods as bought of D. and J., is not conclusive evidence against J., that the goods were the joint property of D. and J.; but the real circumstances may be explained by parol. If part of the goods were the sole property of D., and the residue the sole property óf J., and if J. had authority from D. to sell D.’s part, J. may maintain an action for the whole, in his own name. An indorsee of a promissory note, payable to order, cannot, in Virginia, maintain an action at law, upon the note, against a remote indorser, but he may in equity.2 Johnstone. Harris, 1 Cr. C. C. 257, reversed. Error to the Circuit Court of the district of Columbia, sitting at Alexandria, in an action of assumpsit, for goods sold and delivered, and money-had and received. The defendant pleaded the general issue, and upon the trial, took two bills of exception. The first stated that this potion was commenced on the 10th of July 1801, and that on the trial, the plaintiff offered evidence of the sale and delivery of goods, to the amount of $2149.33. That the defendant offered in evidence a bill of parcels of the same goods, rendered by and in the handwriting of the plaintiff, Johnston, amounting to 644Z. 16s., Virginia currency, containing a particular account of rum and sugar, beginning with these words : “ Mr. Theophilus Harris, bought of Dunlap & Johnston at the foot of which bill was the following receipt, signed by the plaintiff : “Received Messrs. Clingman & Magaw’s note for the above sum, payable to the order of John Towers, or order, indorsed by John Towers and Theophilus Harris, payable the 2d April 1798, when paid, received in full which bill was rendered to the defendant by the plaintiff, at the time of the sale and delivery. The defendant further offered evidence to prove that the note in that receipt mentioned, was delivered to the defendant with the blank indorsement of Towers, and by the defendant indorsed in blank to the plaintiff, at the time of the sale and delivery of the goods, *and by the plaintiff J afterwards indorsed to one John Dunlap, who, on the 19th of April 1798, brought suit thereon against the present defendant, Harris, in the court of Hustings, in the town of Alexandria, upon his indorsement, striking out the name of the plaintiff, Johnston, and filling up the defendant Harris’s indorsement with a direct assignment from Harris to Dunlap. That upon that suit judgment was rendered, by the court of Hustings, for Dunlap against Harris, from which judgment he appealed to the Dumfries district court, where the judgment of the court of Hustings was reversed,(a) and Dunlap appealed (a) .It was understood and admitted by the counsel on both sides, that the judgment was reversed, because the court was of opinion that, in Virginia, the holder of an indorsed promissory note, payable to order, could not strike out an intermediate blank indorsement, and fill up the blank indorsement of a remote indorser, with an order to pay the money to himself; and that the holder could not maintain an action against any of the parties to the note, but his own immediate indorser, or the maker of the-note. 1 Black v. Zacharie, 3 How. 483; Small v. 2 Riddle v. Mandeville, 5 Or. 322 ; United Jones, 8 Watts 265. States Bank v. Weisiger, 2 Pet. 331. 186 1806] OF THE UNITED STATES. 312 1 Harris v. Johnston. from the judgment of the district court to the court of appeals, where the judgment of the district court was affirmed. The defendant, on the trial of the present suit, also offered evidence to prove that the said John Dunlap, on the 19th of April 1798, also commenced suit against Towers, upon his indorsement of the same note, which suit was still pending in the court below. That the said John Dunlap was the same Dunlap whose name is mentioned at the head of the bill of parcels aforesaid, and who is still living. Whereupon, the defendant prayed the court to instruct the jury, that upon proof of these circumstances, the plaintiff could not recover in this action for goods sold and delivered ; and that from the bill and receipt, given as aforesaid, the transaction must be considered as a joint contract. Which instruction the court refused to give, as prayed, but directed the jury, that the bill of parcels, before mentioned, is evidence (but not conclusive) of a joint contract of sale for the rum and sugar; and that the plaintiff might explain the transaction by parol, or other evidence, to prove that he *was the sole owner of the sugar, and that the said Dunlap was the sole owner of the rum, and that the contract for •-the sale of the sugar was made with the plaintiff in his own right, and that the contract for the sale of the rum was made with him as agent for Dunlap. But if the plaintiff should produce no such explanatory evidence, he could not maintain the present action. And the court further instructed the jury, that if they should be satisfied that the contract of sale was made with the plaintiff alone, and that part of the goods was the sole property of the plaintiff, and that the residue was the sole property of Dunlap ; and that the plaintiff had authority from Dunlap to sell such residue ; then the plaintiff had a right to recover judgment in this action against the defendant, for the whole amount of the goods so sold and delivered ; and that the other facts stated were not sufficient to bar the plaintiff. The 2d bill of exceptions in the present cause stated, that the plaintiff produced a witness, who proved, that the sale of the goods was made in the store of Dunlap, where the goods were deposited ; that he never knew Dunlap to claim any title to the sugar, nor the plaintiff to the rum, and that previous to the sale, Dunlap claimed the rum as his separate property, and the plaintiff claimed the sugar as his separate property; and that Dunlap requested the plaintiff to sell the rum with the plaintiff’s sugar. Whereupon, the defendant prayed the court to instruct the jury, that the evidence so offered was not competent to contradict or explain the purport of the bill of parcels and receipt, or to show that the plaintiff sold part of the goods as his separate property, and the residue as agent of Dunlap ; and that it did not amount to proof of such several property and agency, as would enable the plaintiff to recover in this action, for the whole of the goods sold. Which instruction the court refused to give ; but instructed the jury, that the declarations of Dunlap, Or of the plaintiff, or the request of either of them, could not be given in evidence, unless the defendant was present when such declaration or request was made. *A verdict being rendered for the plaintiff, the defendant moved the court for a new trial, which was refused, and the court ordered the clerk to deliver up to the defendant the note of Clingman & Magaw, in- 187 314 SUPREME COURT [Feb’y Harris v. Johnston. dorsed by Towers, which was referred to in the receipt, and which was filed in the suit of Dunlap against the present def endant. (a) Upon this case, two questions arose. 1st. Whether the bill of parcels was conclusive evidence of a joint contract of sale, and of the joint property of Dunlap and Johnston? 2d. Whether, under the other circumstances of the case, the plaintiff could recover in this action ? C. Lee and Jones, for the plaintiff in error.—1. The bill of parcels is written evidence, purporting a joint contract, and cannot be contradicted by parol. The action ought to have been joint. The bill of exceptions does not state any evidence from which the jury could infer that part of the goods was the sole property of one, and the residue the sole property of the other. The circumstances offered to prove that fact were too slight to justify the inference, and the court ought to have instructed the jury to. that effect. 2. The contract which arose on the sale of the goods has been changed to a special contract, to pay on a certain condition, viz., if the plaintiff shall use due diligence to get the money on the note, and shall not succeed. If the plaintiff negotiates the note, he receives *its value ; he is paid for J the goods sold; he has received satisfaction, and can never resort to the defendant, until the note is returned to the plaintiff, and he has taken it up, and offered to return it to the defendant. Whatever would prevent the plaintiff from recovering against the defendant on the note, would equally prevent him from recovering on the contract for goods sold and delivered. The present suit was commenced, while suits were depending on this very note, by Dunlap against the present defendant, and by Dunlap against Towers. The defendant cannot, at the same time, be answerable upon the note, and upon the original contract of sale. The order which the court made, that the plaintiff should deliver up to the defendant the note which had been filed in the case of Dunlap v. Harris, did not aid the judgment. The court had no authority to make such an order ; the note was the property of Dunlap, and not of the plaintiff. But the note was of no use to the defendant. • It was barred by the act of limitations, and that by the conduct of the plaintiff. In the case of Kearslake v. Morgan, 5 T. R. 513, it is admitted by the counsel on both sides, that if a negotiable note, given for a prior simple-contract debt, be indorsed over by the plaintiff, and is outstanding, the plaintiff cannot recover upon the original contract. In the present case, it must be presumed, that the plaintiff received value for the note, when he passed it to Dunlap, and it does not appear that he has ever been obliged to refund. Swann, E. J. Lee and Simms, contra.—It does not appear, that the note was not returned. But this court, in the case of Clark v. Young (1 Cr. 181), had decided, that it is not necessary, in such a case, to return it. So, in the case of Puckford v. Maxwell, 6 T. R. 53, the court said, that “ in cases । •• (a) The record did not state the whole order of the court, upon the motion fora new trial. The court, upon further argument and consideration, being doubtful whether the plaintiff could support this action, until he had got back the note from Dunlap, informed the plaintiff’s counsel, that they would grant a new trial, unless the plaintiff would get that note, and return it to the defendant, and also obtain a release from Dunlap to Harris of all right of action for the rum sold. 188 1806] OF THE UNITED STATES. 315 Harris v. Johnston. of this kind, if the bill, which is given in payment, do not turn out to be productive, it it not that which it purports to be, and which the party receiving it expects it to be, and therefore, he may consider it as a nullity, and act as if no such bill had been given at all.” The same point is *also de- r*Q1A cided in 1 Esp. Rep. 5, and Owenson v. Morse, 7 T. R. 64. L The question of negligence does not arise in this case. The reason of the admission in the case of Kearslake v. Morgan, that if the note was outstanding, the plaintiff could not recover upon the original cause of action, is, that the defendant would be liable to be sued upon it. The words are, “ if he may be sued upon it by a third person.” But here, the record itself shows that Harris could not be sued upon it by' a third person, being only liable to the present plaintiff, who was his immediate indorsee, that point having been decided in the court of appeals in Virginia, upon this very note. As, therefore, Harris is liable upon the note to the present plaintiff only, and as he will not be liable to him on the note, in case he recovers in the present action, it is the same thing as if the note had been taken up by the plaintiff, and ready to be delivered to the defendant. Jones, in reply, admitted, that modern decisions have laid down the law broadly, that if the note or bill is not honored, it is of no avail ; but it is otherwise, if the note or bill be negotiated ; it is then a payment until returned. In the case of Clark v. Young, the plaintiff had not negotiated the bill, and the parties answerable to Clark were insolvent. The liability of the defendant to a suit by a third person, on the note, is not the only ground of the opinion in Kearslake v. Morgan. Another ground is, that the defendant may have the benefit of the note against the parties answerable to him. But, if the present defendant is not liable to be sued on the note, in thè name of a third person, yet Dunlap may sue him upon it, in the name of J ohnston. (a) *February 19th, 1806. Marshall, Ch. J., delivered the opinion of the court.—This case comes up on two exceptions taken to opinions L given in the circuit court. The plaintiff in the court below had sold to the defendant in that court, certain goods, wares and merchandise, of which he had given him a bill, headed with the words, “ Mr. Theophilus Harris, bought of Dunlap & Johnston,” &c. At the foot of this bill of parcels was the following receipt : “ Received Messrs. Clingman & Magaw’s note for the above sum, payable to the order of John Towers, or order, indorsed by John Towers and Theophilus Harris, payable 2d April 1798, when paid, received in full.” This note was indorsed in blank by the defendant in error, and a suit was instituted upon it by Dunlap against Harris, in which suit he ultimately failed, it being the law of Virginia, that on a note, an action by the indorsee can only be maintained against the drawer, or his immediate indorser. (a) Marshall, Ch. J.—Not, if Johnson recovers in the present suit. Jones.—But if Dunlap has a right to the note, he may sue in equity, and payment by Harris to Johnson would not be a bar. * Marshall, Ch. J.—True. We shall consider that point. I have always been of opimo i, that in such cases, a suit in chancery can be supported ; though I do not recollect any case in which the point has been decided. .189 317 SUPREME COURT [Feb’y Harris v. Johnston. The defendant below objected, 1st. That the bill of parcels was conclusive evidence of joint property in the goods sold and delivered, and therefore, that the action was not maintainable in the name of Johnston alone. 2d. That no action was maintainable on the original contract, the plaintiff below having indorsed the note mentioned in the receipt, and not having reacquired any property in it, so as to be able to restore it to Harris. No * . laches are imputed, or are imputable, to the holder of the note. *Both J these points were decided against the defendant below, and a judgment was ^rendered against him, from which he has appealed to this court. On the first point, the court is of opinion, that there is no error. The written memorandum was not the contract, and was only given to show to what object the receipt at its foot applied. It is not, therefore, a bar to a disclosure of the real fact ; it is not conclusive evidence of joint ownership in the property sold, and of a joint sale, but will admit of explanation. The court, therefore, did not err in allowing explanatory evidence to go to the jury, nor in allowing the jury to judge of the weight of that evidence. On the 2d exception, the material point to be decided is, whether an action can be maintained, on an original contract for goods sold and delivered, by a person who has received a note as a conditional payment, and has passed away that note. Upon principle, it would appear that such an action could not be maintained. The indorsement of the note passes the property in it to another, and is evidence that it was sold for a valuable consideration. If, after such indorsement, the seller of the goods could maintain an action on the original contract, he would receive double satisfaction. The case cited from 6 Term Reports appears to be precisely in point. The distinction taken by the counsel for the appellee, that in this case Harris can never be sued on the note, is not so substantial as it is ingenious. Harris has a right to the note, in order to have his recourse against his indorsee, and Johnston has not a right to obtain satisfaction for the goods from Harris, while he is in possession of the satisfaction received from Dunlap. In the case quoted from Term Reports, the liability of the defendant to an action from the actual holder of the note, is not the sole ground on which a disability to sue on the original contract was placed. That dis-* ability was also occasioned *by the obvious injustice of allowing to J the same person a double satisfaction, and of withholding from the debtor, who had paid for the note, before he could indorse it, and who would be compelled, by the judgment, to pay for the goods, on account of which he had parted with it, the right of resorting to his indorser. But, if it was indispensable to show that Dunlap has a remedy against Harris, it is supposed, that the holder of a note may incontestably sue a remote indorser in chancery, and compel payment of it. The case of Clark, v. Young, decided in this court, does not apply, because, in that case, the plaintiff below had not parted with his property in the note. The court does not think that the order (made after the judgment was rendered) for the rendition of the note to the defendant below, can correct the error committed in misdirecting the jury. The judgment is to be reversed, for error in directing the jury that the action was maintainable on the original contract, after the note received as conditional payment had been indorsed. 190 1806] OF THE UNITED STATES. 319 Dixon’s Executors v. Ramsay’s Executors. Foreign executors.—Conflict of laws. An executor cannot maintain a suit, in the District of Columbia, upon letters testamentary, granted in a foreign country.1 All rights to the testator’s personal property are to be regulated by the laws of the country where he lived; but suits for those rights must be governed by the laws of that country in which the tribunal is placed. • Dixon v. Ramsay, 1 Cr. C. C. 472, affirmed. Error to the Circuit Court of the district of Columbia, upon a judgment in favor of the defendants, upon a general demurrer to their plea, which (after oyer of the plaintiffs’ letters testamentary) stated, that the defendants’ testator, at the time of making the promises, &c., and from thence, always, until his death, resided in the town of Alexandria, in the county of Alexandria, in the district of Columbia, and that the defendants have always resided in the same town, and that the plaintiffs have not obtained probate of the said letters *testamentary, at anyplace within r*q9n the district of Columbia, oi’ the United States of America. *■ E. J. Lee, for the plaintiffs in error.—The question is, whether the plaintiffs must take out letters testamentary in the district of Columbia, before they can maintain an action, as executors. There is nothing in the laws of Virginia, which requires that letters testamentary should be there taken out upon a foreign will, provided they have been taken out in the country where the testator lived and died. The 14th section of the act of Virginia (P. P. 162), relates only to the title to lands under a will. If, then, there is nothing required by the laws of Virginia, the right, and the powers of the executors, depend upon the rules of the civil law, and the law of that country of which the testator was a subject. By the law of England, an executor may commence suit before the probate. 1 Com. Dig.; 2 Bac. Abr. 413. The very naming of an executor is a disposition to him of all the testator’s personal estate, for he comes in loco testatoris, and is entitled to the surplus, after payment of debts and legacies. 2 Bac. Abr. 423. He derives all his power, not, like an administrator, from the. government of the country, but from the will of his testator. The debts due to the estate follow the person of the creditor, not that of the debtor, and the disposition of them is to be governed by the laws of that country of which the testator was a subject. Bruce v. Bruce, 2 Bos. & Pul. 229-30 ; Bempde v. Johnstone, 3 Ves. jr. 200 ; Appendix to Cooper’s Bankrupt Law, 29, Babille’s Opinion ; Vatt. lib. 2, c. 3, § 8, p. 109, 110, 111; 3 Dall. 370, 377 (note); Hunter v. Potts, 4 T. R. 175, 184. The case of Fenwick n. Sears, 1 Cr. 259, was that of an administrator, who derives his whole authority from the laws of the place ; it, therefore, cannot decide the present case, which is that of an executor, who derives his whole authority from the will of his *testator. That case, too, was p* decided under the peculiar laws of Maryland, which differ from those 1 Kerr u. Moon, 9 Wheat. 565; Armstrong «. Lear, 12 Id. 169; Noonan v. Bradley, 9 Walt 894; Curtis v. Smith, 6 Bl. C. C. 537. 191 321 SUPREME COURT [Feb’y Dixon v. Ramsay. of Virginia upon this subject. By the Jaw of Maryland, 1798, c. 101, § 4, no alien can be an executor or administrator. But it is said, that the rights of creditors require that the executor should give security for the faithful administration of the estate. But this would be of no avail, if the executor, after giving security, should choose to return to England. For, according to the decision of the court of appeals of Virginia, in the case of Baylor's Executors, a creditor cannot maintain an action against the sureties of an executor, until he has proved his debt by an action and judgment against the executor, and proved a devastavit also, by a suit. But he can never get a judgment against an executor, who is not found in’ the state; and consequently, can never have judgment against the surety. But if an executor be absent, the creditor may, in chancery, attach the assets. A voluntary payment to an executor, without letters testamentary, in Virginia, is good. Why, then, should not the executor be permitted to sue? If no purpose of justice is to be answered, by refusing the right to sue; and if it is not refused by the positive laws of Virginia, a strong argument may be drawn from the inconvenience of obliging an executor to procure letters testamentary in every state in the Union, and, perhaps, for very trifling debts. Swann, contra.—The case of Fenwick v. Sears has settled the question, as to a foreign administrator. In what does that differ from the case of a foreign executor ? It is said, that the latter derives his authority from the will, which is a universal title. But the authority under the will is inchoate, until completed by the probate, and is limited to a very few acts. It is certain, that an executor, before probate, cannot obtain a judgment. The ordinary, in England, and the court, in Virginia, may refuse an executor, who is under a disability; for example, an alien enemy; an infant under seven-*3221 ^een ’ au &c- Until, therefore, he is *received, his capacity to J act is not decided by the only competent tribunal. In England, the ordinary cannot require security from an executor. 2 Bac. Abr. 376, 377. It can only be done by the court of chancery, considering him as a trustee, when there is good ground to apprehend his wasting the estate. In Virginia, the interest of creditors, legatees and distributees is attended to. Yet their interest might be destroyed, if the executor was permitted to receive money, or give an acquittance, before he had given security. It is, therefore, questionable, whether an executor, in Virginia, can do any valid act, until he has qualified himself according to law. It is also doubtful, whether the assets can be attached (3 Wils. 297), for that would invert the order of administration. If they cannot, a foreign executor might, by his attorney, withdraw all the assets, and leave the creditors without remedy. A judgment-creditor here would have a preference. But if he sues in England, upon a judgment of this country, his claim is reduced to a simple contract. Probate, in a peculiar jurisdiction, will not support a suit out of that jurisdiction. It would be strange, therefore, if a probate, even in the prerogative court, which is the present case, should extend across the Atlantic into a foreign country. Hilliard v. Cox, 1 Ld. Raym. 562; Adams v. Sav-aye, 2 Ibid. 855-6. The laws of Virginia have provided for the probate of all wills, foreign as well as domestic (P. P. 162, § 14, 15). 192 1806] OF THE UNITED STATES. 322 Dixon v. Ramsay. C. Le% in reply.—By the civil law, the executor succeeds to all the movables and personal estate, and credits of his testator. His title is derived from the will, and his powers are as great as those of his testator were. 2 BL Com. 510. The will is to be proved, where the testator died, and the property r*o9q is to be distributed according to the laws of that country. The whole estate, wherever situated, is to be distributed according to one law. If a foreign executor should give bond in Virginia, by which law is he to be governed ? Can there be two executors of the same will, governed by different laws, as to their administration? Can strangers interfere and get administration ? It is true, the municipal laws may bind property in the country ; but if no such laws, then the property is governed by the laws of the country where the testator had his domicil. Security ought not to be required here, if not required in England ; and if taken in England, it ought not to be required here. (See Target’s opinion upon the Duchess of King-ston’s will, in Collectanea Juridica.) February 19th, 1806. Marshall, Ch. J., delivered the opinion of the court.—The question in this case is, whether the executor of a person who dies in a foreign country, can maintain an action in this, by virtue of letters testamentary granted to him in his own country. It is contended, that this case differs from that of an administrator, which was formerly decided in this court, because an administrator derives his power over the estate of his intestate from the grant of the administration ; but an executor derives it from the will of his testator, which has invested him with his whole personal estate, wherever it may be. This distinc-ticn does certainly exist ; but the consequences deduced from it, do not seem to follow. If an executor derived from the will of his testator a power to maintain a suit, and obtain a judgment for a debt due to his testator, it would seem reasonable, that he should exercise that power, wherever the authority of the will was acknowledged ; but if he maintains the *suit pegn^ by virtue of his letters testamentary, he can only sue in courts to L which the power of those letters extends. It is not, and cannot be denied, that he sues by virtue of his letters testamentary ; and consequently, in this particular, he comes within the principle which was decided by the court in the case of an administrator. All rights to personal property are admitted to be regulated by the laws of the country in which the testator lived ; but the suits for those rights must be governed by the laws of that country in which the tribunal is placed. No man can sue in the courts of any country, whatever his rights may be, unless in conformity with the rules prescribed by the laws of that country. The court can perceive the inconvenience which may often result from this principle, but it is an inconvenience for which no remedy is within the reach of this tribunal. Judgment affirmed. 3 Ceanch—13 193 324 SUPREME COURT [Feb’y Scott v. Negro London. Slavery. If the owner of a slave, removing into Virginia, take the oath required by the act of assembly, within sixty days after such removal, it will prevent the slave from gaining his freedom, although he was brought into Virginia by a person claiming and exercising the right of ownership over him, eleven months before the removal of the true owner; and although the person who brought him in never took the oath ; and although the slave remained in Virginia more than twelve months ; and although the true owner never brought him in. London v. Scott, 1 Cr. C. 0. 264, reversed. Error to the Circuit Court of the district of Columbia, sitting at Alexandria. Negro London brought an action of assault and battery against Scott, to try his right to freedom. His claim was grounded upon the act of assembly of Virginia, of the 17th December 1792 (P. P. 186), the 2d section of which is in these words : “ Slaves which shall hereafter be brought into this commonwealth, and kept therein one whole year together, or so long at different times as shall amount to one year, shall be free.” The 3d section imposes a penalty upon every person importing slaves contrary to the act. * *The 4th section is in these words : “Provided, that nothing in this act contained, shall be construed to extend to those who may incline to remove from any of the United States, and become citizens of this, if, within sixty days after such removal, he or she shall take the following oath, before some justice of the peace of this commonwealth : ‘ I, A. B., do swear, that my removal into the state of Virginia was with no intent of evading the laws for preventing the further importation of slaves, nor have I brought with me any slaves, with an intention of selling them, nor have any of the slaves which I have brought with me, been imported from Africa, or any of the West-India islands, since the first day of November, one thousand seven hundred and seventy-eight. So help me God.’ Nor to any person claiming slaves by descent, marriage or devise ; nor to any citizens of this commonwealth being now the actual owners of slaves, within any of the United States, and removing such hither; nor to travellers or others making a transient stay, and bringing slaves for necessary attendance, and carrying them out again.” The defendant below took a bill of exceptions, which stated, in substance, the following facts : The defendant’s father, claiming to own the plaintiff as his slave, brought him from Maryland into Alexandria, in July 1802, without the knowledge or consent of the defendant, and hired him out, in Alexandria, until his death, which happened about Christmas in the same year. The plaintiff had continued to reside in Alexandria until the present time, except about three weeks in April 1803. The defendant’s father never took the oath required by the 4th section of the act. The defendant, in March 1803, got possession of the plaintiff, and in April following, being then a resident of Maryland, but intending to remove to Alexandria, hired him out, in Alexandria, claiming him as his slave, under a bill of sale from Thomas Contee, dated the 3d of September 1800. The defendant came from Maryland in June 1803, and on the 5th of July next following, took the oath prescribed by the 4th section of the act. Where-* uPon> the court instructed the jury, that if they should be of opinion, J from the evidence, that the defendant’s father brought the ^plaintiff 194 1806] OF THE UNITED STATES. 326 Scott v. London. from the state of Maryland, into the county of Alexandria, in the year 1802, and exercised acts of ownership over the plaintiff, and hired him out as his slave, and that the plaintiff has been kept in the county of Alexandria, one whole year, or so long at different times as amount to a whole year, from the importation to the bringing of the action, and that no other oath was made than that which the defendant had offered in evidence as aforesaid, then the plaintiff was entitled to his freedom, although the jury should be satisfied that he was the property of the defendant, at the time he was so brought into the town of Alexandria. E. J. Lee, for the plaintiff in error.—At the time the plaintiff in error took the oath, the negro had not been kept a year in the county of Alexandria ; the forfeiture had not accrued ; the oath was taken within sixty days after the removal of bis owner. The importation by the father, without the knowledge or consent of his son, the owner, did not oblige the latter to take the oath, within sixty days after such importation. The act is penal, and is, therefore, to be construed strictly. No prosecution against the son, for the penalty under the third section of the act, could have been maintained, upon such an importation by the father. The oath by the son would have been a good defence. The act does not say it shall be taken within sixty days after the importation of the slave, but within sixty days after the removal of the owner. The opinion of the court below was, that the oath, ought to have been taken, within sixty days after the removal of the negro, (a) (a) The opinion of the court below seems to have been misunderstood by the counsel. The grounds upon which that court decided, are believed to be, not that the son was bound to take the oath, within sixty days after the removal of the slave by. the father, but that the father ought to have taken the oath, within sixty days after his removal with 'the slave. The act does not require the oath to be taken by the person who has the absolute property of the slave, but by him who brings a slave into the state. The words of the. oath are, “ nor have I brought with me any slaves, with an intention of selling them.” The son might safely take the oath, and sell the slave immediately, for he did not bring the slave with him. The son would not have been liable to the penalty of $200, under the 3d section, because he did not import the slave : but the father would, because he did import him. The right to freedom which the slave acquires is not a mere penalty on the owner, but an independent right, not to be controlled by its consequences. The object of the act was to discourage, and gradually to abolish slavery; or, at least, to prevent its increase. Two means were adopted by the legislature. One was the prevention of further importations ; the other was the emancipation of such as should be imported contrary to the act. This emancipation was not a penalty, intended solely to prevent importation, but a specific remedy for the evil, after it had happened. The penalty of $200, under the 3d section, was the preventive means, and the emancipation, under the 2d section, was the remedial means, of accomplishing the object of the legislature. The evil was not the importation of freemen, but of slaves. To make slaves free was, therefore, as direct an accomplishment of their object as to prevent their importation. The act could not intend that the right to freedom, given by the 2d section, should depend upon a title litigated between two persons, each claiming to be the owner. The words are, “slaves which shall hereafter be brought into this commonwealth,” not by their owners, but by any person claiming and exercising authority over them. If a stranger should take a slave from Maryland, claiming title, and bring him into Virginia, and keep him there a year, the slave must, under the 2d section of the act, be free. 195 *327 SUPREME COURT [Feb’y Scott v. London. * C. Lee, contra.—The general rule is, that a slave imported shall be free. Is the present case within the exception ? The father, being in possession of the slave, claiming title and exercising authority as owner, brought him from Maryland into Alexandria. If he did so, without authority from the son, and if the son was the true owner, and if the slave was lost by the negligence, or in consequence of the act of the father, he is liable to the son. The father, therefore, was a person to whom the effects of the 2d section would extend, and to save himself from those effects, it was his duty to have the oath prescribed by the 4th section. *But it is clearly to be inferred, from the 4th section, taken to- J gether with the words of the oath, that the oath will protect the owner’s title only to such slaves as he shall bring with him, when he comes to reside in Virginia. The words are, that nothing in the act shall extend to him who may incline to remove, if, within sixty days after “ such removal,” he shall make oath that he has not “ brought with him any slaves,” with an intention of selling them. It is not meant to say, that the slave must come in at the same instant with the owner, but it must be all part of one transaction. The son never brought the slave into Alexandria. He was not brought, with the intent of residing here with the son. Suppose, the son had never come to reside in Alexandria, and the slave had been kept by the father, in Alexandria, more than a year, what could prevent the slave from obtaining his freedom ? Could it be objected, that the father was not the true owner, and that the slave was kept there, without the knowledge and consent of the son ? Again, suppose, the son had not come, until after the slave had been kept in Alexandria a year by the father, and the son should then, within sixty days after his removal, take the oath, would that destroy the slave’s right to freedom ? If it would not, it must be, because the son could not connect the importation of the slave with his own removal. Why could he not connect an importation made thirteen months before his removal, as well as an importation made eleven months before his removal? Is it because a right to freedom had vested in the slave before the removal of the son ? That cannot be ; because- the proviso says, that nothing in the act contained, shall extend to those who may incline to remove, if, within sixty days after such removal, they will take the oath. The word nothing refers as well to the year’s residence, as to the first importation of the slave. It might be said, therefore, that the son did incline to remove ; and within sixty days after such removal, did take the And the remedy of the true owner must he against the wrongdoer, in the same manner as against a man who should, without authority, take his slave from Maryland, and in attempting to cross the Potomac, the slave should be drowned. So, in this case, if the father, without authority from the son, bought the slave from Maryland into Alexandria, and the slave thereby gains his freedom, by the negligence of the father, the father is liable to the son. The right of the slave to his freedom does not depend upon the crime of the person who may in law be adjudged to be the true owner. It is sufficient, for the slave to show that the person in whose posession and under whose contrel he was, and who claimed and exercised over him the authority of an owner, has violated the law, and done the act which, by law, confers upon him his freedom. The con-sequental damage to the owner cannot affect the true slave. He was not the cause of the injury. The true owner must look to the author of the injury, against whom the laws have provided him a remedy. 196 1806] OF THE UNITED STATES. Scott v. London. 328 oath, and therefore, he is not to be affected by the year’s residence. The length to which this argument may be carried, shows its sophistry. It leads to the entire destruction of the second section of the act; for if the true owner may come, and make oath, after one year, he *may, after fifty. r4. The proviso, therefore, must be limited to an importation of the L slave with his owner. Upon this construction, it will read thus : “ Provided that nothing in this act shall extend to those who shall remove with their slaves, and who shall, within sixty days after such removal, take the oath.” But the son did not remove with his slave, and therefore, is not within the benefit of the proviso. Jones, in reply.—A slave does not, under this act, gain his freedom, unless he was brought in by his true owner. The acquisition of freedom by the slave is a part of the penalty upon the owner, for violating the law. The freedom can only be acquired in a case where the owner is liable to the penalty of $200, under the 3d section. When the owner and the slave do not come in at the same time, the sixty days begin to run from the time of the removal of the master. If the owner comes, before the slave has resided one year in Virginia, it is sufficient. February 19th, 1806. Marshall, Ch. J., delivered the opinion of the court.—This case arises under a clause in an act of the Virginia assembly, giving freedom to slaves who shall be brought thereafter into that state, and kept therein one whole year together, or so long at different times as shall amount to one year ; and under a proviso of the same act, that it shall not extend to any person who may incline to remove from any of the United States, and become citizens of.this, if, within sixty days after such removal, he shall take an oath which is prescribed in the act. The negro London was brought from Maryland into Alexandria, where he was hired out, in the year 1802 ; some months after which, his master, the plaintiff in error, also removed into Alexandria, and within the pgoQ *year from the time the negro was brought in, and also within the sixty days from the time the plaintiff in error removed to Alexandria, the oath prescribed by the law was taken. No right to freedom having vested in London, at the time this oath was taken, the question is, has it brought the plaintiff within the proviso of the act? That the plaintiff is within the letter of the proviso, is unquestionable. He is a person who inclined to remove from one of the United States, into Virginia, who actually did remove, and who took the requisite oath, within the limited time. But it is contended, in behalf of the defendant in error, that the acts of bringing the negro into the state, and of removing into it, must be concomitant, in order to bring the case within the proviso : or, in other words, that the owner must be a person “inclining to remove into the state,” at the1 time the slave was brought in. This inaccuracy of construction seems to b^ founded on the idea, that the penalty of forfeiting the property accrues on bringing the slave into the state, whereas, it attaches on his continuance in the state for twelve months. Until such continuance has taken place, the offence has not been committed. If, then, all the acts which bring a person within the proviso, are performed, before the right to freedom is vested, and before the provisions of the act have been infracted. 197 330 SUPREME COURT Wise v. Withers. [Feb’y it seems to the court, that the rights of the party remain unaffected by the act. If London had been ordered to Maryland for a day, and then brought with his master into Alexandria, the construction of his counsel would be satisfied ; and it seems strange, where th,e letter of a law has not been violated, that such an unimportant circumstance should affect its spirit. Unless this mode be admitted of coming within the proviso, a person inclining to remove into Virginia, whose slaves had preceded him, though not for one year, could not bring himself within, or avoid the forfeiture, ♦ooii although permitting them to come into that state was no *offence ; a J construction of the act which the court cannot think consistent with its spirit or letter. This court is, therefore, of opinion, that the circuit court erred, in directing the jury that, under the circumstances stated, the plaintiff below was entitled to his freedom, and doth reverse the judgment rendered by the circuit court, and remand the cause for further proceedings. Judgment reversed. Wise v. Withers. Militia duty.—-Sentence of court-martial. A justice of the peace in the District of Columbia is an officer of the government of the United States, and, as such, exempt from militia duty. A court-martial has not exclusive jurisdiction of that question, and its sentence is not conclusive. Trespass lies against a collector of militia fines, who distrains from a fine imposed by a court-martial, upon a person not liable to be enrolled in the militia—the court-martial having no jurisdiction in such cases.1 Wise v. Withers, 1 Cr. C. C. 262, reversed. Error to the Circuit Court of the district of Columbia, in an action of trespass vi et armis, for entering the plaintiff’s house, and taking away his goods. The defendant justified as collector of militia fines. The plaintiff replied, that at the time when, &c., he was one of the United States’ justices of the peace for the county of Alexandria. This replication, upon a general demurrer, was, by a majority of the court below, adjudged bad ; whereupon, the plaintiff sued out a writ of error, and the questions made on the argument were— 1. Whether a justice of the peace, for the county of Alexandria, was liable to do militia duty ? and— 2. Whether an action of trespass will lie against the officer who makes distress, for a fine assessed upon a justice of the peace by a court-martial ? 1 But see Shoemaker v. Nesbit, 2 Rawle 201, where it is ruled, that if a court-martial, acting in good faith, convicts a person, not subject to militia duty, of the offence of non-attendance at training, neither the members of the court, nor the officer who executes their sentence, are liable as trespassers ab initio. Chief Justice Gibson there says, that the court must necessarily have power to decide upon the question of liability to military duty, which is the subject-matter; and therefore, an erroneous decision 198 will not render them responsible in trespass. And see Savacool v. Boughton, 5 Wend. 179-80 where the soundness of the decision in Wise v. Withers is strongly questioned. And in Dynes v. Hoover, 20 How. 65, it is held, that where a court-martial has jurisdiction over the subjectmatter, and its proceedings are in a regulai course of law, the officer who executes its sentence will be protected. See also Vanderheyden v. Young, 11 Johns. 150. 1806] OF THE UNITED STATES. Wise v. Withers. 331 C. Lee, for the plaintiff in error.—This case depends upon the act of congress of March 3d, 1803, entitled “ an act more effectually to provide for the organization of the militia of the district of Columbia” (2 U. S. Stat. 215). *The 6th section says, “that the commanding officers of com- P332 panies shall enroll every able-bodied white male, between the ages L of eighteen and forty-five years (except such as are exempt from military duty by the laws of the United States), resident within his district.” The act of congress of the 8th of May 1792, § 2 (1 U. S. Stat. 272) exempts from militia duty the vice-president of the United States ; the officers, judicial and executive, of the government of the United States ; the members of both houses of congress, and their respective officers ; all custom-house officers, with their clerks; all post-officers, ’and stage-drivers, who are employed in the care and conveyance of the mail of the post-office of the United States ; all ferrymen, employed at any ferry on the post-road; all inspectors of exports ; all pilots ; all mariners actually employed, in the seaservice of any citizen or merchant within the United States ; and all persons who now are, or may hereafter be, exempted by the laws of the respective states.” This act applies not only to such officers as then existed, but to all such as might thereafter be created. If the plaintiff is an officer, judicial or executive, of the government of the United States, he is exempted. In Marbury's Case, 1 Cr. 168, this court decided, that a justice of the peace, for the district of Columbia, was an officer, and that he became such as soon as the commission was signed, sealed and ready to be delivered. If the commission, therefore, is a criterion to decide who is an officer, we are at a loss to conceive what objection can be taken. The justices of the peace for the district of Columbia are appointed by the President of the' U nited States, by and with the advice and consent of the senate, and are commissioned by the president. Their powers and duties are prescribed by the act of congress, “ concerning the district of Columbia,” § 11 (2 U. S. Stat. 107). Whether those powers are judicial or executive, or both, is immaterial. * Jones, contra.—1. A justice of the peace, in the district of Colum- r^gg hia, is not a judicial officer of the government of the United States. *-By the act of congress, those appointed for the county of Alexandria are to exercise the same powers and duties as justices of the peace in Virginia. The expression in the act of 1792, “officers judicial of the government of the United States,” means only the judges of the supreme and inferior courts of the United States. Justices of the peace in the states are not considered as judicial officers. By the constitution of Massachusetts, the judicial officers are to hold their offices during good behavior, and yet the commissions of justices of the peace are limited to seven years. So the constitution of the United States says, that the judges, both of the supreme and inferior courts, shall hold their offices during good behavior ; but by the act of congress, the-justices of the peace in the district of Columbia are to hold their offices only for five years. These justices, therefore, are either not j udges, or the constitution has, in this respect, been violated. It is plain, however, that congress did not consider them as judges. A sheriff sometimes acts as a judicial officer in holding elections ; and some of the officers in the execu- 199 333 SUPREME COURT [Feb’y Wise v. Withers. tive departments exercise judicial functions in many cases, but they are not, therefore, judges. An act of congress may give judicial powers to certain officers, but they are not, therefore, judges. 2. He is not an executive officer “ of the government of the United States.” This description was intended, by the act of 1792, to comprehend only the officers of the superior departments, or those which strictly constitute the government of the United States, in its limited sense. This is to be inferred, because the act goes on to enumerate, by name, all the inferior officers which it meant to exempt. Why enumerate, if the general description comprehended the whole ? 3. The circuit court of the district of Columbia has not jurisdiction of * , this question. The question who is *to be enrolled in the militia, and the assessment of the fines, are matters submitted exclusively to the courts-martial, which are courts of peculiar and extraordinary jurisdiction, specially appointed for that purpose, by the act of congress (2 U. b. Stat. 217, § 8). The words are, the “presiding officer shall lay before the said court (the battalion court of inquiry) all the delinquencies, as directed by law, whereupon, they shall proceed to hear and determine.” There is no provision for revising the decisions of those courts-martial. They are final and conclusive, like those of an ecclesiastical court, or a court of admiralty. If they have jurisdiction, and especially, if they have exclusive and final jurisdiction in the case, the officer who executes their orders is justified. He cannot be considered as a trespasser. C. Lee, in reply.—There can be no doubt but the plaintiff is an officer. There can be as little that he is an officer judicial or executive, or both ; and if he is not an officer of the government of the United States, he is not the officer of any other government. There is no distinction between an officer of the United States and an officer of the government of the United States. An officer appointed by the President of the United States, to an office created by a law of the United States, and exercising his authority in the name of the United States, must be as much an officer of the government of the United States, as any other officer in the United States. The reason of enumerating other officers by name was, because it might, perhaps, be doubted whether they would come under the general description, of officers judicial and executive. As to the jurisdiction of the circuit court. A limited power given to certain tribunals, not extending to all persons, cannot control the general jurisdiction given to that court. Whenever a peculiar limited jurisdiction $ -1 is given to certain persons, and they exceed it, not only their *officers, J but they themselves are liable to an action. They are all subject to the general law of the land. If this were not the case, and a court-martial should compel a man of more than forty-five years of age, for example, to perform militia duty, and continue to fine him from time to time, there would be no redress. The court-martial, in the present case, had no jurisdiction over the person of the plaintiff. He was exempt, and therefore, they could delegate no authority to their officer. February 19th, 1806. Marshall, Ch. J., delivered the opinion of the 200 1806] OF THE UNITED STATES. 335 Wise v. Withers. court.—In this case, two points have been made by the plaintiff in error. 1st. That a justice of the peace in the district of Columbia is, by the laws of the United States, exempt from militia duty. 2d. That an action of trespass lies against the officer who makes distress, in order to satisfy a fine assessed upon a justice of the peace, by a court-martial. 1. Is a justice of the peace exempt from militia duty? The militia law of the district refers to the general law of the United States, and adopts the enumeration there made of persons who have this privilege. That enumeration commences with “the vice-president of the United States, and the officers, judicial and executive, of the government of the United States.” It is contended by the plaintiff, and denied by the defendant, that a justice of the peace, within the district, is either a judicial or an executive officer of the government, in the sense in which those terms are used in the law. *It has been decided in this court, that a justice of the peace is r*ggg an officer ; nor can it be conceived that the affirmative of this proposi-tion, was it now undecided, could be controverted. Under the sanction of a law, he is appointed by the president, by and with the advice and consent of the senate, and receives his commission from the president. We know not by what terms an officer can be defined, which would not embrace this description of persons. If he is an officer, he must be an officer under the government of the United States. Deriving all his authority from the legislature and president of the United States, he certainly is not the officer of any other government. But it is contended, that he is not an officer, in the sense of the militia law ; that the meaning of the words “judicial and executive officers of the government,” must be restricted to the officers immediately employed in the high judicial and executive departments ; and in support of this construction, the particular enumeration which follows those words is relied on ; an enumeration which, it is said, would have been useless, had the legislature used the words in the extended sense contended for by the plaintiff. A distinction has also been attempted between an officer of the United States and an officer of the government of the United States, confining the latter more especially to those officers who are considered as belonging to the high departments ; but, in this distinction, there does not appear to the court to be a solid difference. They are terms which may be used indifferently to express the same idea. If a justice of the peace is an officer of the government of the United States, he must be either a judicial or an executive officer. In fact, bis powers, as defined by law, seem partly judicial, and partly executive. He is, then, within the letter of the exemption, and of course, must be considered as comprehended within its proper construction, unless there be something in the act which requires a contrary interpretation. The enumeration which follows this general description of officers, is urged as furnishing the guide which shall lead us to the more limited construction. But to this *argument it has very properly been answered, by the counsel for the L plaintiff, that the long enumeration of characters exempted from militia duty which follows, presents only one description of persons ; custom-house officers, and those who hold a commission from the president, or are appointed by him : and of these by far the greater number do not hold such commis- 201 337 SUPREME COURT United States v. Grundy. [Fcb’y sion. The argument, therefore, not being supported by the fact, is inapplicable the case. Thé law furnishing no justification for a departure from the plain and obvious import of the words, the court must, in conformity with that import, declare that a justice of the peace, within the district of Columbia, is exempt from the performance of militia duty. It follows, from this opinion, that a court-martial has no jurisdiction over a justice of the peace, as a militiaman ; he could never be legally enrolled ; and it is a principle, that a decision of such a tribunal, in a case clearly without its jurisdiction, cannot protect the officer who executes it. The court and the officer are all trespassers. The judgment is reversed, and the cause remanded for further proceed ings. United States v. Grundy and Thornburgh. Forfeiture. Under the act of congress of December 31st, 1792, which declares, that if a false oath be taken in order to procure a register for a vessel, the vessel or its value shall be forfeited, the United States have an election to proceed against the vessel as forfeited, or against the person who took the false oath, for its value. But until that election is made, the property of the vessel does .not vest in the United States; audthe United States cannot maintain an action for money had and received, against the assignees of the person who took the oath, and who had become bankrupt; the assignees having sold the vessel, and received the purchase-money before seizure of the vessel.1 Error to the Circuit Court of the United States for the district of Maryland, in an action for money had and received for the use of the United States, by the defendants, as assignees of Aquila Brown, jr., a bankrupt; it being money received by the defendants for the sale of the ship Anthony Mangin, which ship the United States alleged was forfeited to them, by *000-1 reason that Brown, in *order to obtain a registei’ for her, as a ship of J the United States, had falsely sworn that she was his sole property, when he knew that she was in part owned by an alien. On the general issue, a verdict was rendered for the defendants, and the plaintiffs took three bills of exception. 1. The first stated that they gave in evidence to the jury, that on the 25th of November 1801, and for several months before and after, Aquila Brown, jr., a citizen of the United States, and Harman Henry Hackman, a subject of the elector of Hanover, were copartners in merchandise, and carried on trade at Baltimore, under the firm of Brown & Hackman, and that Brown, at the same time, carried on trade at Baltimore, on his separate account, under the firm of A. Brown, jr. That before that day, and during the year preceding, the ship Anthony Mangin was built, rigged and equipped, within the United States, for the house of Brown & Hackman, under a contract made for them, and under their authority, and was paid for with 1 Caldwell v. United States, 8 How. 366. It is otherwise, when no such option is given to the United States, but an absolute forfeiture is declared; in such cases, the forfeiture relates to the commission of the offence, and will over- ride a subsequent sale to a bona fide purchaser. The Neptune, 3 Wheat. 607; Caidwell v. United States, 8 How. 381-2; Henderson’s Distilled Spirits, 14 Wall. 44, 56; The Monte Christo, 6 Ben. 148. 202 1806] OF THE UNITED STATES. 338 United States v. Grundy. their funds, and that, on that day, Brown applied to the collector for a register for that ship, in his own name, and as his sole property, and for that purpose, took and subscribed the usual oath, which contains an asseveration that he then was the true and only owner of that ship, and that no subject or citizen of any foreign prince or state was then, directly or indirectly, interested therein, or in the profits or issues thereof; whereupon, a register was granted to him in the usual form. That afterwards, and after the 28th day of the same November, A. Brown, jr., as well as Brown & Hackman, were declared bankrupts, and their effects severally assigned, the defendants being the assignees of A. Brown, jr. The plaintiffs, in order to prove that the ship, at the time of taking the path, was the property of the house of Brown & Hackman, and belonged in part to Hackman, an alien, offered Hackman himself as a witness, who objected to be sworn, alleging that he ought not to be compelled to give evidence against his interest. Upon the voir dire., he explained his interest thus : that if the plaintiffs should recover in this action, the funds of the estate of Brown would be diminished by the whole amount recovered. That Brown & Hackman had drawn and indorsed bills of exchange to a large *amount, which had come to the hands of the pggg United States by indorsement, and he believed himself to be liable L therefor, in case of failure of the funds of Brown. Whereupon, the court was of opinion, that he was not a competent witness for the plaintiffs. 2. The second bill of exceptions stated (in addition to the facts contained in the first) that the plaintiffs, in order to prove that, at the time of the oath, the ship was the property of Brown & Hackman, offered to swear a witness to prove, that in a book, purporting to be one of the books of account of Brown & Hackman, in the possession of one of the assignees of Hackman, who refused to produce it at the trial, although it was then in his possession, he saw an entry in the handwriting of Hackman, purporting to be made on the 28th of November 1801, charging the freight of the ship, on her then intended voyage, to the debit of Brown, and to the credit of Brown & Hackman. But the court rejected the evidence as inadmissible for that purpose. 3. The third bill of exceptions (in addition to the facts contained in the former bills) stated, that the plaintiffs offered to prove, that at the time of Brown’s taking the oath and obtaining the register in his own name, the ship was owned in part by Hackman, an alien, and that Brown knew the fact to be so. That afterwards, and before the bringing of this action, Brown became bankrupt, and his effects were assigned to the defendants. That at the time of his bankruptcy, and of the assignment, the ship wras in his possession, and that by virtue of the assignment, the defendants took her into their possession, as part of the estate of Brown, and sold her to a certain Thomas W. Norman, for $18,250, which sum they received, and at the time of trial, had in their possession. The defendants then gave in evidence that, after the sale of the ship to Norman, the United States seized her as forfeited ; and libelled her in the district court. That Norman filed his claim, and upon proof and hearing, the judge dismissed the libel. That no action had ever been instituted by the United States against Brown. Whereupon, the attorney for the United States prayed the court to direct the jury, that if they believed the matters *so offered in evidence on the part of the United States, the United States were entitled to recover, in this ac- *• tion, the said sum of $18,250, which direction the court refused to give ; but 203 340 SUPREME COURT [Feb’y United States v. Grundy. instructed the jury, that if they believed, that any of the matters of fact in the oath of Brown alleged, were within his knowledge, and were not true, the said evidence given by the plaintiffs was not sufficient in law to maintain the present action. Breckenridge, Attorney-General of the United States.—The great question in this cause is, whether the property of the ship Anthony Mangin vested in the United States, upon the commission of the act of forfeiture by Brown, without a sentence of condemnation. This action is founded on the act of December 31st, 1792, “for registering and recording of ships and vessels.” (1 U. S. Stat. 286.) We contend, that under the 4th section of this act, no sentence of condemnation was necessary to vest the property in the United States. This section, after stating the nature of the oath required in order to obtain a register of the ship, says, “ And in case any of the matters of fact in the said oath alleged which shall be within the knowledge of the party so swearing, shall not be true, there shall be a forfeiture of the ship or vessel, together with her tackle, furniture and apparel, in respect to which the same shall have been made, or of the value thereof, to be recovered (with costs of suit) of the person by whom such oath shall have been made.” A forfeiture by statute is analogous to a forfeiture at common law. At the common law, by an outlawry, the property of the outlaw immediately vests in the crown without office found. Co. Litt. 128 5. The English court, upon the statute of 12 Car. II, c. 18, which creates forfeitures very similar to those of our statute, have decided, that by the act of forfeiture, the property is so completely divested from the owner and vested in the crown, that detinue can be maintained for it. Roberts n. Withered, 5 Mod. 193 ; s. c. Comb. 361; 12 Mod. 92 ; 1 Salk. 223. And Rookby, J., said, “ the property is divested out of the owner, by importa-i tion, *but not vested in him that sues, until bringing the action, or J seizure.” That case has been recognised and made the ground of decision in a late ease. Wilkins v. Despard, 5 T. R. 112. _ These cases decide, that the right to recover either the specific goods, or their value, does necessarily give to the court the right to determine the question of forfeiture. I If the right of the United States was only inchoate, at the commencement of the suit, the judgment in this case would have completed it, as effectually as a sentence of condemnation. The United States might have proceeded either in rem, or for the value of the ship. They might either seize and libel the ship, or sue the person. In the case of seizure of a ship under the act of August 4th, 1790 (1 U. S. Stat.), there must be a prosecution in conformity with the regulations of the 67th section of that act; and an important question arises, whether we are thereby prevented from proceeding in personam for the value of the thing forfeited. We contend, that we may proceed either way ; for of what use are the word “ or the value thereof,” if the recovery must be by seizure and condemnation ? The words being in the alternative, leave us that option. In Roberts n. Withered, it is said, “ that though some persons proceed by way of information, upon the forfeitures, yet actions of detinue will 204 1806] OF THE UNITED STATES. 341 United States v. Grundy. nevertheless lie.” 5 Mod. 194. Suppose, the act had declared that the party shall forfeit $1000, would not an action lie for this money? But admitting that the act of 1790 requires a sentence of condemnation, to vest the right in the United States, we contend, that the 29th section of the act of December 31st, 1792, under which the present action is brought, does not. (1 U. S. Stat. 298.) Although it refers to the act of 1790, it is only for the purpose of designating the courts in which the recovery is to be had ; and to the manner of disposing of the forfeiture. It has no reference to the kind of suit, or to the manner of proceeding, to effect the recovery *of the subject. The words of the 29th section are, “that all penalties and forfeitures which maybe incurred, for offences against this act, L shall and may be sued for, prosecuted and recovered, in such courts, and be disposed of, in such manner, as any penalties and forfeitures which may be incurred for offences against the act (of 1790) may legally be sued for, prosecuted, recovered and disposed of.” The statute of 12 Car. II. has stronger expressions to show that a sentence of condemnation was necessary to vest the property. Its words are, “under the penalty of forfeiture of ship and goods, one moiety to his majesty, and the other moiety to him or them that shall inform, seize or sue for the same.” Our statute is not only silent as to the mode of recovery, whether by information, seizure or suit, but contains the words “ or the value thereof ” (which the British statute does not), and therefore, recognises any mode of recovery, by which that value can be obtained. It is not unworthy of remark, that vessels are, by the act of 1790, rendered liable to forfeiture, in three cases, §§ 14, 27, 60, in neither of which is it declared, that “ the value thereof ” may be recovered. The 67th section, if intended to ascertain the forfeiture of ships by seizure and condemnation only, may operate consistently on that act, but it cannot, where an alternative is given to sue for the value. As we cannot proceed in rem, without a seizure, if a transfer or sale secures the property in the transferee or vendee, the law will, in this respect, be defeated. Admitting that the vendee is safe, the offender is liable to be proceeded against in personam, for the value of the property forfeited : If so, his assignees, in case of his bankruptcy, are also ; for his creditor have but an equitable lien on his estate in the hands of his assignees ; and the United States have a legal right, which, after suit brought, has relation back to the time of the forfeiture. *With respect to the exceptions to the witnesses, the court, in re-jecting the testimony of Hackman, have carried the doctrine further than it is warranted by any precedent. It was, in fact, deciding that a witness may refuse to give testimony against a defendant, because that defendant is his debtor, and his testimony, by establishing the plaintiff’s claim, would diminish the funds out of which the witness’s claim might be satisfied. This interest is certainly too remote and contingent to exclude the witness. It may, perhaps, affect his credibility, but not his competency. The other witness, who was called to prove the entry in the books of Brown & Hackman, was also improperly rejected. After the rejection of Hackman himself, and after proving the book to be in the possession of the opposite party, refused to produce it, the next best evidence was the 205 343 SUPREME COURT [Feb’y United States v. Grundy. testimony of a person who had seen the entry in the book, in the handwriting of Hackman. The judgment of the district court upon the libel is no bar to the present action. That judgment was not given on the point of the forfeiture, but upon the ground that the United States could not follow the thing itself into the hands of a bond fide purchaser, for a valuable consideration without notice. It does not bar the remedy in personam. P. P. Key and Martin, contrà.—1. As to the rejection of Hackman, as a witness. He was offered by the United States, to prove that he was an alien, and was interested in the ship, at the time the oath was taken by Brown. The defendant objected, and upon the voir dire, he declared himself interested, and objected to answering against his interest. Key was about to read an authority, when thé Chief Justice told him that no authorities would be required on that point. Johnson, J., said, he should *like to see the authority, for his own satisfaction. Marshall, -1 Ch. J.—When we said, there was no necessity for authorities, we meant authorities to prove that a man, in a civil case, is not bound to testify against his interest. But this does not preclude the objection, that the facts stated by the witness, as the ground of his interest, did not prove him to be interested. Key then cited Peake’s Law of Ev. 132. 2. As to the rejection of the witness who was called to prove the entry in the books of Brown & Hackman. There was no proof that it was one of the books of that firm ; nor was any notice given to the defendants to produce it. It was not proved to be in the possession of the defendants, but in that of the assignees of Brown & Hackman, who were different persons. The plaintiffs might have had a subpoena duces tecum. The ground of the opinion of the court was, that the testimony offered was not the best evidence, as the book itself might have been had. 3. The important question in the cause is, whether, by the act of forfeiture, the property vested in the United States, before condemnation. We admit, that the owner of property may maintain trover against a vendee, claiming under a third person, and disaffirm the sale ; or he may affirm the sale, and bring hn action for the price. The present action is grounded on the right of property being in the United States, at the time of the sale. The seizure of the vessel was not made by the United States, until after the assignees of Brown had sold and delivered her to a third person. If the present action is not founded on the right of property, the action should have been debt for the penalty, or a special action on the case, grounded upon the statute, and averring every matter necessary to entitle -, the United States to recover. *The right of the United States to J the property, depends upon the act of 1792. The 4th section, which declares the forfeiture and penalty, is silent as to the remedy. When the act creating a penalty is silent as to its mode of recovery, the action must be debt, or case on the statute. The only remedy, then, which the United States had, was either by a seizure of the ship, or an action of debt, or special action on the case, for the penalty. But the present is an action for money had and received. It is not grounded on a crime or a tort. The United States have lost their remedy in rem, by suffering it to be 206 1806] OF THE UNITED STATES. ' 34$ United States v. Grundy. sold, without notice. Upon this point, the sentence of the district court, which has been acquiesced under, is conclusive ; for it goes upon the ground that the United States had not the right to the thing, at the time of the sale ; for if they had, the vendee gained no legal title, and therefore, could not be protected by the want of notice. But he was protected by want of notice ; he must, therefore, have gained a legal title, which could be protected. He could gain his legal title only from the assignees, but they could not convey a legal title which was riot in them. At the time of sale, therefore, the legal title must have been in the assignees ; and as there could not be two legal titles to the same thing, at the same time, in different persons, the title could not be in the United States. This is the consequence which inevitably results from the sentence. Having lost their remedy against the thing, their only alternative is an action for the penalty against the person who took the false oath. The act provides no substitute for the process in rem, but the action against that person ; it gives no right of action against the person who may be in possession of the thing. No action for the penalty will lie against Brown’s assignees. It is in the nature of a criminal prosecution. *The act gives the United States an election of one of two reme-dies, but not of both. They may proceed in rem, or in personam. t Until their election is made, the thing itself is not forfeited, for they may never choose to proceed against the thing, but may prefer the remedy against the person. They have made their election, by proceeding in rem ; having failed there, they could not take the other side of the alternative, and sue for its value. The sentence has been submitted to, and is conclusive, until reversed. Suppose, the libel had been dismissed, because it was not sufficiently proved that Brown had sworn falsely, or that he knew he was swearing falsely, could the United States turn round, and try the same question again, upon an action against Brown for the penalty ? Or, after suing Brown for the penalty, and failing to recover judgment against hirri, could they seize the ship, and try the question over again. A judgment, until reversed, is conclusive as to the subject-matter of it. Moses v. Macferlan, 2 Burr. 1009. At common law, a forfeiture does not alter the property, until there is some act done by the party claiming the forfeiture, either en pais, or of record. A forfeiture of lands relates back to the time laid in the indictment ; but the forfeiture of goods relates to the time of conviction. In both cases, the time must appear of record. • Co. Litt. 390 b, 391 a. In case of deodand, nothing is forfeited, until it be found by inquest. So, in the case of felo de se, no part of the personal estate is forfeited to the king, before the self-murder is found by inquisition. So, in the cases of flight, and of goods waived. 1 Hawk. P. C. 101, 104. The case of Roberts v. Withered, 5 Mod. 193, was decided on the ground that an action of detinue was a process in rem, and equivalent to a seizure. ‘ ^Harper, in reply.—1. As to the exclusion of Hackman’s testimony. It may, perhaps, be safely admitted, that if the testimony has an im-mediate, direct and certain effect upon his interest, a man may be excused from 207 347 SUPREME COURT [Feb’y United States v. Grundy. testifying. But in the present case, it depended upon several contingencies. 1st. Whether Brown’s estate would be sufficient to pay the claim of the United States ; 2d. Whether Hackman’s certificate would bar the United States, a point not yet decided, and upon which legal opinions differ ; 3d. Whether the United States would choose to resort to Hackman, until the effects of Brown were exhausted ; and 4th. Whether there would be any surplus of Hackman’s estate. The authority from Peake 132, is not to the point ; for he says, that the testimony must go to establish a debt against himself, before the witness can be excused from giving it. And the case which he cites from Strange 406, shows that it is only a matter of indulgence, and not of right, even in such a case : for although the witness was bail in the action, yet if he was a subscribing witness, the Chief Justice said, he would oblige him to swear. 2. As to the testimony respecting the book. It was proved, that the book was in the hands of the assignee of Hackman, who refused to produce it. We could not issue a subpoena duces tecum, because the book was a private document; and it not being in the possession of the defendants we could not compel them to bring it in, under the act of congress. Between a bankrupt and his assignees, there is a perfect privity as to all matters of contract and interest. The book, therefore, must be supposed to be in the hands of Hackman ; and as the court refused to compel him to testify, or to produce the book, evidence of its contents was the next best evidence in our power. As to this case, it was as if the book had been lost or destroyed. If a subscribing witness to a bond be out of the reach of the process of the court, you cannot compel him to testify, but you may give evidence of his handwriting. * . , 3. As to the main question. *The defendants are not sued as as- J signees. The action is against them in their own right, as having received money to which the United States are entitled. We say, that they have taken property of the United States, and sold it, and we are entitled to the money. The forfeiture of the value is to be recovered of the person who took the oath ; but this does not prevent the United States from pursuing such other remedies as they might have had by reason of the forfeiture. If, then, the forfeiture gave the United States the right to the thing, they are entitled to the present remedy. The question is, at what time did the property vest in the United States by reason of the forfeiture ? The case in 5 T. R. refers to, and recognises, the law as decided in Roberts v. Withered, in 5 Mod. The decision there was, that by the illegal act of the party, the property was divested out of him. The doctrine of abeyance does not exist in any case : it has been laughed out of existence. The property must be somewhere. If it does not vest in a private owner, it goes to the sovereign, or to the government. If divested out of the owner, it goes, eo instanti, to the person to whose use it is forfeited. When the forfeiture accrues to a private person, he must do some act to entitle himself. But not so in the case of the king ; it vests in him immediately. He is not bound to do any act. In the case of Roberts qui tarn v. Withered, 5 Mod. 193, the right of the informer did not accrue until the action brought ; but the whole had gone to the king by the forfeiture. The offence divests the property, but it is not vested m an informer, 208 1806] OF THE UNITED STATES. । 348 United States v. Grundy. until action brought. In the mean time, it is in the king. The informer’s right only vests by action. There is a difference between a forfeiture by statute, and a forfeiture by common law. The common law says, the king shall have it, if he will ; but the statute says, it shall absolutely vest in the king. By the statute, the king, speaking by the legislature, has determined his will; he has made his election to have the thing. But the statutory remedy does not take away the common-law remedy : it is cumulative. The United States are not obliged to resort to the statutory remedy. *But it is said, that the United States had an election, and that no r*oja right to the thing vested, until they made their election. W e may L admit it; but we say, we have elected the present remedy. Admit, that we elected to seize the vessel. It had escaped; it was gone out of our power. It was still an election, and we are now proceeding in an action for its value. The election will relate back. We have the whole three years to make the election. If we pass the three years, the property goes back to the former owner. The value is not to be considered as a penalty, but as a'debt. We might have brought detinue or trover for the ship, instead of an action for the value, or a seizure. We admit, the sentence cannot be inquired into ; but it does not affect the present question. The decision was not on the point of the forfeiture. February 22d, 1806. Marshall, Ch. J., delivered the opinion of the court.—This action is brought to recover money, received by the defendants, for a ship sold by them as the assignees of Aquila Brown, a bankrupt: which ship is considered, in this cause, as having been liable to forfeiture, under the “ act for registering and recording ships or vessels.” It is founded on the idea, that, at the time of sale, the ship was the property of the United States, in virtue of the act of forfeiture which had been committed, and of the proceedings of the United States in consequence of that act. It appears, that in 1801, Aquila Brown, jr., then carrying on trade in his own name, in Baltimore, obtained a register for the Anthony Mangin, as his sole property ; having first taken the oath which the law requires, to enable him to obtain such register. He afterwards became a bankrupt, and the Anthony Mangin passed, with his other effects, to his assignees, who sold her for the money now claimed by the United States. After *this sale, facts were discovered, inducing the opinion that a certain Har-man Henry Hackman, a foreigner, was part-owner of the vessel, a circumstance within the knowledge of Aquila Brown ; and upon this ground, she was seized and libelled in the court of admiralty. By the sentence of that court, the libel was adjudged not to be supported, and was dismissed. It is agreed, and is so stated in the reasoning of the judge, which accompanied his opinion, that this sentence was not intended to decide the question of forfeiture ; but was founded on the alienation of the vessel, before the forfeiture was claimed. Acquiescing in this decision, the United States brought the present action. At the trial, the judge instructed the jury, that this action was not maintainable, although they should be of opinion, that the fact alleged in the oath, which was taken to obtain the register, was untrue, within the knowledge of the person taking the oath. To this instruction, an 3 Cranch—14 209 350 SUPREME COURT [fWy United States v. Grundy. exception was taken ; and upon that, among other points, the cause comes into this court. The words of the act under which the right of the United States accrues are : “ And in case any of the matters of fact in the said oath or affirmation alleged, which shall be within the knowledge of the party so swearing or affirming, shall not be true, .there shall be a forfeiture of the ship or vessel, together with her tackle, furniture and apparel, in respect to which the same shall have been made, or of the value thereof, to be recovered, with costs of suit, of the person by whom such oath or affirmation shall have been made.” The question made at the bar is, whether, by virtue of this act, the absolute property in the ship or vessel vests in the United States, either in fact or in contemplation of law, on the taking of the false oath ; or remains in the owners, until the United States shall perform some act, manifesting their election to take the ship and not the value. So far as respects this question, the effect of the sentence in the court of admiralty is put out of thecase, fof the court has not decided what the effect of that sentence will be. It has been proved, that in all forfeitures accruing at common law, noth-ing vests in the government, until *some legal step shall be taken for J the assertion of its right, after which, for mapy purposes, the doctrine of relation carries back the title to the commission of the offence • but the distinction taken by the counsel for the United States, between forfeitures at common law, and those accruing under a statute, is certainly a sound one. Where a forfeiture is given by a statute, the rules of the common law may be dispensed with, and the thing forfeited may either vest immediately, or on the performance of some particular act, as shall be the will of the legislature. This must depend upon the construction of the statute. The cases cited from 5 Mod. and 5 Term Reports, are certainly strong cases. Whether they can be reconciled to the general principles of English law, need not be considered, because the present inquiry respects the construction of an act of congress, containing words which vary essentially from those used in the acts of the British parliament, on which those decisions were made. The question, therefore, does the ship vest absolutely in the United States, so as to make it their property, whether such be the choice of the government or not, or may they elect to reject the ship and proceed for its value ? must be decided by the particular words of the act. The words, taken according to their natural import, certainly indicate, that an alternative is presented to the United States. “ There shall be a forfeiture of the ship, or of the value thereof, to be recovered, with costs of suit, of the person by whom such oath shall have been made.” Had a special action on the case been brought against the person, by whom the oath was made, stating circumstances on which a forfeiture would arise, and averring an election on the part of the United States to claim the value, it would be a very bold use of the power of construction which is placed in a court of justice, to say, that such an action could not be maintained, because the vessel itself was vested in the government, and the value was only given, in the event of the vessel being withdrawn from its grasp. *In addition to the obvious and natural import of the words used J by the legislature, the opinion that an alternative is given to the 210 1806] OF THE UNITED STATES. 352 United States v. Grundy. government, derives some strength from the consideration, that the forfeitures are claimed from distinct persons. If. the ship be forfeited, she is claimed from all the owners. In an action for the Anthony Mangin, Harman Henry Hackman could not have defended himself, by averring his interest in the vessel, and that only the share of Brown was forfeited ; but in an action against Hackman, for the value, the declaration, or information, must have averred that he was the person who took the false oath, and proof that it was taken by his partner, would not have supported that averment. They are, then, distinct forfeitures, claimed from different persons. The ship, from the owners ; the value, from the particular owner who has taken the false oath. The United States are entitled to both, or to only one of them. A right to both has not, and certainly cannot, be asserted. If there be a right only to one, the government may elect to take either, but until the election be made, the title to the one is perfectly equal to the title to the other. It seems to be of the very nature of a right to elect one of two things, that actual ownership is not acquired in either, until it be elected’; and if the penalty of an offence be not the positive forfeiture of a particular thing, but one of two things, at the choice of the person claiming the forfeiture, it would seem to be altering, materially, the situation in which that person is placed, to say, that either is vested in him, before he makes that choice. If both are vested in him, it is not an election which to take, but which to reject ; it is not a forfeiture of one of two things, but a forfeiture of two things, of which one only can be retained. That the legislature may pass such an act is certain ; but that the one under consideration is such an act, is not admitted by the court. If the property in the vessel was actually vested in the United States, by the commission of the offence, then the judgment of a court, condemning the vessel, *or declaring it to belong to the government, would, in ¡-*353 fact, do nothing more than ascertain that the offence had been com-mitted ; it would not vest the thing more completely in the government, in point of right, than it was vested by the commission of the offence. If, notwithstanding the complete ownership of the vessel, which the argument supposes in the government, immediately upon the act of forfeiture, and in virtue of that act, a suit for the value might have been maintained, it would seem to follow, that a judgment, declaring the vessel to be the property of the United States, would not bar an action for the value, provided the benefit of that judgment had not been received by the United States. The real principle on which an action for the value can be maintained, would seem to be, that the ship itself did not belong to the United States in consequence of the false oath, but in consequence of the election to take the ship. If this election be not made, and the government shall elect the value, then the property of the vessel remains in the original owners, and is no obstacle to a suit for the value. But if this opinion be mistaken ; if the property in the ship’be immediately vested in the government, notwithstanding which the value may be claimed, the court cannot distinctly perceive why the same action might not be maintained, notwithstanding the declaration of a court that the property was in the United States, provided the benefit of their judgment was not obtained. In this view of the case, if the court of admiralty had decreed in favor of the United States, and the Anthony Mangin 211 353 SUPREME COURT [Feb’y United States v. Grundy. had been destroyed, before the benefit of that judgment had been received the person who had taken the false oath might still have been sued for the value. This would never be contended ; and yet, if the absolute ownership of the vessel by the United States does not preclude a right to sue for the value, before a judgment be rendered, there is some difficulty in discerning when it will preclude that right. In fact, the idea that one of two things is actually vested in government, by an act to which forfeiture is attached, seems incompatible with the idea of a right to elect which of two things shall vest. It seems, then, to be the necessary construction of the act of congress $ that the United States acquired no *property in the Anthony Man- J gin, until they elected to pursue that part of the alternative given by the statute. Of consequence, the money for which that vessel was sold, was not, at the time, received for the use of the United States; but for the use of the creditors of the bankrupt. To decide finally on the propriety of supporting the claim of the United States, as made in this action, under that branch of the statute which forfeits the vessel, another question still remains to be investigated. Has the doctrine of relation such an influence upon this case, that an election, subsequent to the sale, shall carry back the title of the United States to the commission of the act of forfeiture, so as, by this fiction of law, to make them the real owners of the vessel at the time of sale, and consequently, of the money for which she was sold ? Without a critical examination of the doctrine of relation, it would seem to be a necessary part of that doctrine, that the title to a thing, which is to relate back to some former time, must exist against the thing itself, not against some other thing which the claimant may wish to consider as its substitute. To carry back the title to the Anthony Mangin to the act of forfeiture, the title to the Anthony Mangin must have an actual existence. If no such title exists, then the right to elect the vessel is lost, and the statute has not forfeited the money for which she was sold in lieu of her. Suppose, instead of being sold by thè defendants, she had been exchanged by Aquila Brown himself for another ship, would that other ship have been forfeitable, by the doctrine of relation, in lieu of the Anthony Mangin? Clearly not; for the statute gives no such forfeiture. The forfeiture attaches to the thing itself, not to any article for which the thing may be exchanged. The court will not inquire whether an action on the case, against Grundy & Thornburgh, for money had and received to the use of the United States, be a proper action in which to establish a forfeiture for a fact committed by Aquila Brown. But some objections to it may be stated, which deserve consideration. It certainly gives no notice of the nature of the claim, a cir-*$551 cumstance *with which, in a case like this, the ordinary rules of jus- J tice ought not to dispense. It asserts a claim, founded on a crime yet remaining to be proved, not against the person who has committed that crime, or against him who possesses the thing which is liable for it, but against those who, though the assignees of the effects, are not the assignees of the torts committed by the bankrupt. It may change the nature of the defence. The court suggests these difficulties, as probably constituting objections to the action, without deciding on them. The points previously 212 1806] OF THE UNITED STATES. 355 United States v. Grundy. determined show that it is not maintainable in this case, under that alternative of the statute which subjects the vessel to forfeiture. It remains to be inquired, whether it can be maintained under the provision which gives a right to sue for the value. Upon this part of the ease, no doubt was ever entertained. Not only must the declaration specially set forth the facts on which the right of the United States accrued, and the law which gives their title, but the action must be brought against the person who has committed the offence. Discarding those words which relate to other objects, and reading those only on which the claim to the value is founded, the statute enacts, that “ in case any of the matters of fact in the said oath alleged which shall be within the knowledge of the party so swearing, shall not be true, there shall be a forfeiture of the value of the vessel, in respect to which the same shall have been made, to be recovered, with .costs of suit, of the person by whom such oath shall have been made.” It certainly requires no commentary on these words, to prove that an action for the value can only be supported against the person who has taken the oath. It being the opinion of the court that this action is not maintainable, under any proof offered by the plaintiffs, it was deemed unnecessary to inquire whether the other exceptions in the record be well or ill founded. * Without declaring any opinion respecting them, the judgment of the circuit court is affirmed. L Judgment affirmed. ( protestant, or of the officer and men whom he had put on board of the said schooner Mercator as aforesaid, for the causes, and with the intentions, aforesaid. And this protestant further avers, propounds and says, that the said schooner Mercator, and cargo, being so as aforesaid captured on the high seas, as prize, and sent to the said island of Jamaica, by the said British privateer, a libel, in due form of law, was exhibited and filed by the said cap-tors, in the court of vice-admiralty, lawfully established in the *said island of Jamaica (being a court of competent jurisdiction in all mat- L ters of prize), alleging and charging, that the said schooner Mercator and cargo were the property of France, or of the King of Spain, or of some person or persons being subjects of France, or of the King of Spain, or inhabiting within some of the territories of France, or of the King of Spam, and were good and lawful prize, inasmuch as hostility and war- then notoriously subsisted between the King of Great Britain, on thè one part, and the said French republic and the King of Spain, on the other part ; and thereupon, the said captors, in their said libel, prayed that the said schooner Mercator and her cargo, might be adjudged lawful prize, and be confiscated and condemned. And this protestant further avers, propounds and says, that notwithstanding the denial of the said Jared Shattuck, in his said libel contained, he, the said Jared Shattuck, received speedy and full notice that the said schooner Mercator and her cargo were captured as prize, and sent into the said island of Jamaica as aforesaid, and there prosecuted by the said captors as prize, in manner aforesaid ; and thereupon, a claim was éxhibited, and a defence made, by and for the said Jared Shattuck, the alleged owner of the said schooner Mercator and her cargo. And upon hearing of the parties, by their respective advocates, and upon examining all the ship’s papers and documents, together with other evidence and proofs in the cause, the judge 270 465 SUPREME COURT [Feb’y Maley v. Shattuck. of the said court of vice-admiralty was pleased to adjudge and decree, that the said schooner Mercator, and her general cargo, were good and lawful prize, and did therefore adjudge, order and decree, that the same be condemned and confiscated to the use of the said captors, &c. From which sentence, the said Jared Shattuck, the libellant, prayed leave to appeal, which was granted. But this protestant avers, that this appeal has not been duly prosecuted by the said Jared Shattuck, but has been altogether waived and abandoned. And this protestant further avers, &c., that at the time of the capture of the said schooner and cargo by the British privateer as aforesaid, and at the time of the libel and of the condemnation, and of the appeal as aforesaid, peace and amity notoriously subsisted between the United States of America and the King of Great Britain $nd the King of Denmark ; and also between *. said King of Great Britain and the King of Denmark, and their ■* respective citizens and subjects : and therefore, this protestant avers, that if the allegations contained in the libel of the said Jared Shattuck had been true, sentence of condemnation and confiscation, as prize, could not, and would not, have been pronounced as aforesaid, against the said schooner Mercator and her cargo, by the said court of vice-admiralty, having competent jurisdiction upon all matters of prize, as aforesaid, and therein proceeding according^) the law of nations and the faith of treaties. Wherefore; this protestant prays that the said libel may be dismissed with costs, &c. A. J. Dallas, for the protestant. The replication of Shattuck was as follows:— To the Honorable Richard Peters, Esq., judge of the district court of the United States -in and for the district of Pennsylvania. In the case of the schooner Mercator and her cargo, Toussaint Lucas, master. The replication of Jared Shattuck, late owner of the said schooner Mercator and her cargo, to the protest of William Maley, Esq., late commander of the public armed schooner of the United States Experiment. This replicant, not confessing or acknowledging any of the facts, matters and things, by the said William Maley, in and by his said protest set forth, propounded and alleged, and also saving and reserving to himself all and all manner of exception to the manifold uncertainties and insufficiencies in the said protest contained, and to the informality thereof, and protesting on his part, that the said William Maley ought to have appeared absolutely, and not under protest, and made direct answer, upon oath or affirmation, to the charges in this replicant’s libel contained, or to so much thereof as he has been advised to be material for him to reply Unto ; doth aver, allege, pro-* Pound an^ say? that this replicant was born in*the state of Connecti- -* cut, in the year 1774, and when he was between fifteen and sixteen years of age, viz., about the end of 1789, or beginning of 1790, the United States then being at peace with all the world, he migrated to the island of St. Thomas, one of the dominions of the King of Denmark and Norway, with a view to settle and establish his permanent residence in that island. That he served his apprenticeship there, with a mercantile house, for about six years, and from his first arrival, has constantly and permanently resided, and now continues to reside there. That on the 10th of April 1797, the 280 1806] OF THE UNITED STATES. 467 Maley v. Shattuck. United States being still at peace with all the world, he became a naturalized Danish subject, and burgher of the said island, and shortly afterwards, intermarried with an inhabitant of that place, by whom he has several children, all living in that island. That he did acquire, and now hold reals estate there, and is there permanently settled and established, and carries on the trade and business of a merchant. The replication then went on to deny that he went or remained there for the purpose of illicit trade. It averred, that during the war between France and Great Britain, which terminated by the treaty of Amiens, he was largely concerned in trade, at and from St. Thomas to foreign ports, and had a number of vessels, navigating under the Danish flag, in the West India, seas. That several of his vessels were taken as well by British as French cruisers, carried into their respective islands, and there acquitted, and his neutral character, and that of his property, was acknowledged by the tribunals of both nations. That in May 1800, he loaded the Mercator, as mentioned in his libel, and sent her on a voyage to St. Domingo, consigned to the said Toussaint Lucas, who was also a bond fide subject. That the original destination of the vessel was for Port-au-Prince, alias Port Republican, a place then in the power, and under the dominion of the negro General Toussaint, not of the British troops, as stated in Maley’s protest. That, at that time, commerce was lawfully carried on between the United States and ports of St. Domingo, which were in the power of General Toussaint. That on the 3d of May 1800, he gave*written instructions to Lucas, to proceed with his vessel to Port-au-Prince, but as she was ready to sail, he was in- L formed that the forces of General Toussaint had taken Jacmel from General Rigaud, who held for the French republic. That Jacmel is a port of the island of St. Domingo, which lies between the island of St. Thomas and Port-au-Prince, and is in the way between the former and the latter. That the distance from Jacinel to Port-au-Prince is, by land, only between thirty and forty miles, but by sea, upwards of one hundred leagues. That conceiving it to be advantageous to try the market .at Jacmel, before proceeding to Port-au-Prince, he gave verbal directions -to Lucas for that purpose. It denied that anything false or colorable was intended, and that any of the Mercator’s papers were false or colorable, and that he gave any orders to Lucas to deny or conceal his intention of going into Jacmel. It admitted, that after the passage of the act of congress, “ further to suspend,” &c., and before the 15 th of May 1800, the Mercator was an American registered vessel, owned by a citizen of the United States, and sailed from Baltimore, but denied, that when taken by Maley, she was navigating contrary to the laws of the United States. It averred, that on the 26th of November 1799, he purchased her bond fide at St. Thomas, for the sum of $8500, which he had actually paid and took a bill of sale, which was on board, at the time of her capture. That from the day of purchase, until her capture, he was bond fide the sole owner, and that no other person had any interest in her or her cargo. That almost the whole shipping of the island of St. Thomas consisted of vessels built in the United States, and in the island of Bermuda, and brought to the former island for sale. That at the time of her capture, the Mercator was navigated as a bond fide Danish vessel, and had on board every paper and document which the 281 468 SUPREME COURT [Feb’y Maley v. Shattuck. law required to prove her neutrality; and especially that she had, 1st. The king’s passport, in the usual form ; 2d. The certificate of measurement ; 3d. Her muster-roll, or official list of her crew ; 4th. The bill of sale ; 5th. *4791 burgher’s *brief of her master Toussaint Lucas ; 6th. Her clear- J ance; 7th. The invoice and bill of lading of her cargo, duly attested, as to the ownership and neutrality thereof ; 8th. The master’s instructions, or sailing orders ; and 9th. A certificate, upon oath, of several respectable merchants of the island, attesting the fact of Shattuck’s citizenship and residence in the island. That the crew consisted of eleven persons, viz., the master, the mate, seven seaman, the cook and a boy, who were all, by birth, Italian or Portuguese. That the master was a native of Leghorn, in Tuscany, was a Danish subject, and had resided seven years in St. Thomas. That very few Danish seaman are to be had in the Danish islands ; and that, except the officers of government, there are very few Danes in the islands of St. Thomas and St. Croix, the inhabitants being chiefly native English and Americans, with some French and other foreigners. It denied, that by the laws of Denmark, a vessel could not be lawfully navigated by others than Danish or naturalized Danish sailors, and averred, that the crew might be subjects of any nation whatever, provided that, in time of war, not more than one-third thereof be native subjects of one or other of the belligerent powers. It denied, that any of the crew of the Mercator were subjects of any of the belligerent nations ; and that at the time of her capture, there was any reasonable cause of suspicion that she was an American vessel carrying on an illicit trade. It submitted to the. court, whether Maley had a right, by the law of nations, to arrest a vessel on the high seas, sailing under the protection of his Danish majesty’s royal passport, under pretence of a violation of a municipal law of the United States. It suggested, that Maley acted maid fide, and offered to prove, that he was in the habit of violating the law of nations, and the instructions of his government, with respect to neutral vessels and property, and that he was dismissed from the service of the United States, principally on that account. With respect to the capture by the British privateer, it admitted, that the Mercator was so captured, while under the protection of the United States, * and their national *flag, but did not admit, that it was without the -* connivance or fault of Maley, or the officer whom he put on board. It admitted, the condemnation as prize ; but averred, that it was the duty of the officer and men to have resisted the capture, and to have demanded of the court of vice-admiralty, at Jamaica, restitution of the vessel and cargo, on the ground, that the same had been unlawfully, and in violation of the respect due to the national vessels of the United States, and to the flag thereof, taken from the possession, and from under the protection, of the commander of one of the public vessels of war of the United States. It admitted, that Lucas filed a claim for the vessel and cargo, before the vice-admiralty court at Jamaica, and that they were condemned as prize, but alleged, that the sentence of condemnation was contrary to the evidence. It admitted also, that an appeal was entered, and exhibited lan exemplification of the proceedings. It denied, that Lucas was bound to exhibit a claim, or to appeal from the condemnation, and that Shattuck was boilnd to prosecute the appeal, but averred, that the whole should have been done by or in behalf of the United States, to whom alone the vessel and cargo would legally have 282 1806] OF THE UNITED STATES. 470 Maley v. Shattuck. been restored, as having been taken from their possession, and from under their protection. It averred, that Shattuck, as soon as he received notice of the capture and condemnation, gave information thereof to the governor-general of the Danish West India islands, and to Richard Söderström, charged with the con-i sular functions for the King of Denmark, in the United States, -who com-I municated the information, without loss of lime, to the government of the I United States, and claimed reparation. That the government of the United States expressed a wish that the appeal should be prosecuted, in compliance with which Shattuck, without delay, forwarded the necessary papers to England ; but when they arrived, he was informed by his proctors, that it was useless to prosecute the appeal, because the prize-money had been distributed, and the prize-agent had died insolvent. *It denied, that the vessel and cargo would not have been con-demned, if they had been really and bond fide neutral property, and averred, that they really were such as stated in his libel, and did not admit, that he was precluded by the sentence of the court of vice-admiralty of Jamaica from showing the same. It concluded, “ that for aught that has been said and alleged by the said William Maley, in his protest aforesaid, this replicant ought not to be precluded from obtaining the benefit of the prayer of his said libel; he, therefore, prays, that the said William Maley may, by the interlocutory decree of this honorable court, be ordered to appear absolutely, and without protest, before your Honor, so that further justice may be done by this honorable court in the premises, as to right shall appertain.” (Signed) Jared Shattuck. Jared Shattuck, being duly sworn according to law, on his oath, doth say, that all and singular the facts, matters and things, by him in the foregoing replication stated, as far as they relate to his own acts, and matters within his own knowledge, are true ; and inasmuch as the same relate to the acts of others, he verily believes them to be true. (Signed) Jared Shattuck. Sworn before me, the 26th of May 1804, (Signed) Richard Peters. The rejoinder of Maley was as follows :— This rejoinant, saving and reserving to himself all and all manner of exception to the manifold uncertainties and insufficiencies in the said replication contained, and not confessing or acknowledging any of the facts, matters and things by the said Jared Shattuck in and by his said replication set forth and alleged, but denying the same, saith, that the facts in this I rejoinant’s protest set forth, are true and sufficient to excuse him *from r*^2 further appearance and answer to the libel of the said Jared Shattuck. (Signed) A. J. Dallas, for William Maley. Whereupon, it was adjudged, ordered and decreed, that the libel be dismissed, with costs. From which decree, Shattuck appealed to the circuit court. Upon the appeal, the circuit court, (a) being of opinion that the (a) Holden by Judge Washington, in May 1805. See 1 W. C. C. 245. 283 472 SUPREME COURT [Feb’y Maley v. Shattuck. appellant was entitled to restitution, with damages and costs, reversed the decree of the district court, overruled and rejected the protest of Maley, and ordered him to appear absolutely, without protest, before the district court, to whom the cause was remitted for further proceedings. In the district court, upon the remission of the cause, the following entry was made : And now, to wit, this 9th day of August 1805, the said William Maley, by Alexander James Dallas, his proctor aforesaid, having appeared absolutely as aforesaid, comes here into court, and for answer to the libel of the said Jared Shattuck, propounds and says, that the facts by this respondent in his said protest set forth are true, and to the intent that justice may be done in the premises, this respondent prays that the said Jared Shattuck may be called upon to declare, on his solemn oath, to whom, and when, and in what manner, he paid for the said vessel called the Mercator, and whether the original American owner hath any interest therein, or in the restitution in value, by the said libel prayed for ; and whether any correspondence, and what, took place between the said Jared Shattuck and the captain of the said vessel, or any other person, after she was carried into Jamaica ; and »¿hoi whether any correspondence, *and what, took place between the said J Jared Shattuck and any persons, and whom, relative to the prosecution of an appeal from the decree of condemnation in Jamaica ; and whether the said Jared Shattuck made any, and what application, and when, to the American government, relative to the capture of the said vessel by this respondent, as aforesaid, &c. A. J. Dallas, for the respondent. And thereupon, the said Jared Shattuck, under all legal protestations and reservations, for replication to the answer of William Maley above mentioned, saith, that all and singular the facts, matters and things by him, this replicant, in his libel, and in his replication to the answer under protest of the said William Maley, filed in this honorable court, are true. Without this, that the facts by the said respondent, in his said answer under protest set forth, are true. He, therefore, humbly prays, that this honorable court, by its final decree in this cause, will be pleased to order, adjudge and decree, that the said defendant, William Maley, make restitution to this replicant of. the value of the schooner Mercator, her rigging, tackle, apparel, &c., and of her cargo, at the time of her capture by the United States’ armed schooner Experiment, under the command of the said respondent; and that the said respondent pay to the said replicant the amount of the damages by him suffered, by reason and in consequence of the capture and loss of the said schooner Mercator, and her cargo ; the said value and damages to be inquired of, estimated avnd reported to this honorable court by the clerk, tak-' ing to his assistance two merchants, in the usual form ; and that the said respondent pay the costs of this suit, &c. Peter S. Du Ponceau, proctor for libellant. The clerk having returned an estimate of the value and damages, amounting to $41,658.67, Maley filed the following exceptions to that report. $ W1 *1- That the respondent is charged with the expense of papers J and outfits, advances to mariners, provisions and stores for the voyage, and labor of sailors, before the shipping. 284 1806] OF THE UNITED STATES. 474 Maley v. Shattuck. 2. With the certificate of neutrality of property, duties at St. Thomas, commission on shipping the cargo, and insurance, without proof that any insurance was actually paid. 3. With expenses at Jamaica, and for copies of the proceedings in the court of admiralty, and of the appeal papers. 4. With expenses of Mr. Söderström. 5. With too much interest. 6. That there was no proof of the actual price of the schooner, other than the bill of sale on board. 7. That there was no proof of the value of the cargo, other than the invoice on board. In the district court, judgment was entered, by consent, in favor of the libellant, for the amount reported by the clerk, saving all exceptions upon the appeal. In the circuit court, the following answer of Shattuck to the exceptions to the report of the clerk was filed. 1st. To the first exception, he answers, that these expenditures of outfits, &c., made after the purchase, and after the sailing of the vessel, increased the value thereof, and are properly charged as a part of the said value. The same were allowed in the case of the Charming Betsy; confirmed by a decree of this court (the circuit court) and not appealed from. 2d. To the second exception he answers, *1. As to the insurance, that it is a regular mercantile charge, the owner being considered as his *-own insurer. That it is generally admitted in mercantile accounts. That it is peculiarly admissible, in the case of an unjust capture like the present, however it might be in a case of lawful capture, or capture with sufficient probable cause. 2. The commission on shipping is also a regular mercantile charge ; the said commission, the duties of exportation paid at St. Thomas, and the certificate of neutrality, would have been charged on the goods, had the vessel arrived at the port of her destination. The present being a case of unjust capture, the respondent conceives that the commissioners would have been justified in allowing to him all the loss of possible profit, and to have taken into view the profit which he, could have made, had the vessel arrived at the port of her destination, whereas, they have only indemnified him for his actual losses, and he conceives that he ought not tb be debarred from any part of his said indemnity. 3d . To the third and fourth exceptions, he answers, that the said expenses are reasonable, and the like were allowed and confirmed in the case of the Charming Betsy. 4th. To the fifth, he answers, that the interest is not overcharged. Sth. To the sixth and seventh, he answers, that the evidence of the papers found on board is sufficient in law, in prize causes, unless contradicted by other evidence. That it is confirmed, in this case, by the oath of the party, contained in the pleadings in this cause. And as to the ship, is again confirmed by the oath of the same party, taken a second time on special interrogatories of the appellant, William Maley. The answer of Shattuck, upon oath, to the several interrogatories contained in the answer of Maley to the libel, stated, that he purchased the schooner Mercator, at St. Thomas, on the 26th of November 1799, of one 285 *476 SUPREME COURT [Feb’y Maley v. Shattuck. Jchn Liddel, of Baltimore, for the sum of $8500, *which, at the time of purchase, he actually and bond fide paid to the said John Liddel, in Spanish milled dollars. That the original owner had not then, nor had had, at any time since the purchase thereof by the respondent, directly or indirectly, by way of trust, cover or otherwise, any interest therein, nor in the restitution in value, or damages prayed for in the libel. That to the best of his recollection, the said schooner was taken by the British privateer, on the 15th of May 1800, was carried^nto, and arrived at Jamaica, and libelled on the 23d of the same month, and condemned as lawful prize on the 28th of June following. That the respondent was informed of the capture, by a letter from Lucas, and that Dick, McCall & Co. had taken the necessary steps to defend the property. That he was informed, afterwards, by the arrival of a Mr. Grigg, in the beginning of August 1800, that the schooner was condemned, and that an appeal had been entered. That the respondent had no opportunity of writing to Lucas, during the trial. That immediately upon receiving notice of the condemnation, he applied to the commandant-general of the Danish West India islands to use his endeavors to obtain reparation from the American government, to which he received an answer (which is lost), together with a letter for the secretary of state of the United States, which he forwarded. That being advised that the United States were the proper party to prosecute, the appeal, and fearing that his further interference might prove prejudicial to his interest, he did not prosecute the appeal, until he received from Mr. Söderström, a copy of a letter from the secretary of state of the United States, to him, dated the 26th of November 1800, by which he understood that the government of the United States wished him to prosecute his appeal, in consequence of which, he wrote for that purpose to his correspondents in London, by whom he was informed, that they had taken the necessary ^eps to procure a reversal of the decree of condemnation; but that, in the meantime, the proceeds of the sales of the prize had been paid to the prize-captain, who had died insolvent, so that no redress was finally ha<£ *On the 29th of January 1806, the circuit court affirmed.the sen- J tence of the district court, except as to the first and second items in the report of the clerk, and decreed restitution of the value and damages, amounting to $33,244.67, and costs. From this sentence, Maley appealed to this court. The libellant also appealed as to so much of the sentence as disallowed those two items of the clerk’s report. Breckenridge (Attorney-General), for the appellant, and Harper, Key and Martin, for the appellee. Argument for the appellant.—1Two grounds were taken by the attorneygeneral : 1st. That Maley had committed no act maid fi.de, but was in the performance of an authorized public duty, and was, therefore, justified. 2d. That the claim to reparation is without merit, and without law. 1. The act being done in the execution of a public duty, cannot, in our courts, be considered as done maid fide. It was the policy of the times, to prevent our citizens, whether resident here or abroad, from trading directly or indirectly with the French ; and that policy ought to be kept in view, when the several acts of congress on this subject are under consideration. These acts are June 13th, 1798 (1 U. S. Stat. 565) ; 9th February 1799 (Ibid. 613) ; 286 1806] OF THE UNITED STATES. 477 Maley v. Shattuck. and 27th February 1800 (2 Ibid. 7). These laws being all in pari materia, are to be taken into one view, and although some of them had expired, yet it is proper that they should be considered, when deciding upon the construction’ of subsequent statutes on the same subject. All the acts went, successively, to cut off the intercourse more effectually. The fifth section of the act of February *1799, authorizes the president to give instructions to the commanders of the public armed *-ships to stop, examine and send in ships suspected. (1 U. S. Stat. 615.) This was going a step farther than the act of June 1798, which did not authorize any such instructions.. The act of February 1800 (2 Ibid. 7), goes farther still, and extends the prohibition of intercourse to citizens of the United States residing abroad ; and expressly prohibits the Island of Hispaniola, excepting such ports as should be excepted by the proclamation of the president. Under the act of 1799, the president caused the instructions (a) of 12th of March 1799, to be issued to the commanders of the public armed vessels of the United States, by which their attention was particularly called to the practice of covering the illicit trade, under the Danish flag. The direction not to injure or harass the fair, neutral commerce, implies a right to stop and examine ; and if, upon such examination, they should have reasonable cause to suspect that the vessel was engaged in violating the law, the instructions, as well as the law, required them to seize and send her in for adjudication. There was, therefore, a clear right (at least, a right which our courts cannot deny) to detain the vessel a reasonable time for examination, and if it was a doubtful case, to send her for further examination to the commanding officer on that station. That there was probable cause, sufficient to justify such a measure (however it might be in a case of actual seizure, and sending in for adjudication), can scarcely be doubted. 1. Shattuck was a native American citizen, resident in a place suspected by our government. The certificate of the merchants of St. Thomas, respecting his burghership, naturally led to suspicion. It appears, by the letters in the record, that although his neutrality had been respected in Tortola, yet it had not been respected in Jamaica. *2. The vessel was known to have been built in the United States, r4. and to have lately belonged to American citizens. She had sailed from Baltimore, after the passing of the act of congress. 3. The ship’s papers showed her destination to be to Port-au-Prince, a . place not prohibited ; but she was stopped, as she was entering Jacmel, a forbidden port. An attempt is made to account for this, by verbal orders, but there is no proof of them ; and it does not appear, that Lieut. Maley was informed of such orders, at the time of the detention, nor of the fact that Toussaint had possession of the place. But if Maley had known of the verbal orders, the reason assigned by Shattuck for those orders, was, in itself, a strong ground of suspicion. The reason was, that he had heard that Toussaint had possession of Jacmel. If the vessel and cargo were bona fide Dan-' ish property, he might, with equal safety, have traded there, while the place (a) See these instructions at length, cited in the case of Little ®. Barreme, 2 Cranch 171. 287 419 SUPREME COURT. [Feb’y Maley v. Shattuck. was in possession of Rigaud, as while in that of Toussaint. The reason could only apply to American property, upon the presumption that the United States would take off the prohibition, when it should be known that Jacmel was no longer under the acknowledged jurisdiction of France. 4. All the material papers were not produced. The master did not produce his burgher’s brief, showing him to be a Danish subject; and a Danish vessel cannot lawfully sail, but under a Danish master. The attestation of his burgher’s brief is dated long after the vessel was stopped. It must be remembered, that Maley did not seize the vessel as a prize, or as a forfeiture, but only detained her for further examination. The question, therefore, is not, whether there was probable cause of seizure, but probable cause for further examination. The master was not dispossessed of his vessel; none of the crew were taken out ; her papers were not re-*. movefl 5 no violence or outrage was committed. But *while detain-J ed for further examination, the vessel was seized by a stronger hand, and carried away by a superior force. If it be objected, that no resistance was made ; it is answered, that none could be made. . The vessel was not armed; and the officer was bound by his instructions, to permit the right of search by all the belligerents, except France. If it be said, that Maley ought to have claimed the vessel in Jamaica; the answer is, that he had no right to seize, unless it was really an American vessel. If she was a fair neutral, Shattuck’s claim must prevail. If she was an American vessel, she would not be condemned ; if she was anything else, he was not interested. Maley’s possession, therefore, was lawful and bond,fide. If a loss has happened, it has been produced by the vis major of another, to whom the injured party ought to look for reparation. 4 Rob. 284. Maley’s possession being bond fide, he cannot be answerable for the maid, fide act of another. He detained the vessel only six hours ; and she was sailing towards Port-au-Prince, the ostensible place of her destination, when captured by the British ship of war. Even if Maley was mistakeri, but acted with good faith, he is not answerable for the loss. The Betsey, 1 Rob. 18. That was an American ship and cargo, taken by the English, at the capture of Guadaloupe, in April 1794 ; and retaken by the French, in June following. The American claimants libelled the English captors for restitution in value. The captors defended themselves by an allegation that the ship had broken the blockade. Sir William Scott, after deciding that there was no defence, on the ground of breach of blockade, stated the question to be, whether the original captors were exonerated of their responsibility to the American claimants. *“ It is to be observed,” says he, “ that at the time of re-capture, America was a neutral country, and in amity with France. I premise this fact, as an important circumstance in one part of the case ; but the principal points for our consideration are, whether the possession of the original captors was, in its commencement, a legal bond, fide possession ? And 2d. whether such a possession, being just in its commencement, became afterwards, by any subsequent conduct of the captors, tortious and illegal? For, on both these points, the law is clear, that a bond fide possessor is not responsible for casualties ; but that he may, by subsequent misconduct, forfeit the protection of his fair title, and render himself liable to be considered as a trespasser from the beginning. This is the law, not of this court only, but of all courts. 288 1806] OF THE UNITED STATES. 481 Maley v. Shattuck. and one of the first principles of universal jurisprudence.” He then notices two cases very much in point: “ The Nicholas and Jan was one of several Dutch ships taken at St. Eustatius, and sent home, under convoy, to England, for adjudication. In the mouth of the channel, they were retaken by the French fleet. There was much neutral property on board, sufficiently documented,” and a demand of restitution, in value, was made by the neutral owners, on the first captors. One of the grounds of the demand was, that the captors had wilfully exposed the property to danger, by bringing it home, when they might have resorted to the admiralty courts, in the West Indies ; but on this point, the court was of opinion, that under all the circumstances, they had not exceeded the discretion necessarily intrusted to them by the nature of their command. It was also urged against the claimants in that case, that since the property had been retaken by their allies, they had a right to demand restitution in specie from them ; and on those grounds, the English courts rejected their claims. The other case which he cites, The Hendrick and Jacob, is still more like the present. A Hambur-ghese ship was erroneously taken as Dutch, and retaken by a French priva-' teer, and was lost going into Nantz. *On demand for restitution, r*4oo against the British captor, the lords of appeal decided, that as it was L a seizure made on unjustifiable grounds, the owners were entitled to restitution from some quarter ; that as the French re-captor had a justifiable possession, under prize taken from his enemy, he was not responsible for the accident that had befallen the property in his hands. That if the property had been saved, indeed, the claimant must have looked for redress to the justice of his ally, the French ; but since that claim was absolutely extinguished, by the loss of the goods, the proprietor was entitled to indemnification from the original captor. After citing these authorities, Sir W. Scott inquires, whether, in the case then before him, the original seizure was so wrongful as to induce that strict responsibility, which attaches to a tortious and unjustifiable possession. He then states some grounds of suspicion, which might have appeared to the captors, as to the fairness of the neutrality, and proceeds to inquire, whether any conduct of the captors, after the first seizure, had rendered them liable to the strictest responsibility. “ On this point,” says he, “I must distinctly lay it down, that the irregularities, to produce this effect, must have been such as would justly prevent restitution by the French. If such a case could be supported, I will admit, there-might then be just grounds for resorting to the British captor for indemnification ; but till this is proved, the responsibility which lies on re-captors, to restore the property of allies and neutrals, will be held by these courts to exonerate the original captors.” In the conclusion of his opinion, be says, “ if the neutral has sustained any injury, it proceeds not from the British, but from the French ; and there is no reason that British captors should pay for French injustice.” So we say, in our case, there is no reason that the American officer, who merely stopped the vessel for examination, should pay for British injustice. 2. That the clai m to ‘ repe ’ation is without merit, and without law. *Shattuck was himself the cause of the suspicious circumstances which led to the detention of the vessel by Maley, who would have been L guilty of a neglect of duty, and disobedience of orders, if he had done otherwise than he did. There was no improper conduct on his behalf, and the 3 C ba ven—19 289 483 SUPREME COURT [Feb’y Maley v. Shattuck. whole detention was only six hours. The British were bound to restore the vessel and cargo, without salvage, and with damages and costs, if it was really the property of a neutral, and this would have been done, without doubt, if Snattuck had prosecuted his appeal, and been able to prove his property. But having acquiesced in the decree of condemnation as enemyproperty, he can never deny the fact. It is conclusive evidence against him. If not conclusive, it is still evidence of probable cause of suspicion. Upon the evidence which caused Maley to suspect, the court of admiralty condemned. This is surely sufficient to justify his detention of six hours for examination. Argument for the appellee.—Unless the taking was lawful, or with probable cause, the captor is liable for all the loss. This principle is admitted by the argument for the appellant. The case of the Charming Betsy, 2 Cranch 64, was stronger in favor of Captain Murray than this is in favor of Lieutenant Maley ; and yet, in that case, this court decided that Captain Murray was a trespasser, and liable for damages and costs. It is no answer, to say, that the loss does not appear to have been the consequence of Maley’s act. If the taking was unlawful, he is liable, at all events. It is like the case of deviation, which throws the loss upon the assured, although the loss was not the consequence of the deviation. It is sufficient, if it exposed the property, in any manner, to a liability to danger. But here, it is evident that the loss would not have happened, if the vessel had not been detained. She was within an hour’s sail of Jacmel, and would have gone in with safety. *4iUl *Two questions present themselves for consideration. 1st. Was ■* the capture lawful? and 2d. Was there probable cause? A third question may also arise, whether, upon the appeal of Shattuck, the sentence of the district court ought not to be affirmed, as to the items excepted to by the counsel for Maley ? 1. The first question is, whether the capture was lawful ? On this point, the case of the Charming Betsy is conclusive. It was there decided by this court, 1st. That the non-intercourse law did not extend to vessels built in the United States, and hand fide sold, before the act of trading. In the present case, the vessel was sold, before the existence of the act under which her seizure is now attempted to be justified. 2d. That the sale must appear to be made with intent to evade the law. 3d. That a native citizen of the United States may so far change his national character, as to take him out of the operation of that act. The present appellee is the same person whose property was in contest in that case ; and although that fact does notappear on this record, yet it appears that he is a person in exactly the same circumstances. But the sentence of the vice-admiralty court in Jamaica is said to be conclusive evidence against Shattuck. But the sentence is only conclusive evidence that she was good prize to the British. It does not state, for what cause. It contains no direct reference to the libel, or other parts of the proceedings. If it refers to the libel, the property is there stated to be French or Spanish, or to belong to some other enemy of Great Britain. If you look into the proof exhibited in that court, it shows it clearly to be the property * Shattuck. *At all events, neither the record, nor the proceedings J in Jamaica, show it to be American property, violating the laws of 290 1806] OF THE UNITED STATES. 485 Maley v. Shattuck. the United States, which is the only case that could justify the capture by Maley. If it was Spanish property, he had no right to touch it. If it was a French vessel, unless armed, he had no right to seize it. So that if the sentence is conclusive evidence, it is as conclusive against Maley as it is against Shattuck. But it is said, he ought to have prosecuted his appeal ; and, not having done so, he has been guilty of negligence. So far from this is the truth, that he was not bound to resort at all to the British captors. It was the duty of Maley, or the United States, to resort to them. His remedy was against Maley. He was not bound to look further. It can be no ground of a charge of negligence to say, that he has done more than he was bound to do. 2. Was there probable cause? On this point too, the case of the Charming Betsy is conclusive. The grounds of suspicion in this case are not so strong as they were in that. But probable cause is no ground on which to deny restitution of the thing itself, or its value. It only excuses from damages for the tort. It is no bar to a reimbursement of actual loss. Shattuck asks only for restitution and expenses ; and this is the least that a friendly nation ought to give. 3. As to the items in the statement of the value, and expenses, which have been excepted against. All the outfits of the vessel, and expenses of shipping the cargo, together with the outward duties, in addition to the first cost, constituted the value of the vessel and cargo, at the time of seizure, and ought to be allowed. The premium of insurance also was a proper charge. For, although no insurance was actually made, yet Shattuck was to be considered in the light of his own insurer, and the risk was worth the premium. *There is evidence in the record that it is a customary charge in such cases. L Argument, in reply.—This case is not like that of the Charming Betsy. In that case, the loss was produced by Captain Murray’s own act. But in this, the loss is not the immediate effect of the act of Maley, but of the commander of the British privateer, who is liable to Shattuck for the injury he has sustained. To convert an originally lawful act into a trespass, by subsequent misconduct, that misconduct must proceed from the party himself, and not from the act of another, whose conduct he cannot control. In the case of the Charming Betsy, the court decided, in express terms, that, “ her papers were perfectly correct.” In the present case, some of the papers were false and delusive, and others were not shown, or were not found. The sentence in Jamaica is conclusive evidence, that the property was not neutral Danish property, which is the very ground of the present libel. Unless, therefore, the admiralty court of one nation can reverse the sen* tence of an admiralty court of another nation, that sentence in Jamaica is conclusive against Shattuck’s title. If he had prosecuted his appeal, and reversed the sentence, he would have obtained indemnification. By his instructions from his government, Maley was bound to act on reasonable suspicion. They gave him notice of the practice of covering this illicit trade with the Danish flag. When, therefore, he found a recent sale of an American vessel to a person pretending to have become a Danish subject, and 291 486 SUPREME COURT [Feb’y Maley v. Shattuck. residing in a place notorious for it abuse of its neutral flag, when he found the vessel attempting to enter a prohibited port, with an ostensible destination to a port not prohibited, when no evidence was exhibited to show that the master of that vessel was a Danish subject, and when his instructions required him “ to be vigilant, that vessels really American, but covered by *4871 Danish papers and bound to or(from French ports, do not escape J *you,” how is it possible to say that he had not “ reason to suspect ?” Although any one of these circumstances alone might not afford “ reason to suspect,” yet the combination of the whole certainly did. With respect to the claim of insurance, the case of the Charming Betsy is full in point. It is admitted, that no insurance has been paid. And the court in that case expressly said, that “ a public officer, intrusted on the high seas, to perform a duty deemed necessary by his country, and executing, according to the best of his judgment, the orders he has received, if he is the victim of any mistake he commits, ought certainly never to be assessed with vindictive or speculative damages.” The claim for insurance not paid is certainly a claim for speculative damages. The direction of the court to the assessors was, “ to take the prime cost of the cargo and vessel, with interest thereon, including the insurance actually paid.” The consideration of the other items is submitted to the consideration of the court. March 3d, 1806. Marshall, Ch. J., delivered the opinion of the court. —In this case, each party has appealed from the sentence of the circuit court. Maley complains of that sentence, because it subjects him to damages and costs for the value of the Mercator and her cargo, first captured by him, and afterwards taken out of his possession by a British privateer, and because, also, some items are admitted into the account, taken for the purpose of ascertaining the sum for which he is liable, which ought to be excluded from it. Shattuck complains of the sentence, because he was not allowed by the circuit court, all the items contained in the report, to the whole of which he thinks himself entitled. *In discussing the right of Shattuck to compensation for the Mer-488J cator, and her cargo, the first question which presents itself is, was that vessel and cargo really his property ? Without reciting the various documents filed in the cause, it will be admitted, that they demonstrate the affirmative of this question, unless the court be precluded from looking into them, by the sentence in Jamaica, condemning the ship and cargo as lawful prize. On the conclusiveness of the sentence of a foreign court of admiralty, it is not intended now to decide. For the present, therefore, such sentence will be considered as conclusive, to the same extent which is allowed to it in the courts of Great Britain. But, in those courts, it has never been supposed to evidence more than its own correctness ; it has, consequently, never been supposed to establish any particular fact, without which the sentence may have been rightly pronounced. If then, in the present case, the Mercator, with her cargo, may have been condemned as prize, although, in fact, they were both known to be the property of a neutral, the sentence of condemnation does not negative the averment, that they both belonged to Jared Shattuck. 292 1806] OF THE UNITED STATES. 488 Maley v. Shattuck. It is well known, that a vessel libelled as enemy’s property, is condemned as prize, if she act in such manner as to forfeit the protection to which she is entitled by her neutral character. If, for example, a search be resisted, or an attempt be made to enter a blockaded port, the laws of war, as exercised by belligerents, authorize a condemnation as enemy’s1 property, however clearly it may be proved, that the vessel is in truth the vessel of a friend.1 Of consequence, this sentence, being only conclusive of to its own correctness, leaves the fact of real title open to investigation. This positive impediment to inquiry being removed, no doubt upon the subject can be entertained. It being proved that the Mercator and her cargo belonged to Jared Shattuck, who, though born in the United States, had removed to the island of St. Thomas, *and had acquired all the commercial rights of his domi-cil, before the occurrence of those circumstances which occasioned L the acts of congress under which this seizure is alleged to have been made the case of the Charming Betsy determines that the vessel and cargo were not liable to forfeiture under those acts. It remains then to inquire, whether the Mercator appeared under such circumstances of suspicion as to justify her seizure ? On this point too, the authority of the Charming Betsy appears to be decisive. In each case, the vessel was built in America, and had been recently sold to a person born in the United States, who had become a Danish burgher, before the rupture between this country and France ; and both cases present the same circumstances of suspicion, derived from the practice of the island to cover American as Danish property. The points of dissimilitude are, that in the Charming Betsy, the captain and crew were of a description to give greater suspicion than the captain and crew of the Mercator ; and in the Charming Betsy, was found a procès verbal, which stated facts unfavorable to that vessel, whereas, no similar paper was found in the Mercator. The only circumstance of suspicion attending the Mercator, which did not belong to the Charming Betsy, is, that she was bound to Port-au-Prince, and was taken entering the port of Jacmel. This circumstance appears to be sufficiently accounted for, but if it was not, the court can perceive in it no evidence of her being American property, which can weigh against the testimony offered by the papers that she was Danish. The documents on this point which were thought decisive in the case of the Charming Betsy exist in this case also. The information of the captain, uncontradicted by any of his crew, in this case, as in that, is corroborated and confirmed by the documents on board the vessel. The only paper, the absence of which could be important, was an authenticated burgher’s brief proving the captain to have been a Danish subject. How far *the absence of this paper might have justified a suspicion [-* in a belligerent that she was enemy-property, so as to excuse from L damages for capture and detention, according to the usages of belligerents, the court will not undertake to determine ; but it was a casualty which is not sufficient to justify a suspicion that the vessel was American. The burgher’s brief is stated to have been in possession of the captain ; but is supposed not to have been produced, and, consequently, it could have no influence on Lieutenant Maley» However this may be, no inquiry respecting 1 The Baigorry, 2 Wall. 474. 293 490 SUPREME COURT [Feb’y Maley v. Shattuck. it was made, and- he does not appear to have suggested any difficulty on that ground. Unquestionably, Lieutenant Maley had a right to stop and to search the Mercator, and to exercise his judgment on the propriety of detaining her; but, in the exercise of that judgment, he appears to have come to a decision not warranted by the testimony presented to him. The circumstances of suspicion arising in the case, were not sufficiently strong to justify the seizure which was made. But it is obvious, that Lieutenant Maley suspected the Mercator to be a French, not an American vessel. In his answer, he says, that he mistook the captain for a Frenchman ; in his letter of instructions, he speaks of the vessel as a prize ; and in the protest of the American prize-master, she is denominated “ a French prize.” From these circumstances combined, it is supposed to be sufficiently apparent, that the mistake committed by Lieutenant Maley was in supposing the Mercator to be a French vessel, liable to capture under the laws of the United States. The argument of the attorney-general, that Lieutenant Maley is not liable for this loss, because it was produced by a superior force, which it was not in his power to resist, would have great weight, if the circumstances under which the Mercator appeared had been such as to justify her seizure. But the court is not of that opinion, and, consequently, that argument loses its application to this case. *4.011 *Neither is it conceived, that the failure of Shattuck to appeal in time, destroys his claim on Lieutenant Maley. He had certainly a right to abandon, if he chose to do so, and to resort to the captor for damages. In the opinion given in the circuit court, that the libellant was entitled to compensation for the Mercator and her cargo, this court can perceive no error ; but in so much of the report of the commissioners appointed to adjust the account as is affirmed, some unimportant inaccuracies appear. In its circumstances, this case so strongly resembles that of the Charming Betsy that the court will be governed by the rule there laid down. In pursuance of that rule, the rejection of the premium for insurance, that premium not having been paid, is approved ; but the rejection of the claim for outfits of the vessel, and the necessary advance to the crew, is disapproved. Although the general terms used in the case of the Charming Betsy would seem to exclude this item from the account, yet the particular question was not under the consideration of the court, and it is conceived to stand on the same principles with the premium of insurance, if actually paid, which was expressly allowed. But this claim is nearly balanced by two items in the account which were admitted, as this court thinks, improperly. One is the charge of $540 for the expense of soliciting compensation from the United States. The court can perceive no reason for charging this expense to Lieutenant Maley. The other is the charge of $326.12, the account of Ross & Hall, for expenses in England. Had the appeal been prosecuted in time by Shattuck, it is scarcely possible to doubt, but that the sentence of the court, in Jamaica, would have been reversed, in which case, it would have been reasonable, that the expense of the prosecution should have been paid by Lieutenant Maley. But as it was not prosecuted in time, in consequence of which the proceeds of the vessel 294 1806] OF THE UNITED STATES. *492 Lawrason v. Mason. and *cargo were lost, it is not conceived, that Lieutenant Maley ought to be charged with the cost of a subsequent ineffectual attempt, not made at his instance, to repair the original neglect. What may be the claim of Shattuck, on the government of the United States, for this sum, is not for this court to inquire ; but his claim against Lieutenant Maley is not admitted. This court affirms so much of the sentence of the circuit court, as awards compensation for the Mercator, and her cargo, to the libellant, and approves of the sentence on the report of the commissioners, except as to that part which rejects the claim for advances for the outfits of the vessel, and the wages of the crew, and which admits the charges of $540, on account of the expenses attending the application to the government of the United States, and of $326.12, on account of expenses attendant on the ineffectual attempt which was made to prosecute an appeal in England. In these respects, the account is to be reformed, for which purpose, so much of the sentence of the circuit court as respects this part of the subject is reversed, and the case is remanded to the circuit court to be further proceeded in, as to justice shall appertain. Lawrason v. Mason. Letter of credit. A letter from the defendants to J. M., saying, that they would be his security for 130 barrels of corn, payable in twelve months, will sustain an action of assumpsit against the defendants, by any person who, upon the faith of the letter, shall have given credit to J. M. for the corn.1 . Error to the Circuit Court for the district of Columbia. This was an action of assumpsit, brought by Mason against Lawrason, surviving partner of the firm of Lawrason & Smoot, upon the following note : *“ Alexandria, 28th November 1800. [*493 M Mr. James McPherson, “ Dear Sir—We will become your security for one hundred and thirty barrels of corn, payable in twelve months.” (Signed) Lawrason & Smoot.” The declaration contained several counts, laying the assumpsit in different forms, but the substance of each was, that the plaintiff, relying on, and placing confidence in, the promise of the defendants, and at their instance and request, sold and delivered the corn to McPherson, at the price of three dollars a barrel, who, although requested, never paid the plaintiff therefor, of which the defendants had notice, whereby the defendants became liable, and in consideration thereof, promised to pay. The defendants pleaded the general issue ; and at the trial, a verdict was taken for the plaintiff, subject to the opinion of the court, upon a demurrer to evidence, which stated, in substance, that the defendants signed and delivered the said note to McPherson ; that he applied to the agent of the plaintiff for the com, .and offered three dollars a barrel, payable in twelve months; that the agent consulted the plaintiff, who agreed that 1 Andsee Union Bank v. Coster, 3 N. Y. 203. 295 493 SUPREME COURT [Feb’y Lawrason v. Mason. McPherson should have the corn on those terms, if he would give security ; that McPherson then offered, as his security, Lawrason & Smoot. The agent agreed to take them, if thev would give their assumption in writing. In a few days afterwards, McPherson sent to the agent the said note of La'wrason & Smoot. Before the corn was delivered, the agent informed the plaintiff what had passed between himself and McPherson, relative to the corn, and also showed him the note, and asked him whether it would do ; to which he replied, he supposed it would. But they called upon Lawrason, and asked him if he was content to be McPherson’s security for this corn. He hesitated, at first, but said, he must be so, as he had promised ; or, as his word was out, he would ; or words to that effect ; whereupon, the *4941 plaintiff suffered McPherson to take the corn, *at the price of three J dollars per barrel, which he agreed to give. That there was another debt due to the plaintiff from McPherson, about the 1st of January 1801, which he was unable to pay. That about the 1st of January 1800, McPherson gave his promissory note for the amount due foi’ the corn, payable to Lawrason & Smoot, with intent that they should indorse it, but upon its being presented to Smoot, he refused, saying, that McPherson had failed to furnish them with meal, which he had agreed to deliver to them for their indorsement; he, therefore, would not become security, but, upon being shown the note of 28 th. of November, he acknowledged that it had been given by them. The plaintiff also produced the certificate of discharge of McPherson, under the bankrupt law, dated the 15th of September 1802, and proved by witnesses, that he became insolvent in the year 1800. Upon this demurrer, the judgment of the court below was for the plaintiff. Swann, for the plaintiff in error.—The promise in this case was not made to the plaintiff ; and no action can be maintained against a person who is a stranger to the consideration, and who is not a party to the agreement. Jordan v. Jordan, Cro. Eliz. 369 ; Esp. N. P. 105, 106. Perhaps, an action might lay for the deceit, but not for the assumpsit. The will of both parties must concur, at the same moment. If I make an offer of goods, at a certain price, and give time to the other party to consider of it, and within the time, the other party agrees to the terms, I am not bound to comply. Thore was no consideration, and consequently, no contract. Cooke v. Oxley, 3 T. R. 653. Besides, it does not appear that the money was ever demanded of McPherson ; and until he had refused to pay, no right of action could accrue against the defendant. * C. Lee, contra.—There is an essential difference between common contracts and a letter of credit. The latter is a mercantile instrument, bottomed upon the principle of good faith. It is a promise to him who will give credit to the third person, and the consideration is, the actual delivery of the money or goods to the third person, upon the faith of the letter of credit. This is, therefore, a promise to the plaintiff, and a good consideration is raised by the delivery of the corn, npon the faith of the defendant’s note in writing. All the forms of action upon a letter of credit, are in assumpsit. 296 1806] OF THE UNITED STATES. Knox v. Summers. 495 It is objected that no demand was made on McPherson ; the answer is, that he was known to both parties to be insolvent. Marshall, Ch. J., delivered the opinion of the court to the following effect :—This action is grounded upon a note in writing, which was certainly intended by the defendants to give a credit to McPherson. They are bound, by every principle of moral rectitude and good faith, to fulfil those expectations which they .thus raised, and which induced the plaintiff topart with his property. The evidence was clear, that the credit was given upon the faith of the letter. Unless, therefore, there is some plain and positive rule of law against it, the action ought to be supported. In the case cited from Espinasse, the rule is laid down too broadly. If compared with analogous cases, it will be found to be considerably modified. Thus, if money be delivered by A. to B., to be paid over to C., although no promise is made by B. to C., yet C. may recover the money from B. by an action of assumpsit. If it be said, that in such a case, the law raises the assumpsit from the facts, and if the facts do not imply *an assumpsit^ no action will lie ; it may be answered, that in the present case, there is an actual assumpsit to all the world, and any L person who trusts, in consequence of that promise, has a right of action. It has been suggested by the counsel for the defendants, that although an action of assumpsit will not lie, yet, possibly, the plaintiff might support an action for the deceit. But an action for the deceit must be grounded upon the breach of the promise. And if an action will lie, in any form, the present seems to be, at least, as proper as any other. Judgment affirmed. Knox & Crawford v. Summers and Thomas. Appearance.— Waiver. An appearance of the defendant, by attorney, cures all antecedent irregularity of process. Quaere? Whether a deputy-marshal can plead in abatement, that the capias was not served on him by a disinterested person ?* Knox v. Crawford, 1 Cr. C. C. 260, reversed. Error to the Circuit Court of the district of Columbia. The plaintiffs in error brought an action of debt on a bond, against the defendants, in the court below; to which the defendant, Summers, after oyer of the writ, pleaded in abatement, that on the day of the issuing of the original writ, as well as on the day of its service on him, he was one of the marshal’s deputies for the district of Columbia, and that the writ was not directed to a disinterested person, appointed by the court of the district of Columbia, or by any justice or judge thereof, to execute the same. To which plea, the plaintiffs demurred specially ; 1st. Because the plea was filed long after the appearance of the defendant, Summers ; 2d. Because, after his appearance to the suit, no objection can be urged to the irregularity of the service of the process ; 3d. Because, if the process was 1 See the opinion of the court below, 1 Cr. C. C. 260. 297 496 SUPREME COURT [Feb’y Knox v. Summers. irregularly issued, directed or served, the remedy was by motion, and not by plea; and 4th. Because the process was duly issued, directed and served. *40'71 But the court below adjudged the *plea to be good, and ordered the -1 writ to be quashed as to both defendants. Whereupon, the plaintiffs sued out their writ of error. By the 28th section of the act of congress of the 24th of September 1789 (1 U. S. Stat. 87), it is enacted, “That in all causes wherein the marshal, or his deputy, shall be a party, the writs and precepts therein shall be directed to such disinterested person, as the court, or any justice or judge thereof, may appoint: and the person so appointed, is hereby authorized to execute and return the same.” Swann, for the plaintiffs in error.—The provision of the act of congress was not intended for the benefit of the marshal, or his deputy, but of the other party. The word “ shall,” in this, as in many other cases, means may. It shall be directed to a disinterested person, if the other party shall request it. But if the direction of the writ to the marshal was an informality, it is cured by the general appearance of the deputy-marshal. Co. Litt. 325. Blenkinson n. Iles, 2 Ld. Raym. 1544. The record states, that there was judgment by default, at the rules, against both defendants, and that at the next court, on the motion of the defendants, by Walter Jones, jr., their attorney, it was ordered, that the suit be returned to the rules for proceedings anew. At the next rules, the record states, that “ the said Lewis Summers, in his proper person, comes and defends the force and injury, &c., and prays oyer of the writ,” &c. So that this plea in abatement was not put in, until after he had appeared by his attorney, and set aside the office-judgment. But this is not a matter pleadable in abatement. If a person is improperly arrested, his remedy formerly was by a writ of privilege, but now it is by motion to be discharged. He cannot plead it. C. Lee, contra.—When the cause was sent back to the rules for proceedings anew, it was as if nothing had been done at the rules. Everything was to begin de novo. The defendant, Summers, is to be considered as then appearing for the first time ; and instantly, upon his appearance, he pleaded in abatement in proprid persond. *4Q81 *R does no* aPPear upon the writ, that he was a deputy-marshal. It could not, therefore, be taken advantage of, upon motion. Or, if it could, yet that is not the most regular way. Upon a motion, the fact must appear by affidavit, and the court must decide the fact. But upon a plea, the fact is put in issue and tried by the jury, the proper tribunal to try a question of fact. The law is express and positive ; “ the writ shall be directed ” to a disinterested person. There is no discretion in the court. Where it appears to the court, from the writ itself, that it ought to abate, there the court, ex officio, ought to give judgment against the plaintiff, though the defendant does not plead it in abatement; but it is otherwise, where it does not appear in the writ. 4 Bac. Abr. 44. Where the fact does not appear upon the record, it must be pleaded in due time. Washington, J.—The defendant could not set aside the office-judgment, without entering his appearance. 298 1806] OF THE UNITED STATES. 498 Sands v. Knox. C. Lee.—If such an appearance is to cure all antecedent error, no plea in abatement could be put in, although the office-judgment was irregularly obtained; nor could the defendant take advantage of irregularity, at the rules ; although the court is, by the express provisions of the law, authorized to set aside the proceedings at the rules. The Covet were unanimously of opinion, that the appearance by attorney cured all irregularity of process. The defendant, perhaps, might have appeared in propria persona, and directly pleaded in abatement. But having once appeared by attorney, he is precluded from taking advantage of the irregularity. The judgment reversed, the defendant ordered to answer over, and the cause remanded for further proceedings. *Sands v. Knox. [*499 N’on-intercourse act. The non-intercourse act of June 13th, 1798, did not impose any disability upon vessels of the United States, sold bona fide to foreigners, residing out of the United States, during the existence of that act. Eeboe to the Court for the Trial of Impeachments and the Correction of Errors, in the state of New York. Thomas Knox, administrator, with the will annexed, of Raapzat Heyle-ger, a subject of the King of Denmark, brought an action of trespass vi et armis, in the supreme court of judicature of the state of New York, against Joshua Sands, collector of the customs for the port of New York, for seizing and detaining a schooner called the Jennett, with her cargo. The defendant, Sands, pleaded in justification, that he was collector, &c., and that after the 1st day of July 1798, viz., on the 16th of November 1798, the said schooner, then being called the Juno, was owned by a person resident within the United States, at Middletown, in Connecticut, and cleared for a foreign voyage, viz., from Middletown to the island of St. Croix, a bond being given to the use of the United States, as directed by the statute, with condition that the vessel should not, during her intended voyage, or before her return within the United States, proceed, or be carried, directly or indirectly, to any port or place within the territory of the French republic, or the dependencies thereof, or any place in the West Indies, or elsewhere, under the acknowledged government of France, unless by stress of weather, or want of provisions, or by actual force or violence, to be fully proved and manifested before the acquittance of such bond, and that such vessel was not, and should not be, employed, during her said intended voyage, or before her return as aforesaid, in any traffic or commerce with, or for, any person resident within the territory of that republic, or in any of the dependencies thereof. That afterwards, on the 8th of December 1798, she did proceed, and was voluntarily carried from Middletown to the island of St. Croix, in the West Indies, and from thence, before her return within the United States, to Port de Paix in the island of St. Domingo, being then a place under the acknowledged government of France, without being obliged to do so by stress of weather, or *want of provisions, or .-*5 actual force and violence, whereby, and according to the form of the 299 500 SUPREME COURT [Feb’y Sanda v. Knox. statute, the said schooner and her cargo became forfeited, the one-half to the use of the United States, and the other half to the informer; by reason whereof, the defendant, being collector, &c., on the 1st of July 1799, arrested, entered and took possession of the said vessel and cargo, for. the use of the United States, and detained them as mentioned in the declaration, and as it was lawful for him to do. The plaintiff, in his replication, admitted that the defendant was collector, &c., that at the time she sailed from Middletown for St. Croix, she was owned by a person then resident in the United States ; and that a bond was given as stated in the plea; but alleged, that she sailed directly from Middletown to St. Croix, where she arrived on the 1st of February 1799, the said island of St. Croix then and yet being under the government of the King of Denmark. That one Josiah Savage, then and there being the owner and possessor of the said vessel, sold her, for a valuable consideration, at St. Croix, to the said Raapzat Heyleger, who was then, and until his death continued to be, a subject of the King of Denmark, and resident at St. Croix, who, on the 1st of March following, sent the said vessel, on his own account, and for his own benefit, on a voyage from Port de Paix to St. Croix, without that, that she was at any other time carried, &c. To this replication, there was a general demurrer and joinder, and judgment for the plaintiff, which, upon a writ of error to the court for the trial of impeachments and correction of errors, in the state of New York, was affirmed. The defendant now brought his writ of error to this court, under the 25th section of the judiciary act of the United States. (1 U. S. Stat. 85.) The only question which could be made in this court, was upon the construction of the act of congress, of June 13th, 1798 (1 U. S. Stat. 565), commonly called the non-intercourse act; the 1st section of which is in these * words : “That no ship or vessel, owned, hired or employed, *wholly •* or in part, by any person resident within the United States, and which shall depart therefrom, after the 1st day of July next, shall be allowed to proceed, directly, or from any intermediate port or place, to any port or place within the territory of the French republic, or the dependencies thereof, or to any place in the West Indies, or elsewhere, under the acknowledged government of France, or shall be employed in any traffic or commerce with or for any person, resident within the jurisdiction or under the authority of the French republic. And if any ship or vessel, in any voyage thereafter commencing, and before her return within the United States, shall be voluntarily carried, or suffered to proceed, to any French port or place as aforesaid, or shall be employed as aforesaid, contrary to the intent hereof, every such ship or vessel, together with her cargo, shall be forfeited, and shall accrue, the one-half to the use of the United States, and the other half to the use of any person or persons, citizens of the United States, who will inform and prosecute for the same ; and shall be liable to be seized, prosecuted and condemned, in any circuit or district court of the United States, which shall be holden within and for the district where the seizure shall be made.” The condition of the bond stated in the plea, corresponded exactly with that required by the 2d section of the act. The 70th section of the act of 2d of March 1799 (1U. S. Stat. 678), makes it the duty of the several officers 800 1806] OF THE UNITED STATES. Sands v. Knox. 601 of the customs, to seize any vessel liable to seizure, under that or any other act of congress respecting the revenue. C. Lee, for the plaintiff in error.—The question • is, whether the act of congress does not impose a disability upon the vessel itself ? • This vessel was clearly within the literal prohibition of the act. She was 11 owned wholly by a person resident within the United States.” She did “ depart therefrom, after the 1st day of July (then) next.” She did “ proceed from an intermediate port or place, to a place in the West Indies, under the acknowledged government of France.” She was also a vessel which, “in a voyage *thereafter commencing, and before her return within the United States,” was “ voluntarily carried, or suffered to L proceed, to a French port.” She had, therefore, done and suffered every act which, according to the letter of the law, rendered her liable to forfeiture, seizure and condemnation. It is true, that the decision of this court, in the case of the Charming Betsy, 2 Cr. 115, seems, at first view, to be against us. But the present question was not made, and could not arise, in that case, because that vessel had not been to a French port, nor had she returned from a French port to the United States. If such a trade as the present case presents were to be permitted, the whole object of the non-intercourse act would be frustrated. A vessel of the United States may, according to the judgment in the case of the Charming Betsy, be sold and transferred to a Dane, and he may trade with her as he pleases; but we say, it is with this proviso, that he does not send her from a French port to the United States. He takes the vessel with that restriction. If he trades to the United States, he is bound to know and respect their laws. The intention of the law was not only to prevent American citizens, but American vessels, from carrying on an intercourse with French ports. The case of the Charming Betsy was under the act of February 1800 ; but the present case arises under that of 1798, which is very different in many respects. The opinion in that case, so far as it was not upon points necessarily before the court, is open to examination. Neither the words of the law, nor the form of the bond, make any exception of the case of the sale and transfer of the vessel, before her return. If, therefore, a sale is made, it must be subject to the terms of the law ; and although the vessel may not be liable to seizure upon the high seas, yet upon her return to the United States, it became the duty of the custom-house officer to seize her. The law ought to be so construed as to carry into effect the object intended. That object was, to cut off all intercourse with France, and by that means compel her to do justice to the United States. But if this provision of the law is to be so easily eluded, France will be in a better *situation pggg than before, for she will receive her usual supplies, and we shall be weakened by the loss of the carrying trade. Bayard, control, was stopped by the court. Marshall, Ch. J.—If the question is not involved, whether probable cause will justify the seizure and detention ; if there are no facts in th< pleadings which show a ground to suspect that there was no bond fide sal< and transfer of the vessel, the court does not wish to hear any argument oi 301 503 SUPREME COURT [Feb’y Randolph v. Ware. the part of the defendant in error. It considers the point as settled by the opinion given in the case of the Charming Betsy, with which opinion the court is well satisfied. The law did not intend to affect the sale of vessels of the United States, or to impose any disability on the vessel, after a bond fide sale and transfer to a foreigner. Judgment affirmed. Randolph v. Ware. Principal and agent. K promise by a merchant’s factor, that he would write to his principal to get insurance done, does not bind the principal to insure. This was an appeal from a decree of the Circuit Court for the district of Virginia, which dismissed the complainant’s bill in equity. Ware, the executor of Jones, surviving partner of the house of Farrell & Jones, British merchants, had, in the same court, at June term 1800, obtained a decree against William Randolph, administrator de bonis non, with the will annexed, of Peyton Randolph, for a large *sum of money, with liberty to William Randolph to file this bill against Ware, for relief in regard to fifty hogsheads of tobacco, shipped, in September 1771, in the ship Planter, Captain Cawsey, and consigned to Farrell & Jones ; a credit for which had been claimed, but was by the decree, disallowed. The tobacco never came to the hands of Farrell & Jones, having been lost at sea without being insured. The appellant contended, that he was entitled to a credit for the customary insurance price of the tobacco, viz., 10Z. per hogshead, with interest. 1. Because, from the usage of the trade between the Virginia planter and the British merchant, it was the duty of the latter to have insured the tobacco, and that having failed so to do, he is responsible as insurer. 2. Because Thomas Evans, the appellee’s agent for soliciting consignments and managing this business, having promised to get the insurance done, it is equivalent to the promise of his principals, Farrell & Jones, and they are responsible for the consequences. 3. It was contended, that the claim, under all circumstances disclosed in the record, if not fit to be decreed, according to the prayer of the bill, appears to be of a nature proper to be decided in a court of law, in pursuance of an order of the court of equity, and therefore, that the decree should be reversed, and an order made, directing a trial at law, to ascertain whether the appellee is not liable to the appellant for the value of the tobacco, and the interest from the month of September 1772, as standing in the place of insurer thereof. C. Lee, for the appellant.—1. The common course of the trade was, for the British merchant to cause insurance to be made, upon notice of the shipment of tobacco ; and it appears by the letters exhibited in this record, that Farrell & Jones did, without any special orders, cause insurance to be made on some of the tobacco shipped by Randolph’s executors. *Thus, in • -1 their letter of August 1st, 1769, to Richard Randolph, they say, “We have made the following insurance on the True Patriot, for the two estates, 302 1806] OF THE UNITED STATES. 505 Randolph v. Ware. viz., 480?. on 40 hogsheads, W. Randolph’s estate ; 816?. on 68 hogsheads, P. Randolph’s,” but say nothing of having received orders therefor. And again, August 10th, 1769, “We have made 816?. insurance on the True Patriot, on 68 hogsheads which Captain Cawsey informs us he is to have.” It is true, that on the 15th of August 1771, they say, “Capcain Cawsey writes us, that he is promised 67 hogsheads of the estate’s tobacco, but we have received no orders for insurance.” But they had received no orders for the insurance they made in August 1769, on the 68 hogsheads which Captain Cawsey informed them he was to have. The executors had a right to expect, that as Farrell & Jones had made insurance without orders, on the 68 hogsheads, by the True Patriot, they would also have insurance made on the 50 hogsheads by the Planter. The appellee’s amended answer, put in after this point was known, does not pretend that any orders were given for the insurance, made in 1769, on the 68 hogsheads. And in the accounts of Farrell & Jones, there are many charges of premiums on insurance’s, for which no orders appear to have been given. 2. But the deposition of P. L. Grymes goes to establish an agreement, on the part of Evans, the agent of Farrell & Jones, to get insurance done upon the 50 hogsheads in question. This deposition is corroborated by the fact, that in the correspondence produced, there is no letter of the executors, respecting the shipment of that parcel of tobacco. They relied altogether upon the promise of Evans. No argument against the claim can arise from the length of time which elapsed before it was made. The estate of Randolph was acknowledged to be indebted ; the executors, therefore, would not bring a suit. It was time enough to exhibit thnr claim, when suit was brought *agaiast them. «° • ° ° *506 Besides from 1774 to 1783, the war interposed ; after that time, until the suit was brought, the courts of justice were absolutely shut, or legal impediments existed to the recovery of British debts. The executors also might have been ignorant of their right. This suit, therefore, ought to be considered as if it had been instituted in 1775. 3. This is a claim proper to be settled in a court of law. There is a difference between a case where the chancellor will order an issue at law to be tried, to satisfy or inform his conscience, and where the whole claim is a matter properly cognisable at law. P. P. Key, contra.—1. There is no evidence in the record of such a general usage of the trade, as is contended for by the appellant. And if there ha to show that Evans, 304 1806] OF THE UNITED STATES. 508 Randolph v. Ware. the agent of Farrell & Jones, promised to have insurance done. This affidavit appears in the transcript of the record, without date, place or circumstance. It does not appear to have been sworn before any magistrate, competent to administer an oath, and no cross-examination, nor anything to show upon what occasion it was made. It is uncertain in itself, uncorroborated by any other part of the testimony, and inconsistent with the general tenor of it. He says, the conversation happened early in the year; but the tobacco was shipped in September. His words are, “ he the said Evans informed the aforesaid Peyton and Richard Randolph, that he was writing to the aforesaid house of Farrell & Jones, that he would direct insurance to be made,” “ and that they need give themselves no further trouble in the business.” *The long time which had elapsed before this deposition was made (probably 30 years), renders its contents of very little weight, espe-cially, as there were a number of shipments of tobacco made at different times in the same ship, and he swears the conversation happened early in the year. It appears from the correspondence, that early in the year preceding, viz., 1770, the same ship had been loaded with tobacco at the same place ; and this renders it probable that Mr. Grymes had mistaken the year. But admitting that it proves all that is contended, yet Evans was not competent to bind his principal to insure ; it was not a matter within his agency. Johnson, J.—I found my opinion in this case upon a single consideration. It was incumbent on the appellant, to show that Evans’s neglecting to comply with his promise to insure, made Farrell & Jones liable. I think it did not, because it appears that Farrell & Jones did not generally hold themselves bound to insure shipments of tobacco, without receiving express instructions to do so. It was, therefore, incumbent’ upon the executors of Randolph, to communicate such instructions to Farrell & Jones. If they confided in the promise of Evans to give these instructions, it was to their own prejudice. And although the failure of Evans to do so, certainly made him personally liable to them, yet it could not produce a liability in Farrell & Jones. So far as Evans was intrusted to do an act incumbent on the appellant’s testator himself to do, he was the agent of the executors of Randolph, and not of Farrell & Jones. Washington, J.—In this case, it appears, that a letter was written by Farrell & Jones, in August 1770, notifying the executors of Randolph, that they would not make insurance without orders. And it is shown also, that the Randolphs were accustomed to give orders for insurance, whenever they wished to have it made. Whatever, then, may be the general usage of the trade, it will not apply to the present case. *The deposition of Grymes comes in a very questionable shape. It speaks of things thirty years ago, and in very uncertain language. *• But admitting for a moment that it applies to' this shipment, Evans had not authority to bind his principal, by a promise to insure. He did not promise for them, but promised for himself, that he would write to them to make insurance. This, it is admitted, he did not do. Are Farrell & Jones liable for his personal engagement ? But the deposition of Grymes is not only uncorroborated, but opposed, 3 Ckanch—20 305 510 SUPREME COURT [Feb’y Randolph v. Ware. by the other evidence in the cause. If the Randolphs relied upon this supposed engagement of Evans, why did they give their bond in 1772, nine months after the loss, and long after they had notice of the loss, for the balance of the account, without demanding a Credit for the lost tobacco ? Three aceounts-current were sent them for the years 1772, 1773 and 1774, at several times, and they were requested at each time to examine them, and if they contained any error, to advise Farrell & Jones of it. By not doing this, they have given strong evidence that there was no such agreement with Evans, that there was no error in the accounts, and that Mr. Grymes must have been mistaken, or that his deposition refers to some other transaction. Paterson, J.—The complainant filed a cross-bill to obtain credit for 50 hogsheads of tobacco, which were shipped on board the Planter, the 17th September 1771, by Richard and Peyton Randolph, executors of William Randolph, and consigned to‘Farrell & Jones, merchants, at Bristol, in England. The tobacco was not insured. The Planter foundered at sea, and the tobacco was lost. The question is, who shall sustain the loss ? It is contended, On the part of the representatives of the Randolphs, that Farrell & Jones ought to have insured the tobacco, and, not having done so, they have made themselves liable to the amount, as if it had been insured. To establish this position, the counsel for the complainant has taken the following grounds. 1st. From the nature and usage of the trade between the Virginia planter *5111 an<^ English merchant, it was *the duty of the latter to have in- J sured the tobacco, and failing so to do, he is responsible as the insurer. 2d. That Thomas Evans, the agent of Farrell & Jones, having promised to have insurance made, it is equivalent to the promise of his principals, Farrell & Jones, and they were responsible for the consequences. As to the first point, no usage has been proved. And if a usage did exist, this case was taken out of it; as it appears by the whole course of correspondence, between the parties, that Farrell & Jones never did insure tobacco, without orders ; and that the Randolphs gave them orders to effect insurances on tobacco, whenever they thought it expedient or necessary. Great stress is laid on the contract which, it is stated, was entered into between the Randolphs and Thomas Evans, the agent of Farrell & Jones. The. contract is founded on the deposition of Philip Grymes. This deposition is certainly open to the strictures which have been made upon it by the counsel on the part of the defendant. It does not appear when, and before whom, the deposition was taken. The deposition is ex parte, for neither the defendant nor his attorney had an opportunity to cross-examine the witness. If it was taken at or about the time that the bill was filed, then it is liable to the objections resulting from the frailty and uncertainty of memory, and the misconception Or misconstruction of words used in a general conversation, after a long period of time, exceeding twenty years. Besides, the quantity of tobacco to be insured was not mentioned in the course of the conversation, nor does it appear, that it was at any time afterwards communicated to the agent; and unless the quantity was ascertained, an insurance could not be effected. How this paper, purporting to be a deposition, became annexed to the bill, I have not been able to discover from the pro-, t 306 1806} OF THE UNITED STATES. fill Randolph v. Ware. ceedings ; and if it be admitted as a piece of evidence in the cause, its credit is much impaired in consequence of the observations already made. The acts of the agent bind the principal; and supposing Evans to have been the general agent of Farrell *& Jones, it may well be questioned, r*^ 9 whether his undertaking to insure, is obligatory upon them ; as it is L manifest, from the correspondence between the Randolphs and Farrell & J ones, that the latter did not insure tobacco, without express orders for the purpose ; that the Randolphs wrote to them to insure, when they deemed an insurance proper. The fair inference is, that if Evans engaged to have an insurance made in this instance by Farrell & Jones, it was a personal contract on his part, which bound himself and no other, and for the performance of which he was responsible in his private character. Orders for insurance were invariably transmitted by the Randolphs to Farrell & Jones, and not communicated to them, through the medium of Evans, unless the present should be considered as an exception. Under such circumstances, the Randolphs, if they relied on the promise of Evans, must look to him individually, and not through to him to Farrell & Jones. By this promise, Evans bound himself, and not the firm. The house of Farrell & Jones transmitted, annually, their accounts to the Randolphs; they did so for the year 1771, after the loss of the tobacco, which it is admitted was not passed to the credit of the Randolphs. The bond given for the balance is dated the 1st January 1772, though, from the letter of the 4th April 1772, it was not, probably, executed until some months after its date. It was made to bear date the 1st January 1772, that it might correspond with the accounts rendered, and carry interest from that period. Farrell & Jones annually rendered regular and stated accounts to the Randolphs of their mutual dealings in the years 1772, 1773 and 1774; and in a letter of the former to the latter, Farrell & Jones particularly requested that errors, if any occurred, should be pointed out, that they might be rectified. But the Randolphs made no objections ; they made no mention of the tobacco which was lost, nor did they ever intimate an opinion that Farrell & Jones were liable for its amount. Why this silence, this acquiescence ? The period of the war, we will let pass, without animadversion, as no dealings or communication took place between the parties. Evans died in 1778. In 1780, Hanson was appointed the agent of Farrell & Jones. It was never suggested to Hanson, that the Randolphs, *or their representatives, claimed an allowance for the tobacco ; no intention was manifested to charge Farrell & Jones with it, until an action was commenced on the bond, in 1793 or 1794, when, for the first time, a claim was set up for the tobacco. Mr. Lee has endeavored to account for this silence and acquiescence, but not in a satisfactory manner ; and it is probable, that the Randolphs never thought of making any demand, because they were convinced that they had no right to do so, and that they must sustain the loss themselves, as they had neglected to order Farrell & Jones to make the insurance. It was a loss justly imputable to their own neglect or imprudence ; or if not, then they intended to stand their own insurers. Farrell, & Jones expressed regret, whenever they received no orders to insure ; and this flowed from the nature and situation of their accounts and dealings : for as the Randolphs were indebted to the firm, in a large amount, 307 513 SUPREME COURT. [1806. Winchester v. Jackson. it became the interest of Farrell & Jones that the tobacco should be insured, as it was property intended to be appropriated towards the payment of the debt due to them. The loss rendered the Randolphs the less able to pay, and increased the risk of Farrell & Jones, by diminishing their security. An insurance, therefore, of the property of the debtor, must have been beneficial and satisfactory to the creditor. But this insurance, it seems, the house of Farrell & Jones never thought themselves authorized, to make, unless they received immediately from the Randolphs explicit directions for the purpose. The charge is stale. The claim comes too late ; it is brought forward after a sleep of near 30 years, during which period the original parties and their agents have disappeared and are no more. An acquiescence for such a length of time, and under such circumstances, is too stubborn and inveterate to be surmounted. The claim was put into oblivion ; and there it ought to have remained. A court of equity should not interpose in a case of this kind; and therefore, the decree pronounced by the circuit court ought to be affirmed. Cushing, J., concurred. Judgment affirmed, (a) *514] *Field v. Milton. Certiorari. A certiorari will be awarded, upon a suggestion that the citation has been served, but not sent up with the transcript of the record. 1 W. Pinckney, for plaintiff in error, suggested that the citation had been served, but was not returned by the clerk below, with the writ of error, and prayed a certiorari. The Court said it was a new case. Certiorari granted. Winchester v. Jackson and others. Costs in error. Costs will be allowed upon a dismissal of a writ of error, for want of jurisdiction, if the original defendant be also defendant in error. The writ of error was dismissed for want of jurisdiction, the parties not appearing upon the record to be citizens of different states. Campbell, for the defendants in error, prayed that the dismissal might be with costs, the original defendants being also defendants in error. The clerk stated that the practice had heretofore been to dismiss, without 'costs, where the dismission was for want of jurisdiction. I . ... The Court directed it to be dismissed, with costs. (a) Marshall, Ch. J., did not sit in the cause, having decided it in the court below. 308 INDEX TO THE PRINCIPAL MATTERS CONTAINED IN THIS VOLUME. The References in this Index are to the Star *pages. ABATEMENT. 8. A promise by a merchant’s factor, that he . .. < . , , , , would write to his principal to get insurance 1. Quaere ? Whether a deputy marshal can plead , , ... f., . ... . . , , , , \ ' n done, does not bind the principal to insure, m abatement, that the capias was not served v w™, on him by a disinterested person ? Knox v. Summers...............................*496 See Action, 2. ACTION. AGREEMENT. 1. An action for goods sold and delivered-can- j ‘ The courta of the United gtates wiU not not be maintained by him who received a enforce an agreement entered into in fraud note as conditional payment therefor, and has of a law of the United Stateg Hannay v. passed away that note. Harris v. John- *949. ston...................,.............*311 2. If part of the goods were the Sole property See Agent, 4. of D., and the residue the sole property of I., and if I. had authority from D. to sell D.’s APPEAL part, I. may maintain an action for the whole in his own name........................Id. 1. The act of congress allowing appeals without 3. An action for money had and received will a statement of facts, applies to decrees made not lie, for the United States, against the as- before the date of that act. United States signees of a bankrupt, for the price of a ship v. Hooe.... *79 sold by them as the property of the bank- 2. No appeal or writ of error lies in a criminal rupt, who had taken a false oath to obtain a case. United States v. More........*159 register; the ship not having been seized by 8. A decree for a sale of mortgaged pro- the United States for the forfeiture, before perty, on a bill to foreclose, is a final de- the sale and transfer. United States v. cree, from which an appeal lies. Ray v. Grundy............................... *337 Law.............................. *179 4. Quaere? Whether an action for money had and received will lie, to establish a forfeit- APPEARANCE. ure, for an act committed by a third per- gon 1. An appearance of the defendant, by attor- ney, cures all antecedent irregularity of pro- AGENT. cess. Knox n. Summers...............*496 1. A factor may be justified by the orders of an agent, in deviating from the written orders of ASSUMPSIT. the principal. Manila v. Barry..........*415 j Amp&it wiU Ue upon a letter of credit, by 2. An agent for collecting of debts merely, is him who trugts a third on the faith not a factor, within the 13th section of the of that v. Mason.....*493 act of limitations of Virginia. Hopkirk v. Bell.........................;......*454 See Action, 1, 2, 3, 4. 309 S16 INDEX. ATTORNEY. 1. Notice of the time and place of taking a deposition, given to an attorney-at-law, is not sufficient, under the law of Virginia. Bud-dicum v. Kirk..............................*293 2. An attorney-at-law may agree to receive or waive notice, and cannot afterwards allege the want of it..............................Id. BANKRUPT. 1. The United States have no lien on the real estate of their debtor, until suit brought, or bankruptcy, &c. United States v. Hooe... *73 2. If the defendant plead the bankruptcy of the indorser in bar, the plaintiff may reply, that the note was given to the indorser in trust for the plaintiff. Wilson v. Codman........................ .*193 See Legacy. BOND. 1. A variance in date between the bond declared upon, and that produced on oyer, is matter of substance, and. fatal upon the plaintiff’s special demurrer to the defendant’s bad rejoinder. Cooke v. Graham.............*229 2. The court may depart from the letter of the condition of a bond, to carry into effect the intention of the parties............ .Id. 3. A discharge from thé prison-rules, under the insolvent act of Virginia, although obtained by fraud, is a discharge in due course of law : and upon such discharge, no. action can be maintained upon the prison-bounds bond. Simms v. Slaàum........................*300 See Collector, 2. BRITISH SUBJECTS: 1. Quaere? Whether a British subject, born in England, in the year 1750, and who always resided in England, could, in the year 1786, take and hold lands in Virginia, by descent or devise? Lambert v. Paine........... .*97 2. The treaty of peace between Great Britain and the United States prevents the operation of the act of limitations of Virginia, upon British debts contracted before that treaty. Hopkirk v. Bell.................... *454 CAPTURE. 1. The commander of a United States ship of war, if he seizes a "vessel on the high seas, without probable cause, is liable to make restitution in value, with damages and costs, even although the vessel is taken out of his possession by superior force ; and the owner 310 is not bound to resort to the recaptor, but may abandon, and hold the original captor liable for the whole loss. Maley v. Shattuck......................................*458 CAVEAT. 1. A general dismiss*'! of the plaintiff’s caveat, in Kentucky, does not purport to be a judgment upon the merits. Wilson v. Speed... *283 CERTIORARI. 1. A certiorari will be awarded, upon a suggestion that the citation has been served, but not sent up with the transcript of the record. Field v. Milton...............................*514 CHANCERY. 1. A decree for the sale of mortgaged property, on a bill to foreclose, is a final decree, and may be appealed from. Ray v. Law.. .*179 2. A plea in bar to a bill in chancery, denying only part of the material facts stated in the bill, is not good. A mere denial of facts is proper for an answer, but not for a plea. Milligan v. Milledge..................... .*220 3. The want of proper parties is not a good plea, if the bill suggests that such parties are oiit of the jurisdicJoa of the court....... .Id. 4. The want of proper parties is not a sufficient ground for dismissing the bill...............Id. 5. If an executor has no assets, the devisees or legatees may be proceeded against in equity....................................Id* 228 CITATION. See Certiorari. COLLECTOR. t 1. To support a judgment on a collector’s bond, at the return-term, it must appear by the record, that the writ Was executed fourteen days before the return-day. Dobynes v. United States.......................*241 See Mortgage, 1: Petersburg. CONTRACT. 1. The court has the exclusive power of deciding whether a written contract be usurious. Levy n. Gadsby.........................*181 2. He who sells property on a description given by himself, is bound in equity to make good that description. M take and hoid has not exclusive cognisance of the question lands in Virginia, by descent or devise ?.. Id. who are subject to military duty, and its ! sentence is not conclusive upon that point. See Chancery, 5. Wise v. Withers.....................*331 2. The court-martial who impose a fine upon a DISCHARGE man, not liable to militia duty, are equally trespassers with the officer who distrains for 1. A discharge from prison by a competent tri,. । such fine......................... Id. bunal, obtained by fraud, is a discharge in due course of law. Simms v. Slacum... *300 DAMAGES. , T „ . - . , . DISTRICT OF COLUMBIA. 1. In estimating damages for breach of a con- ; tract to deliver flour, the jury are to ascertain j. No appeal or writ of error, in a criminal case, the value of the flour, on the day when the ues from tke judgment of the circuit court of cause of action arose. Douglass v. Me Allis- the district of Columbia. United States v« ter....................................*298 More................................. *159 2. Quaere? Whether the act of congress, abol-. DEBTOR. ishing the fees of justices of the peace, in the district of Columbia, can affect those justices who were in commission when that act was passed?............................. Id. DECLARATION. % Tbe plaintiff in error must file a transcript of ' 1. In a declaration, an averment that the as- the record, with the clerk of the supreme signment of a promissory note was for value court of the United States, within the first received, is an immaterial one and need not : six days of the term. Genera' Rule.. .*239 be proved. Wilson v. Codman...........*193 4. An executor cannot maintain a suit, in the 2. A replication, stating that the note was given ' district of Columbia, upon letters testament- to the indorser in trust for the plaintiff, is not ' ary granted in a foreign country. Dwon v. a departure from the declaration, which avers Ramsay................................. 319 the note to have been given for value re- 5. A justice of the peace in the district of Col- ................................Id. umbia is an officer of the government of the ‘ '............................................... ’ an 518 INDEX. United States, and is exempt from militia ERRORS. duty. Wise v. Withers.......;........*331 1. If errors are not assigned according to the See Court-Martial, 1, 2. ru^e court, the writ of error will be dismissed with costs. General Rule.......................................*239 EQUITY. EXECUTOR. 1. The holder of a promissory note, in Virginia, 1' Upon the death of the plaintiff, and appear-payable to order, may, in equity, sue a remote ance of h*s executor, the defendant is not indorser, but not at law. Harris v. John- entitled to a continuance ; but he may insist ston..................................*311 on the production of the letters testamentary, before the executor shall be permitted to See Appeals, 1: Chancery, 1, 5: Contract, 2. prosecute. Wilson n. Codman..........*193 2. An executor cannot maintain a suit, in the district of Columbia, upon letters testamen-EVIDENCE. tary granted in a foreign country. Dixon v. Ramsay............................*319 1. If usury be specially pleaded, and the court reject the evidence offered upon the special bee Legacy, U plea, it may be admitted, upon the general issue. Levy v. Gadsby.................*180 FACTOR. 2. The court has the exclusive power to decide 1. A factor may be justified by the orders of a whether a written contract be evidence of general agent, in departing from the written usury...................................Id. instructions of the principal. Manella v. 3. A report of surveyors, that a vessel is un- Barry...,*415 sound, is not evidence that she was not sea- 2. An agent for collecting debts merely, is not worthy, when she commenced the voyage. a factor, within the 13th section of the act of Marine Ins. Co. v. Wilson.............*187 limitations of Virginia. Hopkirk n. Bell.. *454 4. Quaere? Whether such report, even if it re- 3. A promise by a factor, that he would write lated to the commencement of the voyage, is to his principal to get insurance done, does conclusive evidence....................Id. not bind the principal to insure. Randolph 5. The assignee of a pre-emption warrant is a v- Ware......................... *503 competent witness, if his testimony does not tend to support the title of the party produc- FOREIGN SENTENCE, ing him. Wilson v. Speed........ .. r.. *283 a xt„x.-«„ x« „ xx x i £ xv x j 1. A foreign sentence as good prize, is not con- 6. Notice to an attomey-at-law of the time and , . ., , “ J ’ place of taking a deposition, is not Sufficient, C1US1V® eVldence JeSal tltle to the under the law of Virginia. Buddicum v P™perty ™ not “ the of a neutral Kirk & *293 nation. Maley v. Shattuck.............*458 7. The deposition must be taken at the time notified; an adjournment from the 12th to FORFEITURE. the 19th, is not an adjournment from day to L H a false oath be taken to proeure a register ............. • • ..................for a vessel, the United States have an elec- 8. Evidence of wheat delivered, is good, on the tion to proceed against tbe vessel ag forfeit_ plea of payment........................Id. ed, or against the person who took the false 9. An assignment of debts cannot be given in oath> for its value. But? until that election ig evidence, under the plea of accord and satis- made, the title to the vessel does not vegt ia faction.................................Id. the United States, under the forfeiture; and 10. A bill of parcels, stating the goods as the United States cannot maintain an action bought of D. & L, is not conclusive evidence for money had and received, against the as- that D. & I. were joint owners of the goods. signees of the persou who took the oath and Harris v. Johnston.................. .*311 who bad become bankrupt; the assignees 11. The sentence of a court-martial is not con- having sold the vessel and received the pur- clusive evidence that a man is liable to militia chase-money before the seizure of the vessel, duty. Wise v. Withers............... .*331 United States n. Grundy..............*337 12. A foreign sentence of condemnation as good prize, is not conclusive evidence that the FRAUD legal title to the property was not in the sub- ject of a neutral nation. Maley v. Shat- 1. The courts of the United Slates will not eu-tuck...................................*458 force an agreement entered into in fraud of 8 312 INDEX. 519 law of the United States; although that agreement was made between persons who were then enemies of the United States, and the object of the agreement, a mere stratagem of war. Hannay v. Eve..............*242 2. A discharge under an insolvent act, obtained by fraud, is a discharge in due course of law. Simms v. Slocum....................*300 FREIGHT. 1. Quaere ? Whether the mortgagee of a ship is entitled to the freight? Hodgson v. Butts..............................*140 GENERAL RULE. 1. If the transcript be not filed by the 6th day of the term, either party may have a continuance...............................*239 2. If judgment below be thirty days before the sitting of this court, the record must be filed within the first six days of the term.Id. 3. In all cases from the district of Columbia, the record must be filed, within the first six days of the term....................Id. 4. If errors are not assigned, according to the general rule, the writ of error will be dismissed with costs.......................Id. 5. If the defendant refuses to plead, the court will proceed ex parte................... Id. HABEAS CORPUS. 1. A warrant of commitment by justices of the peace, must state a good cause certain, supported by oath. • Ex parte Burford.. ..*448 INSOLVENT. 1. The United States have no lien on the real estate of their debtor, until suit brought, or bankruptcy, or a notorious insolvency has taken place; or being unable to pay all his debts he has made a voluntary assignment of all his property; or having absconded, his property has been attached by process of law. United States v. Hooe.............*73 2. A discharge under an insolvent law, though obtained by fraud, is a discharge in due course of law. Simms v. Slacum............ *300 INSURANCE. 1. If a policy upon a vessel has a clause “ that if the vessel, after a regular survey, should be condemned as unsound or rotten, the underwriters should not be bound to pay,” a report of surveyors, that she was unsound and rotten, but not referring to the commencement of the voyage, is not sufficient to discharge the underwriters. Marine Ins. Co. v. Wilson.. ..............................*187 2. Quaere ? Whether such report, even if it relate to the commencement of the voyage, would be conclusive evidence 1..........Id. 3. If a vessel be insured at and from K. to A., and take a cargo for B. and A., and sail with intent to go first to B. and then to A., and is captured before she arrives at the dividing point between A. and B., this is a case of intended deviation only, and not of non-incep-tion of the voyage insured. Marine Ins. Co. y. Tucker........................... *357 4. It depends upon the particular circumstances of the case, whether, if the vessel be captured and re-captUred, the loss shall be deemed total or partial.......................Id. 5. A promise by a factor, that he would write to his principal to get insurance done, does not bind the principal to insure. Randolph v. Ware...............................*503 See Non-Intercourse, 1. JUDGMENT. See Caveat, 1: Collector, 2. JUDGE. See Court, 2. JURISDICTION. 1. The want of proper parties is not a good plea to a bill in chancery, which suggests that such parties are out of the jurisdiction of the court. Milligan v. Milledge...........*220 2. If there be two or more joint plaintiffs, and two or more joint defendants, each of the plaintiffs must be capable of suing each of the defendants in the courts of the United States, in order to support the jurisdiction. Strawbridge n. Curtiss................*267 3. This court has not jurisdiction upon a writ of error to a state court, if the decision of the state court be in favor of the privilege claimed under an act of congress. Gordon v. Caldcleugh.........................*268 4. All the rights to a testator’s personal property are to be regulated by the laws of the country where he lived; but suits for those rights must be governed by the laws of that country in which the tribunal is placed. Dixon v. Ramsay.......................*319 5. If the court has not jurisdiction, the officer executing its process is a trespasser. Wise v. Withers............................*331 JURY. See Damages, 1. 313 520 INDEX. JUSTICES OF PEACE. 1. Queered Whether the act of congress abolishing the fees of the justices of peace of the district of Columbia, can affect those justices who were in commission when the act was passed ? United States V; More...... .*159 2. A justice of peace of the district of Columbia is an officer of the government of the United States, and exempt from militia duty. Wise V. Withers....................*331 See Habeas Corpus, 1: Warrant, 1. KENTUCKY. See Caveat, 1. LANDS. 1. Under the act of Pennsylvania of 3d April 1792, for the sale of the vacant lands, &c., the grantee, by warrant, of a tract of land lying north and west of the rivers Ohio and I Allegheny and Conewango creek, who,, by I force of arms of the enemies of the United | States, was prevented from settling and improving the said land, for the space of two years from the date of his warrant, but dur- | ing that time, persisted in his endeavors to : make such settlement and improvement, is > excused from making such settlement as is : described in the 9th section of the act, and | the warrant vests in such grantee a feesimple. Huidekoper v. Douglass.......*1 2. Quaere? Whether a British subject, born in England, in 1750, and who always resided there, could, in the year 1786, take and hold lands in Virginia, by descent or devise? Lambert v. Paine....................*97 See Lien, 1. LEGACY. 1. If a testator declares that a certain legacy shall abate, if the personal and real estate of which he shall die seised and possessed, shall not be sufficient to pay aH his debts and legacies, and if the estate be more than sufficient at the time of the testator’s death, but afterwards become insufficient, by means of the bankruptcy of the executor, such legacy shall abate for the benefit of the other legacies. Silsby v. Young...........*249 LETTER OF CREDIT. See Assumpsit, 2. LETTERS TESTAMENTARY. See Executors, 1, 8. [ LEX LOOT. See Jurisdiction, 4. LIEN. 1. The United States have no lien on the real estate of their debtor until suit brought, or a notorious insolvency or bankruptcy ; or being unable to pay all his debts, he has made a voluntary assignment of all his property ; or having absconded, &c., his property has been attached by process of law. United States v. Hooe........................*73 LIMITATIONS. 1. The act of limitations of Virginia begins to run against a creditor residing out of the state, if he comes into the state for temporary purposes, provided the debtor be in the state at that time. Faw v. Roberdeau... *174 2. The treaty of peace prevents the operation of the act of limitations of Virginia, upon British debts contracted before the treaty. Hopkirk n. Bell......................*454 3. An agent for collecting debts merely, is not a factor, within the 13th section of the act of limitations of Virginia...............Id. MILITIA. See Court-Martial, 1, 2: Justices of Peace, 2. MISTAKE. 1. He who sells property on a description given by himself, by mistake, is bound, in equity, to make good that description. McFerran v. Taylor...............................*270 2. Quaere ? If themistake be of a matter deemed perfectly immaterial by both parties, at the time of the contract, and which would not have varied the bargain, if it had been known, and of which both parties were equally ignorant, whether a court of equity ought to interfere.............................. .Id. MORTGAGE 1. A mortgage of part of the property of a collector of the revenue, to the surety in his official bond, to indemnify him from his re ■ sponsibility as surety on the bond, and also to secure him from his existing and future: indorsements for the mortgagor at bank, is valid against the United States, although it turns out, that the collector was unable to pay all his debts; at the time the mortgage was given, and although the mortgagee knew, at the time of taking the mortgage, that the INDEX. 522 mortgagor was largely indebted to the United mediate days, such deposition is not taken States. United States v. Hooe. .. ..........*73 agreeable to notice..................... Id. 2. A mortgage of chattels, in Virginia, is void as to creditors and subsequent purchasers, OFFICER unless it be acknowledged, or proved by the oaths of three witnesses, and recorded in the Court-Martial, 2: Justice of Peace, 2: same manner as conveyances of land are re- Navy, 1: Trespass, 1. quired to be acknowledged or proved, and recorded. Hodgson v. Butts......... ..*140 OPINION. 3. Quaere ? Whether the mortgagee of a ship is gee „ $ entitled to the freight ?...................Id. ’ 4, A decree for the sale of mortgaged property, on a bill to foreclose, is a final decree, and PAYMENT. may be appealed from. Ray v. Law.. .*179 Action, 1: Evidence, 8. NAVY. PENNSYLVANIA. 1. The commander of a United States ship of See Lands 1. war, if he seizes a vessel on the high seas, without probable cause, is liable to make nmonviT - x-x x- • i sA. j j , JrKKSvJNAL' (jrvvDb. restitution m value, with damages and costs, even although the vessel is taken out of his 1. All rights to the testator’s personal property possession by superior force: apd the owner are to be regulated by the laws of the country is not bound to resort to the re-captor, but where the testator lived; but suits forthose may abandon and hold the original captor rights must be governed by the laws of that liable for the whole loss. Maley v. Shat- country in which the tribunal is placed. tuck..................................... *458 Dixon v. Ramsay.... . . .... ... ... . . . .*319 NON-INTERCOURSE. PETERSBURG. 1. A vessel belonging to citizens of the United 1. By the act of congress of 10th of May 1800, States, in the year 1799, driven by distress the collector of the district of Petersburgh into a French port, and obliged to land her was not restricted to a commission of 2^ cargo, in order to make repairs, and pre- per cent, on the moneys by him collected and vented by the officers of the French govern- received after the 30th of June 1800, on ment, from relading her original cargo, and account of bonds previously taken for duties from taking away, in exchange, anything but arising on goods imported into the United produce or bills, might lawfully purchase and States. United States v. Heth........ *399 take away such produce, and such voyage was not illegal, so as to avoid the insurance. PLEADING Hallet n. Jenks.........,.................*210 2. The act of June 13th, 1798, did not impose 1. In a declaration, an’averment that the as-any disability upon vessels of the United signment of a promissory note was for value States bond fide sold to foreigners residing received, is an immaterial one, and need not out of the United States, during the existence be proved. Wilson v. Codman.............*193 of that act. Sands v. Knox.................*499 2. If the defendant plead the bankruptcy of an indorser in bar, a replication stating that NOTICE themote was given to the indorser, in trust for the plaintiff, is not a departure from the 1. Notice of the time and place of taking a declaration, which avers the note to have deposition given to the attorney-at-law, is not been given for value received............Id. sufficient, under the law of Virginia. Bud- 3. A plea in bar to a bill in chancery, denying I dicum v. Kirk *293 only part of the material facts stated in the 1 2. An attorney-at-law may agree to receive, or bill, is not good. A mere denial of facts is to waive notice, and will not afterwards be proper for an answer, but not for a plea. Mil- permitted to allege want of it..............Id. ligan v. Milledge.. .•....... ... .*220 8. If notice be given, that a deposition will be 4. The want of proper parties is not a good taken on a certain day, and if not finished on plea, if the bill suggests that such parties are that day, that the commissioners will adjourn out of the jurisdiction of the court..... .Id. from day to day, until it be finished, and the 5. A variance in date between the bond de-commissibnhrs adjourn over several inter- dared upon, and that produced on oyer^ is 315 522 INDEX. matter of substance, and fatal upon the plaintiff's special demurrer to the defendant's bad rejoinder. Cooke v. Graham... .*229 6. A finding by a jury which contradicts a fact admitted by the pleadings, is to be disregarded. McFerran v. Taylor......................*270 7. Upon the plea of payment to debt on bond, the defendant may give in evidence wheat delivered on account of the bond, at a certain price; and also an assignment of debts to the plaintiff, part of which he collected, and part were lost by his negligence or indulgence. Buddicum v. Kirk............................*293 8. An assignment of debts cannot be pleaded as an accord and satisfaction, to debt on bond...................................... ..Id. 9. Qucere ? Whether a deputy-marshal can plead in abatement, that the capias was not served on him by a disinterested person? Knox v. Summers.....................................*496 See Evidence, 1. PRACTICE. 1. If statements of the case are not furnished, according to the rule of the court on that subject, the cause will be dismissed or continued. Peyton v. Brooke..................*93 2. A certiorari will be awarded, upon a suggestion that the citation has been served, but not sent up with the transcript of the record. Field v. Milton.. i..................*514 3. If usury be specially pleaded, and the court reject the evidence offered upon such a special plea, it may be admitted, upon the general issue, notwithstanding it has been refused upon the special plea. Levy v. Gadsby. .*180 4. An averment that the assignment of a promissory note was for value received is immaterial, and need not .be proved. Wilson v. Codman..............J..............*193 5. Upon the death of the plaintiff, and appearance of his executor, the defendant is not entitled to a continuance; but he may insist on the production of the letters testamentary, before the executor shall be permitted to prosecute..............................Id. 6. The want of proper parties, is not a proper ground for dismissing the bill...........Id. fJ. If the executor has no assets, the devisees and legatees may be proceeded against; in equity........................... Id. 8. To support a judgment on a collector’s bond, at the return-term, it must appear by the record, that the writ was executed fourteen days before the return-day. Dobynes v. United States...............'.........*241 9. If the plaintiff in error do not appear, the defendant may either have the plaintiff called, and dismiss the writ of error with costs, or he may open the record and go for an affirmance. Montalet n.. Murray...............*249 10. A general dismissal of the plaintiff’s caveat, in Kentucky, does not purport to be a judgment upon the merits. Wilson v. Speed......................................*283 11. The court, upon a trial by jury, is bound to give an opinion, if required, upon any point relevant to the issue. Douglass v. McAllister........................................*298 12. An appearance of the defendant, by attorney, cures all irregularity of process. Knox v. Summers.................................*496 See Appeal, 1, 2, 3: Costs, 1-5: General Rule : Jurisdiction, 2, 3: Notice, 1-3: Pleading, 4-6 : Variance, 1. PROMISSORY NOTE. 1. An indorser may avail himself of usury between the maker and the indorsee. Levy v. Gadsby..................................*180 2. The averment that the assignment of a promissory note was ‘ for value received, is immaterial, and need not be proved. v. Codman................................*193 3. If the defendant plead the bankruptcy of an indorser in bar, a replication, that the note was given to the indorser, in trust for the plaintiff, is not a departure from the declaration, which avers the note to have been given for value received..................Id. 4. If a promissory note be received as conditional payment for goods sold and delivered, and be passed away, the vendor of the goods cannot maintain an action for the goods sold and delivered. Harris v. Johnston........*311 5. An indorsee of a promissory note, payable to order, cannot, in Virginia, maintain an action at law, against a remote indorser; but he may, in equity..........'............... Id. REGISTER. See Forfeiture, 1. REVENUE. See Collector, 2: Forfeiture, 1: Lien, 1: Mortgage, 1: Non-Intercourse, 1, 2: Petersburg, 1. RULE OF COURT. See General Rule. SEIZURE. See Forfeiture, 1 : Navy, 1. 316 INDEX. 523 SHIP. See Forfeiture, 1: Navy, 1. SLAVE. 1. If the owner of a slave, removing into Virginia, take the oath required by the act of assembly, within sixty days after the removal of the owner, it will prevent the slave from gaining his freedom, although he was brought into Virginia, by a person claiming and exercising the right of ownership over him, eleven months before the removal of the true owner; and although the person who brought him in, never took the oath; and although the slave remained in Virginia, more than one year; and although the true owner never brought him in. Scott v. Negro London.......*324 STATUTE. 1. The words of a statute, if dubious, ought to be taken most strongly against the lawmakers. United States v. Heth.....*413 TRESPASS. 1. Trespass lies against the officer who executes the process of a court not having jurisdiction. Wiser. Withers.................................*331 TRUST. 1. If the payee of a note hold it in trust, his bankruptcy will not take away his power to indorse it over to cestui que trust. Wilson v. Codman.. ........................*193 USURY. 1. If A. lend money to B., who puts it out at usurious interest, and agrees to pay A. the same rate of interest which he is receiving upon A.’s money, this is usury between A. and B., and an indorser of B.’s note to A. may avail himself of the plea of usury. Levy r. Gadsby...........................*180 VARIANCE. 1. A variance between the date of the bond, as stated in the declaration, and as it appears on oyer, is a matter of substance, and fatal on the plaintiff’s special demurrer to the defendant’s bad rejoinder. Cooker. Graham. .*229 VERDICT. 1. A finding by the jury which contradicts a fact admitted by the pleadings, is to be disregarded. McFerran v. Taylor.......*270 VIRGINIA. See Agent, 3: Bond, 4: British Subjects, 1, 2: Costs, 2: Limitations, 1, 2, 3: Mortgage, 2: Promissory Note, b: Slaves, 1. WARRANT. 1. A warrant of committal by justices of the peace, must state a good cause certain, supported by oath. Ex parte Burford.... .*448 WITNESS. See Evidence, 5. WRIT OF ERROR. 1. No appeal or writ of error lies in a criminal case, from a judgment of the circuit courts of the United States. United States r. More..............................*159 317